Janes v. Triborough Bridge and Tunnel Auth. 1

13‐4377‐cv
Janes v. Triborough Bridge and Tunnel Auth.
1
In the
United States Court of Appeals
for the Second Circuit
A UGUST TERM 2014
No. 13‐4377‐cv
R IVA JANES , individually, B RUCE S CHWARTZ , individually and on
behalf of all others similarly situated, ET AL .,
Plaintiffs‐Appellants,
v.
TRIBOROUGH B RIDGE AND TUNNEL A UTHORITY , ET AL .,
Defendants‐Appellees.
On Appeal from the United States District Court
for the Southern District of New York
A RGUED: D ECEMBER 11, 2014
D ECIDED: D ECEMBER 24, 2014
Before: C ABRANES , W ESLEY , and H ALL , Circuit Judges.

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13‐4377‐cv
Janes v. Triborough Bridge and Tunnel Auth.
2
This appeal presents the question of whether New York toll
discounts for residents of certain locales violate the constitutional
right to travel or the dormant Commerce Clause.
We hold, for substantially the reasons stated by the District
Court (Paul A. Engelmayer, Judge), that the toll discount scheme at
issue neither violates the constitutional right to travel nor the
dormant Commerce Clause. Accordingly, the District Court’s
October 17, 2013, judgment is AFFIRMED.
S ETH R. L ESSER (Jeffrey A. Klafter, Klafter
Olsen & Lesser LLP, Rye Brook, NY,
Harley J. Schnall, Law Office of Harley J.
Schnall, New York, NY, on the brief), Klafter
Olsen & Lesser LLP, Rye Brook, NY, for
Plaintiffs‐Appellants.
W ALTER RIEMAN (Steven C. Herzog, Joshua
D. Kaye, on the brief), Paul, Weiss, Rifkind,
Wharton & Garrison LLP, New York, NY,
for Defendants‐Appellees.

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3
PER C URIAM :
This appeal presents the question of whether New York toll
discounts for residents of certain locales violate the constitutional
right to travel1 or the dormant Commerce Clause.2
We hold, for substantially the reasons stated by the District
Court (Paul A. Engelmayer, Judge), that the toll discount scheme at
issue neither violates the constitutional right to travel nor the
dormant Commerce Clause. Accordingly, the District Court’s
October 17, 2013, judgment is AFFIRMED.
1 The Supreme Court has described the “right to travel” as follows:
It protects the right of a citizen of one State to enter and
to leave another State, the right to be treated as a
welcome visitor rather than an unfriendly alien when
temporarily present in the second State, and, for those
travelers who elect to become permanent residents, the
right to be treated like other citizens of that State.
Saenz v. Roe, 526 U.S. 489, 500 (1999).
2 The Constitution’s Commerce Clause empowers Congress “[t]o regulate
Commerce . . . among the several States.” U.S. CONST. art. I, § 8, cl. 3. Courts have also
inferred the existence of a “dormant Commerce Clause” that imposes certain implicit
limitations on state power. McBurney v. Young, 133 S. Ct. 1709, 1719 (2013). As the
Supreme Court has explained:
Our dormant Commerce Clause jurisprudence
significantly limits the ability of States and localities to
regulate or otherwise burden the flow of interstate
commerce. It is driven by a concern about economic
protectionism—that is, regulatory measures designed to
benefit in‐state economic interests by burdening out‐of‐
state competitors.
Id. (internal quotation marks and citations omitted).

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4
BACKGROUND
Plaintiffs are residents of New Jersey and New York
challenging a Triborough Bridge and Tunnel Authority (“TBTA”)
program that provides discounted tolls to residents of Staten Island,
the Rockaway Peninsula, and Broad Channel Island for crossings
over certain bridges. The discounted tolls, called Resident Discounts,
allow residents of Staten Island to pay a reduced rate on the
Verrazano‐Narrows Bridge, which serves as the only direct
vehicular artery connecting Staten Island with the rest of New York
City. The Resident Discounts also allow residents of Rockaway and
Broad Channel to pay a reduced rate when crossing the Marine
Parkway‐Gil Hodges Memorial Bridge and the Cross Bay Veterans
Memorial Bridge.
Plaintiffs appeal from the District Court’s October 17, 2013,
judgment granting defendants’ motion for summary judgment. The
questions before us are whether defendants’ discounts to some New
York City residents violate plaintiffs’ constitutional right to travel or
the dormant Commerce Clause.3
3 Plaintiffs also raised state law claims under the New York State Constitution,
and state common law claims for unjust enrichment and money had and received. In
their brief, however, they concede that “their state law claims rise and fall on the fate of
their federal claims.” Appellants’ Br. 52. Because we reject plaintiffs’ arguments with
regard to their federal claims at issue, their state law claims also fail.

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5
DISCUSSION
We review a district court’s grant of summary judgment de
novo, see Niagara Mohawk Power Corp. v. Hudson River‐Black River
Regulating Dist., 673 F.3d 84, 94 (2d Cir. 2012), with “[a]ll evidence
submitted on the motion . . . construed in the manner most favorable
to the nonmoving party,” Horvath v. Westport Library Assʹn, 362 F.3d
147, 151 (2d Cir. 2004).
In the instant case, we have, as Judge Engelmayer noted in his
thorough opinion, the benefit of an “unusually apposite circuit
precedent” to guide our analysis here. Janes v. Triborough Bridge &
Tunnel Auth., 977 F. Supp. 2d 320, 329 (S.D.N.Y. 2013). In Selevan v.
New York Thruway Authority, 584 F.3d 82 (2d Cir. 2009) (“Selevan I”)
and Selevan v. New York Thruway Authority, 711 F.3d 253 (2d Cir.
2013) (“Selevan II”), we similarly encountered plaintiffs challenging a
residency‐based toll discount on the grounds that it violated their
constitutional right to travel and the dormant Commerce Clause.
Accordingly, the Selevan decisions guide our analysis here.
I. Right to Travel
Plaintiffs’ principal argument on appeal is that the toll
discounts are predicated on an “invidious distinction” between
residents and non‐residents and thus violate their constitutional
right to travel. In Selevan II, we held that where, as here, toll
differentials amounted only to a “minor restriction on travel,” strict

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6
scrutiny review4 was not required. Id. at 261. Instead, a toll policy
lacking the markers of “invidious distinctions” should be analyzed
under the three‐part test set forth in Northwest Airlines, Inc. v. County
of Kent, 510 U.S. 355 (1994). Selevan II, 711 F.3d at 258. After
analyzing the tolls under the Northwest Airlines test,5 we concluded
in Selevan II that the scheme at issue did not violate plaintiffs’ right
to travel. Id. at 259‐261.
In the case before us, plaintiffs have presented no persuasive
evidence showing that the discounts at issue here are materially
different from those in Selevan or that they present more than a
minor restriction on travel. In fact, the tolls here amount to a smaller
discount than the tolls in Selevan when viewed in percentage terms.
Moreover, the residents who qualified for the discounted tolls in
Selevan and those who qualify in the instant case face comparable
levels of geographical isolation. Similarly, the tolls charged in both
Selevan and here are used to defray the cost of bridges, and, in the
present case, the facilities of a large integrated transportation
4 “Strict scrutiny” is, of course, a form of judicial review used by courts to
determine the constitutionality of certain statutes. In contrast to other “levels” of
scrutiny, for a statute to be deemed constitutional under strict scrutiny analysis, it must
have been passed by the legislature to further a compelling governmental interest and
must have been narrowly tailored to achieve that interest. See, e.g., Saenz, 526 U.S. at 499,
504 (striking down a California law under strict scrutiny analysis that limited welfare
benefits for citizens that had not been domiciled in the state for more than a year).
5 Under the Northwest Airlines test, the permissibility of fees charged for the use
of state facilities is evaluated under three prongs, which ask whether the fee “(1) is based
on some fair approximation of use of the facilities, (2) is not excessive in relation to the
benefits conferred, and (3) does not discriminate against interstate commerce.” 510 U.S.
at 369.

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7
system, the operation of which facilitates interstate travel.6 Finally,
no evidence has been presented showing that even one traveler was
meaningfully dissuaded from traveling interstate because of the tolls
at issue.
Accordingly, the plaintiffs’ right to travel argument stands on
weak ground and does not merit strict scrutiny analysis. Therefore,
the District Court correctly analyzed the Resident Discounts under
the Northwest Airlines test. We also agree with the District Court’s
well‐reasoned conclusion that the tolls at issue satisfy the various
prongs of that test.
II. Dormant Commerce Clause
The Supreme Court has explained that the “central rationale”
for the dormant Commerce Clause “is to prohibit state or municipal
laws whose object is local economic protectionism, laws that would
excite those jealousies and retaliatory measures the Constitution was
designed to prevent.” C & A Carbone, Inc. v. Town of Clarkstown, 511
U.S. 383, 390 (1994). But “the Commerce Clause does not invalidate
all State restrictions on commerce.” Selevan I, 584 F.3d at 90 (internal
quotation marks and alterations omitted).
6 Appellees have demonstrated that the tolls at issue provide crucial revenue that
supports the larger Metropolitan Transportation Authority system. See Joint App’x 1027,
1139. Moreover, as one expert noted, “people using the [Verrazano, Cross Bay, and
Marine Parkway Bridges] receive the direct benefits of the mass transportation system,
which the tolls are used to support. That system diverts numerous travelers in the region
from the roadways to mass transportation, and makes it possible for users of the
roadways to travel without excessive road congestion.” Id. at 248.

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In Selevan I, we concluded that a dormant Commerce Clause
claim for a highway toll challenge substantially similar to the one
presented here should also be analyzed under the same three‐part
test set forth in Northwest Airlines, which we applied in our analysis
of plaintiffs’ right to travel claim. Id. at 96. As we noted above, we
agree with the District Court’s conclusion that the Resident Discount
satisfies the prongs of the test. Thus, plaintiffs’ dormant Commerce
Clause challenge fails for the same reasons as does their right to
travel claim.
CONCLUSION
Accordingly, we hold, for substantially the reasons articulated
by the District Court, that the toll discount scheme at issue neither
violates the constitutional right to travel nor the dormant Commerce
Clause.
For the reasons set forth above, we AFFIRM the District
Court’s October 17, 2013, judgment.

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