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.
The opinion of the court was delivered by: Sloviter, Circuit Judge.
Before: SLOVITER, FUENTES, Circuit Judges, and RESTANI,*fn1 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. 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.
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.*fn2
The Commission was created through a bi-state compact between New Jersey and Pennsylvania with the consent of the United States Congress.*fn3 Its decision making is governed by ten 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.
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 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 75ó 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.*fn5
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 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.
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).
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 ...