                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-17-2006

Amer Trkng Assn Inc v. DE River Joint Toll
Precedential or Non-Precedential: Precedential

Docket No. 05-1650




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                                                PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                           No. 05-1650



    AMERICAN TRUCKING ASSOCIATIONS, INC.;
 THE PENNSYLVANIA MOTOR TRUCK ASSOCIATION;
  THE NEW JERSEY MOTOR TRUCK ASSOCIATION;
             ROADWAY EXPRESS,
                               Appellants

                                v.


DELAWARE RIVER JOINT TOLL BRIDGE COMMISSION



          On Appeal from the United States District Court
              for the Eastern District of Pennsylvania
                       (D.C. No. 02-cv-08841)
          District Judge: Honorable Ronald L. Buckwalter



                      Argued March 2, 2006

          Before: SLOVITER, FUENTES, Circuit Judges,
                     and RESTANI,* Judge

                     (Filed: August 17, 2006)




      *
         Honorable Jane A. Restani, Chief Judge of the United
States Court of International Trade, sitting by designation.
Richard L. Berkman
Kristin M. Hynd
David N. Sontag (Argued)
Dechert LLP
Philadelphia, PA l9l03-2793

Robert S. Digges, Jr.
American Trucking Associations, Inc.
Alexandria, VA 22314

       Attorneys for Appellants

John F. Casey (Argued)
Wolff & Samson PC
West Orange, NJ 07052

James M. McMaster
Smith & McMaster, P.C.
Newtown, PA l8940

Francis G.X. Pileggi
Fox Rothschild LLP
Wilmington, DE 19801

       Attorneys for Appellee


                  OPINION OF THE COURT


SLOVITER, Circuit Judge.

        Commercial truckers who cross the many bridges that
connect New Jersey and Pennsylvania have turned to the federal
courts in this action to complain that the tolls being charged on
certain of those bridges are excessive. The truckers seek to
invoke federal jurisdiction under 33 U.S.C. § 508, a provision
that calls for bridge tolls to be “just and reasonable.” We must
decide at the threshold whether the truckers have a private right
of action under § 508 to maintain this suit. After reviewing the
language of § 508 as well as the factors in Cort v. Ash, 422 U.S.

                                  2
66 (1975), the District Court held that the truckers have neither
an express nor an implied right of action, and it dismissed the
suit for want of jurisdiction.

                                 I.

        Appellants (collectively, the “Truckers”) are a large-fleet
trucking company (Roadway Express) and three trade
associations (American Trucking Associations, Inc.; The
Pennsylvania Motor Truck Association; and The New Jersey
Motor Truck Association) that represent the interests of the
thousands of interstate truckers who regularly cross the toll
bridges at issue. Appellee is The Delaware River Joint Toll
Bridge Commission (the “Commission”), which currently
operates twenty bridges between New Jersey and Pennsylvania
over the Delaware River. Eighteen of those bridges
accommodate vehicular traffic, with seven of the eighteen being
toll bridges for which the Commission sets the rates for passage.1
The Commission was created through a bi-state compact
between New Jersey and Pennsylvania with the consent of the
United States Congress.2 Its decision making is governed by ten


       1
         The seven toll bridges are Trenton-Morrisville (US 1), New
Hope-Lambertville (US 202), Interstate 78, Easton-Phillipsburg
(US 22), Portland-Columbia (US 46), Delaware Water Gap (I-80),
and Milford-Montague (US 206). The Commission refers to its
eleven non-toll vehicular bridges as “toll supported.” Appellee’s
Br. at 5. It explains that those bridges are mostly older and cannot
be used by heavy trucking, and because toll revenue provides the
sole means of support for all bridges under the Commission’s
jurisdiction, its non-toll bridges are supported by revenue collected
on its toll bridges.
       2
          Article I, § 10, Clause 3 of the United States Constitution
provides in part: “No State shall, without the Consent of Congress,
. . . enter into any Agreement or Compact with another State[.]” In
1935, Congress gave its consent to the original compact between
New Jersey and Pennsylvania that created the Commission. See
Act of Aug. 30, 1935, Pub. L. No. 74-411, § 9, 49 Stat. 1051, 1058
(1935).

                                 3
Commissioners, five of whom are appointed by the Pennsylvania
Governor and five by the New Jersey Governor with the consent
of the New Jersey State Senate. The New Jersey Commissioners
serve a three-year term while the Pennsylvania Commissioners
serve at their Governor’s pleasure. All Commissioners serve
without compensation. No action of the Commission is binding
unless a majority of the Pennsylvania Commissioners and a
majority of the New Jersey Commissioners vote in favor of it.

       In December 2002, the Truckers filed this action seeking
a declaration that the Commission’s newly adopted toll rates –
which took effect in November 2002 and were increased further
in January 2004 – are not “just and reasonable.” The Truckers
premised their claim upon § 508, which provides:

       Tolls for passage or transit over any bridge constructed
       under the authority of the Act of March 23, 1906 (34 Stat.
       84; 33 U.S.C. 491-498), commonly known as the "Bridge
       Act of 1906", the General Bridge Act of 1946, and the
       International Bridge Act of 1972 shall be just and
       reasonable.

33 U.S.C. § 508.3

        The facts concerning the Commission’s toll increases are
largely undisputed. In December 2001, after three public
hearings and a public meeting, the Commission adopted a new
toll structure to fund its operations. Among other things, the
Commission planned to use increased toll revenue to fund a ten-
year, $526.5 million capital-improvement program, with an
allocation of the funds to bridge protection, preservation,
management, and enhancement. The new toll rates were also
adopted in response to the terrorist attacks of September 11,
2001. The Commission was advised by its insurers post-9/11
that it could no longer obtain coverage for losses caused by acts
of terrorism. The Commission thus planned to use a portion of
the revenue from its new toll structure to create a $280 to $300


       3
        The Commission does not dispute that its toll bridges fall
within the purview of § 508.

                                4
million self-insurance fund to cover losses from acts of
terrorism.

        The first phase of the new toll structure took effect on
November 30, 2002, when the Commission increased its truck
rate from an average rate of 75¢ per axle to $2.25 per axle. As a
result, “tolls for a five-axle truck, the most common commercial
vehicle, went from an average of about $3.75 to $11.25.” App.
at 71. In the second phase of the increase, truck tolls were to rise
to $3.25 per axle effective January 1, 2004.

        Just prior to the second-phase increase, the
Commonwealth of Pennsylvania and the State of New Jersey
pledged to provide the Commission with financial assistance in
the event of a terrorist attack. This pledge prompted the
Commission to eliminate its planned terrorism-self-insurance
fund and to adopt, in September 2003, a new toll structure as
part of a revised ten-year financial plan. Under the new plan,
truck tolls were increased in January 2004 to $2.75 per axle for
trucks with more than two axles, which marked a reduction from
the planned increase to $3.25 per axle. The $2.75-per-axle toll
remains in place at present.4

       The Truckers contend that given the elimination of the
need for the terrorism-self-insurance fund, the Commission did
not reduce truck tolls or its revenue commensurately, and thus
the $2.75 per axle toll is not “just and reasonable” within the
meaning of § 508. In particular, the Truckers cite two new
expenditures that were added as part of the revised September
2003 financial plan. First, the Commission added $40 million
for potential capital outlays, which the Truckers describe as a


       4
          The Truckers do not challenge the toll charged for smaller,
two-axle trucks, which is presently $5.00; their challenge is solely
to the rate of $2.75 per axle for trucks with more than two axles.
We note that the Commission charged truckers at a slightly reduced
rate if they paid the toll electronically through the E-ZPass system.
Because the Truckers do not discuss the E-ZPass rates in their
pleadings, we do not consider those rates here. The Commission’s
rate for automobile traffic likewise need not be discussed.

                                 5
mere subset of various non-bridge projects originally contained
in a plan that the Commission earlier failed to adopt for
economic and community development initiatives. Second, the
Commission’s September 2003 financial plan established a
minimum targeted cash reserve that was to be the greater of $80
million or 15% of its then-current outstanding principal
indebtedness. A 1992 bond indenture requires the Commission
to maintain a minimum cash reserve equal to 20% of its annual
operating budget, whereas the $80 million cash reserve sought
by the Commission would be slightly over 200% of its 2004
operating budget, and slightly over 50% of its outstanding bonds
in 2004. According to the parties, the Commission’s minimum
targeted cash balance at the end of 2003 was approximately $83
million, and was projected to be about $118 million in 2004, in
addition to an approximately $12.3 million debt-service reserve.

       The Commission contends that maintaining the $80
million minimum cash reserve is necessary to preserve the credit
rating of its bonds and as a precaution should a catastrophic
event render any of its bridges inoperable. The thrust of the
Truckers’ argument is that the increased tolls are not just and
reasonable because they are designed mainly to build an
unnecessarily large cash reserve.

         After the parties conducted discovery, the Commission
moved for summary judgment on the merits. The District Court
denied the motion, finding that genuine issues of material fact
existed as to whether the toll rate is just and reasonable within
the meaning of § 508. Just prior to trial, the Commission filed
what it called a “Motion in Limine,” arguing for the first time
that the Truckers have no private right of action under § 508.
The District Court deferred a ruling on the issue, and the matter
proceeded to a bench trial on the merits. The District Court
conducted a post-trial oral argument at which the parties were
afforded an opportunity to address whether the Truckers have a
private right of action. The District Court suggested at that time
that if it were to find a right of action, it would be inclined to
conclude that the toll increases were not just and reasonable in
view of the large cash reserve that the Commission sought to
establish.


                                6
        Thereafter, the District Court issued an Order dismissing
the Truckers’ complaint for want of jurisdiction. The District
Court declined to reach the merits because it found that neither
the language of § 508 nor its legislative history revealed
evidence of a congressional desire to afford the Truckers a right
to file suit in federal court to challenge the toll rates adopted by
local officials. The Truckers timely filed this appeal. We have
appellate jurisdiction under 28 U.S.C. § 1291. Whether a statute
creates a private right of action is a question of law subject to
plenary review. In re Corestates Trust Fee Litig., 39 F.3d 61, 63
(3d Cir. 1994).

                                II.

(a)    Mootness

        The Commission first raises a mootness argument. It
contends that the Truckers’ expert witness conceded before the
District Court that the proper per axle truck toll should be
approximately $2.75 in 2006. Because the 2006 toll is $2.75, the
Commission argues that the Truckers’ challenge to the toll is
now moot. The Truckers respond that their “position has always
been and continues to be that the current toll rate of $2.75 per
axle is not ‘just and reasonable’ as long as the Commission has
an unrestricted cash reserve that is not ‘just and reasonable.’”
Reply Br. at 6. The Truckers explain that they seek to have the
toll rate revert to $2.25 per axle until the allegedly unreasonable
cash reserve ($118 million at the time of trial) is spent down to a
“reasonable” level. Id. at 6-7. Although they acknowledge that
their expert conceded it might be necessary to charge $2.75 per
axle in 2006, the Truckers explain that this concession was
plainly contingent upon the Commission adopting a proposed
capital improvement plan that called for an acceleration in its
spending.

        “If developments occur during the course of adjudication
that eliminate a plaintiff’s personal stake in the outcome of a suit
or prevent a court from being able to grant the requested relief,
the case must be dismissed as moot.” Blanciak v. Allegheny
Ludlum Corp., 77 F.3d 690, 698–99 (3d Cir. 1996) (citations
omitted). Here, there is no evidence that the Commission has

                                 7
spent down its cash reserve to any degree, much less to a degree
that the Truckers concede is reasonable. In addition, it is clear
that the Truckers have never conceded that a $2.75 toll is
reasonable absent a corresponding diminution in the
Commission’s cash reserve. At the post-trial oral argument, the
Truckers’ counsel fully expressed their position with regard to
the remedy sought:

       [A]ll we’re asking is that [the District Court] reinstate the
       $2.25 toll [and] tell the Commission that before it can
       raise tolls in the future it needs to spend down the
       reserves to a reasonable level. Once it’s done that, it
       would be free to do whatever it needs, I mean it would be
       free to do a reasonable toll based on its needs at the time.
       And again, I think if we don’t like it at that point, it’s
       incumbent upon us to file another lawsuit.

SA at 20.

        The Commission seeks support for its mootness argument
in County of Morris v. Nationalist Movement, 273 F.3d 527 (3d
Cir. 2001). In Morris, a declaratory judgment action was
instituted to resolve constitutional questions regarding an
imminent July 4 parade. Id. at 534. The district court held an
expedited hearing and issued a decision “to guide the parties’
conduct during that event.” Id. This court dismissed the appeal
as moot given that the parade was over and any dispute that
might arise in connection with future July 4 activities could be
resolved through a new lawsuit and the development of a new
record based on the changed circumstances. Id. Here, in
contrast, the toll rates and cash reserve have not changed in such
a way as to prevent a court from affording the Truckers the relief
they seek, which, as we understand it, is either a reversion to the
$2.25 per axle toll, or a $2.75 toll accompanied by a sufficient
reduction in the cash reserve. On this record, the appeal is not
moot.

(b)    Do the Truckers have a private right of action under §
       508?

       The first step in a private right of action inquiry is to look

                                  8
at the text of the statute itself to determine whether Congress has
explicitly provided a right to file suit. See Three Rivers Ctr. for
Indep. Living v. Housing Auth. of Pittsburgh, 382 F.3d 412, 420
(3d Cir. 2004) (“A court must look to the text of the statute to
see if it states, by its terms, that a private party may bring suit to
enforce it.”). Here, the Truckers concede, as they must, that §
508 is devoid of explicit right-conferring language. Indeed, §
508 is notable mainly for its brevity, and it contains no language
that might suggest a congressional desire to allow a private suit
to enforce the “just and reasonable” provision. See Molinari v.
N.Y. Triborough Bridge & Tunnel Auth., 838 F. Supp 718, 724
(E.D.N.Y. 1993) (observing that § 508 does not explicitly create
private right of action). Section 508's silence is perhaps
unsurprising, as “[m]any statutes . . . do not contain provisions
addressing . . . whether private parties may maintain a right of
action[.]” Three Rivers Ctr., 382 F.3d at 421.

       In the absence of an explicit congressional mandate, a
court must next look to Congress’s intent in enacting a statute to
determine whether it would be appropriate to infer a right of
action for the party seeking to enforce it. See id. To this end,
the Supreme Court has set forth four criteria to guide a court in
assessing whether a private right of action can be inferred:

       First, is the plaintiff “one of the class for whose especial
       benefit the statute was enacted,”–that is, does the statute
       create a federal right in favor of the plaintiff? Second, is
       there any indication of legislative intent, explicit or
       implicit, either to create such a remedy or to deny one?
       Third, is it consistent with the underlying purposes of the
       legislative scheme to imply such a remedy for the
       plaintiff? [Fourth,] is the cause of action one traditionally
       relegated to state law, in an area basically the concern of
       the States, so that it would be inappropriate to infer a
       cause of action based solely on federal law?

Cort, 422 U.S. at 78 (citations omitted).

       “Congress’s intent in enacting a statute is always the
‘focal point’ in determining whether courts should infer a private
right of action from the statute.” Three Rivers Ctr., 382 F.3d at

                                  9
421 (quoting Thompson v. Thompson, 484 U.S. 174, 179
(1988)). The Cort v. Ash test serves to “guide a court’s review
in discerning that intent.” Three Rivers Ctr., 382 F.3d at 421
(citations omitted). Significantly, we have held that the first two
factors of the test are “critical,” and “[i]f they do not point
toward a private right, the remaining two [factors] ‘cannot by
themselves be a basis for implying a right of action.’” Am. Tel.
& Tel. Co. v. M/V Cape Fear, 967 F.2d 864, 866 (3d Cir. 1992)
(quoting Touche Ross & Co. v. Redington, 442 U.S. 560, 580
(1979) (Brennan, J., concurring)). “This emphasis on the first
two factors has severely weakened the once-prevailing view that
a cause of action will be implied if existing statutory remedies
are inadequate to fulfill the purpose of the statute.” Id. at 867.

       1. Are the Truckers “one of the class for whose especial
          benefit [§ 508] was enacted”?

       The District Court determined that the Truckers “[a]t first
blush” seem to satisfy the first Cort v. Ash factor with respect to
the benefit conferred by § 508. App. at 10. The Court
concluded, however, that § 508 is “simply [] of a general
proscriptive character without a clear and unmistakable focus on
the benefitted class.” App. at 12. The Truckers argue that the
District Court erred in its analysis because § 508 was enacted to
benefit anyone who uses the toll bridges subject to § 508’s
terms. The Commission responds that commercial truckers and
the organizations representing their interests are neither
expressly nor even impliedly the subject of an especial benefit
under § 508.

        In considering whether § 508 creates a federal right in
favor of the Truckers, we must follow the instructions of the
Supreme Court that we “look[] to the language of the statute
itself.” Cannon v. Univ. of Chicago, 441 U.S. 677, 689 (1979).
“The question is not simply who would benefit from the Act, but
whether Congress intended to confer federal rights upon those
beneficiaries.” California v. Sierra Club, 451 U.S. 287, 294
(1981). In other words, the statutory text “must be ‘phrased in
terms of the persons benefitted.’” Gonzaga Univ. v. Doe, 536
U.S. 273, 284 (2002) (quoting Cannon, 441 U.S. at 692 n.13).


                                10
       As we stated above, the language of § 508 gives no
express indication of a desire to create a right of action to
enforce the “just and reasonable” standard, nor is there any
mention of a remedy for non-compliance. Moreover, there is no
suggestion in the language as to whom Congress intended to
benefit by enacting the statute, much less any indication that
Congress wished to confer federal rights upon any beneficiary in
particular. The statute simply directs that toll authorities charge
“just and reasonable” rates.

        There can be little doubt that the public at large benefits
from a requirement that interstate bridge tolls remain just and
reasonable, and that benefit certainly extends to truckers who
haul goods in interstate commerce. The Supreme Court,
however, “has been especially reluctant to imply causes of
action[ ] under statutes that create duties on the part of persons
for the benefit of the public at large.” Cannon, 441 U.S. at 692
n.13; see also M/V Cape Fear, 967 F.2d at 867 (explaining that
“when a statute imposes a duty without an ‘unmistakable focus’
on the benefitted class, the courts are reluctant to infer a
remedy”). The duty that § 508 places upon toll officials has no
focus “on any particular class of beneficiaries whose welfare
Congress intended to further.” Sierra Club, 451 U.S. at 294.
We thus agree with the District Court that the first Cort v. Ash
factor weighs against the finding of a private right of action
under § 508.

       2. Is there any indication of legislative intent, explicit or
          implicit, either to create such a remedy or to deny
          one?

                      A. Legislative History

        Our consideration of the second Cort v. Ash factor leads
us to § 508's legislative history, which we will review in some
detail before returning to the Truckers’ arguments on appeal.5


       5
         We recognize that Justice Scalia has expressed
disapproval of judicial inquiry into legislative history. See, e.g.,
Blanchard v. Bergeron, 489 U.S. 87, 98-99 (1989) (Scalia, J.,

                                 11
        Many, if not all, of the Commission’s toll bridges were
apparently constructed in accordance with the Bridge Act of
1906. See Act of March 23, 1906, Pub. L. No. 59-65, Chap.
1130, 34 Stat. 84 (1906) (codified as amended at 33 U.S.C. §§
491-98). Under that Act, Congress granted the Secretary of War
and the Chief of Engineers authority to regulate the construction
of bridges over the navigable waters of the United States. Id.
Section 4 of the Bridge Act of 1906 further provided that “[i]f
tolls shall be charged for the transit over any bridge constructed
under the provisions of this Act . . . such tolls shall be reasonable
and just[.]” Id. § 4. In addition, § 4 provided the Secretary of
War with authority “at any time, and from time to time, [to]
prescribe the reasonable rates of toll for such transit over such
bridge, and the rates so prescribed shall be the legal rates and
shall be the rates demanded and received for such transit.” Id.
Consequently, tolls for bridges governed by the Bridge Act of
1906 were originally set at the federal level, not by local
authorities such as the Commission.

        In 1935, Congress passed additional legislation providing
that tolls over any bridge crossing the navigable waters of the
United States shall be “just and reasonable,” although this new
legislation was not applicable to, inter alia, bridges subject to the
provisions of the Bridge Act of 1906, which, as noted, provided
for tolls to be set at the federal level. See Act of Aug. 21, 1935,
Pub. L. No. 74-296, § 1, 49 Stat. 670, 670 (1935), repealed by
Surface Transportation and Uniform Relocation Assistance Act
of 1987, Pub. L. No. 100-17, § 135(d), 101 Stat. 132, 174 (1987)
(the “1935 Act”). The 1935 Act authorized the Secretary of
War, “either upon complaint or upon his own initiative,” to
conduct an inquiry into whether any toll charged by local
authorities violated the “just and reasonable” provision of the
1935 Act. Id. § 2. If a toll violated the Act, the Secretary could


concurring) (opining that “it is [not] compatible with our judicial
responsibility . . . to give legislative force to each snippet of
analysis, and even every case citation, in committee reports that are
increasingly unreliable evidence of what the voting Members of
Congress actually had in mind”). The history we discuss here is
compelled by the second Cort v. Ash factor.

                                 12
prescribe the reasonable toll to be charged. Id. The 1935 Act
further provided for judicial review of any order of the Secretary
by the filing of a petition for review in either the District of
Columbia Court of Appeals or the Court of Appeals for the
Circuit in which the bridge in question was wholly or partly
located. Id. § 3.

        Congress thereafter passed the General Bridge Act of
1946, which granted Congressional consent for the construction
of bridges over navigable waters upon approval of the
construction by local and federal authorities. See Legislative
Reorganization Act of 1946, Pub. L. No. 79-601, tit. V, 60 Stat.
812, 847 (1946) (codified as amended at 33 U.S.C. §§ 525-34).
Like the Bridge Act of 1906, § 503 of the General Bridge Act of
1946 provided that tolls over such bridges “shall be reasonable
and just,” and that the Secretary of War may “prescribe the
reasonable rates of toll for such transit over such bridge, and the
rates so prescribed shall be the legal rates and shall be the rates
demanded and received for such transit.” Id. § 503, repealed by
§ 135(e), 101 Stat. at 174.

        In 1966, Congress transferred the federal power over tolls
from the Secretary of the Army (as successor to the Secretary of
War) to the Secretary of Transportation. Department of
Transportation Act, Pub. L. No. 89-670, § 6(g)(4), 80 Stat. 931,
941 (1966), repealed by § 135(h), 101 Stat. at 174. In 1973,
Congress directed the Secretary of Transportation to prepare a
“full and complete investigation . . . for the purpose of
determining what action can and should be taken to assure just
and reasonable tolls nationwide.” Federal-Aid Highway Act of
1973, Pub. L. No. 93-87, § 133(a), 87 Stat. 250, 267 (1973).
Congress also directed the Secretary to “promulgate regulations
establishing guidelines governing any increase in tolls for use of
any bridge constructed pursuant to either the General Bridge Act
of 1906 or the General Bridge Act of 1946.” Id. § 133(b).

       The Secretary of Transportation thereafter delegated to
the Federal Highway Administrator the authority “to determine
whether [] tolls are reasonable and just and to prescribe the
reasonable rates of toll to be charged.” 49 C.F.R. § 310.1
(1986). Federal regulations were adopted setting forth a process

                                13
for the filing of an administrative complaint to challenge the
reasonableness of tolls. See 49 C.F.R. §§ 310.1-16 (1986).
Under the regulations, the Federal Highway Administrator, or a
designated Administrative Law Judge, was authorized to
consider a complaint from “any person” aggrieved by a toll
increase on an interstate bridge. 49 C.F.R. § 310.3(a) (1986);
see also Molinari, 838 F. Supp. at 722. The Federal Highway
Administrator could conduct an investigation and, if appropriate,
hold a formal hearing. 49 C.F.R. § 310.4 (1986). After issuance
of a final administrative decision, the complaining party could
challenge the agency determination either in federal district court
pursuant to the Administrative Procedures Act or in the United
States Court of Appeals for the Circuit in which any portion of
the bridge was located. See Molinari, 838 F. Supp. at 722.

       At the beginning of the 100th Congress, two original bills
proposing to deregulate tolls on interstate bridges were
introduced. The first of these bills, introduced on January 6,
1987, included a “just and reasonable” provision. See The
Federal-Aid Highway Act of 1987, S. 185, 100th Cong., 133
Cong. Rec. 623, 630 (1987) (“S. 185”). The second bill,
introduced on January 14, 1987, proposed eliminating federal
oversight through the deletion of, inter alia, that portion of § 4 of
the Bridge Act of 1906 that allowed the Secretary of
Transportation to review whether tolls were “just and
reasonable.” See Essential Highway Reauthorization
Amendments of 1987, S. 312, 100th Cong., 133 Cong. Rec.
1308 (1987) (“S. 312”). Although S. 312 did not include a “just
and reasonable” provision, its legislative history helps to clarify
the purpose behind the deregulation of tolls. Specifically, the
section-by-section analysis accompanying S. 312 provided:

           This section amends various Federal statutes to
       eliminate the authority of the Federal Highway
       Administrator to regulate the rate of tolls on bridges by
       determining the reasonableness of those tolls. States and
       toll authorities would be given greater flexibility in
       operating toll facilities. Federal oversight of the
       reasonableness of tolls has proven to be administratively
       burdensome, legally unproductive, and has interjected the
       Federal Government in the role of a mediator in disputes

                                 14
       which could more appropriately be settled at the State and
       local level.

133 Cong. Rec. 1308, 1321 (emphasis added).

        Additional legislative history reveals that Senator Symms
sponsored the Federal-Aid Highway Act of 1986, S. 2405, 99th
Cong., 132 Cong. Rec. 9573 (1986) (“S. 2405”), which passed
the Senate by a vote of 99 to 0 but did not become law due to a
failure of the House and Senate to reach agreement before
Congress adjourned. 132 Cong. Rec. 9571 (1986); see 133
Cong. Rec. 2417 (1987) (statement of Sen. Burdick). Section
128 of S. 2405 contained language deregulating tolls in nearly
identical terms to those previously proposed in the Interstate
Highway Funding Act of 1985, S. 391, 99th Cong., 131 Cong.
Rec. 3322 (1985) (“S. 391”). However, the section-by-section
analysis for § 128 in S. 2405 merely states: “This section
removes Federal regulation and review of toll increases on
certain toll bridges. Toll increases on these deregulated facilities
must be just and reasonable.” 132 Cong. Rec. 9573, 9584
(1986).

        S. 2405 did not become law in the 99th Congress, but an
identical provision was introduced in the 100th Congress. See
Federal-Aid Highway Act of 1987, S. 387, 100th Cong., § 126
(1987) (“S. 387”). The section-by-section analysis for § 126 in
S. 387 again focuses on the removal of federal oversight without
discussion of a right to sue in federal court: “This section
removes Federal regulation and review of toll increases on
certain toll bridges. Toll increases on these deregulated facilities
must be just and reasonable but will not be subject to review by
DOT.” 133 Cong. Rec. 2421, 2424 (1987). The Senate inserted
the toll deregulation provision from S. 387 into its amended
version of H.R. 2, see Joint Explanatory Statement of the
Committee of Conference, H.R. Rep. No. 100-27, at 175 (1987)
(Conf. Rep.), as reprinted in 1987 U.S.C.C.A.N. 121, 159
(“[a]dopt[ing] the Senate amendment provision”), which finally
became law on April 2, 1987. Surface Transportation and
Uniform Relocation Assistance Act of 1987, Pub. L. No. 100-17,



                                15
§ 135, 101 Stat. 132, 174 (1987) (the “1987 Act”).6

       Upon return of the legislation to the House,
Representative Molinari of New York asked Representative
Hammerschmidt of Arkansas and Representative Howard of
New Jersey to address the meaning of the “just and reasonable”
provision.7 Representative Molinari stated:

       Subsequent to the House passing the conference report on
       H.R. 2, a number of questions have been raised as to
       whether section 135, or the statement of managers
       accompanying section 135, changes in any way the “just
       and reasonable” standard as it has been applied under
       existing laws and existing authorities.

Representative Howard replied that

       neither section 135 nor the statement of managers
       changes the standard to be applied in determining whether
       a toll increase is just and reasonable. The only thing that
       we have changed is the forum for making the
       determination. Toll increases will no longer be subject to
       review by the Department of Transportation; instead the
       decision will be left to the courts in the event of a
       challenge.

133 Cong. Rec. 7348 (1987). Representative Hammerschmidt
concurred, stating that “[w]e have not changed the just and
reasonable standard in any way.” Id.

        As noted above, the 1987 Act was not Congress’s first
effort to enact legislation to eliminate the federal oversight of
bridge tolls. Senator Symms of Idaho had proposed earlier


       6
        Congress passed H.R. 2 in an override of President
Reagan’s veto.
       7
      Representative Howard was Chair of the House Committee
on Public Works and Transportation, and Representative
Hammerschmidt was the ranking minority member.

                                 16
legislation in 1984 and 1985. See S. 391; Federal-Aid Highway
Act of 1984, S. 2527, 98th Cong., S. Rep. No. 98-524 (1984)
(“S. 2527”). The language proposed in S. 391 was essentially
the same as the language that Congress ultimately enacted in
1987 as 33 U.S.C. § 508: “Tolls for passage or transit over any
bridge constructed under the authority of the Bridge Act of 1906,
as amended, the General Bridge Act of 1946, as amended, and
the International Bridge Act of 1972, shall be just and
reasonable.” S. 391 § 114(i); see also S. 2527 § 503 (stating in
similar terms: “Tolls for passage or transit over any bridge over
any of the navigable waters of the United States, if such bridge is
used for purposes of travel or transportation in interstate or
foreign commerce, shall be just and reasonable. . .”). The Report
of the Committee on Environment and Public Works which
accompanied S. 391 explained the purpose of including the “just
and reasonable” provision:

           The language adopted by the Committee requires that
       tolls be just and reasonable, both in total and with respect
       to various vehicle classifications. By placing this
       requirement in the statute, the Committee has created a
       basis for which a user may commence suit in Federal
       court upon belief that actions of a toll authority are not
       just and reasonable.

S. Rep. No. 99-2, at 9 (1985). The Committee Report on S.
2527 used similar language:

           The language adopted by the Committee requires that
       tolls be just and reasonable, both in total and with respect
       to various vehicle classifications. By placing this
       requirement in the statute, the Committee has created a
       basis for which a user may commence suit in Federal
       court if he or she believes actions of a toll authority are
       not just and reasonable.

S. Rep. No. 98-524, at 7 (1984). Although S. 391 passed the
Senate by a vote of 94-0, neither it nor S. 2527 became law.

       The extant regulatory system remained in place until
1987, at which time Congress enacted 33 U.S.C. § 508 and

                                17
eliminated federal oversight of toll rates with its passage of the
Federal-Aid Highway Act of 1987. See 1987 Act. The 1987
Act repealed, inter alia, the portion of § 4 of the Bridge Act of
1906 that allowed the Secretary of Transportation to review
whether tolls were “just and reasonable,” as well as similar
provisions for review in the 1935 Act and in the General Bridge
Act of 1946. Id. §§ 135(a), (d), (e). In place of those provisions
Congress enacted § 508 with its mandate that tolls be “just and
reasonable.” Id. § 135(i).

  B. The Truckers’ arguments based on the legislative history

        The Truckers acknowledge that Congress eliminated the
ability of toll payers to seek judicial review insofar as it removed
the Federal Highway Administrator’s authority to review the
reasonableness of tolls. The Truckers contend, however, that by
retaining the “just and reasonable” standard in § 508 despite
repeal of the prior toll-oversight provisions, Congress “impliedly
approved the previous challenging system minus the
Administrator.” Appellant’s Br. at 18-19. According to the
Truckers, Congress intended that a party seeking to challenge a
toll rate be able to do so by filing suit directly in federal court
without first going through the burdensome process of review by
the Federal Highway Administration.

        The legislative history reflects a clear congressional
desire to remove the executive branch from toll oversight and the
resolution of toll disputes. The Truckers argue that
Representative Howard’s statement that the “decision will be left
to the courts in the event of a challenge” is an indication of
Congress’s intent that the federal courts will review the toll
rates. It is questionable whether the statement of one legislator,
even if one in a strategic position vis-a-vis the legislation, can be
used to reflect congressional intent. At most it indicates that
certain members of the House Committee on Public Works
believed that judicial review was to be retained with the
enactment of § 508.

      Other indications in the legislative history cut against the
Truckers’ claim to a private right of action. As noted, the
language of § 508 contains no right-conferring language and

                                 18
makes no mention of judicial review whatsoever. In contrast,
such language existed in the statutory provisions repealed when
Congress enacted § 508. The Truckers suggest that § 508’s
silence with respect to judicial review is evidence of a
congressional intent to retain it. That argument, however, rests
on the shaky inference that Congress meant to create a right of
action through the act of repealing provisions that had afforded
just such a right. The Truckers have directed us to no other
example in which a court has recognized congressional intent to
create a private right of action through such legislative wizardry.
We would be hard-pressed to rely on that argument here.

        The legislative history also contains evidence that weighs
against the statement offered by Representative Howard. The
section-by-section analysis in the Conference Report on H.R. 2
offers no mention of a toll payer right to sue, and instead focuses
solely on the Congressional desire to remove Department of
Transportation oversight. Although the Committee Reports on
earlier Senate bills, S. 391 and S. 2527, indicate a desire to retain
a right of action in federal court, those Reports accompanied
bills that did not become law, and the statements they contain
provide little confidence that they are an accurate reflection of
Congress’s intent when it enacted the Federal-Aid Highway Act
of 1987. Moreover, Senator Symms, who had sponsored S. 391
and S. 2527, also later sponsored S. 2405, the section-by-section
analysis of which makes no reference to a right of action. All of
this evidence counsels against placing too great an emphasis on
the statements of Representatives Howard and Hammerschmidt.


        We have carefully weighed the import of § 508's
legislative history in its entirety. Given the nature of
Congressional deliberation, it is unsurprising to find that § 508
has a history that offers mixed signals as to whether Congress
intended to grant or deny a private right of action. See Exxon
Mobil Corp. v. Allapattah Services, Inc., 125 S. Ct. 2611, 2626
(2005) (recognizing that “legislative history is itself often
murky, ambiguous, and contradictory”). In the final analysis, we
must be mindful that “[w]here a statute does not explicitly create
a right of action for a particular party, a court may find such a
right implied only where it can confidently conclude Congress

                                 19
so intended.” State of N.J., Dep’t of Envtl. Protection & Energy
v. Long Island Power Auth., 30 F.3d 403, 421 (3d Cir. 1994)
(emphasis added). Where, as here, a statute is devoid of any
right-creating language, there need be a more compelling
indication in the legislative history before this court can
recognize a right of action. It is not the province of a federal
court to confer rights where statutory language is silent, or to
“engraft a remedy on a statute, no matter how salutary, that
Congress did not intend to provide.” Sierra Club, 451 U.S. at
297. On this basis, the indicia of a right of action under § 508
are simply not strong enough to support a conclusion that such a
right can be inferred.

        Notably, § 508's legislative history is clear on one point:
Congress intended to remove the federal government from toll
oversight because it viewed the regulation of tolls as a matter
better left to local officials. Given this legislative desire, it does
not readily follow that Congress would have intended to subject
local toll authorities to suit in federal court as a means of
enforcing § 508. Thus, even if we were to reach the third Cort v.
Ash factor, which asks whether it is consistent with the
underlying purposes of the legislative scheme to imply a remedy,
we cannot be sure that it is. A federal cause of action would
interject judicial oversight into toll regulation, thereby putting a
branch of the federal government back into the process.

        Moreover, while § 508 is a federal directive that local
officials set “just and reasonable” rates, the state political
process could be the venue that Congress had in mind for the
airing of toll grievances. Here, the Commissioners are political
appointees who, at the very least, must remain receptive to the
concerns of the politicians whose constituents are affected by
their decisions.8 Moreover, the state Governors retain a de facto


       8
        For example, after recent torrential rains and flooding in
much of Southeastern Pennsylvania, the Commission issued the
following press release:

       The Delaware River Joint Toll Bridge Commission, in
       conjunction with Pennsylvania Governor Edward G.

                                 20
veto power over any course of action adopted by the
Commission insofar as they can replace Commissioners who
support policies that the Governors (or their constituents) dislike.

       The Truckers argue that finding an implied right of action
would be consistent with the “implicit” findings of such a right
made by the district courts in Auto. Club of N.Y., Inc. v. Port
Auth. of N.Y. and N.J., 706 F. Supp. 264 (S.D.N.Y. 1989), aff’d,
887 F.2d 417 (2d Cir. 1989), and Molinari. Our review of the
case law has uncovered no decision in which a court squarely
has held that § 508 affords a private right of action.9



       Rendell and New Jersey Governor Jon Corzine, announced
       today that it will suspend tolls this afternoon and evening on
       the Interstate 78, Easton-Phillipsburg (Route 22), New
       Hope-Lambertville (Route 202), and Trenton-Morrisville
       (Route 1) Toll Bridges. Drivers will not have to pay tolls
       from 2:00 pm to 7:00 pm today as part of the Commission's
       effort to alleviate congestion caused by the closure of major
       roads and flooding conditions in Delaware River
       communities.

See Delaware River Joint Toll Bridge Commission, Commission
Suspends Friday Afternoon and Evening Rush Hour Tolls on
Four Delaware River Bridges, June 30, 2006,
http://www.drjtbc.org/default.aspx?pageid=394. (emphasis added).
       9
         This court addressed a constitutional challenge to a toll
increase in Wallach v. Brezenoff, 930 F.2d 1070 (3d Cir. 1991).
There, New Jersey citizens filed suit against the Port Authority of
New York and New Jersey to challenge toll increases under both
§ 508 and the federal Commerce Clause. The plaintiffs in Wallach
relied upon the facts established at trial in Automobile Club, where
the district court rejected a challenge to the same toll increase.
Wallach, 930 F.2d at 1070-71. In Wallach, the district court
granted the Port Authority’s motion for summary judgment, and the
plaintiffs appealed solely on the constitutional issues. Id. We
affirmed the denial of the constitutional challenge, and, because the
plaintiffs did not pursue their § 508 challenge, we did not have
occasion to address whether § 508 afforded them a private right of

                                 21
        In Auto. Club, the district court entertained a toll-payer
suit under § 508 on the merits without addressing whether the
plaintiffs had a right of action; it appears that the issue of
whether the suit was proper under § 508 was never raised.
Because the issue was not addressed, we cannot infer that the
Auto. Club court “implicitly” considered and adopted the view
that a private right of action exists. In Molinari, the district court
expressed the view that § 508 likely did not create a private right
of action, but the court declined to reach that issue because the
toll-payer plaintiffs there failed to create a triable issue on
whether the challenged toll increases were just and reasonable.
838 F. Supp. at 724. The Molinari court correctly observed,
however, that the Supreme Court long ago refused to find a
private right of action in statutory language indistinguishable
from that used in § 508. See id. (citing T.I. M. E., Inc. v. United
States, 359 U.S. 464, 469 (1959) (statute providing a duty of
common carriers “to establish . . . just and reasonable rates”) and
Montana-Dakota Utilities Co. v. Nw. Pub. Serv. Co., 341 U.S.
246, 250 (1951) (similar duty for gas pipeline companies)).

       Finally, the Truckers argue that failing to imply a right of
action would effectively grant the Commission unbridled
discretion to impose exorbitant tolls, thereby working a violation
of the Truckers’ procedural and substantive due process rights.
This court is not at liberty to infer a private right of action
simply because the Truckers fear that the absence of a federal-
court remedy for private plaintiffs will lead the Commission to
abuse its authority. We note that the Truckers have not raised
any constitutional challenge in this proceeding. But cf. Wallach,
930 F.2d 1070.

        In sum, given the language of § 508 and the absence of
clear indications in the legislative history, we conclude that the
District Court did not err in holding that the Truckers lack a
private right of action. The Truckers’ efforts to realize such a
right would be best directed at Congress by pressing for an




action.

                                 22
amendment to § 508.10


       10
          The Truckers contend in the alternative that if there is no
private right of action under § 508, then there is “implicitly” a right
of action under the Administrative Procedures Act, 5 U.S.C. § 706
(“APA”), to enforce the just and reasonable standard. Reply Br. at
10. The Commission notes that the Truckers failed to raise the
issue of APA review before the District Court, and thus it argues
that the issue should not be addressed on appeal. This court
generally does not address issues raised for the first time on appeal.
United States v. $734,578.82 in U.S. Currency, 286 F.3d 641, 653
(3d Cir. 2002). The Truckers have offered no justification for their
failure to preserve the issue of APA review. Indeed, the Truckers
took a contrary position before the District Court in arguing that
the Commission is not a federal agency or quasi-federal agency for
purposes of allowing APA review. On this record, we hold the
issue of APA review is waived on appeal and do not address it.

        We note that the APA argument could not be resolved on
the present record in any event. The Truckers rely upon the
analysis set forth in Seal and Co., Inc. v. Washington Metro. Area
Transit Auth., 768 F. Supp. 1150 (E.D. Va. 1991), which held that
a transit authority created by a compact among Virginia, Maryland,
and the District of Columbia could be considered a “quasi-federal
agency.” The Seal court determined that at least three factors are
relevant to whether a compact authority warrants the quasi-federal
agency classification: (1) whether the originating compact is
governed, either explicitly or implicitly, by federal procurement
regulations; (2) whether a private right of action is available under
the compact; and (3) the level of federal participation, such as
whether Congress was a party to the original compact (rather than
simply approving it), and whether the compact replaces a federal
agency. See id. at 1156-57; see also Coal. for Safe Transit, Inc. v.
Bi-State Dev. Agency, 778 F. Supp. 464, 467 (E.D. Mo. 1991)
(holding that bi-state agency had quasi-federal agency status).
Assuming arguendo that this court would adopt the three-factor
Seal analysis, the factual record before us is not sufficiently
developed on the APA issue to permit a meaningful assessment.
Moreover, any analysis of the factors would be more appropriately
performed by a district court in the first instance.

                                  23
                               III.

       For the reasons stated, we will affirm the District Court’s
judgment holding that the Truckers lack a private right of action
under 33 U.S.C. § 508.
_________________




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