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Nnebe v. Daus

United States District Court, Second Circuit

August 21, 2013

JONATHAN NNEBE, et al., Plaintiffs,
v.
MATTHEW DAUS, et al., Defendants.

Plaintiffs are represented by Daniel L. Ackman, New York, NY, and David T. Goldberg, Donahue & Goldberg, L.L.P., New York, New NY.

Defendants Matthew Daus, Charles Fraser, Joseph Eckstein, Elizabeth Bonina, and the City are represented by Mary M. O'Sullivan and Amy J. Weinblatt, New York City Law Department, Office of the Corporation Counsel, New York, NY.

AMENDED [1] MEMORANDUM AND ORDER

RICHARD J. SULLIVAN, District Judge.

Jonathan Nnebe, Alexander Karmansky, Eduardo Avenaut, and Khairul Amin - all New York City taxi drivers - together with the New York Taxi Workers Alliance ("NYTWA, " and collectively, "Plaintiffs"), bring this putative class action against Matthew Daus, Charles Fraser, Joseph Eckstein, Elizabeth Bonina, the New York City Taxi and Limousine Commission ("TLC"), and the City of New York (the "City" and, with the other defendants, "Defendants"), alleging that the TLC's policy of suspending taxi drivers upon notification of their arrest violates the United States Constitution, New York state law, and New York City municipal law. Now before the Court are Plaintiffs' and Defendants' motions for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth below, the motions are denied.

I BACKGROUND

A. Facts

The Court presumes the parties' familiarity with the facts and history of this case.[2] The central issue here is whether the TLC's policy of suspending taxi drivers upon notification of their arrest comports with federal and state due process guarantees. The specific suspension procedures at issue in this case are set forth in a rule promulgated by the TLC pursuant to its rulemaking authority under the New York City Charter and New York City Administrative Code. See N.Y.C. Charter § 2303(b)(5); N.Y.C. Admin. Code § 19-512.1. The version of the rule in effect until December 2006 provided that "[I]f the [TLC] 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."[3] Nnebe v. Daus (Nnebe I), 665 F.Supp.2d 311, 316 (S.D.N.Y. 2009). Since revised, the rule now provides that "[t]he Chairperson can summarily suspend a [l]icense based upon an arrest on criminal charges if the Chairperson believes that the charges, if true, would demonstrate that continued licensure would constitute a direct and substantial threat to public health or safety."[4] 35 RCNY § 68-21(d)(1).

Whenever the TLC suspends a license, it must notify that licensee within five days. Id. § 68-21(a)(3). The licensee has ten days from receiving such notice to request a hearing before an administrative law judge ("All"), and the TLC in turn has ten days from receiving a licensee's request to actually hold the hearing.[5] Id. § 68-21(b)(2). At the hearing, "the issue [is] whether the charges underlying the [l]icensee's arrest, if true, demonstrate that the continuation of the [l]icense while awaiting a decision on the criminal charges would pose a direct and substantial threat to the health or safety of the public." Id. § 68-21(d)(3). After the hearing, the ALJ issues a written recommendation that the TLC Chairperson (the "Chairperson") may accept, modify, or reject. Id. § 68-21(c)(3). The Chairperson's decision represents "the final determination of the [TLC] with respect to the summary suspension." Id. § 68-21(c)(4).

Not every arrest triggers suspension, and the categories of arrests that do have changed over the years. Prior to November 2006, the TLC's policy was to automatically suspend licensees arrested for a wide range of both violent and non-violent felonies and misdemeanors, including misdemeanor welfare fraud, forgery, and obstruction of governmental administration. ( See Defs. Post-Remand 56.1 ¶ 8; Reply Decl. of Mary O'Sullivan, dated July 17, 2007, Doc. No. 146 ("O'Sullivan Reply Decl."), Ex. HHH.) The TLC narrowed that list significantly in November 2006, and as of October 2011, it comprised only felonies; misdemeanors involving sexual misconduct, assault, forcible touching, reckless endangerment, child endangerment, public lewdness, criminal possession of a weapon, animal torture, and driving misconduct; and the infraction of driving while ability impaired. ( See Defs. Post-Remand 56.1 ¶ 7); Nnebe II, 644 F.3d at 151, 163.

Plaintiffs are four licensed New York City taxi drivers (the "Individual Plaintiffs") and an association representing taxi drivers' interests. Each of the Individual Plaintiffs was suspended following an arrest. Amin was suspended on June 11, 2005 after he was arrested for and charged with Menacing in the 2nd Degree, with a Weapon, and Assault with Intent to Cause Physical Injury, 3rd Degree - both misdemeanors. Nnebe I , 665 F.Supp.2d at 319. Karmansky was suspended on May 23, 2006 after he was arrested for and charged with Criminal Contempt, 1st Degree - a felony. Id. at 318. Nnebe was suspended on May 29, 2006 after he was arrested for and charged with Assault with Intent to Cause Physical Injury, 3rd Degree. Id. Avenaut was suspended on July 17, 2006 after he too was arrested for and charged with Assault with Intent to Cause Physical Injury, 3rd Degree. Id. at 318-19. Except for Avenaut, each of the Individual Plaintiffs requested a hearing, and in each case the All recommended, and the Chairperson approved, continuation of the suspension. Id. Ultimately, each of the Individual Plaintiffs' suspensions was lifted after the criminal charges against them were dropped. Id.

B. Procedural History

Following discovery, the parties filed cross-motions for summary judgment and Plaintiffs also moved for class certification. ( See Doc. Nos. 44, 96, 104.) On September 30, 2009, the Court entered summary judgment in favor of Defendants as to Plaintiffs' federal claims, declined to exercise supplemental jurisdiction over Plaintiffs' state law claims, and denied Plaintiffs' class certification motion as moot. Nnebe I, 665 F.Supp.2d at 315. The Court held that (1) the NYTWA lacked standing to bring a § 1983 suit on behalf of its members, id . at 321; (2) the TLC's policy of suspending drivers before affording them a hearing did not violate procedural due process, id. at 325-26; (3) the post-suspension hearings, which were limited to "determining whether the plaintiff was actually arrested, " also did not violate procedural due process, id. at 326-30; (4) the summary suspension procedures did not violate Plaintiffs' substantive due process rights, id. at 330-32; (5) Plaintiffs had fair and adequate notice that they faced suspension if arrested, id. at 332-33; and (6) the post-suspension hearings did not violate Plaintiffs' Fifth Amendment right against self-incrimination, id. at 333.

Plaintiffs appealed the Court's ruling, and in March 2011 the Second Circuit (1) affirmed the Court's holding that due process did not require the TLC to provide a pre-deprivation hearing, Nnebe II, 644 F.3d at 158-59; (2) reversed the Court's finding that the NYTWA lacked standing in this action, id. at 158; (3) vacated and remanded the Court's grant of summary judgment that the post-suspension hearings satisfy due process, [6] id. at 163; and (4) vacated the Court's dismissal of Plaintiff's state law claims, id.

With respect to the post-suspension hearings, the Second Circuit focused on a factual dispute between the parties regarding the standard that ALJs applied in the post-suspension hearings. At oral argument, Defendants asserted that drivers could avoid suspension by demonstrating that "the charges, even if true, did not demonstrate that continued licensure would pose a threat to public safety, " while Plaintiffs insisted that ALJs actually applied a per se standard of continuing suspensions whenever the licensee was actually arrested for an offense that triggers suspension. Id. at 160. The Second Circuit found the record before it insufficiently clear to determine which side was correct, although it characterized the evidence supporting Defendants' assertion as "scant" and that supporting Plaintiffs' as "considerable." Id. at 160-61. Accordingly, the Circuit reserved judgment as to the minimum process post-suspension hearings must offer and instead remanded the action for additional ...


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