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Case 1:08-cv-07837-PAC Document 51 Filed 10/31/2008 Page 8 of 26 Supremacy Clause of the Constitution, must prevail, thus presents a federal question which the federal courts have jurisdiction under 28 U.S.C. § 1331 to resolve.”); see also Indep. Living Ctr. of S. Cal., Inc. v. Shewry, No. 08-56061, 2008 WL 4224917, at *13 (9th Cir. Sept. 17, 2008) (“[N]one of the Court’s seminal preemption cases casts any doubt on the presumptive availability of declaratory and injunctive relief under the Supremacy Clause; to the contrary, the Court has consistently assumed—without comment—that the Supremacy Clause provides a cause of action to enjoin implementation of allegedly unlawful state legislation.”). Defendants suggest that Plaintiffs do not satisfy Article III standing requirements because Plaintiffs have not suffered an invasion of a legally protected interest. Under Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), the constitutional standing requirement has three elements: First, the plaintiff must have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Id. at 560-61 (internal citations, quotation marks, and alterations omitted). Defendants argue that any legally protected interest under the EPCA and the CAA belongs exclusively to the automobile manufacturers, not at all to the Plaintiffs. But it would cause considerable mischief to recognize the City’s argument that the absence of an objection by the auto manufacturers enables it to do whatever it wishes, regardless of the language of the EPCA and the CAA. Lujan itself points out that where a suit challenges the legality of government action, a plaintiff’s ability to establish standing “depends considerably upon whether the plaintiff is himself an object of the action (or forgone action) at issue. If he is, there is ordinarily little question that the action or inaction has caused him injury, and that a judgment preventing or requiring the action will 8
Case 1:08-cv-07837-PAC Document 51 Filed 10/31/2008 Page 9 of 26 redress it.” Id. at 561-62. Here, Plaintiffs, not auto manufacturers, are the subject of the 25/30 Rules, and they are the ones who will suffer injury by the imposition of the City’s regulations. The Court finds that Plaintiffs have standing to bring this action. III. Irreparable Harm and the Likelihood of Recovery Under § 1983 Plaintiffs claim that they will suffer irreparable harm because they will incur financial damages under the 25/30 Rules. 9 Plaintiffs contend that the available hybrid vehicles are more expensive to purchase, maintain, and repair, as compared to the Crown Victoria LWB. (See, e.g., Saylor Decl. Ex. A ¶¶ 120-29; Reply Declaration of Elizabeth Saylor (“Saylor Reply”) Ex. EE, Ex. HH, Ex. MM; Reply Declaration of Ronald Sherman (“Sherman Reply”) ¶ 9.) These transactional costs are identifiable and readily calculable. Normally they would not be considered irreparable, if they were recoverable. Plaintiffs argue, however, that they have no private right of action and cannot recover their damages under 42 U.S.C. § 1983. Section 1983 does not create a private right of action. It provides a mechanism for recovery where the Constitution or relevant statute gives a citizen a right to an action. See Golden State Transit Corp. v. Los Angeles, 493 U.S. 103, 108 (“In all cases, the availability of the § 1983 remedy turns on whether the statute . . . creates obligations sufficiently specific and definite to be within the competence of the judiciary to enforce, is intended to benefit the putative plaintiff, and is not foreclosed by express provision or other specific evidence from the statute itself.”) (internal citations and quotations omitted). Thus, a plaintiff with standing to sue for federal preemption under the Supremacy Clause does not necessarily also have a claim for damages under § 1983. See e.g., Loyal Tire & Auto Ctr., Inc. v. Town of Woodbury, 445 F.3d 136, 149 (2d Cir. 2006); Wachovia Bank, N.A., v. Burke, 414 F.3d 305, 321 (2d Cir. 2005). A 9 Plaintiffs also claim that they will suffer irreparable physical damages from the 25/30 Rules because the TLC-approved hybrid taxis are untested and unsafe. The Court does not rule on that claim at this time. 9
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