17-1849 (L)
Assoc. of Car Wash Owners Inc. et al. v. City of New York



                                  In the
                      United States Court of Appeals
                         For the Second Circuit

                                      August Term, 2017

                                Argued: September 26, 2018
                                Decided: December 12, 2018

                                Docket No. 17-1849-cv (L)
                               Docket No. 17-3476-cv (XAP)


    ASSOCIATION OF CAR WASH OWNERS INC., ZOOM CAR SPA, LLC, and FIVE STAR HAND
                                  WASH LLC,

                           Plaintiffs-Appellees-Cross-Appellants,

                                               v.

CITY OF NEW YORK and LORELEI SALAS, in her official capacity as Commissioner of the
               New York City Department of Consumer Affairs,

                          Defendants-Appellants-Cross-Appellees.


                        Appeal from the United States District Court
                          for the Southern District of New York
                           No. 15-cv-8157, Hellerstein, Judge.



Before:       HALL and LYNCH, Circuit Judges, and KUNTZ, District Judge.





     Judge William F. Kuntz, II, of the United States District Court for the Eastern District of
New York, sitting by designation.


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        On appeal from a judgment of the United States District Court for the Southern
District of New York (Alvin K. Hellerstein, J.) holding the National Labor Relations Act,
29 U.S.C. § 151 et seq., preempts a two-tiered surety bond provision contained in New
York City Local Law 62 for the Year 2015, entitled the Car Wash Accountability Law,
codified at N.Y.C. Admin. Code §§ 20-539 through 20-546, 24-529 (the “Car Wash Law”).
That provision, as relevant here, reduces the required bond amount when an applicant
seeking a license to operate a car wash in New York City is a party to a collective
bargaining agreement providing certain protections. The district court initially struck down
the entire law, but in an amended order, the district court severed section 20-542(b)(1)—
the subdivision at issue in this appeal—from the remainder of the law. Because we
conclude the district court erred in granting summary judgment on federal preemption prior
to the completion of discovery, we vacate the district court’s order and remand the case so
the parties may take discovery.

       VACATED AND REMANDED.

                                        JOHN S. SUMMERS (Rebecca S. Melley, Andrew M.
                                        Erdlen, on the brief), Hangley Aronchick Segal Pudlin
                                        & Schiller, Philadelphia, PA, and Michael A. Cardozo,
                                        Proskauer Rose LLP, New York, NY, for Plaintiffs-
                                        Appellees-Cross-Appellants Association of Car Wash
                                        Owners Inc., Zoom Car Spa, LLC, and Five Star Hand
                                        Wash LLC.

                                        INGRID R. GUSTAFSON (Richard Dearing, on the brief),
                                        on behalf of Zachary W. Carter, Corporation Counsel of
                                        the City of New York, New York, NY, for Defendants-
                                        Appellants-Cross-Appellees City of New York and
                                        Lorelei Salas, in her official capacity as Commissioner
                                        of the New York City Department of Consumer Affairs.

William F. Kuntz, II, District Judge:

       This appeal calls on us to consider whether the National Labor Relations Act (“NLRA”),

29 U.S.C. § 151 et seq., preempts New York City Local Law 62 for the Year 2015, entitled the

Car Wash Accountability Law, codified at N.Y.C. Admin. Code §§ 20-539 through 20-546, 24-

529 (the “Car Wash Law”). In June 2015, the New York City Council voted to adopt the law

and Mayor Bill de Blasio signed it into law. The Car Wash Law requires car washes to obtain a



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license before operating in the City and sets forth certain requirements for acquiring a license.

Among the law’s provisions is a two-tiered surety bond provision which, as relevant here,

reduces the required bond amount from $150,000 to $30,000 if the car wash applying for

issuance or renewal of a license “is a party to a current and bona fide collective bargaining

agreement . . . that expressly provides for the timely payment of wages and an expeditious

process to resolve disputes concerning nonpayment or underpayment of wages.” N.Y.C. Admin.

Code § 20-542(b)(1). The Association of Car Wash Owners Inc. and two of its individual

members, Zoom Car Spa, LLC and Five Star Hand Wash LLC (collectively, “Plaintiffs”)

subsequently filed suit in the United States District Court for the Southern District of New York

against the City of New York (the “City”) and Lorelei Salas in her official capacity as

Commissioner of the New York City Department of Consumer Affairs (collectively,

“Defendants”) alleging, inter alia, the surety bond provision favors unionization and is

preempted by the NLRA.

       The district court (Alvin K. Hellerstein, J.) agreed with the Plaintiffs and granted their

motion for summary judgment regarding federal preemption, holding the NLRA preempts

section 20-542(b)(1) of the law. Although the district court initially struck down the entire law,

following motions for reconsideration, the district court severed only the subdivision at issue—

section 20-542(b)(1)—from the remainder of the law. Because we find the district court erred in

granting summary judgment for the Plaintiffs on their federal preemption claim before discovery,

we vacate the district court’s order and remand for further proceedings.

                                          BACKGROUND

       In light of concerns regarding the lack of regulatory oversight of the car wash industry

and its history of underpayment of wages, unsafe practices, and environmental issues, among


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other problems, the New York City Council voted to adopt the Car Wash Law on June 10, 2015.

A1024. On June 29, 2015, Mayor Bill de Blasio signed it into law. A1121-22. The law makes

it unlawful for a car wash to operate in New York City without a license. N.Y.C. Admin. Code §

20-541(a). To obtain a license, an applicant must certify that it is in compliance with certain

environmental rules and has no outstanding warrants or judgments; must file certificates of

insurance for workers’ compensation, unemployment insurance, and disability insurance

coverage; and must file proof of liability insurance coverage, among other requirements. Id. §

20-541(d). In addition, an applicant must furnish proof of compliance with the surety bond

provision set forth in section 20-542 of the law. Id. § 20-541(d)(2). The law also contains a

severability clause. See id. § 20-539.

       The surety bond provision, in turn, requires that applicants for a license “furnish to the

commissioner [of Consumer Affairs] a surety bond in the sum of one hundred fifty thousand

dollars, payable to the city of New York and approved as to form by the commissioner.” Id. §

20-542(a). There are two circumstances in which a reduced bond amount of $30,000 applies.

The first situation, and the subject of this appeal, is when the applicant “is a party to a current

and bona fide collective bargaining agreement, with a collective bargaining representative of its

employees, that expressly provides for the timely payment of wages and an expeditious process

to resolve disputes concerning nonpayment or underpayment of wages.” Id. § 20-542(b)(1). The

second circumstance is when the applicant “is covered by an active monitoring agreement

pursuant to a settlement supervised by the office of the attorney general of the United States or

the state of New York, or the department of labor of the United States or the state of New York,

or other government agency with jurisdiction over wage payment issues,” and the active

monitoring agreement “expressly provides for the timely payment of wages at or above the


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applicable minimum wage rate,” “requires that the employer be subjected to at least monthly

monitoring by an independent monitor appointed,” and “provides for an expeditious process to

resolve disputes concerning wage violations without the expense of litigation, including

reasonable mechanisms to secure the assets necessary to cover any judgment or arbitration

award.” Id. § 20-542(b)(2). The surety bond must be available to satisfy any fine, penalty, or

obligation to the City, final judgments obtained by customers who sustained damages, and final

judgments obtained by employees for nonpayment or underpayment of wages. Id. § 20-

542(c)(1)-(3).

       On October 16, 2015, the Plaintiffs filed their initial complaint. A6. On October 19,

2015, the Plaintiffs filed their first motion for partial summary judgment arguing that the Car

Wash Law is preempted and invalid. A6, A24-25. In a stipulation so-ordered by the district

court on November 3, 2015, the parties agreed that the time for the Plaintiffs to file an amended

complaint and/or an amended/superseding motion be extended until four weeks after the

Department of Consumer Affairs (“DCA”) published final rules implementing the Car Wash

Law. A27-28. The parties also agreed the Defendants would not implement the law and

associated rules until resolution of the Plaintiffs’ motion. A28. After the DCA published the

contemplated final rules, the district court so-ordered a stipulation on October 23, 2016 setting a

schedule for the filing of an amended complaint and/or amended/superseding motion and

opposition thereto, A31-32, which was subsequently revised several times.

       On October 26, 2016, the Plaintiffs filed an amended complaint alleging federal and state

law preemption, denial of equal protection, violation of due process, a claim pursuant to 42

U.S.C. § 1983, and arbitrary and capricious action in violation of New York state law. A35-57.

On February 21, 2017, the Plaintiffs filed an amended motion for partial summary judgment on


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their federal and state law preemption claims, A93-94, and the Defendants filed a motion for

judgment on the pleadings seeking to dismiss the amended complaint in its entirety, A145-46. In

an amended order dated June 20, 2017, the district court (i) held the NLRA preempts section 20-

542(b)(1) of the Car Wash Law; (ii) dismissed with prejudice the Plaintiffs’ equal protection, due

process, and section 1983 claims; and (iii) declined to exercise supplemental jurisdiction over the

Plaintiffs’ state law claims. SPA2-12. The district court initially declared the entire Car Wash

Law invalid. SPA12. Both sides filed motions for reconsideration. In an order dated August 31,

2017, the district court granted the Defendants’ motion to sever section 20-542(b)(1) from the

remainder of the law and granted the Plaintiffs’ motion, which the district court construed as a

motion to reinstate the Plaintiffs’ section 1983 claim. SPA30-36. In an order dated September

26, 2017, the district court denied the Plaintiffs’ second motion for reconsideration. SPA38.

       Both sides appeal. A1828-29, A1831-32. The Defendants appeal the district court’s

order granting the Plaintiffs’ motion for partial summary judgment on federal preemption and

denying the Defendants’ corresponding motion for judgment on the pleadings. The Plaintiffs

argue the district court correctly decided the federal preemption question but appeal the district

court’s judgment severing only section 20-542(b)(1) from the remainder of the law. In response,

the Defendants argue that to the extent this Court agrees with the district court’s federal

preemption holding, the district court properly severed only section 20-542(b)(1).

                                            DISCUSSION

       “We review de novo the award of summary judgment, ‘constru[ing] the evidence in the

light most favorable to the [nonmoving party]’ and ‘drawing all reasonable inferences and

resolving all ambiguities in [its] favor.’” Jaffer v. Hirji, 887 F.3d 111, 114 (2d Cir. 2018)

(quoting Darnell v. Pineiro, 849 F.3d 17, 22 (2d Cir. 2017)). “Summary judgment is appropriate


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only where ‘there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)). Similarly, we review the

district court’s denial of a motion for judgment on the pleadings de novo, “accepting the

allegations in the amended complaint as true and drawing all reasonable inferences in favor of

the nonmoving party.” Patel v. Searles, 305 F.3d 130, 134-35 (2d Cir. 2002) (citations omitted);

see Graziano v. Pataki, 689 F.3d 110, 114 (2d Cir. 2012).

I.     NLRA Preemption

       “The NLRA does not contain an express preemption provision. Instead, ‘[t]he doctrine

of labor law pre-emption concerns the extent to which Congress has placed implicit limits on the

permissible scope of state regulation of activity touching upon labor-management relations.’”

Concerned Home Care Providers, Inc. v. Cuomo, 783 F.3d 77, 84 (2d Cir. 2015) (quoting N.Y.

Tel. Co. v. N.Y. State Dep’t of Labor, 440 U.S. 519, 527 (1979)). Two different doctrines of

NLRA preemption have emerged. The first category—known as Garmon preemption after the

Supreme Court’s decision in San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236 (1959)—

“hold[s] that the NLRA preempts state regulation that either prohibits conduct subject to the

regulatory jurisdiction of the [National Labor Relations Board] under section 8 of the NLRA or

facilitates conduct prohibited by section 7 of the NLRA.” Rondout Elec., Inc. v. N.Y. State Dep’t

of Labor, 335 F.3d 162, 167 n.1 (2d Cir. 2003) (citing Garmon, 359 U.S. at 244-47); see

Healthcare Ass’n of N.Y. State, Inc. v. Pataki, 471 F.3d 87, 95 (2d Cir. 2006) (“[T]he Garmon

rule can be stated quite elegantly: ‘States may not regulate activity that the NLRA protects,

prohibits, or arguably protects or prohibits.’” (quoting Wis. Dep’t of Indus., Labor & Human

Relations v. Gould Inc., 475 U.S. 282, 286 (1986)).




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       It is the second category of NLRA preemption, known as Machinists preemption, with

which we are concerned in this appeal. Stated broadly, Machinists preemption “forbids states

and localities from intruding upon ‘the [labor-management] bargaining process.’” Concerned

Home Care Providers, 783 F.3d at 84 (quoting Lodge 76 Int’l Ass’n of Machinists & Aerospace

Workers, AFL-CIO v. Wis. Emp’t Relations Comm’n, 427 U.S. 132, 149 (1976)). Machinists

preemption “rel[ies] on the understanding that in providing in the NLRA a framework for self-

organization and collective bargaining, Congress determined both how much the conduct of

unions and employers should be regulated, and how much it should be left unregulated.” Metro.

Life Ins. Co. v. Massachusetts, 471 U.S. 724, 751 (1985). Under this theory of NLRA

preemption, the crucial inquiry is “whether Congress intended that the conduct involved be

unregulated because [such conduct was] left to be controlled by the free play of economic

forces.” Machinists, 427 U.S. at 140 (quotation marks, citation, and footnote omitted); Golden

State Transit Corp. v. City of Los Angeles, 475 U.S. 608, 614 (1986) (“[Machinists preemption]

precludes state and municipal regulation concerning conduct that Congress intended to be

unregulated.” (quotation marks, citation, and footnote omitted)).

       As this Court has explained, “[s]ections 7 and 8 of the NLRA guarantee employees the

right to organize and engage in other forms of protected concerted action, and identify forms of

unfair labor practices. The remaining aspects of the bargaining process are left ‘to be controlled

by the free play of economic forces.’” Concerned Home Care Providers, 783 F.3d at 84 (citing

29 U.S.C. §§ 157, 158(a)-(b) and quoting Machinists, 427 U.S. at 140). “Under [Machinists

preemption], even regulation that does not actually or arguably conflict with the provisions of

sections 7 or 8 of the NLRA may interfere with the open space created by the NLRA for the free

play of economic forces.” Healthcare Ass’n of N.Y. State, 471 F.3d at 107 (quotation marks and


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citations omitted). “The framework established in the NLRA was merely a means to allow the

parties to reach . . . agreement fairly.” Metro. Life Ins. Co., 471 U.S. at 752. “The NLRA is

concerned primarily with establishing an equitable process for determining terms and conditions

of employment, and not with particular substantive terms of the bargain that is struck when the

parties are negotiating from relatively equal positions.” Id. at 753 (citation omitted).

       In Metropolitan Life, the Supreme Court held “[m]inimum state labor standards affect

union and nonunion employees equally, and neither encourage nor discourage the collective-

bargaining processes that are the subject of the NLRA. Nor do they have any but the most

indirect effect on the right of self-organization established in the Act.” Id. at 755. In this

respect, the Court explained “we believe that Congress developed the framework for self-

organization and collective bargaining of the NLRA within the larger body of state law

promoting public health and safety.” Id. at 756. Indeed, although states are precluded from

regulating the bargaining process, “states have traditionally possessed ‘broad authority under

their police powers to regulate the employment relationship,’ and the substantive labor standards

that they enact set a baseline for employment negotiations.” Concerned Home Care Providers,

783 F.3d at 85 (quoting De Canas v. Bica, 424 U.S. 351, 356 (1976)). The “crucial inquiry” is

whether state action “frustrate[s] effective implementation of the [NLRA’s] processes.” Golden

State Transit Corp., 475 U.S. at 615 (quoting Machinists, 427 U.S. at 147-48). “Thus the Court

has recognized that it ‘cannot declare pre-empted all local regulation that touches or concerns in

any way the complex interrelationships between employees, employers, and unions; obviously,

much of this is left to the States.’” Metro. Life Ins. Co., 471 U.S. at 757 (quoting Motor Coach

Emps. v. Lockridge, 403 U.S. 274, 289 (1971)). “[P]re-emption should not be lightly inferred in




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this area, since the establishment of labor standards falls within the traditional police power of

the State.” Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 21 (1987).

          The Plaintiffs contend that the law does not qualify as a minimum labor standard. First,

they argue the law is not a labor standard because it addresses other topics, such as

environmental regulations, outside the scope of labor. Second, they argue that the law’s surety

provision inherently favors unionization. Neither argument justifies summary judgment for the

Plaintiffs.

          First, insofar as the licensing scheme established by the ordinance and enforced by the

bond requirement is expressly intended to improve compliance with state and federal minimum

wage laws, it is most emphatically a law concerned with implementing minimum wage and hour

regulations of the sort approved by the Supreme Court in Metropolitan Life. The law’s concern

with minimum labor conditions is not vitiated by the fact that the licensing scheme also

addresses other industry problems; a concern for the environment as well as for minimum wage

laws does not invalidate the law’s relationship to minimum labor conditions.

          Second, the Plaintiffs are correct that even a law that addresses such legitimate, non-

preempted local concerns may not do so by creating significant pressure on employers to

encourage unionization of their employees. At this stage of the proceedings, however, for

reasons explained below, we cannot conclude as a matter of law that the ordinance has such an

effect.

          In its amended order granting the Plaintiffs’ motion for partial summary judgment

regarding federal preemption and denying the Defendants’ corresponding motion for judgment

on the pleadings, the district court concluded that “[s]ection 20-542(b)(1) explicitly encourages

unionization . . . by imposing a penalty that requires a fivefold increase in the amount of a surety


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bond required for car washing companies that are not parties to a collective bargaining

agreement or, alternatively, an independent monitoring scheme and large security deposits.”

SPA7 (citations omitted). The district court stated that “[p]ressuring businesses to unionize is

impermissible under the NLRA, as it inserts the City directly into labor-management

bargaining.” Id. (citation omitted). We agree with the Defendants that the district court’s

conclusion regarding purported financial pressure, reached before the completion of discovery, is

premature.

         To be sure, as the Defendants recognize, a higher surety bond requirement will impose

some costs beyond what a lower bond requirement would impose. But claims of financial

pressure relied upon in granting summary judgment must be supported by undisputed facts

showing the Plaintiffs are entitled to judgment as a matter of law. See Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 250 (1986). Here, the claims of financial pressure cited by the

Plaintiffs and implicitly accepted by the district court are far from undisputed and fail to show

the NLRA preempts the surety bond provision as a matter of law. For example, the Plaintiffs

represented that the costs of obtaining a higher $150,000 surety bond will likely be between 1%

and 3% of the amount of the bond—in other words, $1,500 to $4,500—while the costs of

obtaining a $30,000 surety bond will likely be $300 to $900. A138. These are relatively minor

differences in cost. The Plaintiffs asserted that car washes “may” be required to obtain CPA-

prepared financial statements because a surety will “typically” wish to review such statements

before deciding whether a given car wash qualifies for a $150,000 bond, but acknowledged there

was “substantial uncertainty about the costs and difficult[y] of securing a bond.” A137-39; see

also A1270 (calling into question whether bond firms would require CPA-prepared financial

statements). Nor did the Plaintiffs submit sufficient information about their own financial


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condition, or that of other non-party car washes, to enable the district court to make a reasoned

determination about purported financial pressure. Crucially, the Plaintiffs’ claims of financial

pressure must be considered in tandem with the financial costs of unionization. To suggest a car

wash owner would have to choose between obtaining a $150,000 bond with its attendant costs,

whatever they may be, or supporting unionization, at no cost, ignores economic reality.

       “Since summary judgment is a ‘drastic device,’ it should not be granted when there are

major factual contentions in dispute. This is particularly so when, as here, one party has yet to

exercise its opportunities for pretrial discovery.” Nat’l Life Ins. Co. v. Solomon, 529 F.2d 59, 61

(2d Cir. 1975) (citations omitted). “[S]ummary judgment should only be granted if after

discovery, the nonmoving party has failed to make a sufficient showing on an essential element

of [its] case with respect to which [it] has the burden of proof.” Hellstrom v. U.S. Dep’t of

Veterans Affairs, 201 F.3d 94, 97 (2d Cir. 2000) (quotation marks, citation, and internal editing

omitted). “Only in the rarest of cases may summary judgment be granted against a [party] who

has not been afforded the opportunity to conduct discovery.” Id. (citations omitted). This is

because “[t]he nonmoving party must have ‘had the opportunity to discover information that is

essential to his opposition’ to the motion for summary judgment.” Trebor Sportswear Co. v. The

Ltd. Stores, Inc., 865 F.2d 506, 511 (2d Cir. 1989) (quoting Anderson, 477 U.S. at 250 n.5); see,

e.g., Sutera v. Schering Corp., 73 F.3d 13, 18 (2d Cir. 1995) (vacating district court’s order

granting summary judgment where “[s]ummary judgment was entered before any discovery had

taken place” which precluded the plaintiff, the nonmoving party, from having “a full and fair

opportunity” to respond to the defendant’s claims).

       Indeed, Rule 56(d) of the Federal Rules of Civil Procedure authorizes district courts to

defer ruling on a motion for summary judgment—or to deny the motion altogether—“[i]f a


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nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts

essential to justify its opposition.” Fed. R. Civ. P. 56(d)(1); see Meloff v. N.Y. Life Ins. Co., 51

F.3d 372, 374-75 (2d Cir. 1995) (finding the district court was “over-hasty in granting

[summary] judgment” and vacating the district court’s order where the nonmovant filed an

affidavit pointing out the need for further discovery in opposing the motion). Rule 56 also

authorizes district courts to “allow time to obtain affidavits or declarations or to take discovery”

or to “issue any other appropriate order.” Fed. R. Civ. P. 56(d)(2)-(3).

       Here, the Defendants filed a Rule 56(d) declaration stating why discovery was necessary

to fully refute the Plaintiffs’ claims of financial pressure. A1218-26. The Plaintiffs contend the

district court properly disregarded the Defendants’ Rule 56(d) declaration because the

Defendants did not make any effort to obtain the requested discovery between the Plaintiffs’

filing of their original motion for summary judgment and the filing of their amended motion.

But the Plaintiffs’ argument overlooks the fact that while the parties’ November 2015 joint

stipulation regarding scheduling, A27-29, may not have expressly contemplated a stay of

discovery, it nonetheless stated the parties “have agreed to await the promulgation of [the DCA’s

final rules] to allow plaintiffs the opportunity to file an amended pleading and/or

amended/superseding motion for summary judgment and/or preliminary injunction.” A27. In

fact, a declaration submitted in support of the Plaintiffs’ amended motion for summary judgment

characterized that stipulation as having agreed the case “would be stayed until the Commissioner

of the [DCA] issued rules implementing [the Car Wash Law].” A103. While the Defendants

may not have been prohibited from attempting to take discovery during this period, given the

parties’ joint stipulation and agreement to await the filing of an amended complaint and/or

amended motion before proceeding, we cannot say the Defendants’ failure to do so precludes


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them from the relief they now seek. Cf. Burlington Coat Factory Warehouse Corp. v. Esprit De

Corp., 769 F.2d 919, 927-28 (2d Cir. 1985) (“A party who both fails to use the time available

and takes no steps to seek more time until after a summary judgment motion has been filed need

not be allowed more time for discovery absent a strong showing of need.”).

       Whether the Car Wash Law’s surety bond provision has the effect of imposing financial

pressure on car wash owners to support unionization is relevant in determining whether the law

impermissibly interferes with the collective bargaining process to the extent of being preempted

by the NLRA. Because there are genuine disputes of material fact with respect to the Plaintiffs’

claims of financial pressure—disputes which discovery could reasonably be expected to

address—we conclude the district court erred in granting the Plaintiffs’ pre-discovery motion for

partial summary judgment on federal preemption.

II.    Severability

       In its June 20, 2017 order addressing the parties’ motions as to NLRA preemption, the

district court declared the Car Wash Law invalid, striking down the entire law. SPA12. The

Defendants then filed a motion for reconsideration seeking to sever section 20-542(b)(1)—the

subdivision reducing the surety bond requirement for car washes that are party to a collective

bargaining agreement with certain protections—from the remainder of the Car Wash Law.

A1779-80. In an order dated August 31, 2017, the district court granted the Defendants’ request

and severed section 20-542(b)(1), allowing the remainder of the Car Wash Law to be enforced.

SPA32-34, 36. The Plaintiffs now appeal the district court’s order severing section 20-542(b)(1).

       “[T]he oldest and most consistent thread in the federal law of justiciability is that the

federal courts will not give advisory opinions.” Flast v. Cohen, 392 U.S. 83, 96 (1968)

(quotation marks and citation omitted). This means that federal courts “may not give ‘an opinion


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advising what the law would be upon a hypothetical state of facts.’” In Matter of Motors

Liquidation Co., 829 F.3d 135, 168 (2d Cir. 2016) (quoting Aetna Life Ins. Co. v. Haworth, 300

U.S. 227, 241 (1937)); United States v. Yalincak, 853 F.3d 629, 639 n.11 (2d Cir. 2017) (citing

Abele v. Markle, 452 F.2d 1121, 1124 (2d Cir. 1971)). Here, severability arises only if any

portion of the Car Wash Law is deemed invalid—if no part of the Car Wash Law is preempted,

then severability need not be considered. Because we vacate the district court’s order with

respect to NLRA preemption and remand the case for further proceedings, we decline to express

any opinion as to the merits of the district court’s severability holding at this point in the

litigation.

                                            CONCLUSION

        For the foregoing reasons, the portion of the district court’s order appealed from granting

the Plaintiffs’ motion for summary judgment with respect to NLRA preemption and denying the

Defendants’ corresponding motion for judgment on the pleadings is VACATED. We also

VACATE the district court’s order severing section 20-542(b)(1). We REMAND the case to the

district court for further proceedings not inconsistent with this opinion.




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