United States District Court, D. Columbia
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Detroit International Bridge Company, a Michigan corporation,
Canadian Transit Company, a Canadian special act corporation,
Plaintiffs: Amy Lynn Neuhardt, Hamish P.M. Hume, LEAD
ATTORNEYS, Heather M. King, Kathleen Simpson Kiernan, BOIES,
SCHILLER & FLEXNER, LLP, Washington, DC USA.
Government of Canada, Defendant: Douglas A. Dozeman, Eugene
E. Smary, Scott M. Watson, PRO HAC VICE, WARNER NORCROSS &
JUDD LLP, Grand Rapids, MI USA; Sarah Catherine Lindsey,
WARNER NORCROSS & JUDD LLP, Southfield, MI USA.
United States Federal Highway Administration, Victor Mendez,
in his official capacity as Administrator of the United
States, Federal Highway Administration, Ray Lahood, in his
official capacity as Secretary of Transportation, United
States Coast Guard, Janet A. Napolitano, in her official
capacity as Secretary of Homeland Security, United States of
America, Robert J. Papp, Jr., Adm., in his official capcity
as Commandant of the United States Coast Guard, Defendants:
Brian Matthew Collins, LEAD ATTORNEY, U.S. DEPARTMENT OF
JUSTICE, Enrd, Washington, DC USA; Peter Christopher
Whitfield, LEAD ATTORNEY, BAKER HOSTETLER, Washington, DC
United States Department of State, John Kerry, in his
official capacity as Secretary of State, Defendants: Brian
Matthew Collins, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE,
Enrd, Washington, DC USA.
Windsor-Detroit Bridge Authority, Defendant: Scott M. Watson,
PRO HAC VICE, WARNER NORCROSS & JUDD LLP, Grand Rapids, MI
Michigan Department of Transportation, Interested Party:
Michael James Dittenber, LEAD ATTORNEY, MICHIGAN ATTORNEY
GENERAL'S OFFICE, Lansing, MI USA.
M. COLLYER, United States District Judge.
Ambassador Bridge spans the Detroit River between Detroit,
Michigan and Windsor, Ontario and carries more than
one-quarter of the total commercial traffic between the
United States and Canada. The Bridge is privately owned by
the Detroit International Bridge Company (DIBC) and its
wholly-owned subsidiary, the Canadian Transit Company (CTC).
However, the Ambassador Bridge is more than eighty years old.
Its owners want to construct an adjacent twin spin (New Span)
to serve customers while major work is performed on the
Ambassador Bridge. To their dismay, however, a cross-border
partnership of government entities has proposed the
construction of a new publicly-owned bridge, the New
International Transit Crossing/Detroit River International
Crossing (NITC/DRIC), which would compete with the Ambassador
Bridge and destroy the financial basis for the New Span.
sue Federal Defendants for allegedly violating
Plaintiffs' exclusive franchise right to own and operate
a bridge between Detroit and Windsor and violating
Plaintiffs' franchise right to build the New Span by
promoting the publicly-owned NITC/DRIC and preventing
progress on the New Span for over a decade. The Court already
dismissed Count 4 of the Third Amended Complaint, which
alleged that the United States Coast Guard violated the
Administrative Procedure Act, 5 U.S.C. § § 701-06,
by intentionally delaying and failing to issue a navigational
permit for the New Span. Federal Defendants move to dismiss
the remaining eight counts. For the reasons below, the Court
will grant in part and deny in part Federal Defendants'
Motion to Dismiss.
The Ambassador Bridge
1909, the United States and the United Kingdom of Great
Britain and Ireland, which at that time was responsible for
Canada's foreign affairs, signed and ratified a treaty
addressing, among other things, the construction of bridges
and other impediments to navigation across the waters
separating the United States and Canada. See
Boundary Waters Treaty, U.S.-Gr. Brit. (for Can.), Jan. 11,
1909, 36 Stat. 2448 (Boundary Waters Treaty). The Boundary
Waters Treaty governs the construction of new bridges over
the boundary waters between the United States and Canada. 3rd
Am. Compl. [Dkt. 105] ¶ 56. The Treaty authorizes the
construction of new bridges pursuant to " special
agreements" and specifies that " concurrent or
reciprocal" legislation by the United States Congress
and the Canadian
Parliament would constitute such a " special
agreement." Id. (citing Boundary Waters Treaty
Art. XIII). Except when authorized by such a " special
agreement," any new uses, obstructions, or diversions of
boundary waters require approval by an International Joint
Commission. Id. (citing Boundary Waters Treaty Art.
American Transit Company (ATC), predecessor to DIBC, was
established in 1920 to build a suspension bridge between
Detroit and Ontario, Canada. 3rd Am. Compl. ¶ 23. For
clarity's sake (and because the difference is
irrelevant), this Opinion refers to ATC and DIBC as DIBC,
irrespective of time period. In 1921, the U.S. Congress and
the Canadian Parliament separately passed legislation
granting DIBC and CTC, respectively, rights to construct,
operate, and collect tolls on an international bridge between
Detroit and Windsor. Id. ¶ 57. The U.S. statute
was passed on March 4, 1921 and reads as follows:
CHAP. 167.--An Act [t]o authorize the construction and
maintenance of a bridge across Detroit River within or near
the city limits of Detroit, Michigan.
Be it enacted by the Senate and House of Representatives
of the United States of America in Congress assembled.
That the consent of Congress is hereby granted to American
Transit Company, its successors and assigns, 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, in accordance with the provisions of the
Act entitled " An Act to regulate the construction of
bridges over navigable waters," approved March 23, 1906:
Provided, That before the construction of the said
bridge shall be begun all proper and requisite authority
therefor shall be obtained from the Government of the
Dominion of Canada.
SEC. 2. That this Act shall be null and void if actual
construction of the bridge herein authorized be not commenced
within three years and completed within seven years from the
date of approval hereof.
SEC. 3. That the right to alter, amend, or repeal this Act is
hereby expressly reserved.
March 4, 1921, 66th Cong., ch. 167, § 1, 41 Stat. 1439
(1921) (DIBC Act). Soon thereafter, on May 3, 1921, the
Canadian Parliament enacted a similar statute, which provided
in relevant part that CTC could:
construct, maintain and operate a railway and general traffic
bridge across the Detroit river from some convenient point,
at or near Windsor in the province of Ontario, to the
opposite side of the river in the state of Michigan, and may
lay, maintain and use tracks on the said bridge for the
passage of steam, electric or other locomotive engines,
railway trains, and rolling stock, with all necessary
approaches, terminal facilities, machinery and appurtenances
required for the said bridge.
Act of May 3, 1921, 11-12 Geo. V ch. 57 (Can.) (CTC
Act). The " effectiveness of the [DIBC]
Act was expressly conditioned on the passage of reciprocal
legislation by Canada, and the effectiveness of the [CTC] Act
was expressly conditioned on the passage of reciprocal
legislation by the U.S. Congress." 3rd Am. Compl. ¶
1927, ATC transferred all of its rights and assets to DIBC,
which, in turn, merged into the present-day DIBC in 1979.
Id. ¶ 23. CTC is and has been a wholly-owned
subsidiary of DIBC since 1927. Id. ¶ 25. By
letter in 1927, the United States Department of State (USDS
or State) advised DIBC that because the DIBC Act and CTC Act
constituted a " special agreement" under the
Boundary Waters Treaty, the construction of the Ambassador
Bridge would not require the approval of the International
Joint Commission. Id. ¶ 60.
" raised money by selling bonds, acquired the necessary
land, and constructed the Ambassador Bridge and its
accompanying facilities." Id. ¶ 68. The
Bridge first opened for traffic on November 11, 1929.
Id. ¶ 71. Since then, DIBC has invested "
hundreds of millions of dollars into building, maintaining,
operating, and upgrading the Ambassador Bridge."
Id. ¶ 74. The principal value of
Plaintiffs' right to own and operate the Ambassador
Bridge stems from the right to collect tolls from vehicles.
Id. ¶ 75. The U.S. Congress designated the
Ambassador Bridge as part of the national highway system in
1995. Id. ¶ 132. Since 1998, Congress "
authorized and appropriated more than $230 million for the
U.S. part of the Ambassador Bridge Gateway Project, which was
a highway expansion to connect the Ambassador Bridge directly
to the Interstate Highway and State Highway Systems in
Michigan." Id. ¶ 132.
1972 International Bridge Act
and international bridge construction in this country has
been a direct concern of the U.S. Congress since the mid-19th
century. See Detroit Int'l Bridge Co. v.
Gov't of Canada, 53 F.Supp.3d 1, 6 (D.D.C. 2014)
judgment entered, 53 F.Supp.3d 28 (D.D.C. 2015).
Congress forewent its role in approving interstate bridges in
1946 but retained its right to approve international bridges
(between the United States and Canada or Mexico) until it
enacted the International Bridge Act of 1972, 33 U.S.C.
§ § 535-535i (IBA). Id. at 7. The IBA for
the first time granted congressional consent for the
construction, maintenance, and operation of international
bridges without specific congressional legislation. The IBA
requires that the foreign country consent, the proposed
bridge comply with the 1906 Bridge Act, Act of Mar. 23, 1906,
ch. 1130, 34 Stat. 84, and the proposed bridge obtain a set
of Executive Branch approvals. 33 U.S.C. § 535.
Specifically, the IBA allows:
a State . . . to enter into agreements (1) with the
Government of Canada, a Canadian Province, or a subdivision
or instrumentality of either, in the case of a bridge
connecting the United States and Canada . . . for the
construction, operation, and maintenance of such bridge in
accordance with the applicable provisions of this subchapter.
The effectiveness of such agreement shall be conditioned
on its approval by the Secretary of State.
33 U.S.C. § 535a. Notably, the IBA requires presidential
approval for an international bridge and provides that "
[i]n the course of determining whether to grant such
approval, the President shall secure the advice and
recommendation of . . . the heads of such departments and
agencies of the Federal Government as he deems appropriate to
determine the necessity of such bridge." Id.
§ 535b. The legislative history of the statute makes
clear that it is " not [to] be construed to adversely
affect the rights of those operating bridges previously
authorized by Congress to repair, replace or enlarge existing
bridges." 3rd Am. Compl. ¶ 142 (quoting H.R. Rep.
Plans to Build the New Span to the Ambassador Bridge
Ambassador Bridge is more than 80 years old and Plaintiffs
have determined the desirability of " building a second
span . . . directly alongside the original span to ensure the
continued operation of the bridge." 3rd Am. Compl.
¶ 137. Plaintiffs have spent more than a decade
attempting to obtain federal permits needed to build the New
Span, which would " upgrade the existing facility,
reduce costly and disruptive maintenance required for the
existing facility, and substantially improve the efficiency
with which traffic can be funneled into specialized lanes in
the customs plazas on either side of the border."
Id. ¶ 6. " Plaintiffs have spent over $500
million of their own funds to acquire the land for the New
Span and on other expenditures related to the New Span,"
such as additional road construction from the bridge to major
highways in the United States and Canada. Id. ¶
146. Most obstacles to construction have been removed and
Plaintiffs recently notified the parties and the Court that,
on July 28, 2015, the Detroit City Council approved
DIBC's acquisition of the real property and air rights
over a section of the undeveloped Riverside
Park. The lack of such rights had caused the
U.S. Coast Guard (USCG) previously to deny a navigation
permit to DIBC. See Detroit Int'l Bridge
Co., 53 F.Supp.3d at 11-12. The New Span will be
constructed entirely with private funds. 3rd Am. Compl.
Plans to Build the NITC/DRIC
2000, Transport Canada (part of the Canadian Ministry of
Transport, Infrastructure, and Communities), the provincial
Ontario Ministry of Transportation, the U.S. Federal Highway
Administration (FHWA), and the Michigan Department of
Transportation (MDOT) formed the Ontario-Michigan Border
Transportation Partnership, which later was renamed the
Detroit River International Crossing (DRIC) Partnership, to
study transportation needs between Ontario and Michigan.
Id. ¶ 181. In the beginning, the group focused
on the potential construction of the New Span and completion
of the Canadian portion of the Ambassador Bridge Gateway
Project. Id. ¶ 182. Canada later proposed
building a new publicly-owned bridge between Detroit and
Windsor. Id. ¶ 183. Members of the DRIC
Partnership entered into various contractual agreements to
further their purpose. Id. ¶ 184. A working
group of the DRIC Partnership considered fifteen potential
crossing sites across the Detroit River for a new bridge,
only one of which, designated as location X12, was the
twinning of the Ambassador Bridge. Id. ¶ ¶
191-192. Location X12 would have been " consistent with
the construction and ownership of the Ambassador Bridge New
Span as proposed by plaintiffs." Id. ¶
Canada, however, favored a public bridge. Id. ¶
195. Plaintiffs allege that Canada had a " long-term
goal of acquiring control of plaintiffs' franchise by
building a new bridge and preventing plaintiffs from
competing; "  they allege that Canada acted
specifically to eliminate location X12 from consideration.
Id. ¶ ¶ 197-205. Ultimately, the DRIC
Partnership eliminated the twinning of the Ambassador Bridge
as an alternative for further evaluation. See id.
¶ ¶ 197-206.
5, 2012, the Canadian Government, the Governor of Michigan,
MDOT, and the Michigan Strategic Fund (MSF) agreed to a
" Crossing Agreement" to build the Detroit River
International Crossing/New International Trade Crossing
(NITC/DRIC), a new bridge between Detroit and Windsor that is
to be located fewer than two miles from the Ambassador
Bridge. Id. ¶ ¶ 7, 32. The Crossing
Agreement " provides a framework for a Crossing
Authority established by Canada to design, construct,
finance, operate, and maintain a new International Crossing
between Canada and Michigan." Id. ¶
estimate that " up to 75% of the Ambassador Bridge's
truck traffic and up to 39% of its passenger traffic will be
diverted to the NITC/DRIC." Id. ¶ 8. In
2006, FHWA recognized that the New Span was likely to "
preclude the need for another publicly controlled crossing
for 30 years." Id. ¶ 221. In 2007, USDS
officials warned the Secretary of State that " [t]he
intense political machinations of the Windsor border crossing
chess game continue. The race is on to see whether the DIBC
can complete its twin span before the bi-national DRIC
project is ready." Id. ¶ 217. Plaintiffs
allege that NITC/DRIC threatens to destroy the economic
viability of the Ambassador Bridge, or, at a minimum, the
economic viability of the New Span and that Federal
Defendants intend these results. Id. ¶ 8.
Regulatory Approvals for the New Span and NITC/DRIC
Third Amended Complaint alleges that the Federal Defendants
" have engaged in a consistent and repeated pattern of
conduct that discriminates against the privately-owned New
Span in favor of the government-owned NITC/DRIC, which the
Federal Defendants have sought to promote while attempting to
slow down and prevent the construction of the New Span."
Id. ¶ 278. Most of the relevant allegations
concerning Federal Defendants' actions pertain to
disparate treatment of applications for regulatory approvals
required for the construction of the New Span and NITC/DRIC.
Plaintiffs complain State's issuance of a Presidential
Permit to build NITC/DRIC. DIBC does not require a
Presidential Permit to build the New Span. By letter dated
August 3, 2005, USDS agreed with DIBC that " the
replacement or expansion of existing bridges authorized by
Congress prior to passage of the 1972 International Bridge
Act did not
require a Presidential Permit." Id. ¶
¶ 144, 319; see also USDS Letter [Dkt. 133-7].
Since " DIBC is only seeking to expand (or twin) the
operation of the bridge . . . DIBC does not require a
Presidential permit." Id. ¶ 144 (quoting
both the New Span and NITC/DRIC must pass environmental
evaluations and receive a navigation permit from USCG under
the 1906 Bridge Act. Act of Mar. 23, 1906, ch. 1130, 34 Stat.
84; see 3rd Am. Compl. ¶ 148. Federal
regulatory approvals for the NITC/DRIC, a public project, are
subject to an interagency " streamlining
agreement." Id. ¶ 165. FHWA granted
expedited environmental approval for the NITC/DRIC and
released the NITC/DRIC Final Environmental Impact Statement
on November 26, 2008 " in about half the time needed for
similar projects of this size." Id. ¶ 165
(quoting FHWA). The Governor of Michigan applied to USDS for
a Presidential Permit for NITC/DRIC and approval of the
Crossing Agreement on June 21, 2012. See Notice of
Receipt of Application for Presidential Permit for the
Construction of a New International Trade Crossing, 77
Fed.Reg. No. 133 (July 11, 2012). In response to
NITC/DRIC's Presidential Permit Application, Plaintiffs
" submitted a Comment on August 9, 2012 and a
Supplemental Comment on September 10, 2012 to the State
Department, both of which explained to the State Department
that it should promptly reject the NITC/DRIC Application for
a number of reasons, including that the NITC/DRIC Application
sought approval of an agreement illegally executed by the
Governor, MDOT, and MSF." Id. ¶ 261.
Despite Plaintiffs' comments, USDS published a notice in
the Federal Register on April 18, 2013 that it had issued a
Presidential Permit to the NITC/DRIC. See Issuance
of a Presidential Permit to the State of Michigan, 78
Fed.Reg. No. 75 (April 18, 2013). The Notice did not mention
any approval of the Crossing Agreement. Upon inquiry from
Plaintiffs' counsel, " lawyers for the United States
provided a letter . . . dated April 12, 2013, purportedly
sent by the State Department to legal counsel for the
Governor of Michigan, reporting that the State Department had
granted approval of the Crossing Agreement."
Id. ¶ 17.
suit was filed on March 22, 2010. It initially named as
defendants the USCG, the Department of Homeland Security,
FHWA, and the Government of Canada. See Compl. [Dkt.
1] ¶ ¶ 17-20. Federal Defendants moved to dismiss
on July 8, 2010, and Plaintiffs voluntarily dismissed Canada,
FHWA, and certain named officials on November 29, 2011
because the Michigan Legislature appeared to have blocked
construction of the NITC/DRIC. See Nov. 29, 2011
Notice of Voluntary Dismissal [Dkt. 52].
period of political maneuvering that Plaintiffs contended
violated Michigan law--an allegation that is not part of this
lawsuit--NITC/DRIC supporters resumed their efforts to build
a publicly-owned bridge. Based on these renewed efforts to
construct a public bridge, Plaintiffs filed a Second Amended
Complaint on February
11, 2013. See Second Am. Compl. [Dkt. 83].
29, 2013, Plaintiffs filed a Third Amended Complaint against
USDS; the Secretary of State, in his official capacity;
NITC/DRIC Partnership; FHWA and the Administrator of FHWA, in
his official capacity; the Government of Canada;
 the Windsor-Detroit Bridge
Authority, an agency of Canada; USCG; and the Commandant of
the Coast Guard, in his official capacity. See 3rd
Am. Compl. [Dkt. 105] ¶ ¶ 26-36. With the exception
of Count 4, previously decided, and those directed against
Canadian entities, the Third Amended Complaint sets forth
eight Counts variously against the Federal Defendants:
o Count 1--Violation of the foreign compact clause, U.S.
Const., art. I, § 10, cl. 3 (USDS and Secretary of
o Count 2--Declaratory judgment as to Plaintiffs'
franchise rights (All Defendants);
o Count 3--Declaratory judgment as to DIBC's franchise
right to build the New Span (All Defendants);
o Count 5--Declaratory judgment as to uncompensated taking of
private property (All Defendants);
o Count 6--APA claims based on issuance of Presidential
o Count 7--APA claims based on approval of Crossing Agreement
o Count 8--Judicial Review of ultra vires and unlawful action
(USDS; USCG; FHWA; United States); and
o Count 9--Equal Protection claim (All Defendants).
See 3rd Am. Compl. ¶ ¶ 289-324; 332-373.
Defendants move to dismiss these eight counts from the Third
Amended Complaint. The motion is ripe for decision.
Standard under Fed.R.Civ.P. 12(b)(1)
Federal Rule of Civil Procedure 12(b)(1), a defendant may
move to dismiss a complaint, or any portion thereof, for lack
of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). No
action of the parties can confer subject matter jurisdiction
on a federal court because subject matter jurisdiction is
both a statutory requirement and an Article III requirement.
Akinseye v. District of Columbia, 339 F.3d 970, 971,
358 U.S.App.D.C. 56 (D.C. Cir. 2003). The party claiming
subject matter jurisdiction bears the burden of demonstrating
that such jurisdiction exists. Khadr v. United
States, 529 F.3d 1112, 1115, 381 U.S.App.D.C. 408 (D.C.
Cir. 2008); see Kokkonen v. Guardian Life Ins.
Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128
L.Ed.2d 391 (1994) (noting that federal courts are courts of
limited jurisdiction and " [i]t is to be presumed that a
cause lies outside this limited jurisdiction, and the burden
of establishing the contrary rests upon the party asserting
jurisdiction" ) (internal citations omitted).
reviewing a motion to dismiss for lack of jurisdiction under
Rule 12(b)(1), a court must review the complaint
liberally, granting the plaintiff the benefit of all
inferences that can be derived from the facts alleged.
Barr v. Clinton, 370 F.3d 1196, 1199, 361
U.S.App.D.C. 472 (D.C. Cir. 2004). Nevertheless, " the
court need not accept factual inferences drawn by plaintiffs
if those inferences are not supported by facts alleged in the
complaint, nor must the Court accept plaintiff's legal
conclusions." Speelman v. United States, 461
F.Supp.2d 71, 73 (D.D.C. 2006). A court may consider
materials outside the pleadings to determine its
jurisdiction. Settles v. U.S. Parole Comm'n, 429
F.3d 1098, 1107, 368 U.S.App.D.C. 297 (D.C. Cir. 2005);
Coal. for Underground Expansion v. Mineta, 333 F.3d
193, 198, 357 U.S.App.D.C. 72 (D.C. Cir. 2003). A court has
" broad discretion to consider relevant and competent
evidence" to resolve factual issues raised by a Rule
12(b)(1) motion. Finca Santa Elena, Inc. v. U.S. Army
Corps of Engineers, 873 F.Supp.2d 363, 368 (D.D.C. 2012)
(citing 5B Charles Wright & Arthur Miller, Fed. Prac. & Pro.,
Civil § 1350 (3d ed. 2004)); see also
Macharia v. United States, 238 F.Supp.2d 13, 20
(D.D.C. 2002), aff'd, 334 F.3d 61, 357
U.S.App.D.C. 223 (2003) (in reviewing a factual challenge to
the truthfulness of the allegations in a complaint, a court
may examine testimony and affidavits). In these
circumstances, consideration of documents outside the
pleadings does not convert the motion to dismiss into one for
summary judgment. Al-Owhali v. Ashcroft, 279
F.Supp.2d 13, 21 (D.D.C. 2003).
Standard under Fed.R.Civ.P. 12(b)(6)
motion to dismiss for failure to state a claim pursuant to
Federal Rule of Civil Procedure 12(b)(6) challenges the
adequacy of a complaint on its face. Fed.R.Civ.P. 12(b)(6). A
complaint must be sufficient " to give a defendant fair
notice of what the . . . claim is and the grounds upon which
it rests." Bell A. Corp. v. Twombly, 550 U.S.
544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal
citations omitted). Although a complaint does not need
detailed factual allegations, a plaintiff's obligation to
provide the grounds of his entitlement to relief "
requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not
do." Id. To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to state a claim for relief that is " plausible on
its face." Id. at 570. A court must treat the
complaint's factual allegations as true, " even if
doubtful in fact." Id. at 555. But a court need
not accept as true legal conclusions set forth in a
complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129
S.Ct. 1937, 173 L.Ed.2d 868 (2009).
deciding a motion under Rule 12(b)(6), a court may consider
the facts alleged in the complaint, documents attached to the
complaint as exhibits or incorporated by reference, and
matters about which the court may take judicial notice.
Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059,
378 U.S.App.D.C. 355 (D.C. Cir. 2007). Federal Rule of
Evidence 201 provides that a court may judicially notice a
fact that is not subject to " reasonable dispute because
it (1) is generally known within the trial court's
territorial jurisdiction; or (2) can be accurately and
readily determined from sources whose accuracy cannot
reasonably be questioned." Fed.R.Evid. 201(b). A court
may take judicial notice of facts contained in public records
of other proceedings, see Chao, 508 F.3d at
1059; Settles v. U.S. Parole Commission, 429 F.3d
1098, 1107, 368 U.S.App.D.C. 297 (D.C. Cir. 2005); Covad
Communications Co. v. Bell Atlantic Co., 407 F.3d 1220,
1222, 366 U.S.App.D.C. 24 (D.C. Cir. 2005), and of
historical, political, or statistical facts, and any other
facts that are verifiable with certainty, see
Mintz v. FDIC, 729 F.Supp.2d 276, 278 n.5 (D.D.C.
2010). Also, a court generally
may take judicial notice of materials published in the
Federal Register. Banner Health v. Sebelius, 797
F.Supp.2d 97, 112 (D.C. Cir. 2011); 44 U.S.C. § 1507
(" The contents of the Federal Register shall be
judicially noticed . . . ." ). Further, judicial notice
may be taken of public records and government documents
available from reliable sources. Hamilton v.
Paulson, 542 F.Supp.2d 37, 52 n.15 (D.D.C. 2008),
rev'd on other grounds, 666 F.3d 1344, 399
U.S.App.D.C. 77 (D.C. Cir. 2012); see D.C.
Fed'n of Civic Ass'ns v. Volpe, 459 F.2d 1231,
1257-58, 148 U.S.App.D.C. 207 (D.C. Cir. 1971) (noting that
congressional documents and speeches made on the floor of the
House of Representatives are part of the public record);
Wash. Legal Found. v. U.S. Sentencing Comm'n, 89
F.3d 897, 905, 319 U.S.App.D.C. 256 (D.C. Cir. 1996) (common
law right of access to " public records" includes
access to government documents " created and kept for
the purpose of memorializing or recording an official action,
decision, statement, or other matter of legal significance,
broadly conceived" ). In addition, a court may take
judicial notice of a formal position of the U.S.
Government. See Simpson v. Socialist
People's Libyan Arab Jamahiriya, 362 F.Supp.2d 168,
178 n.5 (D.D.C. 2005) (taking judicial notice of State
Department's annual publication, Patterns of Global
Terrorism, as a reflection of the formal and official
position of U.S. Government), aff'd, 470 F.3d
356, 362, 373 U.S.App.D.C. 417 (D.C. Cir. 2006).