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22-1620-cv

Oles v. City of New York

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. 

CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS 

PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE 

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A 

SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY 

MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE 

(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY 

ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY 

COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, 

2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 

City of New York, on the 5 3 th day of May, two thousand twenty-three.

4

5 PRESENT: ROBERT D. SACK,

6 RAYMOND J. LOHIER, JR.,

7 SUSAN L. CARNEY,

8 Circuit Judges.

9 ------------------------------------------------------------------

10 WARD OLES, individually and on behalf of all 

11 others similarly situated, PATRICIA REED, 

12 individually and on behalf of all others similarly 

13 situated,

14

15 Plaintiffs-Appellants,

16

17 v. No. 22-1620-cv

18

19 CITY OF NEW YORK, acting through the New 

20 York City Police Department and New York City 

21 Department of Finance, MARY GOTSOPOULIS, 
2

1 JEFFREY SHEAR,

2

3 Defendants-Appellees.*

4

5 ------------------------------------------------------------------

6 FOR PLAINTIFFS-APPELLANTS: ROBERT B. LOWER, Lower 

7 Law PLLC, New York, 

8 NY

9

10 FOR DEFENDANTS-APPELLEES: JEREMY PEPPER, Assistant 

11 Corporation Counsel 

12 (Richard Dearing, 

13 Melanie T. West, on the 

14 brief), on behalf of Hon. 

15 Sylvia O. Hinds-Radix, 

16 Corporation Counsel of 

17 the City of New York, 

18 New York, NY

19

20 Appeal from orders entered in the United States District Court for the 

21 Southern District of New York (Lorna G. Schofield, Judge).

22 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 

23 AND DECREED that the orders of the District Court are AFFIRMED.

24 Ward Oles and Patricia Reed appeal from orders of the United States 

25 District Court for the Southern District of New York (Schofield, J.) dismissing

26 their due process, excessive fines, and equal protection claims, and denying leave 

27 to amend their complaint to add preemption, compelled speech, interstate 

* The Clerk of Court is directed to amend the caption as set forth above.
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1 commerce, and void-for-vagueness claims. On appeal, the Appellants allege that 

2 the City of New York violated their rights under federal law by imposing $234.60 

3 in fees and fines for parking a non-commercial vehicle with commercial plates in 

4 a commercial parking zone in violation of 34 R.C.N.Y. §§ 4-08(l)(3)(ii) and 4-

5 08(k)(1). We assume the parties’ familiarity with the underlying facts and the 

6 record of prior proceedings, to which we refer only as necessary to explain our 

7 decision to affirm.

8 I. Dismissal of Appellants’ Claims

9 We review the District Court’s dismissal of Appellants’ due process, 

10 excessive fines, and equal protection claims de novo, “accepting all factual 

11 allegations in the complaint as true and drawing all reasonable inferences in 

12 [Appellants’] favor.” Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Secs., LLC, 

13 797 F.3d 160, 169 (2d Cir. 2015).

14 a. Substantive Due Process

15 We begin with Appellants’ substantive due process claims. “[T]o 

16 determine whether a government regulation infringes on a substantive due 

17 process right, we first identify the constitutional right at stake or the deprivation 

18 of property interest at issue.” Goe v. Zucker, 43 F.4th 19, 30 (2d Cir. 2022) 
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1 (quotation marks omitted), cert denied sub nom. Goe v. McDonald, No. 22-404, 

2 2023 WL 2563315 (U.S. March. 20, 2023). “If we identify either, we then assess 

3 whether the government’s alleged conduct shocks the conscience.” Id. 

4 Assuming that the Appellants have a constitutionally protected interest in the 

5 $234.60 they paid in fees and fines, they have not alleged that the City engaged in 

6 “egregious” or “outrageous” conduct by simply enforcing its traffic rules. 

7 Charles v. Orange County, 925 F.3d 73, 85 (2d Cir. 2019). We therefore conclude 

8 that the District Court did not err in dismissing Appellants’ substantive due 

9 process claim.

10 b. Procedural Due Process

11 We next turn to Appellants’ procedural due process claim. Appellants 

12 primarily allege that the City’s ticket dispute procedure, which is administered 

13 by the City’s Department of Finance (DOF) and conducted by administrative law 

14 judges (ALJs), violated their due process rights in four ways: (1) they did not 

15 receive notice of their DOF hearings, (2) they did not receive notice of their 

16 opportunity to appeal the violation decisions reached in those hearings, (3) the 

17 ALJs who presided over their hearings were biased, and (4) the cost of disputing 

18 the fines and fees exceeded their value.
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1 We conclude that Appellants have failed adequately to state a procedural 

2 due process claim. First, even assuming that Appellants did not receive notice of 

3 the DOF hearings, their complaint states that they received notice of a pre4 deprivation procedure, through which they pleaded “Not Guilty” and submitted

5 statements supporting the dismissal of their violations. See Rivera-Powell v. 

6 N.Y.C. Bd. of Elections, 470 F.3d 458, 461 (2d Cir. 2006). Second, contrary to their 

7 allegations, Appellants’ hearing decisions clearly state that Appellants had 

8 “thirty (30) days to appeal a guilty determination.” Joint App’x 51, 53. In any 

9 case, city officials are not required to “inform individuals of all [their] procedural 

10 guarantees,” such as the opportunity to appeal, where public resources provide 

information about them.1 11 See Liberian Cmty. Ass’n of Conn. v. Lamont, 970 F.3d 

12 174, 192 (2d Cir. 2020) (citing City of West Covina v. Perkins, 525 U.S. 234, 240-41 

13 (1999)). Third, we assume that ALJs are “unbiased” absent a “specific showing 

14 of conflict of interest or reason for disqualification.” Doolen v. Wormuth, 5 F.4th 

15 125, 135 (2d Cir. 2021). And in any event, Appellants failed to avail themselves 

1 We take judicial notice that DOF’s website, for example, explains how to appeal 

a hearing decision. See New York City Department of Finance, Appeal a 

Hearing Decision, available at

https://www.nyc.gov/site/finance/vehicles/dispute-appeal-hearing.page (last 

accessed Apr. 13, 2023).
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1 of an Article 78 proceeding, which is a “a wholly adequate post-deprivation 

2 hearing for due process purposes.” Green v. Dep’t of Educ., 16 F.4th 1070, 1077 

3 (2d Cir. 2021) (quotation marks omitted). For these reasons, we identify no error

4 in the District Court’s dismissal of Appellants’ procedural due process claim.

5 c. Excessive Fines

6 We next turn to Appellants’ excessive fines claim. Appellees do not 

7 dispute that the Eighth Amendment’s Excessive Fines Clause applies in this case, 

8 so we proceed to consider “whether the challenged forfeiture is 

9 unconstitutionally excessive,” which requires us to weigh four factors: 

10 (1) the essence of the crime of the defendant and its relation to other

11 criminal activity, (2) whether the defendant fits into the class of 

12 persons for whom the statute was principally designed, (3) the 

13 maximum sentence and fine that could have been imposed, and 

14 (4) the nature of the harm caused by the defendant’s conduct.

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16 United States v. Viloski, 814 F.3d 104, 109-10 (2d Cir. 2016) (quotation marks 

17 omitted). Appellants focus on the third factor, alleging that the City cannot 

18 impose fines and fees exceeding $50 for violations of its display requirements. 

19 But New York State law explicitly authorizes the City to impose fines and fees of 

20 $100, plus a $15 surcharge, for violations relating to stopping and standing, like 

21 those at issue here. See N.Y. Veh. & Traf. Law §§ 237(2)(a)(i), 1809-a(1). Having 
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1 independently weighed the remaining factors, we agree with the District Court’s 

2 conclusion that Appellants failed to allege that their $234.60 fine was 

3 “constitutionally excessive.” Viloski, 814 F.3d at 109. Accordingly, we conclude 

4 that the District Court did not err in dismissing Appellants’ excessive fines claim.

5 d. Equal Protection

6 Finally, we consider Appellants’ equal protection claim, which arises from 

7 the City’s alleged practice of exempting vehicles of “nationally recognized 

8 companies” from its display requirements. Joint App’x 28 n.37 (quotation marks 

9 omitted). Where, as here, a challenged regulation “does not employ suspect 

10 classifications or impinge on fundamental rights,” we apply rational basis 

11 review, pursuant to which we determine whether “the legislative means are 

12 rationally related to a legitimate governmental purpose.” Concerned Home Care 

13 Providers, Inc. v. Cuomo, 783 F.3d 77, 91 (2d Cir. 2015) (quotation marks 

14 omitted). The City’s display requirements, which advance the City’s legitimate 

15 interest in identifying commercial vehicles and limiting the use of commercial 

16 parking spaces to those vehicles, satisfy that standard. The City rationally 

17 exempted vehicles of “nationally recognized companies” from those

18 requirements because such vehicles are readily identifiable. We therefore 
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1 conclude that the District Court did not err in dismissing Appellants’ equal 

2 protection claim.

3 II. Denial of Leave to Amend

4 We now turn to the District Court’s denial of leave to amend to add 

5 Appellants’ proposed preemption, compelled speech, interstate commerce, and 

6 void-for-vagueness claims. Because the District Court’s denial was based on 

7 futility, we review its conclusions with respect to those claims de novo. See In re 

8 Trib. Co. Fraudulent Convey. Litig., 10 F.4th 147, 159 (2d Cir. 2021), cert. denied 

9 sub nom. Kirschner v. FitzSimons, 142 S. Ct. 1128 (2022). “Futility is a 

10 determination, as a matter of law, that proposed amendments would fail to cure 

11 prior deficiencies or to state a claim . . . .” Id. at 175 (quotation marks omitted).

12 First, Appellants sought to allege that sections 4-01(b)(i) and 4-08(k)(1) of 

13 title 34 of the Rules of the City of New York are preempted by 49 U.S.C §§ 14501, 

14 14506, and 31141. Sections 14501 and 31141 do not conflict with sections 4-

15 01(b)(i) and 4-08(k)(1), however, because they do not involve display 

16 requirements. And although section 14506 addresses “display . . . of 

17 identification,” it applies only to “motor carrier[s],” “motor private carrier[s],” 

18 “freight forwarder[s],” and “leasing compan[ies]”—terms that refer to “persons”
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1 who provide transportation for compensation. See 49 U.S.C. §§ 13102(8), (14), 

2 (15) (defining terms in section 14506). Oles does not contend that he is a motor 

3 carrier, motor private carrier, freight forwarder, or leasing company. In fact, he 

4 concedes that when he received the parking tickets, he was driving the truck to 

5 pick up a couch for personal purposes—not compensation. That the City’s 

6 display requirements, but not the federal regulations, apply to Oles’s conduct 

7 illustrate that the City’s display requirements do not “conflict[] with federal law 

8 such that it is impossible for a party to comply with both.” N.Y. SMSA Ltd. 

9 P’ship v. Town of Clarkstown, 612 F.3d 97, 104 (2d Cir. 2010). We therefore 

10 conclude that the District Court did not err in denying leave to amend to add 

11 Appellants’ proposed preemption claims.

12 Second, Appellants sought to allege that the City’s display requirements 

13 violate their First Amendment rights by compelling them to share the name and 

14 address associated with their commercial plates. This Court has recognized that 

15 compelled disclosures of “purely factual and uncontroversial” information are 

16 subject to rational basis review. N.Y. State Rest. Ass’n v. New York City Bd. of 

17 Health, 556 F.3d 114, 132 (2d Cir. 2009) (quoting Zauderer v. Off. of Disciplinary 

18 Couns., 471 U.S. 626, 650-51 (1985)). As explained above, the City’s display 
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1 requirements easily meet that standard. Because Appellants’ proposed 

2 amendments failed to state a compelled speech claim, we again conclude that the 

3 District Court did not err in denying leave to amend.

4 Third, Appellants sought to amend the complaint to claim that the City’s 

5 display requirements discriminate against interstate commerce and are void for 

6 vagueness. Because Appellants’ proposed amendments with respect to those 

7 claims are wholly conclusory, the District Court did not err in denying leave to 

8 amend to add them. See Noto v. 22nd Century Grp., Inc., 35 F.4th 95, 104 (2d Cir. 

9 2022).

10 We have considered Appellants’ remaining arguments and conclude that 

11 they are without merit. For the foregoing reasons, the orders of the District 

12 Court are AFFIRMED.

13 FOR THE COURT:

14 Catherine O’Hagan Wolfe, Clerk of Court