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Ingerman v. Delaware River Port Authority

June 30, 2009

PETER ZILAHY INGERMAN PLAINTIFF,
v.
DELAWARE RIVER PORT AUTHORITY DEFENDANT.



The opinion of the court was delivered by: Rodriguez, Senior District Judge

FOR PUBLICATION

Hon. Joseph H. Rodriguez

OPINION

This matter comes before the Court on motion of Defendant Delaware River Port Authority ("Defendant" or "DRPA" where appropriate) to dismiss Plaintiff Peter Zilahy Ingerman's Complaint in lieu of answer pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff opposes Defendant's motion and cross moves for partial summary judgment pursuant to Federal Rule of Civil Procedure 56(a). The central issue in this case is whether the DRPA is in violation of Section 7 of the Privacy Act of 1974 by including the disclosure of one's social security number ("SSN") as a prerequisite for membership in its E-ZPass Senior Citizen Program ("the Program" where appropriate). Additionally, the Court must determine whether the DRPA violated Plaintiff's equal protection and due process rights by denying him membership in the Program solely because he refused to disclose his social security number.

In his prayer for relief, Plaintiff demands that the DRPA be permanently enjoined from rejecting an applicant for its E-ZPass Senior Citizen Program solely because of refusal to disclose his or her SSN. Plaintiff also demands damages in the amount of half his E-ZPass tolls accumulated since he first submitted his application for membership. Finally, Plaintiff seeks attorneys fees, costs, interests, and such other relief that this Court deems appropriate.

I. Facts

The facts are not in dispute. Defendant Delaware River Port Authority is a bi-state agency. See N.J. Stat. Ann. § 32:3-1; 36 P.S. § 3503 ("a single agency of both States"). The DRPA was created by parallel enactments of the State of New Jersey and the Commonwealth of Pennsylvania followed by an Act of Congress which approved the parallel enactments as an interstate compact ("Compact"). See id. Article VIII of the Compact, codified at N.J. Stat. Ann. § 32:3-9; 36 P.S. § 3588, vests the DRPA with power to levy and collect tolls, among other things, for the interstate bridges that it owns and operates between New Jersey and Pennsylvania. (Id. at ¶ 5.)

Recently, the DRPA created the E-ZPass Senior Citizen Program. (Pl. Ex. A.) This Program allows persons over the age of sixty-five years who use E-ZPass as the method of paying bridge tolls to pay a reduced or discounted toll rate when crossing the DRPA's bridges. (Id.) The toll rate is set at fifty percent of the standard rate. (Id.) In order to avail oneself of this Program, one must have attained the age of sixty-five and have a New Jersey E-ZPass account. (Id.) Additionally, and significant for purposes of this case, one must provide the DRPA with his or her SSN. (Id.)

Plaintiff Peter Zilahy Ingerman, Ph.D., ("Plaintiff" or "Ingerman"), applied for the Program on September 7, 2008. (Id.) After completing the application form--sans disclosure of his SSN--he submitted it to the DRPA. (Compl. at ¶ 8.) Ingerman also submitted a photocopy of his passport containing his date of birth. (Id. at ¶ 8.) Based solely on the fact that Ingerman did not disclose his SSN on the application form, he was refused membership in the Program. (Id. at ¶ 9.) A DRPA employee confirmed the basis of DRPA. Ingerman thereafter received an instruction form in the mail which read in relevant part:

To register for this Program, you must complete the application on the reverse, and include your Social Security Number. (Id.)

Ingerman's counsel, Frederic J. Gross, Esq., subsequently wrote a letter to the General Counsel of the DRPA on October 3, 2008, complaining that the aforesaid requirement violated Section 7 of the Privacy Act of 1974. (Id. at ¶ 10; Pl. Ex. B.) Included in that letter was the relevant portion of the Privacy Act which provides:

It shall be unlawful for any Federal, State or local government agency to deny to any individual any right, benefit or privilege provided by law because of such individual's refusal to disclose his social security account number. (Pl. Ex. B (quoting Privacy Act of 1974, Pub. L. 93-579, 88 Stat. 1909, 5 U.S.C. § 552a (2004) (note)). Also included in that letter was notification that, if Ingerman was not allowed into the Program within thirty days, a suit would be brought against the DRPA. (Pl. Ex. B.)

Responding by letter on October 8, 2008, Assistant General Counsel of the DRPA, Roxanne Leander La Roc, Esq., took issue with the charge that the DRPA was in violation of the Privacy Act. (Pl. Ex. C.) She stated in relevant part, The Act makes it unlawful for a Federal, State or local government agency to deny any individual any right, benefit or privilege provided by law because of such individual's refusal to disclose his social security account number. Participation in DRPA's EZ-Pass [sic] Senior Citizen Program is not a right, benefit, or privilege provided by law. Therefore, DRPA is permitted to require that Mr. Ingerman provide is [sic] social security number in order to participate in the program. (Id.) Plaintiff commenced this litigation shortly thereafter on October 17, 2008. (Dkt. Entry No. 1.)

II. Standards

A. Motion to Dismiss

A complaint should be dismissed pursuant to Rule 12(b)(6) if the alleged facts, taken as true, fail to state a claim. Fed. R. Civ. P. 12(b)(6); see In re Warfarin Sodium, 214 F.3d 395, 397-98 (3d Cir. 2000). Although "detailed factual allegations" are not necessary, "a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal citations omitted). Thus, a motion to dismiss should be granted unless the plaintiff's factual allegations are "enough to raise a right to relief above the speculative level on the assumption that all of the complaint's allegations are true (even if doubtful in fact)." Id. (internal citations omitted).

When deciding a motion to dismiss pursuant to Rule 12(b)(6), only the allegations in the complaint, matters of public record, orders, and exhibits attached to the complaint, are taken into consideration. See Chester County Intermediate Unit v. Pa. Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990). A district court must accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 (3d Cir. 1994). These allegations and inferences must be viewed in the light most favorable to the plaintiff. Id. However, the Court need not accept "'unsupported conclusions and unwarranted inferences,'" Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007) (citation omitted), and "[l]egal conclusions made in the guise of factual allegations . . . are given no presumption of truthfulness." Wyeth v. Ranbaxy Labs., Ltd., 448 F. Supp. 2d 607, 609 (D.N.J. 2006) (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)); see also Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007) (quoting Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005) ("[A] court need not credit either 'bald assertions' or 'legal conclusions' in a complaint when deciding a motion to dismiss.")).

It is not necessary for the plaintiff to plead evidence. Bogosian v. Gulf Oil Corp., 561 F.2d 434, 446 (3d Cir. 1977). The question before the Court is not whether the plaintiff will ultimately prevail. Watson v. Abington Twp., 478 F.3d 144, 150 (2007). Instead, the Court simply asks whether the plaintiff has articulated "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570.

B. Summary Judgment

Summary judgment is proper if there is no genuine issue of material fact and if, viewing the facts in the light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law." Pearson v. Component Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)); accord Fed. R. Civ. P. 56 (c). Thus, this Court will enter summary judgment only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56 (c).

An issue is "genuine" if supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is "material" if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In determining whether a genuine issue of material fact exists, the court must view the facts and all reasonable inferences drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id.; Maidenbaum v. Bally's Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J. 1994). Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Andersen, 477 U.S. at 256-57. "A nonmoving party may not 'rest upon mere allegations, general denials or . . . vague statements . . . .'" Trap Rock Indus., Inc. v. Local 825, Int'l Union of Operating Eng'rs, 982 F.2d 884, 890 (3d Cir. 1992) (quoting Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir. 1991)). Indeed, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.

Celotex, 477 U.S. at 322.

In deciding the merits of a party's motion for summary judgment, the court's role is not to evaluate the evidence and decide the truth of the matter, but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. Credibility determinations are the province of the finder of fact. Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).

III. Discussion

As noted above, Plaintiff alleges statutory and constitutional violations in his Complaint. First, Plaintiff alleges that the DRPA is in violation of Section 7 of the Privacy Act of 1974. (Pl. Br. 6.) Second, Plaintiff relatedly alleges that the DRPA is in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment "by depriving him of [Section7's] protections under color of state law. . ." (Pl. Br. 8.) Defendant contends each claim should be dismissed for failure to state a claim upon which relief can be granted. (Def. Br. 4-11.) Plaintiff contends that he is entitled to partial summary judgment on the Privacy Act claim. These issues are discussed below.

A. Privacy Act Claim

Plaintiff's Privacy Act claim requires the resolution of three key issues. First, the Court must decide whether Section 7 solely applies to federal agencies, or state and local government agencies as well.*fn1 Defendant contends that Section 7 solely applies to federal agencies. (Def. Reply. Br. 3-4.) Because the DRPA is not a federal agency, it follows, Defendant contends, that the DRPA is not subject to Section 7 of the Privacy Act. In support, Defendant cites the definition of "agency" as provided in the codified portion of the Act, see 5 U.S.C. § 552a(a)(1), which references the definition for 'agency' provided in the Freedom of Information Act ("FOIA" where appropriate). See 5 U.S.C. § 552(e) (referencing definition provided in FOIA which defines "agency" as any federal agency, subsequently redesignated at § 552(f)). Based on this statutory language, which in its view trumps the un-codified "Federal, State or local" language contained in Section 7, Defendant contends that it is not subject to the Privacy Act because it is not a federal agency. (Def. Reply. Br. 3-4.) Defendant relies on persuasive authority from the Sixth Circuit, inter alia, to support this interpretation. (Id.) Disputing Defendant's interpretation, Plaintiff primarily relies on the plain meaning of Section 7. Pointedly, this issue is a threshold issue because neither Plaintiff nor Defendant contend that the DRPA is a federal agency.

The second key issue is related to the first; if Section 7 does apply to state and local government agencies, does the DRPA constitute an 'agency' such that it falls within the ambit of Section 7? This question arises from the unique bi-state nature of the DRPA. Notably, Defendant contends that it is not an agency subject to Section 7 of the Privacy Act. (Def. Br. 7.) Defendant analogizes itself to Rutgers University which, consistent with Krebs v. Rutgers University, is not subject to Section 7 of the Privacy Act. See 797 F. Supp. 1246, 1253-54 (D.N.J. 1997) (acknowledging that "there are many aspects of Rutgers' operations which touch and/or intersect with the State," but concluding that "the overall effect is an independent institution divorced from direct, let alone day-to-day control."). Because the DRPA characterizes itself as "an independent entity able to direct its own actions", it follows, the argument goes, that it is not subject to Section 7 of the Privacy Act because it is not a government agency. (Def. Br. 7.) In response, Plaintiff contends that the DRPA is far from analogous to "an institution of higher learning" like Rutgers University. (Pl. Opp'n Br. 12.) Plaintiff underscores the political accountability of both the DRPA's commissioners and the Governors who appoint them. (Pl. Opp'n Br. 13-14.) Following Plaintiff's logic to its natural conclusion, Plaintiff contends that the DRPA is a government agency subject to Section 7 of the Privacy of Act.

Finally, the third key issue of the Privacy Act claim concerns the E-ZPass Senior Citizen Program. Defendant contends that the Program is not a "benefit provided by law." (Def. Br. 4-6.) Defendant acknowledges that the DRPA's authority to levy tolls "is derived from its Compact" codified under New Jersey and Pennsylvania law. (Id. at 5.) Nonetheless, Defendant maintains that nothing in the Compact "compel[s] the DRPA to provide a discount toll program to senior citizens." (Def. Br. 5.) Thus, Defendant hangs its hat on the language "provided by law"--which in its view, does not accurately describe the method by which the instant Program is provided. Plaintiff disputes this characterization of the Program. He contends that because the Program flows from the DRPA's authority to levy and collect tolls, it necessarily must be provided by law. (Pl. Br. 17.)

1. Whether Section 7 Applies to Federal, State, and Local Government Agencies

The proper starting point for any statutory analysis begins with the language of the statute. Section 7 of the Privacy Act of 1974 provides:

(a)(1) It shall be unlawful for any Federal, State or local government agency to deny any individual any right, benefit, or privilege provided by law because of such individual's refusal ...


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