United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 8, 1997 Decided January 16, 1998
No. 97-7032
Dial A Car, Inc.,
Appellant
v.
Transportation, Inc. d/b/a Red Top Cab Company of Arlington,
and
Barwood, Inc., d/b/a Barwood Cab Company of Maryland,
Appellees
__________
Appeal from the United States District Court
for the District of Columbia
(No. 96cv02457)
__________
James M. Loots argued the cause for appellant, with whom
Mark E. Herlihy was on the briefs.
David L. Meyer argued the cause for appellees, with whom
Stephen W. Grafman and A. Thomas Morris were on the
brief.
Before: Ginsburg, Henderson, and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Ginsburg.
Ginsburg, Circuit Judge: Dial A Car, Inc. sued Transporta-
tion, Inc. and Barwood, Inc. for damages and an injunction,
alleging that the defendants are operating taxicab services in
the District of Columbia without a license from the D.C.
Taxicab Commission. Because we hold that there is no
implied private right of action under the statute prohibiting
unlicensed taxicab operations in the District, we affirm the
judgment of the district court dismissing this action.
I. Background
In 1986 the Council of the District of Columbia passed the
Taxicab Commission Establishment Act, which established
the Taxicab Commission and gave it "exclusive authority for
intrastate regulation of the taxicab industry." D.C. Code
s 40-1704. Among other things, the Act prohibits anyone
from operating a taxicab service "within the District without
first procuring all applicable licenses required by the Com-
mission," and authorizes the Commission to fine an unlicensed
operator up to $500. Id. s 40-1719(a). In 1987 the Taxicab
Commission granted limited authority to Arlington County
and Montgomery County taxicab companies to operate in the
District. See D.C. Taxicab Commission Office Administrative
Order No. 4 (Aug. 13, 1987).
Dial A Car is licensed by the Taxicab Commission as a
sedan service providing point-to-point transportation primari-
ly to corporate clients at a contractual rate. Transportation,
Inc. is a Virginia taxicab service licensed in Arlington County,
and Barwood, Inc. is a Maryland taxicab service licensed in
Montgomery County. Neither of the defendants is licensed
in the District.
Dial A Car claims that the defendants are violating D.C.
Code s 40-1719 and Administrative Order No. 4 by providing
on-call taxicab services to corporate clients in the District. In
October 1993 Dial A Car sued the same defendants in the
district court alleging violations of the Sherman Act, the
Lanham Act, and the D.C. statute prohibiting unfair trade
practices, as well as the common law torts of interference
with contract and with prospective business relations. The
court dismissed Dial A Car's federal claims and declined to
exercise supplemental jurisdiction over its state-law claims.
See Dial A Car, Inc. v. Transporation, Inc., 884 F. Supp. 584
(D.D.C. 1995), aff'd, 82 F.3d 484 (D.C. Cir. 1996).
In 1996 Dial A Car sued Transportation and Barwood
again, this time in D.C. Superior Court, seeking damages and
an injunction. Dial A Car asserted, among other causes of
action, a private right of action for violation of D.C. Code
s 40-1719. The defendants removed the case to the federal
district court, which dismissed Dial A Car's claims, holding in
relevant part that there is no private right of action under
s 40-1719. Dial A Car appealed only that portion of the
judgment. A motions panel of this court denied Dial A Car's
motion to certify to the District of Columbia Court of Appeals
(DCCA) the question whether there is a private right of
action under s 40-1719.
II. Analysis
The DCCA applies the test of Cort v. Ash, 422 U.S. 66
(1975), to determine whether a D.C. statute creates an im-
plied private right of action. See, e.g., Kelly v. Parents
United for the D.C. Pub. Sch., 641 A.2d 159, 164 (D.C. 1994).
In Cort the Supreme Court stated:
In determining whether a private remedy is implicit in a
statute not expressly providing one, several factors are
relevant. First, is the plaintiff one of the class for whose
especial benefit the statute was enacted--that is, does
the statute create a ... right in favor of the plaintiff?
Second, is there any indication of legislative intent, ex-
plicit or implicit, either to create such a remedy or to
deny one? Third, is it consistent with the underlying
purposes of the legislative scheme to imply such a reme-
dy for the plaintiff?
422 U.S. at 78 (citations omitted) (emphasis in original).
Of these the most important consideration is whether the
legislature intended to create a private right of action. See
Suter v. Artist M., 503 U.S. 347, 364 (1992); see also Twyman
v. Johnson, 655 A.2d 850, 857 (D.C. 1995); Parents United,
641 A.2d at 164. Everything about the D.C. taxicab statute
suggests that the Council did not intend to create such a
right. The Council created the Commission specifically to be
the "exclusive authority" over taxicab regulation. D.C. Code
s 40-1704; see also Edward v. D.C. Taxicab Comm'n, 645
A.2d 600, 602 (D.C. 1994); Onabiyi v. D.C. Taxicab Comm'n,
557 A.2d 1317, 1318 (D.C. 1989). The regulatory regime
provides in detail for the agency to enforce the Act. To that
end the Council gave the Commission's Panel on Rates and
Rules the power to establish fines for violations of Commis-
sion rules, D.C. Code s 40-1707(b)(1)(I), and gave the Com-
mission's Panel on Adjudication the powers to investigate the
taxicab industry and to adjudicate disputes between members
of the industry, id. s 40-1707(b)(2).
The DCCA has been reluctant to find a private right of
action implicit in a statute that provides for public enforce-
ment. See Albertie v. Louis & Alexander Corp., 646 A.2d
1001, 1004 (D.C. 1994) (snow removal statute, D.C. Code
s 7-901 et seq.); see also Assassination Archives & Research
Ctr. v. Department of Justice, 43 F.3d 1542, 1544 (D.C. Cir.
1995) (finding no private right of action under the President
John F. Kennedy Assassination Records Collection Act of
1992 where the Congress created a review board to evaluate
agency decisions regarding access to records); cf. Twyman,
655 A.2d at 856-57 (statute prohibiting retaliation in rental
housing provided claimant with remedies from Rent Adminis-
trator and Rental Housing Commission); Brantley v. District
of Columbia, 640 A.2d 181, 184 (D.C. 1994) (declining to
recognize tort of educational malpractice and noting that
regulations governing assignment of children to school pro-
vided plaintiff with remedy). In Parents United, upon which
Dial A Car relies, the court did find a private right of action
but it did so in part upon the ground that the regulatory
scheme in that case did not provide for public enforcement.
See 641 A.2d at 164 ("In fact, the [statute] does not contain
any provision for enforcement of the Act. In Cort, the
Supreme Court indicated that such silence would leave room
for an implied private remedy"). Although Dial A Car may
be correct that the legislature's having provided for public
enforcement of a law is not necessarily fatal to the inference
that it also intended to create a private right of action--a
question we need not resolve insomuch as there is no other
evidence in this case to support such an inference--a provi-
sion for public enforcement is a good indication that the
Council did not by its silence intend to create a parallel
private right of action.
Dial A Car suggests that under Parents United it does not
need to show that the legislature intended to create a private
right of action; for this the plaintiff points to the court's
statement that where a statute grants "a class of persons
certain rights, it is not necessary to show an intention to
create a private cause of action". 641 A.2d at 164 (quoting
Cort, 422 U.S. at 82) (emphasis deleted). Read in context,
however, this passage is meant to say only that the plaintiff
need not show an explicit legislative purpose to create a
private right of action. As subsequent case law makes clear,
the legislature must at least implicitly have intended to create
a private right of action before the court can countenance
such a suit: "unless this ... intent can be inferred from the
language of the statute, the statutory structure, or some
other source, the essential predicate for implication of a
private remedy simply does not exist." Twyman, 655 A.2d at
857 (quoting Northwest Airlines, Inc. v. Transport Workers
Union of Am., 451 U.S. 77, 94 (1981)); see also Fountain v.
Kelly, 630 A.2d 684, 690 (D.C. 1993).
In sum, the structure of the statute clearly indicates that
the Council did not intend to create a private right of action
and Dial A Car points to no contrary evidence whatsoever.
Although that is probably enough to dispose of the plaintiff's
claim, see Transamerica Mortgage Advisors, Inc. v. Lewis,
444 U.S. 11, 15-16 (1979) (ultimate question is "whether
[legislature] intended to create the private remedy asserted"),
we note that the other factors in the Cort analysis also cut
against judicial interpolation of a private right of action in
s 40-1719.
First, the statute was not enacted for the "especial benefit"
of the firms to be regulated, such as Dial A Car. To be sure,
the Council did intend to foster a "healthy" taxicab industry
and to provide taxicab companies with "just compensation."
See D.C. Code s 40-1702(a)(2) & (a)(3). But the Council was
also concerned with the general public interest, see id.
s 40-1702(a)(1), including "a healthy degree of competition
within the taxi industry," id. s 40-1702(b)(1)(B), and more
specifically with creating a centralized system for the regula-
tion of taxicabs, see id. s 40-1701(3) & (4). In light of these
mixed motives we cannot conclude that the Council intended
taxicab regulation for the "especial benefit" of industry mem-
bers, as opposed to the taxicab-using public at large.
Second, implying a private right of action would not be
consistent with the primary purpose of the statute, viz., to
consolidate responsibility for the regulation of the industry in
a single administrative agency. See D.C. Code s 40-1701(3)-
(6); D.C. Council, Comm. on Public Servs. & Cable Televi-
sion, Report on Bill 6-159, at 1 (Nov. 19, 1985); see also Lim
v. D.C. Taxicab Comm'n, 564 A.2d 720, 723 (D.C. 1989)
(centralization is "the only purpose of the bill"). Although
Dial A Car suggests that a private right of action would only
further the Commission's effort to enforce the statute, giving
the courts a role in its enforcement would clearly frustrate
the Council's stated intention of centralizing regulation of the
taxicab industry in the Taxicab Commission.
Dial A Car relies heavily upon a recent case in which the
Supreme Court of Virginia entertained a suit brought by
licensed taxicab companies to enjoin an unlicensed taxicab
company from violating a Norfolk ordinance that prohibited
unlicensed operators from using the term "taxi" in their
advertisements. See Black & White Cars, Inc. v. Groome
Transp., Inc., 442 S.E.2d 391 (Va. 1994). The court acknowl-
edged both the "general rule that a penal statute or ordinance
does not automatically create a private right of action," and
the exception to this rule that "an injunction is appropriate
relief where violation of a penal statute ... results in special
damage to property rights," such as the plaintiffs' taxicab
licenses, "which would be difficult to quantify." Id. at 394.
Black & White cannot rescue Dial A Car's claim for the
simple reason that it is not controlling authority in the
District of Columbia. In fact, it is not even persuasive
concerning District law because, as noted above, when faced
with a claim to an implied right of action the DCCA applies
the Supreme Court's test in Cort v. Ash; in Black & White
the Supreme Court of Virginia did not even cite Cort v. Ash
or its sequelae. Moreover, Dial A Car states that its dam-
ages are "more easily quantifiable" than the damages in
Black & White--a nearly suicidal point because even under
Black & White an injunction is not appropriate if the plain-
tiff's damages are not "difficult to quantify." 442 S.E.2d at
394.
Finally, Dial A Car renews its argument, already rejected
by another panel, that this court should certify to the DCCA
the question whether there is a private right of action under
s 40-1719. The certification procedure is appropriate only if
"it appears to the certifying court there is no controlling
precedent in the decisions of the [DCCA]." D.C. Code
s 11-723(a). In deciding whether to certify a case we look to
whether local law is "genuinely uncertain" with respect to a
dispositive question, Tidler v. Eli Lilly & Co., 851 F.2d 418,
426 (D.C. Cir. 1988), and to whether the "case is one of
extreme public importance," Joy v. Bell Helicopter Textron,
Inc., 999 F.2d 549, 563-64 (D.C. Cir. 1993) (citation omitted).
If, however, there is a "discernible path for the court to
follow," then we do not stop short of deciding the question.
Tidler, 851 F.2d at 426.
In this case we conclude again that certification is unneces-
sary. The DCCA precedent regarding implied private rights
of action is reasonably clear and provides a "discernible path"
to the resolution of this case which, although not insignificant,
is not one of "extreme public importance" in the District of
Columbia.
III. Conclusion
For the foregoing reasons we hold that there is no private
right of action under D.C. Code s 40-1719. Because there is
no genuine uncertainty as to the proper outcome of this issue
we decline to certify the question to the DCCA. Accordingly,
the order of the district court is
Affirmed.