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Detroit International Bridge Co. v. Government of Canada

United States District Court, D. Columbia

September 30, 2015

GOVERNMENT OF CANADA, et al., Defendants

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          For 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.

         For 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.

         For 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 USA.

         For 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.

         For Windsor-Detroit Bridge Authority, Defendant: Scott M. Watson, PRO HAC VICE, WARNER NORCROSS & JUDD LLP, Grand Rapids, MI USA.

         For Michigan Department of Transportation, Interested Party: Michael James Dittenber, LEAD ATTORNEY, MICHIGAN ATTORNEY GENERAL'S OFFICE, Lansing, MI USA.


         ROSEMARY M. COLLYER, United States District Judge.

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          The 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.

         Plaintiffs 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.

         I. FACTS[1]

         A. The Ambassador Bridge

         In 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

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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. III).

         The 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.

         Act of March 4, 1921, 66th Cong., ch. 167, § 1, 41 Stat. 1439 (1921) (DIBC Act).[2] 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.

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Act of May 3, 1921, 11-12 Geo. V ch. 57 (Can.) (CTC Act).[3] 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. ¶ 58.

         In 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.[4]

         DIBC " 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.

         B. 1972 International Bridge Act

         Interstate 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

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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. No. 92-1303).

         C. Plans to Build the New Span to the Ambassador Bridge

         The 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.[5] 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. ¶ 147.

         D. Plans to Build the NITC/DRIC

         In late 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. ¶ 194.

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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; " [6] 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.

         On June 5, 2012, the Canadian Government, the Governor of Michigan, MDOT, and the Michigan Strategic Fund (MSF)[7] 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. ¶ 255.[8]

         Studies 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.

         E. Regulatory Approvals for the New Span and NITC/DRIC

         The 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.

         First, 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

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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 USDS letter).

         However, 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.[9] 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.

         F. Procedural History

         This 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].

         After a 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

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11, 2013. See Second Am. Compl. [Dkt. 83].

         On May 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; [10] 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 State);
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 Permit (USDS);
o Count 7--APA claims based on approval of Crossing Agreement (USDS);
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.

         Federal Defendants move to dismiss these eight counts from the Third Amended Complaint.[11] The motion is ripe for decision.


         A. Standard under Fed.R.Civ.P. 12(b)(1)

         Under 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).

         When reviewing a motion to dismiss for lack of jurisdiction under Rule 12(b)(1), a court must review the complaint

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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).

         B. Standard under Fed.R.Civ.P. 12(b)(6)

         A 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).

         In 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

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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).

         III. ANALYSIS

         A. ...

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