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)
                              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 arrested

                                                  2
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, 

, 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 is three pages long and is

appended to this opinion for the convenience of the reader. See Appendix. Some of the included

misdemeanors, such as third-degree assault, may involve violence, while many others, such as

false advertising, giving unlawful gratuities, and unlawful assembly, do not. The TLC states that

offenses are added to the 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
                                                   5
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.

          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
                                                   6
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

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.



       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
       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.

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 (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.
                                                  8
       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, 

, 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. 

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, 

of Women Voters of Nassau Cnty. v. Nassau Cnty. Bd. of Supervisors, 

, 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,” 

(quoting Havens Realty Corp. v.

Coleman, 

, 379 (1982)).

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

applied the familiar three-factor test of Mathews v. Eldridge, 

, 332 (1976).4 See


       3
          The district court construed some of the plaintiffs’ claims pertaining to state law as
substantive due process claims. See 

. 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.
       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.” 

.
                                                    9


. The district court found that no pre-deprivation hearing was

required and that the post-deprivation hearing provided was sufficient. 

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.

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.” 

Balancing these factors, the

district court concluded that no pre-deprivation hearing was necessary. 

       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.” 

“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.

       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.

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 &
                                                  10
Sons v. Marsh, 

(4th Cir. 1986); and Brown v. Dept. of Justice, 

(D.C.

Cir. 1983). 

. 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.” 

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.” 

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. 

the district court found that a mini-trial on the charged conduct would impose too great a burden

on the City’s resources. 

court also addressed this Court’s holding in Krimstock v. Kelly, 

(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 

. 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

the government interest in this case is the public confidence and trust in the TLC’s judgment with

respect to the licensing of drivers, 

(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, 

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
                                                  11
“there was thus little difficulty in ordering the police to make an evidentiary showing to maintain

the seizure of the car,” 

         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. 

v. Safir, 

, 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. 

         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., 

, 99 (2d Cir. 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.” 

questions of standing de novo. See Carver v. City of New York, 

, 225 (2d Cir.

2010).




         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. 

. The plaintiffs do not pursue
these claims on appeal, and we do not discuss them further.
                                                   12
       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, 

, 263 (2d Cir. 2006) (quoting Warth v. Seldin, 

, 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.” 

v. Defenders of Wildlife, 

, 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, 

, 160 (2d Cir. 1984) (citing Aguayo v.

Richardson, 

(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 bring this

action as the representative of its members.

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



       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.
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, 

, 732 (2d Cir. 2004).
                                                   13
so long as it can independently satisfy the requirements of Article III standing as enumerated in

Lujan. See Irish Lesbian & Gay Org. v. Giuliani, 

, 649 (2d Cir. 1998) (citing Havens

Realty Corp. v. Coleman, 

, 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.” 

. Specifically, the court

held that the evidence demonstrated that the association infrequently “counsels drivers whose

licenses have been suspended pursuant to the challenged policy.” 

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.” 

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

“scant,” is not abstract. 

. 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

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., 

, 905 (2d Cir. 1993) (citing Havens Realty 

). Even if only a few

suspended drivers are counseled by NYTWA in a year, there is some perceptible opportunity cost
                                                  14
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 

. 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].” 

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, 

, 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., 

, 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. 

; 

.

       For example, in Fair Housing Council, the plaintiff organization claimed “that it suffered

palpable injury when it was forced to divert resources to 

. 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.” 

Circuit found that the organization lacked standing to bring a Fair

Housing Act against specific discriminatory ads because its alleged “investigation” “was not
                                                 15
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.” 

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.” 

. Accordingly, NYTWA has

standing to bring this action on its own behalf.7




        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, 

, 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.
                                                 16
       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, 

, 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.”

(citing Bell v. Burson, 

, 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, 

, 134 (2d Cir.

2005) (quoting Mathews v. Eldridge, 

, 333 (1976)). In other words, “due process is

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

v. Brewer, 

, 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 . . . .” 

The

“general rule” is that a pre-deprivation hearing is required, 

Mathews inquiry “‘provides

guidance’ in determining whether to ‘tolerate’ an exception to the rule requiring pre-deprivation

notice and hearing,” Krimstock v. Kelly, 

, 60 (2d Cir. 2002) (Sotomayor, J.) (quoting

United States v. James Daniel Good Real Prop., 

, 53 (1993)).

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

deprivation, and the government’s interest, 

n.4 — we agree with the district court that
                                                   17
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, 

, 932 (1997) (citing Fed. Deposit Ins. Corp. v. Mallen,

, 243 (1988); Cleveland Bd. of Educ. v. Loudermill, 

, 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. 

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.” 

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.” 

. 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 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
                                                   18
any, of additional or substitute procedural 

. 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.

        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.,

(“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 

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
                                                   19
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 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, 

, 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, 

, 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, 

,

1103 (Ct. Cl. 1975)); see also Brown v. City of New York, 

, 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
                                                  20
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 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

                                                   21
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.” 

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. 

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.” 

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
                                                  22
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 

(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 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, 

, 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



       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).
                                                  23
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. 

.

Although the contractor was 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, 

, 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., 

(“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



       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
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 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.




                                                   25
                                           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
                                      A-79




     THE NEW YORK CITY TAXI AND LIMOUSINE COMMISSION
  SUMMARY SUSPENSION CRIME CHART - As of November 2, 2006


PL   120.00   Assault in the 3rd Degree - Class A Misdemeanor
PL   120.20   Reckless Endangerment in the 2 na Degree - Class A Misdemeanor
PL   130.20   Sexual Misconduct - Class A Misdemeanor
                                     ra
PL   130.55   Sexual Abuse in the 3 Degree - Class B Misdemeanor
PL   130.60   Sexual Abuse in the 2 na Degree - Class A Misdemeanor
PL   245.00   Public Lewdness - Class B Misdemeanor
PL   260.10   Endangering the Welfare of a Child - Class A Misdemeanor
PL   265.01   Criminal Possession of a Weapon (4In) - Class A Misdemeanor
              All Felonies
VTL 1192.1    Driving While Ability Impaired - Infraction
VTL 1192.2    Operation of a Motor Vehicle While Intoxicated - Class U Misdemeanor
VTL 1192.3    Operation of a Motor Vehicle With an Illegal Blood-Alcohol Content -
              Class U Misdemeanor
VTL 1192.4    Driving While Ability Impaired by Drugs - Class U Misdemeanor
VTL 600.2     Leaving the Scene of an Accident - Class A or B Misdemeanor or
              Class uE" felony
                                      A-80




100.05 Criminal Solicitation in the 4In Degree - Class A Misdemeanor
105.05 Conspiracy in the 51n Degree - Class A Misdemeanor
115.00 Criminal Facilitation in the 4ln Degree - Class A Misdemeanor
120.14 Menacing in the 2nd Degree - Class A Misdemeanor
120.15 Menacing in the 3ra Degree - Class B Misdemeanor
135.05 Unlawful Imprisonment in the 2na Degree - Class A Misdemeanor
135.45 Custodial Interference in the 2 r1a Degree - Class A Misdemeanor
135.60 Coercion in the 2nd Degree - Class A Misdemeanor
140.10 Criminal Trespass in the 3ra Degree - Class B Misdemeanor
140.15 Criminal Trespass in the 2 no Degree - Class A Misdemeanor
140.35 Possession of Burglar's Tools - Class A Misdemeanor
140.40 Unlawful Possession of Radio Devices - Class B Misdemeanor
145.00 Criminal Mischief in the 4tn Degree - Class A Misdemeanor
145.14 Criminal Tampering in the 3ra Degree - Class B Misdemeanor
145.15 Criminal Tampering in the 2 no Degree - Class A Misdemeanor
145.25 Reckless Endangerment of Property - Class 8 Misdemeanor
155.25 Petit Larceny - Class A Misdemeanor
158.05 Welfare Fraud in the 5ID Degree - Class A Misdemeanor
158.30 Criminal Use of a Public Benefit Card (2 no ) - Class A Misdemeanor
165.00 Misapplication of Property - Class A Misdemeanor
165.05 Unauthorized Use of a Vehicle in the 3 ro Degree - Class A Misdemeanor
165.09 Auto Stripping in the 3rd Degree - Class A Misdemeanor
165.15 Theft of Services - Class Varies
165.17 Unlawful Use of a Credit/Debit/Public Benefit Card - Class A Misdemeanor
165.20 Fraudulently Obtaining a Signature - Class A Misdemeanor
165.30 Fraudulent Accosting - Class A Misdemeanor
165.40 Criminal Possession of Stolen Property (Sffi)_ Class A Misdemeanor                I
170.05 Forgery in the 3ra Degree - Class A Misdemeanor
170.20 Criminal Possession of a Forged Instrument (3ra) - Class-'A Misdemeanor
                                              nd
175.05 Falsifying Business Records in the"2- Degree - Class A Misdemeanor
175.20 Tampering With Public Records in the 2na Degree - Class A Misdemeanor
175.30 Offering a False Instrument for Filing (2no) - Class A Misdemeanor
175.45 Issuing a False Financial Statement - Class A Misdemeanor            "'.,~.---~



176.10 Insurance Fraud in the 5Ul Degree - Class A Misdemeanor
185.00 Fraud in Insolvency - Class A Misdemeanor
185.05 Fraud Involving a Securi~ Interest - Class A Misdemeanor
185.10 Fraudulent Disposition of Mortgaged Property - Class A Misdemeanor
                                                                                         !
185.15 Fraudulent DisQosition of ProQerty - Class A Misdem~~mor
                                                                                         I
190.20 False Advertising - Class A Misdemeanor
190.23 False Personation - Class B Misdemeanor
190.25 Criminallmpe!sonation in the 2 no Degree - Class A Misdemeanor_
190.60 Scheme to Defraud in the 2nd DegreE3-:::__Class A Misdemeanor
19S.05 Obstructing Governmental Administration (2 no ) - Class A Misdemeanor
195.10 Refusing to Aid a Poli(;~/Peace Officer - Class B Misdemeanor
                                      A-81




200.30   Giving Unlawful Gratuities - Class A Misdemeanor
210.05   Perjury in the 3ra Degree - Class A Misdemeanor
210.35                                                     no
         Making an Ap~arently Sworn False Statement (2 ) - Class A Misdemeanor
210.45   Making a Punishable False Written Statement - Class A Misdemeanor
215.10   Tamperinf! With a Witness (41Tl) - Class A Misdemeanor
215.23   Tampering With a Juror (2 no ) - Class 8 Misdemeanor
215.25   Tamperinf! With a Juror (1SI) - Class A Misdemeanor
215.45   Compounding a Crime - Class A Misdemeanor
215.50   Criminal Contempt in the 2nd Degree - Class A Misdemeanor
220.03   Criminal Possession of a Controlled Substance (7U'1) - Class A Misdemeanor
220.50   Criminally Using Drug Paraphernalia (2no) - Class A Misdemeanor
221.10   Criminal Possession of Marliuana (5 tn ) - Class B Misdemeanor
221.15   Criminal Possession of Marijuana (4U1) - Class A Misdemeanor
221.35   Criminal Sale of Mar[uana (51n ) - Class 8 Misdemeanor
221.40   Criminal Sale of Marijuana (4tn) - Class A Misdemeanor
240.05   Riot in the 2na De_9ree - Class A Misdemeanor
240.08   Inciting to Riot - Class A Misdemeanor
240.10   Unlawful Assembly - Class B Misdemeanor
240.25   Harassment in the 1SI Degree - Class B Misdemeanor
240.30   Aggravated Harassment in the 2no Degree - Class A Misdemeanor
245.11   Public Display of Offensive Sexual Material - Class A Misdemeanor
470.05   Money Laundering in the 3 ra Degree - Class A Misdemeanor




                                                                                      2