Singh et al v.Joshi et al

Filing 63

ORDER denying 13 Motion to Reassign Case, denying 18 Motion for Preliminary Injunction. Ordered by Judge Frederic Block on 1/26/2016. (Cone, Charles)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------x
JASWINDER SINGH, BALBIR NAGI,
MAN SINGH and NYC YELLOW CAB
DRIVERS ASSOCIATION, INC.,
Plaintiffs,
-against-

MEMORANDUM AND ORDER
No. 15-CV-5496-FB-VMS

MEERA JOSHI, THE NEW YORK
CITY TAXI AND LIMOUSINE
COMMISSION, BILL DE BLASIO and
THE CITY OF NEW YORK,
Defendants.
------------------------------------------------x
Appearances:
For the Plaintiffs:
DANIEL L. ACKMAN, ESQ.
222 Broadway, 19th Floor
New York, New York 10038
ANDREW ST. LAURENT, ESQ.
Harris, St. Laurent &Chaudhry LLP
40 Wall Street, 53rd Floor
New York, New York 10005

For the Defendants:
ZACHARY W. CARTER, ESQ.
Corporation Counsel of the
City of New York
100 Church Street
New York, New York 10007
By:

SHERYL NEUFELD, ESQ.
MICHELLE GOLDBERG-CAHN,
ESQ.
KAREN SELVIN, ESQ.
SAMANTHA SCHONFIELD, ESQ.

For Amici Curiae The Taxis for All
Campaign, The 504 Democratic Club, and
Disabled in Action
DANIEL L. BROWN, ESQ.
Sheppard, Mullin, Richter & Hampton
30 Rockefeller Plaza
New York, New York 10112

BLOCK, Senior District Judge:
In December 2013, the New York City Taxi and Limousine Commission
(“TLC”) settled a lawsuit challenging its compliance with the Americans with
Disabilities Act (“ADA”) by committing to “adopt regulations requiring that half of
the city’s more than 13,000 yellow cabs be accessible to people with disabilities
within six years.” Benjamin Weiser & Matt Flegenheimer, City Agrees on Access to
Taxis for Disabled, N.Y. Times, Dec. 6, 2013, at A29. Adopted the following April,
the regulations came at a cost. In the main, that cost is to be borne by the individual
owners of the medallions required for the operation of a yellow cab.
Plaintiffs—three individual medallion holders and an umbrella organization
representing others—argue that the regulations violate the Constitution and other
applicable laws. They seek a preliminary injunction barring enforcement on the
grounds that the regulations violate the constitutional guarantees of due process and
equal protection. For the following reasons, the Court disagrees and denies the
request for preliminary injunctive relief.
I
A. Background to the Regulations
As noted, the challenged regulations owe their existence to a lawsuit. In
January 2011, disabled individuals and advocacy groups filed a class action against
TLC in the Southern District of New York. See Noel v. New York City Taxi &
2

Limousine Comm’n, Case No. 11-CV-237 (S.D.N.Y. filed Jan. 13, 2011). They
alleged that wheelchair-accessible vehicles comprised only 1.8% of the city’s yellow
cab fleet, and argued that TLC was violating the ADA and other federal and local laws
by failing to require more.
Title II of the ADA addresses disability discrimination in the provision of
public services. See 42 U.S.C. §§ 12131-12165. The plaintiffs in Noel invoked two
subsections of Title II: Part A applies to public services generally, and provides that
“no qualified individual with a disability shall, by reason of such disability, be
excluded from participation in or be denied the benefits of the services, programs, or
activities of a public entity, or be subjected to discrimination by any such entity.” Id.
§ 12132. Part B applies that general prohibition to public transportation systems; it
provides, in relevant part:
If a public entity operates a demand responsive system, it shall be
considered discrimination . . . for such entity to purchase or lease a new
vehicle for use on such system . . . that is not readily accessible to and
usable by individuals with disabilities, including individuals who use
wheelchairs, unless such system, when viewed in its entirety, provides
a level of service to such individuals equivalent to the level of service
such system provides to individuals without disabilities.
Id. § 12144.
On cross-motions for summary judgment, Judge Daniels held that TLC was not
subject to the public-transportation provisions of the ADA because it did not “operate”
a transportation system. See Noel v. New York City Taxi & Limousine Comm’n, 837
3

F. Supp. 2d. 268, 273-76 (S.D.N.Y. 2011). However, he held that it was violating Part
A’s general prohibition. He reasoned that “[t]he acknowledged lack of meaningful
access is a direct result of the policies, practices, and regulations of the TLC,” id. at
278—in particular, TLC’s authority over the types of vehicles that can be used as
yellow cabs, see id. (“The TLC has admitted that it has both the ability and authority
to provide more wheelchair accessible vehicles, but it has chosen not to do so.”).
The Second Circuit vacated and remanded. See Noel v. New York City Taxi &
Limousine Comm’n, 867 F. 3d 63 (2d Cir. 2012). It held that TLC “does not violate
the ADA by licensing and regulating a private taxi industry that fails to afford
meaningful access to passengers with disabilities” because “TLC’s control over the
taxi industry, however pervasive it is at this time, does not make the private taxi
industry a program or activity of a public entity.” Id. at 72 (internal quotation marks
omitted). The circuit court further reasoned that TLC’s failure to use its regulatory
authority to require more wheelchair-accessible vehicles could not violate the ADA
“because Title III [of the ADA] expressly exempts taxi providers from purchasing or
leasing ‘accessible automobiles.’” Id. at 73. Thus, “[i]f the TLC is required . . . to
ensure that the taxi industry provides a sufficient number of accessible taxis, then
private taxi owners would be required to purchase or lease accessible taxis even
though the ADA explicitly exempts them from such requirements.” Id. at 73-74.

4

On remand, the plaintiffs obtained leave to amend their complaint to allege that
TLC’s choice of vehicle as the “Taxi of Tomorrow” was a van and, therefore, outside
the scope of the exemption relied on by the Second Circuit.1 TLC initially contested
the allegation, but eventually reached a settlement with the plaintiffs. TLC promised
to propose rules requiring 50% of the yellow cab fleet to be wheelchair-accessible by
2020. The settlement was entirely a product of negotiations between the Noel
plaintiffs and TLC; no medallion owners or taxi trade groups were invited to
participate.
B. The Regulations and their Adoption
Understanding the regulations TLC undertook to adopt requires some context.
TLC’s regulatory authority extends to many types of for-hire vehicles.
Three—conveniently color-coded—are relevant here.
First, TLC regulates New York City’s iconic yellow cabs, of which there are
currently about 13,500. Yellow cabs may accept street hails citywide, may not refuse
a hail to any destination in the city, and operate on a fare schedule set by regulation.2

1

TLC’s “Taxi of Tomorrow” program—which requires that all new yellow
cabs be Nissan NV200s—was itself a source of extensive political and legal
battles. See Emma G. Fitzsimmons, Top State Court Backs New York City’s ‘Taxi
of Tomorrow’, N.Y. Times, June 26, 2015, at A22.
2

TLC recently authorized yellow cabs to respond to “e-hails” made through
certain approved mobile apps.
5

TLC designates the makes and models approved for use as yellow cabs, see supra note
1, and mandates that each yellow cab be retired and replaced with a new vehicle every
three to seven years.
Yellow cab medallions come in two varieties. A “corporate” or “minifleet”
medallion authorizes the holder to operate an unlimited number of yellow cabs, while
an “independent” or “individual” medallion authorizes the holder to operate only one.
Each variety is further subdivided into one of three classifications: An “unrestricted”
medallion authorized—at least until the challenged regulations were adopted— the
use of any TLC-approved vehicle. An “alternative fuel” medallion requires the use
of a natural-gas or hybrid vehicle. An “accessible” medallion requires the use of a
wheelchair-accessible vehicle.
The number of yellow-cab medallions is limited by law. As a result of their
limited number, medallions are bought, sold and leased in a robust secondary market;
pledged as collateral for purchase-money mortgages; and even transferred by
inheritance and bequest. When authorized to do so, TLC sells new medallions at
auction; it has always conducted separate auctions for each variety and classification.
Second, TLC licenses livery cabs, limousines and other so-called black cars.
There is no fixed number of black-car licenses, and their number has drastically
increased due to the popularity of services such as Uber. Black cars are forbidden
from accepting street hails; transportation must be prearranged by the passenger
6

through a central dispatcher. Fares are not regulated, but must be filed with TLC.
TLC does not regulate the types of vehicle that may be used for black cars, but does
require licensees to provide a wheelchair-accessible vehicle on request.3
Third are the green “boro cabs,” which first appeared in August 2013. See Matt
Flegenheimer, All-Borough Taxis (Like Yellow Cabs, but Green) Hit the Streets, N.Y.
Times, Aug. 10, 2013, at A16. Boro cabs may accept prearranged fares like a black
car, but they may also accept street hails in areas traditionally underserved by yellow
cabs. The number of boro cabs is capped by law at 18,000, of which half will
eventually be required to be wheelchair-accessible. See Greater N.Y. Taxi Ass’n v.
New York, 21 N.Y.3d 289, 298-99 (2013).
The regulations proposed and later adopted by TLC apply only to unrestricted
yellow-cab medallion holders; they do not apply to either black cars or boro cabs. In
addition, they apply differently to individual and corporate medallions. Holders of
unrestricted corporate medallions will be required to replace 50% of their fleets with
accessible vehicles on an alternating basis. In other words, the first car to come up for

3

Traditional black-car companies accommodate such requests through their
central dispatches. The “WAV” option on Uber’s mobile app allows users to
request a wheelchair-accessible boro cab, discussed infra; it is unclear if and how
Uber complies with the mandate to provide an accessible vehicle in areas where
boro cabs cannot make pickups. See Annie Karni, Uber Blasted Over Disabled,
N.Y. Daily News, Jan. 27, 2015, at 14.
7

mandatory retirement will have to be replaced with an accessible vehicle; the second
will not.
Half of the holders of unrestricted individual medallions will also have to
replace their vehicle with an accessible vehicle. Since, by definition, individual
medallion holders have only one vehicle, the system applicable to corporate medallion
holders cannot apply. Instead, the regulations contemplate lotteries. All medallion
holders whose vehicles will come up for mandatory retirement during a particular
lottery period (January 1-June 30 and July 1-December 31 of each year) will be
entered; 50% will be chosen. Those chosen will have to replace their vehicle with an
accessible one when their vehicle comes up for retirement; those not chosen will have
to replace their vehicle with an accessible one the next time their vehicle comes up for
retirement.
Once the process is underway, half of individual medallion owners will, at any
particular moment, be slated to replace a non-accessible vehicle with an accessible
one, while the other half will be slated to replace an accessible vehicle with a nonaccessible one. Over time, the result will be an individual-medallion fleet that is—like
the corporate-medallion fleet—50% accessible. Thus, the lotteries do not result in
“winners” and “losers” because all individual medallion holders will have to purchase
an accessible vehicle every other time their vehicle comes up for retirement. The

8

lotteries determine only which medallions holders will start with an accessible
replacement and which will defer it.
Regulations to implement the foregoing scheme were first proposed in
December 2013. After a change of administrations at City Hall, the proposal was
amended to include a 30-cent surcharge on every yellow cab ride. Five cents of every
surcharge is to go to the driver; the balance is to be paid into a Taxicab Improvement
Fund. TLC estimates that the fund will be sufficient to reimburse medallion holders
up to $14,000 for each accessible vehicle purchased, plus up to $16,000 over four
years for maintenance and other operational costs.
The amended rules were proposed and published in March 2014. After a thirtyday comment period, TLC took up the proposal at a public meeting held on April 30,
2014.

The meeting—almost all of which was devoted to the proposed

regulations—lasted three hours and included statements from some 37 speakers.
Individual medallion owners and other industry representatives voiced their concerns
about the increased cost and burden of operating accessible vehicles.
At the conclusion of the comments, the commissioners unanimously approved
the regulations. The 30-cent surcharge took effect on January 1, 2015, while the

9

regulations requiring vehicle replacement apply to vehicles replaced after January 1,
2016.4
C. The Present Lawsuit
TLC conducted the first lottery of independent medallion holders in June 2015;
the three individual plaintiffs were among those chosen. By letters dated August 17,
2015, TLC informed each plaintiff that he would be required to purchase an accessible
vehicle when his current vehicle came up for mandatory retirement. The retirement
dates are April 13, 2016, for plaintiff Man Singh, May 26, 2016, for plaintiff Balbir
Nagi, and October 6, 2016, for plaintiff Jaswinder Singh.
On September 22, 2015, the three individual plaintiffs filed suit against TLC,
its chairperson, Meera Joshi, the City of New York and Mayor Bill De Blasio. They
were joined by NYC Yellow Cab Drivers Association, Inc. (“NYCYCDA”), which
purports to represent owner-drivers of yellow cabs and, in particular, those who do not
wish to replace their vehicles with accessible ones. NYCYCDA alleges that some of
its members will be required to replace their vehicles in 2016.
Collectively, the plaintiffs allege that the regulations impose noneconomic and
economic burdens on them.

They claim that the accessible vehicles are less

4

Once the regulations were adopted, the parties in Noel sought approval of
the class-action settlement. After directing notice to the class and conducting a
fairness hearing, Judge Daniels approved the settlement on September 16, 2014.
10

comfortable to drive for long periods, and more expensive to purchase, maintain and
operate. These disadvantages, in turn, make their medallions and vehicles less
desirable and, therefore, worth less than an unrestricted medallion and vehicle in the
secondary market. They acknowledge the Taxicab Improvement Fund, but note that
there is currently no guaranteed amount or mechanism for payment. In addition, they
allege that payments from the fund, as anticipated, would be insufficient to
compensate them for their losses, in particular the lost income from the lease and/or
sale of their medallions.
Plaintiffs’ assert three federal claims: (1) that the regulations violate the DueProcess Clause of the United States Constitution, (2) that the regulations violate the
Equal Protection Clause of the United States Constitution; and (3) that the regulations
amount to an unconstitutional taking of private property without just compensation.
They also assert due-process and takings claims under the New York Constitution, and
a challenge to the regulations under Article 78 of the New York Civil Practice Law
and Rules.
Once served, the defendants filed a letter motion to transfer the case to the
Southern District of New York as “related” to Noel. Shortly thereafter, the plaintiffs
sought a preliminary injunction by order to show cause; the requested injunctive relief
pertains to their due-process and equal-protection claims only. Those two matters
came before the Court on December 8, 2015, at which time the Court heard argument,
11

allowed the parties to submit additional briefing and reserved decision. The Court
also encouraged the parties to submit a statement of undisputed facts to obviate the
possible need for an evidentiary hearing. They met with some degree of success and
submitted a lengthy stipulation, on which the foregoing recitation of facts is based.
II
Before turning to the merits of plaintiff’s preliminary injunction request, the
Court must address three threshold matters. Since each is distinct from the merits, the
Court may address them in any order. See Sinochem Int’l Co. v. Malaysia Int’l
Shipping Corp., 549 U.S. 422, 431 (2007) (“[A] federal court has leeway to choose
among threshold grounds for denying audience to a case on the merits.” (citations and
interal quotation marks omitted)). None requires extended discussion.
A. Transfer
As noted, the defendants argue that this case should be transferred to the
Southern District because it is related to Noel. While both the Eastern and Southern
Districts have local rules governing the assignment of related cases to judges within
their respective courts, there is no mechanism for transferring a case pending in one
court to a particular judge in the other. Therefore, the Court construes the defendants’
request as a motion to change venue “for the convenience of the parties and witnesses,
in the interest of justice” pursuant to 28 U.S.C. § 1404(a).

12

None of the factors typically invoked as warranting a change of venue is
especially relevant here. See D.H. Blair & Co. v. Gottdiener, 462 F.3d 95, 106-07 (2d
Cir. 2006) (listing factors). Simply put, no concern of convenience is sufficiently
weighty—given the proximity of the two courts—to overcome the plaintiffs’ choice
of forum, “a decision that is given great weight.” Id. at 107 (citing Piper Aircraft Co.
v. Reyno, 454 U.S. 235, 255 (1981)).
The Court respects, of course, the need to avoid meddling in a fellow district
judge’s cases, and the concept of “the interest of justice” is surely broad enough to
account for such concerns. That said, the Court disagrees with the defendants’
assessment that retaining this case would interfere with Judge Daniels’s supervision
of the settlement in Noel.
Judge Daniels exercises jurisdiction to enforce a settlement between TLC and
disabled individuals; plaintiffs and their colleagues are strangers to that agreement.
No notice of the settlement was specifically addressed to drivers, and when one
association of corporate medallion owners requested leave to intervene, the request
was denied.

Although Judge Daniels apparently entertained objections to the

settlement, he did not pass on any constitutional issues.
Enforcement of the settlement is a conceptually distinct matter from plaintiffs’
constitutional objections to the regulations resulting from it. Were the Court to find
the regulations constitutional, enforcement of the settlement would remain a matter
13

for Judge Daniels. Were the Court to conclude that the regulations are constitutionally
infirm, the litigation before Judge Daniels would resume its course. In neither case
would the Court be interfering with Judge Daniels’s jurisdiction. Therefore, the Court
declines to transfer this case to the Southern District.
B. Standing
Defendants argue that the plaintiffs have not suffered an injury-in-fact, one of
the elements of “the irreducible constitutional minimum of standing.” Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992). An injury-in-fact is “an invasion of
a legally protected interest which is (a) concrete and particularized, and (b) actual or
imminent, not conjectural or hypothetical.” Id. (internal quotation marks and citations
omitted). The defendants argue that some of the claimed consequences of switching
to an accessible vehicle—such as increased discomfort and decreased value in the
secondary market—are speculative.
There is no dispute, however, that the challenged regulations require the
plaintiffs to make the switch in the near future or face sanctions. This choice is itself
sufficient to confer standing, whether or not all of the consequences predicted by the
plaintiffs come to pass. “[W]here threatened action by government is concerned, we
do not require a plaintiff to expose himself to liability before bringing suit to challenge
the basis for the threat—for example, the constitutionality of a law threatened to be
enforced.” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128-29 (2007)
14

(emphasis omitted). Rather, a plaintiff may satisfy the injury-in-fact requirement by
demonstrating “an intention to engage in a course of conduct arguably affected with
a constitutional interest, but proscribed by a statute,” as long as there is a “credible
threat of prosecution thereunder.” Babbitt v. United Farm Workers, 442 U.S. 289, 298
(1979). While the constitutional interest at stake is often grounded in the First
Amendment, see, e.g., id., it is clear that claims like those raised by the plaintiffs also
suffice. See Craig v. Boren, 429 U.S. 190, 195 (1976) (equal-protection challenge);
Knife Rights, Inc. v. Vance, 802 F.3d 377, 384 (2d Cir. 2015) (due-process challenge).
In any event, one consequence of the switch is the increased cost of an
accessible vehicle. Defendants do not dispute that this is a concrete injury, but argue
that it will be entirely offset by disbursements from the Taxicab Improvement Fund.
As the plaintiffs point out, however, there is currently no timetable for disbursements
and no guarantee that any eventual disbursement will completely cover the increased
cost. Thus, the promise of reimbursement is more speculative than the plaintiff’s
injuries. Cf. Albertson v. Subversive Activities Control Bd., 382 U.S. 70, 76 (1965)
(“[T]he mere contingency that the Attorney General might revise the regulations at
some future time does not render premature [the plaintiffs’] challenge to the existing
requirements.”).5

5

Since there are plaintiffs with standing to seek preliminary injunctive relief,
NYCYCDA’s standing—which the defendants also challenge—is not a matter of
15

C. Laches
Finally, defendants invoke the doctrine of laches, which “bars a plaintiff’s
equitable claim where he is guilty of unreasonable and inexcusable delay that has
resulted in prejudice to the defendant.” Ivani Contracting Corp. v. City of New York,
103 F.3d 257, 259 (2d Cir. 2007) (citation and internal quotation marks omited). That
is, having just argued that the plaintiffs sued before they had suffered any concrete
injury, the defendants now argue that they waited too long.
Defendants offer many earlier dates when the plaintiffs might have sued:
December 2013, when the Noel settlement was made public; April 2014, when the
challenged rules were adopted; June 2015, when the first lottery and its results were
announced. While these events likely came to the attention of the medallion owner
community at large, the individual plaintiffs were first notified that they, in particular,
would be required to take some action on or about August 17, 2015. They promptly
filed suit just over a month later.

urgency. The Court notes, however, that “an organization does not have standing
to assert the rights of its members in a case brought under 42 U.S.C. § 1983.”
Nnebe v. Daus, 644 F.3d 147, 156 (2d Cir. 2011). Therefore, NYCYCDA will, in
the normal course of the litigation, have to establish its own standing by offering
evidence that the regulations have caused “a perceptible impairment of [its]
activities.” Id. at 157. As matters now stand, there is no evidence that NYCYCDA
would have preferred to expend resources on anything other than its challenge to
the regulations.
16

Even if the individual plaintiffs had had notice of earlier events, their conduct
would not have been unreasonable. It would have been premature for them to file suit
before the lottery because they would not have known before then that they would be
required to make the switch in the near future. While the defendants argue that all
entrants knew that they would eventually have to do so, there is a difference between
a requirement to do something within, at most, a year and a requirement to do
something three to seven years from now—a difference that would lead a reasonable
person to wait and see which group he fell into before taking action. And even if the
individual plaintiffs could be charged with immediate knowledge of the lottery results,
three months is hardly an unreasonable amount of time to mount a legal challenge.
In sum, the Court finds none of the defendants’ threshold arguments persuasive.
Accordingly, it turns now to the merits.
III
“A plaintiff seeking a preliminary injunction must establish that he is likely to
succeed on the merits, that he is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his favor, and that an injunction
is in the public interest.” Winter v. Natural Resources Defense Council, Inc., 555 U.S.
7, 20 (2008). Since preliminary injunctions are, almost by definition, sought during
the early stages of a lawsuit, an evidentiary hearing will often be necessary to develop

17

the factual premises for the requested relief and, if necessary, resolve any disputes of
fact.
Here, however, the parties have agreed that the central issues in dispute are
legal in nature. To that end, they have provided the Court with stipulated facts. Their
efforts avoid the need for an evidentiary hearing.
That there are no material facts in dispute presents another issue. One of the
reasons preliminary injunctive relief is preliminary is that it is based on a provisional
record. Thus, the plaintiff need only show a likelihood of success on the merits. That
is patently different than actual success on the merits. It is possible, therefore, for a
plaintiff to make the requisite showing for a preliminary injunction based on available
facts, but to eventually lose on the merits due to facts developed during discovery.
Conversely, where the facts have not changed between the preliminary-injunction
stage and consideration of the merits, there is little reason for a court not to adopt its
preliminary ruling as its final one. See PDK Labs Inc. v. Ashcroft, 338 F. Supp. 2d 1,
7 (D.D.C. 2004) (calling the procedure “especially appropriate if the party requesting
summary judgment fails to adduce new evidence suggesting that the court should
revisit its grant of a preliminary injunction”).
In a case like this, in which the parties have agreed to stipulated facts,
substantial time and effort could be saved by reaching the merits of the claims
underlying the request for preliminary injunctive relief. The Supreme Court has
18

cautioned, however, that “it is generally inappropriate for a federal court at the
preliminary-injunction stage to give a final judgment on the merits.” University of
Texas v. Camenisch, 451 U.S. 390, 395 (1981). Federal Rule of Civil Procedure
65(a)(2) assuages the Supreme Court’s pronouncement somewhat by empowering a
district court to “advance the trial on the merits and consolidate it with the
[preliminary-injunction] hearing.” But like Rule 12(d), which allows conversion of
a motion to dismiss into one for summary judgment, Rule 65(a)(2) requires “clear and
unambiguous notice . . . either before the hearing commences or at a time which will
still afford the parties a full opportunity to present their respective cases.”
Camenisch, 451 U.S. at 395 (citation and internal quotation marks omitted); Abraham
Zion Corp. v. Lebow, 761 F.2d 93, 101 (2d Cir. 1985).
The Court has not specifically invoked Rule 65(a)(2), and to do so now would
impose unnecessary delay. Therefore, although the Court surmises that the likelihood
of success on the merits—or, more accurately, the lack thereof—will ultimately be
dispositive in this case, it will confine itself to plaintiffs’ request for preliminary
injunctive relief.
A. Due Process
“In a § 1983 suit brought to enforce procedural due process rights, a court must
determine (1) whether a property interest is implicated, and, if it is, (2) what process
is due before the plaintiff may be deprived of that interest.” Nnebe v. Daus, 644 F.3d
19

147, 158 (2d Cir. 2011). The defendants concede that the plaintiffs have a property
interest in their medallions. They dispute that a “deprivation” has occurred because
the right to operate a yellow cab still exists, albeit subject to new terms and conditions.
Cf. id. (suspension of taxi driver’s license constituted deprivation of property). Even
assuming a deprivation, however, the plaintiff’s due-process claim fails at the second
step.
“An essential principle of due process is that a deprivation of life, liberty, or
property ‘be preceded by notice and opportunity for hearing appropriate to the nature
of the case.’” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985)
(quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950)).
“The formality and procedural requisites for the hearing can vary, depending upon the
importance of the interests involved and the nature of the subsequent proceedings,”
but an opportunity to be heard remains the Due Process Clause’s “root requirement.”
Boddie v. Connecticut, 401 U.S. 371, 378-79 (1971).
Plaintiffs’ due-process attack focuses on the process leading to the approval of
the settlement in Noel, but that focus is misplaced. The initial settlement merely
obligated TLC to initiate a rulemaking, which itself required notice and an opportunity
for public comment. The final version of the settlement, which incorporated the
challenged rules, was approved after the notice-and-comment period. “A party's due
process rights are not violated when it may participate fully in an administrative
20

agency proceeding and later seek state-court review.” Liberty Cable Co. v. City of
New York, 60 F.3d 961, 964 (2d Cir. 1995). Although the record does not reflect that
the individual plaintiffs personally participated, there is no claim that they were denied
the opportunity to be heard during the notice-and-comment period. See Kremer v.
Chemical Constr. Corp., 456 U.S. 461, 485 (1982) (“The fact that [the plaintiff] failed
to avail himself of the full procedures provided by state law does not constitute a sign
of their inadequacy.”).
The plaintiffs argue that the rulemaking merely presented the rules required by
the Noel settlement as a fait accompli. It is true, of course, that a hearing required by
the Due Process Clause “must be at a meaningful time and [conducted] in a
meaningful manner.” Goldberg v. Kelly, 397 U.S. 254, 267 (1970) (citation and
internal quotation marks omitted); see also Air Transp. Ass’n v. National Mediation
Bd., 663 F.3d 476, 487 (D.C. Cir. 2011) (“Decisionmakers violate the Due Process
Clause and must be disqualified when they act with an unalterably closed mind and
are unwilling or unable to rationally consider arguments.”). The record here, though,
reflects extensive input from many points of view. Moreover, the creation of the
Taxicab Improvement Fund was a concrete response to concerns raised about the costs
imposed by the new rules.
Finally, the plaintiffs cannot claim that they have been denied an opportunity
for judicial review because their complaint here includes a claim under Article 78.
21

Even they do not suggest that judicial review of the regulations will be illusory.6 For
these reasons, the Court concludes that the rulemaking afforded a meaningful
opportunity to be heard and, therefore, that the rules resulting from it comport with
due process.
B. Equal Protection
The Equal Protection Clause “is essentially a direction that all persons similarly
situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S.
432, 439 (1985). Certain grounds for disparate treatment are singled out for
heightened scrutiny. Race and national origin, for instance, “are so seldom relevant
to the achievement of any legitimate state interest that laws grounded in such
considerations are deemed to reflect prejudice and antipathy,” id. at 440, while sexbased distinctions “very likely reflect outmoded notions of the relative capabilities of
men and women.” Id at 441. But even distinctions that are not suspect implicate “the

6

District courts in this circuit routinely decline to exercise supplemental
jurisdiction over Article 78 claims, see, e.g, Birmingham v. Ogden, 70 F. Supp. 2d
353, 372 (S.D.N.Y. 1999), and some have gone a step further and held that they
lack jurisdiction over them, see, e.g., Cartagena v. City of New York, 257 F. Supp.
2d 708 (S.D.N.Y. 2003). Should the Court either conclude that it cannot exercise
jurisdiction over an Article 78, or decline, in its discretion, to do so, the plaintiffs
will be able to pursue judicial review in state court. See 28 U.S.C. § 1367(d)
(mandating tolling of statute of limitations during pendency of claims invoking
district court’s supplemental jurisdiction).
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core concern of the Equal Protection Clause as a shield against arbitrary
classifications.” Engquist v. Oregon Dept’ of Agric., 553 U.S. 591, 598 (2008).
Thus, all governmental line-drawing must be “rationally related to a legitimate
governmental purpose,” and “may not rely on a classification whose relationship to
an asserted goal is so attenuated as to render the distinction arbitrary or irrational.”
City of Cleburne, 473 U.S. at 446. Still, rational-basis review is not an excuse for
judicial policymaking and “requires deference to reasonable underlying legislative
judgments.” Armour v. City of Indianapolis, 132 S. Ct. 2073, 2080 (2012).
The defendants’ asserted goal of providing better taxi service to the disabled is,
quite obviously, a legitimate governmental purpose. And its chosen means of
achieving that goal—by mandating an increase in the number of accessible yellow
cabs—is hardly irrational. Nevertheless, the plaintiffs argue that the new accessibility
rules make several arbitrary distinctions and are, therefore, unconstitutional.
1. Yellow Cabs versus Black Cars and Boro Cabs
First, the plaintiffs challenge the decision to make only yellow cabs subject to
the new rules. This decision is rational for a number of reasons. While TLC closely
regulates the types of vehicles that can be used as yellow cabs and the length of time
they can be used, the only requirement for black cars is that they pass a safety
inspection. Given the substantial difference in the scope of TLC’s regulatory

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authority over black cars versus yellow cabs, it is not apparent that TLC could require
black-car licensees to use a particular vehicle by a particular date even if it wanted to.
Moreover, yellow cabs—and only yellow cabs—can accept street hails
everywhere in the five boroughs.

The decision to impose new accessibility

requirements on yellow cabs is, in this respect, simply a recognition that street hailing
is a key component of the taxi transportation system, particularly in central
Manhattan, where even boro cabs cannot respond.
To the extent that boro cabs do have some things in common with yellow cabs,
there is nevertheless a rational basis for their disparate treatment. Wheelchair
accessibility has been a consideration of the boro cab program since its launch in
2013, with large numbers of licenses set aside for accessible vehicles. Increasing the
number of accessible yellow cabs—a far older part of the City’s transportation
system—on a similar timetable was bound to be more disruptive of settled
expectations.
2. Independent Medallions versus Corporate Medallions
The plaintiffs next object to the distinction between owners of independent
medallions and corporate medallions. In fact, both groups are subject to the same
50% requirement. To be sure, the benchmark applies differently to each group, but
as then-Judge Scalia observed, rational-basis review “is no more severe than the
realities of government permit.” United States v. Cohen, 733 F.2d 128, 137 (D.C. Cir.
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1984) (en banc) (Scalia, J.). Surely one of those realities is that a single vehicle
cannot be made 50% accessible.

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3. Lottery Winners versus Lottery Losers
Finally, the plaintiffs argue that the use of a lottery to determine which 50% of
independent medallion holders will have to switch to an accessible vehicle is arbitrary.
As the defendants point out, all independent medallion holders will eventually have
to make the switch. As noted, however, the requirement to purchase an accessible
vehicle now (or, at least, soon) is not quite the same thing as a requirement to do so
three to seven years from now; if nothing else, the rules may change between now and
then. Therefore, the Court concludes that the lottery does create two meaningfully
different categories of independent medallion holders.
In a sense, a lottery is the very definition of an arbitrary selection procedure.
But Judge Weinstein long ago recognized that, in some circumstances, selection by
lot is—in Judge Scalia’s words—one of the “realities of government”:
[C]hance is an element of most election procedures. The Archons of
ancient Athens would undoubtedly have been surprised to learn that their
selection by lot from among the citizenry was the result of an invidious
discrimination. The various United States District Courts which have
adopted random jury selection plans pursuant to Congressional mandate
might be disturbed to find that in their efforts to secure to all an equal
opportunity for jury service they have actually been violating the concept
of equal protection. The new random selection system for selective
service registrants is but another example of a process in which chance
is utilized to ensure an equal distribution of rights and duties.
Campbell v. Board of Educ., 310 F. Supp. 94, 103-04 (E.D.N.Y. 1970) (citations
omitted). What was important, in Judge Weinstein’s view, was participation on an
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equal footing: “Each [voter] stands an equal opportunity of being benefitted or injured
by the lottery . . . . There can be no denial of equal protection when all share an equal
opportunity to have their votes count in an election.” Id. at 103, 104.
The case before Judge Weinstein involved a lottery to determine the order in
which ballots in a proportional-representation election would be counted. Still, his
larger point applies here: There are times when selection by lottery actually insures
a fairer outcome than some arguably less arbitrary mechanism precisely because it
eliminates the possibility that improper considerations will infect the decision. A fair
lottery, in those situations, will insure a fair outcome. Cf. Drake v. Delta Air Lines,
Inc., 147 F.3d 169, 172 (2d Cir. 1998) (“Warrantless drug urinalysis testing of
employees in safety-sensitive jobs may be consonant with the Fourth Amendment
where part of a systematic, uniformly applied testing program (such as random
testing).”).
The Court concludes that this is one of those times. No doubt TLC could have
effectuated its goal of increased accessibility in the yellow cab fleet in many ways.
It could have required half of medallion owners to convert, but not on a rotating basis,
permanently exempting the other 50%. Or it could have simply required that each and
every vehicle in the fleet become wheelchair-accessible.
Instead, TLC’s decisions to set a goal of 50% accessibility, to include both
corporate and individual medallion owners in that mandate, and to require all
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individual owners to share the burden on a rotating basis, all reflect the balancing of
interests that defines modern policymaking. The nature of independent medallion
ownership (i.e., ownership of a single vehicle) required a mechanism for choosing
which owners would bear that burden first. The use of a lottery, in which every owner
was treated exactly like every other owner, entirely comports with equal protection.
IV
For the foregoing reasons, the plaintiffs’ request for preliminary injunctive
relief is denied.
SO ORDERED.
______________________________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
January 26, 2016

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