   17-956
   Pistolesi v. Calabrese

                     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 ASUMMARY ORDER@).       A PARTY
CITING TO 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, held at the Thurgood Marshall United States
   Courthouse, 40 Foley Square, in the City of New York, on the
   24th of January, two thousand eighteen.

   PRESENT:
            DENNIS JACOBS,
            PETER W. HALL,
            CHRISTOPHER F. DRONEY,
                 Circuit Judges.
   _____________________________________

   RENATO PISTOLESI, ALLTOW, INC.,
   ACTION AUTOMOTIVE COLLISION &
   MECHANICAL INC.,
            Plaintiffs-Appellants,

              -v.-                                    17-956

   CARL CALABRESE, individually,
   MARTIN NOVICK, individually,
   MATTHEW ALEXANDER, individually,
   JENNIFER NIZNIK, individually,
   PAUL ITALIANO, individually, ALAN
   WEITLICH, individually, JOHN



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VISENTIN, VILLAGE OF WAPPINGERS
FALLS, DENISE CALABRESE,
         Defendants-Appellees,

BRIAN SMITH, individually, JOSH
KEMLAGE, individually, J. ERNS,
individually, SEAN MCNEIL,
individually, M.A. RODRIGUEZ,
individually, RAFAEL TORRES,
individually, P. CAPPARELLI,
individually, MARK LIBERMANN,
individually, MARK KEMLAGE,
individually,
         Defendants.
__________________________________

FOR PLAINTIFFS-APPELLANTS:   MICHAEL H. SUSSMAN, Sussman &
                             Associates, Goshen, NY.

FOR DEFENDANTS-APPELLEES:    MONTGOMERY L. EFFINGER, O’Connor,
                             McGuinness, Conte, Doyle, Oleson,
                             Watson & Loftus, LLP, White
                             Plains, NY.

     Appeal from a judgment of the United States District Court
for the Southern District of New York (Aspen, J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.

     This challenge to the denial of an injunction ordering the
Village of Wappingers Falls (“the Village”) to reinstate one
of the plaintiff companies (“Action”) to the Village’s
rotational tow list returns to us following a remand that
instructed the United States District Court for the Southern
District of New York (Aspen, J.) to “reconsider Action’s
request” in light of our disagreement with the court’s
conclusion that such an injunction would constitute
impermissible retroactive relief. Pistolesi v. Calabrese, 666
F. App'x 55, 59 (2d Cir. 2016) (citing Dwyer v. Regan, 777 F.2d
825, 836 (2d Cir. 1985) (holding that reinstatement constitutes
prospective relief)). Our order of remand “express[ed] no
opinion on the merits of Action’s request.” Id. We assume the

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parties’ familiarity with the underlying facts, the procedural
history, and the issues presented for review.

     “[I]f an [entity] claims [that a] federal law immunizes
[it] from [a] state regulation, [a federal] court may issue an
injunction upon finding the state regulat[ion] [] preempted.”
Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1384
(2015) (citing Ex parte Young, 209 U.S. 123, 155–56 (1908)).
However, a court presented with a request for injunctive relief
must determine whether--in view of equitable considerations and
any applicable statutory limitations--the particular
injunction sought “is an appropriate remedy to be granted” in
that case. Dwyer, 777 F.2d at 836.

     Prior to the remand, Action successfully petitioned the
district court for a declaratory judgment that Requirement 4
of the Village’s tow-list guidelines was preempted by 49 U.S.C.
§ 14501(c)(1), and for an injunction barring the Village from
enforcing that requirement. See Armstrong, 135 S. Ct. at 1384
(“[I]n a proper case, relief may be given in a court of equity
. . . to prevent an injurious act by a [local official].” (first
alteration in original) (internal quotation marks omitted)).
On remand, the district court denied the additional injunctive
relief that Action had requested--reinstatement to the tow
list--on the ground that it would not be “an appropriate
remedy.” Dwyer, 777 F.2d at 836. The court reasoned that
Action’s request amounted to an attempt to enforce
§ 14501(c)(1), which does not give rise to a private right of
action. See Armstrong, 135 S. Ct. at 1385 (a party “cannot,
by invoking [a federal court’s] equitable powers, circumvent
Congress’s exclusion of private enforcement”); see also W. Air
Lines, Inc. v. Port Auth. of New York & New Jersey, 817 F.2d
222, 225 (2d Cir. 1987) (“A claim under the Supremacy Clause
that a federal law preempts a state regulation is distinct from
a claim for enforcement of that federal law.”).

     We review the district court’s denial of the requested
injunction for abuse of discretion. See eBay Inc. v.
MercExchange, L.L.C., 547 U.S. 388, 391 (2006). We are “free
to affirm” the court’s conclusion that court-ordered
reinstatement would be inappropriate in this case “on any ground

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that finds support in the record.” Brown Media Corp. v. K&L
Gates, LLP, 854 F.3d 150, 160 n.6 (2d Cir. 2017) (quoting Headley
v. Tilghman, 53 F.3d 472, 476 (2d Cir. 1995)). We affirm on
the ground that Action can point to no “irreparable injury”--
traceable to (or likely to result from) the preempted local
rule--that warrants reinstatement. eBay, 547 U.S. at 391.

     Requirement 4, which barred from admission to the tow list
any “applicant[]” operating on the “same premises or real
property” as “another Tow Rotation Service,” was enacted after
Action had already been removed from the tow list. App’x at
97. It was therefore not the cause of Action’s removal. Nor
was Requirement 4 ever the basis for denying Action admission
to the tow list; Action did not apply for admission during the
time in which Requirement 4 was in effect, and it has not applied
for admission in the nearly three years since Requirement 4 was
declared preempted.

     To the extent that Action’s request for reinstatement is
predicated on the belief that it will be unlawfully denied
admission on the basis of Requirement 4, see Armstrong, 135 S.
Ct. at 1384 (“[F]ederal courts may in some circumstances grant
injunctive relief against [local officials] who are . . .
planning to violate[] federal law.”), it has already received
the relief to which it is entitled. The Village is enjoined
from enforcing Requirement 4. And in the event that the Village
violates that injunction, the district court has ample power
to enforce it.1

     Action therefore fails to identify a past or future injury
that warrants the additional relief it requests. Accordingly,
that relief was properly denied.


    1 We note that Action has only pursued this action against
the local officials in their individual, rather than official,
capacities. Thus, in the event that the Village cites
Requirement 4 to prevent Action from re-joining the list and
Action seeks to enforce the injunction, the district court
should consider whether further injunctive relief would be
proper against the local officials in this case.

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     We have considered Action’s arguments and find them to be
without merit. For the foregoing reasons, we AFFIRM the order
of the district court.

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




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