Dubin v. The County Of Nassau et al

Filing 50

ORDER granting in part and denying in part 25 Motion to Dismiss for Failure to State a Claim; granting 28 Motion to Amend/Correct/Supplement. For the reasons set forth herein, the Court grants in part and denies in part defendants' motion to dismiss. With plaintiffs' consent, the Court dismisses defendant TPVA and plaintiffs' Article 78 claim (Count 20 of the SAC). In addition, the Court dismisses plaintiffs' bill of attainder, procedural due process, substantive due process, unjust takings, equal protection, and double jeopardy claims under Section 1983 for failure to state a claim with leave to amend. The Court denies defendants' motion with respect to the excessive fines claim. Any amended complaint must be filed within thirty (30) days of this Memorandum and Order. SO ORDERED. Ordered by Judge Joseph F. Bianco on 9/27/2017. (Zbrozek, Alex)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 16-CV-4209 (JFB) (AKT)
_____________________

BENJAMIN DUBIN AND BYRON ALSTON,
ON BEHALF OF THEMSELVES AND ALL OTHERS SO SIMILARLY SITUATED,

Plaintiffs,
VERSUS

THE COUNTY OF NASSAU, THE NASSAU COUNTY LEGISLATURE, AND
THE NASSAU COUNTY TRAFFIC AND PARKING VIOLATIONS AGENCY,
Defendants.
___________________
MEMORANDUM AND ORDER
September 27, 2017
___________________

JOSEPH F. BIANCO, District Judge:
Plaintiffs Benjamin Dubin (“Dubin”) and
Byron Alston (“Alston,” and with Dubin,
“plaintiffs”) bring this putative class action
against defendants the County of Nassau (the
“County”), the Nassau County Legislature
(the “Legislature”), and the Nassau County
Traffic and Parking Violations Agency (the
“TPVA”) 1
(collectively,
“defendants”)
alleging (1) a cause of action for violations of
various federal constitutional rights 2
1

At oral argument on the instant motion, plaintiffs
conceded that the TPVA is a non-suable entity under
New York State law.
Accordingly, the Court
dismisses the TPVA from this action.

pursuant to 42 U.S.C. § 1983 (“Section
1983”); (2) a claim under the Declaratory
Judgment Act, 28 U.S.C. §§ 2201 and 2202;
and (3) eighteen claims under New York
State law for myriad constitutional and
statutory infractions. 3 The gravamen of
plaintiffs’ Second Amended Complaint
(“SAC”) is that defendants have unlawfully
enacted and enforced a local ordinance
known as the Drivers’ Responsibility Fee
(the “DRF”), Nassau Cty. Ordinance 1902012. 4
The DRF allegedly imposes a
York Civil Practice Law and Rules, N.Y. C.P.L.R.
§ 7801 et seq. The Court, therefore, dismisses that
claim.
4

2

Specifically, plaintiffs allege bill of attainder,
procedural due process, substantive due process,
unjust takings, equal protection, excessive fines, and
double jeopardy violations by defendants.

3

Plaintiffs also consented to dismissal of Count 20 of
the SAC brought pursuant to Article 78 of the New

Nassau County Ordinance 190-2012 amended
Nassau County Ordinance 16-2011, which is the
provision cited in the SAC, and it appears to be the
operative ordinance governing the DRF. See Guthart
v. Nassau Cty., 52 N.Y.S.3d 821, 824 (Sup. Ct. Nassau
Cty. 2017).

Accordingly, because a federal claim has
survived defendants’ motion, the Court
retains supplemental jurisdiction over
plaintiffs’ state law claims and will not
dismiss them at this stage. Thus, for the
reasons set forth below, the Court grants
defendants’ motion in part and denies it in
part.

mandatory payment of $45 on all motorists
who have been issued tickets or citations and
received a final disposition other than “not
guilty.”
Defendants now move to dismiss the
SAC pursuant to Federal Rule of Civil
Procedure 12(b)(6) 5 on the following
grounds: (1) the Rooker-Feldman doctrine
bars plaintiffs’ claims; (2) the Court should
abstain from adjudicating the Section 1983
claim due to ongoing New York State court
proceedings; (3) the Court should decline
jurisdiction over plaintiffs’ second cause of
action for a declaratory judgment; (4) all of
plaintiffs’ federal claims under Section 1983
fail to state a cause of action; and (5) in the
absence of a viable federal claim, the Court
should not exercise supplemental jurisdiction
over plaintiffs’ New York State law claims.

I. BACKGROUND
A. Factual Background
The Court takes the following facts from
the SAC. (ECF No. 23.) The Court assumes
these facts to be true for purposes of deciding
this motion and construes them in the light
most favorable to plaintiffs as the nonmoving party.
1. The Parties

As an initial matter, the Court concludes
that (1) the Rooker-Feldman does not bar any
claims in this case, and (2) abstention is
unwarranted on the federal claims. On the
merits, the Court finds that plaintiffs have not
pled a plausible cause of action based on their
bill of attainder, procedural due process,
substantive due process, unjust takings, equal
protection, and double jeopardy allegations.
However, the Court denies the motion to
dismiss the excessive fines claim under
Section 1983 on the ground raised by
defendants—namely, that the DRF cannot be
punitive because it is not imposed following
a criminal or quasi-criminal proceeding and
is assessed to defray administrative costs.
Because it was not raised by defendants, the
Court does not reach the second issue with
respect to the excessive fines claim—that is,
whether a $45 fine can be unconstitutionally
excessive.

Plaintiffs Dubin and Alston are both New
York State residents and were respectively
assessed a DRF on September 4, 2015 and
July 7, 2016. (SAC at ¶¶ 7-8.) The County
is a local New York government governed by
the Legislature, which established the TPVA
and enacted ordinances related to the DRF.
(Id. at ¶¶ 9-10.)
2. Nature of the Action
This case arises out of “defendants’
unlawful assessment of [the DRF] against
motorists who have had tickets and/or
citations dismissed by the” TPVA court. (Id.
at ¶ 1.) Plaintiffs allege that the DRF
mandates a $45 payment by all motorists who
receive citations or tickets and a “final
disposition other than not guilty,” and
although “characterized as a ‘fee,’ this charge
is in fact a non-discretionary penalty imposed
merely for having been issued a ticket, and

5

As discussed infra, defendants argue that there is no
subject matter jurisdiction over this action;

accordingly, the Court will also treat this motion as
one to dismiss pursuant to Rule 12(b)(1).

2

nevertheless assessed a DRF. 6 (Id. at ¶¶ 1820, Exhs. B-C.)

the TPVA Court must charge the penalty
even when the tickets against the individuals
have been dismissed . . . .” (Id. at ¶ 2; see
also id. at ¶ 28 (“This is a legislative penalty,
and is not based on an actual adjudication by
any Court after a hearing or other opportunity
to be heard.”).)

Alston appeared before the TPVA on or
about July 7, 2016 regarding seven
outstanding tickets or citations. (Id. at ¶ 23,
Exh. F.) He pled guilty to four offenses, and
the TPVA dismissed the remaining three
tickets/citations. (Id.) The TPVA assessed
Alston a DRF for each dismissed ticket, as
well as a “deferred payment fee” of $15 per
ticket, for an approximate total cost of $180.
(Id. at ¶ 24.)

The SAC further states that the “TPVA
has created a chilling-effect to [sic]
individual citizens who come before that
Court, as the[] only way that the[y] can
dispute the penalty is to go to trial, which
requires time, effort, and costs just to dispute
the DRF.” (Id. at ¶ 4.) As a result, “only
approximately 1% of individuals who are
issued tickets elect to proceed to trial,”
notwithstanding that “for those individuals
whom [sic] make an appearance before the
TPVA Court, over 40% of all tickets are
dismissed.” (Id. at ¶¶ 4, 30.) In sum,
plaintiffs assert that the DRF “has nothing to
do with ‘administrative costs’ relating to
issuing tickets/citations” but is rather a
punishment imposed “against individuals for
simply being issued a ticket without any
findings of fact, nor proof of any actual
violations,” and “irrespective of whether or
not they are actually guilty of any offense or
violation . . . .” (Id. at ¶¶ 32-34.) Moreover,
the SAC alleges that the DRF’s underlying
aim is to generate revenue for the County to
help defray budget deficits. (Id. at ¶¶ 34-40.)

Among other relief, plaintiffs seek, on
behalf of themselves and a class of other
similarly situated individuals, a declaration
that the “DRF violates the Constitutional
protections of the Fifth, Eighth and
Fourteenth Amendments, and as well as [sic]
other [federal] Constitutional Protections”;
an injunction enjoining defendants from
imposing the DRF; and reimbursement of all
DRF charges and associated expenses. (Id. at
¶ 6.)
B. Procedural Background
Dubin commenced this action on July 29,
2016 (ECF No. 3), and plaintiffs filed an
amended complaint on October 20, 2016
(ECF No. 12) and the SAC on November 30,
2016 (ECF No. 23). Defendants moved to
dismiss the SAC on January 13, 2017 (ECF
No. 25) and provided supplemental legal
authority in support of their motion on
February 3, 2017 (ECF No. 28). Plaintiffs
filed their opposition to the motion and
defendants’ supplemental letter on February
27, 2017 and March 2, 2017, respectively
(ECF Nos. 30-31); and defendants replied on
March 20, 2017 (ECF No. 33).

3. Plaintiffs’ Alleged Injuries
On or about July 31, 2015, Dubin was
issued a ticket with an appearance date of
September 11, 2015 for a defective brake
light on his vehicle. (Id. at ¶¶ 16-17, Exh. A.)
After Dubin repaired the brake light and had
his vehicle inspected by a County police
officer, the TPVA dismissed the ticket but

6

At that time, the DRF required Dubin to pay $30. (Id.
at ¶ 19; see also id. at ¶ 2 n.2.)

3

See Cleveland v. Caplaw Enters., 448 F.3d
518, 521 (2d Cir. 2006); Nechis v. Oxford
Health Plans, Inc., 421 F.3d 96, 100 (2d Cir.
2005). “In order to survive a motion to
dismiss under Rule 12(b)(6), a complaint
must allege a plausible set of facts sufficient
‘to raise a right to relief above the speculative
level.’” Operating Local 649 Annuity Trust
Fund v. Smith Barney Fund Mgmt. LLC, 595
F.3d 86, 91 (2d Cir. 2010) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555
(2007)). This standard does not require
“heightened fact pleading of specifics, but
only enough facts to state a claim to relief that
is plausible on its face.” Twombly, 550 U.S.
at 570.

The Court heard oral argument on March
23, 2017 (ECF No. 34), and plaintiffs
subsequently filed their own letter providing
supplemental legal authority in support of
their opposition on May 27, 2017 (ECF No.
38). The Court has fully considered all of the
parties’ submissions and arguments.
II. STANDARDS OF REVIEW
Relevant here are Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6), which
respectively govern motions to dismiss for
lack of subject matter jurisdiction and
motions to dismiss for failure to state a claim.
The following standards of review are
applicable to motions brought under those
provisions.

The Supreme Court clarified the
appropriate pleading standard in Ashcroft v.
Iqbal, setting forth a two-pronged approach
for courts deciding a motion to dismiss. 556
U.S. 662 (2009). The Supreme Court
instructed district courts to first “identify[]
pleadings that, because they are no more than
conclusions, are not entitled to the
assumption of truth.” Id. at 679 (explaining
that though “legal conclusions can provide
the framework of a complaint, they must be
supported by factual allegations”). Second,
if a complaint contains “well-pleaded factual
allegations, a court should assume their
veracity and then determine whether they
plausibly give rise to an entitlement to relief.”
Id. A claim has “facial plausibility when the
plaintiff pleads factual content that allows the
court to draw the reasonable inference that
the defendant is liable for the misconduct
alleged. The plausibility standard is not akin
to a ‘probability requirement,’ but it asks for
more than a sheer possibility that a defendant
has acted unlawfully.” Id. at 678 (quoting
and citing Twombly, 550 U.S. at 556-57
(internal citation omitted)).

A. Subject Matter Jurisdiction
To defeat a motion to dismiss brought
under Rule 12(b)(1), “[t]he plaintiff bears the
burden of proving subject matter jurisdiction
by a preponderance of the evidence.”
Aurecchione v. Schoolman Transp. Sys., Inc.,
426 F.3d 635, 638 (2d Cir. 2005). In
resolving this issue, the court “must accept as
true all material factual allegations in the
complaint, but [it is] not to draw inferences
from the complaint favorable to plaintiffs.”
J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d
107, 110 (2d Cir. 2004). Additionally, the
court “may refer to evidence outside the
pleadings” to resolve the jurisdictional issue.
Makarova v. United States, 201 F.3d 110,
113 (2d Cir. 2000) (citing Kamen v. Am. Tel.
& Tel. Co., 791 F.2d 1006, 1011 (2d Cir.
1986)).
B. Failure to State a Claim
In reviewing a motion to dismiss pursuant
to Federal Rule of Civil Procedure 12(b)(6),
the Court must accept the factual allegations
set forth in the complaint as true and draw all
reasonable inferences in favor of the plaintiff.
4

plaintiffs’ declaratory judgment cause of
action because it is dependent on plaintiffs’
state law claims; and (4) plaintiffs’ Section
1983 claim fails to state a cause of action
because the SAC does not plausibly plead a
violation of any federal constitutional right.
Further, in the absence of a viable federal
cause of action, defendants contend that the
Court
should
decline
supplemental
jurisdiction over plaintiffs’ remaining state
law claims.

The Court notes that in adjudicating a
Rule 12(b)(6) motion, it is entitled to
consider:
(1) facts alleged in the complaint and
documents attached to it or
incorporated in it by reference,
(2) documents ‘integral’ to the
complaint and relied upon in it, even
if not attached or incorporated by
reference,
(3)
documents
or
information contained in defendant’s
motion papers if plaintiff has
knowledge or possession of the
material and relied on it in framing
the complaint, (4) public disclosure
documents required by law to be, and
that have been, filed with the
Securities
and
Exchange
Commission, and (5) facts of which
judicial notice may properly be taken
under Rule 201 of the Federal Rules
of Evidence.

For the reasons set forth below, the Court
concludes that Rooker-Feldman does not bar
adjudication of this matter and that abstention
on the Section 1983 and declaratory
judgment claims is unwarranted. The Court
further finds that plaintiffs’ allegations do not
plausibly plead a bill of attainder, procedural
due process, substantive due process, unjust
takings, equal protection, or double jeopardy
violation under Section 1983. However, the
Court denies the motion to dismiss the
excessive fines claim under Section 1983 on
the ground raised by defendants—namely,
that the DRF cannot be punitive because it is
not imposed following a criminal or quasicriminal proceeding and is assessed to defray
administrative costs. Because it was not
raised by defendants, the Court does not
reach the second issue with respect to the
excessive fines claim—that is, whether a $45
fine can be unconstitutionally excessive.
Thus, because a federal claim survives
defendants’ motion, the Court retains
supplemental jurisdiction over the pendant
state law claims and will not dismiss them at
this stage. Accordingly, defendants’ motion
is granted in part and denied in part.

In re Merrill Lynch & Co., 273 F. Supp. 2d
351, 356-57 (S.D.N.Y. 2003) (internal
citations omitted), aff’d in part and reversed
in part on other grounds sub nom. Lentell v.
Merrill Lynch & Co., 396 F.3d 161 (2d Cir.
2005), cert. denied, 546 U.S. 935 (2005); see
also Cortec Indus., Inc. v. Sum Holding L.P.,
949 F.2d 42, 48 (2d Cir. 1991) (“[T]he
district court . . . could have viewed [the
documents] on the motion to dismiss because
there was undisputed notice to plaintiffs of
heir contents and they were integral to
plaintiffs’ claim.”).
III. DISCUSSION
Defendants argue that the Court should
dismiss the SAC because (1) the Court lacks
jurisdiction under Rooker-Feldman; (2) the
Court should abstain from considering the
Section 1983 claim because it implicates
pending New York State court proceedings;
(3) the Court should decline jurisdiction over

A. Rooker-Feldman
1. Applicable Law
The Rooker-Feldman doctrine arises
from two decisions issued by the United
5

judgment”; (3) “the plaintiff must invite
district court review and rejection of that
judgment”; and (4) “the state-court judgment
must have been rendered before the district
court proceedings commenced.”
Id.
(footnote omitted). The Second Circuit has
classified the first and fourth requirements as
“procedural” and the second and third
requirements as “substantive.” See id.

States Supreme Court: Rooker v. Fiduciary
Trust Company, 263 U.S. 413 (1923); and
District of Columbia Court of Appeals v.
Feldman, 460 U.S. 462 (1983). It stands for
the proposition that “lower federal courts
possess no power whatever to sit in direct
review of state court decisions.” Atl. Coast
Line R.R. Co. v. Bhd. of Locomotive Eng’rs,
398 U.S. 281, 296 (1970); accord Hoblock v.
Albany Cnty. Bd. of Elecs., 422 F.3d 77, 84
(2d Cir. 2005) (“[F]ederal district courts lack
jurisdiction over suits that are, in substance,
appeals from state-court judgments.”).
Though this doctrine was once improperly
equated with that of res judicata, see Moccio
v. N.Y. State Office of Ct. Admin., 95 F.3d
195, 199-200 (2d Cir. 1996), the Supreme
Court has clarified that Rooker-Feldman is
jurisdictional in nature, whereas res judicata
deals with preclusion, see Exxon Mobil Corp.
v. Saudi Basic Indus. Corp., 544 U.S. 280,
293 (2005) (“Preclusion, of course, is not a
jurisdictional matter.”) (citing Fed. R. Civ. P.
8(c) (listing res judicata as an affirmative
defense)).

2. Analysis
Defendants argue that Rooker-Feldman
applies here because (1) “[p]laintiffs are
challenging the fees incurred by them in
appearing before and having their potential
liability adjudicated before TPVA, an arm of
the Nassau County District Court”;
(2) plaintiffs’ court-imposed DRF liability
arose prior to commencement of the instant
action; and (3) plaintiffs ask this Court to
review and reject the TPVA’s findings.
(Defs.’ Mem. of Law in Supp. of Mot. to
Dismiss Second Am. Compl. (“Defs.’ Br.”),
ECF No. 25-4, at 5.) The Court disagrees.
First, plaintiffs are not the quintessential
“state court losers” to whom RookerFeldman pertains. Rather than litigating a
state court proceeding and receiving an
unfavorable judgment, plaintiffs allege that
the TPVA dismissed their tickets or citations
without a determination that they were guilty
of any infraction. (See SAC at ¶¶ 2, 19-20,
24, 28.) Termination of a state court action
without an adverse disposition is not a loss
for Rooker-Feldman purposes. See Green v.
Mattingly, 585 F.3d 97, 102 (2d Cir. 2009)
(“We cannot say that [dismissal of the
plaintiff’s state family court proceeding]
amount[ed] to a state-court loss for purposes
of the Rooker-Feldman doctrine. Although
there was no final adjudication in plaintiff’s
favor, there was also no final ‘order of
disposition’ removing her child, and plaintiff
secured the reversal of the one form of
interlocutory relief entered against her. The

In Hoblock, the Second Circuit carefully
reviewed the Rooker-Feldman doctrine in
light of the Supreme Court’s Exxon Mobil
decision. See Hoblock, 422 F.3d at 83-92.
Noting that Exxon Mobil had narrowed the
scope of the Rooker-Feldman doctrine, the
Second Circuit ruled that its application “‘is
confined to cases of the kind from which the
doctrine acquired its name: cases brought by
state-court losers complaining of injuries
caused by state-court judgments rendered
before the district court proceedings
commenced and inviting district court review
and rejection of those judgments.’” Id. at 85
(quoting Exxon Mobil, 544 U.S. at 284).
Thus, the Second Circuit set forth four
requirements for Rooker-Feldman to apply:
(1) “the federal-court plaintiff must have lost
in state court”; (2) “the plaintiff must
complain of injuries caused by a state court
6

interlocutory, unappealable, and effectively
reversed by a superseding order.”).

Rooker-Feldman doctrine, therefore, does
not bar plaintiff's claims, as she did not ‘lose’
in state court.” (citations omitted)); see also
V.S. v. Muhammad, 595 F.3d 426, 430 (2d
Cir. 2010) (same); Bertuglia v. City of New
York, 839 F. Supp. 2d 703, 718 (S.D.N.Y.
2012) (holding that Rooker-Feldman did not
bar Section 1983 claims stemming from a
criminal prosecution because “the plaintiffs
succeeded in having the state court
indictments against them dismissed, and thus
there was no ‘extant and controlling’
judgment with continuing ‘legal effect’ in
their case” (citation omitted)).

Finally, as the Supreme Court recognized
in Feldman, its namesake doctrine does not
bar federal adjudication of a general
constitutional challenge to a state law or rule.
See 460 U.S. at 482-85 (distinguishing
“between general challenges to state bar
admission rules and claims that a state court
has unlawfully denied a particular applicant
admission” and holding that a federal district
court has jurisdiction over the former claim);
see also Feng Li v. Rabner, 643 F. App’x 57,
59 (2d Cir. 2016) (“As to the court’s RookerFeldman ruling, this doctrine does not apply
to Li’s challenge to the constitutionality of
the state court rule.”). In other words, as the
Court emphasized in another case, “[i]f a
federal plaintiff presents an independent
claim, it is not an impediment to the exercise
of federal jurisdiction that the same or a
related question was earlier aired between the
parties in state court.” Skinner v. Switzer, 562
U.S. 521, 532 (2011) (brackets and citations
omitted). Thus, the Supreme Court found in
Skinner that Rooker-Feldman did not
preclude a constitutional challenge to a Texas
statute governing post-conviction DNA
testing, notwithstanding that a state court had
previously found that the petitioner was not
entitled to testing under that law. Id. (finding
that “Skinner does not challenge the adverse
[state court] decisions themselves; instead, he
targets as unconstitutional the Texas statute
they authoritatively construed,” and holding
that “a state-court decision is not reviewable
by lower federal courts, but a statute or rule
governing the decision may be challenged in
a federal action” (citing Feldman, 460 U.S. at
487; Exxon, 544 U.S. at 286)). Likewise,
plaintiffs are not contesting a state court’s
interpretation or application of the DRF; 7

Moreover,
plaintiffs
claim
that
imposition of the DRF is a non-discretionary
and non-appealable legislative mandate.
(SAC at ¶ 58 (“The individual motorist
cannot dispute the DRF before the TPVA
Court whatsoever, the TPVA judges have no
discretion not to impose the DRF, the
motorists are not provided a trial on the DRF
itself, and there is no appeals process for the
DRF.” (citing People v. Stamos, 51 Misc. 3d
136(A), 38 N.Y.S.3d 832 (App. Term. 2016)
(holding that the imposition of a $30 fee by
the TPVA following dismissal of a charge of
operating an unregistered motor vehicle was
not reviewable on appeal because “the $30
fee here was not made in conjunction with a
judgment of conviction or sentence and does
not come before this appellate court upon an
appeal from a judgment of conviction”)).)
Under such circumstances, the “narrow rule”
of Rooker-Feldman does not apply. See
Green, 585 F.3d at 103 (“Here, however,
plaintiff brings a § 1983 action only after the
Family Court proceedings were dismissed
without a final order of disposition. Her
action, moreover, complains only of injuries
caused by a state-court order that was

7

Further, as noted, plaintiffs contend that the DRF is
compulsory in every case other than those that receive
a “not guilty” disposition. The Court finds Rooker-

Feldman particularly inapplicable based on those
allegations because plaintiffs are not seeking review of
an independent determination or judgment by a state

7

decision; and (3) independent constitutional
claims against the law authorizing the DRF.

instead, they assert that the County ordinance
authorizing the DRF is itself unlawful. (See,
e.g., SAC at ¶ 6.) Thus, this Court has subject
matter jurisdiction over plaintiffs’ claims
because they are independent of any state
court judgment against them.
See
McCormick v. Braverman, 451 F.3d 382, 392
(6th Cir. 2006) (“None of these claims assert
an injury caused by the state court judgments;
Plaintiff does not claim that the state court
judgments themselves are unconstitutional or
in violation of federal law. Instead, Plaintiff
asserts independent claims that . . . a state
statute is vague and overbroad.”); Sykes v.
Mel Harris & Assocs., LLC, 757 F. Supp. 2d
413, 429 (S.D.N.Y. 2010) (Chin, J.) (holding
that Rooker-Feldman did not apply because
the plaintiffs sought, “inter alia, declaratory
relief that defendants violated the law and
injunctive relief via notice to putative class
members that is independent of the statecourt judgments”); McCloud v. Mairs, No. 12
CV 2556 SLT LB, 2014 WL 9880043, at *4
(E.D.N.Y. Oct. 24, 2014) (“As plaintiff
complains only of defendants’ actions, not
those of the state court, the second prong of
the Rooker-Feldman doctrine is not met.”
(citing Morrison v. City of New York, 591
F.3d 109, 112 (2d Cir. 2010))), report and
recommendation adopted, 2015 WL 3607565
(E.D.N.Y. June 2, 2015).

B. Abstention
Defendants advance two abstention
arguments in support of their motion to
dismiss. First, they contend that, under
Younger v. Harris, 401 U.S. 37 (1971), the
Court should decline subject matter
jurisdiction over plaintiffs’ Section 1983
claim because there are ongoing state court
proceedings. Second, defendants assert that
the Court should abstain from adjudicating
the second cause of action for a declaratory
judgment pursuant to Railroad Commission
v. Pullman Company, 312 U.S. 496 (1941),
because interpretation of the DRF depends on
unsettled New York State law. As discussed
below, the Court disagrees with both
contentions.
1.

Applicable Law

As a threshold matter, “abstention is
generally disfavored, and federal courts have
a ‘virtually unflagging obligation’ to exercise
their jurisdiction.” Niagara Mohawk Power
Corp. v. Hudson River-Black River
Regulating Dist., 673 F.3d 84, 100 (2d Cir.
2012) (quoting Colorado River Water
Conservation Dist. v. United States, 424 U.S.
800, 817 (1976)). “The abstention doctrine
comprises a few extraordinary and narrow
exceptions to a federal court’s duty to
exercise its jurisdiction,” and “the balance is
heavily weighted in favor of the exercise of
jurisdiction.” Woodford v. Cmty. Action
Agency of Greene Cnty., Inc., 239 F.3d 517,
522 (2d Cir. 2001) (alterations and citations
omitted).

In sum, Rooker-Feldman does not require
dismissal of this case for lack of subject
matter jurisdiction because the SAC alleges
(1) that plaintiffs did not lose in state court;
(2) that the DRF is non-discretionary and
non-appealable and, thus, that plaintiffs are
not seeking federal review of a state court

Under Younger abstention, “federal
courts should generally refrain from
court. See Hoblock, 422 F.3d at 84 (under RookerFeldman, “[f]ederal district courts lack jurisdiction

over suits that are, in substance, appeals from statecourt judgments”).

8

enjoining or otherwise interfering in ongoing
state proceedings.” Spargo v. New York State
Comm’n on Judicial Conduct, 351 F.3d 65,
74 (2d Cir. 2003).
In Sprint
Communications, Inc. v. Jacobs, 134 S. Ct.
584 (2013), the Supreme Court “clarified that
district courts should abstain from exercising
jurisdiction only in three ‘exceptional
circumstances’ involving (1) ‘ongoing state
criminal prosecutions,’ (2) ‘certain civil
enforcement proceedings,’ and (3) ‘civil
proceedings involving certain orders
uniquely in furtherance of the state courts’
ability to perform their judicial functions.’”
Falco v. Justices of the Matrimonial Parts of
Supreme Court of Suffolk Cty., 805 F.3d 425,
427 (2d Cir. 2015) (quoting Sprint, 134 S. Ct.
at 591), cert. denied, 136 S. Ct. 2469 (2016).
“[T]hese three ‘exceptional’ categories . . .
define Younger’s scope.” 8 Sprint, 134 S. Ct.
at 591.

narrow exception” to a district court’s duty to
adjudicate the case before it. Allegheny v.
Frank Mashuda Co., 360 U.S. 185, 188
(1959).

The Pullman doctrine permits a federal
court to abstain from deciding a state law
issue “when it appears that abstention may
eliminate or materially alter the constitutional
issue presented.” Ohio Bureau of Emp’t
Servs. v. Hodory, 431 U.S. 471, 481 (1977);
see Pullman, 312 U.S. 496. The policy
served by such abstention is to “avoid the
need to address difficult constitutional
questions dependent on the interpretation of
state law in a situation where a decision on
the ambiguous state law could not ‘escape
being a forecast rather than a determination’
and might be ‘supplanted by a controlling
decision of a state court.’” Hartford Courant
Co. v. Pellegrino, 380 F.3d 83, 100 (2d Cir.
2004) (quoting Pullman, 312 U.S. at 499500). The doctrine is an “extraordinary and

For the following reasons, the Court
finds, in its discretion, that abstention is not
warranted at this stage of the litigation under
either Younger or Pullman.

In the Second Circuit, Pullman abstention
may be appropriate where three conditions
are met: (1) the state statute is “unclear or the
issue of state law [is] uncertain”;
(2) “resolution of the federal issue depend[s]
upon the interpretation to be given to the state
law”; and (3) “the state law [is] susceptible of
an interpretation that would avoid or
modify the federal constitutional issue.”
McRedmond v. Wilson, 533 F.2d 757, 761 (2d
Cir. 1976); see also Hartford Courant Co.,
380 F.3d at 100; United Fence & Guard Rail
Corp. v. Cuomo, 878 F.2d 588, 594 (2d Cir.
1989).
2. Analysis

a. Younger Abstention
Defendants argue the court should
dismiss plaintiffs’ Section 1983 claim
pursuant to Younger because, although
plaintiffs’ TPVA adjudications have been
resolved, the SAC “asserts causes of action
on behalf of a putative class including all
persons who have paid the fee from January
1, 2008 and the present. Thus, since these
Plaintiffs’ state proceedings are ongoing, this
Court should decline” subject matter

8

Prior to Sprint, the Second Circuit held that
abstention under Younger is mandatory when:
“(1) there is a pending state proceeding, (2) that
implicates an important state interest, and (3) the state
proceeding affords the federal plaintiff an adequate
opportunity for judicial review of his or federal

constitutional claims.” Spargo, 351 F.3d at 75.
However, the Supreme Court held in Sprint that these
criteria are “not dispositive,” but are rather “additional
factors appropriately considered by the federal court
before invoking Younger.” 134 S. Ct. at 593.

9

factor[] appropriately considered by the
federal court before invoking Younger”
(brackets and citations omitted)); Zablocki v.
Redhail, 434 U.S. 374, 380 n.5 (1978)
(“[T]he District Court was correct in finding
Huffman and Younger inapplicable, since
there was no pending state-court proceeding
in which appellee could have challenged the
statute.”). Thus, in Gerstein v. Pugh, 420
U.S. 103 (1975), the Court found that
Younger did not preclude injunctive relief in
a Section 1983 case contesting a state statute
governing preliminary hearings in criminal
prosecutions because the “injunction was not
directed at the state prosecutions as such, but
only at the legality of pretrial detention
without a judicial hearing, an issue that could
not be raised in defense of the criminal
prosecution,” and thus, the district court’s
“order to hold preliminary hearings could not
prejudice the conduct of the trial on the
merits.” Id. at 108 n.9; see also Donohue v.
Mangano, 886 F. Supp. 2d 126, 141
(E.D.N.Y. 2012) (“Younger abstention does
not apply when a plaintiff’s federal claims
cannot be presented in pending state
proceedings.” (citation omitted)).

jurisdiction over the federal claims in the
SAC. (Defs.’ Br. at 7.)
This argument is without merit. As
plaintiffs note in their opposition, other
courts have correctly held that the existence
of an uncertified, putative class does not
implicate abstention concerns. See, e.g.,
Winfield v. Citibank, N.A., 842 F. Supp. 2d
560, 572-73 (S.D.N.Y. 2012) (“The
defendant has not established a basis for
Colorado River abstention at this stage of the
litigation. The Court is not yet being asked
to decide whether it is appropriate to certify
the California subclass on whose behalf
plaintiff Shen seeks to bring his claim, such
that there would be a class action in New
York” that is duplicative of a state court
action.).
Given the Supreme Court’s
admonition in Sprint that “[o]nly exceptional
circumstances justify a federal court’s refusal
to decide a case in deference to the States,”
134 S. Ct. at 591 (quoting New Orleans Pub.
Serv., Inc. v. Council of City of New Orleans,
491 U.S. 350, 368 (1989)), the Court agrees
with plaintiffs that, because the Court has not
yet determined the nature and constituent
members of the proposed class, it would be
premature to conclude that resolving this
action would necessarily interfere with
ongoing state proceedings involving
unidentified individuals. 9

Here, as already discussed, plaintiffs have
alleged that the DRF is non-discretionary and
non-appealable and, therefore, that there is no
opportunity to challenge that statute on
federal constitutional grounds before the
TPVA or any state appellate tribunal. (See,
e.g., SAC at ¶ 58 (citing Stamos, 38 N.Y.S.3d
832).) In addition, plaintiffs do not seek to
enjoin cases before the TPVA or any other
New York State court; instead, they request
an injunction barring defendants from
imposing the DRF (see SAC at ¶ 6)—an act,
plaintiffs further contend, that does not
involve fact-finding or a merits determination
by a state judge (see id. at ¶¶ 32-33). In other

Moreover, as the Supreme Court has
consistently held, the “pertinent inquiry
[under Younger] is whether the state
proceedings afford an adequate opportunity
to raise the constitutional claims . . . .” Moore
v. Sims, 442 U.S. 415, 430 (1979); see also
Sprint, 134 S. Ct. at 591 (holding that
whether a pending state court proceeding
“provides an adequate opportunity to raise
federal challenges” is a relevant “additional
9

Of course, the Court may reconsider this issue at a
later stage in the litigation if it becomes appropriate to
do so. See Fed. R. Civ. P. 12(h)(3) (“If the court

determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”).

10

a constitutional violation.”).)
disagrees.

words, as in Gerstein, an order by this Court
precluding enforcement of the DRF would
not “prejudice the conduct of” TPVA
proceedings concerning the underlying ticket
or citation. 10

The Court

As an initial matter, defendants
mischaracterize the SAC. They argue that
plaintiffs “make[] no allegation that the
enactment of the [DRF] was in violation of
federal law.” (Id. at 3.) However, that
contention is belied by nearly twenty pages
of substantive claims asserting that the DRF
infringes numerous federal constitutional
rights (see SAC at ¶¶ 1-6, 28-92), as well as
plaintiffs’ specific request for “declaratory
relief that the DRF violates the Constitutional
protections of the Fifth, Eighth and
Fourteenth Amendments, and as well as [sic]
other Constitutional Protections” (id. at ¶ 6).

Therefore, based on the allegations in the
SAC, the Court concludes, in its discretion,
that Younger abstention is not warranted with
respect to plaintiffs’ Section 1983 claim.
b. Pullman Abstention
Defendants also assert that the Court
should decline jurisdiction over plaintiffs’
second cause of action under the Declaratory
Judgment Act because the SAC “request[s]
the Court to determine New York
Constitutional issues, as well as issues
regarding whether the challenged ordinance
is preempted, as a matter of state law, by NY
Vehicle and Traffic Law, the NY Civil Rights
Law, the NY Penal Law and the NY Criminal
Procedures Law”; and “the Court is requested
to decide whether the challenged ordinances
are authorized under the NY Municipal
Home Rule Law.” (Defs.’ Br. at 8.) In
addition, defendants contend that resolution
of plaintiffs’ state law claims will dispose of
the Section 1983 challenge because “[i]t is
only after the [DRF is] declared invalid
[under New York State law] that Plaintiffs’
constitutional claims are made relevant.”
(Defs.’ Reply Mem. of Law in Supp. of Mot.
to Dismiss Second Am. Compl. (“Defs.’
Reply Br.”), ECF No. 33, at 5; see also id. at
3 (“[I]f there are no questions that the
ordinances imposing the DRF are valid under
state law, then it cannot be said that there was

With respect to the Pullman factors, even
assuming that this case satisfies the first
criterion—that the DRF ordinance is “unclear
or the issue of state law is uncertain”—it does
not fulfill the second prong because
resolution of plaintiffs’ federal claims does
not depend upon the Court’s construction of
New York State law. This Court addressed a
similar issue in Moore v. County of Suffolk,
851 F. Supp. 2d 447 (E.D.N.Y. 2012), in
which the plaintiffs sought a declaration that
certain county and town laws were
unconstitutional under federal law and an
injunction enjoining their enforcement. In
addition, the plaintiffs argued that New York
State law preempted those local statutes. The
Court found that “[r]esolution of the
constitutional issues [did] not depend upon
the Court’s interpretation of the state law
issue” because “[t]his Court’s holding as to
whether [New York State law] preempts the
town and county laws has no bearing on the
resolution of the constitutional issues.” Id. at

10

For purposes of its analysis, the Court assumes,
arguendo, that TPVA adjudications fall into one of
three Sprint categories. However, as discussed, such
classification permits—but does not require—
abstention; instead, a federal district court may

consider additional factors before invoking Younger,
including whether the state proceeding at issue affords
litigants an avenue for raising federal claims. See
Sprint, 134 S. Ct. at 593.

11

procedural due process protections. See
Canaday, 608 F. Supp. at 1467 (“Whether
plaintiffs were denied equal protection of the
laws is a question that may be decided
independently of any decision as to plaintiffs’
rights under state law. It is not logically
necessary to decide the state law issues first,
before reaching the constitutional claim; the
constitutional claim is alternative to, rather
than dependent upon, the state law claims.”);
see also United Fence & Guard Rail Corp.,
878 F.2d at 593, 596 (holding that abstention
“policies are outweighed by countervailing
concerns when a federal court is asked to
consider claims involving important federal
rights” and that the district court abused its
discretion in abstaining under Pullman from
considering a federal constitutional challenge
to a state law because “the federal
constitutional issues presented do not depend
upon resolution of the state law issues”);
Donohue, 886 F. Supp. at 140 (“Pullman is
not applicable in the instant case because
resolution of the federal issue—namely, the
Contracts Clause in the United State[s]
Constitution—does not depend on any
construction of the state laws at issue.”);
Sherman v. Town of Chester, No. 01 CIV.
8884 (SAS), 2001 WL 1448613, at *3
(S.D.N.Y. Nov. 15, 2001) (“The resolution of
the federal question does not ‘depend’ on the
resolution of . . . whether the Town acted
ultra vires under [New York State law] in
enacting the Local Law . . . or [] whether the
Town violated Sherman’s property right
under the State constitution. Instead, the
federal claim turns on whether Sherman had
a federally protectable property right in the
permit.” (internal citations omitted)). Cf.
Nov. Team, Inc. v. New York State Joint
Comm’n on Pub. Ethics, 233 F. Supp. 3d 366,
371 (S.D.N.Y. 2017) (“Regarding the second
factor relevant to Pullman abstention,
resolution of Plaintiffs’ federal constitutional
claims depends on the interpretation of the
Advisory Opinion.”), appeal withdrawn, No.

457. It further cited Canaday v. Koch, 608 F.
Supp. 1460 (S.D.N.Y. 1985), for the
proposition that Pullman’s second factor
“requires that the constitutional issue be
logically dependent on resolution of the state
law issue.” Id. at 1467.
Likewise, in Planned Parenthood of
Dutchess-Ulster, Inc. v. Steinhaus, 60 F.3d
122 (2d Cir. 1995), the Second Circuit found
that the district court abused its discretion in
abstaining from plaintiff’s claims that the
defendants’ refusal to enter into a contract
with the plaintiff constituted a bill of
attainder and violated the First and
Fourteenth Amendments, as well as various
New York State laws. The Court held that
Pullman abstention was not warranted
because the
defendants [did] not explain[] how
the federal issue presented in this case
. . . could be mooted by any particular
interpretation of the state regulations
at issue. The defendants’ alleged
failure to comply with the procedural
requirements set forth in N.Y. Gen.
Mun. L. § 104-b and N.Y. Comp. R.
and Regs. tit. 18, §§ 407.2, 407.10 has
no bearing on the constitutional issue
presented. Nor, finally, are we aware
of a statutory construction which
could cure the constitutional
violations alleged by plaintiff.
Id. at 126-27 (citing Williams v. Lambert, 46
F.3d 1275, 1282 (2d Cir. 1995) (no
interpretation of statute could avoid fact that
plaintiff fell within class of people at whom
statute was aimed)).
Here, whether or not the DRF is a valid
enactment under New York State law or is
preempted by other statutes does not vitiate
plaintiffs’ claims that the DRF, inter alia, is
a bill of attainder or violates federal
12

with the New York State constitution or with
any general State law.”). Accordingly, the
court dismissed the plaintiff’s claims seeking
a declaration that the DRF was invalid under
New York State law and for unjust
enrichment,
fraud,
and
negligent
misrepresentation. Id. at 827-28. That
determination, however, does not vitiate
plaintiffs’ Section 1983 claim in this action
because, as already discussed, the validity of
the DRF under New York State law does not
abrogate any potential federal constitutional
violations. 11 Simply put, a local ordinance
may comport with the substantive and
procedural requirements of a state
constitution and state statutes but
nevertheless infringe federally-protected
rights. 12 See, e.g., Nelson v. Colorado, 137
S. Ct. 1249, 1256 (2017) (holding that a
Colorado statute violated the Due Process
Clause). Further, the plaintiff in Guthart—
unlike plaintiffs in this case—did not assert a
Section 1983 cause of action, and in any
event, “to permit state courts to rule first on
what are substantially federal constitutional
claims is inconsistent with Congress’ grant of
federal jurisdiction.” United Fence & Guard
Rail Corp., 878 F.2d at 596 (citing, inter alia,
Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229,
236-37 & n.4 (1984)).

17-334 (2d Cir. May 17, 2017); Zuffa, LLC v.
Schneiderman, No. 15-CV-7624 (KMW),
2016 WL 311298, at *6 (S.D.N.Y. Jan. 26,
2016) (holding that Pullman abstention was
warranted because the “[p]laintiff’s federal
constitutional
vagueness
challenge
depend[ed] on the interpretation of [the] state
law, and the [the state law was] susceptible to
interpretations that would resolve the
statutory uncertainty and eliminate the
federal constitutional issue”), appeal
withdrawn, No. 16-535 (2d Cir. June 14,
2016).
Thus, defendants’ reliance on Guthart v.
Nassau County, 52 N.Y.S.3d 821 (Sup. Ct.
Nassau Cty. 2017), is misplaced. (See Defs.’
Feb. 3, 2017 Letter, ECF No. 28.) There, a
New York State trial court found that
imposing the DRF was a proper exercise of
the County’s power pursuant to New York
Municipal Home Rule Law § 10 and New
York Vehicle and Traffic Law § 1111-b(e).
Id. at 824-25 (“[T]here is nothing in the
language of [New York Vehicle and Traffic
Law § 1111-b(e)] itself that abrogates the
existing and long-standing authority holding
that a municipality may impose fees
reasonably related to the cost of
administering and/or enforcing its own
regulations and programs.”); see also id. at
826 (“Nor can it be said that the cited charges
cannot be imposed under the doctrine of
preemption. Local governments have broad
authority to enact legislation that promotes
the welfare of their citizens, but cannot adopt
local laws or ordinances that are inconsistent

Finally, to the extent that defendants
argue that the language of plaintiffs’ second
cause of action—which “request[s] that this
Court issue a declaration that the DRF is not
a ‘fee’, but instead a ‘penalty’ or ‘fine[’]; or
in the alternative that the DRF is a

11

Further, as plaintiffs note, to the extent that Guthart
clarified the application of state law to this case, then
the first Pullman prong has not been satisfied.

and remanded, 137 S. Ct. 1144 (2017). Both of those
cases involved First Amendment challenges to vague
New York statutes, and the Second Circuit found that
certifying certain state law questions to the New York
Court of Appeals was proper because those issues
were antecedent to the federal claims. Here, in
contrast, resolving plaintiffs’ state law claims—which
allege that the DRF is invalid under the New York
Constitution and various state statutes—would not
obviate the Section 1983 cause of action.

12

Thus, defendants err in citing to the Second Circuit’s
decisions in Allstate Insurance Company v. Serio, 261
F.3d 143 (2d Cir.), certified question accepted, 96
N.Y.2d 931 (2001), and certified question answered,
98 N.Y.2d 198 (2002); and Expressions Hair Design
v. Schneiderman, 808 F.3d 118 (2d Cir. 2015), vacated

13

1983 claim and discusses each constitutional
challenge seriatim. 14

‘mandatory surcharge’; or in the alternative
that the DRF is a ‘tax’” (SAC ¶ 131) and cites
several New York statutes and cases—
obligates application of unclear state law, the
Court does not conclude that such an
interpretation is warranted at this juncture.
For instance, as discussed further infra,
determining whether a statute imposes an
unconstitutional punishment for bill of
attainder purposes is a question of federal
law. Thus, in deciding whether the DRF is a
“penalty” as opposed to a “fee,” the Court
may not need to apply ambiguous New York
legal authority. If, however, such a concern
becomes relevant at a later stage of this case,
the Court may re-visit the Pullman inquiry.
See Fed. R. Civ. P. 12(h)(3).

Section 1983 provides that “[e]very
person who, under color of any statute,
ordinance, regulation, custom, or usage, of
any State . . . subjects, or causes to be
subjected, any citizen of the United States
. . . to the deprivation of any rights, privileges,
or immunities secured by the Constitution
and laws, shall be liable to the party injured
. . . .” 42 U.S.C. § 1983. In order to state a
claim under Section 1983, a plaintiff must
allege (1) the deprivation of any rights,
privileges, or immunities secured by the
Constitution and its laws, and (2) that the
deprivation was “committed by a person
acting under the color of state law.” Cornejo
v. Bell, 592 F.3d 121, 127 (2d Cir. 2010); see
also Ahlers v. Rabinowitz, 684 F.3d 53, 6061 (2d Cir. 2012); see also Rehberg v. Paulk,
132 S. Ct. 1497, 1501-02 (2012). Here,
defendants only contest the first factor.

Accordingly, as set forth above, the Court
finds, in its discretion, that Pullman
abstention—which is a limited exception to
the rule that federal courts must exercise their
mandatory subject matter jurisdiction, see
United Fence & Guard Rail Corp., 878 F.2d
at 593—is inapplicable here because
resolving plaintiffs’ New York State law
claims is not a condition precedent to
adjudicating their federal constitutional
challenges. 13

For the reasons set forth below, the Court
holds that plaintiffs have failed to state a
cause of action based on alleged bill of
attainder, procedural due process, substantive
due process, equal protection, unjust takings,
and double jeopardy violations. However,
the Court denies the motion to dismiss the
excessive fines claim under Section 1983 on
the ground that the DRF cannot be punitive.
Because it was not raised by defendants, the

C. Section 1983
Having determined that there is subject
matter jurisdiction over this action, the Court
proceeds to the merits of plaintiffs’ Section

13

14

Although defendants have not raised this argument
in their motion, the Court also finds that Wilton
abstention—which applies to Declaratory Judgment
Act cases—does not pertain to this action because
plaintiffs do not “seek purely declaratory relief,” but
also, inter alia, damages. See Niagara Mohawk Power
Corp. v. Hudson River-Black River Regulating Dist.,
673 F.3d 84, 105-06 (2d Cir. 2012).

At oral argument, plaintiffs averred that defendants
had waived their merits challenges to the Section 1983
claim because they failed to reiterate those arguments
in their reply brief. Although the Court may
accordingly deem those claims as abandoned, see, e.g.,
In re Dana Corp., 412 B.R. 53, 64 (S.D.N.Y. 2008), in
its discretion, it will not do so.

14

resolving the bill of attainder claim.” Id.
(quoting Con. Edison Co. of N.Y., Inc. v.
Pataki, 292 F.3d 338, 350 (2d Cir. 2002)).
Nevertheless, the Supreme Court has warned
that, “[h]owever expansive the prohibition
against bills of attainder, it surely was not
intended to serve as a variant of the equal
protection doctrine, invalidating every Act of
Congress or the States that legislatively
burdens some persons or groups but not all
other plausible individuals.” Nixon v. Adm’r
of Gen. Servs., 433 U.S. 425, 471 (1977)
(footnotes omitted). “Forbidden legislative
punishment is not involved merely because
the Act imposes burdensome consequences.”
Id. at 472.

Court does not address whether a $45 fine can
be unconstitutionally excessive.
1. Bill of Attainder
Article I, Section 10, Clause 1 of the
United States Constitution states, in relevant
part, “No State shall . . . pass any Bill of
Attainder . . . .” U.S. Const. art. I, § 10, cl. 1.
“A bill of attainder is a legislative act which
inflicts punishment without a judicial trial.”
United States v. Lovett, 328 U.S. 303,
315(1946) (quoting Cummings v. Missouri,
71 U.S. 277 (1866)). The Supreme Court has
articulated three elements of a bill of
attainder: (1) “specification of the affected
persons,” (2) “punishment,” and (3) “lack of
a judicial trial.” Selective Serv. Sys. v. Minn.
Pub. Interest Research Grp., 468 U.S. 841,
846-47 (1984).

The SAC alleges that the “DRF is a
legislatively mandated fine and/or penalty,
being imposed by a governmental entity
under the color of law, without a trial, and
without discretion by a court of law.” (SAC
at ¶ 45.) Additionally, it states that the “DRF
penalty is imposed only against any
individuals who have been issued a ticket by
the Nassau County police or the TPVA under
the authority of defendants, irrespective of
guilt under the eyes of the law and/or a trial
being conducted.” (Id. at ¶ 47.) Defendants
argue that the SAC fails to state a claim
because (1) “the ordinance does not impose
punishment upon an identifiable individual”;
(2) “the assessment of a relatively modest fee
for the processing of the infraction does not”
constitute punishment as a matter of law; and
(3) “[p]laintiffs had the ability to have a trial
and obtain a disposition of not guilty.”
(Defs.’ Br. at 9.)

“With respect to the existence vel non of
punishment,” the Second Circuit has
identified the following three factors to
consider:
(1) whether the challenged statute
falls within the historical meaning of
legislative punishment (historical test
of punishment); (2) whether the
statute, “viewed in terms of the type
of severity of burdens imposed,
reasonably can be said to further
nonpunitive legislative purposes”
(functional test of punishment); and
(3) whether the legislative record
“evinces a [legislative] intent to
punish” (motivational test of
punishment).

The Court agrees with defendants that the
SAC does not adequately allege the
specificity element. 15 Plaintiffs are correct
that for a legislative act to be a bill of
attainder, it must “apply either to named

ACORN v. United States, 618 F.3d 125, 136
(2d Cir. 2010) (quoting Selective Serv. Sys.,
468 U.S. at 853). These three factors “are the
evidence that is weighed together in
15

Accordingly, the Court need not, and does not,
address defendants’ aadditional arguments regarding

lack of punishment and the availability of judicial
process.

15

registration only of organizations which,
after the date of the Act, [were] found to be
under the direction, domination, or control of
certain foreign powers and to operate
primarily to advance certain objectives,” and
thus, “[p]resent activity constitute[d] an
operative element to which the statute
attache[d] legal consequences, not merely a
point of reference for the ascertainment of
particular persons ineluctably designated by
the legislature.” 367 U.S. at 86-87; see also
id. at 87 (holding that “[f]ar from attaching to
the past and ineradicable actions of an
organization,” the Act’s application was
“made
to
turn
upon
continuing
contemporaneous fact”).
Likewise, in
Selective Service System, the Supreme Court
found that a federal statute was not
sufficiently specific and, therefore, not a bill
of attainder because it did not target a group
based on their prior behavior, but instead
penalized present and future violations of that
law. 468 U.S. at 847-51; see also id. at 55051 & n.7 (“Because it allows late registration,
§ 12(f) is clearly distinguishable from the
provisions struck down in Cummings and
Garland. Cummings and Garland dealt with
absolute barriers to entry into certain
professions for those who could not file the
required loyalty oaths; no one who had
served the Confederacy could possibly
comply, for his status was irreversible.”).

individuals or to easily ascertainable
members of a group . . . .” Lovett, 328 U.S.
at 315.
However, the Supreme Court
cautioned in Nixon that “the Constitution is
[not] offended whenever a law imposes
undesired consequences on an indvidual [sic]
or on a class that is not defined at a proper
level of generality.” 433 U.S. at 469-70.
This is because finding that “an individual or
defined group is attainted whenever he or it is
compelled to bear burdens which the
individual or group dislikes” would
“remove[] the anchor that ties the bill of
attainder guarantee to realistic conceptions of
classification and punishment” and “cripple
the very process of legislating, for any
individual or group that is made the subject
of adverse legislation can complain that the
lawmakers could and should have defined the
relevant affected class at a greater level of
generality.” Id. at 470 (footnote omitted).
Thus, although the SAC asserts that the DRF
singles out ticketed motorists who do not
receive a disposition of innocence, that is not
the end of the specificity inquiry.
Instead, the Supreme Court has held that
a law distinguishes a class of people for bill
of attainder purposes when it speaks “in
terms of conduct which, because it is past
conduct, operates only as a designation of
particular persons.” Communist Party of the
U.S. v. Subversive Activities Control Bd., 367
U.S. 1, 86 (1961); see also Cummings, 71
U.S. at 317-18 (holding that law was a bill of
attainder because, inter alia, it singled out
individuals for past involvement in the
Confederacy); Ex parte Garland, 71 U.S.
333, 377-78 (1866) (same). In contrast, the
Court has upheld laws with a prospective
enforcement application even if they
designate a particular group of individuals for
possible sanction.

Conversely, the Second Circuit found in
Consolidated Edison that a New York State
law imposing a utility sanction for prior
wrongdoing was an unconstitutional bill of
attainder because of its “retrospective focus.”
292 F.3d at 349.
It emphasized that
“defin[ing] past conduct as wrongdoing and
then impos[ing] punishment on that past
conduct” is an “indispensible [sic] element of
a bill of attainder” because “[s]uch a bill
attributes guilt to the party or parties singled
out in the legislation.” Id. (citing, inter alia,
Nixon, 433 U.S. at 472-73; Cummings, 71
U.S. at 325). Accordingly, the Second

For instance, Communist Party held that
the Subversive Activities Act was not a bill
of a attainder because it “require[d] the
16

inferences in their favor, there are no claims
that the DRF identifies individuals or a class
of people for sanction based on their past
acts; instead, the only plausible reading of the
SAC is that the DRF is a “general
enforcement statute” that “turn[s] upon
continuing contemporaneous fact” because
individuals are not assessed a fee until the
TPVA dismisses their ticket or citation. As a
result, plaintiffs have not adequately pled
specificity, see, e.g., Communist Party, 367
U.S. at 87, and accordingly, the Court
dismisses the bill of attainder aspect of their
Section 1983 claim.

Circuit held that “[t]he retrospective focus of
Chapter 190 [was] essential to [its]
determination that the statute is a bill of
attainder. The power of legislatures to enact
purely prospective changes to utility rates,
even to the rates of a single utility, is
considerably broader than their authority to
act retrospectively.” Id.
Here, there are no allegations in the SAC
that defendants enacted or enforced the DRF
to punish past conduct. Instead, plaintiffs
assert that they have sufficiently alleged the
specificity element because “individuals
whose tickets/citations have ‘a final
disposition other than not-guilty’, which
includes those motorists whose tickets have
been dismissed . . . are ‘easily ascertainable
via the group defined by the [L]egislature.”
(Pls.’ Mem. of Law in Opp’n to Defs.’ Mot.
to Dismiss (“Pls.’ Opp’n Br.”), ECF No. 30,
at 11.) However, that is plainly not the
applicable standard. As Nixon instructed,
determining that a statute is a potential bill of
attainder merely because it specifies an
individual or a collective of individuals for
sanction would “invalidat[e] every Act of
Congress or the States that legislatively
burdens some persons or groups but not all
other plausible individuals.” 433 U.S. at 471;
see also Elgin v. U.S. Dep’t of Treasury, 641
F.3d 6, 21 (1st Cir. 2011) (Stahl, J.,
concurring in judgment) (“A statute meets
the specification element if it identifies
individuals by name or by description of prior
conduct so that it operates only as a
designation of particular persons. A statute
of general applicability that affects
individuals only upon enforcement is not a
bill of attainder; it is simply an example of the
quintessential
legislation
that
the
Constitution tasks Congress with creating.”
(citations omitted)), aff’d sub nom. Elgin v.
Dep’t of Treasury, 567 U.S. 1 (2012).

2. Procedural Due Process
The crux of plaintiffs’ Section 1983 claim
is that the DRF violates their procedural due
process rights. The SAC alleges that the
“system the defendants have created through
the TPVA Court for imposing the DRF is an
unfair
adjudication
process
against
individuals who are simply issued a ticket by
Nassau County law enforcement officer[s]”
because “[t]here is no justification for taking
away plaintiffs’ and Class members’ property
(money) without any charges/accusatory
instruments pending, nor any findings of fact
against such individuals” or proof “that any
violations occurred (i.e. - innocent until
proven guilty).”
(SAC at ¶¶ 51-53.)
Moreover, plaintiffs aver that “by charging a
DRF, the defendants have found a way to
legally extort individuals whom appear
before the TPVA” because if plaintiffs and
others “refuse to pay such a fee they are
scheduled for a trial, which is done as a
penalty for refusing to pay and questioning
the imposition of the DRF. Such trial may
require additional days in court, and possibly
even the retention of an attorney.” (Id. at ¶
57.) Similarly, the SAC alleges that
there is a $125 non-refundable
application fee to the TPVA to simply
apply to vacate the DRF, as well as a

Even construing the SAC in a light most
favorable to plaintiffs and drawing all
17

deprivation pursuant to an established state
procedure, “the state can predict when it will
occur and is in the position to provide a
predeprivation hearing.” Id. (citing Hellenic
Am. Neighborhood Action Comm. v. City of
New York, 101 F.3d 877, 880 (2d Cir. 1996)).
“Under those circumstances, ‘the availability
of post-deprivation procedures will not, ipso
facto, satisfy due process.’” Id. (quoting
Hellenic, 101 F.3d at 880). In contrast, when
a plaintiff brings a procedural due process
claim “[b]ased on random unauthorized acts
by state employees,” the state satisfies
procedural due process requirements so long
as it provides a meaningful post-deprivation
remedy. 16 Id. (citing Hellenic, 101 F.3d at
880; and Hudson, 468 U.S. at 532).

$250 non-refundable fee to appeal the
application of the DRF. The faux
procedures in place to simply
question the DRF are more costly and
expensive (and non-refundable) than
the DRF itself, and therefore are
substantially insufficient to protect an
individual’s due process rights (i.e. even if they win the dispute before the
TPVA, they will not get their $150
fee returned).
(Id. at ¶ 66.)
To assert a violation of procedural due
process rights, a plaintiff must “first identify
a property right, second show that the [State]
has deprived him of that right, and third show
that the deprivation was effected without due
process.” Local 342, Long Island Pub. Serv.
Emps., UMD, ILA, AFL-CIO v. Town Bd. of
Huntington, 31 F.3d 1191, 1194 (2d Cir.
1994) (citation omitted). Further, a plaintiff
must prove that he or she was deprived of
“‘an opportunity . . . granted at a meaningful
time and in a meaningful manner’ for [a]
hearing appropriate to the nature of the case.”
Boddie v. Connecticut, 401 U.S. 371, 378
(1971).
The Supreme Court, however,
distinguishes between (1) claims based on
established state procedures, and (2) claims
based on random, unauthorized acts by state
employees. See Rivera-Powell v. N.Y.C. Bd.
of Elections, 470 F.3d 458, 465 (2d Cir. 2006)
(citing Hudson v. Palmer, 468 U.S. 517, 532
(1984); and Parratt v. Taylor, 451 U.S. 527,
537 (1981), overruled on other grounds by
Daniels v. Williams, 474 U.S. 327 (1986)).
On the one hand, where a plaintiff alleges a

Here, defendants concede that “the de
minimus [DRF] is [] a protected property
interest for the procedural due process
discussion.” 17
(Defs.’ Br. at 13.)
Nevertheless, they contend that an adequate
remedial process exists. At the second step
of the above test, the Court must balance the
following factors in evaluating the adequacy
of a challenged procedure:
(1) the private interest that will be
affected by the official action; (2) the
risk of an erroneous deprivation of
such interest through the procedures
used, and the probable value, if any,
of additional or substitute procedural
safeguards; and (3) the Government’s
interest, including the function
involved and the fiscal and
administrative burdens that the

16

This differing treatment for “random, unauthorized
acts” rests on “pragmatic considerations.” Hellenic,
101 F.3d at 880 (citing Hudson, 468 U.S. at 532-33).
When an arbitrary act by a low-level state employee
causes a deprivation, “it is difficult to conceive of how
the State could provide a meaningful hearing before
the deprivation takes place.” Velez v. Levy, 401 F.3d
75, 92 (2d Cir. 2005). Thus, “[w]here a pre-

deprivation hearing is impractical and a postdeprivation hearing is meaningful, the State satisfies
its constitutional obligations by providing the latter.”
Giglio v. Dunn, 732 F.2d 1133, 1135 (2d Cir. 1984).
17

As discussed infra, however, the Court concludes
that the DRF does not implicate a property interest
subject to substantive due process protections.

18

additional or substitute procedural
requirement would entail.

substantial property interest that may not be
deprived without due process of law.”).

Nat’l Org. for Women v. Pataki, 261 F.3d
156, 167-68 (2d Cir. 2001) (quoting Mathews
v. Eldridge, 424 U.S. 319, 335 (1976)).
Defendants argue that plaintiffs’
procedural due process claim fails because
“neither of the named plaintiffs claims to
have pursued their remedies under the law,”
since they elected not to proceed to trial on
their underlying tickets or citations. (Defs.’
Br. at 13-14.) Further, defendants argue that,
“[a]s a general rule, there can be no
procedural due process violation when the
state
provides
apparently
adequate
procedural remedies and the plaintiff has not
availed himself of those remedies.” (Id. at 14
(citation omitted).) The Court agrees that,
based on the allegations in the SAC, adequate
procedures exists to safeguard plaintiffs’
property rights.

Second, insofar as plaintiffs allege that
the DRF ensnares “innocent” motorists
whose tickets or citations have been
dismissed without a disposition of “not
guilty” (see SAC at ¶¶ 36, 39, 53, 55, 61), the
Court finds that there are adequate predeprivation and post-deprivation procedures
to prevent erroneous determinations by the
TPVA. 18 The Supreme Court has said that
“due process ordinarily requires an
opportunity for ‘some kind of hearing’ prior
to the deprivation of a significant property
interest.” Hodel v. Virginia Surface Min. &
Reclamation Ass’n, Inc., 452 U.S. 264, 299
(1981) (citation omitted). “It is sufficient,
where only property rights are concerned,
that there is at some stage an opportunity for
a hearing and a judicial determination.” Id.
at 303 (quoting Ewing v. Mytinger &
Casselberry, 339 U.S. 594, 599 (1950)).

First, the Court finds that the “private
interest” at stake is minimal. A $45 fee does
not involve substantial property rights. See,
e.g., Krieger v. City of Rochester, 978
N.Y.S.2d 588, 601 (Sup. Ct. Monroe Cty.
2013) (holding on a procedural due process
challenge to red-light traffic ticket laws that
“the modest $50 penalty was not so
substantial as to infringe upon a person’s
private property rights”); cf. Pringle v. Wolfe,
88 N.Y.2d 426, 431 (1996) (“It is well
established that a driver’s license is a

Here, plaintiffs concede that motorists
accused of traffic violations are entitled to a
trial on the merits, and that the relevant
County ordinance does not impose a DRF on
those who receive a “not guilty” finding.
(See Pls.’ Opp’n Br. at 17 & n.23.)
Nevertheless, they assert that “[s]uch a
situation flips the burden of proof, and is
violative of numerous procedural due
protections” because “the government cannot
flip the burden to the individual to prove his
innocence,” 19 and “motorists before the

18

imposition of the DRF appears to be a rhetorical
statement rather than a factual description of the
evidentiary burdens borne at a TPVA proceeding.
Indeed, Section 227 of the New York Vehicle and
Traffic Law provides that “[e]very hearing for the
adjudication of a traffic infraction, as provided by this
article, shall be held before a hearing officer . . . [and]
[t]he burden of proof shall be upon the people, and no
charge may be established except by clear and
convincing evidence.” N.Y. Veh. & Traf. Law
§ 227[1].

Because the SAC alleges a procedural due process
violation based on “systemic” enforcement of the
DRF, the Court concludes that available postdeprivation procedures will not, standing alone,
necessarily satisfy due process. See Hellenic, 101
F.3d at 880; Pierre v. N.Y.C. Taxi & Limousine
Comm’n, No. 17-CV-973 (MKB), 2017 WL 1417257,
at *3 (E.D.N.Y. Apr. 19, 2017) (collecting cases).
19

Plaintiffs’ contention that motorists are required to
“prove their innocence” before the TPVA to avoid

19

at 602 (due process satisfied by notice and an
opportunity to be heard at an evidentiary
hearing before assessment of red-light traffic
penalty).

TPVA have no ability to dispute the DRF
penalty, nor have a trial on the DRF itself.”
(Id. at 18.) However, that position is against
the weight of federal and New York authority
holding that due process is satisfied by notice
and an opportunity to be heard before a
motorist is punished for a traffic infraction.
See, e.g., Boguslavsky v. City of New York,
173 F.3d 843, 1999 WL 197202, at *2 (2d
Cir. 1999) (unpublished opinion) (“As for
Boguslavsky’s Fourteenth Amendment
procedural due process claim, Boguslavsky
was provided a hearing on the parking ticket
underlying the booting incident and an
opportunity to present evidence that the
parking signs on the street were inadequate.
Thus, the district court properly found that
Boguslavsky had presented no factual basis
for asserting a due process claim.”); Rackley
v. City of New York, 186 F. Supp. 2d 466, 482
(S.D.N.Y. 2002) (“There is no material
factual dispute that the City’s administrative
parking violations system, together with the
judicial system of the State of New York,
provided plaintiff with adequate predeprivation remedies, adequate postdeprivation remedies, and sufficient notice
that such remedies were available.” (footnote
omitted)); Calabi v. Malloy, 438 F. Supp.
1165, 1171-72 (D. Vt. 1977), amended sub
nom. Calabi v. Conway, 468 F. Supp. 76 (D.
Vt. 1978) (holding that there was no due
process violation based on “the legislature’s
decision not to provide a separate presuspension hearing procedure” prior to
suspending a motorist’s license because “the
opportunity to contest the actual traffic
offense in court provide[d] the motorist with
a hearing which [was] sufficient to meet due
process standards”); Pringle v. Wolfe, 88
N.Y.2d 426, 434 (1996) (holding that “the
minimal risk of an erroneous suspension [of
a driver’s license] is further diminished by
the driver’s right to a meaningful
presuspension opportunity to rebut the”
charges against him); Krieger, 978 N.Y.S.2d

Further, although plaintiffs contend that
availing themselves of a trial would be costly
and time-consuming (see SAC at ¶¶ 4-5, 5758), “[t]he fact that [the available predeprivation] procedures place the onus for
resolving outstanding tickets on the driver,
rather than on the [County], does not violate
the Due Process Clause of the United States
Constitution.” Schaer v. City of New York,
No. 09 CIV. 7441 CM MHD, 2011 WL
1239836, at *9 (S.D.N.Y. Mar. 25, 2011).
For example, in Davis v. Nassau County, No.
06-CV-4762 ADS WDW, 2011 WL 5401663
(E.D.N.Y. Nov. 5, 2011), the plaintiff sued,
inter alia, the County and the TPVA for
suspending his driver’s license without a
finding of guilt. The plaintiff acknowledged
that he willfully chose not to attend a hearing
on the alleged violation, and the court held
that there was no procedural due process
violation because
as a matter of law, the Plaintiff was
afforded with [sic] a sufficient predeprivation remedy that he chose not
to pursue. The Plaintiff was given the
opportunity of a trial on the merits and
did not attend, even though he knew
the consequences of not doing so.
Therefore, the Court finds that the
Plaintiff received all the process he
was due under the law.
2011 WL 5401663, at *6.
Similarly,
plaintiffs here failed to pursue an available
and adequate pre-deprivation procedure that
may have avoided the DRF injury that led to
this lawsuit. As a result, plaintiffs have not
pled a procedural due process violation. See,
e.g., Brady v. Town of Colchester, 863 F.2d
205, 211 (2d Cir. 1988) (to state a due process
20

state law requirement that, where traffic
ticket “cases are dismissed upon appeal (from
the TPVA court to the Appellate Term), all
fines and fees [must be] returned to the
individual” (Pls.’ Opp’n Br. at 19)—New
York provides an avenue for post-deprivation
relief via an Article 78 proceeding, N.Y.
C.P.L.R. § 7801 et seq. See, e.g., De Asis v.
New York City Police Dep’t, 352 F. App’x
517, 518 (2d Cir. 2009) (“Finally, insofar as
Appellant can be construed as raising a due
process claim based on the defendants’
failure to refund a prepaid fine after
Appellant successfully challenged his traffic
citations, the claim is unavailing because a
post-deprivation remedy was available, in the
form of an Article 78 mandamus
proceeding.” (citing New York State Nat’l
Org. for Women, 261 F.3d at 168)); Nestle
Waters N. Am., Inc. v. City of New York, No.
15-CV-05189 (ALC), 2016 WL 3080722, at
*11 (S.D.N.Y. May 25, 2016) (noting that
“Article 78 proceedings allow for unfettered
review of alleged errors in statutory
interpretation”), aff’d, 689 F. App’x 87 (2d
Cir. 2017). For instance, the Second Circuit
held in Nestle Waters that there was no
procedural due process violation based on the
plaintiff’s allegation that the defendants had
a policy of issuing and enforcing defective
parking summonses because the “review
afforded through the Parking Violations
Bureau (‘PVB’) administrative processes and
Article 78 proceedings in New York State
[was] adequate for due process purposes.”
689 F. App’x at 88.

claim, “a plaintiff must [allege] that he or she
was deprived of ‘an opportunity . . . granted
at a meaningful time and in a meaningful
manner’ for [a] hearing appropriate to the
nature of the case” (citation omitted)).
Moreover, even where a post-deprivation
procedure is not, by itself, sufficient relief for
claims based on established state procedures,
see Hellenic, 101 F.3d at 880, the
combination of pre- and post-injury
proceedings can provide constitutionallysufficient redress. See Levy v. Cohen, 439 F.
App’x 30, 31-32 (2d Cir. 2011) (holding that
the “pre-deprivation proceedings available to
[the plaintiff] . . . combined with the
availability of an adequate post-deprivation
remedy through New York’s Article 78
proceeding, constituted sufficient process to
satisfy the Due Process Clause of the
Fourteenth Amendment” (citing Harris v.
Mills, 572 F.3d 66, 76 (2d Cir. 2009) (denial
by state agency of physician’s petition to
reinstate his revoked medical license did not
deprive physician of due process, where
physician was given adequate notice and
opportunity to be heard before his petition for
reinstatement was denied, and an adequate
post-deprivation remedy was available
through Article 78 proceedings); and RiveraPowell, 470 F.3d at 466 (holding that predeprivation process was constitutionally
adequate where the plaintiff received notice
and was represented at a pre-deprivation
hearing by an attorney)); Morales v. New
York, 22 F. Supp. 3d 256, 277 (S.D.N.Y.
2014) (“Plaintiff’s own allegations show that
he was afforded disciplinary hearings and
that he willingly abandoned at least some of
these hearings. Moreover, Plaintiff could
have brought an Article 78 proceeding under
New York Civil Practice Law and Rules.”).

Based on the facts of this case—which, as
noted, involves a property interest far less
substantial than the suspension of a driver’s
license, see Davis, 2011 WL 5401663; the
revocation of a professional license, see Levy,
439 F. App’x 30; or the removal of a
candidate from an election ballot, see RiveraPowell, 470 F.3d 458—the Court finds, as
other courts in this Circuit have correctly

To the extent that plaintiffs claim that any
individual DRF assessment was in error—or
that the DRF ordinance is in conflict with a
21

allege that the DRF is imposed after a ticket
or citation is dismissed with a disposition of
other than “not guilty.” In other words, the
deprivation at issue does not stem from a
subsequently invalidated conviction. Finally,
the Colorado statute that the Supreme Court
struck down in Nelson placed the evidentiary
burden on the defendant to demonstrate
innocence, whereas here, the County must
prove a traffic violation by “clear and
convincing evidence” at any trial on the
merits. See supra note 19. Accordingly, to
the extent that plaintiffs would argue that
Nelson changes the clear and consistent
precedent summarized above, the Court
disagrees and finds that it has no bearing on
the Mathews test as applied to the facts of this
case.

determined, see, e.g., Rackley, 186 F. Supp.
2d at 482, that the availability of both preand post-deprivation procedures to plaintiffs
was constitutionally adequate under the
second prong of the Mathews inquiry.
The Supreme Court’s recent decision in
Nelson v. Colorado does not, as plaintiffs
contend, affect this determination. (See Pls.’
May 27, 2017 Letter, ECF No. 38.) There,
the Court invalidated a Colorado statute on
due process grounds because it permitted the
state
to
“retain[]
conviction-related
assessments unless and until the prevailing
defendant institute[d] a discrete civil
proceeding and prove[d] her innocence by
clear and convincing evidence” following
vacatur of her criminal conviction. 137 S. Ct.
at 1252. The Court held that “Colorado may
not retain funds taken from [the petitioners]
solely because of their now-invalidated
convictions, for Colorado may not presume a
person, adjudged guilty of no crime,
nonetheless guilty enough for monetary
exactions.” Id. at 1256 (citations omitted).
However, Nelson is distinguishable from this
case on three significant grounds.

Third, in light of the Court’s
determination supra that the existing
procedures are adequate, and given that
neither party has suggested alternative or
additional procedural protections, the Court
need not address the final step of the Mathews
analysis.
In sum, the Court concludes that plaintiffs
have not plausibly stated a procedural due
process claim because (1) the property
interest at issue is minimal; and (2) there are
adequate
preand
post-deprivation
safeguards to prevent a wrongful injury.
Therefore, the Court dismisses this aspect of
plaintiffs’ Section 1983 claim.

First, and as discussed further infra with
respect to plaintiffs’ double jeopardy claim,
plaintiffs have not alleged facts sufficient to
show that TPVA proceedings are akin to
criminal prosecutions, which implicate far
more important rights than the property
interest at issue here. Second, the Supreme
Court emphasized in Nelson that the “risk
[t]here involved [was] not the risk of
wrongful or invalid conviction any criminal
defendant may face,” but rather “the risk
faced by a defendant whose conviction has
already been overturned that she will not
recover funds taken from her solely on the
basis of a conviction no longer valid.” Id. at
1257. Thus, in Nelson, the petitioners were
deprived of property based on convictions
that were no longer extant. Here, plaintiffs

3. Substantive Due Process
The SAC also asserts that “the DRF
violates plaintiffs’ and Class members’
substantive due process rights under the Fifth
and Fourteenth Amendments” because
[i]rrespective of any procedural
safeguards the defendants have
utilized in assessing the DRF penalty
against individuals whom have
22

(1998)). To satisfy this standard, a plaintiff
must show that the government decision it
challenges “was arbitrary or irrational or
motivated by bad faith.” Rosa R. v. Connelly,
889 F.2d 435, 439 (2d Cir. 1989).

simply been issued a ticket . . .
defendants’ imposition of the DRF
penalty against plaintiffs and the
Class when the ticket has been
dismissed violates their fundamental
right to property without sufficient
substantive justification or rational
basis in law.

Here, plaintiffs have not adequately
alleged deprivation of a protected property
right. As courts in this Circuit have correctly
held, “the substantive Due Process clause
does not protect plaintiffs from modest fines
. . . .” Leder v. Am. Traffic Sols., Inc., 81 F.
Supp. 3d 211, 224 (E.D.N.Y. 2015) (holding
that $65 fine imposed by the TPVA was not
a substantive due process violation) (citing
Idris v. City of Chicago, Ill., 552 F.3d 564,
566 (7th Cir. 2009) (“The interest at stake is
a $90 fine for a traffic infraction, and the
Supreme Court has never held that a property
interest so modest is a fundamental right.”);
Kelly v. Rice, 375 F. Supp. 2d 203, 209
(S.D.N.Y. 2005) (“Nothing about the
issuance of a parking ticket implicates the
rarely-used doctrine of ‘substantive due
process.’ If a claim that a police officer's
deliberate indifference caused the death of a
motorist during a high-speed chase does not
violate substantive due process, . . . then
surely the issuance of a parking ticket on a
single occasion does not do so.” (citations
omitted)); and Krieger, 978 N.Y.S.2d 588),
aff’d, 630 F. App’x 61 (2d Cir. 2015); see
also Buttaro v. Affiliated Computer Servs.,
Inc., No. CV14353LDWSIL, 2016 WL
8711058, at *2 (E.D.N.Y. Dec. 2, 2016)
(holding that plaintiffs failed to plead
substantive due process violation based on an
$80 fine). Likewise, the $45 sanction
imposed by the DRF does not impinge an
“interest[] that [is] ‘implicit in the concept of
ordered liberty’” and, therefore, does not
implicate
substantive
due
process
protections. 20 Local 342, 31 F.3d at 1196

(SAC at ¶ 63.)
The Due Process Clause of the
Fourteenth Amendment protects persons
against deprivations of “life, liberty, or
property.” U.S. Const. amend. XIV, § 1. The
Fourteenth Amendment “does not provide a
comprehensive scheme for determining the
propriety of official conduct or render all
official misconduct actionable.” Pena v.
DePrisco, 432 F.3d 98, 112 (2d Cir. 2005).
Instead, the scope of substantive due process
is very limited.
See Washington v.
Glucksberg, 521 U.S. 702, 720 (1997). The
Supreme Court has said that it is “reluctant to
expand the concept of substantive due
process because guideposts for responsible
decisionmaking in this unchartered area are
scarce and open-ended.” Collins v. Harker
Heights, 503 U.S. 115, 125 (1992).
Substantive due process is a means of
“protection of the individual against arbitrary
action of government.” Wolff v. McDonnell,
418 U.S. 539, 558 (1974).
“In order to establish a violation of a right
to substantive due process, [after plaintiff
demonstrates that it was denied a valid
property interest,] a plaintiff must
demonstrate not only government action but
also that the government action was ‘so
egregious, so outrageous, that it may fairly be
said to shock the contemporary conscience.’”
Pena, 432 F.3d at 112 (quoting Cty. of
Sacramento v. Lewis, 523 U.S. 833, 847 n.8
20

Plaintiffs’ attempt to distinguish Leder is
unpersuasive. They argue that the instant case is

different because “the plaintiffs herein are not
disputing individual’s [sic] actions being arbitrary, but

23

(3) the taking was without just compensation.
See, e.g., Cranley v. Nat’l Life Ins. Co. of Vt.,
318 F.3d 105, 111 (2d Cir. 2003); Story v.
Green, 978 F.2d 60, 62 (2d Cir. 1992).

(quoting Palko v. Connecticut, 302 U.S. 319,
325 (1937)).
As a result, the Court dismisses the
substantive due process component of
plaintiffs’ Section 1983 claim.

However, even where a plaintiff has
sustained an unjust taking, he “has not
suffered a violation of the Just Compensation
Clause until [he] has unsuccessfully
attempted to obtain just compensation
through the procedures provided by the
State.” Villager Pond, Inc. v. Town of
Darien, 56 F.3d 375, 379 (2d Cir. 1995)
(quoting Williamson Cty. Reg’l Planning
Comm’n v. Hamilton Bank of Johnson City,
473 U.S. 172, 195 (1985)). “The Fifth
Amendment does not proscribe the taking of
property; it proscribes taking without just
compensation.” Williamson Cty., 473 U.S. at
194. “Thus, before a plaintiff may assert a
federal takings claim, he must first seek
compensation from the state if the state has a
‘reasonable, certain and adequate provision
for obtaining compensation.’”
Villager
Pond, 56 F.3d at 379-80; see also Sherman v.
Town of Chester, 752 F.3d 554, 561 (2d Cir.
2014) (holding that to establish ripeness, a
plaintiff “must ‘show that (1) the state
regulatory entity has rendered a final decision
on the matter, and (2) the plaintiff has sought
just compensation by means of an available
state procedure’” (quoting Dougherty v.
Town of N. Hempstead Bd. of Zoning
Appeals, 282 F.3d 83, 88 (2d Cir. 2002)).
The Second Circuit has further held that “a
state compensation procedure will be deemed
available and adequate within the meaning of
Williamson even when that procedure
remains
unsure
and
undeveloped.”

4. Unjust Takings
In addition, the SAC states that
defendants have violated “the Takings Clause
of the Fifth Amendment” because
“defendants have been systematically taking
property from individuals (here, monetary
amounts), without any compensation
whatsoever, and without any just cause.”
(SAC at ¶ 77.) Plaintiffs further assert that,
although the stated “purpose behind the DRF
is the reimbursement the costs for issuing
tickets/citations to drivers . . . such overhead
fees for regulating the public should only be
borne upon those who plead guilty and/or are
found guilty of such infractions, and/or
taxpayers as a whole . . . .” (Id. at ¶ 80 (citing
Armstrong v. United States, 364 U.S. 40, 49
(1960).)
The Fifth Amendment guarantees that no
one will “be deprived of life, liberty, or
property, without due process of law; nor
shall private property be taken for public use,
without just compensation,” U.S. Const.
amend. V, and it has been made applicable to
the states through the Fourteenth
Amendment, see, e.g., Weaver v. Brenner, 40
F.3d 527, 534 (2d Cir. 1994). To plead a
taking under the Fifth (or Fourteenth)
Amendment, a plaintiff must allege that
(1) plaintiff possessed a valid property
interest; (2) there was a taking of that
property interest under color of state law; and
instead the DRF ordinance itself being arbitrary . . . .”
(Pls.’ Opp’n Br. at 20 n.25.) However, as set forth
above, a substantive due process violation must allege
arbitrary state action that results in deprivation of a
property right. Capricious conduct, standing alone,
does not state a claim for relief. See W. Farms Assocs.

v. State Traffic Comm’n of State of Conn., 951 F.2d
469, 472 (2d Cir. 1991) (“[A] plaintiff may not
successfully claim a deprivation of property without
due process absent the identification of a protected
property interest.”).

24

Opp’n Br. at 14-15 & n.19.) However, the
Supreme Court squarely rejected that
argument in Williamson County and, in so
doing, explained the difference between the
exhaustion and ripeness doctrines:

Southview Assocs., Ltd. v. Bongartz, 980 F.2d
84, 99 (2d Cir. 1992) (citations omitted).
Here, plaintiffs have not pled that they
pursued any state court remedies for the
purported takings, and “[c]ourts within the
Second Circuit have uniformly dismissed
Fifth Amendment takings claims at the
pleadings stage when plaintiffs fail to
sufficiently allege that they have availed
themselves of such state procedures.”
Viteritti v. Inc. Vill. of Bayville, 831 F. Supp.
2d 583, 591 (E.D.N.Y. 2011) (citing, inter
alia, Vandor, Inc. v. Militello, 301 F.3d 37,
38-39 (2d Cir. 2002)). Moreover, courts in
this Circuit have correctly and consistently
held that Article I, Section 7 of the New York
State Constitution—which provides that
“private property shall not be taken for public
use without just compensation,” N.Y. Const.
art. I, § 7—“satisfies the availability element
of the second prong of Williamson County.”
Melrose Credit Union v. City of New York,
No. 15-CV-09042 (AJN), --- F. Supp. 3d ---,
2017 WL 1200902, at *11 (S.D.N.Y. Mar.
30, 2017) (collecting cases) (citing, inter alia,
McCormack Sand Co. v. Town of N.
Hempstead Solid Waste Mgmt. Auth., 960 F.
Supp. 589, 595 (E.D.N.Y. 1997) (“New York
law provides procedures for obtaining
compensation for the alleged taking [of
personal property], including a cause of
action for inverse condemnation under
Article I, Section 7 of the New York
Constitution.”)). “Indeed, Plaintiffs . . . assert
a claim for compensatory damages under
Article I, Section VII in this very lawsuit” as
Count 8 of the SAC (see SAC at ¶¶ 203-12).
Melrose Credit Union, 2017 WL 1200902, at
*11.

Respondent asserts that it should not
be required to seek variances from the
regulations because its suit is
predicated upon 42 U.S.C. § 1983,
and there is no requirement that a
plaintiff exhaust
administrative
remedies before bringing a § 1983
action. Patsy v. Florida Board of
Regents, 457 U.S. 496 (1982). The
question whether administrative
remedies must be exhausted is
conceptually distinct, however, from
the
question
whether
an
administrative action must be final
before it is judicially reviewable.
...
While the policies underlying the two
concepts often overlap, the finality
requirement is concerned with
whether the initial decisionmaker has
arrived at a definitive position on the
issue that inflicts an actual, concrete
injury; the exhaustion requirement
generally refers to administrative and
judicial procedures by which an
injured party may seek review of an
adverse decision and obtain a remedy
if the decision is found to be unlawful
or otherwise inappropriate. Patsy
concerned the latter, not the former.
...
The Fifth Amendment does not
proscribe the taking of property; it
proscribes taking without just
compensation. . . . If the government
has provided an adequate process for
obtaining compensation, and if resort
to that process yields just
compensation, then the property

Plaintiffs attempt to circumvent this
pleading requirement by invoking the wellestablished rule that there is no need to
exhaust available state remedies prior to
instituting a Section 1983 action. (See Pls.’
25

a guilty finding is an explicit violation
of the Equal Protections Clause.

owner has no claim against the
Government for a taking.

(SAC at ¶¶ 82, 84.)

473 U.S. at 192-95 (citations and alterations
omitted).

The Fourteenth Amendment to the United
States Constitution provides that no state may
“deny to any person within its jurisdiction the
equal protection of the laws.” U.S. Const.
amend. XIV, § 1. This language has been
interpreted to mean that, in legislation, “all
persons similarly situated should be treated
alike.” City of Cleburne v. Cleburne Living
Ctr., 473 U.S. 432, 439 (1985). Where, as
here, 21 a challenged law does not
discriminate against a suspect class or
implicate a fundamental right, rational basis
scrutiny applies. See Hayden v. Paterson,
594 F.3d 150, 170 (2d Cir. 2010).

Thus, plaintiffs err in relying on the rule
that failure to exhaust state avenues for relief
does not bar Section 1983 actions. Ripeness,
not exhaustion, is the relevant inquiry, and
plaintiffs have not suffered a takings
violation under the Due Process Clause if
they have not attempted to secure
compensation via state procedures. Thus, the
Court grants defendants’ motion to dismiss
plaintiffs’ unjust takings claim because the
SAC does not allege a ripe injury.
5. Equal Protection
As for the equal protection prong of
plaintiffs’ Section 1983 claim, the SAC
alleges that

This standard of review is “a paradigm of
judicial restraint.” FCC v. Beach Commc’ns,
Inc., 508 U.S. 307, 314 (1993); see also id. at
313 (“Whether embodied in the Fourteenth
Amendment or inferred from the Fifth, equal
protection is not a license for courts to judge
the wisdom, fairness, or logic of legislative
choices.”). “In areas of social and economic
policy,” a statutory classification must be
upheld “if there is any reasonably
conceivable state of facts that could provide
a rational basis for the classification,” id. at
313, and such a statute is valid unless the
“varying treatment of different groups or
persons is so unrelated to the achievement of
any combination of legitimate purposes that
[a court] can only conclude that the
legislature’s actions were irrational,”
Hayden, 594 F.3d at 170 (quoting Vance v.
Bradley, 440 U.S. 93, 97 (1979)); see also
Beach Commc’ns, 508 U.S. at 316
(“Defining the class of persons subject to a
regulatory
requirement—much
like

defendants have deprived the
plaintiffs of equal protections under
law by imposing the DRF (which is
unquestionably a penalty/fine for
simply being issued a ticket/citation),
which groups innocent individuals
along with guilty individuals, whom
are all imposed with the same
monetary penalty/fine.
...
Very simply, to charge the DRF
penalty against innocent individuals,
when the court (here, the TPVA) does
not have sufficient evidence to make

21

Plaintiffs concede that their equal protection claim
does not implicate a suspect class or a fundamental
right. (Pls.’ Opp’n Br. at 15.)

26

recommendation adopted, 2012 WL 3518535
(D. Vt. Aug. 14, 2012). Plaintiffs have not
alleged any facts from which a plausible
claim could be made that the DRF lacks “any
reasonable conceivable” purpose. 22 Indeed,
its acknowledged, ostensible objective—to
recoup administrative costs associated with
processing and adjudicating traffic violations
(see SAC at ¶ 34)—would certainly be a
prudent goal. See Guthart, 52 N.Y.S.3d at
824 (noting that the “legislative finding
supporting the [DRF] is stated in the
amending ordinance to be that ‘the current
fee charged to motorists appearing before
TPVA whose cases have been adjudicated to
a final disposition other than not guilty is
currently below the actual cost of
adjudicating those cases’”).

classifying governmental beneficiaries—
inevitably requires that some persons who
have an almost equally strong claim to
favored treatment be placed on different sides
of the line, and the fact that the line might
have been drawn differently at some points is
a matter for legislative, rather than judicial,
consideration.” (alterations and citation
omitted)); Greene v. Town of Blooming
Grove, 879 F.2d 1061, 1063 (2d Cir. 1989)
(holding that a statute exercising general
police power “will not be held
unconstitutional if its wisdom is at least fairly
debatable and it bears a rational relationship
to a permissible state objective”). “The party
challenging such an ordinance bears the
heavy burden of negating every conceivable
rational and legitimate basis for the
ordinance.” Casciani v. Nesbitt, 392 F.
App’x 887, 889 (2d Cir. 2010) (citing Tuan
Anh Nguyen v. I.N.S., 533 U.S. 53, 75
(2001)).

Insofar as plaintiffs allege that the DRF
has an improper ulterior motive—namely, to
finance the County’s budget deficits (see
SAC at ¶¶ 34-38)—“defendants’ subjective
motivation in enacting the ordinance is
irrelevant to the question of whether the
ordinance itself is constitutionally valid.”
Casciani v. Nesbitt, 659 F. Supp. 2d 427, 437
(W.D.N.Y. 2009), aff’d, 392 F. App’x 887
(2d Cir. 2010); see also Beach Commc’ns,
508 U.S. at 315 (“Moreover, because we
never require a legislature to articulate its
reasons for enacting a statute, it is entirely
irrelevant for constitutional purposes whether
the conceived reason for the challenged
distinction
actually
motivated
the
legislature.”).

Plaintiffs have not carried their pleading
onus in this case. Although the SAC
summarily alleges that the DRF’s
classification scheme is not “rational” (see,
e.g., SAC at ¶¶ 63, 65), those threadbare,
conclusory assertions are insufficient under
the legal standard set forth supra. See, e.g.,
Seabrook v. City of New York, 509 F. Supp.
2d 393, 402 (S.D.N.Y. 2007); Rheaume v.
Pallito, No. 5:11-CV-72 (JC), 2012 WL
3394343, at *5 (D. Vt. July 13, 2012)
(“Indeed, [the plaintiff’s] entire equal
protection claim, asserted amidst a string of
other alleged constitutional violations, is
precisely the sort of ‘threadbare recital’ that
the Supreme Court has deemed insufficient.”
(citing Iqbal, 556 U.S. at 678)), report and

Finally, although plaintiffs argue that
they are entitled to discovery to demonstrate
that the DRF lacks rationality (see Pls.’

22
Plaintiffs cite Sacher v. Village of Old Brookville,
967 F. Supp. 2d 663 (E.D.N.Y. 2013), in their
opposition, but that case is inapposite because it
concerned a “class-of-one” equal protection claim, and
the relevant touchstone was whether plaintiffs had
sufficiently pled disparate treatment. Id. at 670-72.

Here, plaintiffs have not met their burden of pleading
facts that would “negat[e] every conceivable rational
and legitimate basis for the [DRF].” Casciani, 392 F.
App’x at 889.

27

State Pub. High Sch. Athletic Ass’n, 797 F.
Supp. 2d 204, 211 (N.D.N.Y. 2011) (“When
neither the complaint nor the non-moving
party’s opposition negate ‘any reasonably
conceivable state of facts that could provide
a rational basis’ for the challenged
classification, a defendant’s motion to
dismiss an equal protection claim will be
granted.” (citation omitted)).

Opp’n at 17), “it is well settled that ‘the
Government has no obligation to produce
evidence, or empirical data to sustain the
rationality of a statutory classification.’”
Jones v. Schneiderman, 888 F. Supp. 2d 421,
428 (S.D.N.Y. 2012) (quoting Lewis v.
Thompson, 252 F.3d 567, 582 (2d Cir. 2001).
“In other words, a legislative choice is not
subject to courtroom fact-finding and may be
based on rational speculation unsupported by
evidence or empirical data.”
Beach
Commc’ns, 508 U.S. at 315. “To hold
otherwise would be to interpret the
Fourteenth Amendment in a way that is
destructive to federalism and to the power of
the sovereign states to regulate their internal
economic affairs.” Sensational Smiles, LLC
v. Mullen, 793 F.3d 281, 287 (2d Cir. 2015),
cert. denied, 136 S. Ct. 1160 (2016); see also
id. (“Much of what states do is to favor
certain groups over others on economic
grounds. We call this politics.”). Thus, even
were plaintiffs to proceed to summary
judgment on their equal protection claim,
they could not undermine the DRF’s
rationality through extrinsic evidence or
testimony. 23 Put differently, if a reasonable
purpose appears on the face of the challenged
law, then the Court’s inquiry is at an end.

6. Double Jeopardy
Plaintiffs also assert a double jeopardy
violation on the ground that “[b]y imposing
the DRF upon individuals after the
charges/accusatory instrument against them
have been dismissed, the TPVA court is
subjecting/jeopardizing individuals twice to
the same charges/assessment of penalties.”
(SAC at ¶ 86.)
The Double Jeopardy Clause protects an
individual’s right not to be “subject for the
same offence to be twice put in jeopardy of
life or limb.” U.S. Const. amend. V, cl. 2. It
prohibits both the second prosecution of a
defendant for the same offense after an
acquittal or a conviction and the imposition
of multiple punishments for the same offense.
See North Carolina v. Pearce, 395 U.S. 711,
717 (1969), overruled on other grounds,
Alabama v. Smith, 490 U.S. 794 (1989). In
Hudson v. United States, 522 U.S. 93 (1997),
the Supreme Court clarified that the “Clause
protects only against the imposition of
multiple criminal punishments for the same

In sum, because plaintiffs have not
adequately alleged that the DRF ordinance is
irrational, the Court dismisses the equal
protection portion of their Section 1983
claim. 24 See Casciani, 659 F. Supp. 2d at
434; Immaculate Heart Cent. Sch. v. N.Y.
23

As a result, the legislative histories that plaintiffs
attached to and cited in their opposition (see ECF No.
29) are irrelevant. In any event, they are outside the
pleadings and are not materials that a Court may
consider on a motion to dismiss. See supra Part II.B.

cause of action. See Fortress Bible Church v. Feiner,
694 F.3d 208, 221 (2d Cir. 2012) (observing that “the
Supreme Court affirmed [has] the existence of a classof-one theory for equal protection claims, under which
a single individual can claim a violation of her Equal
Protection rights based on arbitrary disparate
treatment” (emphasis added) (citing Vill. of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000))).
However, in an abundance of caution, the Court will
grant plaintiffs leave to amend to attempt to assert that
claim.

24
In the event of dismissal, plaintiffs have requested
leave to amend their pleading to assert a “class-ofone” equal protection claim. (See Pls.’ Opp’n at 16
n.21.) Given that this a putative class action, it is
unclear that plaintiffs could successfully allege such a

28

offense,” and it thus does not extend to civil
penalties. Id. at 99.

appears excessive in relation to the
alternative purpose assigned . . . .

In United States v. Ursery, 518 U.S. 267
(1996), the Supreme Court articulated a twopart test to determine whether a sanction is
criminal or civil. First, a court must consider
whether the legislative “intent underlying the
enactment of, or the end served by” the law.
Doe, 120 F.3d at 1273. “[I]f a disability is
imposed ‘not to punish, but to accomplish
some other legitimate governmental
purpose,’ then it has been considered
‘nonpenal.’” Id. (quoting Trop v. Dulles, 356
U.S. 86, 96 (1958)). Second, if the law was
not designed to be punitive in nature, courts
must then determine whether, despite this, it
is “so punitive either in purpose or effect”
that it is “transform[ed] into a criminal
penalty . . . .” United States v. Ward, 448 U.S.
242, 249 (1980). “The Supreme Court has
not spelled out the precise nature of the
second-stage inquiry,” Doe v. Pataki, 120
F.3d 1263, 1275 (2d Cir. 1997), and indeed
has determined it to be “a highly context
specific matter,” Flemming v. Nestor, 363
U.S. 603, 616 (1960). However, the Court
has set forth a list of considerations to guide
the inquiry, including

Kennedy v. Mendoza-Martinez, 372 U.S.
144, 168-69 (1963) (footnotes omitted). The
list is not exhaustive nor is any particular
inquiry dispositive. See United States v.
Ward, 448 U.S. 242, 249 (1980); Doe, 120
F.3d at 1275 (“Sometimes one factor will be
considered nearly dispositive of punitiveness
‘in fact,’ while sometimes another factor will
be crucial to a finding of nonpunitiveness.”
(citation omitted)). Moreover, the Supreme
Court has cautioned that “all civil penalties
have some deterrent effect,” and if a civil
sanction was required to be “‘solely’
remedial (i.e., entirely nondeterrent) . . . then
no civil penalties are beyond the scope of the
[Double Jeopardy] Clause.” Hudson, 522
U.S. at 102.
The burden thus rests on the party
challenging the law to “show by ‘the clearest
proof’ that the sanctions imposed ‘are so
punitive in form and effect as to render them
criminal despite [the legislature’s] intent to
the contrary.’” Doe, 120 F.3d at 1274
(quoting Ursery, 518 U.S. at 290). The
Supreme Court has described this burden as
“heavy” and found punishments such as
involuntary civil confinement to be civil in
nature. See Kansas v. Hendricks, 521 U.S.
346, 361 (1997). At the same time, the Court
has recognized that sanctions imposed in
civil proceedings may constitute punishment.
See Dep’t of Revenue of Montana v. Kurth
Ranch, 511 U.S. 767 (1994); Hudson, 522
U.S. at 95.

[w]hether the sanction involves an
affirmative disability or restraint,
whether it has historically been
regarded as a punishment, whether it
comes into play only on a finding of
scienter, whether its operation will
promote the traditional aims of
punishment—retribution
and
deterrence, whether the behavior to
which it applies is already a crime,
whether an alternative purpose to
which it may rationally be connected
is assignable for it, and whether it

Here, plaintiffs argue that they have
carried their pleading burden because the
SAC alleges that the DRF is punitive. (Pls.’
Opp’n Br. at 21-22; see, e.g., SAC at ¶ 45.)
However, as the court in Guthart noted,
“[t]he legislative finding supporting the
[DRF] is stated in [Nassau County Ordinance
29

Levine, 907 N.Y.S.2d 563, 568 (Dist. Ct.
Nassau Cty. 2010) (“As for movant’s claim
that his due process rights are violated
because he will not be able to cross-examine
a live witness [at a hearing on a red-light
ticket], and assuming that claim be correct,
inasmuch as he faces neither criminal
conviction nor conviction for any provision
of the Vehicle and Traffic Law, his assertion
is without merit.”); People v. Haishun, 656
N.Y.S.2d 660, 661 (App. Div. 2d Dep’t 1997)
(“Applying the Ursery two-prong test to the
instant case, we conclude, as have the Third
and Fourth Departments, that sentencing a
defendant for driving while intoxicated after
the suspension of his or her driver’s license
pursuant to Vehicle and Traffic Law
§ 1193(2)(e)(7), does not violate double
jeopardy principles.” (citations omitted)).

190-2012] to be that ‘the current fee charged
to motorists appearing before TPVA whose
cases have been adjudicated to a final
disposition other than not guilty is currently
below the actual cost of adjudicating those
cases.’” Guthart, 52 N.Y.S.3d at 824
(quoting Nassau Cty. Ordinance § 190-2012).
Thus, because the Legislature evidently
intended the DRF to be, at least in part,
remedial, plaintiffs have not met the first part
of the Ursery test. 25 See Hudson, 522 U.S. at
102.
Further, plaintiffs have not alleged facts
sufficient to state a plausible claim that the
DRF “‘[is] so punitive in form and effect as
to render [it] criminal . . . .’” Doe, 120 F.3d
at 1274 (quoting Ursery, 518 U.S. at 290).
Indeed, such a claim would not be plausible
given the weight of New York legal authority
holding that penalties for traffic infractions
are civil and not criminal. See Dolce v.
Nassau Cty. Traffic & Parking Violations
Agency, 7 N.Y.3d 492, 493-94, 497 (2006)
(“reviewing the language of the statute
authorizing the creation of the TPVA and its
legislative history” and noting that the
TPVA’s purpose was to enable “divestiture
in City and District Courts statewide of
jurisdiction over non-criminal traffic
violations and parking violations” (citation
omitted)); Krieger, 978 N.Y.S.2d at 598-99
(holding double jeopardy does not apply to
red-light ticket penalties because “the
statutory
scheme
demonstrates
an
unequivocal intent to create a civil
enforcement mechanism, not a criminal one,”
and “the limited $50 fine is not so severe as
to transform the intended civil penalty into a
quasi-criminal one”); Cty. of Nassau v.

Accordingly, the Court dismisses
plaintiffs’ double jeopardy claim because
they have not alleged facts sufficient to
plausibly state either that (1) the Legislature
intended the DRF to be a criminal sanction,
or (2) the DRF and the circumstances
surrounding its imposition are so punitive
that it is effectively penal in nature. 26
7. Excessive Fines
Finally, the SAC alleges that the “DRF
imposed by the defendants is an excessive
fine issued against those whose only
improper action is simply being issued a
ticket,” and that “[b]y charging a penalty after
the charges/accusatory instrument have been
dismissed, defendants have violated the
Eighth Amendment’s prohibition upon

25
As discussed further infra, for purposes of the
Excessive Fines Clause, a civil sanction may be both
remedial and punitive and still be subject to the Eighth
Amendment’s ambit. Thus, even if a law does not
implicate double jeopardy protections, it may still be
considered a “fine.” See Hudson, 522 U.S. at 103.

26

Therefore, the Court need not, and does not address,
defendants’ additional argument that the Double
Jeopardy Clause does not apply to this case because
the DRF is not imposed following a judgment of
acquittal or conviction. (See Defs.’ Br. at 17.)

30

excessive fines in comparison to the accused
actions.” (SAC at ¶¶ 90-91.)

within the purview of the Excessive Fines
Clause.”)).

The Eighth Amendment provides:
“Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and
unusual punishments inflicted.” U.S. Const.,
Amend. 8. The Supreme Court has explained
that “the word ‘fine’ . . . mean[s] a payment
to a sovereign as punishment for some
offense.” Browning-Ferris Industries of Vt.,
Inc. v. Kelco Disposal, Inc., 492 U.S. 257,
265 (1989) (footnoted omitted).
“The
Excessive Fines Clause thus ‘limits the
government’s power to extract payments,
whether in cash or in kind, as punishment for
some offense.’” United States v. Bajakajian,
524 U.S. 321, 328 (1998) (quoting Austin v.
United States, 509 U.S. 602, 609-10 (1993)).

Second, a court must “determine whether
the challenged forfeiture is unconstitutionally
excessive.” Id. at 100 (citing Bajakajian, 524
U.S. at 334.)
“A forfeiture is
unconstitutionally excessive ‘if it is grossly
disproportional to the gravity of a
defendant’s offense.’”
Id. (quoting
Bajakajian, 524 U.S. at 334). The Second
Circuit has articulated a four-factor test
governing this inquiry:
(1) the essence of the crime of the
defendant and its relation to other
criminal activity, (2) whether the
defendant fits into the class of persons
for whom the statute was principally
designed, (3) the maximum sentence
and fine that could have been
imposed, and (4) the nature of the
harm caused by the defendant’s
conduct.

The Second Circuit has established a
“two-step inquiry for determining whether a
financial penalty is excessive under the
Eighth Amendment.”
United States v.
Viloski, 814 F.3d 104, 108 (2d Cir. 2016)
(footnote omitted), cert. denied, 137 S. Ct.
1223 (2017). First, a court must “determine
whether the Excessive Fines Clause applies
at all.” Id. at 109 (citing Bajakajian, 524 U.S.
at 334). That requirement is met if a
forfeiture “may be characterized, at least in
part, as ‘punitive’—i.e., forfeitures for which
a defendant is personally liable.” Id. (citing
Bajakajian, 524 U.S. at 327-28).
“In
contrast, purely ‘remedial’ forfeitures—i.e.,
those in rem forfeitures intended not to
punish the defendant but to compensate the
Government for a loss or to restore property
to its rightful owner—fall outside the scope
of the Excessive Fines Clause.” Id. (citing
Bajakajian, 524 U.S. at 329; and Paroline v.
United States, 134 S. Ct. 1710, 1726 (2014)
(“The primary goal of restitution is remedial
or compensatory, but it also serves punitive
purposes. That may be sufficient to bring it

Id. (quoting United States v. George, 779
F.3d 113, 122 (2d Cir. 2015)). Moreover, the
Second Circuit has said that “courts may
consider—in addition to the four factors . . .
previously derived from Bajakajian—
whether the forfeiture would deprive the
defendant of his livelihood, i.e., his ‘future
ability to earn a living.’” Id. at 111 (citation
omitted).
Here, defendants argue that the Court
need not consider whether the DRF is
“unconstitutionally excessive” because it is
“not punitive in nature.” (Defs.’ Br. at 20.)
They assert that because the DRF is not
imposed following a “criminal or quasicriminal proceeding from which there was a
finding of guilt or innocence” and is assessed
“to defer the administrative costs associated

31

with a ticket’s processing,” the Excessive
Fines Clause does not apply. (Id. at 19.)

or deterrent purposes, is punishment, as we
have come to understand the term.”).

However, in Austin, the Supreme Court
held that because the “purpose of the Eighth
Amendment . . . was to limit the
government’s power to punish,” the
Excessive Fine Clause may apply to civil
forfeiture if that sanction “can only be
explained as serving in part to punish.” 509
U.S. at 609-10 (emphasis added) (citing
United States v. Halper, 490 U.S. 435, 447
(1989) (“It is commonly understood that civil
proceedings may advance punitive as well as
remedial goals, and, conversely, that both
punitive and remedial goals may be served by
criminal penalties.”), abrogated on other
grounds by Hudson, 522 U.S. 93). “Thus, the
question is not . . . whether [the] forfeiture
. . . is civil or criminal, but rather whether it
is punishment.” Id. at 610 (footnote omitted);
see also Halper, 490 U.S. at 448 (“[A] civil
sanction that cannot fairly be said solely to
serve a remedial purpose, but rather can only
be explained as also serving either retributive

Accordingly, defendants are mistaken to
contend that for a sanction to be a “fine,” it
must be the result of a “criminal or quasicriminal proceeding from which there was a
finding of guilt or innocence.” 27 Following
Austin and Bajakajian, both federal and New
York State courts have found that
administrative and other civil penalties
satisfy the first part of the test delineated
above, even if they bear no direct relationship
to a criminal prosecution. 28
See, e.g.,
Korangy v. U.S. F.D.A., 498 F.3d 272, 277
(4th Cir. 2007) (assuming that Food and Drug
Administration “penalties [were] at least
partially punitive and thus subject to the
Eighth Amendment,” but “conclud[ing] that
[the] penalties imposed [were not] grossly
disproportionate to the gravity of the
offense”), cert denied sub nom. Korangy
Radiology Assocs., P.A. v. Food & Drug
Admin., 552 U.S. 1143 (2008); Towers v. City
of Chicago, 173 F.3d 619, 624 (7th Cir. 1999)

27

However, the Supreme Court subsequently
distinguished that decision and its progeny on the
ground that it involved alleged cruel and unusual
punishment. See Browning-Ferris Indus., 492 U.S. at
263 n.3 (“Ingraham, like most of our Eighth
Amendment cases, involved the Cruel and Unusual
Punishments Clause, and it therefore is not directly
controlling in this Excessive Fines Clause case.”)
Further, as set forth supra, Austin and related case law
make clear that a civil proceeding that does not involve
a formal adjudication of guilt may nevertheless result
in an excessive fine.

Prior to Austin, the Supreme Court held in Ingraham
v. Wright, 430 U.S. 651 (1977), a case concerning
corporal punishment in schools, that
Eighth Amendment scrutiny is appropriate
only after the State has complied with the
constitutional
guarantees
traditionally
associated with criminal prosecutions. . . .
[T]he State does not acquire the power to
punish with which the Eighth Amendment is
concerned until after it has secured a formal
adjudication of guilt in accordance with due
process of law. Where the State seeks to
impose punishment without such an
adjudication, the pertinent constitutional
guarantee is the Due Process Clause of the
Fourteenth Amendment.

28

As noted supra note 25, in this way, the Excessive
Fines Clause has a more expansive reach than the
Double Jeopardy Clause, which is limited to criminal
sanctions and civil penalties that are so punitive as to
effectively be criminal in nature. See Ursery, 518 U.S.
at 286 (“But Austin, it must be remembered, did not
involve the Double Jeopardy Clause at all. Austin was
decided solely under the Excessive Fines Clause of the
Eighth Amendment, a constitutional provision which
we never have understood as parallel to, or even
related to, the Double Jeopardy Clause of the Fifth
Amendment.”).

Id. at 671 n.40; see also City of Revere v. Mass. Gen.
Hosp., 463 U.S. 239, 244 (1983) (holding that
individual could not sue hospital for failing to provide
medical care after he was shot because where there has
“been no formal adjudication of guilt . . . the Eighth
Amendment has no application”).

32

ticket’s processing,” on a motion to dismiss,
the Court must assume the allegations in the
SAC to be true, and plaintiffs have
adequately asserted that the DRF is, at least
in part, punishment imposed “against
individuals for simply being issued a ticket
without any findings of fact, nor proof of any
actual violations,” and “irrespective of
whether or not they are actually guilty of any
offense or violation . . . .” 29 (Id. at ¶¶ 32-34.)

(holding that “fines imposed by the City
under the ordinances at issue here [were] not
solely remedial” and therefore were subject
to Eighth Amendment), cert. denied, 528
U.S. 874 (1999); Sanders v. Szubin, 828 F.
Supp. 2d 542, 553 n.8 (E.D.N.Y. 2011)
(observing that defendants conceded that
administrative sanctions imposed by Office
of Foreign Assets Control were “at least in
part, punitive and thus [] properly considered
within the ambit of the Eighth Amendment’s
prohibition of ‘excessive’ fines”); Prince v.
City of New York, 966 N.Y.S.2d 16, 20 (App.
Div. 1st Dep’t 2013) (in a case challenging a
mandatory sanitation fine, “reject[ing] the
City’s contention that the Excessive Fines
Clause does not apply to the civil penalty at
issue here” because “[a]lthough Eighth
Amendment claims often arise in the criminal
context, civil fines may also fall within reach
of the amendment,” and “[t]he relevant
inquiry is not whether the fine arises in the
civil or criminal context, but whether the fine
constitutes punishment” (collecting cases)).
But see New York State Fed’n of Taxi
Drivers, Inc. v. City of New York, 270 F.
Supp. 2d 340, 343 (E.D.N.Y. 2003)
(“Plaintiff cites no authority for the
proposition that administrative penalties of
the sort challenged here could be subject to
the Eighth Amendment.”).

Accordingly, because plaintiffs have
asserted that the DRF has a punitive purpose,
the Court finds that they have stated a cause
of action pursuant to the Excessive Fines
Clause. As noted, defendants do not argue
that the SAC fails to plausibly assert that the
DRF is “unconstitutionally excessive,” and
plaintiffs do allege that the DRF is
disproportionate “in comparison to the
accused actions (i.e. - no charges pending, yet
a penalty still imposed).” (SAC at ¶ 91.)
Thus, the Court does not reach this second
requirement.
***
In sum, with respect to defendants’
subject matter jurisdiction arguments, the
Court concludes that Rooker-Feldman does
not bar adjudication of this case because
plaintiffs are not state court losers and are not
seeking review of an adverse state judgment,
but rather assert a general constitutional
challenge to the DRF. In addition, the Court,
in its discretion, declines to abstain under
either Younger or Pullman because there are
no pending state court proceedings involving
plaintiffs in which they could assert their
Section 1983 claim, and resolution of
plaintiffs’ constitutional claims does not

Thus, to determine whether the DRF
constitutes an excessive fine, the appropriate
standard is not whether it stems from a
criminal or pseudo-criminal proceeding, but
whether it is punishment.
Although
defendants argue that the DRF has the
legitimate remedial purpose of “defer[ring]
the administrative costs associated with a
29

Accordingly, defendants err in relying on Ford
Motor Credit Company v. New York City Police
Department, 394 F. Supp. 2d 600 (S.D.N.Y. 2005),
because that decision involved a motion for summary
judgment, and the court concluded based on the facts
in the record that a municipal fine was “plainly not
punitive and therefore not subject to Eighth

Amendment analysis,” but instead “remedial, as it is
imposed to compensate the City for administrative
expenses incurred in the disposition of [] vehicles.” Id.
at 618, aff’d, 503 F.3d 186 (2d Cir. 2007). In contrast,
this action is at the pleadings stage, and defendants
have adduced no facts demonstrating that the DRF has
a wholly non-punitive objective.

33

depend on interpreting or applying unclear
state law.

Therefore, the Court grants defendants’
motion in part and denies it in part, and,
because one of plaintiffs’ federal claims
survives, the Court will not dismiss the
pendant state law claims at this stage. 30

On the merits, the Court grants
defendants’ 12(b)(6) motion to dismiss
(1) the bill of attainder claim because
plaintiffs have not sufficiently alleged
specificity; (2) the procedural due process
claim because plaintiffs have not sufficiently
alleged inadequate procedures connected to
deprivation of a substantial property interest;
(3) the substantive due process claim because
plaintiffs have not sufficiently alleged
deprivation of a protected property right;
(4) the unjust takings claim because plaintiffs
have not sufficiently alleged a ripe injury;
(5) the equal protection claim because
plaintiffs have not sufficiently alleged that
the DRF lacks a rational basis; and (6) the
double jeopardy claim because plaintiffs
have not sufficiently alleged that the DRF is
a criminal sanction by design or is so punitive
as to effectively be a criminal sanction.

D. Leave to Amend
In the event of dismissal, plaintiffs have
only requested leave to amend their equal
protection claim.
See supra note 24.
Nevertheless, the Court has considered
whether plaintiffs should be granted leave to
amend their other Section 1983 claims. Rule
15(a)(2) of the Federal Rules of Civil
Procedure provides that a party shall be given
leave to amend “when justice so requires.”
Fed. R. Civ. P. 15(a)(2). “Leave to amend
should be freely granted, but the district court
has the discretion to deny leave if there is a
good reason for it, such as futility, bad faith,
undue delay, or undue prejudice to the
opposing party.” Jin v. Metro. Life Ins. Co.,
310 F.3d 84, 101 (2d Cir. 2002); see Local
802, Assoc. Musicians of Greater N.Y. v.
Parker Meridien Hotel, 145 F.3d 85, 89 (2d
Cir. 1998) (finding that leave to amend may
be denied based upon the “futility of
amendment”). As to futility, “leave to amend
will be denied as futile only if the proposed
new claim cannot withstand a 12(b)(6)
motion to dismiss for failure to state a claim,
i.e., if it appears beyond doubt that the
plaintiff can plead no set of facts that would
entitle him to relief.” Milanese v. RustOleum

However, the Court denies the motion to
dismiss the excessive fines claim under
Section 1983 on the ground raised by
defendants—namely, that the DRF cannot be
punitive because it is not imposed following
a criminal or quasi-criminal proceeding and
is assessed to defray administrative costs.
Because it was not raised by defendants, the
Court does not reach the second issue with
respect to the excessive fines claim—that is,
whether a $45 fine can be unconstitutionally
excessive.
30

The Court notes that plaintiffs’ brief focuses on the
unconstitutional application of the DRF as to tickets or
citations that the TPVA has dismissed with a
disposition of other than “not guilty.” However, the
SAC alleges claims on behalf of, inter alia, a proposed
“ultra vires class” that includes “[a]ll persons who
paid a [DRF] to the [TPVA] between January 1, 2008
and the present.” (SAC at ¶ 93.) In other words,
plaintiffs
also
apparently
challenge
the
constitutionality of the DRF as to tickets or citations

imposed against motorists who received a “guilty”
disposition and paid that fee.
The Court’s analysis in this Memorandum and Order
applies equally to all DRF assessments irrespective of
a ticket or citation’s final disposition. In fact, many of
plaintiffs’ Section 1983 claims, including the
procedural due process claim, do not apply to “guilty”
dispositions. In any event, the Court dismisses the
Section 1983 claims—except for the excessive fines
claim—as to all applications of the DRF.

34

Defendants are represented by Andrew
Reginald Scott of the Nassau County
Attorney’s Office, 1 West Street, Mineola,
New York 11501.

Corp., 244 F.3d 104, 110 (2d Cir. 2001)
(citing Ricciuti v. N.Y.C. Transit Auth., 941
F.2d 119, 123 (2d Cir. 1991)).
In light of the pleading deficiencies
discussed above, it is not clear to the Court
that plaintiffs can plausibly state any of the
federal constitutional claims that the Court
has dismissed. However, in an abundance of
caution, the Court will grant plaintiffs leave
to amend.
IV. CONCLUSION
For the foregoing reasons, the Court
grants in part and denies in part defendants’
motion to dismiss. With plaintiffs’ consent,
the Court dismisses defendant TPVA and
plaintiffs’ Article 78 claim (Count 20 of the
SAC). In addition, the Court dismisses
plaintiffs’ bill of attainder, procedural due
process, substantive due process, unjust
takings, equal protection, and double
jeopardy claims under Section 1983 for
failure to state a claim with leave to amend.
The Court denies defendants’ motion with
respect to the excessive fines claim. Any
amended complaint must be filed within
thirty (30) days of this Memorandum and
Order.
SO ORDERED.

______________________
JOSEPH F. BIANCO
United States District Judge
Dated:

September 27, 2017
Central Islip, NY

***
Plaintiffs are represented by Kevin Page, Kiel
Martin Doran, and Steven M. O’Connor of
O’Connor Reed, LLP, 242 King Street
Port Chester, New York 10573.
35