Detroit Int'l Bridge Co. v. Gov't of Can., Civil Action No. 10-476 (RMC)

• Citation: 189 F.Supp.3d 85
• Decision Date: 26 May 2016
• Docket Number: Civil Action No. 10-476 (RMC)
• Parties: Detroit International Bridge Company, et al., Plaintiffs, v. Government of Canada, et al., Defendants.
• Court: U.S. District Court — District of Columbia

189 F.Supp.3d 85

Detroit International Bridge Company, et al., Plaintiffs,

v.Government of Canada, et al., Defendants.

Civil Action No. 10-476 (RMC)

United States District Court, District of Columbia.

Signed May 26, 2016

Amy Lynn Neuhardt, Hamish P.M. Hume, Kathleen Simpson Kiernan, Boies, Schiller & Flexner, LLP, Washington, DC, Patrick A. Moran, Detroit International Bridge Company, Warren, MI, Robert Allen Sedler, Wayne State University Law School, Detroit, MI, for Plaintiffs.

Douglas A. Dozeman, Eugene E. Smary, Scott M. Watson, Warner Norcross & Judd LLP, Grand Rapids, MI, Brian Matthew Collins, Davene Dashawn Walker, U.S. Department of Justice, Peter Christopher Whitfield, Baker Hostetler, Washington, DC, for Defendants.

OPINION ON MOTION FOR PARTIAL RECONSIDERATION

ROSEMARY M. COLLYER, United States District Judge

Plaintiffs Detroit International Bridge Company and its wholly-owned subsidiary, the Canadian Transit Company (collectively DIBC), seek partial reconsideration of the Court's September 30, 2015 Opinion and Order dismissing Counts 1, 2, 3, 5, 6, 8, and 9 of DIBC's Third Amended Complaint (TAC), Dkt. 105. See Mot. for Reconsideration [Dkt. 233].¹ Specifically, DIBC asks the Court to reconsider its dismissal of Counts 2, 3, 6, and 9. Federal Defendants timely opposed the motion, see Dkt. 242, and DIBC replied, see Dkt. 258.

The facts of this case are well known.² In 1921, U.S. Congress enacted a federal statute granting DIBC the rights "to construct, maintain, and operate" an international bridge between Detroit Michigan and Windsor Ontario. See Act of March 4, 1921, 66th Cong., ch. 167, § 1, 41 Stat. 1439 (1921) (DIBC Act).³ The Canadian Parliament passed similar legislation. See Act of May 3, 1921, 11-12 Geo. V ch. 57 (Can.) (CTC Act). Pursuant to this authority, DIBC built the Ambassador Bridge over the Detroit River. DIBC wants to build an adjacent Twin Span to provide a modern bridge crossing while it repairs and upgrades the 87-year-old Ambassador Bridge. The financial viability of the Twin Span, which in turn allegedly affects the existence of the Ambassador Bridge, has been threatened by the proposed construction of a new publicly-owned bridge, the New International Transit Crossing/Detroit River International Crossing (NITC/DRIC).⁴ DIBC contends that the NITC/DRIC will take away a substantial percentage of the commercial traffic between the United States and Canada from the Ambassador Bridge. DIBC has raised a plethora of arguments and claims against Federal Defendants to vindicate its right to build the Twin Span and prevent the construction of the NITC/DRIC. For the reasons that follow, the Court amends and expands upon some of its findings and analysis, but holds that Counts 2, 3, 6, and 9 must remain dismissed. DIBC's Motion for Partial Reconsideration will be denied.

I. LEGAL STANDARD

Federal Rule of Civil Procedure 54(b) governs a motion for reconsideration of interlocutory orders. Rule 54(b) provides that "any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties... may be revised at any time before the entry of judgment adjudicating all the claims and all the parties' rights and liabilities." Fed. R. Civ. P. 54(b). Relief under Rule 54(b) is available "as justice requires." DL v. District of Columbia , 274 F.R.D. 320, 324 (D.D.C.2011). To determine what "justice requires," courts examine the relevant circumstances. Cobell v. Norton , 355 F.Supp.2d 531, 539 (D.D.C.2005). Relevant circumstances include whether the court has " ‘patently misunderstood a party, has made a decision outside the adversarial issues presented to the Court by the parties, has made an error not of reasoning, but of apprehension, or where a controlling or significant change in the law or facts [has occurred] since the submission of the issue to the Court.’ " Ficken v. Golden , 696 F.Supp.2d 21, 35 (D.D.C.2010) (quoting Cobell v. Norton , 224 F.R.D. 266, 272 (D.D.C.2004) ) (alterations in original). "[A]sking ‘what justice requires' amounts to determining, within the Court's discretion, whether reconsideration is necessary under the relevant circumstances." Cobell , 224 F.R.D. at 272.

II. ANALYSIS

DIBC asks the Court to reconsider the dismissal of Counts 2, 3, 6, and 9. Specifically, DIBC argues, inter alia , that: (1) Federal Defendants violated DIBC's right to maintain and operate the Ambassador Bridge and build the Twin Span; (2) Federal Defendants violated the constitutional doctrine of separation of powers because Congress has supported the Ambassador Bridge and its Twin Span; (3) the issuance of the NITC/DRIC Presidential permit is reviewable under the Administrative Procedure Act (APA), 5 U.S.C. § 706 ; and (4) Federal Defendants violated the Equal Protection Clause of the U.S. Constitution because they discriminated against DIBC's Twin Span and in favor of the NITC/DRIC. Federal Defendants oppose DIBC's motion arguing that "there is nothing in Plaintiffs' Motion that amounts to anything more than a re-packaging of arguments they previously made or should have made." Opp'n [Dkt. 242] at 2.

DIBC concedes that "[i]n its zeal to assert every argument in defense of the Ambassador Bridge, [it] may have ‘overplay[ed its] hand.’ " Mot. for Reconsideration at 1 (quoting Mem. Op. at 27). DIBC now seeks reconsideration of a "subset of those dismissed claims" because it may not have articulated some of them "as clearly as [it] should have ...." Id. The problem with DIBC's arguments is not lack of clarity. Rather, the Court disagrees with most of DIBC's legal conclusions.

A. Count 2—Statutory and Contractual Rights under DIBC Act

In the DIBC Act of 1921, Congress authorized DIBC "to construct, maintain, and operate a bridge and approaches thereto across Detroit River at a point suitable to the interests of navigation, within or near the city limits of Detroit, Wayne County, Michigan ...." DIBC Act § 1. In light of this language, the Court rejected DIBC's argument that the DIBC Act conferred "an exclusive statutory and contractual franchise right." Mem. Op. [Dkt. 222] at 27-32. The Court reasoned that Congress granted DIBC "a time-constrained right to build" a bridge in the vicinity of Detroit but by its plain terms "did not require DIBC to build or operate a bridge in fact ." Id. at 28 (citing DIBC Act § 1) (emphasis in original). Moreover, the Court noted that "the government should never be presumed to have relinquished its powers" and held that there was nothing in the language of the DIBC Act that could support an express or implied grant of exclusivity. Id. at 29 (citing Proprietors of Charles River Bridge v. Proprietors of Warren Bridge , 36 U.S. 11 Pet. 420, 422, 9 L.Ed. 773 (1837) ). On reconsideration, DIBC raises two arguments with respect to Count 2.

1. Congressional Authorization Argument

DIBC argues that this Court failed to address its alternative claim in Count 2—namely, that even if Congress did not "relinquish its powers" when it enacted the DIBC Act, DIBC still prevails because it has "the only franchise for a bridge between Detroit and Canada ‘unless and until’ Congress and the Canadian Parliament expressly authorize a second such bridge." Mot. for Reconsideration at 17 (quoting TAC ¶ 312(c)) (emphasis added); see also Reply [Dkt. 258] at 10 (arguing that "only Congress can authorize a bridge that interferes with the Ambassador Bridge ...."). But this "alternative" claim is not new and has been thoroughly considered. The argument that DIBC has "the only franchise" for a bridge in that area of the Detroit River necessarily presupposes that the DIBC Act contained an implied grant of perpetual exclusivity. The language of the statute does not support this claim, see DIBC Act § 1, and the Court has already rejected the argument. See Mem. Op. at 27-32.

The crux of DIBC's position is that Federal Defendants violated its franchise rights under the DIBC Act because Congress "never enacted a law that specifically authorize[d] the NITC/DRIC." Mot. for Reconsideration at 17. Trying to conceal its dependence on a grant of exclusivity that never took place, DIBC relies on the fact that Charles River Bridge "involved two commensurate acts by the same sovereign legislature, each with equal specificity as to what that sovereign was authorizing." Id. According to DIBC, the facts in Charles River Bridge require Congress to authorize the NITC/DRIC. The argument is a red herring. DIBC does not explain why this factual distinction is relevant, let alone dispositive.⁵ Further, Congress did not have to authorize directly the construction of the NITC/DRIC because, in 1972, Congress consented to "the construction, maintenance, and operation of [all] international bridges" so long as the "foreign country consent[s], the proposed bridge compl[ies] with the 1906 Bridge Act, Act of Mar. 23, 1906, ch. 1130, 34 Stat. 84, and the proposed bridge obtain[s] a set of Executive Branch Approvals." Mem. Op. at 5-6 (citing International Bridge Act of 1972 (IBA), 33 U.S.C. § 535 et seq. ).

The IBA governs the proposed construction of the NITC/DRIC and to require additional congressional action, as DIBC suggests, directly contravenes Congress's clear intent in 1972 to remove itself from the individual approval of international bridges. See S. Rep. No. 92-1112, at 1 (1972), reprinted in 1972 U.S.C.C.A.N. 3399, 3399 (1972 S. Rep.) ("The philosophy of the bill, which will relieve the Congress of what has become a routine burden, follows that of the General Bridge Act of 1946 [33 U.S.C. § 525 ], from which so-called international bridges were exempted."); see also Sisselman v. Smith , 432 F.2d 750, 753 (3d Cir.1970) (holding that the General Bridge Act of 1946 "was clearly intended to end piecemeal Congressional supervision of [domestic] bridge construction by delegation of Congressional authority to an expert administrative agency"). Moreover, since there...