CHECKER CAB PHILADELPHIA, INC. et al v. THE PHILADELPHIA PARKING AUTHORITY et al
MEMORANDUM AND OPINION. SIGNED BY HONORABLE MICHAEL M. BAYLSON ON 3/12/18. 3/13/18 ENTERED & E-MAILED.(fdc)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Checker Cab Philadelphia, et al,
The Philadelphia Parking Authority and
MEMORANDUM RE: DEFENDANT FENERTY’S MOTION FOR SUMMARY
In this action, Philadelphia taxicab companies assert that the governmental agency
responsible for regulating taxicabs, Defendant Philadelphia Parking Authority (“PPA”) and its
former executive director, Defendant Vincent Fenerty, violated their rights under the Equal
Protection Clause and Takings Clause of the U.S. Constitution for failing to regulate so-called
“Transportation Network Companies” (“TNCs”), such as Uber and Lyft, before their statewide
On January 29, 2018, this Court granted summary judgment as to PPA only, and allowed
the parties to submit additional briefing on the issue of whether Fenerty was entitled to qualified
immunity. With briefing now complete, the Court hereby GRANTS the motions for summary
judgment as to Fenerty.
Background and Procedural History
The background of this case, as well as its lengthy procedural history, was detailed in this
Court’s memorandum of January 29, 2018. (Mem. Granting PPA Mot. for Summ. J., ECF 173.)
A brief review of the legal theories asserted by the parties and the proceedings at summary
judgment is necessary to resolve whether Fenerty is entitled to qualified immunity.
This lawsuit was initially filed by a group of medallion-holding Philadelphia taxicab
companies (collectively referred to as “Checker”), which asserted that by failing to regulate
TNCs prior to their statewide legalization, PPA and Fenerty violated the U.S. Constitution in two
First, that PPA’s failure to apply taxicab regulations to or otherwise regulate TNCs
amounted to disparate treatment of similarly situated for-hire transportation and selective
enforcement of taxicab violations in violation of the Equal Protection Clause; and
Second, that the diminution in value of taxi medallions caused by the failure to regulate
TNCs constituted a taking of Checker’s property without just compensation in violation of the
Fifth and Fourteenth Amendments.
Intervenor Germantown Cab Company (“Germantown”; together with Checker, the “Taxi
Companies”), a taxicab company that does not hold taxi medallions, asserted, like Checker, that
PPA’s failure to regulate TNCs constituted selective enforcement of taxicab regulations in
violation of Germantown’s right to equal protection of the laws.
Defendants PPA and Fenerty jointly filed two motions for summary judgment: one
motion for summary judgment as to Checker, and a separate summary judgment motion as to
Germantown. After briefing on the summary judgment motions was complete, the Court held
oral argument on January 24, 2018. The Court issued a ruling on January 29, 2018 in which the
Court found that no genuine issue of material fact existed on the Taxi Companies’ selective
enforcement and disparate treatment equal protection theories, or on Checker’s takings claim.
However, the Court granted summary judgment as to PPA only, and did not make any
ruling as to Fenerty. (Order Granting PPA Mot. for Summ. J., ECF 174.) The Court deferred
ruling on whether Fenerty was entitled either to summary judgment, or to a defense of qualified
immunity based on his actions. The Court opined that it “believe[d] that under settled Supreme
Court and Third Circuit law, that Mr. Fenerty has a very strong legal argument that he is entitled
to qualified immunity.” (Mem. Granting PPA Mot. for Summ. J. at 60, ECF 173.) The Court
First, because the Court is rejecting the Taxi Companies’ claims of constitutional
violations, the Court believes it is likely proper to make the same conclusion as to
Mr. Fenerty. Alternatively, given the extensive discussion of law in this
Memorandum and the very vigorous disputes over the applicable law, the Court is
inclined to find that the applicable law was not “clearly established,” at least in
this factual context of PPA regulations and practices, emerging TNCs and their
relationship to established taxicab companies. This Court held in Bradley v. West
Chester University, 26 F. Supp. 3d 435 (E.D. Pa. 2017), aff’d on other grounds,
No. 17-1588 (3d Cir. Jan. 26, 2018), a defendant is entitled to qualified immunity
even if there is a factual dispute as to whether his conduct violated constitutional
rights, if the right asserted was not “clearly established.” The extended discussion
in Bradley would equally apply to this case.
(Id.) Because the issue had not been briefed, the Court decided to “give the Taxi Companies an
opportunity to present facts the Taxi Companies still believe warrant the Court denying the
Fenerty motion for qualified immunity, and by filing a brief memorandum of law citing to
matters already in the record.” (Id.)
Checker filed a memorandum of law regarding the applicability of qualified immunity to
Defendant Fenerty on February 9, 2018. (ECF 175.) Germantown filed a short statement joining
Checker’s memorandum. (ECF 176.) Fenerty filed a response on February 16, 2018. (ECF
Summary judgment is appropriate if the movant can show “that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). A dispute is “genuine” if “the evidence is such that a reasonable jury could
return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A factual dispute is “material” if it “might affect the outcome of the suit under the
governing law.” Id.
A party seeking summary judgment bears the initial responsibility for informing the
district court of the basis for its motion and identifying those portions of the record that it
believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). Where the non-moving party bears the burden of proof on a particular
issue at trial, the moving party’s initial burden can be met simply by “pointing out to the district
court that there is an absence of evidence to support the non-moving party’s case.” Id. at 325.
Summary judgment is appropriate if the non-moving party fails to rebut the motion by making a
factual showing “that a genuine issue of material fact exists and that a reasonable factfinder
could rule in its favor.” Id. Under Rule 56, the Court must view the evidence presented on the
motion in the light most favorable to the opposing party. Anderson, 477 U.S. at 255.
A. Principles of Qualified Immunity
of qualified immunity protects government officials ‘from liability for civil damages insofar as
their conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). See also Taylor v. Barkes, 135 S. Ct. 2042,
2044 (2015) (stating that “[q]ualified immunity shields government officials from civil damages
liability unless the official violated a statutory or constitutional right that was clearly
established at the time of the challenged conduct”).
The Supreme Court has explained that
qualified immunity “gives government officials breathing room to make reasonable but mistaken
judgments about open legal questions. When properly applied, it protects ‘all but the plainly
incompetent or those who knowingly violate the law.’” Ashcroft v. al-Kidd, 563 U.S. 731, 743
(2011) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). In Pearson, the Supreme Court
explained that “[q]ualified immunity balances two important interests—the need to hold public
officials accountable when they exercise power irresponsibly and the need to shield officials
from harassment, distraction, and liability when they perform their duties reasonably.” 555 U.S.
The Supreme Court has described the test for qualified immunity as a “two-pronged
inquiry.” Tolan v. Cotton, 134 S. Ct. 1861, 1865 (2014). The first prong concerns whether the
“conduct” of a government official “violated a [federal] right [.]” Id. (alteration original). “The
second prong of the qualified-immunity analysis asks whether the right in question was ‘clearly
established’ at the time of the violation.” Id. at 1866. Courts may “exercise their sound
discretion in deciding which of the two prongs of the qualified immunity analysis” to tackle first.
Pearson, 555 U.S. at 236.
Because a plaintiff must satisfy both prongs of the qualified immunity framework,
defendants often make alternative arguments to avoid liability, as Fenerty does in his
supplemental brief. Defendants asserting a qualified immunity defense typically first argue that
they committed no constitutional violation, and then argue that even if they had violated the
constitution, they are entitled to qualified immunity because the right asserted was not clearly
established. See, e.g., Plumhoff v. Rickard, 134 S. Ct. 2012 (2014) (accepting police officers’
alternative arguments that a fatal shooting after a high-speed chase did not constitute excessive
use of force in violation of the Fourth Amendment and even if it had, the officers would have
been entitled to qualified immunity).
The Supreme Court has further clarified that a “clearly established right is one that is
sufficiently clear that every reasonable official would have understood that what he is doing
violates that right” such that “existing precedent must have placed the statutory or constitutional
question beyond debate.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (internal quotations and
citations omitted) (warning courts “not to define clearly established law at a high level of
generality”). “The dispositive question is whether the violative nature of particular conduct is
clearly established,” an inquiry that “must be undertaken in light of the specific context of the
case, not as a broad general proposition.” Id. (finding that police officer in excessive use of force
case was entitled to qualified immunity where the shooting took place against a “hazy legal
backdrop”). Courts are to consider the state of the law at the time of the violation; “later decided
cases [can]…not give fair notice” to a defendant as to the illegality of his conduct. Plumhoff,
134 S. Ct. at 2023 (reviewing case law prior to date of alleged excessive use of force and
declining to consider subsequent cases). In this way, the Third Circuit has described qualified
immunity analysis as “look[ing] through the rearview mirror, not the windshield.” Williams v.
Sec’y Pennsylvania Dep’t of Corr., 848 F.3d 549, 570 (3d Cir. 2017) (defendants were entitled to
qualified immunity where right asserted was not clearly established at the time of the alleged
violations in the lawsuit, but had become clearly established by the time of the Third Circuit’s
When evaluating claims that the right asserted was clearly established, courts in the Third
Circuit “look first for applicable Supreme Court precedent,” but “[i]f none exists,” courts then
“consider whether there is a case of controlling authority in our jurisdiction or a
robust consensus of cases of persuasive authority in the Courts of Appeals [that] could clearly
establish a right for purposes of qualified immunity.” Barna v. Bd. of Sch. Directors of Panther
Valley Sch. Dist., 877 F.3d 136, 142 (3d Cir. 2017) (quotations and citations omitted) (members
of school board who banned disruptive meeting participant were entitled to qualified immunity
where “given the state of the law at the time of the Board’s ban there was, at best, disagreement
in the Courts of Appeals as to the existence of a clearly established right to participate in school
board meetings despite engaging in a pattern of threatening and disruptive behavior”).
Thus, at the summary judgment stage, if the right asserted is not clearly established, it is
possible for a defendant to be entitled to qualified immunity—and to a grant of summary
judgment—even if there is a factual dispute as to whether the defendant’s conduct violated
constitutional rights. Such was the case in this Court’s decision in Bradley v. W. Chester Univ.
of Pennsylvania State Sys. of Higher Educ., 226 F. Supp. 3d 435 (E.D. Pa. 2017), aff’d on other
grounds, 880 F.3d 643 (3d Cir. 2018).
B. Contentions of the Parties
1. The Taxi Companies
The Taxi Companies first imply that PPA—which is no longer a party to this case—must
file a separate motion for summary judgment on the issue of qualified immunity:
To date, Defendants, Philadelphia Parking Authority, et al. (“PPA”) have not
moved for summary judgment on its claim that former Executive Director,
Vincent J. Fenerty (“Fenerty”) is entitled to qualified immunity. Absent a pending
motion for summary judgment on this issue, the PPA must first move for
summary judgment under Rule 56 of the Federal Rules of Civil Procedure and
establish that it is entitled to a judgment as a matter of law because there are no
genuine disputes of material facts at issue.
(Taxi Companies’ Joint Mem. Regarding Qualified Immunity at 1, ECF 175.)
Turning to the qualified immunity analysis itself, the Taxi Companies assert that Fenerty
engaged in an “abuse of power” that is “not entitled to immunity.” (Id. at 2.) The Taxi
Companies argue, as they did in their prior summary judgment briefing, that Fenerty stated
inconsistent positions regarding TNCs, and “failed to engage in any meaningful action to
remedy” what the Taxi Companies saw as a disparity in regulatory burdens on taxicabs and
TNCs prior to the enactment of statewide TNCs—inaction that purportedly led to a decline in
taxi medallion values. (Id. at 2-4.)
The Taxi Companies also argue, more generally, that Fenerty is not entitled to qualified
immunity because “Fenerty’s tenure as Executive Director of the PPA was marred in corruption
and caused the public to doubt whether the PPA could even function in its current design.” (Id.
at 3.) Specifically, the Taxi Companies rely on the negative findings of two PPA audit reports
regarding various aspects of Fenerty’s tenure as PPA executive director, such as financial
irregularities at PPA and issues with PPA’s institutional culture. (Id. at 4-6.) With respect to
both lines of argument, the Taxi Companies conclude that “Fenerty is not entitled to a defense of
qualified immunity because he abused his power as Executive Director of the PPA for his own
benefit and failed to perform his duties as a public official in a reasonable manner.” (Id. at 6.)
Fenerty responds that this Court rejected the Taxi Companies’ Equal Protection and
Takings Clause challenges as to PPA, and because Checker asserts no further facts in its
memorandum showing that Fenerty violated the Taxi Companies’ constitutional rights—and the
Taxi Companies brought no claims as to Fenerty alone in their respective Complaints—the Court
should consider the issue of qualified immunity to be moot. (Fenerty Mem. Regarding Qualified
Immunity at 1-3, ECF 177.)
In the alternative, Fenerty argues, the law regarding the constitutional obligations of
regulators toward TNCs was not “clearly established” at the time of the events at issue in this
lawsuit. (Id. at 3-9.) Finally, Fenerty takes exception to Checker’s reliance on the audit reports,
which made no findings as to PPA’s treatment of TNCs, as irrelevant—and whose inclusion in
the record was already rejected by this Court. (Id. at 9.)
C. Whether Fenerty Is Entitled to Summary Judgment
In its memorandum granting summary judgement as to PPA, this Court expressed its
tentative belief that Fenerty likely would be entitled to qualified immunity, but wanted to give
the parties an opportunity to brief the issues, specifically by allowing the Taxi Companies “an
opportunity to present facts the Taxi Companies still believe warrant the Court denying the
Fenerty motion for qualified immunity,” and to file a brief, supporting memorandum of law
“citing to matters already in the record.” (Mem. Granting PPA Mot. for Summ. J. at 60, ECF
The requested briefing has confirmed the Court’s belief. The Taxi Companies have
pointed to no facts in the voluminous record of this case warranting denial of summary judgment
as to Fenerty, and have marshaled no apposite case law supporting their position that a qualified
immunity defense should be unavailable to Fenerty.
As discussed above, “[q]ualified immunity shields government officials from civil
damages liability unless the official violated a statutory or constitutional right that was clearly
established at the time of the challenged conduct.” Taylor, 135 S. Ct. at 2044. As the Third
Circuit put it, “[w]hen a qualified immunity defense is asserted, a court must determine (1)
whether the facts alleged by the plaintiff make out a violation of a constitutional right, and (2)
whether that right was clearly established at the time of the injury.” Mann v. Palmerton Area
Sch. Dist., 872 F.3d 165, 170 (3d Cir. 2017). Thus, the Taxi Companies cannot obtain damages
from Fenerty unless he (1) violated a statutory or constitutional right of the Taxicab Companies,
and (2) that right was clearly established at the time of the events in this lawsuit.
The parties’ supplemental briefing has now satisfied this Court that Fenerty is entitled to
summary judgment: Fenerty did not violate the constitutional rights of the Taxi Companies in the
course of PPA’s failure to regulate TNCs more aggressively, and even if he had, he would be
entitled to a defense of qualified immunity. Fenerty is therefore entitled to summary judgment.
In its memorandum granting summary judgment to PPA, the Court found that PPA had
not violated the constitutional rights of the Taxi Companies under the Equal Protection Clause or
the Takings Clause of the U.S. Constitution. As Fenerty points out in his supplemental brief, the
Taxi Companies’ supplemental briefs have not shown any record evidence whatsoever raising a
factual issue that Fenerty—separately from PPA—violated the rights of the Taxi Companies to
equal protection of the laws or Checker’s right to be protected from takings of its taxi medallions
for public use without just compensation.
Moreover, even if Fenerty had violated the Fifth and/or Fourteenth Amendment rights of
the Taxi Companies, the Taxi Companies have provided no case law that showing that the
particular rights they assert were clearly established at the time of Fenerty’s challenged actions.
The Court, which is obliged by Mullenix and other cases to construe the Taxi Companies’
asserted rights at low level of generality, considers the Taxi Companies to be asserting two rights
that Fenerty allegedly violated: first, that the Taxi Companies are entitled under the Equal
Protection Clause to aggressive regulatory or enforcement action by the executive director of a
taxicab regulatory agency against unlicensed competitors; and, second, that holders of taxi
medallions have a right under the Takings Clause both to the value of the medallions they hold
and to a stable credit market in taxi medallions.
As the Court discussed in its review of taxicab challenges in its prior memorandum
granting summary judgment to PPA, theories comparable to those advanced by the Taxi
Companies in this action have been largely rejected by courts. (Mem. Granting PPA Mot. for
Summ. J. at 33-56, ECF 173.) The closest the Taxi Companies come to showing any case law
whatsoever in which a court found for plaintiff taxicab companies against a regulator on similar
facts and legal theories during the relevant period in this lawsuit is Boston Taxi Owners Ass’n,
Inc. v. City of Boston, 180 F. Supp. 3d 108 (D. Mass. 2016), in which the district court found
that the plaintiff taxicab companies had stated a claim for an equal protection violation on a
failure-to-regulate theory comparable to that advanced by the Taxi Companies in this litigation.1
As discussed in this Court’s prior memorandum granting summary judgment to PPA, that court
actually dismissed the plaintiffs’ claim for an unconstitutional taking of their medallions, which
had fallen in value; thus, no court has ever found that a governmental taxicab regulator has
effected an unconstitutional regulatory taking based a drop in medallion values. Id.
A lone decision of a district court is not the “applicable Supreme Court precedent,”
controlling Third Circuit authority, or “robust consensus of cases of persuasive authority in the
Courts of Appeals” required by the Third Circuit to find a right to be clearly established. See
Barna, 877 F.3d at 142 (3d Cir. 2017). Thus, even if Fenerty had violated the rights of the Taxi
Companies under the Equal Protection Clause and the Takings Clause of the U.S. Constitution—
Baldwin v. Town of West Tisbury, No. 16-CV-10736-ADB, 2017 WL 3940932 (D. Mass.
Sept. 7, 2017), which likewise found that a plaintiff taxi owner had stated a claim on an equal
protection clause failure-to-regulate theory, was decided after the relevant period in this lawsuit.
or if there were a factual debate as to whether he had done so—Fenerty is entitled to the defense
of qualified immunity.
Finally, the Taxi Companies provide no support for their assertion that PPA—which is no
longer party to this lawsuit—must file a separate motion for summary judgment on the issue of
qualified immunity on behalf of its former co-defendant, Vincent Fenerty, whom the Taxi
Companies named as a Defendant in their respective Complaints. Fenerty filed a joint motion
with PPA as to the constitutional claims asserted by the Taxi Companies, which is still pending.
Qualified immunity is a defense often raised at the summary judgment stage, and is often
asserted as the grounds entitling governmental defendants to summary judgment. See, e.g.,
Williams, 848 F.3d at 553 (affirming district court’s grant of summary judgment to defendant
prison officials because the prison officials were entitled to qualified immunity). It is perfectly
appropriate to grant summary judgment to Fenerty on the pending summary judgment motion.
Defendant Vincent Fenerty’s Motions for Summary Judgment (ECF 147 and 148) are
hereby GRANTED. An appropriate order follows.
O:\CIVIL 16\16-4669 Checker Cab v PPA\16cv4669 Checker Cab Fenerty MSJ Memo.docx
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