Nnebe v. Daus

09-4305-cv
Nnebe v. Daus

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

_____________________

August Term, 2010
(Argued: September 21, 2010; Decided: March 25, 2011; Amended: March 30,
2011; Amended: April 7, 2011 )
Docket No. 09-4305-cv
_____________________

JONATHAN NNEBE, ALEXANDER KARMANSKY, individually and on behalf
of all others similarly situated, KHARIRUL AMIN, EDUARDO AVENAUT,
NEW YORK TAXI WORKERS ALLIANCE, individually and on behalf of all
others similarly situated,

Plaintiffs-Appellants,

-v.-

MATTHEW DAUS, JOSEPH ECKSTEIN, ELIZABETH BONINA, THE NEW
YORK CITY TAXI AND LIMOUSINE COMMISSION, THE CITY OF NEW
YORK, CHARLES FRASER,

Defendants-Appellees.

_______________________

BEFORE: McLAUGHLIN and HALL, Circuit Judges, and RESTANI, Judge.*

_______________________

*
Judge Jane A. Restani of the United States Court of International Trade, sitting by
designation.

1
 Appeal from a judgment of the United States District Court for the Southern District of

New York (Sullivan, J.), granting the defendants’ motion for summary judgment and denying

the plaintiffs’ motion for class certification as moot. We conclude that the district court properly

granted summary judgment to defendants with respect to the plaintiffs’ claim that the City of

New York must provide a pre-deprivation hearing before it may suspend the licenses of taxi

drivers who have been arrested. However, we conclude that the factual record is inadequate to

permit summary judgment with respect to the plaintiffs’ claim that the post-deprivation hearing

currently afforded to drivers is insufficient to provide due process. We also disagree with the

district court’s determination that the New York Taxi Workers Alliance lacks standing.

AFFIRMED IN PART AND VACATED AND REMANDED IN PART.

_______________________

DAVID T. GOLDBERG, Donahue & Goldberg, LLP, New York, New York (Daniel
L. Ackman, Law Office of Daniel Ackman, Esq., New York, New York, on the
brief), for Plaintiffs-Appellants.

SUSAN CHOI-HAUSMAN, Senior Counsel (Pamela Seider Dolgow, Mary M.
O’Sullivan, on the brief), for Michael A. Cardozo, Corporation Counsel, New
York, New York, for Defendants-Appellees.

Kenneth Kimerling, New York, New York (Andrew H. Schapiro, Hannah Y.S.
Chanoine, counsel of record, Mayer Brown LLP, New York, New York), for
Asian American Legal Defense and Education Fund, Amicus Curiae in support of
Plaintiffs-Appellants.

_______________________

HALL, Circuit Judge:

The named plaintiffs in this putative class action, brought pursuant to 42 U.S.C. § 1983,

are the New York Taxi Workers Alliance (“NYTWA” or “Alliance”) and four New York City

taxi drivers whose licenses to drive yellow cabs were automatically suspended when they were

2
arrested on criminal charges. It is the policy of the City of New York (“City”) and its Taxi and

Limousine Commission (“TLC” or “Commission”), defendants-appellees here, immediately to

suspend a taxi driver’s license without a hearing if the charged offense is a felony or one of an

enumerated list of misdemeanors, and to do so regardless of whether the offense occurred while

the driver was on duty, in his cab, or somewhere else entirely. Once suspended, a driver is

entitled to a post-deprivation hearing, but in practice taxi licenses are never reinstated unless and

until the driver secures favorable termination of the charges against him.

The plaintiffs argue that drivers are entitled to hearings before their licenses are

suspended, and, in the alternative, that the post-suspension hearings currently afforded are

inadequate to comport with due process. We agree with the district court that no pre-suspension

hearing is required, and affirm its judgment to the extent that it granted summary judgment to the

defendants on that claim. However, we are unable to determine whether the post-deprivation

hearing affords due process because we find that the record on summary judgment does not

support the district court’s finding (and the City’s claim) that the hearing enables a driver to

make a showing that “the charges, even if true, ‘do not demonstrate that the licensee’s continued

licensure would pose a threat to public health or safety.’” Nnebe v. Daus, 665 F.Supp.2d 311,

318 (S.D.N.Y. 2009) (decision below) (quoting Decl. of Joseph M. Eckstein at ¶ 6).

Accordingly, we vacate and remand for further proceedings, including more detailed fact-

finding regarding the scope and process of the post-suspension hearings. We also reverse the

district court’s ruling that the NYTWA lacks standing.

3
 BACKGROUND

I. The TLC’s summary suspension process

The TLC is established by the New York City Charter to regulate taxicabs in New York

City. Among the powers granted to the TLC by the Charter is the power to issue, revoke and

suspend drivers’ taxi licenses. Charter Ch. 65, § 2303(b)(5). The New York City

Administrative Code authorizes the TLC to promulgate rules and regulations to enforce this

power. See N.Y.C. Admin. Code § 19-503. The Code provides that the TLC may

for good cause shown relating to a direct and substantial threat to the public health or safety
and prior to giving notice and an opportunity for a hearing, suspend a taxicab or for-hire
vehicle license issued pursuant to this chapter and, after notice and an opportunity for a
hearing, suspend or revoke such license.

N.Y.C. Admin. Code § 19-512.1(a).

TLC Rule 8-16 implements one such summary suspension procedure. The version of the

rule in effect until December 2006, under which the named plaintiffs in this case were charged,

provided that “[i]f the Chairperson finds that emergency action is required to insure public health

or safety, he/she may order the summary suspension of a license or licensee, pending revocation

proceedings.” In December 2006 — after the hearings that gave rise to the named plaintiffs’

claims — section (c) was added to TLC Rule 8-16, stating that “the Chairperson may summarily

suspend a license . . . based upon an arrest on criminal charges that the Chairperson determines is

relevant to the licensee’s qualifications for continued licensure,” and providing that, at the post-

deprivation hearing, “the issue shall be whether the charges underlying the licensee’s arrest, if

true, demonstrate that the licensee’s continued licensure during the pendency of the criminal

charges would pose a threat to the health or safety of the public.” TLC Rule 8-16(c).

4
 Once a driver’s taxi license is summarily suspended under Rule 8-16, the TLC must

notify the driver of the suspension within five calendar days, and the licensee may request a

hearing before the TLC or an administrative law judge (“ALJ”) within 10 days of receipt of the

notice of suspension. See N.Y.C. Admin. Code § 19-512.1(a); TLC Rule 8-16(c). The TLC

must provide this post-deprivation hearing to the driver within 10 calendar days of receiving the

request. See TLC Rule 8-16(c). The ALJ must issue a written recommendation that the

Chairperson may accept, modify or reject, and the Chairperson’s decision represents “the final

determination with respect to the summary suspension.” TLC Rule 8-16(e). The defendants

acknowledge that the policy expressly stated in TLC Rule 8-16(c) essentially describes the

process that was followed under the old version of the rule, and the plaintiffs raise the same

objections to both the old and the current rule.

The New York State Division of Criminal Justice Services (“DCJS”) keeps on file the

fingerprints of all licensed taxi drivers. If a driver is arrested, the DCJS notifies the TLC of the

driver’s identifying information, the date and location of the arrest, the arrest charges, and the

section of the penal code under which the licensee was arrested. The DCJS does not, however,

provide the TLC with any of the factual bases or allegations underlying the arrest. The TLC

maintains a list of offenses, including all felonies and numerous misdemeanors, for which it will

summarily suspend a driver upon arrest. The current list of offenses (as amended on November

2, 2006), as well as the pre-November 2006 list, are appended to this opinion for the

convenience of the reader. See Appendix at 1 (Current List), 2-3 (Pre-November 2006 List).

The pre-November 2006 list included some misdemeanors, such as third-degree assault, which

may have involved violence, but many others, such as false advertising, giving unlawful

gratuities, and unlawful assembly, which did not. The TLC states that offenses are added to the
5
list if, presuming the truth of the charges, “continued licensure during the pendency of the

criminal charges would pose a risk to public health or safety.” When the TLC receives an arrest

notification from DCJS, a TLC lawyer decides whether to suspend the driver based solely on

whether the offense is included on the aforementioned list. The lawyer does not consider the

underlying factual allegations, nor the licensee’s driving record or prior criminal record.

At the post-deprivation hearing, the ALJ considers the same materials considered by the

TLC lawyer. According to an affidavit supplied by Joseph M. Eckstein, the Deputy

Commissioner for Adjudications for the TLC, “the likelihood of a licensee’s innocence or guilt

as to the subject charges is not at issue,” and “[t]he hearing provides a licensee with the

opportunity to, inter alia, deny that s/he was arrested; deny that s/he was charged with the

particular offense(s) in the notice of summary suspension; or to argue or establish that the

pending charge(s), even if true, does not demonstrate that the licensee’s continued licensure

would pose a threat to public health or safety.” Eckstein Decl. ¶ 6. It is undisputed that the

ALJs nearly always recommend continuing the suspensions during the pendency of criminal

proceedings and that the Chairperson usually accepts the ALJ’s recommendation.

In deposition testimony, TLC Chairman Matthew Daus was unable to recall how or when

the informal, pre-2006 policy of summarily suspending drivers upon arrest was first adopted.

The policy did appear in a manual given to ALJs, but the deputy chief ALJ, at his deposition,

was unable to state when this section of the manual had been written, or by whom. TLC lawyer

Marc Hardekopf, who represented the TLC at the suspension hearings in these cases, testified at

his deposition that the percentage of suspended drivers who are ultimately convicted is “very

low,” and in no event more than one quarter.

6
 The plaintiffs also adduced evidence that, as explained infra, they argue show that ALJs

lack adequate decisional independence. On three occasions within a short span of time in

February and March 2006, ALJ Eric Gottlieb recommended that three drivers’ licenses be

reinstated because, in each case, he found an “overwhelming likelihood” that the drivers’ cases

would end in a “non-criminal disposition.” ALJ Gottlieb’s action prompted the following

response in an e-mail from the deputy chief ALJ a few weeks later:

Eric,
[Name redacted] was arrested and issued a DAT2 for leaving the scene of an accident
that involved his taxi. Your [r]ecommendation that the suspension be lifted because
he was issued a “DAT” and/or because you speculate that he will receive a “non-
criminal disposition” was improper. Re-read the ALJ manual regarding summary
suspension proceedings and the standard we are required to use. In the future if you
believe a summary suspension should be lifted please call me and discuss the matter
with me before mailing it out. Please call me at [number redacted]. I want to discuss
this matter with you.
Thanks
Tom

(emphasis in original)

ALJ Gottlieb wrote the following e-mail in response:

Tom,
Just wanted to apologize once again for the mishap regarding the Summary
Suspension cases. I value greatly the trust you have shown me in the past
and I want to assure you that this will not happen again. I accept full
responsibility for not handling this properly. If there is anything I can do to
mitigate the fallout for you, please let me know.
Thanks,
Eric

ALJ Gottlieb testified at his deposition that he was worried that his improper recommendations

2
Desk appearance ticket: “[A] written notice issued and subscribed by a police officer
. . . directing a designated person to appear in a designated local criminal court at a designated
future time in connection with his alleged commission of a designated offense.” N.Y. C.P.L.
§ 150.10.
7
would lead to his duties being modified or his transfer from Manhattan back to the TLC’s Long

Island City office, which he called “a very depressing environment.” Tr. of Gottlieb Dep. at 89.

II. District court proceedings

Plaintiffs Jonathan Nnebe, Alexander Karmansky, Eduardo Avenaut, Khairul Amin, and

the NYTWA brought this putative class action against the City of New York, the TLC, Daus,

and other TLC officials in June 2006. Each of the four named plaintiffs is a taxi driver whose

license was suspended in 2005 or 2006 after an arrest. Nnebe was charged with third-degree

assault with intent to cause physical injury, Karmansky with first-degree criminal contempt and

second-degree criminal trespass, Avenaut with third-degree assault with intent to cause physical

injury, and Amin with second-degree menacing with a weapon and third-degree assault with

intent to cause physical injury. Each of the four was summarily suspended upon arrest, and each

received a hearing in front of ALJ Frank Fioramonti, except for Avenaut, who did not request a

post-deprivation hearing. For the three who requested hearings, the outcome was in each case

the same — Fioramonti recommended the continued suspension of the driver’s license pending

resolution of criminal proceedings, and Daus accepted the recommendation. All four drivers

eventually secured the reinstatement of their licenses when the relevant district attorneys’ offices

dropped the charges or the charges were otherwise dismissed. The total period of suspension for

each driver proved to be approximately three to four months.

In their putative class-action complaint, the plaintiffs alleged that: (1) the absence of a

pre-deprivation hearing denied them procedural due process; (2) assuming no pre-deprivation

hearing is required, the post-deprivation hearing provided is insufficient to provide due process

because its scope extends no further than determining whether the driver was arrested for the

crime charged; (3) the ALJs lack sufficient independence to provide unbiased adjudication; and
8
(4) the TLC violated the City Charter by summarily suspending the lead plaintiffs before the

current version of TLC Rule 8-16 was adopted. The plaintiffs moved for class certification, and

both sides moved for summary judgment.

In September 2009, the district court issued an opinion and order (1) dismissing the

NYTWA as a plaintiff for lack of standing; (2) dismissing the TLC as a defendant because it is

not a suable entity; (3) granting the defendants’ motion for summary judgment; (4) denying the

plaintiffs’ motion for summary judgment; (5) declining to exercise supplemental jurisdiction

over the plaintiffs’ state law claims; and (6) denying as moot the plaintiffs’ motion for class

certification. See Nnebe v. Daus, 665 F.Supp.2d 311, 334 (S.D.N.Y. 2009).3 The district court

dismissed the TLC as a defendant on the grounds that an agency of the City of New York is not a

suable entity in its own right. Id. at 320. It concluded that the NYTWA could not sue on behalf

of its members because § 1983 creates a right of action “personal” to the injured party, id. (citing

League of Women Voters of Nassau Cnty. v. Nassau Cnty. Bd. of Supervisors, 737 F.2d 155, 160

(2d Cir. 1984)), and that the NYTWA lacked organizational standing because it had not alleged

more than an injury to its “abstract social interests,” id. at 320-21 (quoting Havens Realty Corp.

v. Coleman, 455 U.S. 363, 379 (1982)).

Turning to the merits of the plaintiffs’ procedural due process claims, the district court

3
The district court construed some of the plaintiffs’ claims pertaining to state law as
substantive due process claims. See Nnebe, 665 F.Supp. at 330-32. On appeal, the plaintiffs
state that they did not intend to bring any substantive due process claims, expressly disavow any
such claims, and make clear that they wish to bring state-law claims directly (presumably under
the district court’s supplemental jurisdiction). Accordingly, we will not discuss the district
court’s substantive due process analysis and will not review any of the plaintiffs’ claims in terms
of substantive due process.
9
applied the familiar three-factor test of Mathews v. Eldridge, 424 U.S. 319, 332 (1976).4 See

Nnebe, 665 F.Supp.2d at 322-23. The district court found that no pre-deprivation hearing was

required and that the post-deprivation hearing provided was sufficient. Id. at 323-30. Evaluating

the three Mathews factors, the court found that the private interest was “undoubtedly

significant,” but that the City’s interest in “ensuring the safety of the taxi-riding public and

maintaining the public’s trust in the safety of taxis” counseled strongly against requiring a pre-

deprivation hearing. Id. at 324-25. The court also found that the third factor, the risk of

erroneous deprivation and the relative value of added process, weighed in favor of the

defendants because “the very existence of a criminal proceeding is a reason to suspend a driver,

as pending criminal allegations – even if later dismissed – implicate the TLC’s interest as

licensor.” Id. at 325. Balancing these factors, the district court concluded that no pre-

deprivation hearing was necessary. Id. at 325-26.

The court turned next to the plaintiffs’ contention that “even if the lack of a pre-

deprivation hearing were constitutional, the post-deprivation hearing is not because its scope

extends no further than determining whether the plaintiff was actually arrested.” Id. at 326.

“Necessarily implicit in this argument,” the district court wrote,

is the contention that the government must prove more than the fact of a licensee’s
arrest before suspending him. As discussed below, however, due process does not
require such proof. Moreover, it would be difficult, if not impossible, for the TLC
to prove that a driver had actually engaged in the charged criminal conduct without
interfering with the criminal investigation.

4
This test requires a court to examine the following factors: “[f]irst, the private interest
that will be affected by the official action; second, the risk of an erroneous deprivation of such
interest through the procedures used, and the probable value, if any, of additional or substitute
procedural safeguards; and finally, the Government’s interest, including the function involved
and the fiscal and administrative burdens that the additional or substitute requirement would
entail.” Mathews, 424 U.S. at 335.
10
 As explained below, federal courts have held both (1) that an agency is entitled to
suspend an employee on the basis of pending criminal proceedings against him, and
(2) that because an agency may do so, a hearing that does no more than confirm the
existence of such criminal proceedings does not violate the suspended employee’s
rights.

Id.

The district court relied upon three out-of-circuit cases to make this point: Cooke v. Soc.

Sec. Admin., 125 Fed. Appx. 274 (Fed. Cir. 2004) (unpublished disposition); James A. Merritt &

Sons v. Marsh, 791 F.2d 328 (4th Cir. 1986); and Brown v. Dept. of Justice, 715 F.2d 662 (D.C.

Cir. 1983). Nnebe, 665 F.Supp.2d at 326-28. It found that each of these cases weighed in favor

of a holding that “the existence of a criminal proceeding may justify governmental interference

with a protected property right.” Id. at 327. It also found that “[t]he conclusion that [p]laintiffs

are not entitled to a full adversarial hearing before the TLC is bolstered by the third factor in the

Mathews analysis: the value of additional procedures and the burden that such additional

procedures would entail.” Id. at 328. The court explained that “requiring the TLC to prove that

each driver engaged in the charged conduct would unacceptably interfere with the parallel

criminal proceeding” and expressed doubt that it could compel prosecutorial cooperation in such

a hearing. Id. In addition, the district court found that a mini-trial on the charged conduct would

impose too great a burden on the City’s resources. Id.

The district court also addressed this Court’s holding in Krimstock v. Kelly, 306 F.3d 40

(2d Cir. 2002) (Sotomayor, J.), where we stated that a post-seizure, pre-forfeiture hearing was

required when the City of New York seized the vehicles of individuals charged with drunken

driving. See Nnebe, 665 F.Supp.2d at 328-30. The district court found three significant

distinctions between Krimstock and this case: (1) the government interest in Krimstock was

primarily its financial interest in auctioning off the more expensive of the cars it seized, whereas
11
the government interest in this case is the public confidence and trust in the TLC’s judgment

with respect to the licensing of drivers, id. at 329; (2) the risk of erroneous deprivation was

greater in Krimstock because of the possibility that vehicles merely driven by arrested drivers but

whose owners were innocent would be held until the end of civil forfeiture proceedings, id. at

329-30; and (3) the alternative procedure sought in Krimstock was more feasible because, unlike

this case, the NYPD was a party to both the criminal proceedings and the civil forfeiture

proceedings, and “there was thus little difficulty in ordering the police to make an evidentiary

showing to maintain the seizure of the car,” id. at 330.

Separately, the district court rejected the plaintiffs’ contention that their procedural due

process rights were violated because the ALJs were biased or insufficiently independent, noting

that the plaintiffs could have brought an Article 78 proceeding in New York State Supreme

Court, which would have provided an adequate post-deprivation remedy to the extent that bias

was a potential cause of deprivation. Id. (citing Locurto v. Safir, 264 F.3d 154, 174 (2d Cir.

2001)). Finally, to the extent that the plaintiffs sought to raise state-law claims directly, the

district court dismissed them because it had dismissed all federal claims. Id. at 333-34.5

The plaintiffs timely appealed.

DISCUSSION

I. Standard of review

We review a district court’s grant of summary judgment de novo, and we apply the same

standard as the district court. See In re Bennett Funding Grp., Inc., 336 F.3d 94, 99 (2d Cir.

5
The district court also rejected certain other constitutional claims by the plaintiffs,
including claims of insufficient notice of suspension and violation of their Fifth Amendment
right against self-incrimination. Nnebe, 665 F.Supp.2d at 332-33. The plaintiffs do not pursue
these claims on appeal, and we do not discuss them further.
12
2003). To uphold the grant of summary judgment, we “must determine that there is no genuine

issue of material fact, taking the pleadings, depositions, answers to interrogatories and

admissions on file, together with any other firsthand information including but not limited to

affidavits.” Id. We review questions of standing de novo. See Carver v. City of New York, 621

F.3d 221, 225 (2d Cir. 2010).

II. Standing of the NYTWA

Before we turn to the merits, we review the district court’s determination that NYTWA

lacks standing to bring this suit. Standing is “the threshold question in every federal case,

determining the power of the court to entertain the suit.” Denney v. Deutsche Bank AG, 443 F.3d

253, 263 (2d Cir. 2006) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). To establish

Article III standing, “a plaintiff must have suffered an ‘injury in fact’ that is ‘distinct and

palpable’; the injury must be fairly traceable to the challenged action; and the injury must be

likely redressable by a favorable decision.” Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S.

555, 560-61 (1992)).

It is the law of this Circuit that an organization does not have standing to assert the rights

of its members in a case brought under 42 U.S.C. § 1983, as we have “interpret[ed] the rights

[§ 1983] secures to be personal to those purportedly injured.” League of Women Voters of

Nassau Cnty. v. Nassau Cnty. Bd. of Supervisors, 737 F.2d 155, 160 (2d Cir. 1984) (citing

Aguayo v. Richardson, 473 F.2d 1090 (2d Cir. 1974) (“Neither [the] language nor the history [of

§ 1983] suggests that an organization may sue under the Civil Rights Act for the violations of

rights of members”)).6 We are thus bound to agree with the district court that NYTWA cannot

6
The plaintiffs argue that this rule is “contradicted by a raft of Supreme Court precedent”
and “was effectively rejected by the Supreme Court in Warth v. Seldin.” Appellants’ Br. at 54.
13
bring this action as the representative of its members.

However, nothing prevents an organization from bringing a § 1983 suit on its own behalf

so long as it can independently satisfy the requirements of Article III standing as enumerated in

Lujan. See Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638, 649 (2d Cir. 1998) (citing

Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 n.19 (1982)). The district court concluded

that NYTWA lacked standing in its own right because it “put forward insufficient evidence to

allow a reasonable fact finder to conclude that it has had to divert greater resources to more

individualized services and away from . . . reform efforts.” Nnebe, 665 F.Supp.2d at 321.

Specifically, the court held that the evidence demonstrated that the association infrequently

“counsels drivers whose licenses have been suspended pursuant to the challenged policy.” Id.

Furthermore, the district court stated that even if the association had demonstrated that

counseling occurred with some frequency, it “ha[d] not identified the priorities on which it was

unable to focus as a result of the summary suspension procedures.” Id.

We disagree with the district court’s analysis. The evidence supplied by NYTWA, while

“scant,” is not abstract. Nnebe, 665 F.Supp.2d at 321. The deposition testimony of NYTWA’s

executive director demonstrates that the Alliance has expended resources to assist its members

who face summary suspension by providing initial counseling, explaining the suspension rules to

drivers, and assisting the drivers in obtaining attorneys. NYTWA also makes an effort “to really

explain the urgency [of the situation] to the criminal defense lawyer” so that the lawyer

However, we reaffirmed the Aguayo rule in League of Women Voters nine years after Warth and
have not since reconsidered it. Accordingly, we are bound by the implicit determination of prior
panels that the rule survives Warth “until such time as [our prior decisions] are overruled either
by an en banc panel of our Court or by the Supreme Court.” United States v. Wilkerson, 361
F.3d 717, 732 (2d Cir. 2004).
14
understands that the driver will be unable to work until the charges are resolved. Tr. of Desai

Dep. at 11.

We have recognized that only a “perceptible impairment” of an organization’s activities

is necessary for there to be an “injury in fact.” Ragin v. Harry Macklowe Real Estate Co., 6 F.3d

898, 905 (2d Cir. 1993) (citing Havens Realty Corp., 455 U.S. at 379). Even if only a few

suspended drivers are counseled by NYTWA in a year, there is some perceptible opportunity

cost expended by the Alliance, because the expenditure of resources that could be spent on other

activities “constitutes far more than simply a setback to [NYTWA’s] abstract social interests.”

Havens Realty Corp., 455 U.S. at 379. Furthermore, the Supreme Court has stated that so long

as the economic effect on an organization is real, the organization does not lose standing simply

because the proximate cause of that economic injury is “the organization’s noneconomic interest

in encouraging [a particular policy preference].” Id. at 379 n.20.

We recognize that some circuits have read Havens Realty differently than we read it in

Ragin and have emphasized that “litigation expenses alone do not constitute damage sufficient to

support standing.” Fair Hous. Council of Suburban Phila. v. Montgomery Newspapers, 141 F.3d

71, 78-79 (3d Cir. 1998) (declining to follow our decision in Ragin because it goes too far in

allowing standing); see also Spann v. Colonial Vill., Inc., 899 F.2d 24, 27 (D.C. Cir. 1990) (to

establish standing, an organization must show “concrete and demonstrable injury to [its]

activities”) (R.B. Ginsburg, J.). Nevertheless, Ragin remains good law in this Circuit.

Moreover, even assuming arguendo that those circuits positing a narrower view of Havens

Realty are correct, their decisions (which, like Ragin, arose in the context of the Fair Housing

Act) were largely concerned with the capacity of organizations to “manufacture” standing by

bringing a suit. See Fair Hous. Council, 141 F.3d at 79; Spann, 899 F.2d at 27.
15
 For example, in Fair Housing Council, the plaintiff organization claimed “that it suffered

palpable injury when it was forced to divert resources to investigation.” 141 F.3d at 78. But

“[t]he ‘investigation’ to which the [organization] refer[red] consisted of having its staff members

review classified advertisements placed in [the defendant newspapers] on an ongoing basis for

evidence of discrimination.” Id. The Third Circuit found that the organization lacked standing

to bring a Fair Housing Act against specific discriminatory ads because its alleged

“investigation” “was not motivated by the advertisements in this suit or by a complaint about

advertising” and because “[t]he record . . . does not establish that the [organization] altered its

operations in any way as a result of the allegedly discriminatory advertisements or diverted any

of its resources to a bona fide investigation.” Id.

This case, by contrast, is not an instance of “manufactured” litigation. The Alliance, far

from trolling for grounds to litigate, has allocated resources to assist drivers only when another

party — the City — has initiated proceedings against one of its members. And if NYTWA’s suit

proves successful, it will have secured a permanent benefit for itself, avoiding the need for

further lawsuits on the claims presented here — unlike the organization in Fair Housing

Council, which presumably could have continued to seek out new, discriminatory ads and bring

additional suits as the representative of its members. The Alliance brings this suit so that when it

expends resources to assist drivers who face suspension, it can expend those resources on

hearings that represent bona fide process. That is an interest specific to NYTWA, independent

of the interest of individual drivers in their licenses. NYTWA has thus shown that it has suffered

“an ‘injury in fact’ that is ‘distinct and palpable’ . . .[,] fairly traceable to the challenged action[,]

and . . . likely redressable by a favorable decision.” Denney, 443 F.3d at 263. Accordingly,

16
NYTWA has standing to bring this action on its own behalf.7

III. Procedural due process

The Fourteenth Amendment requires that “No state shall . . . deprive any person of . . .

property, without due process of law.” 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. See Ciambriello v.

Cnty. of Nassau, 292 F.3d 307, 313 (2d Cir. 2002). In this case, as the district court recognized,

the answer to the first question is undisputed: “a taxi driver has a protected property interest in

his license.” Nnebe, 665 F.Supp.2d at 323 (citing Bell v. Burson, 402 U.S. 535, 539 (1971)).

We are called upon only to decide what process is due.

a. Pre-suspension hearing

Due process does not, in all cases, require a hearing before the state interferes with a

protected interest, so long as “some form of hearing is [provided] before an individual is finally

deprived of [the] property interest.” Brody v. Vill. of Port Chester, 434 F.3d 121, 134 (2d Cir.

2005) (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). In other words, “due process is

flexible and calls for such procedural protections as the particular situation demands.”

Id. (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). “Mathews is the test for both when

a hearing is required (i.e., pre- or post-deprivation) and what kind of procedure is due . . . .” Id.

at 135. The “general rule” is that a pre-deprivation hearing is required, id., but the Mathews

7
The district court correctly dismissed the TLC as a party. It is well settled in this Court
that agencies of New York City are not suable entities in § 1983 actions, and the TLC thus
cannot be named as a defendant. See Jenkins v. City of New York, 478 F.3d 76, 93 n.19 (2d Cir.
2007). This is of no practical consequence, however, since the TLC must abide by any relief
ordered against the City of which it is a non-severable part, and the plaintiffs concede this.
17
inquiry “‘provides guidance’ in determining whether to ‘tolerate’ an exception to the rule

requiring pre-deprivation notice and hearing,” Krimstock v. Kelly, 306 F.3d 40, 60 (2d Cir. 2002)

(Sotomayor, J.) (quoting United States v. James Daniel Good Real Prop., 510 U.S. 43, 53

(1993)).

Weighing the three factors of the Mathews test — the private interest, the risk of

erroneous deprivation, and the government’s interest, see supra n.4 — we agree with the district

court that the City is not required to grant a driver a hearing before suspending his license

because of an arrest. We understand that the private interest at stake here is enormous — most

taxi drivers “rely on the job as their primary source of income” and “often earn the sole income

for large families in a city where the cost of living significantly exceeds the national average.”

Amicus Br. at 4. The Supreme Court has repeatedly “recognized the severity of depriving

someone of the means of his livelihood.” Gilbert v. Homar, 520 U.S. 924, 932 (1997) (citing

Fed. Deposit Ins. Corp. v. Mallen, 486 U.S. 230, 243 (1988); Cleveland Bd. of Educ. v.

Loudermill, 470 U.S. 532, 543 (1985)). In Gilbert, the respondent, a police officer, was

suspended without pay and without notice or a hearing after he was arrested on felony drug

charges. Id. at 926-27. The Supreme Court, while recognizing the severity of the deprivation,

also noted that the “the [s]tate has a significant interest in suspending, when felony charges are

filed against them, employees who occupy positions of great public trust and high public

visibility, such as police officers.” Id. at 932. We agree with the district court that “[a]mong the

most critical functions performed by the TLC are ensuring the safety of the taxi-riding public

and maintaining the public’s trust in the safety of taxis.” Nnebe, 665 F.Supp.2d at 324. The

plaintiffs and their amicus argue that “incidents in which a cabdriver harms a passenger are

virtually unheard of,” Amicus Br. at 7, and that the TLC has not “proffer[ed] evidence of a single
18
actual incident involving injury to a passenger,” Appellants’ Br. at 31. But even if this is true,

we think that in any given case, an arrest for a felony or serious misdemeanor creates a strong

government interest in ensuring that the public is protected in the short term, prior to any

hearing.

With the first Mathews factor (private interest) strongly favoring the plaintiffs and the

third factor (government interest) strongly favoring the City, we turn to the second factor — “the

risk of an erroneous deprivation of such interest through the procedures used, and the probable

value, if any, of additional or substitute procedural safeguards.” 424 U.S. at 335. In the

predeprivation context, this factor tips the scales decisively in the favor of the City, because the

risk of erroneous deprivation is mitigated by the availability of a prompt post-deprivation

hearing. Put another way, the “risk of an erroneous deprivation” at stake when deciding whether

a pre-suspension or post-suspension hearing is required is only the risk that a driver will lose the

income he could have earned between the date of arrest and the date of the post-suspension

hearing. Although we understand that even that loss can be deeply problematic for a taxi driver,

we conclude that in the immediate aftermath of an arrest, when the TLC has minimal information

at its disposal and the very fact of an arrest is cause for concern, the government’s interest in

protecting the public is greater than the driver’s interest in an immediate hearing. Accordingly,

no pre-suspension hearing is required.

19
 b. Post-suspension hearing

Normally, in a procedural due process case, it is the obligation of the court of appeals to

set forth the minimum protections that must be afforded at a post-deprivation hearing, see, e.g.,

Krimstock, 306 F.3d at 69 (“Although we decline to dictate a specific form for the [post-

deprivation] hearing, we hold that, at a minimum, the hearing must enable claimants to test the

probable validity of continued deprivation of their vehicles, including the City’s probable cause

for the initial warrantless seizure.”), and if the existing hearing is found deficient the district

court then has considerable latitude to frame a decree with input from the parties and within the

guidelines set by the court of appeals, see id. In this case, however, we cannot yet make these

determinations because the evidence in the record is insufficient to establish that the post-

suspension hearing the City describes to us is in fact the hearing that it offers. We therefore

reserve judgment with respect to whether the summary suspension hearings satisfy the minimum

requirements of due process. To the extent that the district court granted the defendants

summary judgment on the plaintiffs’ claim that the post-suspension hearing is inadequate, we

conclude for the reasons that follow that its judgment must be vacated and the case remanded for

the taking of further evidence.

The City, and, to a lesser extent, the plaintiffs, have tended to frame the question on

appeal to be whether the TLC must afford drivers a “mini-trial” on the criminal charges against

them, and at that hearing allow drivers an opportunity to show they are likely to secure favorable

termination of their criminal cases. That is not what troubles us. We agree with the district court

that the City cannot be required to hold a hearing that functions as a preview of the criminal

case. More to the point, we think that district attorneys and other prosecuting authorities cannot

be compelled to participate in a hearing that would test the merits of their case in a civil
20
deprivation proceeding brought by a separate government entity and that is at most tangential to

the criminal case. Decisions of other courts, including New York’s highest court, strongly

suggest that important state policy interests weigh against requiring such participation. See, e.g.,

People v. Chipp, 75 N.Y.2d 327, 337-38 (1990) (defendant cannot invoke compulsory process at

a pretrial hearing testing the suggestiveness of a lineup, in part because of the risk that the

defendant could use such hearings to leverage favorable plea bargains or compromise ongoing

investigations); Brown v. Dep’t of Justice, 715 F.2d 662, 667-68 (D.C. Cir. 1983) (administrative

hearings that precede trial on the criminal charges would “constitute improper interference with

the criminal proceedings if they churn over the same evidentiary material”) (quoting Peden v.

United States, 512 F.2d 1099, 1103 (Ct. Cl. 1975)); see also Brown v. City of New York, 60

N.Y.2d 897, 898 (1983) (the City of New York and the district attorneys’ offices within it are

separate entities). Rather, what troubles us is that we do not understand what it is a driver may

in fact attempt to show at the hearing the City does offer.

The City asserts that drivers may attempt to present evidence that

they were not actually arrested; the offenses listed in the DCJS notice were incorrect;
the charges had been reduced or dismissed; or the regulatory standard was not met
— the charges, even if true, did not demonstrate that continued licensure would pose
a threat to public safety.

Appellees’ Br. at 33 (emphasis added). That standard, if it actually is the standard, may be well

within the range of adequate due process protections. The problem is that the italicized language

appears to be an oft-quoted nullity that in no way resembles a part of the standard ALJs must

apply. The record basis for calling it the standard is scant — testimony and affidavits from City

witnesses repeatedly recite, in conclusory terms, that a driver may attempt to make the italicized

showing. And while there is little evidence that an ALJ is allowed actually to apply this

21
standard, there is considerable evidence supporting the appellants’ view that they may not. A

former general counsel for the TLC testified that he has never heard of an instance of an ALJ

discontinuing a summary suspension or making a recommendation to that effect. Several

attorneys whose practices include representing taxi drivers corroborate this, and one states that

he now declines to represent drivers at summary suspension hearings because he feels it is

improper to accept money for a proceeding where “the result is not in doubt.” Spevack Aff. at

¶5. Conversely, the City has never pointed to any evidence showing how a driver could prevail

at a suspension hearing after an arrest for one of the offenses listed on the summary suspension

chart. We are not convinced, therefore, that the City binds itself to the standard it says is in

place.

Lest there be any misunderstanding about what has been argued to us, we emphasize that

it is not the City’s position that arrest for one of the offenses listed on the TLC’s summary

suspension chart is per se evidence that “the licensee’s continued licensure would pose a threat

to public health or safety.” We pressed the City about this question in particular at oral

argument, asking whether the only showings a driver could attempt to make at the post-

suspension hearing were: (1) that he was not charged with one of the crimes on the summary

suspension list or (2) that he was not the person named in the arrest report. See Tr. of Oral Arg.

at 14-15. The City replied that “they’re entitled to bring in evidence . . . from their criminal

cases to show, well, even in these cases if the facts are true, I don’t pose a risk to public safety.”

Id. In response to that answer, we asked how a driver could make such a showing if there is a

presumption that a arrest for a given offense indicates a risk to public safety. Id. at 15. The City

reiterated that a driver could bring in his criminal complaint and argue that “these are the facts

that are alleged in the criminal complaint . . . I wouldn’t pose a risk to public safety.” Id. The
22
City’s brief confirms its position that proof regarding the charged offense and proof regarding

the regulatory standard are separate issues at the hearing.

The City, then, is not standing on an assumption that automatic continuance of a

suspension — after a hearing at which only identity or offense can be disputed — is consistent

with due process. The City’s defense of the process it affords is premised on a contention that it

provides drivers with a real opportunity to show that they do not pose a risk to public safety,

arrests notwithstanding. The record on summary judgment, however, does not support the City’s

view of the facts. To the contrary, the record strongly suggests that, whether de facto or de jure,

an ALJ is strictly prevented from considering anything other than the identity of the driver and

the offense for which he was charged upon arrest.

Until we have a clearer picture of the scope of the summary suspension hearings, it is

unnecessary and inappropriate for us to decide whether a hearing that does nothing more than

confirm the driver’s identity and the existence of a pending criminal proceeding against him

would in fact be adequate process to allow the City to suspend a driver’s taxi license until the

criminal charges are resolved. We expressly refrain from deciding that question today. We find

the question at least open to debate among jurists of reason, however, and we note that the

district court, in stating that such a hearing was adequate, relied on decisions that were out-of-

circuit and at least arguably in some tension with Krimstock. In two of the cases, Brown and

Cooke, the individuals were employees of the public agencies that suspended them, and those

employees were charged with misconduct directly related to their jobs of public trust. See

Brown, 715 F.2d at 664 (Border Patrol agents suspended after indictment for conspiracy to

defraud the United States and willfully violating the civil rights of suspected illegal aliens);

Cooke, 125 Fed. Appx. at 275 (Claims Representative for Social Security Administration
23
suspended after United States Attorney filed criminal complaint accusing him of violations of

Computer Fraud and Abuse Act by accessing confidential citizen records at work). There are at

least three crucial distinctions here. First, taxi drivers are not City employees — they are private

earners who hold a public license. See Hecht v. Monaghan, 307 N.Y. 461, 468-69 (1954) (“[A

cab driver] is not the employee of any public body nor is he the appointee of any municipal

officer. Rather, he is a private citizen whose livelihood is derived from the fares and gratuities

he receives from the persons whom he serves as a licensed hack8 driver. He is not under the

direct supervision of a public official in the performance of his daily routine, but is merely

regulated with regard to certain aspects of his business. The rules applicable to the disciplining,

suspension and discharge of civil employees should not be extended to include the suspension or

revocation of licenses of those whose salaries are not paid from public funds.”). Second, the

misconduct that results in summary suspension need not be — and indeed the TLC is entirely

agnostic on this point — related to the cab driver’s work. And third, the TLC’s summary

suspension policy is triggered even by a warrantless arrest, whereas in Brown and Cooke there

had been an independent probable cause determination.9 In the third case, Merritt, a military

contractor was suspended from eligibility for government contracts after it had been indicted for

attempting to defraud the United States Navy. See 791 F.2d at 329. Although the contractor was

8
“Hack” is slang for taxi, and a taxi driver license may also be referred to as a “hack
license.” See Melissa Plaut, Hack: How I Stopped Worrying About What to Do with My Life and
Started Driving a Yellow Cab (Villard ed. 2008).
9
The district court stated that “Cooke is particularly relevant precedent in light of the fact
that the suspension in that case followed only a criminal complaint, and not the issuance of an
indictment.” But the criminal complaint in Cooke was filed by the United States Attorney and
would have resulted in the issuance of an arrest warrant or summons only after an independent
determination of probable cause by a magistrate judge. See Fed. R. Crim. P. 3,4.
24
not an employee, it nevertheless derived its income directly from the government, and, as in

Brown and Cooke, prior to the contractor being suspended there had been (1) an independent

determination of probable cause (2) for job-related crimes.

Balancing the Mathews factors in the post-deprivation context against the relative value

of additional process, see 424 U.S. at 335, could lead to the conclusion that the plaintiffs’

interests outweigh the burden on the City of providing additional procedural protections beyond

mere confirmation of identity and charge. See, e.g., Krimstock, 306 F.3d at 67 (“Balancing the

Mathews factors, we find that the Fourteenth Amendment guarantee that deprivations of property

be accomplished only with due process of law requires that plaintiffs be afforded a prompt post-

seizure, pre-judgment hearing before a neutral judicial or administrative officer to determine

whether the City is likely to succeed on the merits of the forfeiture action . . . .”). In determining

that additional procedures would be too burdensome on the City, the district court appears to

have assumed that the only alternative to a hearing on identity and charge would be a hearing at

which the TLC would be required to prove that each driver engaged in the charged conduct. It is

entirely possible that a meaningful hearing can be devised at minimal cost to the City that does

not constitute a mini-trial on the criminal charges. Indeed, even a hearing at which the ALJ is

permitted to examine the factual allegations underlying the arrest, without making a

determination of likely guilt or innocence, would provide to drivers considerably more

opportunity to be heard than the current system, as the ALJ might in some cases determine that

the allegations, although arguably consistent with the criminal statute, do not provide any basis

for finding the driver to be a threat to public safety. And since the latter sounds very much like

the hearing that the City has told us it already offers, we think that the logical next step is for the

district court to determine what really occurs at the hearing and what the City means by what it
25
says.

On remand, it will be necessary for the district court to conduct additional fact-finding, in

the manner it deems appropriate, to determine whether the post-suspension hearing the City

affords does indeed provide an opportunity for a taxi driver to assert that, even if the criminal

charges are true, continued licensure does not pose any safety concerns. The district court must

then determine whether the hearing the City actually provides — whatever it may consist of —

comports with due process.

IV. State-law claims

Because we are vacating the grant of summary judgment with respect to one of the

plaintiffs’ federal claims, we also vacate the district court’s dismissal of their state-law claims.

Once the district court has determined how it will treat the federal claim, it may then examine

how it will treat the state claims. We express no view with respect to those claims or their

disposition.

CONCLUSION

We affirm the judgment of the district court to the extent that it granted summary

judgment in favor of the defendants with respect to the plaintiffs’ claim that arrested drivers are

entitled to pre-deprivation hearings. We otherwise vacate the judgment of the district court and

remand for further proceedings not inconsistent with this opinion.

26
Appendix to the opinion of the Court

27
 I A·79 I

THE NEW YORK CITY ~AXI
AND LIMOUSINE COMMISSION

SUMMARY SUSPENSION ¢RIME CHART - As of November 2, 2006

PL 120.00 Assault in the 3IV Dec rae - Class A Misdemeanor
PL 120.20 Reckless EndaMem: ent in the 2110 Degree - Class A Misdemeanor
PL 130.20 Sexual Misconduct - Ptass A Misdemeanor
PL 130.55 Sexual Abuse in the ~ra Degree - Class 8 Misdemeanor
PL 130.60 Sexual Abuse in the. fncl Degree - Class A Misdemeanor
PL245.00 Public Lewdness - C ass B Misdemeanor
PL260.10 Endanjlering the WeI1 ire of a ChUd - Class A Misdemeanor
PL 265.01 Criminal Possession c a Weapon (4U1) - Class A Misdemeanor
All Felonies
VTL 1192.1 Driving While Ability Ir "paired - Infraction
VTL 1192.2 Operation of a Motor \ ~ehicle White Intoxicated - Class U Misdemeanor
VTL 1192.3 Operation of a Motor Vehicle With an Illegal Blood-Alcohol Content·
Class U Misdemeanorl
VTL 1192.4 Driving While Ability ,"'palred bv Drugs - Class U Misdemeanor
VTLSOO.2 Leaving the Scene of ,n Accident - Class A or B Misdemeanor or
Class "Eft felony i
I A-80 I

 , A-81 I

200.30 Giving Unlawful Gratuities - Class A Misdemeanor
210.05 Peril!IY in the 31u Degree - ( Jass A Misdemeanor
210.35 Making an ApparenUy SWan False Statement (r) - Class A Misdemeanor
210.45 Making a Punishable False ",ritten Statement - Class A Misdemeanor
215.10 Tampering With a Witness (. LIl'l) - Class A Misdemeanor
215.23 Tam""",;,1Y With a Juror (2OU1 Class B Misdemeanor
215.25 Tampering With a Juror{1~t- Class A Misdemeanor
215.45 Compounding- a Crime - Cia $S A Misdemeanor
215.50 Criminal Contempt in the 2°UIOegree - Class A Misdemeanor
220.03 Criminal Possession of a COlirtrolled Substance (71T11- Class A Misdemeanor
220.50 Criminally Using Drug Pa~pI emalia (~Q) - Class A Misdemeanor
221.10 Criminal Possession of Marijl ana (SID) - Class B Misdemeanor
221.15 Criminal Possession of Mari~ ana141f11- Class A Misdemeanor
221.35 Criminal Sale of Marijuana (5~') - Class B Misdemeanor
221.40 Criminal Sale of Marijuana (4r) - Class A Misdemeanor
240.05 Riot in the r Degree - Ciasl A Misdemeanor
240.08 Inciting to Riot - Class A Mi~ emeanor
240.10 Unlawful Assembly - Class B Misdemeanor
240.25 Harassment in the 1st Degree ~ Class B Misdemeanor
240.30 Agaravated Harassment In ~ !_~ Degree - Class A Misdemeanor
245.11 Public Display of Offensive SEixuaf Material - Class A Misdemeanor
470.05 Money Laundering in the 3rt! Qegree - Class A Misdemeanor
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