     12-41-cv
     Noel v. New York City Taxi & Limousine Comm’n

 1                       UNITED STATES COURT OF APPEALS
 2
 3                           FOR THE SECOND CIRCUIT
 4
 5                              August Term, 2011
 6
 7
 8        (Argued: April 19, 2012              Decided: June 28, 2012)
 9
10                             Docket No. 12-41-cv
11
12   - - - - - - - - - - - - - - - - - - - - - - -x
13
14   CHRISTOPHER NOEL; SIMI LINTON; UNITED SPINAL, a
15   nonprofit organization; TAXIS FOR ALL CAMPAIGN,
16   a nonprofit organization; 504 DEMOCRATIC CLUB,
17   a nonprofit organization; DISABLED IN ACTION, a
18   nonprofit organization,
19
20                      PLAINTIFFS-APPELLEES,
21
22               -v.-
23
24   NEW YORK CITY TAXI AND LIMOUSINE COMMISSION, a
25   charter mandated agency; DAVID YASSKY, in his
26   official capacity, as Commissioner of the New
27   York City Taxi and Limousine Commission,
28
29                      DEFENDANTS-APPELLANTS.
30
31   - - - - - - - - - - - - - - - - - - - - - - -x
32

33         Before:           JACOBS, Chief Judge, KEARSE and HALL,
34                           Circuit Judges.
35
36
1        Appeal from a temporary injunction entered in the

2    United States District Court for the Southern District of

3    New York (Daniels, J.) requiring all new taxi medallions and

4    street-hail livery licenses issued in the City of New York

5    be limited to vehicles that are wheelchair accessible.   We

6    conclude that defendants are not in violation of Title II,

7    Part A, of the Americans with Disabilities Act and that the

8    district court therefore erred in granting partial summary

9    judgment for plaintiffs and entering the temporary

10   injunction.

11       Vacated and remanded for entry of partial summary

12   judgment for defendants and further proceedings consistent

13   with this opinion.

14                          Michael A. Cardozo, Corporation
15                          Counsel of the City of New York
16                          (Leonard Koerner, Robin Binder,
17                          Michelle Goldberg-Cahn, Ronald E.
18                          Sternberg, on the brief), for
19                          Defendants-Appellants.
20
21                          Sid Wolinsky (Julia Pinover, Mary-
22                          Lee Smith, Kara J. Janssen, on the
23                          brief), Disability Rights Advocates
24                          (Allegra L. Fishel, Outten and
25                          Golden, LLP, on the brief), for
26                          Plaintiffs-Appellees.
27
28                          Richard D. Emery (Emery Celli
29                          Brinckerhoff & Abady LLP), for
30                          Taxicab, Limousine & Paratransit
31                          Association as amicus curiae in
32                          support of Defendants-Appellants.



                                  2
1    DENNIS JACOBS, Chief Judge:

2        Two people who use wheelchairs and the organizations

3    that represent persons with disabilities bring this class

4    action against the New York City Taxi and Limousine

5    Commission (“TLC”) and the TLC Commissioner David Yassky for

6    violation of Parts A and B of Title II of the Americans with

7    Disabilities Act (“ADA”), the Rehabilitation Act of 1973,

8    and the New York City Human Rights Law.   The United States

9    District Court for the Southern District of New York

10   (Daniels, J.) granted plaintiffs partial summary judgment as

11   to liability on the claim that defendants are violating Part

12   A of Title II of the ADA (“Title II(A)”) by failing to

13   provide meaningful access to taxi services for persons with

14   disabilities.   The district court also entered a temporary

15   injunction that requires that all new taxi medallions and

16   street-hail livery licenses be limited to vehicles that are

17   wheelchair accessible (“accessible taxis”), until the TLC

18   proposes and the district court approves a comprehensive

19   plan to provide meaningful access to taxi service for

20   wheelchair-bound passengers.

21       Defendants appeal the injunction and the grant of

22   partial summary judgment upon which the injunction is

23   premised.   Appellate jurisdiction exists to review the

24   injunction and the underlying merits that relate to it.    We

                                    3
1    conclude that, though the TLC exercises pervasive control

2    over the taxi industry in New York City, defendants were not

3    required by Title II(A) to deploy their licensing and

4    regulatory authority to mandate that persons who need

5    wheelchairs be afforded meaningful access to taxis.    The

6    district court therefore erred in entering the temporary

7    injunction.

8        Accordingly, we vacate the temporary injunction and

9    remand for the district court to enter summary judgment for

10   defendants on the Title II(A) claim and for further

11   proceedings consistent with this opinion.1

12

13                            BACKGROUND

14       The facts are not in dispute.     Plaintiffs are [1]

15   persons with disabilities who seek fuller access to New York

16   City taxis and [2] organizations who represent them.       They

17   contend that the taxi services in New York City fail to give

18   meaningful access to persons with disabilities and that the

19   TLC thus discriminates in violation of the ADA, the

20   Rehabilitation Act, and the New York City Human Rights Law.


         1
           Because we vacate the temporary injunction as
     improvidently granted, we need not address defendants’
     secondary argument that the district court erred by entering
     an injunction that, as defendants contend, exceeded the
     scope of the litigation and the request of plaintiffs.
                                  4
1        There are two types of licensed taxis in New York City:

2    the traditional yellow cabs and the livery cabs.    The yellow

3    cabs are “medallion taxis” because the license is

4    accompanied by a metal “medallion” that is affixed to the

5    outside of the taxi.   N.Y.C. Admin. Code § 19-502(h).   A

6    yellow taxi is a 5-passenger vehicle for hire licensed “to

7    accept hails from passengers in the street.”   Id. § 19-

8    502(l).   A livery cab is a 5-passenger vehicle for hire that

9    is dispatched from a livery base station on a pre-arranged

10   basis.    See 35 N.Y.C. Rules & Regs. §§ 59A-03(j), (k); see

11   generally N.Y.C. Admin. Code § 19-502(g) (defining “for-hire

12   vehicle”).   Livery cabs have not been authorized to accept

13   street hails.2

14

         2
            New York adopted legislation in December 2011
     (amended in February) (1) allowing the TLC to sell 2,000
     additional yellow taxi medallions, all of which must be for
     accessible taxis, and (2) establishing the Hail Accessible
     Inter-Borough License (“HAIL”) program, which permits livery
     vehicles to respond to street hails in northern Manhattan
     and the other boroughs. See 2012 NY ALS 9 (amending 2011 NY
     ALS 602). The TLC will be authorized to issue 18,000 HAIL
     licenses over a three-year period: 6,000 in the first year,
     6,000 in the second year, and 6,000 in the third year.
     Twenty percent of the HAIL licenses are for accessible
     vehicles. Id. at § 5(b).
          The licenses and medallions are expected to yield over
     a billion dollars in revenue for the City. Significantly,
     the TLC cannot sell any of its new accessible medallions
     until the HAIL license program commences. Id. at § 8.
                                    5
1        Under the City Charter, all taxis are licensed and

2    regulated by the TLC, an administrative agency of the City

3    of New York under the Deputy Mayor for Operations.    See 65

4    N.Y.C. Charter § 2300.   As a condition of licensure, taxi

5    owners and drivers must comply with the TLC’s applicable

6    laws and regulations.    Id. §§ 2300, 2303; N.Y.C. Admin. Code

7    § 19-504.   Under the City Charter, the TLC “adopt[s] and

8    establish[es] an overall public transportation policy

9    governing taxi, coach, limousine, wheelchair accessible van

10   services and commuter van services as it relates to the

11   overall public transportation network of the city.”   N.Y.C.

12   Charter § 2300.   This includes “set[ting] standards and

13   criteria for the licensing of vehicles, drivers and

14   chauffeurs”; establishing “standards of service, . . .

15   insurance and minimum coverage, . . . driver safety, . . .

16   equipment safety and design, . . . noise and air pollution

17   control”; and adjudicating “charges of violations of the

18   provisions of the administrative code and rules promulgated

19   thereunder.”   Id. §§ 2300, 2303.

20       The number of medallions is limited by law to 13,237.

21   At least 231 are designated for wheelchair-accessible

22   vehicles, though any medallion owner may operate such a taxi



                                    6
1    regardless of whether the medallion has that designation.

2    Currently, 233 taxis are so accessible; 98.2% of medallion

3    taxis are therefore inaccessible to persons in wheelchairs.3

4    Not surprisingly, the wait time for accessible taxis is

5    prolonged.   The record shows that the chances of hailing any

6    taxi in Manhattan within ten minutes is 87.33%, whereas the

7    chances of hailing an accessible taxi within ten minutes is

8    3.31%.

9                                * * *

10       After some discovery, plaintiffs moved for partial

11   summary judgment only on the ADA claims and only as to

12   liability.   Defendants cross-moved on all claims.   Each

13   side’s motion for summary judgment was granted in part and

14   in part denied.

15       As to Part B of Title II of the ADA (“Title II(B)”),

16   which governs public transportation, the district court

17   granted summary judgment in favor of defendants.     The

18   district court reasoned that although the TLC has “extensive

19   regulatory powers,” the agency itself has “no authority to

         3
           The complaint alleges that 60,000 people in New York
     City are wheelchair users. The City’s population exceeds
     eight million. See 2010 Census Bureau, available at
     http://www.nyc.gov/html/dcp/html/census/popcur.shtml (last
     visited June 20, 2012). Accordingly, people in wheelchairs
     make up approximately 0.73% of New York City’s population.
                                   7
1    provide [public transportation] services, and does not

2    function as a transportation services provider, to the

3    public.”   Noel v. New York City Taxi & Limousine Comm’n, --

4    F. Supp. 2d --, No. 11 Civ. 237 (GBD), 2011 WL 6747466, *5

5    (S.D.N.Y. Dec. 23, 2011).    Because the TLC does not

6    “operate” a public transportation service, the district

7    court held that the TLC is not obligated under Title II(B)

8    to ensure meaningful access to taxis for persons with

9    disabilities.   Id. at *6.

10       However, as to Title II(A), which governs public

11   services generally, the district court granted summary

12   judgment in favor of plaintiffs.   The district court

13   reasoned that the TLC “is a public entity carrying out a

14   public regulatory function that affects and confers a

15   benefit on New York City taxicab riders,” and therefore may

16   not discriminate in any of its functions--including its

17   regulatory activities--and must ensure persons with

18   disabilities have meaningful access to taxis in New York

19   City.   Id. at *8.   The district court determined that

20   plaintiffs enjoyed no meaningful access to taxis, id., and

21   were therefore entitled to summary judgment, id. at *8-9.

22



                                    8
1        The district court then entered a temporary injunction

2    that had immediate impact in view of recent changes in New

3    York State law, which had authorized the issuance of

4    additional medallions and authorized, for the first time,

5    livery cabs to pick up street hails in under-served areas of

6    the City.    See supra note 1.    The injunction is as follows:

 7               [t]he TLC must propose a comprehensive plan to
 8               provide meaningful access to taxicab service for
 9               disabled wheelchair bound passengers. Such a plan
10               must include targeted goals and standards, as well
11               as anticipated measurable results. Until such a
12               plan is proposed and approved by th[e District]
13               Court, all new taxi medallions sold or new street-
14               hail livery licenses or permits issued by the TLC
15               must be for wheelchair accessible vehicles.

16   Id. at *9.

17       On appeal, defendants challenge the temporary

18   injunction and the grant of summary judgment, to the extent

19   it bears on the injunction.      While the appeal was pending,

20   we granted defendants’ motion to stay enforcement of the

21   injunction.    We now consider the merits of defendants’

22   appeal and vacate the temporary injunction.4

         4
           Because this appeal comes to us on review of the
     district court’s temporary injunction and because plaintiffs
     have not cross-appealed, the issue of whether the district
     court correctly granted summary judgment for defendants on
     the Title II(B) claim is not before us. In addition,
     because the district court did not rule on plaintiffs’
     Rehabilitation Act and state law claims, those claims are
     also not before us.
                                      9
1                               JURISDICTION

2        We have jurisdiction over this interlocutory appeal

3    because the district court entered an order “granting” an

4    “injunction[].”   See 28 U.S.C. § 1292(a)(1).   By the same

5    token, we have jurisdiction to “consider the underlying

6    merits of the case, to the extent they relate to the

7    propriety of granting injunctive relief.”    United States v.

8    Allen, 155 F.3d 35, 39 (2d Cir. 1998) (alterations and

9    internal quotation marks omitted) (holding that this Court

10   had jurisdiction to consider not only the injunction but

11   also the merits of the district court’s determination that

12   the appellee was entitled to summary judgment).

13   Accordingly, we review the entry of the temporary injunction

14   as well as the grant of partial summary judgment on which it

15   is based.

16

17                              DISCUSSION

18       We review a district court’s grant of injunctive relief

19   for abuse of discretion.    Kapps v. Wing, 404 F.3d 105, 112

20   (2d Cir. 2005).   “A district court abuses its discretion

21   when it rests its decision on an error of law or clearly

22   erroneous finding of fact.”    Abrahams v. MTA Long Island

23   Bus, 644 F.3d 110, 115 (2d Cir. 2011).

                                     10
1        We review the grant of summary judgment, which was the

2    basis for the temporary injunction, de novo.     Miller v.

3    Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.

4    2003).

5

6                                   I

7        One goal of the ADA is to “‘provide a clear and

8    comprehensive national mandate for the elimination of

9    discrimination against individuals with disabilities.’”

10   Henrietta D. v. Bloomberg, 331 F.3d 261, 273 (2d Cir. 2003)

11   (quoting 42 U.S.C. § 12101(b)(1)).    To do so, the ADA’s

12   “first three titles proscribe discrimination against

13   individuals with disabilities in employment and hiring

14   (Title I), access to public services (Title II), and public

15   accommodations (Title III).”   Id.    Title II is, in turn,

16   “divided into Parts A and B”: “Part A governs public

17   services generally,” and Part B “governs the provision of

18   public transportation services.”     Abrahams, 644 F.3d at 115.

19   This appeal involves only Title II(A).

20       Title II(A) provides: “Subject to the provisions of

21   this subchapter, no qualified individual with a disability

22   shall, by reason of such disability, be excluded from


                                    11
1    participation in or be denied the benefits of the services,

2    programs, or activities of a public entity, or be subjected

3    to discrimination by any such entity.”   42 U.S.C. § 12132.

4    To prevail under Title II(A), “plaintiffs must demonstrate

5    that (1) they are ‘qualified individuals’ with a disability;

6    (2) that the defendants are subject to the ADA; and (3) that

7    plaintiffs were denied the opportunity to participate in or

8    benefit from defendants’ services, programs, or activities,

9    or were otherwise discriminated against by defendants, by

10   reason of plaintiffs’ disabilities.”   Henrietta D., 331 F.3d

11   at 272.   Defendants do not dispute that plaintiffs are

12   qualified individuals or that the TLC is a public entity

13   that is generally subject to Title II(A).   The only question

14   on appeal then is whether the TLC denied plaintiffs an

15   opportunity to participate in its services, programs, or

16   activities, or otherwise discriminated against them on

17   account of a disability.

18

19                                 II

20       “As a remedial statute, the ADA must be broadly

21   construed to effectuate its purpose” of providing “a clear

22   and comprehensive national mandate for the elimination of


                                   12
1    discrimination against individuals with disabilities.”

2    Innovative Health Sys., Inc. v. City of White Plains, 931 F.

3    Supp. 222, 232 (S.D.N.Y. 1996) (internal quotation marks

4    omitted), aff’d in part, 117 F.3d 37 (2d Cir. 1997),

5    recognized as superseded on other grounds, Zervos v. Verizon

6    N.Y., Inc., 252 F.3d 163, 171 n.7 (2d Cir. 2001).

7    Accordingly, the phrase “services, programs, or activities”

8    has been interpreted to be “a catch-all phrase that

9    prohibits all discrimination by a public entity.”

10   Innovative Health Sys., 117 F.3d at 45.

11       Although the ADA is to be interpreted broadly, “the

12   scope of Title II is not limitless.”   See Reeves v. Queen

13   City Transp., Inc., 10 F. Supp. 2d 1181, 1185 (D. Col.

14   1998).   In enacting Title II, Congress directed the Attorney

15   General to promulgate regulations to implement Title II(A),

16   see 42 U.S.C. § 12134(a), and the Attorney General’s

17   regulations add scope and shape to the general prohibitions

18   in the ADA, which are not self-reading.   As the House

19   Judiciary Committee Report conceded, it is “the purpose of

20   this section . . . to direct the Attorney General to issue

21   regulations setting forth the forms of discrimination

22   prohibited.”   H.R. Rep. 101-485(III) at 52, reprinted in

23   1990 U.S.C.C.A.N. 445, 475.

                                   13
1        The most relevant regulation here is 28 C.F.R.

2    § 35.130(b)(6), which governs the conduct of a public entity

3    administering a licensing program.   The TLC, of course,

4    administers a licensing program: the licensing of taxis.

5    Section 35.130(b)(6) prohibits a “public entity” from

6    “administer[ing] a license or certification program in a

7    manner that subjects qualified individuals with disabilities

8    to discrimination on the basis of disability” or

9    “establish[ing] requirements for the programs or activities

10   of licensees or certified entities that subject qualified

11   individuals with disabilities to discrimination on the basis

12   of disability.”

13       Notwithstanding the broad construction of the ADA,

14   Section 35.130(b)(6) does not support plaintiffs’ claim

15   against the TLC.   Section 35.130(b)(6) prohibits the TLC

16   from refusing to grant licenses to persons with disabilities

17   who are otherwise qualified to own or operate a taxi (i.e.,

18   qualified medallion purchasers and drivers); it does not

19   assist persons who are consumers of the licensees’ product.

20   This reading of Section 35.130(b)(6) is consistent with the

21   Technical Assistance Manual of the Department of Justice

22   (“TAM”), which is persuasive authority as to the ADA’s

23   meaning, unless it is plainly erroneous or inconsistent with

                                   14
1    the ADA’s regulations.    See Innovative Health Sys., 117 F.3d

2    at 45 n.8.    The section involving licensing makes clear that

3    the persons who are protected are those who are seeking

4    licenses:

 5               A public entity may not discriminate on the basis
 6               of disability in its licensing, certification, and
 7               regulatory activities. A person is a “qualified
 8               individual with a disability” with respect to
 9               licensing or certification, if he or she can meet
10               the essential eligibility requirements for
11               receiving the license or certification. . . .
12               Public entities may not discriminate against
13               qualified individuals with disabilities who apply
14               for licenses, but may consider factors related to
15               the disability in determining whether the
16               individual is “qualified.”

17   ADA TAM II-3.7200, available at

18   http://www.ada.gov/taman2.html#II-3.7200 (last visited June

19   20, 2012).    The example given in the TAM reinforces that

20   limitation:

21               ILLUSTRATION: A State prohibits the licensing of
22               transportation companies that employ individuals
23               with missing limbs as drivers. XYZ company
24               refuses to hire an individual with a missing limb
25               who is ‘qualified’ to perform the essential
26               functions of the job, because he is able to drive
27               safely with hand controls.

28   Id.   The TAM concludes that such a licensing requirement

29   would violate Title II(A), id., but--critically--that “[t]he

30   State is not accountable for discrimination in the

31   employment or other practices of XYZ company, if those


                                    15
1    practices are not the result of requirements or policies

2    established by the State.”   Id.

3        That guidance goes far to deciding this appeal.      The

4    gravamen of plaintiffs’ claim is that there are too few

5    accessible taxis in New York City and that the TLC should

6    use its regulatory authority to require that more taxis be

7    accessible.   But no such claim is cognizable under Title

8    II(A) against the TLC because nothing in the TLC’s

9    administration of the licensing program discriminates

10   against persons with disabilities.   Although only 231

11   medallions are conditioned on wheelchair accessibility, none

12   of the medallions issued by the TLC prohibits any medallion

13   owner from operating an accessible taxi.

14

15                                III

16       Plaintiffs contend that the TLC violates Title II(A)

17   because the industry it licenses fails to provide meaningful

18   access to taxis for persons with disabilities.

19       As an initial matter, Title II(A) makes clear that

20   “[t]he programs or activities of entities that are licensed

21   or certified by a public entity are not, themselves, covered




                                   16
1    by [Title II(A)].”   28 C.F.R. § 35.130(b)(6).5   As the TAM

2    advises: “[a]lthough licensing standards are covered by

3    title II, the licensee’s activities themselves are not

4    covered.   An activity does not become a ‘program or

5    activity’ of a public entity merely because it is licensed

6    by the public entity.”   ADA TAM II-3.7200 (emphasis added).

7    At the risk of being obvious, “[t]he New York City taxicab

8    industry is a private industry.”    Freidman v. Gen. Motors

9    Corp., 721 F. Supp. 2d 218, 220 (S.D.N.Y. 2010).

10   Accordingly, even if private industry (such as the New York

11   City taxi industry) fails to provide meaningful access for

12   persons with disabilities, a licensing entity (such as the

13   TLC) is not therefore in violation of Title II(A), unless

14   the private industry practice results from the licensing

15   requirements.   See ADA TAM II-3.7200.

16       This conclusion was adopted by the two district courts

17   that have considered the issue.    It was claimed in Tyler v.

18   City of Manhattan, 849 F. Supp. 1429, 1441-42 (D. Kan.

19   1994), that Manhattan (Kansas) violated Title II(A) by

20   granting liquor licenses to businesses that were

         5
           Cf. 49 C.F.R. § 37.37(a) (Title III) (Department of
     Transportation regulation providing that “[a] private entity
     does not become subject to the requirements of this part for
     public entities[] because it . . . is regulated by, or is
     granted a . . . permit to operate by a public entity.”).
                                   17
1    inaccessible to persons with disabilities.   The district

2    court concluded “that the regulations implementing Title II

3    of the ADA do not cover the programs and activities of

4    [private] entities that are licensed or certified by a

5    public entity.”   Id. at 1441 (citing 28 C.F.R.

6    § 35.130(b)(6)); accord id. (explaining that “[a]lthough

7    City programs operated under contractual or licensing

8    arrangements may not discriminate against qualified

9    individuals with disabilities, the programs or activities of

10   licensees or certified entities are not themselves programs

11   or activities of the public entity merely by virtue of the

12   license or certificate.”   (internal citation, quotation

13   marks, and alteration omitted)).   Tyler ruled that the

14   licensing of non-accessible private establishments did not

15   deny “access to services, aids, and programs provided by the

16   City under licensing or contractual arrangements.”    Id. at

17   1442.

18       The plaintiff in Tyler also argued that the city’s

19   physical inspection of licensed facilities provided a

20   benefit to non-disabled people only, because only non-

21   disabled people could enter those establishments.    Id.    The

22   district court explained that it was not the government

23   inspections that denied access to the facilities or the

                                   18
1    benefits of being there; it was the facilities themselves,

2    which were operated privately.     Id.   Such a claim is not

3    actionable under Title II(A), Tyler reasoned, because “Title

4    II . . . and its implementing regulations prohibit

5    discrimination against qualified individuals only by public

6    entities” and do “not go so far as to require public

7    entities to impose on private establishments, as a condition

8    of licensure, a requirement that they make their facilities

9    physically accessible to persons with disabilities.”     Id.

10   Because private establishments are not services, programs or

11   activities of a public entity, Tyler held that they are not

12   governed by Title II(A) or its implementing regulations.

13   Id.

14         In Reeves v. Queen City Transportation, Inc., 10 F.

15   Supp. 2d 1181 (D. Colo. 1998), a private company transported

16   guests to resorts in vehicles that were not wheelchair

17   accessible.   The plaintiffs sued the public utility

18   commission that had issued the company a certificate to

19   operate, alleging a violation of Title II(A).     Id. at 1182-

20   83.

21         In rejecting the Title II(A) challenge, the District of

22   Colorado concluded that the utility commission “operates a

23   certification program, not a transportation program,” and

                                   19
1    that “issuance of a certificate of” operation to a private

2    transportation company “does not constitute a violation of

3    Title II even if [that company] subsequently engage[s] in

4    unlawful discrimination.”   Id. at 1186 (internal quotation

5    marks omitted).

6        Plaintiffs undertake to distinguish these cases on the

7    ground that this Circuit interprets the ADA more broadly.

8    To be sure, this Circuit broadly interprets the ADA, see

9    Innovative Health Sys., 117 F.3d at 45--and the district

10   court here relied on that broad construction, see Noel, 2011

11   WL 6747466, at *7-8.   However, the ADA is not without

12   limits, and limits are found in the Attorney General’s

13   regulations, which (as relevant here) emphasize that Title

14   II(A)’s prohibition on discrimination by public entities

15   does not compel public entities to police compliance by the

16   private entities they license.       E.g., 28 C.F.R.

17   § 35.130(b)(6); see also ADA TAM II-3.7200.      Moreover,

18   Reeves can hardly be distinguished on the ground that it is

19   incompatible with the Second Circuit’s broad reading of the

20   ADA; Reeves properly cites our decision in Innovative Health

21   Systems for that proposition.    Reeves, 10 F. Supp. 2d at

22   1183.

23

                                     20
1           Plaintiffs also contend that this case is different

2    because the TLC’s control of the taxi industry is pervasive.

3    See N.Y.C. Charter § 2303(b); Statharos v. N.Y. City Taxi &

4    Limousine Comm’n, 198 F.3d 317, 321, 324 (2d Cir. 1999).

5    Pervasive control is significant, plaintiffs argue, because

6    it was the dispositive factor in Paxton v. State of West

7    Virginia Department of Tax & Revenue, 451 S.E. 2d 779 (W.

8    Va. 1994).

9           In Paxton, the West Virginia Supreme Court affirmed a

10   writ of mandamus compelling a lottery commission--a public

11   entity--to require all places that sell lottery tickets to

12   be accessible to persons with disabilities.    Id. at 781,

13   786.    The court noted that the lottery commission has

14   substantial control and regulatory authority over the

15   lottery, id. at 783-84, but that was not essential to the

16   decision.    The crucial fact--which was held to distinguish

17   the lottery franchises from the liquor licenses in Tyler--

18   was that, “through its contract vendors the Lottery

19   Commission furnishes the lottery devices and services that

20   allow the licensee to conduct lottery sales.”    Id. at 785.

21   Thus the lottery commission was not “only engaged in a

22   licensing arrangement,” but “provide[d] an aid, benefit or

23   service on a continuing basis to its licensee”; and that is

                                    21
1    the reason that the West Virginia Supreme Court held that

2    the commission was covered by Title II(A).    Id. (“[T]he

3    lottery is the service provided by the Lottery Commission,

4    and it is this service that makes the Lottery Commission

5    subject to the ADA under 28 C.F.R. § 35.130(b)(1).”).6

6        We neither endorse nor challenge the reasoning of

7    Paxton.   In any event, our case is a closer analog to Reeves

8    and Taylor, in which the public entity is merely the entity

9    charged with regulating and licensing private industry.     The

10   TLC’s control over the taxi industry, however pervasive it

11   is at this time, does not make the private taxi industry “a

12   ‘program or activity’ of a public entity.”    See ADA TAM II-

13   3.7200; accord 28 C.F.R. § 35.130(b)(6).7    Accordingly, the

         6
           Reeves distinguished Paxton on this same basis: that
     Paxton “relied heavily on” the fact “that state statutes
     charged the Lottery Commission with operation of the state
     lottery on a continuous basis,” such that “the lottery is
     the service provided by the Lottery Commission.” Reeves, 10
     F. Supp. 2d at 1187 (internal quotation marks omitted).
         7
            Plaintiffs’ “pervasive control” argument might have
     more force if the TLC failed to include accessible models on
     its list of vehicles that medallion holders can use as
     taxis. There is no showing, however, that the TLC inhibits
     the purchase of accessible medallions or vehicles that can
     be adapted for wheelchair access. In short, the ADA does
     not require a licensing entity to use its regulatory power
     to coerce compliance by a private industry.
          Plaintiffs suggest that the Taxi-for-Tomorrow
     Initiative violates Title II(A) by effectively preventing
     medallion owners from using an accessible vehicle. Taxi-
     for-Tomorrow, which is non-binding, “seeks to select the
                                   22
1    TLC does not violate the ADA by licensing and regulating a

2    private taxi industry that fails to afford meaningful access

3    to passengers with disabilities.

4

5                                  IV

6        None of the regulations cited by plaintiffs require a

7    different result.

8        Section 35.130(b)(1)(i) provides that “[a] public

9    entity, in providing any aid, benefit, or service, may not,

10   directly or through contractual, licensing, or other

11   arrangements, . . . [d]eny a qualified individual with a

12   disability the opportunity to participate in or benefit from

13   the aid, benefit, or service” “on the basis of [that

14   individual’s] disability.”   28 C.F.R. § 35.130(b)(1)(i).

15   This provision bars a public entity from discriminating by

16   refusing to issue a license to a person who has a disability

17   because of the disability; but the TLC denies that it

18   engages in any such discrimination, and Plaintiffs do not



     next vehicle that will be used as the standard taxicab of
     New York.” Joint App’x 33. According to the record, a
     committee tentatively accepted the Nissan NV200. The
     current model of the NV200 is not accessible, but the model
     that would serve as the standard taxi is still being
     developed. Joint App’x 142. We decline to decide now
     issues that might arise in the future as the project goes
     forward.
                                   23
1    dispute the point.   Moreover, to the extent that plaintiffs

2    argue that the “service” the TLC provides is the regulation

3    of the taxi industry, plaintiffs’ argument is the same

4    argument that was rejected in Tyler, where the plaintiff

5    pleaded inability to avail himself of the benefits of the

6    municipality’s physical inspections of non-accessible

7    facilities.

8        Plaintiffs also rely on 28 C.F.R. § 35.130(b)(3)(i),

9    which prohibits a “public entity . . . , directly or through

10   contractual or other arrangements,” from “utiliz[ing]

11   criteria or methods of administration . . . [t]hat have the

12   effect of subjecting qualified individuals with disabilities

13   to discrimination on the basis of disability.”   This is

14   aimed at requirements that discriminate against people with

15   disabilities, such as when a public entity refuses to do

16   business with a person who has a disability.   See, e.g., ADA

17   TAM II-3.7100, available at

18   http://www.ada.gov/taman2.html#II-3.7100 (last accessed June

19   20, 2012).    Plaintiffs raise no such claim against the TLC.

20       Finally, plaintiffs argue that Section 35.130(b)(6)

21   (discussed at length above) governs their claim because it

22   (in part) prohibits “a public entity [from] establish[ing]

23   requirements for the programs or activities of licensees or

                                    24
1    certified entities that subject qualified individuals with

2    disabilities to discrimination on the basis of disability.”

3    An example of such discrimination would be denying licenses

4    to transportation companies that employ individuals with

5    disabilities, which causes discrimination against

6    prospective employees who are otherwise qualified.   ADA TAM

7    II-3.7200.    The TLC licensing scheme is distinguishable on

8    the elementary ground that it does not cause discrimination.

9        Instead, plaintiffs contend that the TLC violates the

10   ADA because it could require more taxis to be accessible,

11   but does not.   The TLC’s licensing requirements do not

12   discriminate and do not cause anyone else to discriminate,

13   by licensing or otherwise.   The TLC’s licenses do not bar

14   taxi owners from operating accessible vehicles.   The only

15   medallions that specify whether the taxi must be accessible

16   specify that the taxi operated pursuant to that license be

17   accessible.    No doubt, more such taxis would be on the

18   streets if the TLC required more of them to be accessible.

19   But the TLC’s failure to use its regulatory authority does

20   not amount to discrimination within the meaning of the ADA

21   or its regulations.

22

23

                                    25
1                                   V

2        It may be that there is a failure to provide meaningful

3    access to taxis for persons with disabilities.    But if so,

4    it is a failure of the taxi industry in New York City.

5    Plaintiffs do not--and cannot--bring such a claim against

6    the taxi industry directly under Title III of the ADA (which

7    governs private entities), because Title III expressly

8    exempts taxi providers from purchasing or leasing

9    “accessible automobiles.”    49 C.F.R. § 37.29(b).8

10       Plaintiffs assert their claim under Title II(A), but

11   Title III is instructive nevertheless.    Plaintiffs contend

12   that the TLC violates the ADA because the industry it

13   pervasively regulates fails to afford meaningful access to

14   persons with disabilities.    But since the taxi industry

15   itself is exempt, there is no underlying violation of the

16   ADA for the TLC to redress by regulation.    The district

17   court, which has held that the TLC must increase the number

18   of handicap-accessible taxis, has thus run counter to the


         8
           If, however, “a provider of taxi service purchases or
     leases a vehicle other than an automobile, the vehicle is
     required to be accessible . . . .” 49 C.F.R. § 37.29(b).
     Nevertheless, because “[a] provider of taxi service is not
     required to purchase vehicles other than automobiles in
     order to have a number of accessible vehicles in its fleet,”
     a taxi provider is not obligated to purchase or lease
     vehicles accessible to persons with disabilities. Id.
                                    26
1    policy choice of the political branches, which exempted the

2    taxi industry from the ADA.

3        This was a problem of which the district court was all

4    too aware.   Discussing plaintiffs’ Title II(B) claim, the

5    district court observed:

 6            Title III cannot be read as exempting taxicab
 7            owners from any requirement that they purchase
 8            wheelchair accessible automobiles, but at the same
 9            time have intended that subtitle B of Title II
10            impose such a personal obligation based solely on
11            the extent of the control of the public regulatory
12            agency. The effect would be to impose an
13            obligation on those private owners under subtitle B
14            of Title II that Congress explicitly intended to
15            exempt under Title III. Congress had the same
16            power to require regulated private owners providing
17            taxi service to purchase wheelchair accessible
18            automobiles under Title III, and chose not to do
19            so.

20   Noel, 2011 WL 6747466, at *6.

21       That sound reasoning applies with equal force to

22   plaintiffs’ Title II(A) claim.       If the TLC is required under

23   Title II(A) to ensure that the taxi industry provides a

24   sufficient number of accessible taxis, then private taxi

25   owners would be required to purchase or lease accessible

26   taxis even though the ADA explicitly exempts them from such

27   requirements.   49 C.F.R. § 37.29(b).     The exemption compels

28   the conclusion that the ADA, as a whole, does not require

29


                                     27
1    the New York City taxi industry to provide accessible

2    taxis.9

3                                * * *

4        In sum, Title II(A) does not obligate the TLC to use

5    its licensing and regulatory authority over the New York

6    City taxi industry to require that taxi owners provide

7    meaningful access to taxis for persons with disabilities.

8    The district court therefore erred in granting summary

9    judgment for plaintiffs on their Title II(A) claim and in

10   entering a temporary injunction premised on that grant of

11   summary judgment.   See Abrahams, 644 F.3d at 115 (holding

12   that “[a] district court abuses its discretion when it[,

13   inter alia,] rests its decision on an error of law”).

14


         9
           We reject plaintiffs’ argument that, in this case,
     Title II and Title III merely provide differing standards of
     obligations under the ADA and that, where standards differ,
     the standard providing the highest degree of access must be
     met. See ADA TAM II-1.3000, Illustration 3, available at
     http://www.ada.gov/taman2.html#II-1.3000 (last accessed June
     20, 2012). It may be true, as the TAM example demonstrates,
     that when public and private entities form a joint venture
     to build a stadium, the stadium must comply with both Title
     II and Title III and, where the standards differ, the
     stadium must comply with the higher standard. But here,
     there is no joint venture. Nor do standards differ: the
     taxi industry is exempt from the ADA. If Title II(A) were
     construed to require indirectly that the taxi industry
     provide accessible vehicles, Title III’s exemption would be
     undone altogether.
                                   28
1                             CONCLUSION

2       Accordingly, the district court’s temporary injunction

3   is vacated.   The case is remanded with instructions for the

4   district court to grant summary judgment to defendants on

5   the Title II(A) claim and for further proceedings consistent

6   with this opinion.




                                  29
