United States Second Circuit

In a dormant Commerce Clause challenge to a toll policy of the New York Thruway Authority (NYTA) that afforded a discount to residents of a particular city in New York and denied the same benefit to all other New Yorkers and to all nonresidents of New York, dismissal of the complaint is affirmed in part where the Privileges and Immunities Clause of Article IV of the Constitution does not apply to foreign citizens. However, the order is reversed in part where: 1) the NYTA did not act as a "market participant" in setting the discriminatory toll rates; 2) plaintiffs did not allege that NYTA's toll policy specifically discriminated against interstate commerce, but the district court failed to resolve whether the policy inadvertently burdened interstate commerce; and 3) the district court erred in applying rational basis review to the policy under the Equal Protection Clause.

Appellate Information

• Decided 10/15/2009
• Published 10/15/2009

Judges

• JOSÉ A. CABRANES, Circuit Judge:, Before CABRANES, POOLER, and KATZMANN, Circuit Judges.

Court

• United States Second Circuit

Counsel

• For Appellant:
  
• Seth R. Lesser (Andrew P. Bell, on the brief), Locks Law Firm PLLC, New York, NY, for Robert Selevan and Anne Rubin., Benjamin Gutman (Andrew M. Cuomo, Attorney General of the State of New York, Barbara D. Underwood, Solicitor General, Peter H. Schiff, Senior Counsel, Robert M. Goldfarb, Assistant Solicitor General, on the brief), Office of the Attorney General of the State of New York, Albany, NY, for New York Thruway Authority and John L. Buono.