Selevan v. N.Y. Thruway Auth.

• Decision Date: 27 March 2013
• Docket Number: Docket No. 11–5370–cv.
• Citation: 711 F.3d 253
• Parties: Robert SELEVAN, individually and on behalf of all others similarly situated, Anne Rubin, individually and on behalf of all others similarly situated, David Talarico, Samuel Taub, Plaintiffs–Appellants, v. NEW YORK THRUWAY AUTHORITY, John L. Buono, individually and as Chief Executive and Chairman of the New York Thruway Authority, Defendants–Appellees.
• Court: U.S. Court of Appeals — Second Circuit

711 F.3d 253

Robert SELEVAN, individually and on behalf of all others similarly situated, Anne Rubin, individually and on behalf of all others similarly situated, David Talarico, Samuel Taub, Plaintiffs–Appellants,

v.NEW YORK THRUWAY AUTHORITY, John L. Buono, individually and as Chief Executive and Chairman of the New York Thruway Authority, Defendants–Appellees.

Docket No. 11–5370–cv.

United States Court of Appeals, Second Circuit.

Argued: Oct. 23, 2012.

Decided: March 27, 2013.

Harley J. Schnall (Seth R. Lesser, Fran L. Rudich, Klafter, Olsen & Lesser LLP, Rye Brook, NY; Brian L. Bromberg, Bromberg Law Office, P.C., New York, NY, on the brief), Law Office of Harley J. Schnall, New York, NY, for Plaintiffs–Appellants.

Robert M. Goldfarb (Eric T. Schneiderman, Attorney General of the State of New York, Barbara D. Underwood, Solicitor General, Andrew D. Bing, Deputy Solicitor General, on the brief), Office of the Attorney General of the State of New York, Albany, NY, for Defendants–Appellees.

Before: LEVAL, CABRANES, and SACK, Circuit Judges.

PER CURIAM:

We consider the constitutionality of a policy of the New York Thruway Authority that provides a toll discount to residents of Grand Island, New York, who must use bridges (jointly, “Grand Island Bridge” or the “bridge”) in order to travel by car between their homes and any location not on Grand Island, while denying the discount to all other motorists. Plaintiffs in this putative class action are motorists who use the Grand Island Bridge but, because they are not residents of Grand Island, do not qualify for the lowest toll rate. They seek a judgment declaring that the toll discount policies violate the so-called dormant Commerce Clause as well as the constitutional right to travel that courts have located in the Privileges or Immunities and Equal Protection Clauses of the Fourteenth Amendment, both in violation of 42 U.S.C. § 1983. ¹

We first encountered this case in 2009 when we held, in substance, that plaintiffs' complaint survived defendants' motion to dismiss. See Selevan v. N.Y. Thruway Auth., 584 F.3d 82 (2d Cir.2009) (“Selevan I ”). In particular, we affirmed the judgment of the United States District Court for the Northern District of New York (Gary L. Sharpe, Judge ), insofar as it dismissed plaintiffs' challenge to the Thruway's toll policy under the Privileges and Immunities Clause of Article IV of the Constitution,² but we vacated the District Court's judgment insofar as it held that plaintiffs: (1) had failed to establish Article III standing; (2) were not proper parties to allege a violation of the dormant Commerce Clause under the Supreme Court's “prudential standing” doctrine; and (3) had not stated claims under the dormant Commerce Clause or under the Equal Protection and Privileges or Immunities Clauses of the Fourteenth Amendment of the Constitution. Id. at 102–04. We also remanded the cause to the District Court for further proceedings. After the filing of a second amended complaint (“SAC”), a course of discovery, and entry of summary judgment in favor of defendants, the case returns for us to consider the merits of plaintiffs' remaining constitutional claims.

Plaintiffs-appellants Robert Selevan, Anne Rubin, David Talarico, and Samuel Taub (jointly, “plaintiffs”) challenge the November 28, 2011 Memorandum Decision and Order of the District Court which, among other things, granted judgment in favor of the Thruway and its Chief Executive and Chairman, John L. Buono (jointly, “defendants” or “NYTA”). In this appeal, we are asked to consider whether the District Court: (1) should have reviewed plaintiffs' right-to-travel claims under the test of “strict scrutiny”; and (2) properly applied the three-factor test established by the Supreme Court in Northwest Airlines, Inc. v. County of Kent, 510 U.S. 355, 114 S.Ct. 855, 127 L.Ed.2d 183 (1994) (“Northwest Airlines ”), to plaintiffs' right-to-travel and dormant Commerce Clause claims.

For the reasons that follow, we affirm the judgment of the District Court.

BACKGROUND

The municipality of Grand Island, New York is located on an island in the Niagara River, approximately halfway between Niagara Falls, New York and Buffalo, New York.³See Selevan I, 584 F.3d at 87. Grand Island is connected to the surrounding mainland, to the north and south, by the Grand Island Bridge, which is maintained and operated by NYTA as part of Interstate–190. Id. Each noncommercial vehicle crossing the bridge must pay a toll at one of three rates: (1) a general passenger rate of $1.00 per trip (“passenger rate”); (2) a commuter rate of 28 cents per trip (“commuter rate”); or (3) a Grand Island resident rate of 9 cents per trip (“resident rate”). ⁴ Any motorist may qualify for the 28–cent commuter rate by pre-paying for a “bundle” of at least 20 trips. Only residents of Grand Island, however, may qualify for the 9–cent resident rate. Non-residents of Grand Island who do not pre-pay for a commuter rate bundle must pay the one-dollar passenger rate.

Plaintiffs Robert Selevan and Anne Rubin (jointly, “original plaintiffs”), residents of Nassau County, New York and Ontario, Canada, respectively, commenced this putative class action in March 2006. See id. at 86–87. The original plaintiffs allegedly paid the passenger rate to use the Grand Island Bridge, id. at 101, and claimed that the NYTA's toll scheme violated their constitutional rights, id. at 88–89. In a careful opinion dated January 18, 2007, the District Court dismissed the complaint of the original plaintiffs. Id. at 87.

In Selevan I, we affirmed in part, vacated in part, and remanded the action to the District Court for further proceedings, holding that the original plaintiffs had stated claims under the dormant Commerce Clause and pursuant to their constitutional right to travel under the Fourteenth Amendment's Privileges or Immunities and Equal Protection Clauses. Id. at 104. We directed that on remand “plaintiffs' dormant Commerce Clause and right to travel claims must be analyzed under the three-factor test set forth by the Supreme Court in Northwest Airlines ....” Id.

Following our remand of the cause to the District Court, the original plaintiffs amended their complaint to add David Talarico and Samuel Taub, two residents of Erie County, New York, who allegedly paid the commuter rate. Plaintiffs also restated their dormant Commerce Clause and right-to-travel claims. On November 28, 2011, the District Court granted defendants' motion for summary judgment in its entirety. This timely appeal followed.

DISCUSSION

We review a district court's summary judgment de novo, see Niagara Mohawk Power Corp. v. Hudson River–Black River Regulating Dist., 673 F.3d 84, 94 (2d Cir.2012), with “[a]ll evidence submitted on the motion ... construed in the manner most favorable to the nonmoving party,” Horvath v. Westport Library Ass'n, 362 F.3d 147, 151 (2d Cir.2004). “Summary judgment is appropriate only if the moving party shows that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law.” Georgitsi Realty, LLC v. Penn–Star Ins. Co., 702 F.3d 152, 155 (2d Cir.2012) (quotation marks omitted). A defendant is entitled to summary judgment where “the plaintiff[s] [have] failed to come forth with evidence sufficient to permit a reasonable juror to return a verdict in his or her favor on” an essential element of a claim on which the plaintiffs bear the burden of proof. In re Omnicom Grp., Inc. Sec. Litig., 597 F.3d 501, 509 (2d Cir.2010) (quotation marks omitted).

On appeal, defendants reassert the claim that plaintiffs lack standing to bring this action. We rejected this argument in Selevan I, before the parties conducted discovery, but defendants now renew their standing argument by asserting that plaintiffs have failed to sustain their evidentiary burden. Plaintiffs, in turn, claim that the District Court (1) erred by not reviewing their right-to-travel claims under the test of strict scrutiny, and (2) misapplied each of the three factors set forth in Northwest Airlines, 510 U.S. at 369, 114 S.Ct. 855, with respect to both their right-to-travel and dormant Commerce Clause claims.

I. Standing

To establish Article III standing, plaintiffs must demonstrate an “(1) injury-in-fact, which is a ‘concrete and particularized’ harm to a ‘legally protected interest’; (2) causation in the form of a ‘fairly traceable’ connection between the asserted injury-in-fact and the alleged actions of the defendant; and (3) redressability, or a non-speculative likelihood that the injury can be remedied by the requested relief.” W.R. Huff Asset Mgmt. Co. v. Deloitte & Touche LLP, 549 F.3d 100, 106–07 (2d Cir.2008) (emphasis omitted) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)).

In Selevan I, we held that “[i]nasmuch as plaintiffs [had] alleged that they have paid higher tolls as a result of NYTA's policy, they have articulated a commercial, economic injury that is concrete and specific to them, and is caused by NYTA's alleged violation of the Commerce Clause.” 584 F.3d at 89 (quotation marks omitted). Defendants nevertheless ask us to revisit our holding based on an affidavit of the NYTA's chief financial officer, which states that the financial impact of the resident discount on nonresident motorists is negligible and that the “NYTA does not charge higher tolls to other users of the [Grand Island Bridge] or the overall Thruway system because of the resident discount.” Appellees' Br. 30 (emphasis supplied). In short, defendants argue that because the plaintiffs have “offered no proof ... that the tolls they pay are inflated because of the resident discount or that termination of the [resident] discount would likely result in a reduction of [the passenger rate or the commuter rate] paid by plaintiffs[,]” they lack standing. Id. at 31.

As we noted in Selevan I, however, “plaintif...