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Case 1:08-cv-07837-PAC Document 51 Filed 10/31/2008 Page 10 of 26 plaintiff only has a damages claim under § 1983 when a federal statute creates rights enforceable by § 1983. Gonzaga Univ. v. Doe, 536 U.S. 273, 283-84 (2002) (“[A] plaintiff suing under an implied right of action still must show that the statute manifests an intent to create not just a private right but also a private remedy.”) (citation and internal quotations omitted) (emphasis in original); De Los Santos Mora v. New York, 524 F.3d 183, 195 (2d Cir. 2008) (citing Gonzaga, 536 U.S. at 289 n.7). Accordingly, “where the text and structure of a statute provide no indication that Congress intends to create new individual rights, there is no basis for a private suit” under § 1983. Gonzaga, 536 U.S. at 286. The Court in Loyal Tire & Auto Center, Inc. v. Town of Woodbury explained the distinction between a private claim under the Supremacy Clause and a private remedy under § 1983: while a tow truck operator could sue the town alleging that a local law was preempted by a federal transportation law, the operator could not bring § 1983 claims because the federal statute did not “expressly grant any rights to individual motor carriers.” 445 F.3d 136, 150 (2d Cir. 2006). A claim under § 1983 is distinct from a claim under the Supremacy Clause because a Supremacy Clause claim “simply asserts that a federal statute has taken away local authority to regulate a certain activity.” Id. at 149 (citing Western Air Lines, Inc. v. Port Auth. of N.Y. & N.J., 817 F.2d 222, 225 (2d Cir. 1987)). Whether the relevant statute creates a right depends first on Congress’ intent that the provision benefit the plaintiff. Id. Second, the plaintiff “must demonstrate that the right assertedly protected by the statute is not so vague and amorphous that its enforcement would strain judicial competence.” Id. at 150 (citing Wachovia, 414 F.3d at 321-22). Finally, the statute must clearly impose a binding obligation on the states. Id. 10
Case 1:08-cv-07837-PAC Document 51 Filed 10/31/2008 Page 11 of 26 Applying those factors here, there is no indication that Congress intended the EPCA to benefit the individual vehicle owner or user. The focus of the EPCA is on regulating fuel economy standards across an entire fleet of manufacturer vehicle models. See 49 U.S.C. § 32901(a)(6); see also infra Part IV(A). Nothing in the EPCA expressly grants rights to individual drivers or owners. The statute focuses on the regulated parties and does not put an emphasis on the individual. Thus, it is likely that a court would not permit Plaintiffs to recover their expected damages through a § 1983 claim. Additionally, Defendants rejected the Plaintiffs’ offer to withdraw the motion for an injunction if Defendants would stipulate to Plaintiffs’ right to damages if the 25/30 Rules are implemented and then struck down. (See Defendants’ Letter of October 17, 2008 (“Def. Oct. 17 Letter”).) This suggests that the Defendants themselves do not believe that Plaintiffs have a viable damages claim. Finally, Defendants argue that Plaintiffs cannot show irreparable harm because Plaintiffs delayed until the final moment to seek injunctive relief, even though Plaintiffs knew about the impending TLC regulations for months. Defendants argue that Plaintiffs created their own harm through their delay. While a plaintiff’s failure to act promptly in seeking injunctive relief can “undercut[]” the sense of urgency and suggest that there is no irreparable injury, see Citibank, 756 F.2d at 277, that is not the proper analysis here. Citibank, N.A. v. Citytrust dealt with a trademark claim, where the harm was immediately apparent upon infringement of the trademark, so there was no excuse for the filing delay. Id. at 276-77. Courts will excuse a delay, however, where “the harm largely is prospective and will arise from a discrete future event.” Million Youth March, Inc. v. Safir, 18 F. Supp. 2d 334, 340 (S.D.N.Y. 1998). Here, the harm to the Plaintiffs is in the future, and the exact amount and timing of the harm is not clear. In these 11
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