Greyhound Lines v. City of New Orleans, Civil Action No. 98-3352.

Citation29 F.Supp.2d 339
Decision Date03 December 1998
Docket NumberCivil Action No. 98-3352.
PartiesGREYHOUND LINES, INC. v. The CITY OF NEW ORLEANS, THROUGH THE DEPARTMENT OF PUBLIC UTILITIES.
CourtUnited States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)

Geoffrey J. Orr, Frederick Robert Campbell, Campbell, McCranie, Sistrunk, Anzelmo & Hardy, Metairie, LA, for Joey Bennett, Todd E. King, Larry Green, Reginald Goins, George Bastin, Edwin Traufant, Jr., Harold Nash, Greyhound Lines, Inc.

ORDER AND REASONS

FELDMAN, District Judge.

Before the Court is plaintiff Greyhound Lines, Inc.'s request for a preliminary and permanent injunction against the City of New Orleans to restrain enforcement of two City Code provisions requiring bus drivers to obtain a "certificate of public necessity and convenience" before operating in the City. For the following reasons, the injunction is GRANTED.

Background

Greyhound Lines, Inc., seeks an injunction against the City of New Orleans to restrain enforcement of two sections of the City Code, 162-81, 162-151,1 requiring bus operators to obtain a "certificate of public necessity and convenience" before operating on City streets. Pursuant to the Code, the City requires bus drivers to pay a fee to obtain a permit for the operation of buses within the City.

Greyhound maintains a national fleet of passenger buses that operate on interstate and intrastate routes. It does not have any locally registered or housed buses in New Orleans, it simply uses Union Station when needed. All its buses are registered with the Department of Transportation, bearing ICC registration numerals on each bus.2 Greyhound has not obtained the permits required by the City and the City Code.

In September of this year, several Greyhound drivers were operating buses that had been chartered to pick up and transport passengers from their hotels to the Convention Center in New Orleans. The charter was with the "Convention Store's" clients. While delivering their passengers at the Convention Center, all drivers were cited for violating the City Code.3 The drivers have been arrested in some cases, and the City intends to continually enforce the Code provisions.

Trials have been scheduled in the local Municipal Court for each driver. Plaintiffs have filed a motion to quash the citations, but a Municipal Court judge refused to entertain a hearing with respect to one driver. Greyhound seeks to restrain enforcement of the Code provisions, claiming that they are preempted by the Transportation Equity Act for the 21st Century, Pub.Law. 105-178, amending 49 U.S.C. § 14501(a). All remaining hearings and trial dates in Municipal Court have been continued until after this Court's ruling on the issuance of a preliminary and permanent injunction. Law and Application

I. Injunctive Relief

Injunctive relief4 is an appeal to this Court's equity jurisdiction; it triggers the Court's sound discretion. Meredith v. City of Winterhaven, 320 U.S. 228, 235, 64 S.Ct. 7, 88 L.Ed. 9 (1943). It is a fundamental teaching of equity that injunctive relief is unavailable when the party seeking relief has an adequate remedy at law and will not suffer irreparable injury if the requested equitable relief is denied. O'Shea v. Littleton, 414 U.S. 488, 499, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). This doctrine, however, does not prevent federal courts from enjoining municipal officers "who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected an unconstitutional act, violating the Federal Constitution." Morales v. Trans World Airlines, 504 U.S. 374, 381, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992) (quoting Ex parte Young, 209 U.S. 123, 145-47, 28 S.Ct. 441, 52 L.Ed. 714 (1908)). The threat of continued enforcement actions and repetitive penalties makes alternative remedies at law virtually unavailable for Greyhound. See id.5

A preliminary injunction may be granted only if four factors are established: (1) a substantial likelihood of success on the merits; (2) a substantial threat that failure to grant the injunction will result in irreparable injury; (3) that the threatened injury outweighs any damage that the injunction may cause the opposing party; and (4) that the injunction will not disserve the public interest. Allied Marketing Group, Inc. v. CDL Marketing, Inc., 878 F.2d 806, 809 (5th Cir. 1989). The standard for a permanent injunction is essentially identical, with the exception that one must prove actual success on the merits. Amoco Prod. Co. v. Village of Gambell, Alaska, 480 U.S. 531, 546 n. 12, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987). The parties have been given notice and opportunity to be heard and to brief this matter, and agreed to proceed to a trial on the merits. Fed.R.Civ.P. 65(a)(2).

Because this case involves preemption, a finding of success on the merits implicitly carries with it a determination that the other three requirements have been satisfied. See Trans World Airlines, Inc. v. Mattox, 897 F.2d 773, 783 (5th Cir.1990). Indeed, when considering the balance of hardship, enjoining a preempted ordinance would not subject the City to any undue hardship or penalty because the injunction would require only the City's compliance with federal law under the Supremacy Clause. See Mitchell v. Pidcock, 299 F.2d 281, 287 (5th Cir.1962) (noting that a permanent injunction requiring compliance with federal law does not constitute a hardship for it only "requires the defendants to do what the Act requires anyway — to comply with the law"). Accordingly, the Court turns to the merits of Greyhound's preemption argument.

II. Preemption

The Supremacy Clause of the United States Constitution provides that the laws of the United States "shall be the supreme Law of the Land ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const. art. VI, cl. 2. Thus, a state law or municipal ordinance that conflicts with federal law is without effect. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992); Wisconsin Pub. Intervenor v. Mortier, 501 U.S. 597, 605, 111 S.Ct. 2476, 115 L.Ed.2d 532 (1991) ("[F]or the purposes of the Supremacy Clause, the constitutionality of local ordinances is analyzed in the same way as that of statewide laws.").

The touchstone of the preemption inquiry is Congressional intent; our republican structure instructs that local regulations established under the historic police powers of the States are not to be displaced by federal law "unless that was the clear and manifest purpose of Congress." Mortier, 501 U.S. at 605, 111 S.Ct. 2476 (citing Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)). Federal law may preempt state and local laws in three distinct ways: "(1) Congress expressly preempts state law, (2) Congressional intent to preempt is inferred from the existence of a pervasive regulatory scheme, or (3) state law conflicts with federal law or interferes with the achievement of federal objectives." Hodges v. Delta Airlines, Inc., 44 F.3d 334, 335 n. 1 (5th Cir.1995).

The parties do not contend that this case involves implied preemption. Thus, the Court focuses on the express preemptive language in the statutory scheme, 49 U.S.C. § 14501. Because the preemption question is informed by legislative intent, the Court begins with "the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose." Morales, 504 U.S. at 383, 112 S.Ct. 2031 (quotation omitted). For this Court, words still mean what they say; unartfully used words will be given a meaning that does not do violence to the legislative scheme or public policy.

A.

Measuring the scope of 49 U.S.C. § 14501(a) requires that it be read in the context of the Interstate Commerce Act of which it is a part. See Bennett v. Spear, 520 U.S. 154, ___, 117 S.Ct. 1154, 1166, 137 L.Ed.2d 281 (1997) (noting that provisions must be read in context of entire statute). Unfortunately, the Act, along with its various amendments is an excellent example of poor legislative draftsmanship, filled with exceptions, exemptions, and cross-references. See 426 Bloomfield Ave. Corp. v. City of Newark, 904 F.Supp. 364, 368 (D.N.J.1995).

The preemption clause of 49 U.S.C. § 14501(a), enacted as part of the recent TEA-21 amendments, states:

(a) Motor carriers of passengers.

(1) Limitation on State law. — No State or political subdivision thereof and no interstate agency or other political agency of 2 or more States shall enact or enforce any law, rule, regulation, standard, or other provision having the force and effect of law relating to — ***

(C) the authority to provide intrastate or interstate charter bus transportation.

This paragraph shall not apply to intrastate commuter bus operations.

49 U.S.C. § 14501(a)(1)(c). A "motor carrier" is defined as a "person providing motor vehicle transportation for compensation." 49 U.S.C. § 13102(12). Thus, under the plain and ordinary reading of this provision, federal law expressly preempts local ordinances, such as City Code sections 162-81, 162-151, that relate to intrastate charter bus operations. Cf. R. Mayer of Atlanta, Inc. v. City of Atlanta, No. 97-9174, 158 F.3d 538, 1998 WL 740052, at *1 (11th Cir.1998) (holding that another recently added preemption provision, 49 U.S.C. § 14501(c), expressly preempts local regulation relating to consensual towing services).6

There are express limitations to the preemptive sweep of this law, but they cannot save the City ordinances. The statute "does not apply to intrastate commuter bus operations." 49 U.S.C. § 14501. Although the term is not defined in the Act, an ordinary reading of "commuter" suggests regular travel to and from work. In the pre-amendment Transportation Act, "commuter bus operations" was defined as "short-haul regularly scheduled passenger service provided by motor vehicle in metropolitan...

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