Association of Taxicab Operators USA v. City of Dallas
Filing
62
MEMORANDUM OPINION AND ORDER granting 45 Motion for Summary Judgment filed by City of Dallas. (Ordered by Judge Ed Kinkeade on 3/28/2012) (skt)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ASSOCIATION OF TAXICAB
OPERATORS, USA,
Plaintiff,
v.
CITY OF DALLAS,
Defendant.
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CIVIL ACTION NO.
3:10-CV-769-K
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant's Motion for Final Summary Judgment (Doc. No.
45). The Court has considered Defendant City of Dallas' ("the City") Motion, the City's
Brief in Support of its Motion for Final Summary Judgment, Plaintiff, the Association
of Taxicab Operators, USA's ("ATO") Response and Memorandum in Support, the City's
Reply Brief, the evidence submitted by the parties, and applicable law. The City asserts
that as a matter of law, Dallas City Ordinance No. 27831 (the "Ordinance") is not
preempted, while ATO asserts that the Ordinance is preempted by the Clean Air Act.
Because no genuine issue of material fact exists as to the lack of preemption of the
Ordinance by the Clean Air Act, the City's Motion for Final Summary Judgment is
hereby GRANTED. Judgment will be entered by separate document. Fed. R. Civ. P.
58(a).
I.
Factual Background
On March 10, 2010, the City adopted Ordinance No. 27831 (the "Ordinance"),
with an effective date of April 10, 2010. The Ordinance amended Sections 5-58 and 559, and added a new Section 5-61.1, to Chapter 5 of the Dallas City Code entitled
"Aircraft and Airports." The Ordinance creates an incentive for a taxicab designated as
a "dedicated compressed natural gas vehicle" ("CNG taxicab").
A CNG taxicab is defined in the Ordinance as "a vehicle that operates exclusively
on compressed natural gas." Dallas City Code, § 5-58(9). A taxicab owner can either
purchase a new vehicle that is already equipped with a compressed natural gas system
or can convert an existing cab to operate on compressed natural gas. "Head of the line"
privileges are issued to CNG taxicabs, which means that if a CNG taxicab has been
issued an emblem by the City's Director of Aviation, and is otherwise permitted by the
City, then it is entitled to advance to the front of the taxicab holding or dispatch area
at Love Field (owned by the City) ahead of non CNG taxicabs who may be waiting to
pick up passengers at the Airport. Dallas City Code, § 5-61.1.
The Ordinance does not apply to any property or areas located within the City
outside of Love Field. At Love Field, non CNG taxicabs are free to drop off passengers
without having to wait in the central holding area because the Ordinance only applies
to taxicabs picking up passengers at the airport. Moreover, if a taxicab driver has made
prior arrangements to pick up a passenger, the system of waiting in line at a central
queue likewise does not apply.
On April 15, 2010, ATO filed its Original Verified Complaint against the City
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alleging the City's actions are preempted by the Clean Air Act. ATO asserts the CNG
preference is a "standard relating to the control of emissions from new motor vehicles."
See Clean Air Act § 209(a), 42 U.S.C. § 7543(a). Thus, according to ATO, the City's
regulation is preempted by Section 209(a) of the Clean Air Act, which states: "No State
or any political subdivision thereof shall adopt or attempt to enforce any standard
relating to the control of emissions from new motor vehicles or new motor vehicle
engines subject to this part." Id.
This Court entered a temporary restraining order ("TRO") on April 15, 2010,
enjoining the City from allowing taxicabs at Love Field which utilize dedicated CNG
powered engines to be given "head-of-the-line" privileges at any taxicab holding or
dispatch area. A preliminary injunction hearing was then held on May 4, 2010. After
determining that ATO's arguments supporting preemption failed, and ATO could not
establish a likelihood of success on the merits, the Court denied ATO its request for a
preliminary injunction by order dated August 30, 2010. ATO appealed the order to the
Fifth Circuit, but the appeal was dismissed for want of prosecution, as ATO failed to
timely file its brief and record excerpts. See Doc. No. 39. In August of 2011, the City
filed the motion for summary judgment that is now before the Court. No new material
facts have come to light since the Court issued its Preliminary Injunction Order in
August of 2010.
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II.
Summary Judgment Standard
"Summary judgment is appropriate when the pleadings, affidavits, and other
summary judgment evidence show that no genuine issue of material fact exists and the
moving party is entitled to judgment as a matter of law." Triple Tee Golf, Inc. v. Nike, Inc.,
485 F.3d 253, 261 (5th Cir. 2007) (citing Fed. R. Civ. P. 56(c)); Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986)). The moving party bears the burden of demonstrating the
absence of a genuine issue of material fact. Triple Tee Golf, 485 F.3d at 261 (citing
Celotex, 477 U.S. at 322 25). The burden then shifts to the non-moving party to show
the existence of a genuine issue of material fact for trial. Sossamon v. Lone Star State of
Tex., 560 F.3d 316, 326 (5th Cir. 2009).
A dispute of a material fact is "genuine" if the evidence is such that a reasonable
jury could return a verdict in favor of the non-moving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). "A fact is 'material' if its resolution in favor of one party
might affect the outcome of the lawsuit under governing law." Sossamon, 560 F.3d at 326
(quoting Hamilton v. Seque Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000) (per
curiam)). All evidence and reasonable inferences must be viewed in the light most
favorable to the nonmovant, and all disputed facts resolved in favor of the nonmovant.
See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); Boudreaux v. Swift Transp.
Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005); see also Sossamon, 560 F.3d at 326.
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III.
Analysis
A.
Introduction
The City's Motion for Summary Judgment argues that it is entitled to final
summary judgment as to all of ATO's claims.
ATO's Verified Complaint seeks a
declaratory judgment, a permanent injunction, and impliedly seeks attorneys' fees. "The
party seeking a permanent injunction must meet a four-part test. "It must establish (1)
success on the merits; (2) that a failure to grant the injunction will result in irreparable
injury; (3) that said injury outweighs any damage that the injunction will cause the
opposing party; and (4) that the injunction will not disserve the public interest." VRC
LLC v. City of Dallas, 460 F.3d 607, 611 (5th Cir. 2006). Regarding declaratory relief,
ATO apparently relies on 28 U.S.C. § 2201: "In a case of actual controversy within its
jurisdiction . . . any court of the United States, upon the filing of an appropriate
pleading, may declare the rights and other legal relations of any interested party seeking
such declaration, whether or not further relief is or could be sought."
No factual discrepancies presented by the parties need be settled by the Court in
order to address the City's Motion for Summary Judgment. This case rests on one
issue—preemption. Plaintiff's Response to Defendant's Motion for Summary Judgment
concisely states the central issue before the Court—whether "the CNG Preference is
preempted by the Clean Air Act."
Thus, ATO's request for injunctive relief and
declaratory judgment, and the motion now before the Court, hinge on the issue of
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preemption. The Court discussed preemption of the Ordinance by the Clean Air Act in
detail in its Preliminary Injunction Order (Doc. No. 30). Neither party has presented
any new arguments in their summary judgment briefing that would alter the Court's
position on preemption.
Rather, this Court's Preliminary Injunction Order is
incorporated, and the Court will restate only so much of the analysis as is required to
dispose of ATO's arguments on this Motion.
B.
The Issue of Preemption
1.
Congressional Purpose
Section 209(a) states: "No State or any political subdivision thereof shall adopt
or attempt to enforce any standard relating to the control of emissions from new motor
vehicles or new motor vehicle engines subject to this part." 42 U.S.C. § 7543(a). "In all
preemption cases, and particularly in those in which Congress has legislated . . . in a field
which the States have traditionally occupied, we start with the assumption that the
historic police powers of the States were not to be superseded by the Federal Act unless
that was the clear and manifest purpose of Congress." Medtronic, Inc. v. Lohr, 518 U.S.
470, 485 (1996) (citation and internal quotation marks omitted). In undertaking this
analysis, "Congressional purpose is the 'ultimate touchstone' of our inquiry." Lorillard
Tobacco Co. v. Reilly, 533 U.S. 525, 541 (2001) (quoting Cipollone v. Liggett Group, Inc.,
505 U.S. 504, 516 (1992)). Plaintiff contends that no deference is due the City
Ordinance, because it allegedly does not touch on the historic police powers of the State,
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and Section 209(a) makes clear that preemption was the clear and manifest purpose of
Congress. The Court rejects this argument.
Texas state law authorizes cities such as Dallas to regulate taxicabs and the Dallas
City Charter grants the City the authority to regulate vehicles for hire and also permits
the City to grant franchises to those companies using its streets and roadways. Tex. Loc.
Gov't Code § 215.004; see Dallas City Charter § 13; Dallas City Charter Ch. XIV.
Dallas regulates the taxicab industry through Chapter 45 of the Dallas City Code and
has regulated taxicabs for decades.
Even looking at the broader automobile industry, Section 209(d) preserves state
and local authority over use and operations of vehicles. 42 U.S.C. § 7543(d). As the
D.C. Circuit has observed, "the longstanding scheme of motor vehicle emissions control
has always permitted the states to adopt in use regulations-such as carpool lanes,
restrictions on car use in downtown areas, and programs to control extended idling of
vehicles-that are expressly intended to control emissions." Engine Mfrs. Ass'n v. EPA, 88
F.3d 1075, 1094 (D.C. Cir. 1996). Here, the City has created an incentive for taxicabs
to use CNG powered engines to reduce problems such as "smog, haze, and health issues."
Dallas Ordinance No. 27831.
In enacting Section 209, Congress was careful to distinguish between state and
local measures governing the use of automobiles (even outside the scope of the closely
regulated taxicab industry) and measures that would regulate emissions characteristics
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of new vehicles in a way that would effectively mandate manufacture of a distinct type
of vehicle. Congress was at pains to make clear that only the latter type of measures fall
within the express statutory preemption provision. As the Senate Report explained, the
statute provides "for Federal preemption of the right to set standards on new motor
vehicles and new motor vehicle engines only," while including "[s]pecific language
indicating the committee's position on the rights of the States to control the movement,
operation, and use of licensed or registered vehicles." S. Rep. No. 90-403, at 34 (1967).
As the report emphasized, "[t]his language is of particular importance," noting that "any
significant advance in control of used vehicles would result in a corresponding reduction
in air pollution," and that "[t]hese are areas in which the States and local government
can be most effective." Id.; see also H.R. Rep. No. 90-728, reprinted in 1967
U.S.C.C.A.N. 1938, 1957 (discussing what is now Section 209 of the Clean Air Act and
noting that "[t]he ability of those engaged in the manufacture of automobiles to obtain
clear and consistent answers concerning emission controls and standards is of
considerable importance so as to permit economies in production," indicating the limited
function of this provision); 42 U.S.C. § 7401(a)(3) (finding that "air pollution
prevention (that is, the reduction or elimination, through any measures, of the amount
of pollutants produced or created at the source) and air pollution control at its source
is the primary responsibility of States and local governments").
This is consistent with the structure of the Clean Air Act as a whole, which largely
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preserves the traditional role of states in controlling air pollution. Engine Mfrs. Ass'n v.
South Coast Air Quality Mgmt. Dist., 498 F.3d 1031, 1042 (9th Cir. 2007); see Huron
Portland Cement Co. v. Detroit, 362 U.S. 440, 442 (1960) ("Legislation designed to free
from pollution the very air that people breathe clearly falls within the exercise of even
the most traditional concept of what is compendiously known as the police power"); see
also Green Mountain Chrysler Plymouth Dodge Jeep v. Crombie, 508 F. Supp. 2d 295, 350 (D.
Vt. 2007) ("Congress acknowledged that the regulation of air pollution from mobile
sources was traditionally a state responsibility.").
After thorough review of the
Congressional history of Section 209 of the Clean Air Act, it is apparent that the
Congressional purpose of Section 209 was only to assure national uniformity of
emissions standards by preempting enforceable standards that relate to the control of
emissions for new motor vehicles or new motor vehicle engines.
2.
Meaning of "Standard" Under Section 209(a)
To conclude that the Ordinance is preempted would also require this Court to
expand Section 209(a) beyond its focus on enforceable standards of the type
contemplated by the statute. As the Supreme Court noted in Engine Mfrs. Ass'n v. South
Coast Air Quality Mgmt. Dist., 541 U.S. 246, 252-53, 255 (2004), in interpreting the
scope of Section 209(a), due weight must be given to the provision's use of the phrase
"attempt to enforce" and its implications for the meaning of "standard." The Court in
that case concluded that a rule cannot escape preemption of the Clean Air Act merely
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because it addresses the purchase of vehicles, rather than their manufacture or sale. The
Court reasoned that "[a] command, accompanied by sanctions, that certain purchasers
may buy only vehicles with particular emission characteristics is as much an 'attempt to
enforce' a 'standard' as a command, accompanied by sanctions, that a certain percentage
of a manufacturer's sales volume must consist of such vehicles." Id. at 255. As the Court
stressed, that reasoning did not require the conclusion that Section 209(a) preempts
"voluntary incentive programs," explaining that "[i]t is at least arguable that the phrase
'adopt or attempt to enforce any standard' refers only to standards that are enforceable."
Id. at 258.
As is readily apparent from the Supreme Court's discussion of the enforcement of
"standards" in Engine Mfrs., Congress used those terms throughout Title II to refer to
enforceable requirements to manufacture vehicles with particular kinds of emission
controls or particular emissions levels or, alternatively, enforceable requirements to
purchase vehicles with particular kinds of emission controls or particular emissions
levels. Plaintiff asserted in its Response that "nothing in the words of § 209(a) supports
such a narrow construction of this decidedly broad statute."
However, where a
regulation "neither dictates permissible pollutant levels nor mandates emission control
technology," it is not a "standard" under Section 209 of the Clean Air Act. See Nat'l Ass'n
of Home Builders v. San Joaquin Valley Unified Air Pollution Control Dist., No. CV F 07-0820
LJO DLB, 2008 U.S. Dist. LEXIS 70931, at *35 (E.D. Cal. Sept. 18, 2008).
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Here, an incentive program like the Ordinance, unlike a command to purchase or
manufacture vehicles with particular kinds of emission controls, is not an enforceable
requirement with respect to emissions. Taxicab owners and drivers can still choose what
type of vehicle to use. Additionally, they are not bound by the Ordinance anywhere in
the City, except at Love Field. The Ordinance is ultimately not a “standard” pursuant
to Section 209 and merely incentivizes taxicab owners and drivers.
3.
Incentives Versus "Standards Relating to Control of Emissions"
Plaintiff asserts that the only means of obtaining a CNG vehicle is by purchasing
a new engine and, therefore, falls into the purview of Section 209(a)'s preemption
provision concerning "new motor vehicles or new motor vehicle engines." Plaintiff
neglects the remainder of the section. Section 209(a) states: "No State or any political
subdivision thereof shall adopt or attempt to enforce any standard relating to the control
of emissions from new motor vehicles or new motor vehicle engines subject to this part."
42 U.S.C. § 7543(a). An adoption or an attempt to enforce a standard relating to
emissions is also required.
ATO relies on Engine Mfrs. to argue that the Ordinance imposes a standard by
requiring taxicabs to obtain a certain type of "pollution-control device . . . or design
feature related to the control of emissions." However, the Ordinance does not require
taxicab drivers to purchase a new taxicab or engine, but allows CNG taxicabs to obtain
head-of-the-line privileges. The Ordinance incentivizes, but does not enforce. By their
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very nature, incentive programs lack the kind of enforceable requirements that are
characteristic of standards. This incentive Ordinance is no different. The Ordinance
does not mandate quantitative emissions levels, establish manufacturer requirements,
establish purchase requirements, mandate emissions control technology, or establish a
penalty or fee system; therefore, the Ordinance is not a standard under Section 209(a)
of the Clean Air Act.
4.
Incentives are Distinguished in Metro. Taxicab Case
ATO relies on Metro. Taxicab Bd. of Trade v. City of New York to contend that the
Ordinance directly regulates the relevant preempted subject matter. However, the
present case is inapposite to Metro. Taxicab, because in that case the City of New York's
regulation differs from the Ordinance in the lawsuit before this Court. In Metro. Taxicab,
New York passed rules affecting a taxicab driver's lease rates. 633 F. Supp. 2d 83, 85
(S.D.N.Y. 2009). Under the new rules, if an owner purchased a taxicab with a hybrid
or clean-diesel engine, the rate at which the vehicle could be leased to a driver for a
twelve-hour shift is increased by three dollars. Id. By contrast, an owner's maximum
lease rate that could be charged for other taxicab vehicles (non-hybrid, non-clean diesel
engine, non-wheel chair accessible) was reduced by four dollars in May 2009, then by
eight dollars in May 2010, and twelve dollars in May 2011. Id. Importantly, the court
in Metro. Taxicab explicitly pointed out "what this case is not about." Id. at 87 (emphasis
added). The court stated:
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Nor is there a question whether New York City can incentivize the
purchase of certain types of taxicabs. Several years ago the City issued new
taxi medallions which were limited to hybrid vehicles. See N.Y. City
Administrative Code § 19-532(b) (2003). There was no challenge to the
incentive. Recently the City extended the service life of hybrid vehicles
from three to five years. Id. § 19-535(b) (2006). Again, there was no
challenge to this incentive. Similarly, in the present case, Plaintiffs do not
challenge the $3 per shift "incentive" increase in lease rates for hybrid
taxicabs.
Id. at 87. The Second Circuit on appeal, not only affirmed the district court's ruling in
Metro. Taxicab, but also the district court's statement of what the case is not about. 615
F.3d 152, 155 (2d Cir. 2010), cert. denied, 131 S.Ct. 1569 (2011) ("[f]or obvious reasons,
the plaintiffs did not challenge the $3 upward adjustment of the lease caps for hybrid
taxis, which benefitted them").
There is no question the present case is distinguishable from Metro. Taxicab. In
Metro. Taxicab, the lease caps for non-hybrid, non-clean diesel vehicles were reduced and
taxicab owners were effectively punished. Here, taxicabs with CNG powered engines are
rewarded with head-of-the-line privileges. An incentive, like the one in this case, was
never challenged in Metro. Taxicab. Therefore, any reliance on Metro. Taxicab is not
appropriate, because the present issue was not before the Southern District of New York,
nor the Second Circuit. Furthermore, in Metro. Taxicab, the rules at issue were citywide.
See generally 635 F. Supp. 2d 83. Every taxicab operating in the city of New York was
affected by the regulation. See id. In contrast, the Ordinance at issue in the present case
only applies to taxicabs operating at Love Field, not elsewhere in Dallas.
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5.
Indirect Economic Effects & the Travelers Case
ATO argues that, at a minimum, the Ordinance is preempted because it indirectly
regulates the preempted subject matter. ATO states that "[t]he economic hardship
evidenced by the affidavits of non-CNG taxicab drivers demonstrates that the drivers
have one, basic option if they wish to remain in business at Love Field: drive a CNG
taxicab." ATO relies on N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers
Ins. Co. to support the position that even an indirect incentive can become an effective
mandate, quoting:
[W]e do not hold today that ERISA pre-empts only direct regulation of
ERISA plans, nor could we do that with fidelity to the views expressed in
our prior opinions on the matter. We acknowledge that a state law might
produce such acute, albeit indirect, economic effects, by intent or
otherwise, as to force an ERISA plan to adopt a certain scheme of
substantive coverage or effectively restrict its choice of insurers, and that
such a state law might indeed be pre-empted . . . .
514 U.S. 645, 668 (1995) (internal citations omitted).
ATO does not address the remainder of the Travelers opinion. Travelers dealt with
a New York state statute that required hospitals to collect surcharges from patients
covered by a commercial insurer, but exempted patients insured by Blue Cross/Blue
Shield. Id. at 649. This obviously made Blue Cross/Blue Shield a more attractive option
for administrators of employee benefit plans, and other health care insurers argued that
the statute was preempted by ERISA in that it preempts all state laws insofar as they
"relate to" an employee benefit plan. See id. at 656-59. "The [Supreme] Court noted
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that the law created an 'indirect economic effect' on plan administrators' choices, but
that '[a]n indirect economic influence, however, does not bind plan administrators to
any particular choice and thus function as a regulation of an ERISA plan itself.'" Metro.
Taxicab, 633 F.Supp.2d at 94 (quoting Travelers, 514 U.S. at 659-60). The Supreme
Court determined that the law was not preempted because: "(1) it did not force only
one, preempted, choice; and (2) the manner in which the law indirectly affected ERISA
plan decisions was not part of Congress' preemptive object." Id. Thus, just as the Court
found in Travelers, an incentive Ordinance like the one at issue in this case is not
preempted merely because it creates indirect economic effects.
Although the Supreme Court left open the question that, conceivably, an
incentive could create such acute economic effects as to force (or mandate) a particular
method, no facts in this case demonstrate acute economic effects. The Ordinance only
applies to taxicabs operating at Love Field; taxicabs are free to operate throughout the
City of Dallas unaffected in any way by this Ordinance. This case is similar to the fact
presented in Travelers. Assuming, arguendo, that taxicab drivers have been economically
impacted by the Ordinance, that economic influence may affect a taxicab driver's choices
in what type of taxicab to drive and where to find business, but does not bind the
taxicab driver to purchase a CNG taxicab or prohibit business at Love Field. The
manner in which the Ordinance may indirectly affect the control of emissions is not a
part of Congress' preemptive object. That is, the Ordinance does not preclude the
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Congressional purpose of assuring national uniformity of emissions standards for new
motor vehicles or new motor vehicle engines.
6.
Summary of Reasons for No Preemption
In sum, to find preemption in this case, it would be necessary to conclude: (1)
that Congress intended to preempt the key aspects of local regulation of taxi service by
municipalities, which have long dictated vehicle requirements with a consequent impact
on emissions; (2) that Congress meant to preempt local control of the taxicab industry
despite the Clean Air Act authorizing local regulations to reduce vehicle emissions and
even though the Clean Air Act regulates the purchase and sale of new vehicles to assure
uniformity of standards of manufacturers; (3) that Congress intended preemption
despite the strong evidence of Congressional intent to preserve broad State and local
authority over use and operation of vehicles; and (4) that regulating taxicab holding and
dispatch areas for taxi service constitutes enforcement of standards of the kind
contemplated by the Clean Air Act, notwithstanding the strong indications that
Congress did not intend to preempt incentive programs under Section 209. ATO argues
in its response that the CNG Incentive is either: expressly preempted, field preempted,
preempted due to the fact it is a de facto mandate, or a preempted "standard." Field
preemption occurs when Congress has either expressed a clear intent that federal law will
be exclusive in a field or federal regulation evidences a congressional purpose to
completely occupy a field. See Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev.
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Comm'n, 461 U.S. 190, 204 (1983). The Court rejects each of ATO’s preemption
arguments.
C.
ATO's Alleged § 1983 Claim & Other Alleged Grounds for Relief
ATO did not plead Section 1983 as an independent claim for relief in its Verified
Complaint. In reality, ATO's Verified Complaint sets forth Section 1983 only as a basis
for declaratory and injunctive relief. ATO acknowledged this in its response to the City's
motion, by asserting that ATO has satisfied all the "requisites for a § 1983 suit for an
injunction . . . and for a declaratory judgment . . . ."
In response to the City's position
in its motion for summary judgment that ATO failed to allege a valid property interest
to support a Section 1983 claim (a requisite element to establish municipal liability
under Section 1983), ATO stated that it has a justiciable interest in the enforcement of the
Clean Air Act and the Supremacy Clause.
Thus, an independent Section 1983 claim is not before the Court; nor has ATO
presented a protected property interest. However, even if a Section 1983 claim was
properly before the Court, ATO’s summary judgment argument supporting such a claim
hinges on the “property interest” of a justiciable interest in the enforcement of the Clean Air
Act and the Supremacy Clause. Assuming, arguendo, that this is a valid property interest,
ATO simply re-initiates the question of preemption already discussed by the Court.
Because the Ordinance is not preempted by the Clean Air Act, ATO’s alleged property
interest rights have not been violated.
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To be clear, a claim of preemption under the Supremacy Clause does not require
a showing that a Section 1983 claim would also be proper. However, the Court has
given due consideration to ATO’s claim of preemption under the Supremacy Clause and
has found that ATO’s claims fail in toto.
The Court need not address other statutes highlighted by ATO in its Verified
Complaint and response to the City's motion for summary judgment. All but one of the
remaining statutes mentioned by ATO relate to this Court's jurisdiction to consider the
case now before it. The final statute discusses entitlement to attorneys' fees. Since
ATO's claims have failed as a matter of law, ATO is not entitled to recovery of attorneys'
fees.
IV.
Conclusion
For the aforementioned reasons, the City's Motion for Final Summary Judgment
(Doc. No. 45) is hereby GRANTED. Judgment will be entered by separate document.
Fed. R. Civ. P. 58(a).
SO ORDERED.
Signed March 28th, 2012.
_______________________________________
ED KINKEADE
UNITED STATES DISTRICT JUDGE
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