Selevan v. New York Thruway Authority

07-0037-cv
Selevan v. New York Thruway Authority

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

August Term, 2008

(Argued: September 8, 2008 Decided: October 15, 2009)

Docket No. 07-0037-cv

ROBERT SELEVAN , individually and on behalf of all others similarly situated, and ANNE RUBIN ,
individually and on behalf of all others similarly situated,

Plaintiffs-Appellants,

v.

NEW YORK THRUWAY AUTHORITY , and JOHN L. BUONO , individually and as Chief
Executive and Chairman of the New York Thruway Authority,

Defendants-Appellees.

Before: CABRANES, POOLER, and KATZMANN , Circuit Judges.

Appeal from an order of the United States District Court for the Northern District of New

York (Gary L. Sharpe, Judge) entered January 18, 2007 granting defendants-appellees’ motion to

dismiss for lack of standing and failure to state a claim upon which relief can be granted. Plaintiffs

challenge a toll policy of the New York Thruway Authority that affords a discount to residents of a

particular city in New York and denies the same benefit to all other New Yorkers and to all non-

residents of New York. We hold that (1) plaintiffs have established standing to sue under Article III

of the United States Constitution; (2) plaintiffs are proper parties to allege a violation of the dormant

Commerce Clause under the Supreme Court’s “prudential standing” doctrine; (3) defendants have

not established that the New York Thruway Authority, in setting the toll, acted as a “market

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participant” and not as a governmental entity regulating interstate commerce; (4) plaintiffs have

stated a claim under the dormant Commerce Clause; (5) plaintiffs have alleged an infringement of

their right to travel in violation of the Equal Protection Clause and the Privileges and Immunities

Clause of the Fourteenth Amendment; (6) plaintiffs’ “dormant Commerce Clause” and right-to-

travel claims must be analyzed under the three-factor test set forth by the Supreme Court in

Northwest Airlines, Inc. v. County of Kent, 510 U.S. 355, 369 (1994); and (7) the District Court properly

dismissed a challenge by a U.S. citizen residing in Canada to the toll policy under the Privileges and

Immunities Clause of Article IV.

Affirmed in part, vacated in part, and remanded.

SETH R. LESSER (Andrew P. Bell, on the brief), Locks Law Firm
PLLC, New York, NY, for Robert Selvan 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.

JOSÉ A. CABRANES, Circuit Judge:

In this appeal we consider whether plaintiffs, who challenge an interstate highway toll policy

that affords a discount to residents of a particular New York municipality, have stated claims under

several provisions of the United States Constitution.

Plaintiffs-appellants Robert Selevan and Anne Rubin (collectively, “plaintiffs”), who are

citizens of the United States residing in Nassau County, New York, and Ontario, Canada,

respectively, challenge a January 18, 2007 order of the District Court dismissing their suit under 42

U.S.C. § 1983 for lack of standing and failure to state a claim upon which relief can be granted. See

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Fed. R. Civ. P. 12(b)(1), (6). Plaintiffs’ putative class action alleged that an interstate highway toll

policy of defendants-appellees New York Thruway Authority and John Buono, Chief Executive and

Chairman of the New York Thruway Authority (jointly, “NYTA”), that affords a discount to

residents of a particular city violated the dormant Commerce Clause in addition to plaintiffs’ rights

under the Equal Protection Clause and the Privileges and Immunities Clause of the Fourteenth

Amendment as well as the Privileges and Immunities Clause of Article IV of the U.S. Constitution.

In this appeal we consider whether (1) plaintiffs have Article III standing to challenge NYTA’s toll

policy; (2) plaintiffs are proper parties to bring suit under the Supreme Court’s “prudential standing”

doctrine; (3) NYTA has established that it acted as a “market participant,” and not as a

governmental entity regulating interstate commerce; (4) plaintiffs have stated a claim under the

dormant Commerce Clause; (5) plaintiffs have alleged an infringement of their right to travel in

violation of the Equal Protection Clause and the Privileges and Immunities Clause of the Fourteenth

Amendment; and (6) Rubin, a U.S. citizen residing in Canada, stated a claim under the Privileges and

Immunities Clause of Article IV of the U.S. Constitution.

BACKGROUND

The Grand Island Bridges (jointly, “Grand Island Bridge” or “the Bridge”), maintained and

operated by NYTA, comprise a portion of Interstate-190 that spans Grand Island, New York, a

municipality situated in the Niagara River approximately halfway between Niagara Falls, New York

and Buffalo, New York. Plaintiffs’ amended complaint alleges that, pursuant to NYTA policy, each

vehicle crossing the Bridge—except those driven by residents of Grand Island—must pay a toll of

75 cents. Residents of Grand Island, who may establish their status with, among other things,

vehicle registration documents, are entitled to pay as little as 9 cents per trip—that is, 66 cents less

per trip than non-residents of Grand Island. Prior to initiating this litigation, each plaintiff paid the

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non-resident toll during trips through New York to New Jersey for shopping, tourism, and other

activities.

In March 2006, plaintiffs filed this putative class action in the United States District Court

for the Northern District of New York (Gary L. Sharpe, Judge). In their complaint, plaintiffs alleged,

pursuant to 42 U.S.C. § 1983, that NYTA’s toll scheme violated several provisions of the United

States Constitution: the Commerce Clause, the Privileges and Immunities Clauses of Article IV and

of the Fourteenth Amendment, and the Equal Protection Clause. Additionally, plaintiffs alleged

that NYTA’s toll policy violated the Equal Protection Clause of the New York Constitution.1

NYTA moved to dismiss plaintiffs’ claims, arguing that plaintiffs lacked standing and that, in any

event, plaintiffs failed to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(1),

(6). The District Court permitted plaintiffs to file an amended complaint prior to taking the motion

under consideration.

In a January 18, 2007 memorandum-decision and order, the District Court dismissed

plaintiffs’ complaint with prejudice. See Selevan v. N.Y. Thruway Auth., 470 F. Supp. 2d 158, 178

(N.D.N.Y. 2007). In a thoughtful and careful opinion, the District Court held that plaintiffs lacked

standing under the Supreme Court’s “prudential standing” doctrine because their claims did not fall

within the “zone of interests” protected by (1) the Commerce Clause, see id. at 172, (2) the Equal

Protection Clause of the Fourteenth Amendment, see id. at 176, or (3) the Privilege and Immunities

Clause of Article IV, see id. at 173-74. The District Court did not consider whether plaintiffs had

stated a claim under the Privileges and Immunities Clause of the Fourteenth Amendment on the

basis that plaintiffs’ complaint had done nothing more than recite that provision. See id. at 172 n.10.

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Article I § 11 of the New York Constitution provides that “[n]o person shall be denied the
equal protection of the laws of this state or any subdivision thereof.”

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The District Court also held that even if plaintiffs had standing to bring their equal protection claim,

dismissal was appropriate because they had failed to state a claim. Id. at 176-77. Inasmuch as the

Equal Protection Clauses of the U.S. Constitution and the New York Constitution are co-extensive,

the District Court’s equal protection analysis also resulted in the dismissal of plaintiffs’ state law

claim. See Town of Southold v. Town of E. Hampton, 477 F.3d 38, 52 n.3 (2d Cir. 2007) (“Because the

Equal Protection Clauses of the federal and New York Constitutions are coextensive, our analysis

responds to [plaintiff’s] claims under each of these provisions.” (citation omitted)). Because it

dismissed plaintiffs’ action in its entirety, the District Court did not consider whether class

certification was appropriate.

Selevan and Rubin filed this timely appeal.

DISCUSSION

On appeal, plaintiffs contend that the District Court erred in dismissing their action. They

argue that they had standing to sue and that they had indeed stated claims under the Commerce

Clause, the Equal Protection Clause, and the Privileges and Immunities Clause of the Fourteenth

Amendment. Only Rubin has appealed the District Court’s holding with respect to the Privileges

and Immunities Clause of Article IV. NYTA contends that we should affirm the District Court’s

dismissal because plaintiffs lacked Article III standing inasmuch as they did not establish that they

had suffered injury-in-fact. Further, NYTA argues that plaintiffs failed to state a claim under any of

the constitutional provisions cited in their amended complaint.

We review de novo a district court’s dismissal of a complaint for lack of standing, see Fed. R.

Civ. P. 12(b)(1), and for failure to state a claim, see Fed R. Civ. P. 12(b)(6). See, e.g., Klein & Co.

Futures, Inc. v. Bd. of Trade, 464 F.3d 255, 259 (2d Cir. 2006); Chambers v. Time Warner, Inc., 282 F.3d

147, 152 (2d Cir. 2002). In conducting this review, we assume all “well-pleaded factual allegations”

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to be true, and “determine whether they plausibly give rise to an entitlement to relief.” Ashcroft v.

Iqbal, 129 S. Ct. 1937, 1950 (2009). “We construe plaintiffs’ complaint liberally, accepting all factual

allegations in the complaint as true, and drawing all reasonable inferences in plaintiffs’ favor.”

Holmes v. Grubman, 568 F.3d 329, 335 (2d Cir. 2009) (internal quotation marks omitted).

We first consider whether plaintiffs have established Article III standing. Second, we turn to

plaintiffs’ claim under the Commerce Clause. In discussing this claim, we address the District

Court’s holding that plaintiffs’ claim should be dismissed under the Supreme Court’s “prudential

standing” doctrine, and we consider NYTA’s argument that plaintiffs’ claim was properly dismissed

because, under the “market participant” doctrine in the Supreme Court’s dormant Commerce

Clause jurisprudence, NYTA was not in fact regulating interstate commerce in charging tolls on the

Grand Island Bridge. We then consider whether plaintiffs have stated a claim under the dormant

Commerce Clause. Third, we address plaintiffs’ contention that they have stated claims under the

Equal Protection Clause and the Privileges and Immunities Clause of the Fourteenth Amendment

for a violation of their right to travel. Finally, we consider Rubin’s contention that she has stated a

claim under the Privileges and Immunities Clause of Article IV.

I. Article III Standing

Under Article III of the Constitution, the jurisdiction of federal courts is limited to the

resolution of “cases” and “controversies.” U.S. Const. art. III, § 2. “In order to ensure that this

‘bedrock’ case-or-controversy requirement is met, courts require that plaintiffs establish their

‘standing’ as ‘the proper part[ies] to bring’ suit.” W.R. Huff Asset Mgmt. Co. v. Deloitte & Touche LLP,

549 F.3d 100, 106 (2d Cir. 2008) (quoting Raines v. Byrd, 521 U.S. 811, 818 (1997)). Specifically,

plaintiffs must demonstrate “(1) injury-in-fact, which is a ‘concrete and particularized’ harm to a

‘legally protected interest’; (2) causation in the form of a ‘fairly traceable’ connection between the

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asserted injury-in-fact and the alleged actions of the defendant; and (3) redressability, or a non-

speculative likelihood that the injury can be remedied by the requested relief.” Id. at 106-07 (citing

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).

NYTA argues that plaintiffs have not suffered injury-in-fact because “a discount afforded to

differently-situated individuals does not necessarily result in a palpable ‘injury’ to those not afforded

the discount.” Appellee’s Br. 13. In support of this contention, NYTA relies on the Supreme

Court’s decision in DaimlerChrysler Corp. v. Cuno for the proposition that where “redressability [of a

claimed injury] requires speculating that abolishing the challenged credit will redound to the benefit

of the taxpayer because legislators will pass along the supposed increased revenue in the form of tax

reductions,” that injury is too “conjectural or hypothetical” to satisfy Article III. 547 U.S. 332, 344

(2006).

The District Court properly rejected NYTA’s argument that plaintiffs had not suffered an

injury-in-fact. It correctly observed that “[p]laintiffs define their injury as the burden of paying

higher toll rates than Grand Island residents and the denial of toll discounts based on their residency

status.” Selevan, 470 F. Supp. 2d at 168. The Supreme Court has held that “[c]onsumers who suffer

this sort of injury [i.e., prices higher than other consumers] from regulation forbidden under the

Commerce Clause satisfy the standing requirements of Article III.” Gen. Motors Corp. v. Tracy, 519

U.S. 278, 286 (1997). Unlike the plaintiffs in DaimlerChrysler, who were taxpayers opposing a tax

credit received by others in the hope that abolishing the tax credit would reduce their tax burden, see

547 U.S. at 344-45, plaintiffs in this case contend that they have been charged an inflated toll rate

that, among other things, discriminates against interstate commerce. Inasmuch as plaintiffs alleged

that they have paid higher tolls as a result of NYTA’s policy, they have articulated a “commercial,

economic injury that is concrete and specific to them,” and is caused by NYTA’s alleged violation of

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the Commerce Clause. Selevan, 470 F. Supp. 2d at 168. Because this injury would be redressed by

the injunctive and monetary relief plaintiffs seek, plaintiffs have met the Article III standing

requirement.

II. Interstate Commerce

We now turn to the District Court’s dismissal of plaintiffs’ claim under the so-called

“dormant” Commerce Clause. The Commerce Clause provides that “Congress shall have Power . . .

[t]o regulate Commerce with foreign Nations, and among the several States.” U.S. Const. art. I, § 8,

cl. 3. The Supreme Court has explained that “the [Commerce] Clause was designed in part to

prevent trade barriers that had undermined efforts of the fledgling States to form a cohesive whole

following their victory in the Revolution.” Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 807 (1976).

In the eloquent words of Justice Jackson,

Our system, fostered by the Commerce Clause, is that every farmer and every
craftsman shall be encouraged to produce by the certainty that he will have free
access to every market in the Nation, that no home embargoes will withhold his
export, and no foreign state will by customs duties or regulations exclude them.
Likewise, every consumer may look to the free competition from every producing
area in the Nation to protect him from exploitation by any. Such was the vision of
the Founders; such has been the doctrine of [the Supreme] Court which has given it
reality.

H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 539 (1949).

In implementing the Commerce Clause, the Supreme Court “has adhered strictly to the

principle ‘that the right to engage in interstate commerce is not the gift of a state, and that a state

cannot regulate or restrain it.” Hughes, 426 U.S. at 808. It flows from this principle that “[t]he

negative or dormant implication of the Commerce Clause prohibits state taxation or regulation that

discriminates against or unduly burdens interstate commerce and thereby impedes free private trade

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in the national marketplace.” Gen. Motors Corp., 519 U.S. at 287 (internal quotation marks, brackets,

and citations omitted).

The Supreme Court has recognized that “there is a residuum of power in the state to make

laws governing matters of local concern which nevertheless in some measure affect interstate

commerce or even, to some extent, regulate it.” Kassel v. Consol. Freightways Corp. of Del., 450 U.S. 662,

669 (1981) (internal quotation marks omitted). Accordingly, “[t]he Commerce Clause does not . . .

invalidate all State restrictions on commerce.” Id. A state statute or regulation may violate the

dormant Commerce Clause only if it (1) “clearly discriminates against interstate commerce in favor

of intrastate commerce,” (2) “imposes a burden on interstate commerce incommensurate with the

local benefits secured,” or (3) “has the practical effect of ‘extraterritorial’ control of commerce

occurring entirely outside the boundaries of the state in question.” Freedom Holdings Inc. v. Spitzer,

357 F.3d 205, 216 (2d Cir. 2004) (citing, inter alia, Wyoming v. Oklahoma, 502 U.S. 437, 454-55 (1992);

Healy v. The Beer Inst., 491 U.S. 324, 336 (1989); Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970)).

In their amended complaint, plaintiffs alleged that NYTA’s toll policy at Grand Island

Bridge “discriminate[s] to the disadvantage of out-of-state interests and to the advantage of in-state

interests and place[s] burdens on interstate commerce that exceed any local benefit that allegedly

may be derived from them.” J.A. 171 (Am. Compl. ¶ 36). After detailing NYTA’s toll policy at the

Bridge and alleging that the Bridge was “an instrumentality or channel of interstate commerce,” J.A.

167 (Am. Compl. ¶ 20), plaintiffs contended that “[t]he use of the Grand Island Bridge and the

preferential tolls collected by [NYTA] all directly implicate interstate commerce and monetarily

affect the travel of citizens of the United States who were not residents of the preferentially treated

location.” J.A. 167 (Am. Compl. ¶ 24). Plaintiffs added that “[t]he amounts of the tolls

discriminatorily collected are presently unknown and exclusively within the knowledge of [NYTA],

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but the amount is, upon information and belief, substantial. No substantial government interest

supports the discriminatory toll structure, and whatever ends it seeks to achieve could be achieved

by alternatives that do not discriminate according to residence.” J.A. 168 (Am. Compl. ¶ 24).

The District Court dismissed plaintiffs’ Commerce Clause claim, holding that plaintiffs did

not satisfy the Supreme Court’s “prudential standing” requirement because their claims alleged

injuries that were “strictly local” and therefore, at most, “marginally within the zone of interests

protected by the Commerce Clause.” Selevan, 470 F. Supp. 2d at 172. Plaintiffs urge that their claim

falls within the “zone of interests” protected by the Commerce Clause because “they were interstate

travelers in automobiles on the interstate highway system and were engaging in interstate commerce

by the purchase of goods and tourism services.” Appellant’s Reply Br. 12. NYTA defends the

District Court’s rationale, arguing, among other things, that plaintiffs’ claim does not implicate

interstate commerce because (1) “99.9% of New York State residents,” as well as all non-New

Yorkers, are ineligible for the lower toll rate, Appellee’s Br. 21, and (2) a toll of 75 cents is too trivial

an amount to give rise to a Commerce Clause violation, id. at 24. Further, NYTA argues that, even

if one were to assume arguendo that plaintiffs have standing, the toll policy does not violate the

Commerce Clause because NYTA’s operation of the bridge falls under the “market participant”

exception to the requirements of the dormant Commerce Clause.

A. Prudential Standing

We first consider whether the plaintiffs have satisfied the Supreme Court’s “prudential

standing” requirements. Unlike “Article III standing, which enforces the Constitution’s case-or-

controversy requirement,” prudential standing, the second facet of the Supreme Court’s standing

jurisprudence, embodies “judicially self-imposed limits on the exercise of federal jurisdiction.” Elk

Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004) (internal quotation marks and citation

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omitted). The Supreme Court has held that “prudential standing encompasses the general

prohibition on a litigant’s raising another person’s legal rights, the rule barring adjudication of

generalized grievances more appropriately addressed in the representative branches, and the

requirement that a plaintiff’s complaint fall within the zone of interests protected by the law

invoked.” Id. at 12 (internal quotation marks omitted).

We agree with plaintiffs that the District Court improperly dismissed their claim for lack of

prudential standing. Although it is of course essential that district courts ensure that each plaintiff is

a proper party to bring a suit, we have explained that the zone-of-interests requirement invoked by

the District Court in this case is “not a rigorous one.” Nat’l Weather Serv. Employees Org., Branch 1-18

v. Brown, 18 F.3d 986, 989 (2d Cir. 1994); see also Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399 (1987)

(holding that a plaintiff’s right of review may be denied only “if the plaintiff’s interests are so

marginally related to or inconsistent with the purposes implicit in the statute that it cannot

reasonably be assumed that Congress intended to permit the suit. The test is not meant to be especially

demanding.” (emphasis added)). Indeed, the Supreme Court has held that this requirement is satisfied

whenever “the interest sought to be protected by [plaintiffs] is arguably within the zone of interests to

be protected or regulated by the statute or constitutional guarantee in question.” Ass’n of Data

Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970) (emphasis added).

According to the District Court, “[t]he true gravamen of plaintiffs’ complaint is that the

Grand Island toll policy discriminates against New York citizens traversing a bridge within the

State.” Selevan, 470 F. Supp. 2d at 172. We disagree. First, as noted, each plaintiff alleged that he or

she paid the Grand Island Bridge toll as part of a trip to another state, where each engaged in

shopping and other commercial activities. See J.A. 164-65 (Am. Compl. ¶¶ 5-6). Moreover, that

plaintiffs may not have crossed into another state immediately upon paying the toll is of no

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importance; the critical inquiry in our jurisprudence is whether the toll in some way affects interstate

commerce. See Freedom Holdings, 357 F.3d at 216.

NYTA’s additional arguments in support of the District Court’s holding are without merit.

First, even assuming that the Grand Island toll policy does not apply to “99.9%” of New Yorkers,

Appellee’s Br. 21, plaintiffs’ claim still cannot be dismissed on this basis. We have never suggested

that a state regulation must benefit a large percentage of the state’s population in order to violate the

dormant Commerce Clause. See Freedom Holdings, 357 F.3d at 216-18. If it were the case that the

dormant Commerce Clause did not apply to discriminatory regulations that benefit only a relatively

small subset of a state’s population, states would be able to promote their own economic interests at

the expense of out-of-state interests simply by imposing regulations that benefit some small interest

group within the state, such as manufacturers of a specific product. This would hardly serve the

purpose of the Clause, as in many cases this could directly violate its central purpose.

Second, NYTA’s argument that “the 75-cent general toll did not impose any cognizable

burden on interstate commerce,” Appellee’s Br. 24, is foreclosed by the Supreme Court’s decision in

Oregon Waste Systems, Inc. v. Department of Environmental Quality, 511 U.S. 93 (1994). In that case, the

Court rejected the argument that a surcharge of $2.25 per ton of solid waste generated outside of the

state was too minimal an amount to be discriminatory under the dormant Commerce Clause. See id.

at 100 n.4. The Court reasoned that “the degree of a differential burden or charge on interstate

commerce ‘measures only the extent of the discrimination’ and ‘is of no relevance to the

determination whether a State has discriminated against interstate commerce.’” Id. (quoting Wyoming

v. Oklahoma, 502 U.S. 437, 455 (1992)). Here too, the toll differential speaks to the extent of the

alleged discrimination, rather than to the presence of a violation. Because this case comes before us

following a decision on a motion to dismiss, we need only consider whether the complaint alleges a

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plausible claim that the regulation violates the Commerce Clause. See, e.g., Iqbal, 129 S. Ct. at 1950.

Whether the 75-cent toll is actually a burden on interstate commerce is a question left for later

proceedings.

B. Market Participant

NYTA argues that, even if plaintiffs have standing to pursue their dormant Commerce

Clause claim, the policy is not unconstitutional because of the so-called “market participant”

doctrine.2 This doctrine “differentiates between a State’s acting in its distinctive governmental

capacity, and a State’s acting in the more general capacity of a market participant; only the former is

subject to the limitations of the [dormant] Commerce Clause.” New Energy Co. of Ind. v. Limbach, 486

U.S. 269, 277 (1988). The Supreme Court has held that “[n]othing in the purposes animating the

Commerce Clause prohibits a State, in the absence of congressional action, from participating in the

market and exercising the right to favor its own citizens over others.” Reeves, Inc. v. Stake, 447 U.S.

429, 436 (1980). The Court has not articulated a bright-line rule to discern governmental regulation

of commerce from market participation; courts must make fact-specific inquiries on a case-by-case

basis. “Thus, for example, when a State chooses to manufacture and sell cement, its business

methods, including those that favor its residents, are of no greater constitutional concern than those

of a private business.” New Energy Co., 486 U.S. at 277 (citing Reeves, 447 U.S. at 438-39); see also

Hughes, 426 U.S. at 809 (holding that a state’s program of purchasing abandoned vehicles from

within the state but not from other states did not burden interstate commerce). But see Toomer v.

Witsell, 334 U.S. 385, 406 (1948) (holding that the Commerce Clause was violated where a state

required that shrimp boats fishing off of its coast pack their shrimp and pay state taxes before

2
NYTA raised this argument in its Memorandum of Law in Support of Defendants’ Motion
to Dismiss. See J.A. 29-31. Presumably because the District Court concluded that plaintiffs lacked
standing to raise their Commerce Clause claim, it did not reach this question.

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transporting their catch interstate). In sum, a court reviewing a claim that the dormant Commerce

Clause has been violated must consider in each specific context if the government is acting like a

private business or a governmental entity.

NYTA contends that “[i]n setting toll rates to raise revenue to maintain its property and

satisfy its bondholders, [NYTA] is not regulating commerce, but is acting in a proprietary capacity as

a market participant in the local highway transportation market.” Appellee’s Br. 9-10. However, the

statute creating NYTA provides that NYTA “shall be regarded as performing a governmental function in

carrying out its corporate purpose and in exercising the powers granted by this title.” N.Y. Pub.

Auth. § 353 (emphasis added). There is good reason for this designation and for our repeated

observation that building and maintaining roads is a core governmental function. See USA Recycling,

Inc. v. Town of Babylon, 66 F.3d 1272, 1284 (2d Cir. 1995) (“State governments have turned to the

private sector to ‘contract out’ or ‘outsource’ numerous governmental functions, including . . . the

operation of toll roads.” (emphasis added)); Murray v. City of Milford, 380 F.2d 468, 470 (2d Cir. 1967)

(“The construction and maintenance of roads is a ‘governmental function . . . .’”). Although there is

undoubtedly a market comprised of private entities competing with one another for government

contracts, we see no evidence in the record that NYTA competes with other entities that are also

seeking to build and maintain highway systems. Unlike a private actor, NYTA may (1) use or

possess any real property or rights in real property acquired by the state, see N.Y. Pub. Auth. § 357,

(2) avoid holdouts by resorting to eminent domain to amass the property necessary to build roads,

see id. §§ 358, 358-a, and (3) issue bonds that are “fully and unconditionally guaranteed by the state”

in order to raise capital to fund road construction and maintenance projects, id. § 366(1). NYTA

may also “accept any gifts or any grant of funds or property from the federal government or from

the state . . . or any other federal or state public body.” Id. § 354(14).

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 NYTA’s reliance on Endsley v. City of Chicago, 230 F.3d 276, 283-85 (7th Cir. 2000), for the

proposition that a state may “act[ ] in a proprietary capacity as an entrant into the local highway

transportation market,” Appellee’s Br. 17, is misplaced. In Endsley, plaintiffs challenging Chicago’s

operation of the city’s Skyway toll bridge essentially “plead[ed] themselves out of court” by noting in

their complaint that, “[s]ince its inception, [Chicago] has operated [the bridge] as a proprietary

enterprise, and not in its governmental capacity.” 230 F.3d at 284. The Seventh Circuit’s

observation that “the facts suggest that [Chicago] was indeed a market participant,” id., was dicta and,

in any event, not binding authority for this Court. On this record, we see no reason to conclude that

the instant case is like Reeves, where South Dakota entered a market to produce and sell cement in

competition with private cement suppliers, see 447 U.S. at 440, or Hughes, where Maryland entered

“into the market as a purchaser, in effect, of a potential article of interstate commerce,” 426 U.S. at

808. In short, nothing in this record permits the conclusion that, in this instance, NYTA is a market

participant.

We need not reach the question whether, or under what circumstances, a governmental

entity may act as a market participant by building and maintaining roads. We hold simply that, at

least in this stage of the litigation, a finding that NYTA acted as a “market participant” (rather than

in its governmental capacity) is not warranted. As we explain below, the toll may well be

permissible, but, absent a finding that NYTA acted as a market participant, it is subject to scrutiny

under the dormant Commerce Clause.

C. Dormant Commerce Clause Claim

Having concluded that plaintiffs have standing to pursue their dormant Commerce Clause

claim and that NYTA has not established that it acted as a market participant, we consider whether

plaintiffs have stated a claim under the Commerce Clause. Plaintiffs allege that NYTA’s toll policy

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discriminates against interstate commerce and that, in the alternative, it imposes a burden on

interstate commerce that is not justified by any benefits it creates. Discerning which, if any,

Commerce Clause claim has been stated is significant because “a statute that clearly discriminates

against interstate commerce in favor of intrastate commerce is virtually invalid per se and can survive

only if the discrimination is demonstrably justified by a valid factor unrelated to economic

protectionism.” Freedom Holdings, Inc., 357 F.3d at 216 (internal quotation marks and citations

omitted). Put differently, as a threshold inquiry we must determine if the toll policy discriminates

against interstate commerce because, if it does, it is “virtually invalid per se,” id., and if it does not, it

will have a comparatively easier time passing constitutional muster.

First, we consider if the policy discriminates against interstate commerce. See, e.g., id. The

Supreme Court has explained that “[t]he central rationale for the rule against discrimination 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) (emphasis added). Accordingly, a state regulation

“discriminates” against interstate commerce only if it “impose[s] commercial barriers or

discriminate[s] against an article of commerce by reason of its origin or destination out of State.” Id.

We have held that, in order to state a claim for discrimination in violation of the Commerce Clause,

a plaintiff must “identify an[ ] in-state commercial interest that is favored, directly or indirectly, by

the challenged statutes at the expense of out-of-state competitors.” Grand River Enters. Six Nations,

Ltd. v. Pryor, 425 F.3d 158, 169 (2d Cir. 2005) (internal quotation marks omitted). Here, plaintiffs

have failed to “identify an[ ] in-state commercial interest that is favored,” and they do not point to a

particular “out-of-state competitor” that is harmed by NYTA’s toll policy. See id.; see also Town of

Southold, 477 F.3d at 49. Both an in-state interest and an out-of-state competitor are necessary

16
because “laws that draw distinctions between entities that are not competitors do not ‘discriminate’

for purposes of the dormant Commerce Clause.” Town of Southold, 477 F.3d at 49. Because plaintiffs

have failed to identify any specific interests, we hold that plaintiffs have not alleged that NYTA’s toll

policy “discriminates” against interstate commerce.

Although the District Court correctly reasoned that plaintiffs failed to allege that the NYTA

policy “discriminates” against interstate commerce, the District Court incorrectly failed to further

inquire if the policy otherwise violated the Commerce Clause. Specifically, the District Court did

not acknowledge the well-established rule that, under the so-called Pike test, a nondiscriminatory

regulation that “regulates even-handedly to effectuate a legitimate local public interest,” Pike v. Bruce

Church, Inc., 397 U.S. 137, 142 (1970), is nevertheless unconstitutional if “‘the burden imposed on

interstate commerce is clearly excessive in relation to the putative local benefits.’” United Haulers

Ass’n, Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 346 (2007) (quoting Pike, 397

U.S. at 142) (brackets omitted). As noted, plaintiffs have alleged that NYTA’s policy of charging

non-residents of Grand Island tolls that are more than eight times greater than the tolls charged to

Grand Island residents “place[s] burdens on interstate commerce that exceed any local benefit that

allegedly may be derived from them.” J.A. 171 (Am. Compl. ¶ 36). Because at this state of a suit we

are required to assume all “well-pleaded factual allegations” are true and assess the complaint only to

“determine whether [the allegations] plausibly give rise to an entitlement to relief” at this stage of

litigation, Iqbal, 129 S.Ct. at 1950, we conclude that plaintiffs’ allegations are sufficient to survive a

motion to dismiss.

Despite NYTA’s arguments to the contrary, the size of the burden on an individual plaintiff

is irrelevant. NYTA correctly observes that the lead plaintiffs in this putative class action have

alleged only a small injury to themselves inasmuch as they do not claim to have paid the nonresident

17
toll on a regular basis. Plaintiffs have alleged that, during the relevant class period, each paid the

full-price toll during “a trip through the State of New Jersey.” J.A. 164 (Am. Compl. ¶¶ 5-6).

However, NYTA’s observation is not a basis for dismissing plaintiff’s claim. Plaintiffs seek to

represent an entire class of “United States citizens who, since March 6, 2000[,] . . . paid tolls at the

Grand Island bridges without the benefit of the resident discount.” J.A. 169 (Am. Compl. ¶ 27).

Although we are not aware of the precise number of potential plaintiffs, we are confident that

neither the number of prospective class members nor the cumulative difference between the tolls

they paid and those paid by Grand Island residents is negligible. In any event, we have recognized a

violation of the dormant Commerce Clause where three individuals, who were “recruited to be

plaintiffs,” paid a passenger fee of between 50 cents and two dollars, which comprised a “relatively

. . . small portion of [a] total ferry ticket price” for the use of state-provided facilities. See Bridgeport

& Port Jefferson Steamboat Co. v. Bridgeport Port Auth., 567 F.3d 79, 82, 83 (2d Cir. 2009). This is so

because, as the preceding discussion illustrates, whether a state policy violates the dormant

Commerce Clause does not depend on the extent of its impact on an individual plaintiff. Rather, a

state policy that is challenged under the dormant Commerce Clause must be judged by its overall

economic impact on interstate commerce in relation to the putative local benefits conferred. See Pike,

397 U.S. at 142.

For these reasons, we hold that plaintiffs have stated a claim under the Commerce Clause

and that the District Court erred in dismissing this claim.

On remand, the District Court shall undertake the inquiry prescribed by the Supreme Court

for determining whether a fee imposed by a governmental entity to defray the cost of facilities used

by those engaged in interstate commerce violates the dormant Commerce Clause or the right to

travel, which we discuss below. In Evansville-Vanderburgh Airport Authority District v. Delta Airlines,

18
Inc., the Court explained that states are always entitled to require interstate travelers “to bear a fair

share of the costs of providing public facilities that further travel.” 405 U.S. 707, 712 (1972). After

reviewing a long line of its precedents permitting states to impose highway tolls so long as they

“reflect a uniform, fair and practical standard relating to public expenditures,” id. at 716 (internal

quotation marks omitted), the Court concluded that a flat fee of one dollar per passenger for the use

of state airports did not abridge the dormant Commerce Clause or the right to travel where it was

“designed only to make the user of state-provided facilities pay a reasonable fee to help defray the

costs of their construction and maintenance.” Id. at 714. In Northwest Airlines, Inc. v. County of Kent,

510 U.S. 355 (1994), the Court formulated a three-factor test, based on the reasoning of the Court in

Evansville, to evaluate the reasonableness of fees charged for the use of state-provided facilities.

Under this test, a fee is reasonable and constitutionally permissible “if it (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 (citing Evansville, 405 U.S. at

716-17).

The Supreme Court’s analysis in Evansville was based in large part on its examination of cases

involving challenges to highway tolls, but the Court has not used the Northwest Airlines test to

evaluate the constitutionality of a highway toll nor has it indicated whether the Pike test or the

Northwest Airlines test should apply when highway tolls are challenged.3 However, we do not read

3
Although the Pike test applies only in dormant Commerce Clause analysis and only where a
state policy “regulates even-handedly to effectuate a legitimate local interest,” Pike, 397 U.S. at 142,
the Court has used the Evansville/Northwest Airlines test to evaluate the “reasonableness” of fees in
other contexts. See, e.g., Northwest Airlines, 510 U.S. at 358 (considering whether an airport user fee
violated the Anti-Head Tax Act, 49 U.S.C. § 1513, and the Commerce Clause); Am. Trucking Ass’ns v.
Scheiner, 483 U.S. 266, 289-90 (1987) (applying Evansville’s analysis in considering whether a state tax
applied to an interstate motor carrier violated the Commerce Clause); Massachusetts v. United States,
435 U.S. 444, 464-67 (1978) (applying Evansville’s analysis to assess the constitutionality of a tax
under the intergovernmental immunity doctrine).

19
Evansville, which the Court decided two years after Pike, as supplanting Pike. Rather, Evansville

addressed in a specific context the same concerns addressed in Pike while also adopting the Supreme

Court’s analysis of “discrimination” under the dormant Commerce Clause. For example, factors

one and two of the Northwest Airlines test achieve the same end as Pike—the invalidation of state

policies that impose an undue burden on interstate commerce—inasmuch as they require the court

to consider whether the fee supplies a benefit to users of a facility that is at least roughly

commensurate with the burden it imposes on them. See, e.g., Evansville, 405 U.S. at 719 (“[T]he

airlines have not shown these fees to be excessive in relation to the costs incurred by the taxing

authorities.”). Just as the Pike test would uphold as constitutional any state policy that confers a

local benefit and does not impose a clearly excessive burden on interstate commerce, see 397 U.S. at

142, the Northwest Airlines test permits the state to make “reasonable” exceptions to its fee schedule,

so long as the fee schedule, on the whole, reflects at least “a fair, [even] if imperfect, approximation

of the use of facilities for whose benefit they are imposed.” Id. at 717. Consistent with the rest of

the Supreme Court’s dormant Commerce Clause jurisprudence, the third factor in the Northwest

Airlines test—whether a user fee discriminates against interstate commerce, see 510 U.S. at

369—prevents fees “whose object is local economic protectionism,” see C&A Carbone, Inc. 511 U.S.

at 390.

Our Court, too, has never used the Northwest Airlines test or the Pike test to determine the

constitutionality of a highway toll, but we recently employed the Northwest Airlines test in considering

whether a fee imposed on ferry passengers for the use of port facilities violated the dormant

Commerce Clause or the passengers’ right to travel. See Bridgeport & Port Jefferson Steamboat Co., 567

F.3d at 83-84, 86-88 (applying the three-factor test announced in Northwest Airlines). The First

Circuit relied on the Supreme Court’s reasoning in Evansville to assess a dormant Commerce Clause

20
challenge to a highway toll discount program offered by the Massachusetts Turnpike Authority. See

Doran v. Mass. Turnpike Auth., 348 F.3d 315, 320-21 (1st Cir. 2003) (applying the Evansville/Northwest

Airlines test in a case involving a challenge to interstate toll under the Commerce Clause). One

District Court in our Circuit has applied Evansville in considering a challenge under the dormant

Commerce Clause to a similar discount program offered by the Port Authority of New York and

New Jersey and the Metropolitan Transportation Authority to users of the electronic toll system E-

ZPass. See Saunders v. Port Auth. of N.Y., 2004 WL 1077964, *3 (S.D.N.Y. May 13, 2004) (relying on

Evansville for the proposition that “[t]he tolls at issue constitute user fees”).

Although neither the Supreme Court nor our Court has used the Northwest Airlines test to

evaluate the constitutionality of a highway toll, we believe that this is the applicable test in the

circumstances presented here. The challenge to a highway toll here—which indisputably grants

vehicles access to a state-provided bridge—closely resembles the challenge to the airport user fee at

issue in Evansville, and we conclude that, on remand, plaintiffs’ dormant Commerce Clause claim

should be analyzed under the three-part test set forth in Northwest Airlines. NYTA is entitled to

charge plaintiffs a reasonable fee for the use of the Grand Island Bridge. However, it may not

impose on users of the Bridge a burden that is not commensurate with the benefits it confers, and it

may not discriminate against interstate commerce. See Northwest Airlines, 510 U.S. at 369. Whether

the fee schedule exception provided to Grand Island residents violates the dormant Commerce

Clause will depend in part on whether the fee represents a fair approximation of that group’s use of

the bridge—an inquiry that is too fact-dependent to be decided upon examination of the pleadings.

See id. In other words, the District Court should consider whether the NYTA policy at issue reflects

“rational distinctions among different classes of” motorists using the Bridge, see Evansville, 405 U.S.

at 718, so that each user, on the whole, pays some approximation of his or her fair share of the

21
state’s cost for maintaining the Bridge. Cf. Doran, 348 F.3d at 320 (“‘So long as a State bases its tax

on a relevant measure of actual road use, obviously both interstate and intrastate [drivers] pay

according to the facilities in fact provided by the State,’ and the program places no undue burden on

interstate commerce.” (quoting Scheiner, 483 U.S. at 291) (some brackets omitted)). The District

Court must also consider whether the toll charged to non-residents of Grand Island is excessive in

relation to the benefit it confers to them and whether the toll discriminates against interstate

commerce.4 We emphasize “that there need not be a perfect fit between the use of the [Bridge] and

the support of [the Bridge] by” the toll. Bridgeport & Port Jefferson Steamboat Co., 567 F.3d at 86. The

Northwest Airlines test is not inflexible; it simply requires “reasonableness.”

III. The Right to Travel

Plaintiffs also maintain that NYTA’s toll policy abridges their right to travel in violation of

the Privileges and Immunities Clause of the Fourteenth Amendment and the Equal Protection

Clause of the United States Constitution, as well as the Equal Protection Clause of the New York

Constitution, inasmuch as NYTA charged them a higher toll than a subset of similarly situated New

York residents.5 Finding that plaintiffs had not attempted to assert a claim under the Privileges and

Immunities Clause of the Fourteenth Amendment, the District Court did not address that

contention. It rejected plaintiffs’ equal protection claim on the grounds that plaintiffs lacked

4
Although Northwest Airlines announced this three factor test, the third factor—whether the
policy discriminates against interstate commerce—was a separate inquiry in Evansville. 405 U.S. at
717 (“First, neither fee discriminates against interstate commerce and travel.”) We have already held
that plaintiffs’ Amended Complaint fails to allege that NYTA’s policy discriminates against interstate
commerce. Unless plaintiffs are afforded a further opportunity to amend their complaint, the
District Court must assess only the remaining two factors on remand.
5
As noted, “[b]ecause the Equal Protection Clauses of the federal and New York
Constitutions are coextensive, our analysis responds to [plaintiff’s] claims under each of these
provisions.” Town of Southold, 477 F.3d at 52 n.3 (citation omitted).

22
prudential standing because (1) based on the pleadings, the tolls affected intrastate travel only,

Selevan, 470 F. Supp. 2d at 176, and (2) assuming for the sake of argument that the tolls affected

interstate travel, “[the] burden on the right to interstate travel here is minimal and insufficient to

constitute a deprivation,” id. at 177. Further, the District Court held that, even if plaintiffs had

standing under the Equal Protection Clause, dismissal would be appropriate. The District Court

reasoned that, because plaintiffs “h[ad] not claimed to be members of a suspect class,” NYTA’s

policy would be subject only to “a rational basis standard of review.” Id.6 The District Court then

concluded that NYTA had asserted a “legitimate purpose” for its toll program that plaintiffs did not

dispute. Id.

We disagree with the District Court’s analysis. As an initial matter, we do not agree that

plaintiffs failed to assert a claim for a violation of their right to travel under the Privileges and

Immunities Clause of the Fourteenth Amendment. As noted, plaintiffs’ complaint supplied a

detailed description of NYTA’s Grand Island Bridge toll policy. Under the heading “Causes of

Action,” the complaint alleged that NYTA’s toll policy deprived plaintiffs of “their constitutional

rights under the Privileges and Immunities Clause of Article IV and/or the Fourteenth Amendment

by charging them more for traveling than [NYTA] charged certain New York State residents.” J.A. 171

(Am. Compl. ¶ 38) (emphasis added). Taken together, plaintiffs’ allegations clearly implicate a

violation of plaintiffs’ right to travel under the Fourteenth Amendment’s Privileges and Immunities

Clause, which we describe in further detail below.

The Constitution protects a fundamental right to travel within the United States, which we

have also called “the right to free movement.” Williams v. Town of Greenburgh, 535 F.3d 71, 75 (2d

6
Note that we must evaluate policies with strict scrutiny if they target a suspect class or
implicate a fundamental right. See, e.g., Heller v. Doe, 509 U.S. 312, 319-20 (1993).

23
Cir. 2008) (internal quotation marks omitted); cf. Saenz v. Roe, 526 U.S. 489, 500 (1999) (noting that

“[t]he ‘right to travel’ . . . embraces at least three different components,” including “the right of a

citizen of one State to enter and 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 travelers who

elect to become permanent residents, the right to be treated like other citizens of that State.”

(emphasis added)). Although the Supreme Court has suggested that “[t]he textual source of the

constitutional right to travel, or, more precisely, the right of free interstate migration, . . . has proved

elusive,” Att’y Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898, 902 (1986), it has protected that right by

invoking both the Privileges and Immunities Clause of the Fourteenth Amendment and the Equal

Protection Clause.7 See, e.g., Saenz, 526 U.S. at 502-03 (noting that the Privileges and Immunities

Clause of the Fourteenth Amendment protects “the right of [a] newly arrived citizen to the same

privileges and immunities enjoyed by other citizens of the same State”); Mem’l Hosp. v. Maricopa

County, 415 U.S. 250, 269 (1974) (holding that a state durational residence requirement impinged the

right to travel, absent a compelling state interest, and therefore violated the Equal Protection

Clause); see also Zobel v. Williams, 457 U.S. 55, 67 (1982) (Brennan, J., concurring) (“As is clear from

our cases, the right to travel achieves its most forceful expression in the context of equal protection

analysis.”); cf. Soto-Lopez, 476 U.S. at 902 (“[I]n light of [the Supreme Court’s] unquestioned historic

acceptance of the principle of free interstate migration, and of the important role that principle has

played in transforming many States into a single Nation, we have not felt impelled to locate this

right definitively in any particular constitutional provision. . . . Whatever its origin, the right to

[travel] is firmly established . . . .”).

7
Pursuant to the Fourteenth Amendment’s Privileges and Immunities Clause, “[n]o State
shall make or enforce any law which shall abridge the privileges or immunities of citizens of the
United States.”

24
 Contrary to the District Court’s holding in this case, we have recognized the Constitution’s

protection of a right to intrastate as well as interstate travel. Williams, 535 F.3d at 75 (“[I]ndividuals

possess a fundamental right to travel within a state.” (emphasis added)); King v. New Rochelle Mun. Hous.

Auth., 442 F.2d 646, 648 (2d Cir. 1971) (“It would be meaningless to describe the right to travel

between states as a fundamental precept of personal liberty and not to acknowledge a correlative

constitutional right to travel within a state.”); see also Ramos v. Town of Vernon, 353 F.3d 171, 176 (2d

Cir. 2003) (recognizing the “limit[ed] constitutional right to free movement within [a] [t]own”).

Even if we had not recognized a right of intra-state travel, plaintiffs have, as noted, alleged that the

toll affected their interstate travel between New York to New Jersey.8

“When a local regulation infringes upon a constitutionally-protected right, we apply strict

scrutiny, requiring the municipality to show that the regulation is narrowly tailored to serve a

compelling governmental interest.” Town of Southold, 477 F.3d at 53 (emphasis added). The Supreme

Court has explained that “[a] state law implicates the right to travel when it actually deters such

travel, when impeding travel is its primary objective, or when it uses any classification which serves

to penalize the exercise of that right.” Soto-Lopez, 476 U.S. at 903 (emphasis added) (internal

quotation marks and citations omitted).

8
The District Court correctly observed that, in Bray v. Alexandria Women’s Health Clinic, the
Supreme Court held that a proposed demonstration at an abortion clinic amounted to a “purely
intrastate restriction” that “[did] not implicate the right of interstate travel.” 506 U.S. 263, 277
(1993). We note that plaintiffs in Bray simply alleged that they were prevented from entering
abortion clinics. See id. The Bray case did not concern the use of our interstate highway system.
The holding in Bray is consistent with our holding in Williams, supra, that the right to
travel—interstate or intrastate—did not afford an individual a right to enter a particular building. See
Williams, 535 F.3d at 76. In any event, inasmuch as plaintiffs have alleged that the NYTA toll
program actually penalized their right to travel between states, we need not address any possible
tensions between Bray and our case law.

25
 Plaintiffs do not argue that NYTA’s toll policy actually deters travel or that it was enacted

primarily for the purpose of impeding travel. They contend, rather, that the policy imposes a

burden or penalty on their exercise of the right to travel, and should accordingly be subject to strict

scrutiny, because it denies a benefit to all non-residents of New York (and all but a subset of New

York residents) who exercise the right to travel on Interstate-190 through Grand Island. We

disagree. In Evansville the Supreme Court explained that “[t]he principle that burdens on the right to

travel are constitutional only if shown to be necessary to promote a compelling state interest has no

application” where travelers pay a fee to use a “facility provided at public expense [that] aids rather

than hinders the right to travel.” Evansville, 405 U.S. at 714. Indeed, the Court observed in Soto-

Lopez that its “recent cases [concerning the right to travel] have dealt with state laws that, by

classifying residents according to the time they established residence, resulted in the unequal

distribution of rights and benefits among otherwise qualified bona fide residents.” 476 U.S. at 903.

For example, the Supreme Court has subjected to strict scrutiny analysis state laws that imposed

durational residence requirements for receipt of welfare benefits, Shapiro v. Thompson, 394 U.S. 618,

634 (1969), overruled in part on other grounds by Edelman v. Jordan, 415 U.S. 651 (1974); healthcare

benefits, Mem’l Hosp., 415 U.S. at 254; voting rights, see Dunn v. Blumstein, 405 U.S. 330, 342 (1972);

and a civil service preference for veterans who entered the armed forces while residing in a

particular state, Soto-Lopez, 476 U.S. at 909. But see Sosna v. Iowa, 419 U.S. 393 (1975) (upholding a

one-year residency requirement for maintaining an action for divorce); Starns v. Malkerson, 401 U.S.

985 (1971) (summarily affirming a one-year residency requirement for in-state tuition at state

universities).

Our observation that “minor restrictions on travel simply do not amount to the denial of a

fundamental right,” Town of Southold, 477 F.3d at 54 (internal quotation marks omitted), is consistent

26
with the Supreme Court’s jurisprudence, cf. Miller v. Reed, 176 F.3d 1202, 1205 (9th Cir. 1999)

(“[M]inor burdens impacting interstate travel, such as toll roads, do not constitute a violation [of the

right to travel] . . . .” (emphasis added)). In this case, plaintiffs do not allege that they or other

members of the putative class routinely pay the full toll in order to commute to work or that the toll

has otherwise had a substantial financial impact on them. As noted, they allege that they paid the

toll en route to New Jersey for shopping and other activities. These facts suggest at most a “minor

restriction” on plaintiffs’ right to travel, rather than a “penalty.”9

Nevertheless, plaintiffs’ allegations implicate a possible violation of the right to travel in the

context discussed in Evansville inasmuch as they contend that they have been charged an excessive

toll for use of the Grand Island Bridge while residents of New York are charged substantially less.

In Evansville, the Supreme Court recognized a difference between the sort of “invidious distinctions”

that penalize the right to travel, see Zobel, 457 U.S. at 60, and cases in which a state has simply levied

“a charge designed only to make the user of state-provided facilities pay a reasonable fee to help

defray the costs of their construction and maintenance,” see Evansville, 405 U.S. at 714; see also id. at

713 & n.6. The implication of the Court’s reasoning in Evansville is that, in the normal course, fees

designed to offset the cost of maintaining a state-provided facility are generally permissible if they

9
Plaintiffs rely on the Supreme Court’s decision in Crandall v. Nevada, 73 U.S. (6 Wall.) 35
(1867), for the proposition that “residency requirements in interstate travel, even if the amount of
the ‘penalty’ is small or minimal, are odious and unconstitutional.” Appellant’s Br. 37. In Crandall,
the Supreme Court held unconstitutional a state tax of one dollar charged to railroad passengers
leaving the state. 73 U.S. at 46. However, as the Supreme Court explained in Evansville, “[t]he
Nevada charge [at issue in Crandall] was not limited . . . to travelers asked to bear a fair share of the
costs of providing public facilities that further travel.” 405 U.S. at 712. Contrary to plaintiffs’
argument before this Court, “[t]here is no solid foundation for the claim that [a] statute directly
interferes with the rights of citizens of the United States to pass through the State, and is
consequently bad according to the doctrine announced in Crandall,” id. at 713, simply because it
charges a fee to “to help defray the costs of road construction and repair,” id. at 712.

27
“reflect a uniform, fair and practical standard relating to public expenditures.” Id. at 716 (internal

quotation marks omitted). A user fee, however, violates the right to travel unless “it (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.” Northwest Airlines, 510 U.S. at

369 (citing Evansville, 510 U.S. at 716-17).

Accordingly, we conclude that the District Court erred in applying rational basis review to

NYTA’s toll policy. On remand, the District Court shall determine whether the toll policy

implicates the right to travel in the context discussed in Evansville and, if so, the District Court shall

apply strict scrutiny. If, however, the District Court finds that the toll is merely a “minor restriction

on travel” that does not amount to the denial of a fundamental right, Town of Southold, 477 F.3d at

54, then the District Court shall apply the Northwest Airlines test to determine if the toll discriminates

against interstate commerce.

IV. Article IV Privileges and Immunities Clause

Rubin, a U.S. citizen residing in Canada, argues that the District Court erred in dismissing

her claim that the NYTA policy violates her rights under the Privileges and Immunities Clause of

Article IV.10 In contrast to the Privileges and Immunities Clause of the Fourteenth Amendment,

which provides that “[n]o State shall make or enforce any law which shall abridge the privileges and

immunities of the citizens of the United States,” U.S. Const. amend. XIV, § 1 (emphasis added), the

Privileges and Immunities Clause of Article IV provides that “[t]he Citizens of each State shall be

entitled to all Privileges and Immunities of Citizens in the several States,” U.S. Const. art. IV, § 2

(emphasis added). The plain language of the Privileges and Immunities Clause of Article IV

mandates a reciprocal arrangement among the several states comprising the United States whereby

10
As noted, Selevan did not appeal this aspect of the District Court’s order.

28
residents of one state are entitled to enjoy the same rights as citizens of other states. Canada is not a

party to that arrangement. Accordingly, the text of Article IV, Section 2 suggests that U.S. citizens

living abroad who, like Rubin, are not citizens of a particular state are not entitled to its protection.

As the Supreme Court explained in Hicklin v. Orbeck, the purpose of the Privileges and

Immunities Clause of Article IV is

to place the citizens of each State upon the same footing with citizens of other
States, so far as the advantages resulting from citizenship in those States are
concerned. It relieves them from the disabilities of alienage in other States; it inhibits
discriminating legislation against them by other States; . . . it insures to them in other
States the same freedom possessed by the citizens of those States in the acquisition
and enjoyment of property and in the pursuit of happiness; and it secures to them in
other States the equal protection of their laws. It has been justly said that no
provision in the Constitution has tended so strongly to constitute the citizens of the
United States one people as this.

437 U.S. 518, 524 (1978) (quoting Paul v. Virginia, 75 U.S. (8 Wall.) 168, 180 (1869) (internal

quotation marks omitted)). Put differently, the Privileges and Immunities Clause of Article IV “was

designed to insure to a citizen of State A who ventures into State B the same privileges which the

citizens of State B enjoy” Zobel, 457 U.S. at 59 n.5 (quoting Toomer, 334 U.S. at 395)). In Saenz, a

right-to-travel case, the Court identified the article’s Privileges and Immunities Clause as the source

of the right of “a citizen of one State who travels in other States, intending to return home at the end of

his journey, . . . to enjoy the Privileges and Immunities of Citizens in the several States that he

visits.” 526 U.S. at 501 (emphasis added). The Court then distinguished the Privileges and

Immunities Clause of Article IV from the Privileges and Immunities Clause of the Fourteenth

Amendment by noting that the rights of a newly arrived citizen of a state to enjoy the same

privileges and immunities of the citizens of the same state was protected “not only by the new

arrival’s status as a state citizen”—a reference to the Privileges and Immunities Clause of Article

29
IV—“but also by her status as a citizen of the United States”—a reference to Privileges and

Immunities Clause of the Fourteenth Amendment. 526 U.S. at 502.

As our discussion in part III, supra, of Rubin’s right-to-travel claim under the Privileges and

Immunities Clause of the Fourteenth Amendment demonstrates, the rights of U.S. citizens residing in

foreign countries are protected by that provision of the Constitution. However, neither the text nor

the purpose of the Privileges and Immunities Clause of Article IV—integrating the various states

into a coherent whole—would be served by extending its protection to residents of foreign

countries, even U.S. citizens residing in foreign countries.

Because foreign countries are not among the entities that Article IV seeks to integrate into a

single nation, we cannot conclude that the Privileges and Immunities Clause of that article extends

to residents of Canada who are also U.S. citizens. In sum, we hold that, in the circumstances

presented here, the District Court properly dismissed Rubin’s claim under the Privileges and

Immunities Clause of Article IV.

CONCLUSION

For reasons stated above, we hold that

(1) plaintiffs have established standing to sue under Article III of the Constitution;

(2) plaintiffs are proper parties to allege a violation of the dormant Commerce Clause under

the Supreme Court’s “prudential standing” doctrine;

(3) NYTA has not established that it acted as a “market participant” rather than as a

governmental entity engaged in regulation of interstate commerce;

(4) plaintiffs have stated a claim under the dormant Commerce Clause;

(5) plaintiffs have stated a claim for infringement of their right to travel in violation of the

Equal Protection Clause and the Privileges and Immunities Clause of the Fourteenth Amendment;

30
 (6) plaintiffs’ dormant Commerce Clause and right to travel claims must be analyzed under

the three-factor test set forth by the Supreme Court in Northwest Airlines, Inc. v. County of Kent, 510

U.S. 355, 369 (1994); and

(7) the District Court properly dismissed Rubin’s challenge to NYTA’s toll policy under the

Privileges and Immunities Clause of Article IV.

* * *

Accordingly, the January 18, 2007 order of the District Court is AFFIRMED in part,

VACATED in part, and the cause is REMANDED for further proceedings consistent with this

opinion.

31