ALSTOM TRANSPORTATION INC. v. FEDERAL RAILROAD ADMINISTRATION et al

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ALSTOM TRANSPORTATION, INC.,
Plaintiff,
v.
FEDERAL RAILROAD ADMINISTRATION,
et al.,
Defendants,
and
SIEMENS MOBILITY, INC. &
DESERTXPRESS ENTERPRISES, LLC d/b/a
BRIGHTLINE WEST,
Intervenor-Defendants.
Case No. 24-cv-2098 (JMC)
MEMORANDUM OPINION
The Nevada Department of Transportation, together with private rail operator Brightline
West, plans to build a passenger railroad that will connect Las Vegas and Southern California in
about two hours.1 With trains travelling over 180 miles per hour, this project will be the first of its
kind in the United States. To fund a portion of the project, the state agency and Brightline applied
for a federal grant. To be eligible, the project had to comply with Buy America requirements,
which mandate that the steel, iron, and goods used in the project be manufactured in the United
States. See Notice of Proposed Nonavailability Waiver of Buy America Requirements for the
Nevada Department of Transportation to Purchase Certain High-Speed Rail Components, 88 Fed.
1 Unless otherwise indicated, the formatting of citations has been modified throughout this opinion, for example, by
omitting internal quotation marks, emphases, citations, and alterations and by altering capitalization. All pincites to
documents filed on the docket in this case are to the automatically generated ECF Page ID number that appears at the
top of each page.
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Reg. 89015, 89015 (Dec. 26, 2023); see also 49 U.S.C. § 22905. Those requirements can be
waived, however, in certain circumstances, including if the “goods produced in the United States
are not produced in a sufficient and reasonably available amount.” 49 U.S.C. § 22905(a)(2)(B).
Brightline conducted a private procurement process to select a vendor to supply the trains
for the project. Alstom Transportation, a train manufacturer based in New York, submitted a bid
in which it proposed to adapt its existing lower-speed train to meet the Brightline project
specifications. Alstom proposed manufacturing the trains in its New York facility but using
aluminum car shells sourced abroad. Siemens Mobility also bid for the contract. Siemens proposed
its high-speed Velaro NOVO trains, which are already in service in Europe. Siemens would build
the first two of the ten trains needed for the project at its German headquarters, with American
workers in attendance for training, and then build the remaining eight trains at a manufacturing
facility to be constructed in Nevada. Because both Alstom and Siemens required foreign
manufacturing for some aspect of their proposal, Brightline submitted a request for a waiver from
the Buy America requirements. The Federal Railroad Administration conducted a notice of
proposed rulemaking where it solicited comments and evaluated the waiver requests.
Brightline ultimately selected Siemens as the “preferred rolling stock vendor” for its
project. Notice of Nonavailability Waiver of Buy America Requirements for the Nevada
Department of Transportation to Purchase Certain High-Speed Rail Components, 89 Fed. Reg.
45934, 45936 (May 24, 2024). After Brightline’s selection of Siemens, the Federal Railroad
Administration announced that it was issuing a “final waiver [that] reflects the needs for the project
given Brightline West’s decision to select Siemens as its preferred . . . vendor.” Id. After
considering Brightline’s domestic sourcing plans and the public comments, the Administration
waived the Buy America requirements on nonavailability grounds. Explaining that “there are
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currently no domestic manufacturers of high-speed trainsets (i.e., trainsets that are service proven
at speeds in excess of 125 mph),” the waiver allowed Siemens to construct the first two trains in
Germany. Id.
Having lost out on the project, Alstom brought suit under the Administrative Procedure
Act against the Federal Railroad Administration, its Administrator, the U.S. Department of
Transportation, and its Secretary, challenging the propriety of the Buy America waiver. ECF 1.
Siemens and Brightline intervened in the case to defend the waiver. Because Alstom lacks standing
to challenge the waiver decision, the Court GRANTS the defendants’ and intervenors’ motions to
dismiss for lack of subject matter jurisdiction.
I. 	BACKGROUND
A. The Federal-State Partnership for Intercity Passenger Rail Grant Program
In 2021, Congress passed the Infrastructure Investment and Jobs Act as an effort to increase
funding for federal highways, infrastructure, and transportation initiatives. Pub. L. 117–58,
135 Stat. 429 (2021) (codified, in relevant part, at 49 U.S.C. § 24911). Among other things, the
statute authorizes the Secretary of Transportation to develop and implement a competitive grant
program to fund intercity passenger rail service projects, known as the Federal-State Partnership
for Intercity Passenger Rail Grant Program. Id. § 24911(b). One goal of this program is to establish
new intercity passenger rail service. Id. Eligible applicants for funding under the program include
states, interstate compacts, public agencies, state political subdivisions, Amtrak, and federally
recognized Indian tribes. Id. § 24911(a)(1). Private rail operators are also permitted to partner with
an eligible entity to receive funding. Id. § 24911(b). The Federal Railroad Administration (FRA)
is responsible for administering the program. See 49 C.F.R. § 1.89(a).
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Projects that receive funding under the program are subject to statutory “Buy America”
requirements. See 49 U.S.C. § 22905; 88 Fed. Reg. at 89015; ECF 66 at 187. As its title suggests,
the statute provides that projects are eligible for funding “only if the steel, iron, and manufactured
goods used in the project are produced in the United States.” 49 U.S.C. § 22905(a)(1). That said,
the FRA (exercising the Secretary’s delegated authority) can “waive” those requirements if it
“finds that” one of a delineated list of conditions is met. Id. § 22905(a)(2); see 49 C.F.R. § 1.89(a)
(delegating this authority). Those conditions are satisfied, for instance, where “the steel, iron, and
goods produced in the United States are not produced in a sufficient and reasonably available
amount or are not of a satisfactory quality,” or where “rolling stock or power train equipment
cannot be bought and delivered in the United States within a reasonable time.” 49 U.S.C.
§ 22905(a)(2)(B)–(C). Prior to granting a waiver, the FRA must “publish in the Federal Register a
detailed written justification as to why the waiver is needed” and “provide notice of such finding
and an opportunity for public comment.” Id. § 22905(a)(4).
B. Brightline West Project
In late 2022, the FRA issued a Notice of Funding Opportunity under the grant program
inviting applications for rail service projects located outside the Northeast corridor. Notice of
Funding Opportunity for the Federal-State Partnership for Intercity Passenger Rail Program,
87 Fed. Reg. 75119 (Dec. 7, 2022). In response, the Nevada Department of Transportation
(NVDOT) applied for funding in partnership with Brightline West, a privately owned railroad. The
NVDOT-Brightline project proposed to establish a first-of-its-kind passenger rail system between
Las Vegas, Nevada, and Rancho Cucamonga, California. 88 Fed. Reg. at 89015. Under the
supervision of NDOT, Brightline would construct the project, consisting of a 218-mile rail service
with trains moving at least 186 miles per hour to take passengers from Las Vegas to Southern
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California in 2 hours and 10 minutes. ECF 66 at 32–33. The project was projected to break ground
in 2023 and begin operations ahead of the 2028 Los Angeles Olympics. Id.
Brightline conducted a private procurement process to identify a domestic supplier for the
rolling stock—the trainsets, as the parties call them, or, in lay terms, the trains—and signal system
components of the project.2 Two companies, Alstom and Siemens, responded to Brightline,
“represent[ing] [that] they could provide high-speed rail components that me[t]” its “specifications
and applicable FRA safety requirements.” 88 Fed. Reg. at 89016. Alstom is part of a global
conglomerate that manufactures trains and other rail industry technology. ECF 1 ¶ 8. Its principal
place of business is in New York, and it has manufacturing facilities there and in Pennsylvania. Id.
Siemens, a global train manufacturer, has 45,000 employees across the United States and
manufacturing facilities in several states. ECF 66 at 143.
Both Alstom and Siemens, however, said in their proposals that certain non-domestic
components would be required due to the unavailability of high-speed rail equipment in the United
States. 88 Fed. Reg. at 89016. As Brightline later explained in its request for a waiver from the
Buy America requirements, “[t]here are currently no trainsets or infrastructure in production or
use within the US capable of supporting speeds in excess of 160 mph in revenue service.” ECF 66
at 95. At the time of submitting the proposal, Brightline had not yet decided if it would use Siemens
or Alstom trains, so it requested waivers for both companies’ proposals. See 88 Fed. Reg. at 89016.
As for the trains the two companies planned to use, Siemens proposed its Velaro NOVO
Electric-Multiple-Unit. See ECF 66 at 61. That high-speed train was already in service in Europe
and was “capable of meeting the performance requirements” of Brightline’s project. Id. Siemens
planned to manufacture and assemble the first two trains in Germany with American workers
2 The Buy America regulations define rolling stock as “transit vehicles such as buses, vans, cars, railcars, locomotives,
trolley cars and buses, and ferry boats, as well as vehicles used for support services.” 49 C.F.R. § 661.3.
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present to observe the process, and then manufacture the remaining eight trains—Brightline
needed ten total—at a new factory to be constructed in Nevada. See id. In addition to
manufacturing the first two trains in Germany, Siemens said that the car shells for all ten trains
would need to be sourced abroad. See 88 Fed. Reg. at 89016.
Alstom, for its part, proposed to adapt its Avelia train for the project. See id. While the
Avelia train could not yet meet Brightline’s requirements, Alstom said it would increase the
“power capacity and traction” of the Avelia trains “to achieve the required speed” and
“performance capability” for the Brightline project. ECF 66 at 61–62. Alstom’s ten trains would
be manufactured at one of its facilities in New York. See 88 Fed. Reg. at 89016. But Alstom, like
Siemens, said that the car shells needed for its proposal were domestically unavailable. See id. It
said the same of the brake control units it planned to use. See id.
C. The FRA Waiver Decision
In early December 2023, the FRA awarded the NVDOT-Brightline Project a grant of up to
three billion dollars. See 89 Fed. Reg. at 45935. Later that month, the FRA issued a Notice of
Proposed Nonavailability Waiver of Buy America Requirements for the NVDOT-Brightline
project and invited public comment. See 88 Fed. Reg. at 89015. The notice explained that NVDOT
and Brightline “conducted due diligence and performed thorough market research to adequately
consider qualifying alternate items, products, or materials,” and, having done so, believed that “a
waiver [was] justified because no manufacturers exist in the United States that can produce the
components described above, and that the use of these non-domestic components is necessary to
ensure the safety and reliability of the high-speed rail system.” 88 Fed. Reg. at 89016–17. NVDOT
and Brightline also explained that the waiver would only represent less than 5 percent of the total
expenditures for the project, with over 95 percent being spent on domestically sourced products
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and labor. Id. at 89017. The FRA opened a 30-day public comment period on the proposed Siemens
and Alstom waivers.
On May 1, 2024, Brightline publicly announced its selection of Siemens as the preferred
vendor to supply the trains for the project. ECF 66 at 139; see also Brightline West Selects Siemens
to Manufacture High Speed Rail Train Sets, Brightline (May 1, 2024), https://perma.cc/GP7F-
5NHU. Later that month, on May 24, 2024, the FRA published its final notice granting a waiver
to Brightline’s selected vendor, Siemens. 89 Fed. Reg. at 45934. The notice explained that the
FRA did not make any significant changes from the proposed waiver, but that “the final waiver
reflects the needs for the project given Brightline West’s decision to select Siemens as its preferred
rolling stock vendor.” Id. at 45936. The FRA noted, however, that “the Alstom proposal also meets
the statutory criteria for a waiver based on domestic nonavailability,” as “[n]either vendor would
be capable of delivering the rolling stock for the FRA-funded project without a waiver based on
domestic nonavailability.” Id.
The final waiver also responded to the public comments—including comments from
Alstom—that the FRA received. See 89 Fed. Reg. at 45936–38. Some of those commenters
“specifically” pointed to what the commenters said were Alstom’s “domestic production
capabilities.” Id. at 45936. Responding, the FRA acknowledged that “Alstom represented that it
would be able to manufacture and deliver the trainsets within Brightline West’s project schedule.”
Id. The FRA concluded, however, that although “Alstom’s facilities in New York are capable of
producing domestic rolling stock and trainset components for conventional rail and transit
systems[,] . . . there are currently no domestic manufacturers of high-speed trainsets (i.e., trainsets
that are service proven at speeds in excess of 125 mph)” and that “Alstom does not currently
manufacture high-speed rail trainsets at its facilities in New York.” Id. And in explaining why
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Siemens could build the first two trains abroad, despite Alstom’s plan to build all ten domestically,
the FRA clarified that “the two proposals from Siemens and Alstom . . . are for two distinct trainset
designs and technology”: for Siemens, the Velaro high-speed train, and for Alstom, an adapted
version of the Avelia train. Id. at 45937. Because “these trainsets involve different technologies,”
the FRA concluded, it was satisfied that there was “currently” no domestic capacity to build the
Velaro high-speed train. Id. The waiver went into effect on May 29, 2024.
D. This Lawsuit
Around two months later, Alstom filed this suit against the FRA, Michael Lestingi in his
capacity as the FRA’s acting Administrator, the U.S. Department of Transportation, and Sean
Duffy in his capacity as Secretary of Transportation.3 ECF 1. Alstom asserted two claims under
the Administrative Procedure Act. First, Alstom alleges, the FRA exceeded its statutory authority
and contravened the Buy America statute when granting the May 2024 waiver. ECF 1 ¶ 51–52.
Second, the FRA’s decision was allegedly arbitrary and capricious for failing to explain the
relevance of the Alstom-Siemens design and technology differences, failing to address some of
Alstom’s comments from the public comment period, and issuing a waiver decision inconsistent
with relevant Office of Management and Budget guidance. Id. ¶ 58. Alstom seeks vacatur of the
FRA’s rolling stock waiver to Siemens for the foreign manufacture of its first two trainsets, a
declaratory judgment that the waiver violates the Administrative Procedure Act, and permanent
injunctive relief enjoining the FRA from disbursing funds to NVDOT and Brightline to the extent
those funds apply to trains manufactured by Siemens abroad. Id. at 15.
3 At the time the complaint was filed, Amit Bose served as FRA Administrator and Pete Buttigieg served as Secretary
of Transportation. Pursuant to Fed. R. Civ. P. 25(d), however, when a public officer sued in his official capacity ceases
to hold office while an action is pending, “[t]he officer’s successor is automatically substituted as a party.”
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In August 2024, Alstom moved for summary judgment. ECF 12. Brightline and Siemens
then moved to intervene in this case, which the Court allowed without opposition. Oct. 10, 2024
Min. Order. Around that same time, the Government moved to dismiss and cross-moved for
summary judgment, contending that Alstom lacks standing to bring suit and that its claims
otherwise fail on the merits. ECF 35. Siemens and Brightline promptly filed their own motions to
dismiss for lack of subject matter jurisdiction, or in the alternative for summary judgment. ECF 39;
ECF 44.
While briefing was underway on those motions, Alstom moved for a preliminary
injunction. ECF 51. At a hearing on that motion, the Government made a representation that
satisfied Alstom that it no longer needed an immediate ruling on the preliminary injunction motion,
but instead would be satisfied if the Court simply resolved the pending cross motions for summary
judgment and to dismiss. See H’rg Tr. 62:1–10; see also ECF 75 at 2–3. The Court therefore denied
the motion for a preliminary injunction without prejudice, leaving it to Alstom to raise it again if
it had concerns about irreparable harm. See H’rg Tr. 83:19–25. Alstom eventually did so, and its
renewed motion for a preliminary injunction is now pending, as well. See ECF 75. Because the
cross motions for summary judgment and motion to dismiss are ripe, and because the Court
ultimately concludes that it must dismiss the case for lack of jurisdiction, it does not address
Alstom’s renewed motion for a preliminary injunction.
II. 	LEGAL STANDARD
When assessing a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule
12(b)(1), “[i]t is to be presumed that a cause lies outside [the federal courts’] limited jurisdiction.”
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). “Under settled law, the
District Court may in appropriate cases dispose of a motion to dismiss for lack of subject matter
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jurisdiction under Fed. R. Civ. P. 12(b)(1) on the complaint standing alone,” or “the court may
consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint
supplemented by undisputed facts plus the court’s resolution of disputed facts.” Herbert v. Nat’l
Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992).
III. 	ANALYSIS
As the party invoking federal jurisdiction, Alstom bears the burden of establishing
standing. Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014). To do so, Alstom “must
show (i) that [it] suffered an injury in fact that is concrete, particularized, and actual or imminent;
(ii) that the injury was likely caused by the defendant[s]; and (iii) that the injury would likely be
redressed by judicial relief.” TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021). Because
Alstom is seeking declaratory and injunctive relief, “past injuries alone are insufficient to establish
standing.” Dearth v. Holder, 641 F.3d 499, 501 (D.C. Cir. 2011). Rather, the company must show
either that it “is suffering an ongoing injury or faces an immediate threat of injury.” Id.
Alstom argues it has three separate cognizable injuries. The company only need establish
one of those injuries to have standing. See Nucor Steel-Ark. v. Pruitt, 246 F. Supp. 3d 288, 292 n.3
(D.D.C. 2017) (“In order to demonstrate that it has standing to sue, a plaintiff needs to identify
only one type of cognizable injury-in-fact.”). First, Alstom asserts it suffered a “loss of revenue
from not being selected to provide trainsets for the Project.” ECF 50 at 16. Alstom claims that
absent the waiver, Alstom would have been selected for the Brightline project and as a result
financially benefitted. Second, Alstom asserts that it has competitor standing because the FRA
waiver caused increased competition by “permit[ing] Siemens to compete against Alstom with a
proposal Alstom otherwise would not have been required to compete with.” Id. at 12. Third,
Alstom contends it suffered an injury because the FRA waiver impacted Alstom’s ability to
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participate in a lawful bidding process. Id. at 13. The Court addresses each theory in turn and
concludes that none offers Alstom a viable path to bring this suit.
A. Lost Revenue
Alstom’s first theory turns on the company having lost out on the contract that Siemens
won. Alstom alleges that, had the FRA denied the Siemens waiver, “Alstom would have been the
only bidder that could have performed the lucrative, government-funded contract . . . and its
hundreds of employees in New York would have been the ones to handle the work.” ECF 1 ¶ 7;
see id. ¶ 48 (“If the FRA had followed the law, then [Alstom] would be the only bidder who could
legally supply rolling stock for the Project.”). As a result of not being selected for the contract,
Alstom “stands to lose out on millions of dollars of income under the Project.” Id. Alstom argues
that these “monetary losses, in the form of lost sales,” are “economic harm that clearly constitutes
an injury-in-fact.” ECF 50 at 16. And Alstom is of course correct that its lost revenue qualifies as
“an injury-in-fact for standing purposes.” Carpenters Indus. Council v. Zinke, 854 F.3d 1, 5
(D.C. Cir. 2017) (Kavanaugh, J.) (“A dollar of economic harm is [] an injury-in-fact for standing
purposes.”). But this theory of standing falters when it comes to causation and redressability.
That result is unsurprising, given the chain of events that connects Alstom’s pocketbook
injury to the challenged agency action. It was Brightline that decided not to award Alstom the
contract. In this lawsuit, however, Alstom is challenging a decision made by the FRA, not
Brightline. Because Alstom is “challeng[ing] government action”—the FRA’s grant of the
waiver—“in order to remedy an injury caused by a third party”—Brightline’s decision—it is
“substantially more difficult” for Alstom to establish that the “challenged government action”
caused its economic injury. Johnson v. Becerra, 111 F.4th 1237, 1244 (D.C. Cir. 2024). In these
circumstances, Alstom must show that the FRA’s grant of the waiver was “at least a substantial
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factor motivating” Brightline’s decision not to use Alstom, and that there is “little doubt” that a
favorable decision from this Court can redress Alstom’s economic injury. Id. These are “significant
barrier[s]” that “routinely” lead courts to “reject[] suits for injunctive relief that are directed against
executive agencies but that seek to change the behavior of third parties.” Id. Alstom cannot clear
either barrier here.
As for causation, Alstom’s story goes like this. “[G]iven the relative amount of federal
funding at stake,” Alstom begins, “a denial of Siemens’s waiver request would have altered
Brightline’s calculus.” ECF 50 at 18. Brightline therefore “would not have proceeded with
Siemens on the same terms if the waiver had been denied,” Alstom reasons. Id. at 17. And finally,
because “Brightline obtained technical bids from both Siemens and Alstom, and then requested
waivers for both,” Alstom was a serious contender for the project. Id. at 18 (emphasis omitted). It
therefore “does not require speculation,” Alstom concludes, to assume that had Siemens been
denied the waiver, “Alstom had a better chance of receiving the contract.” Id. at 17.
This theory is doubly flawed. For one, Alstom has not offered any evidence that it could in
fact meet Brightline’s requirements for the project. As the FRA noted in ruling on the waiver,
“Alstom [did] not [at that time] manufacture high-speed rail trainsets” in New York capable of
meeting Brightline’s needs and would have to “adapt” an existing train model “for high speed.”
89 Fed. Reg. at 45936. Siemens’s proposal, by contrast, proposed to use high-speed trains that it
already produced. See 89 Fed. Reg. at 45937 (discussing the “Velaro NOVO EMU”). The lack of
evidence suggesting Alstom could supply Brightline with the trains it needed strongly suggests
that, even if Siemens had not received the waiver, Brightline would not have contracted with
Alstom. In other words, as the Government puts it, it is “a matter for pure speculation to assume
that Brightline would have chosen Alstom for the contract, rather than re-scoping the contract,
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extending the project schedule to accommodate Siemens, or reopening the procurement process to
invite additional proposals” ECF 55 at 5.
For another, the timing of Brightline’s decision to use Siemens rather than Alstom
undermines the plausibility of the causal chain Alstom has laid out. Recall that the FRA issued the
waiver after Brightline announced that it decided to use Siemens’s trains. See supra 7; ECF 66 at
139 (Brightline’s letter advising the FRA of its May 1, 2024, announcement of its selection of
Siemens); 88 Fed. Reg. at 45934 (FRA’s final waiver became effective on May 29, 2024). In other
words, Alstom decided to use Siemens before it knew that the company would receive the waiver.
Viewed most favorably to Alstom, that sequence suggests Brightline assumed that the FRA could
grant Brightline the waiver it applied for—meaning both Alstom and Siemens would receive a
waiver. But even on that view, the timing reinforces the conclusion that Brightline’s decision was
motivated by other factors that distinguished Siemens from Alstom. See Cubic Transp. Sys., Inc.
v. Mineta, 357 F. Supp. 2d 261, 264 (D.D.C. 2004) (concluding that plaintiff’s alleged injury was
not “fairly traceable” to government action where Buy America decision was made “after the
competitive procurement process was complete”).
Resisting this conclusion, Alstom notes that although Brightline announced its selection of
Siemens on May 1, 2024— prior to the May 29, 2024 waiver decision—the final agreement was
not consummated until after the waiver. See ECF 50 at 15 & n.4 (citing Limited Remarketing
Memorandum, Brightline West Passenger Rail Project Revenue Bonds Series 2020A-4, at 13 (July
25, 2024), available at bit.ly/40jiBg8 (“On May 31, 2024, the Company entered into a rolling
stock purchase agreement with Siemens to supply trainsets for the Project, after a multi-year global
qualification process.”)). At most, that fact is consistent with a speculative possibility that
Brightline wanted to retain some flexibility if Siemens did not get a waiver. But Alstom presents
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no evidence that Brightline would have awarded the grant to Alstom had the FRA not granted the
waiver. Without any such evidence, it is “entirely conjectural” whether denial of the waiver would
have led Brightline to select Alstom. Crete Carrier Corp. v. EPA, 363 F.3d 490, 494 (D.C. Cir.
2004). Alstom has therefore failed to put forward the requisite “substantial evidence of a causal
relationship between the government” action and Brightline’s decision not to contract with Alstom.
Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ. 366 F.3d 930, 941 (D.C. Cir. 2004), abrogated
on other grounds by Perry Cap. LLC v. Mnuchin, 864 F.3d 591, 620 (D.C. Cir. 2017).
That conclusion about causation leads inevitably to the conclusion that Alstom has failed
to establish redressability for this theory of injury, either. See Carpenters Indus. Council, 854 F.3d
at 6 n.1 (“Causation and redressability typically overlap as two sides of a causation coin. . . . After
all, if a government action causes an injury, enjoining the action usually will redress that injury.”).
For the same reasons that the Court cannot conclude that the grant of the waiver to Siemens was a
“substantial factor” in Alstom not being selected, the Court has far more than a “little doubt” that
vacating the waiver would lead to Brightline choosing to use Alstom’s trains now. Johnson,
111 F.4th at 1244. Most fundamentally, Alstom’s proposal involved a “distinct trainset design[]
and technology” from the Siemens trains that Brightline chose, and nothing this Court can do
would change the fact that “Alstom does not currently manufacture high-speed rail trainsets at its
facilities in New York” that meet Brightline’s requirements. 89 Fed. Reg. at 45936–37. That
conundrum leaves the Court with plenty of reason to think that, should it vacate the waiver,
Brightline would not choose to use Alstom’s trains, but instead opt for “one of the[] alternative[]”
paths available to it. ECF 55 at 11; see ECF 35-1 at 2–3 (describing these alternatives).
What’s more, because of the particular facts of this case, Alstom would likely have failed
to establish redressability even if it could have established causation. That is because much water
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has flowed under the bridge since the FRA’s waiver decision. After Brightline selected Siemens,
Siemens “beg[a]n working towards the ultimate delivery of the rolling stock,” and Brightline has,
unsurprisingly, “been paying Siemens for its work.” ECF 63-1 ¶ 17. More generally, Brightline
has been incurring expenses on the project—$140 million as of November 2024—since it was
selected for the FRA grant. Id. ¶ 11. And Brightline has made commitments that it would be
obligated to pay even if the Court vacated the waiver and enjoined the FRA from disbursing funds
that would be used for purchasing trains from Siemens. Id. ¶¶ 13–14; see ECF 1 at 15 (complaint
requesting that relief). Because of this progress and these commitments, the Court has good reason
to think that Brightline would not abandon its plan to use Siemens if the waiver was vacated but
would instead try to find a path forward that does not sharply disrupt its already underway work.
In fact, Brightline’s counsel made that exact representation to the Court, explaining that the
company “can’t go back at this point” and that there is therefore “zero chance that Brightline is
going to proceed with Alstom.” H’rg Tr. 34:19–23. So even if the waiver may have been a factor
in Alstom losing the contract in May 2024, it is wildly speculative—if not downright fanciful—to
think that vacating the waiver today would lead to Brightline selecting Alstom for the project,
thereby redressing Alstom’s economic injury.4
Alstom’s reliance on the D.C. Circuit’s decision in Telephone and Data Systems, Inc. v.
FCC, 19 F.3d 42 (D.C. Cir. 1994), and decisions that follow it cannot overcome this conclusion
about redressability. See ECF 50 at 19. In Telephone and Data Systems, the court held that a
company had standing to challenge an order of the Federal Communications Commission because
vacatur of the order was a “necessary first step on a path that could ultimately lead to relief fully
4 The timing of the resolution of the pending motions has not affected the redressability analysis. The declaration
documenting Brightline’s investments in the project and the company’s representation about the possibility of using
Alstom were both put before the Court less than a month after Alstom first moved for a preliminary injunction. See
ECF 51 (motion filed November 15, 2024); ECF 63-1 (filed November 26, 2024); Dec. 13, 2024 Min. Entry (hearing).
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redressing” the company’s injury. 19 F.3d at 47. Alstom says the same is true here—vacatur of the
waiver is a “necessary first step” to Alstom being awarded the contract by Brightline. ECF 50 at
19. But the court in Telephone and Data Systems explained that its “necessary first step” rule
applied because the “contingency upon which the Commission relie[d] to defeat standing”—there,
a subsequent decision from the agency after remand that was favorable to the company—“relate[d]
solely to the Commission’s own conduct in the future, rather than to the unfettered choices made
by independent actors.” 19 F.3d at 47. In that latter category of cases, the court reasoned, the “more
exacting scrutiny of redressability” for “third-party standing cases” applies. Id. This case falls
squarely into that latter category: It is Brightline—not the FRA—who will decide whether to award
the contract to Alstom, thereby redressing Alstom’s economic injury. The more “exacting”
standard therefore applies, id., and Alstom cannot satisfy it.
Finally, Alstom’s resort to the rule that “a party has standing to challenge government
action that permits or authorizes third-party conduct that would otherwise be illegal” is unavailing.
Nat’l Wrestling Coaches Ass’n, 366 F.3d at 940; see ECF 50 at 17–18 (invoking this rule). The
alleged “injurious private conduct” at play here, Tel. & Data Sys., Inc., 19 F.3d at 47, is
Brightline’s rejection of Alstom for its project. The FRA waiver only permitted Brightline to apply
federal funding toward the cost of Siemens’s trains. It had no bearing on the lawfulness of
Brightline’s underlying decision to select or reject Alstom. As Brightline explains, “Alstom’s
complaint never once alleges (nor can it allege) that Brightline’s decision to select Siemens”—let
alone reject Alstom, which is the conduct that caused Alstom’s economic injury—“was an illegal
action.” ECF 58 at 14. Confirming the point: Even if the Court vacated the waiver decision,
Brightline would have every right not to contract with Alstom. Alstom therefore cannot show that
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the relief it seeks “would make the injurious conduct of third parties complained of in this case
illegal.” Animal Legal Def. Fund, Inc. v. Glickman, 154 F.3d 426, 441 (D.C. Cir. 1998).
Because Alstom has offered this Court no reason to believe that the waiver caused it to lose
out on the contract with Brightline or that it would be awarded the contract if the Court vacated
the waiver, the company has not established standing vis-à-vis its lost revenue.
B. Competitive Injury
Alstom’s next theory is that it has standing “because the FRA’s waiver . . . increased
competition in a market in which Alstom competes.” ECF 50 at 11. Alstom is correct that
“increased competition represents a cognizable Article III injury” because an “actual or imminent
increase in competition” constitutes an injury in fact. MD Pharm., Inc. v. DEA, 133 F.3d 8, 11
(D.C. Cir. 1998); Am. Inst. of Certified Pub. Accts. v. IRS, 804 F.3d 1193, 1197 (D.C. Cir. 2015).
That said, although “the competitor standing doctrine supplies the link between increased
competition and tangible injury[, it] does not, by itself, supply the link between the challenged
conduct and increased competition.” Air Excursions LLC v. Yellen, 66 F.4th 272, 281 (D.C. Cir.
2023). So although an increase in competition is a cognizable injury, Alstom must still establish
“a causal link between” the waiver decision and the alleged increase in competition. Id. at 279.
And Alstom must also establish that its competitive injury is redressable, which in this context
means that the relief it seeks “would . . . reduce competition in th[e] market.” Wash. All. of Tech.
Workers v. U.S. Dep’t of Homeland Sec., 50 F.4th 164, 177 (D.C. Cir. 2022).
Alstom’s competitor standing theory runs aground on these requirements. True, if the FRA
incorrectly granted a waiver to Siemens—which the Court assumes it did in assessing standing,
see In re Thornburgh, 869 F.2d 1503, 1511 (D.C. Cir. 1989)—the company certainly received a
“windfall,” Air Excursions LLC, 66 F.4th at 280. But the mere fact that the government conferred
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some allegedly unlawful advantage to a competitor, even one that “skew[s] [the] playing field,”
does not “supply the link between the challenged conduct and increased competition.” Id. at 281.
Instead, Alstom needs to “connect” Siemens’s receipt of the benefit with a “specific competitive
injury.” Id. at 280.
Alstom has failed to make that connection. The reason why will sound familiar. “Siemens
and Alstom competed in Brightline’s procurement process” before the FRA’s final waiver
decision, so the waiver could not have “alter[ed] their competitive status.” ECF 55 at 3. In other
words, the competition between Siemens and Alstom was done-and-dusted by the time the FRA
made its decision. And while it is “possible” that Brightline’s expectation that Siemens would
receive the waiver played a role in Siemens’s competition with Alstom, the “more likely”
explanation is that Brightline chose Siemens because it had proposed building an existing type of
high-speed train that met Brightline’s expectations whereas Alstom had not. Air Excursions LLC,
66 F.4th at 278.
Equally problematic for Alstom’s theory is its inability to connect the waiver to an
“ongoing” or future competitive injury, as is required because the company is seeking only
forward-looking relief. Dearth, 641 F.3d at 501. This too is for a now familiar reason. The
company has not offered any reason to think that it can compete with Siemens for the contract at
this stage. Given Brightline’s investment in the project and Siemens’s progress on fulfilling the
contract, there is little reason to think that Alstom could plausibly win the job at this point. See
supra 14–15. Because Alstom is not in “direct and current” competition with Siemens for the
contract, the “challenged government action”—the waiver—cannot possibly be causing “an actual
or imminent increase in competition” for Alstom. Air Excursions LLC, 66 F.4th at 279–80.
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C. Bidding Process Injury
Finally, Alstom’s third theory is that it suffered an injury in the form of “a loss of the right
to participate in a legally valid procurement process.” ECF 50 at 13. Once again, Alstom’s
argument starts out with a true statement of law: “A bidder in a government auction has a right to
a legally valid procurement process; a party allegedly deprived of this right asserts a cognizable
injury.” U.S. Airwaves, Inc. v. FCC, 232 F.3d 227, 232 (D.C. Cir. 2000). That, Alstom goes on, is
what happened here. The wrongful FRA waiver gave Siemens an unlawful advantage to build its
first two trains abroad, and had Alstom been allowed the same opportunity, it could have submitted
a different proposal with lower costs from overseas manufacturing. ECF 50 at 14 (citing ECF 66
at 141). And, as Alstom rightly says, to establish standing under this theory a plaintiff “need not
demonstrate that it would be successful if the contract were let anew but only that it was able and
ready to bid and that the [challenged conduct] prevented it from doing so on an equal basis.” U.S.
Airwaves, 232 F.3d at 232. So, Alstom concludes, it is of no matter whether Alstom would have
won the contract absent the unlawful waiver; it is sufficient that—on Alstom’s telling—the waiver
decision rendered the process unfair.
As the Government and intervenors point out, this case does not involve government
procurement. See ECF 58 at 11 (noting that the cases upon which Alstom relies “involve direct
procurements or auctions conducted by federal agencies”). Brightline, not the federal government,
was choosing between Siemens and Alstom. The injury at issue in government procurement cases,
however, is “the denial of equal treatment” by the government, and it is not clear to the Court how
the government can be said to have prevented private bidding “on an equal basis” when there is
no government procurement underway. DIRECTV, Inc. v. FCC, 110 F.3d 816, 830 (D.C. Cir.
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1997). Alstom has not pointed the Court to any authority applying this theory of standing to private
contracting disputes, either.
But even if the Court assumes that a private party’s denial of a fair bidding process inflicts
an injury in fact on a bidder, this theory, like the others, suffers from traceability and redressability
defects. The Circuit’s decision in National Mall Tours of Washington v. U.S. Department of
Interior, 862 F.3d 35 (D.C. Cir. 2017), is instructive on this front. There, a company that provided
guided tours of the National Mall alleged that the Park Service improperly awarded a contract to
its competitor because it failed to notify congressional committees of the proposed contract as
required by a federal statute. See id. at 37. The court “recognized that a disappointed bidder has
the right to a legally valid procurement process, the deprivation of which constitutes a cognizable
injury.” Id. at 44. But the disappointed company nevertheless failed to establish standing. The Park
Service’s 	allegedly 	unlawful 	failure 	to 	submit 	the 	“contract 	to 	the 	committees 	was
not . . . until after the agency made its award decision and the competitive process was effectively
over.” Id. Thus, even if the agency failed to follow the law, the company “ha[d] not shown how
that failure caused it any cognizable injury.” Id. at 45. As previously explained, Alstom
participated in the entirety of Brightline’s procurement process. The FRA waiver came only after
Brightline rejected Alstom and selected Siemens. So the agency action here, too, took place after
“the competitive process was effectively over.” Id. at 44. Like in National Mall Tours, then,
Alstom has failed to establish any “connection between” the FRA’s waiver decision and
Brightline’s “decision to award the contract to” Siemens. Id. at 45.
Nor has Alstom explained how this Court could remedy its “fair procurement” injury. In
government procurement cases, the redressability requirement is often easily satisfied because “it
is obvious that the court [can] redress [the plaintiff’s] injuries by ordering” the agency to conduct
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the procurement process “anew.” High Plains Wireless, L.P. v. FCC, 276 F.3d 599, 605 (D.C. Cir.
2002). But that method of redress does not work here. Alstom has never suggested that this Court
could order Brightline to open up the procurement process again and consider bids from companies
other than Siemens. The remedy that usually redresses the “fair procurement” injury is therefore
not available in this case, and Alstom has not suggested any other remedy that would redress this
injury. This theory, like Alstom’s two others, therefore fails.
* 	* 	*
Defendants’ and intervenors’ motions to dismiss for lack of subject matter jurisdiction,
ECF 35, ECF 39, and ECF 44, are GRANTED, and as a result Alstom’s complaint is
DISMISSED without prejudice. Accordingly, Alstom’s motion for summary judgment, ECF 12,
and renewed motion for a preliminary injunction, ECF 75, are DENIED as moot. Alstom’s prior
motion for a preliminary injunction, ECF 51, and the motions for a hearing and status conference
related to that motion, ECF 52 and ECF 53, are also DENIED as moot. A separate order
accompanies this memorandum opinion.
SO ORDERED.
__________________________
JIA M. COBB
United States District Judge
Date: December 16, 2025
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