MEMORANDUM OPINION
Wе all know Amtrak — the federally chartered corporation that has provided intercity and commuter train service to ■Americans for more than forty years. But what is Amtrak? Is it a private entity? Or is it part of the government? While courts have previously addressed these questions in various other contexts, it is on their resolution that much of this case hinges:
Section 207 of The Passenger Railroad Investment and Improvement Act of 2008 (PRIIA) requires the Federal Railroad Administration (FRA) and Amtrak to “jointly” develop standards to evaluate the performance of Amtrak’s intercity passenger trains. Consistent with this mandate, the FRA and Amtrak issued Metrics and Standards for measuring Amtrak’s on-time performance and minutes of dеlay. In this suit, Plaintiff Association of American Railroads (AAR) — an organization whose members include freight railroads that own tracks and facilities on and through which Amtrak’s trains operate — contends that § 207 both unconstitutionally delegates rulemaking authority to a private entity and violates its members’ due-process rights. Each side has now moved for summary judgment.
The Court concludes that the statute survives both of Plaintiffs constitutional challenges. Because the Supreme Court has held that Amtrak is to be considered a governmental entity for the purpose of constitutional individual-rights claims, Plaintiffs due-process challenge, which is premised on Amtrak’s status as an interested private party, cannot рrevail. The *25 nondelegation claim, however, poses a closer question. Ultimately, though, the Court need not decide whether Amtrak should be considered a governmental entity or a private party for purposes of that issue. Even if Amtrak is a private entity, the government is sufficiently involved as to render § 207’s delegation constitutional. The Court, therefore, will grant Defendants’ Motion for Summary Judgment and deny Plaintiffs.
I. Background
By the middle of the twentieth century, the once-robust intercity passenger-train industry had fallen on hard times. Formerly the primary means of intercity travel, the railroads faced crippling competition from the burgeoning air-travel industry and the new interstate highway system.
See
Def.’s Mot.
&
Opp., Exh. 1 (Congressional Budgеt Office, “The Past and Future of U.S. Passenger Rail Service” (Sept. 2003)) at 5-7. In an attempt “to avert the threatened extinction of passenger trains in the United States,”
Lebron v. National R.R. Passenger Corp.,
Amtrak, which was set up to function as a “private, for-profit corporation,” 49 U.S.C. § 24301(a), began operation in May 1971.
See Nat’l R.R. Passenger Corp. v. Atchison, Topeka and Santa Fe Ry. Corp.,
Although Congress has specified that Amtrak “is not a department, agency, or instrumentality of the United States Government,’-’ 49 U.S.C. § 24301(a), the government remains heavily involved in its operations. Of the nine directors who sit on Amtrak’s board, eight are directly appointed by the President, with the advice and consent of the Senate. See 49 U.S.C. § 24302. The ninth board member is selected by the other eight. Id. Amtrak is required to submit annual reports to Congress and the President, see id. §§ 24315(a)-(b), and thе government owns more than 90% of Amtrak’s stock. See Def.’s Mot., Exh. 2 (Nat’l R.R. Pass. Corp. *26 and Sub., Consolidated Financial Statements for the Years Ended Sept. 30, 2011 and 2010 (Dec. 2011)) at 17-18. Because Amtrak has never managed to become self-sufficient, moreover, the corporation depends on substantial federal subsidies to continue its operations. See id. at 6; Dupree Deck, Exh. Q (Katherine Shaver, “At 40, Amtrak Struggles to Stay Up to Speed,” Wash. Post (May 15, 2011)) at Cl.
The statute that is the subject of this suit, The Passenger Railroad Investment and Improvement Act of 2008 (PRIIA), Pub. L. No. 11-432, is the latest of several pieces of legislation intended to improve Amtrak’s financial health and the quality of its service. At issue is § 207 of that Act, which provides, in relevant part:
[T]he Federal Railroad Administratiоn and Amtrak shall jointly, in consultation with the Surface Transportation Board, rail carriers over whose rail lines Amtrak trains operate, States, Amtrak employees, nonprofit employee organizations representing Amtrak employees, and groups representing Amtrak passengers, as appropriate, develop new or improve existing metrics and minimum standards for measuring the performance and service quality of intercity passenger train operations, including [, inter alia,] ... on-time performance and minutes of delay....
PRIIA, § 207(a) (codified at 49 U.S.C. § 24101, note). The statute provides further details about what those Metrics and Standards should include, and it states that, “[t]o the extent practicable, Amtrak and its host rail carriers shall incorporate the metrics and standards developed under subsection (a) into their access and service agreements.” Id. § 207(c).
In addition, § 213(a) of the PRIIA empowers the Surface Transportation Board (STB), “a quasi-independent three-member body within the Department of Transportation,”
Iowa, Chicago & Eastern R.R. Corp. v. Washington Cnty., Iowa,
Consistent with § 207’s mandate, the FRA and Amtrak issued proposed Metrics and Standards on March 13, 2009, see Dupree Deck, Exh. B (Proposed Metrics and Standards for Intercity Passenger Rail Service (Mar. 13, 2009)), accepted comments from interested parties, see 74 Fed. Reg. 10983 (Mar. 13, 2009), and ultimately published the final version of the Metrics and Standards on May 6, 2010. See Dupree Deck, Exh. D (Final Metrics and Standards for Intercity Passenger Rail Service, Docket No. FRA-2009-0016 (May 6, 2010)). The Metrics and Standards provide that Amtrak’s on-time performance is to be assessed on a route-by-route basis by reference to three separate metriсs. See id. at 24-30. In general terms, these metrics address “effective speed,” which is the route’s distance divided by the average time it takes to traverse it, “endpoint on-time performance,” which measures how often trains arrive on time at the end of the route, and “all-stations on-time performance,” which measures how often trains arrive on time at each station along the route. See id. The Metrics and Standards also set limits on permissible delays, capping the delays for which a host rail *27 road may be responsible at 900 minutes per 10,000 route miles. See id. at 27-28.
These Metrics and Standards went into effect on May 12, 2010. See id. at 1. Since then, the freight railroads have already made efforts to achieve the goals set forth therein. See LaDue Decl., ¶¶ 5-11; Beck Deck, ¶ 11; Owens Deck, ¶ 9; Harris Deck, ¶¶ 8-10. The FRA’s quarterly reports have, nevertheless, consistently concluded that the Metrics and Standards áre not being met on many of Amtrak’s routes. See generally Dupree Deck, Exhs. M-P (FRA’s February, April, July, and September 2011 Quarterly Reports); LaDue Deck, ¶ 5; Beck Deck, ¶ 8; Owens Deck, ¶ 7; Harris Deck, ¶ 7. While neither party has presented evidence that freight railroads have yet been fined as a result of these shortcomings, at least one petition has been filed by Amtrak against a railroad based on its alleged failure to meet the requirements of the Metrics and Standards. See generally Pl.’s Opp. & Reply, Deck of Porter Wilkinson, Exh. A (Petition for Relief by Amtrak, Docket No. NOR 42134).
Plaintiff in this сase, the Association of American Railroads (AAR), “is a nonprofit trade association whose members include all of the Class I freight railroads (the largest freight railroads), as well as some smaller freight railroads and Amtrak.” Comph, ¶ 10. It brings this case on behalf of its Class I-member freight railroads, all of which own tracks on which Amtrak trains are operated. See id., ¶¶ 10-11. Because they are required to incorporate the Metrics and Standards into their operating agreements where “practicable” and because they could be subject to penalties if Amtrak’s failure to live up to those standards is .found to have been caused by their failure to prioritize Amtrak trains, AAR maintains that these railroads are directly harmed by § 207 of the PRIIA and the Metrics and Standards promulgated in accordance therewith. See id., ¶¶ 11-13. In the instant suit, AAR claims that § 207 of the PRIIA, which empowers the FRA and Amtrak to “jointly” develop Metrics and Standards, violates the constitution in two ways. See id., ¶¶ 47-54. Both sides now seek summary judgment.
II. Legal Standard
Summary judgment may be granted if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a);
see also Anderson v. Liberty Lobby, Inc.,
The party seeking summary judgment “bears the heavy burden of establishing that the merits of his case are so clear that expedited action is justified.”
Taxpayers Watchdog, Inc. v. Stanley,
The nonmoving party’s opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits, declarations, or other competent evidence, setting forth specific facts showing that there is a genuine issue for trial.
See
Fed.R.Civ.P. 56(e);
Celotex Corp. v. Catrett,
III. Analysis
This case presents two constitutional challenges to § 207 of the PRIIA. But before discussing these, the Court preliminarily notes that AAR, as a representative of the freight railroads that have operating agreements with Amtrak, has established — and Defendant has not challenged — its standing to bring them.
See, e.g., Lee’s Summit v. Surface Transp. Bd.,
AAR first contends that § 207 “violates the nondelegation doctrine and the separation of powers principle” by delegating legislative power to Amtrak, a private entity. See Compl., ¶51. Second, it argues that § 207 violates the Due Process Clause of the Fifth Amendment by “empower[ing] Amtrak,” an “interested private part[y],” “to wield legislative and rulemaking power to enhance its commercial position at the expense of other industry participants.” Id., ¶¶ 53-54. Although these claims are brought under two different provisions of the Constitution, both involve the same alleged flaw in the statute: the delegation of rulemaking authority to Amtrak. Both, furthermore, are premised upon Amtrak’s status as a private entity. Whether Amtrak, a federally chartered corporation, *29 should in fact be considered a private entity for purposes of Plaintiffs constitutional claims is thus the necessary jumping-off point.
Because the answer to that question is clеarer (and, indeed, decisive) with respect to the due-process claim, the Court will begin there. Concluding that Amtrak is a governmental entity for purposes of constitutional individual-rights claims and that AAR’s due-process claim falls neatly within that category, the Court will on that ground grant Defendants’ Motion with respect to that issue. Turning to the non-delegation claim, though, Amtrak’s status as a governmental or private entity is less clear. Fortunately, however, the Court need not resolve that question. Instead, it finds that, even if Amtrak is a private entity, § 207’s delegation survives AAR’s nondelegation challenge because the government retains control over the promulgation of the Metrics and Standards. The Court will thus grаnt Defendants’ Motion with respect to that claim as well.
A. Due Process Claim
The Fifth Amendment’s Due Process Clause prohibits interested private parties from wielding regulatory authority.
See Carter v. Carter Coal Co.,
AAR’s contention that § 207 violates its members’ due-process rights thus assumes that Amtrak is a private entity.
See
Compl., ¶¶ 53-54. In light of Congress’s clear statement that Amtrak “shall be operated and managed as a for-profit corporation” and “is not a department, agency, or instrumentality of the United States Government,” 49 U.S.C. § 24301(a)(3), that assumption is certainly not baseless. Indeed, the D.C. Circuit has previously held that “Amtrak is not the Government” in the context of a False Claims Act claim.
See United States ex rel. Totten v. Bombardier Corp.,
In
Lebron v. National Railroad Passenger Corporation,
The Court, therefore, undertook a functional analysis to determine whether Amtrak should be considered a governmental entity in the context of the constitutional claim presented in that case.
See id.
at 393-400,
This discussion in
Lebrón
plainly dictates the outcome of AAR’s. due-process claim, which falls squarely in the category of constitutional individual-rights claims.
See, e.g., J. McIntyre Mach., Ltd. v. Nicastro,
— U.S. —,
AAR’s attempts to distinguish
Lebron
fall short of their mark. Plaintiff, for example, stresses that Congress removed Amtrak from the list of mixed-ownership government corporations after
Lebron
was decided.
See
PL’s Mot. at 27-28 (citing Pub. L. No. 105-134, § 415(2)). The inference it would have the Court draw, it seems, is that this changed circumstance should affect the outcome. The Supreme Court, however, clearly stated that Congress’s
ipse dixit
cannot change Amtrak’s nature for purposes of constitutional individual-rights claims.
See Lebron,
In addition, even if Plaintiff is right that Amtrak is a private entity
for purposes of PRIIA
which it argues was intended “to boost the bottom-line of a for-profit corpоration,” Pl.’s Mot. at 28, that does not change its status
for purposes of the Constitution. See Lebron,
As Plaintiff emphasizes, furthermore, “[T]he
Lebron
Court explained that while Amtrak is part of the Governmеnt for purposes of the constitutional
obligations
of Government — -such as the obligation to respect an artist’s First Amendment rights' — Amtrak is
not
part of the Government for purposes of the inherent
powers and privileges
of the Government.” Pl.’s Opp.
&
Reply at 8 (emphases in original). AAR’s due-process challenge plainly belongs in the former camp. Just as the Government is obligated to respect individuals’ First Amendment rights,
see Lebron,
Perhaps recognizing that
Lebrón
poses an insurmountable barrier to its argument that Amtrak is a private entity for purposes of its due-process claim, AAR attempts to raise two alternative arguments in its Opposition and Reply.
See
PL’s Opp. & Reply at 15-17. First, it contends that § 207 violates its members’ due-process rights even if Amtrak is a governmental entity.
See id.
at 15-16. Amtrak’s pecuniary incentives, it argues, are so significant as to constitute a due-process violation even if Amtrak is not a private party.
See id.
(distinguishing,
e.g., Marshall v. Jerrico,
Neither argument, however, was raised in AAR’s initial brief, and both are outside the scope of its Complaint, which premises its due-process claim on Amtrak’s status as a private entity.
See
Compl., ¶¶ 53-54.
*32
Especially given that these arguments are raised only cursorily and that one is a new constitutional claim, the Court declines to address them.
See, e.g., Jo v. Dist. of Columbia,
In the end, because Amtrak is a governmental entity for purposes. of Plaintiffs due-process challenge, the Court will grant Defendants’ Motion and deny Plaintiffs with respect to that claim.
B. Nondelegation Claim
Plaintiffs next challenge asserts that Congress unconstitutionally delegated lawmaking authority to Amtrak, a nongovernmental entity, when it gave Amtrak joint responsibility for issuing the Metrics and Standards. This clаim thus also takes as its premise that Amtrak is a private entity.
See
Compl., ¶¶ 48-49. Whether
Lebron
dictates Amtrak’s status for purposes of this claim, though, is less clear. On the one hand, the structural constitutional principles from which AAR’s non-delegation claim derives are distinct — both legally and logically — from the document’s guarantees of individual rights.
Lebron,
in fact, approached the question of Amtrak’s status with the assumption that its answer could be different with respect to different kinds of claims. Its explicit holding that Amtrak is the government “for the purpose of individual rights guaranteed against the Government by the Constitution,” Leb
ron,
On the other hand, it is possible to conceive of the nondelegation doctrine, especially when invoked by private parties, as a guarantor of individual rights.
See, e.g., Bond v. United States,
— U.S. —,
The Court, however, need not decide Amtrak’s status in the context of AAR’s nondelegation challenge. Even if Amtrak is a private entity, as Plaintiff contends, the government retains ultimate control over the promulgation of the Metrics and Standards. Section 207’s delegation, accordingly, passes constitutional muster.
Article I of the Constitution provides that “All legislative Powers ... shall be vested in a Congress of the United States.” Art. I, § 1, cl. 1. The Supreme Court, nevertheless, has long interpreted the Constitution to permit Congress to delegate legislative power to executive agencies within certain constraints.
See, e.g., Wayman v. Southard,
A series of cases in the Supreme Court and the Courts of Appeals has partially illuminated the limits of delegations to private entities. In
Sunshine Anthracite,
for example, the Court upheld a statutory scheme that permitted groups of coal producers to set prices for coal on the ground that those prices would become effective only when approved by the National Bituminous Coal Commission, a government agency.
See
These cases — upon which both parties rely- — confirm that Congress cannot delegate to a private party absolute power to enact regulations that will carry the force of law.
See also Carter Coal,
Section 207 of the PRIIA provides that the FRA and Amtrak shall “jointly” develop the Metrics and Standards. While the AAR is correct that this scheme in a sense makes Amtrak the FRA’s equal — as opposed to its subordinate — Amtrak cannot promulgate the Metrics and Standards without the agency’s approval. In an important sense, this renders the delegation effected by § 207 similar to that upheld in
Sunshine Anthracite.
There, the Court held that a delegation was constitutional because the prices set by the private entity would not be effective unless the government acted to adopt them.
See Sunshine Anthracite,
Of course, as AAR repeatedly emphasizes, the co-equal roles played by Amtrak and the FRA also entails that the FRA could not enact the Metrics and Standards without
Amtrak’s
approval. Conditioning regulation on a private party’s assent, however, is not constitutionally problematic.
See, e.g., Currin v. Wallace,
Looking at the bigger picture, moreover, just as the FRA remains involved with the Metrics and Standards’ promulgation, the STB is the entity ultimately responsible for their enforcement. While AAR’s challenge is to the delegation of rulemaking authority — not the delegation of enforcement authority — its papers repeatedly reference the Metrics and Standards’ enforcement and penalties scheme and question the fundamental fairness of Amtrak’s role therein. That the STB retains control over the enforcement mechanisms, accordingly, merits mention. True, Amtrak has the power to initiate an investigation by the STB where its on-time performance falls below 80%.
See
49 U.S.C. § 24308(f)(1). As in
Pittston,
however, it is the governmental entity (here, the STB) that performs the investigation and may ultimately impose penalties.
See Pittston,
All that said, Plaintiff may ultimately be correct that Amtrak plays a larger role in the promulgation of rules under § 207 than the private entities did in the cases on which Defendants rely. Under § 207, the FRA retains equal responsibility for the promulgation of the Metrics and Standards and the STB, not Amtrak, has the ultimate powеr to enforce them. But, the involvement of the FRA and the STB notwithstanding, the statute’s choice of the word “jointly” undoubtedly makes it difficult to characterize Amtrak’s role as “subordinate!],”
Sunshine Anthracite,
That, however, that is not the case. While the Court assumed for purposes of this discussion that Amtrak is technically a private entity, that does not mean it assumes away the facts on the ground. The Court hardly need reiterate the indicia of the government’s control over Amtrak that it discussed in Section III.A,
supra,
but, in brief: Amtrak was created by special law for the furtherance of governmental objectives, and the government sets its goals; the President appoints eight of the nine directors; Amtrak is required to submit annual reports to Congress and the President; the government owns more than 90% of Amtrak’s stock; Amtrak relies on more than a billion dollars in congressional appropriations annually; and Congress sets salary limits for Amtrak’s employees. While Congress has declared that Amtrak is to be operated as a “for-profit corporation” and should not be considered “a department, agency, or instrumentality of the United States Government,” 49 U.S.C. § 24301(a), the government clearly retains control of the organization.
Cf. Frame,
Taken together, the involvement of the FRA in promulgating the regulations, the role of the STB in their enforcement, and the government’s structural control over Amtrak itself more than suffice. That an entity that shares some characteristics with private corporations is involved in the rulemaking process does not offend the separation-of-powers principle. In the end, § 207 establishes a scheme in which government entities retain control over an entity that, even if technically private, is itself controlled by the government. The Constitution requires no more.
IV. Conclusion
For the foregoing reasons, the Court will issue a contemporaneous Order granting Plaintiffs’ Motion for Summary Judgment and denying Defendant’s.