On March 20, 2002, this court allowed Plaintiffs Boston & MaineCorporation, Springfield Terminal Railway Company, and GuilfordTransportation Industries'(collectively "Guilford") Motion for SummaryJudgment, adopting a Surface Transportation Board ("STB") decision whichfound that the actions of Defendants Town of Ayer, Ayer Board ofSelectmen, Ayer Planning Board, and Ayer Board of Health (collectively"Ayer") were preempted by 49 U.S.C. § 10501(b),1 part of theInterstate Commerce Commission Termination Act of 1995 ("ICCTA").2Guilford's motion for attorneys' fees is currently before the court.
Guilford argues that because its claim is cognizable under42 U.S.C. § 1983, it is entitled to attorneys' fees under42 U.S.C. § 1988(b).3 Guilford points out that even though §1988(b) provides for discretionary award of fees and costs, the FirstCircuit has explained that "although [the] fee shifting provision iscouched in permissive terminology, awards in favor of prevailing civilrights plaintiffs are virtually obligatory."4 Guilford apparently hasaccrued attorneys' fees and costs upwards of $300,000. Ayer opposesGuilford's motion for fees, arguing that when this court decided thatAyer's actions were preempted by the ICCTA, that decision was basedentirely on the Supremacy Clause, which is not a cognizable claim under42 U.S.C. § 1983.5
While it is true that a claim based solely on the Supremacy Clause isnot cognizable under § 1983,6 in Golden State Transit Corp. v.City of Los Angeles7, the Supreme Court noted that "the fact that afederal statute has preempted certain state action does not preclude thepossibility that the same federal statute may create a federal right forwhich § 1983 provides a remedy."8 The Court further explainedthat "a Supremacy Clause claim based on a statutory violation isenforceable under § 1983 only when the statute creates `rights,privileges, or immunities' in the particular plaintiff."9 In thatcase, the Court, noting that the coverage of § 1983 "must be broadlyconstrued,"10 considered whether the National Labor Relations Act("NLRA") created a particularright in labor and management which wasenforceable under § 1983, and concluded that it did.11 Accordingto Golden State therefore, if the ICCTA creates a right for which §1983 provides a remedy, Guilford's claim is cognizable under § 1983.
The Supreme Court has developed a test for determining whether afederal statute creates rights enforceable through § 1983:
First, Congress must have intended that the provision in question benefit the plaintiff. Second, the plaintiff must demonstrate that the right assertedly protected by the statute is not so vague and amorphous that its enforcement would strain judicial competence. Third, the statute must unambiguously impose a binding obligation on the States. In other words, the provision giving rise to the asserted right must be couched in mandatory, rather than precatory, terms.12
If that test is satisfied, however, only a rebuttable presumptionresults. If Congress "specifically foreclosed a remedy under §1983," either explicitly, or impliedly through a comprehensiveenforcement scheme, then dismissal is proper.13
When applying this inquiry to the ICCTA, particularly § 10501(b),it is clear that there is a right not to be regulated. As Guilfordpoints out, the ICCTA was intended to benefit railroads because a majorpurpose of the ICCTA was to "free railroads from excessive regulationgenerally and from state and local regulation in particular."14 Thelegislative history indicates that Congress intended to free railroadsfrom regulation in order to continue to promote growth in theindustry.15 The right conferred on Guilford by the ICCTA is notso "vague and amorphous as to strain judicial competence," because, afterall, the STB's decision was based on the fact that the ICCTA preemptedAyer's actions, implicitly recognizing that Guilford had a right not to beregulated.16 By conferring exclusive jurisdiction over railroadmatters to the STB, the ICCTA imposes a binding obligation on the statesnot to regulate railroads with respect to those matters. Finally, thereis no comprehensive enforcement mechanism in the ICCTA which wouldforeclose a § 1983 action. There are enforcement provisions withinthat part of the ICCTA,17 but they do not apply to the right not tobe regulated. It follows, therefore, that § 10501(b) creates a rightnot to be regulated, enforceable through § 1983.
In Petrey v. City of Toledo,18 the plaintiff challenged thedefendant city's towing regulations, arguing that they were preempted by49 U.S.C. § 14501(c),19 apart of the ICCTA which applies tomotor carriers. In deciding whether the plaintiff had a claim under§ 1983, the court, following the Supreme Court's analysis in GoldenState, found that the plaintiff had a right under § 14501(c)(1).20The Sixth Circuit therefore held that an aspect of the defendant'sregulation of the towing industry violated § 14501(c)(1), thusdepriving the plaintiff of her federal right not to be regulated.21Noting that § 14501 "does not have a comprehensive enforcementmechanism that would preclude § 1983 relief,"22 the court heldthat § 1983 relief was available to the plaintiff for violation ofher right not to be regulated, and remanded to the district court for adetermination of damages.23 Just as in Petrey, Guilford has a rightnot to be regulated, which Ayer violated, and Guilford's right isenforceable through 42 U.S.C. § 1983. Guilford is consequentlyentitled to attorneys' fees under 42 U.S.C. § 1988(b).
Defendants rely on Soo Line R.R. Co. v. City of Minneapolis,24 toargue that there is no § 1983 claim. In that case, the court heldthat the defendant city's actions were preempted by § 10501(b) of theICCTA but held that "a federal preemption claim premised upon a violationof the Supremacy Clause is not cognizable under42 U.S.C. § 1983."25 But that court did not inquire as to whetherthe underlying statute, the ICCTA, created a right in the plaintiff.Because Golden State makes it clear that a court can look to theunderlying statute, Defendants' reliance on Soo is misplaced.
Accordingly, for the reasons stated above, Guilford's Motion forAttorneys' Fees and Costs is ALLOWED. Guilford shall submit to the courtinformation supporting the specifics of its fee and costs claims by July1, 2002. Ayer shall respond by July 15, 2002.
AN ORDER WILL ISSUE.
1. That section provides that the "jurisdiction of the [STB] over . . .(1) the transportation by rail carriers, and the remedies provided inthis part with respect to rates, classifications, rules (including carservice, interchange, and other operating rules), practices, routes,services, and facilities of such carriers; and (2) the construction,acquisition, operation, abandonment, or discontinuance of spur,industrial, team, switching, or side tracks, or facilities, even if thetracks are located, or intended to be located, entirely in one State . . .is exclusive. Except as otherwise provided in this part, the remediesprovided under this part are exclusive and preempt the remedies providedunder Federal or State law.
2. See Memorandum and Order, March 20, 2002.
3. 42. U.S.C. § 1988 provides, in relevant part: "In any action orproceeding to enforce a provision of sections 1981, 1981a, 1982, 1983,1985, and 1986 of this title . . . the court, in its discretion, mayallow the prevailing party . . . a reasonable attorney's fee as part ofthe costs. . . ."
4. Gay Officers Action League, et. al. v. Puerto Rico, 247 F.3d 288,293 (1st Cir. 2001) (citation omitted).
5. See Defs.' Opp'n to Pls.' Mot. for Att'ys' Fees and Costs.
6. See Chapman v. Houston Welfare Rights Organization, 441 U.S. 600,613 (1979) ("For even though [the Supremacy] clause is not a source ofany federal rights, it does `secure' federal rights by according thempriority whenever they come in conflict with state law.")
7. 493 U.S. 103 (1989).
8. Id. at 108.
9. Id. at 108 n. 4.
10. Id. at 105.
11. See id. at 112-113.
12. Blessing v. Freestone, 520 U.S. 329, 340-1 (1997) (internalquotations and citations omitted).
13. Id. at 341.
14. Mem. in Supp. of Pls.' Mot. for Att'ys' Fees and Costs at 6.
15. See H.R. REP. NO. 104-311, at 1, 82-96 (1995), reprinted in1995 U.S.C.C.A.N. at 793-808.
16. See Joint Petition for Declaratory Order-Boston & MaineCorporation and Town of Ayer, STB Finance Docket No. 33971, 2001 STBLEXIS 435 (May 1, 2001).
17. See 49 U.S.C. § 11701-11707.
18. 246 F.3d 548 (6th Cir. 2001).
19. 49 U.S.C. § 14501(c) provides that "a State, politicalsubdivision of a State, or political authority of 2 or more States maynot enact of enforce a law, regulation, or other provision having theforce and effect or law related to a price, route, or service of anymotor carrier . . . with respect to the transportation of property."
20. See Petrey, 246 F.3d at 565.
21. See id.
24. 38 F. Supp.2d 1096 (D.Minn. 1998).
25. Id. at 1101.