Sklarski et al v. Niagara Falls Bridge Commission et al

Filing 14

ORDER granting 3 Motion to Dismiss; denying 4 Motion for Summary Judgment. Plaintiffs are granted leave to amend the complaint within 60 days of this Order. IT IS SO ORDERED. Signed by Hon. Richard J. Arcara on 3/26/2010. (JMB)

UNITED STA T ES DISTRICT COURT W EST ERN DISTRICT OF NEW YORK

D A N N Y W . SKLARSKI and JOHN D. CERETTO, Plaint i f f s , v. DECISION A N D ORDER 0 9 -C V -6 3 3 A

NIA GA RA FA LLS BRIDGE COM M IS S IO N , BOA RD OF COM M ISSIO N ERS OF THE NIA GA RA FA LLS BRIDGE COM M IS S IO N , and NORM A I. HIGGS, D ef en d an t s .

IN T R O D U C T IO N P la in tiffs Danny W . Sklarski and John D. Ceretto brought an Article 78 p ro c e e d in g in New York State Court seeking to compel defendants Niagara Falls B rid g e Commission ("Commission") and its Chairperson, Norma I. Higgs, to re s p o n d to the plaintiffs' New York's Freedom of Information Law ("FOIL") re q u e s t. In their petition, plaintiffs assert that the Commission was created by J o in t Resolution of Congress in 1938, and that in 1991, Congress amended the J o in t Resolution to "deem" the Commission "a public agency or public authority of th e State of New York" for the purposes of federal law. Plaintiffs allege that, by virtu e of the 1991 amendment, the Commission became a state agency or state

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public authority subject to New York's FOIL. The Commission defendants removed the action to federal court asserting fe d e ra l question jurisdiction. They then moved to dismiss the complaint arguing th a t the Commission is not a state agency or state public authority and therefore is not subject to New York's FOIL. Plaintiffs opposed the motion to dismiss and file d a cross-motion for summary judgment. Oral argument on the motion to d is m is s was held on January 13 and January 22, 2010. For the reasons stated, th e defendants' motion to dismiss plaintiffs' FOIL claim is granted, plaintiffs' c ro s s -m o tio n for summary judgment is denied, and plaintiffs are granted leave to file an amended complaint within 60 days of this order.

B AC K G R O U N D F o llo w in g the 1938 collapse of the "Honeymoon Bridge" that spanned the N ia g a ra gorge near Niagara Falls, both the State of New York and the federal g o ve rn m e n t sought to enact legislation creating a Niagara Falls bridge authority. T h e New York State bill was introduced in the State Assembly and Senate in F e b ru a ry 1938. The Assembly passed the bill, but the New York State Senate fa ile d to act and as a result, the New York State Legislature never passed a bill e n a c tin g a Niagara Falls public bridge authority. Several months later, in June 1938, members of Congress passed a joint re s o lu tio n creating the Niagara Falls Bridge Commission See H.R. J. Res. 688, 2

75th Cong. 52 Stat. 767-71 (1938). Created under Congressional authority to re g u la te the instrumentalities of commerce, the Commission was authorized by C o n g re s s "to acquire, condemn, occupy, possess, and use such real estate and o th e r property in the State of New York as may be needed for the . . . bridge . . . upon making just compensation therefore . . . ." Id. at § 2, 52 Stat. 767-68. Congress authorized the Commission to issue bonds and to fix and charge tolls fo r transit over the bridge, "deemed" any bridge constructed under the authority of th e Joint Resolution to be "an instrumentality for international commerce a u th o riz e d by the Government of the United States," id. at § 4, 52 Stat. 768, and d ire c te d that the Commission would consist of four members appointed by the G o ve rn o r of New York, and four members appointed by the proper authorities of th e Canadian government. Id. at § 7. The Joint Resolution was modified over the years, with the last modification o c c u rrin g in 1991 when Congress replaced the last sentence of § 6 with the f o l lo w i n g : T h e Commission shall be deemed for the purposes of all Federal law to be a public agency or public authority of the State of New York, n o tw ith s ta n d in g any other provision of law.

S e e Intermodal Surface Transportation Efficiency Act of 1991 ("ISTEA"), Pub. L. N o . 102-240, § 1070, 105 Stat. 1914, 2012(1991). The Commission currently owns and operates three international bridges:

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the Rainbow Bridge, the W h irlp o o l Bridge, and the Lewiston-Queenston Bridge. A c c o rd in g to the defendants, the Commission receives no funding from New York S ta te and supports all of its operations with tolls and other income derived from b rid g e operations.

D IS C U S S IO N A. F e d e r a l Question Jurisdiction B e fo re addressing the merits of the pending motions, the Court finds it n e c e s s a ry to address whether jurisdiction properly lies in this Court. During oral a rg u m e n t, the Court sua sponte questioned the propriety of federal jurisdiction and re q u e s te d supplemental briefing on that issue. After reviewing the supplemental b rie fs and upon hearing argument on that matter, the Court is satisfied that the c o m p la in t raises a federal question. F e d e ra l courts have original jurisdiction over "[a]ny civil action . . . founded o n a claim or right arising under the Constitution, treaties or laws of the United S ta te s ." See 28 U.S.C. § 1331. W h e th e r a claim "arises under" federal law, and th u s falls within federal question jurisdiction, is generally governed by the w e ll-p le a d e d complaint rule. Rivet v. Regions Bank of La., 522 U.S. 470, 475 (1 9 9 8 ). The well-pleaded complaint rule provides for federal jurisdiction only when th e complaint affirmatively alleges a federal claim. Beneficial Nat'l Bank v. A n d e rs o n , 539 U.S. 1, 6 (2003); Citigroup, Inc. v. W a c h o via Corp., 613 F. Supp.2d 4

485, 489-90 (S.D.N.Y. 2009). A case "aris[es] under" federal law if "`a w e ll-p le a d e d complaint establishes either that federal law creates the cause of a c tio n or that the plaintiff's right to relief necessarily depends on resolution of a s u b s ta n tia l question of federal law.'" Empire Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 690 (2006) (quoting Franchise Tax Bd. of Cal. v. Construction L a b o re rs Vacation Trust for Southern Cal., 463 U.S. 1, 27-28 (1983)). Almost a century ago the Supreme Court explained that where the right to re lie f sought by the plaintiff depends on the construction or application of the C o n s titu tio n or federal laws, the cause of action "arises under" the laws of the U n ite d States. See Smith v. Kansas City Title & Trust Co., 255 U.S. 180 (1921). The Court recently reiterated this point in Grable & Sons Metal Prods., Inc. v. D a ru e Eng'g Mfg., 545 U.S. 308 (2005), explaining that a case may "arise under" fe d e ra l law, even though the plaintiff pleads a state law cause of action, where the p le a d e d cause of action "necessarily raise[s] a stated federal issue, actually d is p u te d and substantial, which a federal forum may entertain without disturbing a n y congressionally approved balance of federal and state judicial re s p o n s ib ilitie s ." Id. at 314. In Grable, the petitioner had brought a quiet title a c tio n in Michigan state court. However, five years before that suit, the IRS had s e iz e d the petitioner's property to satisfy federal tax delinquencies, had served n o tic e of the seizure on the petitioner by certified mail, and then sold the property to respondent. Petitioner's suit against respondent claimed that petitioner had 5

retained title because 26 U.S.C. § 6335, the statute that governed service of the s e iz u re notice, required personal service, not service by certified mail. R e s p o n d e n t removed the case to federal court, and petitioner challenged removal fo r lack of subject matter jurisdiction. The Supreme Court held that federal ju ris d ic tio n existed because "[w]hether Grable was given notice within the meaning o f the federal statute is . . . an essential element of its quiet title claim . . . ." Id. at 3 1 4 -1 5 . The Court explained: the meaning of the federal statute is actually in dispute; it a p p e a rs to be the only legal or factual issue contested in th e case. The meaning of the federal tax provision is an im p o rta n t issue of federal law that sensibly belongs in a fe d e ra l court. Id . at 315. Application of the Grable analysis leads to the conclusion that plaintiff's s ta te law FOIL claim raises a federal question. As in Grable, the meaning of the fe d e ra l statute - the Joint Resolution - is actually in dispute and is the only key is s u e in dispute here. Both parties agree that if the Commission is not a state e n tity, FOIL does not apply. Thus, the dispute turns on whether the 1991 a m e n d m e n t to the Joint Resolution transformed the Commission into a state p u b lic authority, as plaintiffs contend. Plaintiffs' state law claim cannot be a d ju d ic a te d without interpreting the Joint Resolution, and indeed, that in te rp re ta tio n is the central issue in this case. Accordingly, the Court finds that p la in tiffs ' claim necessarily arises under federal law. See Mitskovski v. Buffalo 6

and Fort Erie Public Bridge Authority, 435 F.3d 127, 135 (2d Cir. 2006) (finding th a t plaintiff's claim that a Bridge Authority was subject to New York's FOIL raised a federal question because it required interpretation of an international compact).

B.

Is the Commission a State Agency? T h e Court will now turn to the merits of the defendants' claim that the

C o m m is s io n is not a state agency or state public authority. Upon a motion to dismiss, the Court must determine whether the complaint c o n ta in s sufficient factual matter which, accepted as true, states a claim to relief th a t is "plausible on its face." See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). "A claim has facial plausibility when the plaintiff pleads factual content that allows th e court to draw the reasonable inference that the defendant is liable for the m is c o n d u c t alleged." Id. A s the defendants correctly note, the Commission was created by an act of C o n g re s s , not by the New York State Legislature. Indeed, before Congress c re a te d the Commission, bills were introduced in the New York State Assembly a n d Senate seeking to create a "Niagara Falls public bridge authority," but the N e w York State Legislature failed to adopt that legislation. Instead, it was the fe d e ra l government who chose to act in June 1938, passing the Joint Resolution th a t created the Niagara Falls Bridge Commission. See H.R. J. Res. 688, 75 th C o n g . 52 Stat. 767-71 (1938). 7

As stated above, Congress amended the Joint Resolution in 1991, inserting th e following language as the last sentence in § 6: T h e Commission shall be deemed for the purposes of all Federal law to be a public agency or public authority of the State of New York, n o tw ith s ta n d in g any other provision of law.

S e e Intermodal Surface Transportation Efficiency Act of 1991 ("ISTEA"), Pub. L. N o . 102-240, § 1070, 105 Stat. 1914, 2012(1991). Plaintiffs rely on this language a s evidence that the Commission is a state entity. The 1991 amendment did not, as plaintiffs argue, transform the Niagara F a lls Bridge Commission into a state agency or state public authority. Nor could it. W h ile the federal government has many powers, it remains a government of lim ite d jurisdiction. There is simply no support for the plaintiffs' assertion that, a m o n g the federal government's many powers lies the authority to create state e n titie s . Principles of federalism and comity clearly prohibit such an action. Nor would such an action be valid under the Supremacy Clause of the U n ite d States Constitution, Art. VI, cl. 2, as plaintiffs suggest. The Supremacy C la u s e provides that the laws of the United States "shall be the supreme Law of th e Land; . . . any Thing in the Constitution or Laws of any state to the Contrary n o tw ith s ta n d in g ." Under this command, state laws that conflict with federal law a re deemed "without effect." See Altria Group., Inc. v. Good, 129 S. Ct. 538 (2 0 0 8 ); Maryland v. Louisiana, 451 U.S. 725, 746 (1981).

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Here, however, there is no conflict with state law. New York State had the o p p o rtu n ity to enact legislation creating a state bridge commission in Niagara F a lls , but declined to do so. The Supremacy Clause does not authorize the fe d e ra l government to create a state entity on the state's behalf when the state its e lf has declined to do so.1 R a th e r, it is clear that the language relied on by the plaintiffs simply reflects C o n g re s s ' intent that the Commission be treated as a state public authority "for the p u rp o s e s of federal law."2 The Joint Resolution is silent as to how the C o m m is s io n should be treated under state law, and more specifically, whether the C o m m is s io n would be subject to state freedom of information laws. Because the J o in t Resolution did not transform the Commission into a state public authority or re q u ire that the Commission be subject to state laws governing disclosure of in fo rm a tio n , the motion to dismiss plaintiffs' FOIL claim must be granted. T h is conclusion is compelled by applicable law, notwithstanding that the in te re s ts of the public would be best served in an atmosphere of full disclosure. "Transparency in government, no less than transparency in choosing our g o ve rn m e n t, remains a vital national interest in a democracy." Nat'l Ass'n of Mfrs.

The fact that the New York State legislature acted to create other bridge authorities under state law (i.e., the Thousand Islands Bridge Authority and the Ogdensburg Bridge Authority), but failed to do so for with regard to the Niagara Falls Bridge Commission, bolsters the conclusion that New York did not intend for the Commission to be a state entity.

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Indeed, it appears that statement is specifically intended to address how the Commission should be treated for the purposes of federal tax laws. 9

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v. Taylor, 582 F.3d 1, 14 (D.C. Cir. 2009). The "openness in government has a lw a ys been thought crucial to ensuring that the people remain in control of their g o ve rn m e n t." In re Sealed Case, 121 F.3d at 729, 749 (D.C. Cir. 1997). In fact, in p a s s in g the freedom of information act laws, "Congress recognized that the public c a n n o t make intelligent decisions without [adequate] information, and that g o ve rn m e n ta l institutions become unresponsive to public needs if knowledge of th e ir activities is denied to the people and their representatives." Soucie v. David, 4 4 8 F.2d 1067, 1080 (D.C. Cir. 1971). Nevertheless, the action here is brought under New York's FOIL, not federal fre e d o m of information laws. Because the Commission is not a state entity, and b e c a u s e FOIL applies only to state entities, plaintiffs' FOIL action must be d is m is s e d .

B.

C r o s s Motion for Summary Judgment In response to the motion to dismiss, plaintiffs filed a cross motion for

s u m m a ry judgment in their favor, arguing that, if the Court finds that the C o m m is s io n is not a state entity, disclosure is warranted under federal law. First, th e y argue that the language of the Joint Resolution itself provides for such d is c lo s u re . Second, they argue that disclosure of the information sought in the p e titio n is warranted under the federal Freedom of Information Act (FOIA), 5 U .S .C . § 552. 10

W h e th e r the Joint Resolution or FOIA would require disclosure of the re q u e s te d information is not an issue that is properly before this Court. The only c a u s e of action raised in plaintiffs' Article 78 petition is an action to comply with N e w York's FOIL, which the Court has found is subject to dismissal. The federal c la im s that plaintiffs now seek to raise cannot be adjudicated unless the complaint is amended to include those claims. D u rin g oral argument on this matter, plaintiffs expressed their desire to a m e n d the complaint to include federal causes of action if their FOIL claim was d is m is s e d . Rather than dismissing this action in its entirety, the Court will allow p la in tiffs an opportunity file an amended complaint. Justice requires providing the p la in tiffs with an opportunity to raise their federal claims, see Fed. R. Civ. P. 1 5 (a )(2 ) (providing that leave to amend a compliant shall be freely given when ju s tic e so requires), particularly where, as here, the relief sought is simply d is c lo s u re of information concerning the operation of a public entity,3 and where C o n g re s s io n a l policy favors disclosure over secrecy. See Rose v. Dep't of Air F o rc e , 495 F.2d 261, 263 (1974) (observing that the overall goal of FOIA was to "p ie rc e the veil of administrative secrecy and to open agency action to the light of p u b lic scrutiny.").

Whether the Commission is a federal agency that is subject to FOIA remains to be seen. However, there can be no doubt that the Commission is a public authority of some sort performing a public function and vested with sovereign powers of eminent domain.

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CONCLUSION For the reasons stated, defendants' motion to dismiss plaintiffs' FOIL claim is granted, plaintiffs' cross-motion for summary judgment is denied, and plaintiffs are granted leave to amend the complaint within 60 days of this order.

SO ORDERED.

s/ Richard J. Arcara
HONORABLE RICHARD J. ARCARA UNITED STATES DISTRICT JUDGE DATED: March 26, 2010

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