Stavisky v. Metropolitan Transp. Authority, CV 82-0228.

• Decision Date: 08 March 1982
• Docket Number: No. CV 82-0228.,CV 82-0228.
• Citation: 533 F. Supp. 1146
• Parties: Leonard P. STAVISKY and Joseph Fierstein, Plaintiffs, v. METROPOLITAN TRANSPORTATION AUTHORITY, Richard Ravitch, New York City Transit Authority, John D. Simpson, United States Department of Transportation, Andrew L. Lewis, Richard S. Page and Alfred A. Delli Bovi, Defendants.
• Court: U.S. District Court — Eastern District of New York

533 F. Supp. 1146

Leonard P. STAVISKY and Joseph Fierstein, Plaintiffs, v. METROPOLITAN TRANSPORTATION AUTHORITY, Richard Ravitch, New York City Transit Authority, John D. Simpson, United States Department of Transportation, Andrew L. Lewis, Richard S. Page and Alfred A. Delli Bovi, Defendants.

No. CV 82-0228.

United States District Court, E. D. New York.

March 8, 1982.

Mackell & Robertson, Forest Hills, N. Y. by James M. Wright, for plaintiffs.

E. R. Korman, U. S. Atty., E. D. N. Y. by Marilyn Go, Asst. U. S. Atty., Brooklyn, N. Y. (Trudy B. Levy, and Richard J. Bacigalupo, Urban Mass Transp. Admn., U. S. Dept. of Transp., Washington, D. C., of counsel), for defendants.

MEMORANDUM AND ORDER

PLATT, District Judge.

Plaintiffs, Assemblyman Leonard Stavisky and Joseph Fierstein, by order to show cause seek a preliminary injunction¹ enjoining the defendants, Metropolitan Transportation Authority and New York City Transit Authority (referred to as the "MTA" and "NYCTA" or collectively as the "local defendants"), from continuing repair operations that necessitate the suspension of service on the IRT # 7 Flushing Line (Flushing line) until defendants conduct public hearings allegedly required by section 5(i) of the Urban Mass Transportation Act (UMT Act), 49 U.S.C. § 1604(i) (Supp. III 1979).

Defendants, United States Department of Transportation Andrew Lewis, Arthur Teele² and Alfred Delli Bovi (collectively referred to as the "Government" or "Federal defendants"), move to dismiss on the grounds that section 5(i) does not impliedly or otherwise confer upon plaintiffs a private right of action and that plaintiffs lack standing. All of the defendants join in opposition to the plaintiffs' motion for a preliminary injunction.

For the reasons set forth below, the Government's motion to dismiss and plaintiffs' motion for a preliminary injunction are denied.

I

The subway line at issue here runs from Main Street, Flushing, Queens, to Times Square. On January 31, 1982, the NYCTA began maintenance and repair work on the line between Grand Central Station and the Vernon-Jackson station necessitating that service be suspended between Times Square and Vernon-Jackson daily from midnight until 5 A.M.³ It is anticipated that this service suspension will be in effect for approximately one year. Normal service is otherwise available.

The result of the service suspension is that Flushing line riders seeking to go into Manhattan between midnight and 5 A.M. must change at the Queensboro Plaza station for the BMT line. Naturally those persons going from Manhattan into Queens during those hours must, if they wish to avail themselves of the Flushing line, pick up that train at Queensboro Plaza. The defendants are also providing additional shuttle bus service between Times Square and the Vernon-Jackson station.

The work currently being conducted on 2.05 transit route miles⁴ of the Flushing line is funded in part by federal monies granted under the UMT Act and in part by non-federal sources. The local defendants do not dispute that they are bound by the hearing requirements of the UMT Act, but assert that no hearing was required here because this project falls within a regulatory exception to those requirements.

II

Section 5(i) of the UMT Act provides:

(i) Upon submission for approval of a proposed project under this section, the Governor or the designated recipient of the urbanized area shall certify to the Secretary that he or it has conducted public hearings (or has afforded the opportunity for such hearings) and that these hearings included (or were scheduled to include) consideration of the economic and social effects of such project, its impact on the environment, including requirements under the Clean Air Act, the Federal Water Pollution Control Act, and other applicable Federal environmental statutes, and its consistency with the goals and objectives of such urban planning as has been promulgated by the community. Such certification shall be accompanied by (1) a report which indicates the consideration given to the economic, social, environmental, and other effects of the proposed project, including, for construction projects, the effects of its location or design, and the consideration given to the various alternatives which were raised during the hearing or which were otherwise considered, (2) upon the Secretary's request, a copy of the transcript of the hearings, and (3) assurances satisfactory to the Secretary that any public mass transportation system receiving financial assistance under such project will not change any fare and will not substantially change any service except (A) after having held public hearings or having afforded an adequate opportunity for such hearings, after adequate public notice, (B) after having given proper consideration to views and comments expressed in such hearings, and (C) after having given consideration to the effect on energy conservation, and the economic, environmental, and social impact of the change in such fare or such service.

49 U.S.C. § 1604(i).

Initially, we note that section 5(i) requires public hearings in two separate instances. A certification that public hearings have been conducted must accompany a submission for section 5 funds. In addition, the certification must contain "assurances" under subsection (3) of section 5(i) that further public hearings will be conducted if the recipient of funds seeks to "change any fare" or "substantially change any service."

The Secretary of the Department of Transportation has promulgated a regulation specifying when a hearing is required under section 5(i)(3) of the UMT Act. That regulation provides in pertinent part:

(a) Except as provided elsewhere in this section, a hearing required by section 5(i)(3) of the Act must be held when —

(1) There is a change in any fare;

(2) There is any change in service of —

(i) 25 percent or more of the number of transit route miles of a route; or

(ii) 25 percent or more of the number of transit revenue vehicle miles of a route computed on a daily basis for the day of the week for which the change is made; or

(3) A new transit route is established.

49 C.F.R. § 635.7 (1981).

There is no dispute here as to whether the local defendants afforded an opportunity for public hearings required by section 5(i) in the course of applying for section 5 operating assistance. At issue is whether the defendants, recipients of section 5 funds who have given the required assurances to the Secretary of Transportation under subsection (3) were required to conduct a public hearing under that subsection prior to the temporary suspension of service on the Flushing line.⁵ In other words, we are asked by plaintiffs to determine whether the suspension of service constituted a "substantial change" in service bringing it within the provision of section 5(i)(3).

III

The Federal defendants claim that this case should be dismissed because plaintiffs do not have a private right of action under section 5(i)(3) and thus cannot enforce the hearing provision of that section in this Court.

In Cohen v. Mass. Bay Transp. Auth., 647 F.2d 209 (1st Cir. 1981), the First Circuit Court of Appeals found a private right of action under 5(i)(3) and held that the plaintiffs, members of the general public and riders of the transit system, id. at 210, could bring an action to enforce the provisions of 5(i)(3). Id. at 212.⁶

The Government suggests, however, that Cohen should be re-examined in the light of subsequent Supreme Court cases regarding private enforcement of federal statutes. Given the Government's suggestion and the fact that we are not bound by Cohen,⁷ some discussion of whether section 5(i) confers a private right of action is appropriate here.

To determine whether a private right of action is implied in section 5(i)(3), we must examine that section in light of the criteria set forth by the Supreme Court in Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26.

First, is the plaintiff "one of the class for whose especial benefit the statute was enacted," .... Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? .... Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? ... And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law. (Citations omitted).

The Government argues that section 5(i) is merely a general proscription against certain activities, see California v. Sierra Club, 451 U.S. 287, 101 S.Ct. 1775, 68 L.Ed.2d 101 (1981); Cannon v. University of Chicago, 441 U.S. 677, 690-93, 99 S.Ct. 1946, 1954-56, 60 L.Ed.2d 560 (1979), and does not inure to the special benefit of a class. A reading of section 5(i) indicates, however, that the statute is clearly intended to protect the interests of the community of transit riders who are affected by the expenditure of section 5 funds or who, under subsection (3), are affected by fare changes or substantial service changes. The statute is not a proscription of activity, but rather serves two other purposes. It creates in the class of transit riders a right to speak at public hearings on transit issues directly affecting them, and imposes upon the recipient of section 5 funds an affirmative duty to incorporate the product of these public hearings in its decision making.⁸

The First Circuit has noted correctly that "the riding public comprises thousands of potential plaintiffs" Cohen v. Mass. Bay Transp. Auth., supra, 647 F.2d at 212. Nevertheless, numerosity does not defeat the first Cort factor which requires only that "the plaintiff and his class be the intended, primary beneficiaries." Id.

The Government attempts to argue that the primary beneficiary of section 5(i)(3...