In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2859

ROY L. ENDSLEY III and STEPHEN GRAHAM,
Individually and on Behalf of Those Similarly
Situated,

Plaintiffs-Appellants,

v.

CITY OF CHICAGO,

Defendant-Appellee.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 8094--William T. Hart, Judge.


Argued April 20, 2000--Decided October 12, 2000



    Before Manion, Rovner, and Williams, Circuit Judges.

  Williams, Circuit Judge. Plaintiffs challenge the
City of Chicago’s use of tolls collected on the
Chicago Skyway to pay for some of the City’s non-
Skyway related transportation improvements. In
1995, the Skyway began producing revenue that
exceeded its operating expenses. Prior to that
time, the City used Skyway tolls exclusively to
operate and maintain the Skyway. In 1996, the
City decided to refinance outstanding Skyway debt
and raise additional revenues for non-Skyway
expenses through a new bond issue ("Series 1996
Bond Issue"). Plaintiffs seek to prevent use of
Skyway revenues to pay for non-Skyway expenses
and challenge the City’s action on four separate
grounds: (1) violation of federal transportation
statutes; (2) violation of antitrust laws; (3)
violation of the Constitution’s dormant Commerce
Clause; and (4) violation of various state laws.
The district court dismissed plaintiffs’
complaint in its entirety for failure to state a
claim. Because we find that the City’s use of
Skyway revenue for non-Skyway projects does not
amount to a constitutional violation of any sort,
we affirm.

I

    Roy Endsley and Stephen Graham are users of the
Chicago Skyway toll bridge, a 7.8 mile long high-
speed, limited access highway that joins the
Indiana Tollway with the rest of Interstate 90 at
the Illinois-Indiana border. The Skyway is one of
two Interstate routes that connect Chicago’s Dan
Ryan Expressway (Interstate 90/94) to the Indiana
Tollway. The other is the Borman/Kingery/Bishop
Ford Expressway (Interstate 80/94). When the
Skyway was constructed in the late 1950s, it was
paid for with private funds raised from the sale
of revenue bonds in 1955 and 1957. Under the
terms of the sale, the bonds were to be repaid
solely from available Skyway toll revenues and
the City itself was not obligated to repay the
bonds.

  The revenue raised by the Skyway tolls is
heavily dependent on traffic volume. When traffic
on the Skyway is heavy, more drivers pay the toll
and more revenue is generated. Conversely, when
traffic is low, the Skyway produces less revenue.
On several occasions prior to 1996 (fourteen
times), the City has raised the toll rates in
order to pay the Skyway’s maintenance and
operating costs and to make the Skyway "a self-
sufficient enterprise."/1 As a result, the
current toll rate schedule ($2.00 or 25.6 cents
per mile for most automobiles) is higher than the
rate for other highways in the area.

  Over the last ten years, the Skyway has enjoyed
an increase in available funds. In 1991, the
Skyway received $14.2 million in federal funds.
In 1994, the City refunded the aggregate
principal of outstanding Skyway revenue bonds by
selling new ones. And in 1995, traffic volume on
the Skyway increased significantly such that net
revenues were projected to be $11.5 to $17.1
million annually through the year 2000. In 1996,
the City sold Skyway bonds again ("1996 Bond
Sale") and proceeds of the sale were sufficient
to repay the outstanding aggregate principal
amount of the 1994 bonds and the related
refinancing costs. The excess $52 million raised
was used to fund other City transportation
improvements. As with past bond sales, the 1996
bonds are to be repaid solely from revenues the
Skyway generates through tolls and concessions.
At no time prior to 1996 did the City use Skyway
revenue for purposes other than the maintenance
and operation of the Skyway.

  Endsley and Graham brought a class action suit
against the City challenging its use of the $52
million raised by the 1996 Bond Sale for non-
Skyway improvements. The City filed a motion to
dismiss the action which the district judge
granted pursuant to Federal Rule of Civil
Procedure 12(b)(6). Endsley and Graham now
appeal. We review the district court’s decision
to grant a motion to dismiss de novo. See Hentosh
v. Finch Univ. of Health Sciences, 167 F.3d 1170
(7th Cir. 1999).

II

  On appeal, plaintiffs maintain that the City’s
use of proceeds from the 1996 Bond Sale for non-
Skyway improvements violated various federal
transportation statutes, antitrust laws, and the
Commerce Clause of the Constitution. We consider
each challenge in turn.


  A.   Federal Transportation Statutes

  Plaintiffs contend that the City has violated
two federal transportation statutes, 23 U.S.C.
sec. 301 and 23 U.S.C. sec. 129(a)(3)/2 which
when read together, regulate the entities
operating tollways and receiving federal funds.
Section 301 generally prohibits state and local
entities from charging tolls on highways that
receive federal funding. Section 129 creates an
exception to that rule, allowing operation of
tollroads only under certain conditions. Endsley
and Graham argue that the City’s failure to meet
the conditions required under sec. 129 gives rise
to a private right of action. It is clear that
the City has not violated sec. 301. However,
plaintiffs insist that the City has violated sec.
129 and they try to liken the language of sec.
301, which at least one court has found does
create a private right of action,/3 to that of
sec. 129(a)(3), which on its face does not. The
district court distinguished sec. 301 from sec.
129(a)(3) and rejected this approach. "If the
City has violated sec. 129, any violation may be
properly redressed by the Secretary of
Transportation. . . . There is no compelling
reason why private persons such as plaintiffs .
. . should have the right to seek federal court
action to aid in enforcement of this portion of
the statute." The district judge’s analysis is
right on point. No express or implied private
right of action was created by sec. 129. Neither
a review of the language nor a consideration of
the statute’s intended beneficiaries, its
legislative history, or the purpose of the
statutory scheme suggest that it was. See Cort v.
Ash, 422 U.S. 66, 78 (1975).

  Nothing in the express language of the statute
suggests that sec. 129(a)(3) creates a private
right of action. Section 129 simply requires the
Transportation Secretary and the tollway
operating entity (here, the City) to enter into
an agreement which sets forth a list of
priorities for the spending of toll revenues by
entities receiving federal funding under the
statute. Under such an agreement, the City would
be required to use toll revenues first for debt
service, then for reasonable return on private
investment in the project, then for any
maintenance and operation costs. Therefore, the
City’s use of funds for non-Tollway expenses
before fulfilling these other obligations would
violate the agreement between the City and the
Secretary of Transportation, not sec. 129.

  Furthermore, a close review of the language,
structure, and history of sec. 129 suggests that
no implied private right of action exists either.
As we acknowledged in Mallett v. Wisconsin
Division of Vocational Rehabilitation, 130 F.3d
1245, 1248-49 (7th Cir. 1997), the Supreme Court
has retreated from the four-part test established
in Cort v. Ash, 422 U.S. 66, 78 (1975), to
determine whether an implied cause of action
exists under a statute./4 See also, Transamerica
Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11,
15-16 (1979) ("[W]hat must ultimately be
determined is whether Congress intended to create
the private remedy asserted."). Instead of
applying the four-part test, we now focus
primarily on legislative intent. "Our inquiry is
whether Congress intended an implied right of
action . . . in light of the statute’s language,
structure, and legislative history. If such
inferences of intent are not present, we must
conclude that the essential predicate for
implication of a private remedy does not exist."
Mallett, 130 F.3d at 1249 (internal citations
omitted).

  As we noted above, neither the language nor the
structure of sec. 129 indicate that Congress
intended to create a private right of action. A
look at the legislative history suggests the
same. Section 129 was created to authorize
federal participation in, and funding for, the
creation and maintenance of highways that
facilitate travel among various states and
cities./5 It is by and large an appropriations
provision designed to "strengthen the highway and
transit components of a national intermodal
transportation" by contributing $153.5 billion in
federal funds. See H.R. Rep. 102-171, at 10
(1991), reprinted in 1991 U.S.S.C.A.N. 1526. It
is important to note that in enacting sec. 129,
one of Congress’ goals was to give state and
local authorities more flexibility in spending
federal highway funds. "The Committee feels that
one of the most important things this legislation
can do is give state and local officials the
flexibility to make the crucial decisions on how
their funds should be used. [Under sec. 129,]
[t]hey will have the ability to choose the best
transportation solution without the artificial
constraints of funding categories." Id.
  The provision upon which plaintiffs rely, sec.
129(a)(3), regulates the manner in which the
entities operating federally funded tollways
spend the revenues raised by the tolls charged.
However, it does not operate to control state and
local government use of tollway revenues
completely. In fact, the legislative history
indicates that Congress sought to encourage
private investment in the nation’s highways and
public investment in privately operated toll
roads such as the Skyway and give state and local
entities more freedom to raise and use revenues
as they see fit--just within certain limits./6
Although willing to permit these innovative
partnerships to form through the use of federal
funds on privately-owned toll roads, Congress
enacted sec. 129(a)(3) to strike a balance among
the private and public interests involved in the
operation of tollways like the Skyway. The
provision simply sets forth limitations on the
use of revenues for those highways that receive
funding from the U.S. Department of
Transportation under the statute. The existence
of these limitations do not lead us to the
conclusion, however, that Congress intended to
open the door to private enforcement of them.

  As in other cases where the Supreme Court has
found no implied right of private action, sec.
129 contains no judicial, or even administrative,
remedy through which aggrieved persons can seek
redress. See Blessing v. Freestone, 520 U.S. 329,
348 (1997) (holding that a Social Security Act
provision contained no private remedy, either
judicial or administrative, through which
aggrieved persons could seek redress). Like many
statutes appropriating federal funds and
regulating the use of those funds, the only way
sec. 129 assures that the City will abide by the
statute’s rules is through oversight by an
executive agency official, here the Secretary of
Transportation. Any violation of the provision’s
mandates will be handled by the Secretary of
Transportation, not private citizens. It is as
Congress intended it to be. A strong presumption
exists against the creation of an implied private
right of action and where, as here, there is
nothing in the legislative history to suggest
that such a right was intended, we will not imply
a private right of action where none appears in
the statute. See Statland v. American Airlines,
Inc., 998 F.2d 539, 540 (7th Cir. 1993) (quoting
West Allis Mem’l Hosp., Inc. v. Bowen, 852 F.2d
251, 254 (7th Cir. 1988)).

  Seeking to salvage their transportation statute
claims, plaintiffs also challenge the district
court’s denial of their motion for leave to amend
the complaint. The district court correctly
denied this motion. For even if plaintiffs were
to bring the sec. 129 claims by way of 42 U.S.C.
sec. 1983, they would still lose. "Section 1983
is not available to enforce a violation of a
federal statute where Congress has foreclosed
enforcement in the enactment itself and ’where
the statute did not create enforceable rights,
privileges, or immunities within the meaning of
sec. 1983.’" Suter v. Artist M., 503 U.S. 347,
355-56 (1991), (citing Wright v. Roanoke
Redevelopment & Hous. Auth., 479 U.S. 418, 423
(1987)). As such, the district judge did not err
in denying plaintiffs’ motion to amend.


  B.   Section 2 of the Sherman Act

  Plaintiffs next seek relief under sec. 2 of the
Sherman Act./7 The district court held that
plaintiffs failed to plead sufficient facts to
show the City possessed monopoly power as
required under the Act. Section 2 forbids not the
intentional pursuit of monopoly power but the
employment of unjustifiable means to gain that
power. See 3 P. Areeda & D. Turner, Antitrust Law
para. 626c, at 76 (1978). "The offense of
monopoly under sec. 2 of the Sherman Act has two
elements: (1) the possession of monopoly power in
the relevant market and (2) the willful
acquisition or maintenance of that power as
distinguished from growth or development as a
consequence of a superior product, business
acumen, or historic accident." Eastman Kodak Co.
v. Image Technical Servs., 504 U.S. 451, 481
(1992) (citing United States v. Grinnell Corp.,
384 U.S. 563, 570-71 (1966)). In support of their
argument, plaintiffs assert that the Skyway is
the "only high-speed limited access route
connecting the Dan Ryan expressway in Chicago to
the Indiana Tollway." To satisfy the second
element, plaintiffs maintain that by charging an
arbitrary and unreasonable toll which brings in
revenue exceeding the cost of operating the
Skyway, the City is engaging in anti-competitive
conduct.

  As a preliminary matter, plaintiffs argue that
the district judge erred in taking up the
question of market power on a motion to dismiss.
He did not. We acknowledge that frequently,
questions of whether the defendant possessed the
requisite market power to establish a monopoly
are addressed in a motion for summary judgment or
trial. See State of Ill. v. Panhandle E. Pipe
Line Co. Med. Ctr., 935 F.2d 1469, 1472 (7th Cir.
1991); Nelson v. Monroe Reg’l Med. Ctr., 925 F.2d
1555, 1557 (7th Cir. 1990). However, where
plaintiffs fail to identify any facts from which
the court can "infer that defendants had
sufficient market power to have been able to
create a monopoly," their sec. 2 claim may be
properly dismissed. Hennessy Indus. Inc. v. FMC
Corp., 779 F.2d 402, 405 (7th Cir. 1985). See
also, BCB Anesthesia Care v. Passavant Mem’l Area
Hosp. Ass’n, 36 F.3d 664, 668 (7th Cir. 1994)
(affirming dismissal of a Sherman Act claim on a
motion to dismiss, noting, "sometimes the
conclusion follows a motion to dismiss; more
often the decision is one of summary judgment,
but often it appears that the record relied upon
[in rejecting plaintiff’s antitrust claim] is the
absence of facts indicating special circumstances
raising antitrust concerns").
  Here, plaintiffs’ complaint does not contain
facts allowing an inference that the City has
monopoly power. It is true that Leatherman v.
Tarrant County, 507 U.S. 163 (1993), bars the
district court from applying a heightened
pleading standard in antitrust cases. See MCM
Partners v. Andrews-Bartlett & Assocs., 62 F.3d
967, 976 (7th Cir. 1995). However, to survive a
motion to dismiss, plaintiffs still must set
forth facts sufficient to create an inference
that defendant had enough market power to create
a monopoly. See Hennessy, 779 F.2d at 405. The
facts do not suggest that the City has monopoly
power in the relevant market (high-speed limited
access routes connecting Chicago to Indiana). At
least two alternate routes, the
Borman/Kingery/Bishop Ford Expressway and the
Tri-State Tollway, "compete" with the Skyway.
While the Skyway may be the more desirable route,
it is not the only high-speed roadway between
Chicago and the Indiana Tollway. If the Skyway
tolls become too high, drivers will take one of
the alternate routes. The availability of these
very viable options for a high-speed access route
linking Chicago to Indiana indicates that the
City does not have monopoly power over the
relevant market.

  Even if it could be said that the City
possessed monopoly power, plaintiffs have not
presented sufficient facts to meet the second
requirement under sec. 2, anti-competitive
behavior or abuse of market power. The mere
existence of the power to control prices or
exclude competition is not unlawful unless it is
coupled with intent. See United States v.
Griffith, 334 U.S. 100, 107 (1948), disapproved
on other grounds by Copperweld Corp. v.
Independence Tube Corp., 467 U.S. 752 (1984). By
intent, we do not mean intent to obtain a
monopoly or to capture an ongoing increase in
market share. This of course is the aim of every
business endeavor. Under sec. 2, intent to obtain
a monopoly is unlawful only where an entity seeks
to maintain or achieve monopoly power by anti-
competitive means. As such, the Sherman Act does
not prohibit an entity possessing market power
from simply raising prices in order to increase
revenues. For a sec. 2 violation, more is needed.
See U.S. Steel Corp. v. Fortner Enters., Inc.,
429 U.S. 610, 612 (1977).

  The City’s decision to raise the cost of Skyway
tolls and raise additional revenue for other
transportation projects is not, in and of itself,
anti-competitive. To the contrary, we have
recognized that "[v]irtually all business
behavior is designed to enable firms to raise
their prices above the level that would exist in
a perfectly competitive market." Panhandle E.
Pipe Line, 935 F.2d at 1481. In fact, we have
noted that when an entity raises prices,
competition is enhanced and therefore, in some
cases, anti-trust claims are precluded. See O.K.
Sand & Gravel, Inc. v. Martin Marietta
Technologies, Inc., 36 F.3d 565, 573 (7th Cir.
1994) (citations omitted). While a consumer may
suffer anti-trust injury when higher prices
result from some unlawful monopolistic conduct,
in this case, plaintiffs have not identified such
conduct./8 Plaintiffs plead facts showing the
City using anti-competitive behavior neither in
their alleged attempt to gain monopoly power
(such as forming a conspiracy or an unlawful
combination), nor in their alleged attempt to
maintain it (such as tying Skyway use to another
product)./9 They cite only the higher Skyway
tolls, or the "overcharge" as they label the
increased tolls, as evidence of unlawful anti-
competitive behavior. Plaintiffs have failed to
identify any facts which point to the City’s
alleged anti-competitive use of its power to
control the price of the Skyway tolls. Therefore,
we conclude that the district court did not err
in dismissing plaintiffs’ antitrust claim./10

C.   Commerce Clause

  Finally, plaintiffs assert that because the
Skyway financing scheme and the tolls charged are
not apportioned to the use or cost of operating
the Skyway, the City has unreasonably burdened
interstate commerce and violated the
Constitution’s dormant Commerce Clause. The
Commerce Clause is an affirmative grant of power
to Congress. U.S. Const. art. I, sec. 8, cl. 3.
Where Congress has not exercised its powers under
the Commerce Clause, states generally are free to
legislate over that area unless or until Congress
decides to take action. The Supreme Court has
read the Commerce Clause to create not only
affirmative powers to legislate, but also a
negative implication that limits state action as
well. See Hughes v. Oklahoma, 441 U.S. 322, 326
(1979); Southern Pac. Co. v. Arizona, 325 U.S.
761, 769 (1945); Gibbons v. Ogden, U.S. (9.
Wheat) 1, 199-200 (1824). As a result, the
dormant Commerce Clause is invoked to scrutinize
state regulations that burden interstate
commerce, even in the absence of conflicting
congressional legislation.

  Under dormant Commerce Clause precedent, "a levy
is reasonable . . . if it (1) is based on some
fair approximation of use of the facilities, (2)
is not excessive in relation to the benefits
conferred, and (3) does not discriminate against
interstate commerce." Northwest Airlines, Inc. v.
County of Kent, Mich., 510 U.S. 355, 369 (1993).
Rather than argue that its Skyway tolls meet this
test, in its defense the City asserts that since
it acts as a proprietary enterprise in its
operation of the Skyway, its decision to raise
the Skyway tolls and use revenue for non-Skyway
expenses is protected by the market participant
doctrine. The market participant doctrine
"differentiates between a State’s acting in its
distinctive governmental capacity, and a State’s
acting in the more general capacity of a market
participant; only the former is subject to the
limitations of the negative Commerce Clause." New
Energy Co. of Ind. v. Limbach, 486 U.S. 269, 277
(1988).

  Therefore, the question before us is whether in
operating the Skyway, the City was acting as a
participant or regulator of the local highway
system. Here, plaintiffs sealed their own fate by
including in their complaint the following:
"Since its inception, the City has operated the
Skyway as a proprietary enterprise, and not in
its governmental capacity." We have long held
that a plaintiff may plead himself out of court
by including factual allegations which, if true,
show that his legal rights were not invaded. See
Stewart v. RCA Corp., 790 F.2d 624, 632 (7th Cir.
1986), American Nurses’ Ass’n v. Illinois, 783
F.2d 716, 724 (7th Cir. 1986). In affirmatively
stating that the City runs the Skyway as a
proprietary enterprise, plaintiffs fatally injure
their Commerce Clause claim.

  Even if plaintiffs had not plead themselves out
of court, the facts suggest that the City was
indeed a market participant. "The
market-participant doctrine permits a State to
influence a discrete, identifiable class of
economic activity in which it is a major
participant." South-Central Timber Dev. v.
Wunnicke, 467 U.S. 82, 97 (1984) (internal
citations omitted). Courts have recognized the
operation of private toll roads as legitimate
economic activity. See Overstreet v. North Shore
Corp., 318 U.S. 125, 127 (1943); Lane
Construction Corp. v. Highlands Ins. Co., et al.,
207 F.3d 718, 720 (4th Cir. 2000). The City sold
revenue bonds to pay for construction of the
Skyway and funds Skyway maintenance and operation
by charging drivers a toll. As owner and operator
of the property, the City offers drivers access
to the Skyway in exchange for a fee. At times,
when the Skyway was not raising sufficient
revenue, the City would fund debt service and
maintenance costs. These facts suggest that the
City was acting as a property owner, using its
property to raise money, not as a regulator.

  Plaintiffs contend that while the City may be
acting as a market participant, at the same time,
by levying a toll on the Skyway, it is acting (in
a hybrid role) as a market regulator. Courts
interpreting the Commerce Clause have long
struggled to draw the line between that which is
considered a government function or regulatory
activity and that which is considered proprietary
activity. See Garcia v. San Antonio Metropolitan
Transit Auth. 469 U.S. 528, 545 (1985) ("the goal
of identifying ’uniquely’ governmental functions,
for example, has been rejected by the Court . .
. in part because the notion of a ’uniquely’
governmental function is unmanageable."); Nat’l
League of Cities v. Usery, 426 U.S. 833, 851
(1976) (attempting to define the scope of
governmental functions protected from federal
regulation under the Commerce Clause), overruled
by Garcia, 469 U.S. at 557; New York v. United
States, 326 U.S. 572, 584 (1946) (concluding that
the distinction between ’governmental’ and
’proprietary’ functions was ’untenable’ and that
it had to be abandoned). However, in determining
whether the market participant doctrine applies,
we have remained loyal to this cumbersome, yet
necessary dichotomy. E. & E. Hauling v. Forest
Preserve Dist. of DuPage County, Ill., 821 F.2d
433, 438 (7th Cir. 1987) (finding that the Forest
Preserve acted as regulator not a market
participant); W.C.W. Window Co. v. Bernardi, 730
F.2d 486, 494 (7th Cir. 1984) (citing White v.
Mass. Council of Construction Employers, Inc.,
460 U.S. 204 (1983)). Where, as here, the facts
and circumstances suggest that a government
entity is acting as a market participant rather
than a market regulator, the doctrine will apply
and that entity will not be subjected to the
limitations provided by the dormant Commerce
Clause.

  A government entity is acting as a market
regulator when it enacts rules that "whether by
statute, regulation, or contract, . . . have a
substantial regulatory effect outside of that
particular market." South-Central Timber, 467
U.S. at 97. In support of their position,
plaintiffs cite the Fifth Circuit case, New
Orleans S.S. Ass’n v. Flaquemines Port, Harbor
and Terminal Dist., 874 F.2d 1018 (5th Cir. 1989)
(holding that a New Orleans port could charge
ships traveling the Mississippi River a
reasonable port fee for emergency response
services without violating the Commerce Clause).
This case actually offers support for the City’s
market participant argument. The court explained
that the Port acts as a market participant when
it "offers a service and receives payments tied
to the costs of providing the service, just as
would a private business. This fee-for-service
approach is not a regulation, as, for example,
would be a rule requiring every ship to provide
its own fire fighting and rescue equipment." Id.
at 1021. While the court noted that the Port was
also acting in its capacity as government
regulator of health and safety by using the money
for emergency response services, the
circumstances here are distinguishable. Nothing
about the City’s efforts to raise revenue by
charging a Skyway toll suggests that it is acting
as a regulator rather than a market
participant./11

  Overall, the facts suggest that the City is
protected by the market participant doctrine. As
such, the district judge correctly dismissed
plaintiffs’ Commerce Clause claims.

III

  For the reasons set forth above, we AFFIRM.




/1 Oftentimes, the toll rates were increased
pursuant to a federal court order which came out
of a lawsuit brought by bondholders against the
City.


/2 29 U.S.C. sec. 301 reads, "Except as provided in
section 129 of this title with respect to certain
toll bridges and toll tunnels, all highways
constructed under the provisions of this title
shall be free from tolls of all kinds."

29 U.S.C. sec. 129(a)(3) reads:

Before the Secretary may permit
Federal participation under this
subsection in construction of a highway, bridge,
or tunnel located in a State, the public
authority (including the State transportation
department) having jurisdiction over the highway,
bridge, or tunnel must enter into an agreement
with the Secretary which provides that all toll
revenues received from operation of the toll
facility will be used first for debt service, for
reasonable return on investment of any private
person financing the project, and for the costs
necessary for the proper operation and
maintenance of the toll facility, including
reconstruction, resurfacing, restoration, and
rehabilitation. If the State certifies annually
that the tolled facility is being adequately
maintained, the State may use any toll revenues
in excess of amounts required under the preceding
sentence for any purpose for which Federal funds
may be obligated by a State under this title.

/3 In Clallam County v. Washington, the Ninth
Circuit held that sec. 301 provides the predicate
right giving rise to a sec. 1983 action, because
while Congress neither created nor prohibited an
express remedy under Title 23, sec. 301
(mandating toll-free bridges) was intended to aid
bridge users, by providing free access across
waterways. Therefore, the plaintiffs were members
of a class granted enforceable rights. 849 F.2d
424, 429 (9th Cir. 1988).

/4 Under Cort, to determine if Congress intended to
create a private right of action, the court would
consider: 1) whether the plaintiff is a member of
the class for whose benefit the statute was
enacted; 2) whether there is any indication of
legislative intent to create or deny such a
remedy; 3) whether an implied remedy is
consistent with the underlying purposes of the
statutory scheme; and 4) whether the cause of
action is one traditionally relegated to the
states so that it would be inappropriate to infer
a federal remedy. Cort, 422 U.S. at 78.

/5 Generally, the Intermodal Surface Transportation
Efficiency Act of 1991 Pub. L. 102-240, 105 Stat.
1914, was established "to develop a national
intermodal surface transportation system, to
authorize funds for construction of highways, for
highway safety programs, and for mass transit
programs, and for other purposes." (codified as
amended at 23 U.S.C. sec. 129 (2000)).
/6 "The public-private partnership is important and
should be encouraged. From the Federal
perspective, one of the ways to approach
infrastructure improvement would be to ease
unnecessary Federal constraints preventing the
mixing of Federal dollars with private funds on
projects." Id. at 27.

/7 15 U.S.C. sec. 2 provides in pertinent part,
"Every person who shall monopolize, or attempt to
monopolize, or combine or conspire with any other
person or persons, to monopolize any part of the
trade or commerce among the several States, or
with foreign nations, shall be deemed guilty of
a felony. . . ." Originally, plaintiffs sought
relief pursuant to sec. 1 of the Sherman Act as
well. However, as they fail to raise any argument
concerning sec. 1 in their briefs, we will
address their sec. 2 claim only.

/8 See O.K. Sand & Gravel, 36 F.3d at 573 ("if . .
. [plaintiff] were arguing that it was injured as
a consumer, higher prices in output due to an
unlawful combination would be the ’type’ of
injury the antitrust laws intend to prevent").

/9 On appeal, plaintiffs rely solely on their
assertion that the City abused its market power
by raising the Skyway tolls and using revenues
for non-Tollway expenses. They do not revisit
their argument that the City has engaged in an
unlawful tying arrangement by conditioning access
to the Skyway on payment of money to fund non-
Skyway transportation improvements. Even if they
did, a review of the law and common sense
suggests that this argument also fails. "A tying
arrangement cannot exist unless two separate
product markets have been linked." Jefferson
Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 20-
21 (1984). Drivers who pay Skyway tolls are not
purchasing a separate product that is somehow
linked to the Skyway. The non-Skyway
transportation improvements involve streets and
roads throughout the city that drivers use for
free.

/10 As we have found that plaintiffs cannot meet the
requirements to show a sec. 2 Sherman Act
violation, we need not reach the City’s state
action immunity defense.


/11 Even though it considered the Port’s activity a
hybrid of market regulation and participation,
the court in New Orleans Steamship, affirmed the
district court’s dismissal of plaintiffs’ claims.
The Fifth Circuit held that charging ships for
access to certain services was permissible under
the Commerce Clause. New Orleans Steamship, 874
F.2d at 1022.
