1 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 O RDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square , in the 2 City of New York, on the 5 t h day of M a y , two thousand twenty

- three. 3 4 PRESENT: ROBERT D. SACK, 5 RAYMOND J. LOHIER, JR., 6 SUSAN L. CARNEY, 7 Circuit Judges

. 8

------------------------------------------------------------------ 9 WARD OLES, individually and on behalf of all 10 others similarly situated, PATRICIA REED, 11 individually and on behalf of all others similarly 12 situated, 13 14 Plaintiffs

- Appellants , 15 16

v. No. 22

- 1620

- c v 17
18 CITY OF NEW YORK, acting through the New 19 York City Police Department and New York City 20 Department of Finance, MARY GOTSOPOULIS , 212 JEFFREY SHEAR , 1 2 Defendants

- Appellees

. * 3
4

------------------------------------------------------------------ 5 FOR PLAINTIFF S

- APPELLANT S : R OBERT B. L OWER , Lower 6 Law PLLC, New York , 7 NY 8
9 FOR DEFENDANT S

- APPELLEE S : J EREMY P EPPER , Assistant 10 Corporation Counsel 11 (Richard Dearing , 12 Melanie T. West, on the 13 brief ), on behalf of Hon. 14 Sylvia O. Hinds

- Radix, 15 Corporation Counsel of 16 the City of New York, 17 New York, NY 18
19 Appeal from order s entered in the United States District Court for the 20
Southern District of New York (Lorna G. Schofield, Ju dge ). 21
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 22

AND DECREED that the order s of the District Court are AFFIRMED. 23
Ward Oles and Patricia Reed appeal from order s of the United States 24
District Court for the Southern District of New York (Schofield, J. ) dismissing 25

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

to amend their complaint to add preemption, compelled speech, interstat e 27

* The Clerk of Court is directed to amend the caption as set forth above.3 commerce, and void

- for

- vagueness claims. On appeal, the Appellant s allege that 1
the City of New York violated their rights under federal law by imposing $234.60 2

in fees and fines for parking a non

- commercial vehicle with commercial plates in 3

a commercial parking zone in violation of 34 R.C.N.Y. §§ 4

- 08(l)(3)(ii) and 4

- 4
08(k)(1)

. We assume the parties’ familiarity with the underlying facts and the 5
record of prior proceedings, to which we refer only as necessary to explain our 6

decision to affirm. 7

I. Dismissal of Appellants’ Claims 8
We review the District Court’s dismissal of Appellants’ due process, 9
excessive fines, and equal protection claims de novo , “accepting all factual 10
allegations in the complaint as true and drawing all reasonable inferences in 11
[Appellants’] favor.” Lor e ley Fin

. (Jersey) No. 3 Ltd. v. Wells Fargo Secs., LLC , 12
797 F.3d 160, 169 (2d Cir. 2015). 13

a. Substantive Due Process 14
We begin wi th Appellants’ substantive due process claims

. “ [ T ] o 15

determine whether a government regulation infringes on a substantive due 16
process right, we first identify the constitutional right at stake or the deprivation 17
of property interest at issue.” Goe v. Zucker , 43 F.4th 19, 30 (2d Cir. 2022) 184 (quotation marks omitted) , cert denied sub nom. Goe v. McDon ald , No. 22

- 404, 1
2023 WL 2563315 (U.S. March. 20, 2023)

. “If we identify either, we then assess 2
whether the government’s alleged conduct shocks the conscience.” Id. 3

A ssuming that the Appellants have a constitutionally protected interest in the 4
$234.60 they paid in fees and fines, they have not alleged that the City engaged in 5
“egregious” or “outrageous” conduct by simply enforcing its traffic rules. 6
Charles v. Orange C ou nty , 925 F .3d 73, 8 5 (2d Cir. 2019). We therefore conclude 7

that the District Court did not err in dismissing Appellants’ substantive due 8
process claim. 9

b. Procedural Due Process 10

We next turn to Appellants’ procedural due process claim. Appellants 11
primarily allege that the City’s ticket dispute procedure, which is administered 12
by the City’s Department of Finance (DOF) and conducted by administrative law 13
judges (ALJs) , violated their due process rights in four ways: (1) they did not 14
receive notice of their DOF hearings, (2) they did not receive notice of their 15
opportunity to appeal the violation decisions reached in those hearings , (3) the 16
ALJs who presided over their hearings we re biased, and (4) the cost of disputing 17

the fines and fees exceed ed their value

. 185 We conclude that Appellants have failed adequately to state a procedural 1
due process claim. First, even assuming that Appellants did not receive notice of 2
the DOF hearings, their complaint states that they received notice of a pre

3
deprivation procedure, through which they plead ed “Not Guilty” and submit ted 4

statements supporting the dismissal of their violations. See Rivera

- Powell v. 5

N.Y.C. Bd. of Elections , 470 F.3d 458, 461 (2d Cir. 2006). Second , contrary to their 6
allegations, Appellants’ hearing decisions clearly state that Appellants had 7
“thirty (30) days to appeal a guilty determination.” Joint App’x 51, 53. In any 8

case, c ity offici als are not required to “inform individuals of all [ the ir] procedural 9
guarantees,” such as the opportunity to appeal, where public resources provide 10

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

174 , 192 (2d Cir. 2020) (citing City of W est Covina v. Perkins , 525 U.S. 234, 240

- 41 12
(1999)). Third, we assume that ALJ s are “unbiased” absent a “specific showing 13
of conflict of interest or reason for disqualification.” Doolen v. Wormuth , 5 F .4th 14

125, 135 (2d Cir. 2021)

. And i n any event, Appellants failed to avail themselves 15

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

. See N ew Y ork C ity 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)

.6 of an Article 78 proceeding, which is a “a wholly adequate post

- deprivation 1
hearing for due process purposes.” Green v. Dep’t of Educ. , 16 F.4th 1070, 1077 2
(2d Cir. 2021) (quotation marks omitted). For these reasons, we identify no error 3

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

c. Excessive Fines 5

We next turn to Appellants’ excessive fines claim . App ellees do not 6
dispute that the Eighth Amendment’s Excessive Fines Clause applies in this case, 7

so we proceed to consider “whether the challenged forfeiture is 8
unconstitutionally excessive,” which requires us to weigh fo u r factors: 9
(1 ) the essence of the crime of the defendant and its relation to other 10 criminal activity, (2) whether the defendant fits into the class of 11 persons for whom the statute was principally designed, (3) the 12 maximum sentence and fine that could have been imposed, and 13 (4) the natu re of the harm caused by the defendant ’ s conduct. 14
15 United States v. Viloski , 814 F.3d 104, 109

- 10 (2d Cir. 2016) (quotation marks 16

omitted ). Appellants focus on the third factor , alleg ing that the City cannot 17
impose fines and fees exceeding $50 for violations of its display requirements

. 18
But New York State law explicitly authorizes the City to impose fines and fees of 19
$100, plus a $15 surcharge , for violations relating to stopping and standing , like 20

th ose at issue here

. See N.Y. Veh. & Traf. Law §§ 237 (2)(a) (i), 1809

- a(1). Having 217 independently weighed the remaining factors, we agree with the District Court’s 1
conclusion that Appellants failed to allege that their $234.60 fine was 2
“constitutionally exce ssive.” Viloski , 814 F.3d at 109

. Accordingly, we conclude 3

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

d. Equal Protection 5
Finally, we consider Appellants’ equal protection claim , which arises from 6

the City’s alleged practice of exempting vehicles of “nationally recognized 7
companies ” from its display requirements. Joint App’x 28 n.37 (quotation marks 8
omitted)

. Where , as here, a challenged regulation “does not employ suspect 9
classifications or impinge on fundamental rights,” we apply rational basis 10

review, pursuant to which we determine whether “ the legislative means are 11
rationally relate d to a legitimate governmental purpose.” Concerned Home Care 12

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

. T he City’s display requirements, which advance the City’s legitimate 14
interest in identifying commercial vehicles and limiting the use of commercial 15
parking spaces to those vehicles, satisfy that standard. The City rationally 16

e xempt ed vehicles of “nationall y recognized companies ” from those 17
requirements because such vehicles are readily identifiable. We therefore 188 conclude that the District Court did not err in dismissing Appellants’ equal 1
protection claim. 2

II. Denial of Leave to Amend 3

We now turn to the District Court’s denial of leave to amend to add 4
Appellants’ proposed preemption, compelled speech, interstate commerce, and 5

void

- for

- vagueness claims. Because the District Court’s denial was based on 6
futility, we review its conclusions with respe ct to those claims de novo

. See In re 7

Trib

. Co. Fraudulent Convey

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

sub nom. Kirschner v. FitzSimons , 142 S. Ct. 1128 (2022) . “Futility is a 9
determination, as a matter of law, that proposed amendments would fail to cure 10
prior deficiencies or to state a claim



### . . . .” Id. at 175 (quotation marks omitted). 11

First, Appellants s ought to allege that sections 4

- 01(b)(i) and 4

- 08(k)(1) of 12

title 34 of the Rules of the City of New York are preempted by 49 U.S.C § § 14501, 13
14506, and 31141. S ections 14501 and 31141 do not conflict with sections 4

- 14
01(b)(i) and 4

- 08(k)(1) , however, because they do not involve display 15
requireme nts

. And although section 14506 addresses “display . . . of 16
identification,” it applies only to “ motor carrier [ s ] , ” “ motor private carrier [ s ] ,” 17
“freight forwarder [ s ] ,” and “ leasing compan[ ies ] ”

— terms that refer to “ persons ” 189 who provide transportation for compensation. See 49 U.S.C. §§ 13102(8), (14), 1
(15) (defining terms in section 14506)

. Oles does not contend that he is a motor 2
carrier, motor private carrier, freight forwarder, or leasing company. In fact, he 3

concedes th at when he received the parking tickets, he was driving the truck to 4
pick up a couch for personal purposes

— not compensation. That the City’s 5
display requirements, but not the federal regulations, apply to Oles’s conduct 6

illustrate that the City’s display requirements d o not “conflict[] with federal law 7
such that it is impossible for a party to comply with both

. ” N .Y. SMSA Ltd. 8
P’ship v. Town of Clarkstown , 612 F.3d 97, 104 (2d Cir. 2010)

. W e therefore 9

conclude that the District Court did not err in denying leave to amend to add 10
Appellants’ proposed preemption claims

. 11

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

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

address associated with their commercial plates

. This Court has recognized that 14
compelled disclosures of “purely factual and uncontroversial ” information are 15
subject to rational basis review. N.Y. State Rest. Ass’n v. N ew Y ork C ity Bd. of 16

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

Couns. , 471 U.S. 626, 6 5 0

- 51 (1985) )

. As explained above, the City’s display 1810 requirements easily meet that standard. Because Appellants’ proposed 1
amendments failed to state a compelled speech claim, we agai n conclude that the 2
District Court did not err in denying leave to amend. 3

Third , Appellants sought to amend the complaint to claim that the City’s 4
display requirements discriminate against interstate commerce and are void for 5
vagueness. Because Appellants’ proposed amendments with respect to those 6
claims are wholly conclusory, the District Court did not err in denying leave to 7

amend to ad d them

. See Noto v. 22nd Century Grp., Inc ., 35 F.4th 95, 104 (2d Cir. 8
2022). 9

We have considered Appellant s ’ remaining arguments and conclude that 10
they are without merit. For the foregoing reasons, the orders of the District 11

Court are AFFIRMED

. 12

FOR THE COURT: 13 Catherine O’Hagan Wolfe, Clerk of Court 14