The opinion of the court was delivered by: ROBERT CARTER, Senior District Judge
The plaintiff Jennifer Saunders brought this suit on behalf of herself
and others similarly situated. She and the class are seeking to enjoin
the use of a discount program offered to users of the electronic toll
system E-ZPass operated by the defendants, the Port Authority of New York
and New Jersey ("Port Authority") and the Metropolitan Transportation
Authority ("MTA"). The plaintiffs claim that the E-ZPass Discount Program
("EZDP") violates the Commerce Clause, U.S. Const., Art. I, § 8 cl. 3,
and their civil rights under 42 U.S.C. § 1983, including the fundamental
right to travel.
The plaintiff is a resident of Pennsylvania, a state that participates
in the E-ZPass program, however the plaintiff has chosen not to
participate in the EZDP. On July 5, 2002, the plaintiff traveled across
the George Washington Bridge and paid the full-undiscounted cash fare of
$6. Compl. ¶ 41.
Port Authority is a bi-state governmental agency run by twelve
commissioners and created to better coordinate terminals, bridges, and
tunnels of commerce in, about, and through the Port of New York. N.Y.
Unconsol. Law § 6401 (McKinney 2000), N.J.SA. 32:1-1 to 32.1-176;
(Compl. ¶ 6). Its responsibilities include the construction,
maintenance, operation, and control of all bridges and tunnels connecting
New York and New Jersey, including the Goethals Bridge, the Holland
Tunnel, the Lincoln Tunnel and the George Washington Bridge. N.Y.
Unconsol. Law § 6401 (McKinney 2000), N.J.SA. 32:1-118 et seq.
As authorized by the courts and legislature, Port Authority collects
tolls at its bridges and tunnels to finance the cost of their operation.
See Wallach v. Brezenoff, 930 F.2d 1070, 1072 (3rd Cir. 1991) (upholding
Port Authority's right to collect tolls and raise them as deemed
necessary to maintain the system of bridges, tunnels, and commuter
trains). Since 1998, Port Authority has used an electronic toll
collection system called E-ZPass to facilitate the collection of tolls.
The toll rates for automobiles as of July 2002 are as follows: $4.00
off-peak, $5.00 peak*fn1 for customers participating in the EZDP and $6.00
cash at all times. The Port Authority also has a special discount plan
applicable to the Staten Island Bridges.*fn2 The plan charges customers
$50 for 20 trips across the Staten Island Bridges in a 35-day period. The
customer is billed for 20 trips even if her use of the bridges falls
short of that number. The discounted plan is available to any E-ZPass
customer who enrolls in the plan and is not based on residency.
Distinct from Port Authority, the MTA is a public benefit corporation
chartered by the state of New York. Comp. ¶ 8. Through its constituent
agency, the Triborough Bridge and Tunnel Authority, the MTA operates
seven bridges and two tunnels in New York. The MTA operates the
Triborough Bridge, Throgs Neck Bridge, Bronx-Whitestone, Bridge,
Verranzano Bridge, Brooklyn-Battery Tunnel, Queens Midtown-Tunnel, Henry
Hudson Bridge, Cross Bay Bridge, and the Marine Parkway Bridge.
In the EZDP, tolls are collected electronically from a transponder
("tag") attached to the windshield of the customer's car as the customer
passes through the toll plaza. Anyone is eligible to join the program;
there are no residency requirements. Interested individuals must simply
(1) complete an application that may be obtained online or by contacting
one of several E-ZPass Customer Service Centers in New York and New
Jersey, (2) select a payment method, and (3) submit the application.
Compl. ¶ 15, Ex. 1. Customers are encouraged to set up their account
at the Service Center associated with the facilities they use most
frequently. Mem. in Supp. of Mot. at 2. Once the application and payment
are received the service center supplies the applicant with an E-ZPass
tag. The tag can be used at any toll plaza where the E-ZPass logo is
displayed. In addition to New York and New Jersey, the E-ZPass system is
used in several other states in the region, namely, Delaware, Maryland,
Massachusetts, Pennsylvania, and Connecticut, and anywhere else the E-ZPass logo is displayed. Compl. ¶
12, Ex. 1.
The defendant now files a motion to dismiss the claim under Federal
Rules of Civil Procedure 12(b)(6) for failure to state a claim upon which
relief can be granted. The court's duty "is merely to assess the legal
feasibility of the complaint and not to assay the weight of the evidence"
to be offered at trial. Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir.
1998). All factual allegations in the complaint must be accepted as true
and the complaint must be viewed in the light most favorable to the
plaintiff. LaBounty v. Adler, 933 F.2d 121, 123 (2nd Cir. 1991). "Although
bald assertions and conclusions of law are insufficient, the pleading
standard is nonetheless a liberal one." Parsky, 140 F.3d at 440.
The court must apply this standard in considering the plaintiff's
allegations. The plaintiff challenges the EZDP on four grounds:
1) It is an invalid user fee unrelated to actual
highway usage and therefore not a uniform, fair
and practical standard directly related to the
purpose and amount of service;
2) It is discriminatory in its practical effect
i. The vast majority of EZDP participants are
New York and New Jersey residents and so the
program offers a privilege far more valuable
to local interests, despite offering the
same nominal privilege to non-residents;
ii. The defendants intended to and have in fact
economically benefited New York and New Jersey
residents; accordingly, it imposes substantially
higher and a disproportionate share of the
state's highway costs onto non-residents thereby
economically benefiting in-state interests to
the detriment of out-of-state interests;
3) It discriminates on its face by: i. Not providing discounts to other electronic toll
collection systems, like Maine's Transpass
system, offered by other states, and
ii. Charging a different fee for using the same
4) The "economic decision" and restructuring of the
burdens arguments advanced by the defendants are
not legitimate local interests
5) The market participant theory does not apply to
channels of interstate commerce which include
highways, airports, and seaports; and
6) The burden imposed on out-of-state interests is
clearly excessive in relation to the local
interest. Pl. Opp. To Mot. at 4, 5.
The plaintiff alleges that the E-ZPass program favors residents of New
York and New Jersey over non-residents, thereby burdening interstate
commerce in violation of the Commerce Clause of the United States
Constitution. Compl. ¶¶ 38, 39, 42. The plaintiff also alleges that the
EZDP unconstitutionally abridges her right to travel under
42 U.S.C. § 1983. Id.
The Commerce Clause grants Congress the power to "regulate Commerce
with foreign nations and among the several states." U.S. Const., Art. I,
§ 8 cl. 3. The courts have also interpreted a negative duty of the States
not to constrain the free flow of interstate commerce. To determine
whether a state law violates this implied protection of the Commerce
Clause, first the court must examine whether the law, "regulates
evenhandedly with only `incidental' effects on interstate commerce, or
discriminates against interstate commerce." Hughes v. Oklahoma
441 U.S. 322, 326 (1979). The Supreme Court has defined discrimination as
the "differential treatment of in-state and out-of-state economic
interests that benefits the former and burdens the latter." Oregon Waste
Systems, Inc., Department of Environmental Quality, 51 U.S. 93, 99
(1994). In effect, a state regulation is constitutional when it operates
in a balanced way to promote a legitimate local public interest and has only an incidental effect on interstate commerce,
but only if the burden imposed on such commerce is not plainly excessive
in relation to the putative local benefits. Pike v. Bruce Church, Inc.,
397 U.S. 137, 142 (1970).
The tolls at issue constitute user fees, and as such are generally
permitted by the Commerce Clause. Such fees are paid as compensation for
the use or privilege of use of "special facilities" furnished and paid
for by the state and provided for the benefit of those engaged in
commerce. Evansville-Vanderburgh Airport Authority v. Delta Airlines,
Inc., 405 U.S. 707, 713 (1972). In Evansville -Vanderburgh the Supreme
Court allowed state and municipal authorities to collect a fee intended
to defray the cost of maintenance from all deboarding passengers. The