Noel v. New York City Taxi & Limousine Comm’n

12-41-cv
Noel v. New York City Taxi & Limousine Comm’n
UNITED STATES COURT OF APPEALS 1
2
FOR THE SECOND CIRCUIT 3
4
August Term, 2011 5
6
7
(Argued: April 19, 2012 Decided: June 28, 2012) 8
9
Docket No. 12-41-cv 10
11
- - - - - - - - - - - - - - - - - - - - - - -x 12
13
CHRISTOPHER NOEL; SIMI LINTON; UNITED SPINAL, a 14
nonprofit organization; TAXIS FOR ALL CAMPAIGN, 15
a nonprofit organization; 504 DEMOCRATIC CLUB, 16
a nonprofit organization; DISABLED IN ACTION, a 17
nonprofit organization, 18
19
PLAINTIFFS-APPELLEES, 20
21
-v.- 22
23
NEW YORK CITY TAXI AND LIMOUSINE COMMISSION, a 24
charter mandated agency; DAVID YASSKY, in his 25
official capacity, as Commissioner of the New 26
York City Taxi and Limousine Commission, 27
28
DEFENDANTS-APPELLANTS. 29
30
- - - - - - - - - - - - - - - - - - - - - - -x 31
32
Before: JACOBS, Chief Judge, KEARSE and HALL, 33
Circuit Judges. 34
35
36

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2
Appeal from a temporary injunction entered in the 1
United States District Court for the Southern District of 2
New York (Daniels, J.) requiring all new taxi medallions and 3
street-hail livery licenses issued in the City of New York 4
be limited to vehicles that are wheelchair accessible. We 5
conclude that defendants are not in violation of Title II, 6
Part A, of the Americans with Disabilities Act and that the 7
district court therefore erred in granting partial summary 8
judgment for plaintiffs and entering the temporary 9
injunction. 10
Vacated and remanded for entry of partial summary 11
judgment for defendants and further proceedings consistent 12
with this opinion. 13
Michael A. Cardozo, Corporation 14
Counsel of the City of New York 15
(Leonard Koerner, Robin Binder, 16
Michelle Goldberg-Cahn, Ronald E. 17
Sternberg, on the brief), for 18
Defendants-Appellants. 19
20
Sid Wolinsky (Julia Pinover, Mary- 21
Lee Smith, Kara J. Janssen, on the 22
brief), Disability Rights Advocates 23
(Allegra L. Fishel, Outten and 24
Golden, LLP, on the brief), for 25
Plaintiffs-Appellees. 26
27
Richard D. Emery (Emery Celli 28
Brinckerhoff & Abady LLP), for 29
Taxicab, Limousine & Paratransit 30
Association as amicus curiae in 31
support of Defendants-Appellants. 32

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3
DENNIS JACOBS, Chief Judge: 1
Two people who use wheelchairs and the organizations 2
that represent persons with disabilities bring this class 3
action against the New York City Taxi and Limousine 4
Commission (“TLC”) and the TLC Commissioner David Yassky for 5
violation of Parts A and B of Title II of the Americans with 6
Disabilities Act (“ADA”), the Rehabilitation Act of 1973, 7
and the New York City Human Rights Law. The United States 8
District Court for the Southern District of New York 9
(Daniels, J.) granted plaintiffs partial summary judgment as 10
to liability on the claim that defendants are violating Part 11
A of Title II of the ADA (“Title II(A)”) by failing to 12
provide meaningful access to taxi services for persons with 13
disabilities. The district court also entered a temporary 14
injunction that requires that all new taxi medallions and 15
street-hail livery licenses be limited to vehicles that are 16
wheelchair accessible (“accessible taxis”), until the TLC 17
proposes and the district court approves a comprehensive 18
plan to provide meaningful access to taxi service for 19
wheelchair-bound passengers. 20
Defendants appeal the injunction and the grant of 21
partial summary judgment upon which the injunction is 22
premised. Appellate jurisdiction exists to review the 23
injunction and the underlying merits that relate to it. We 24

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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
conclude that, though the TLC exercises pervasive control 1
over the taxi industry in New York City, defendants were not 2
required by Title II(A) to deploy their licensing and 3
regulatory authority to mandate that persons who need 4
wheelchairs be afforded meaningful access to taxis. The 5
district court therefore erred in entering the temporary 6
injunction. 7
Accordingly, we vacate the temporary injunction and 8
remand for the district court to enter summary judgment for 9
defendants on the Title II(A) claim and for further 10
proceedings consistent with this opinion. 1
11
12
BACKGROUND 13
The facts are not in dispute. Plaintiffs are [1] 14
persons with disabilities who seek fuller access to New York 15
City taxis and [2] organizations who represent them. They 16
contend that the taxi services in New York City fail to give 17
meaningful access to persons with disabilities and that the 18
TLC thus discriminates in violation of the ADA, the 19
Rehabilitation Act, and the New York City Human Rights Law. 20

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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
There are two types of licensed taxis in New York City: 1
the traditional yellow cabs and the livery cabs. The yellow 2
cabs are “medallion taxis” because the license is 3
accompanied by a metal “medallion” that is affixed to the 4
outside of the taxi. N.Y.C. Admin. Code § 19-502(h). A 5
yellow taxi is a 5-passenger vehicle for hire licensed “to 6
accept hails from passengers in the street.” Id. § 19- 7
502(l). A livery cab is a 5-passenger vehicle for hire that 8
is dispatched from a livery base station on a pre-arranged 9
basis. See 35 N.Y.C. Rules & Regs. §§ 59A-03(j), (k); see 10
generally N.Y.C. Admin. Code § 19-502(g) (defining “for-hire 11
vehicle”). Livery cabs have not been authorized to accept 12
street hails. 2
13
14

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6
Under the City Charter, all taxis are licensed and 1
regulated by the TLC, an administrative agency of the City 2
of New York under the Deputy Mayor for Operations. See 65 3
N.Y.C. Charter § 2300. As a condition of licensure, taxi 4
owners and drivers must comply with the TLC’s applicable 5
laws and regulations. Id. §§ 2300, 2303; N.Y.C. Admin. Code 6
§ 19-504. Under the City Charter, the TLC “adopt[s] and 7
establish[es] an overall public transportation policy 8
governing taxi, coach, limousine, wheelchair accessible van 9
services and commuter van services as it relates to the 10
overall public transportation network of the city.” N.Y.C. 11
Charter § 2300. This includes “set[ting] standards and 12
criteria for the licensing of vehicles, drivers and 13
chauffeurs”; establishing “standards of service, . . . 14
insurance and minimum coverage, . . . driver safety, . . . 15
equipment safety and design, . . . noise and air pollution 16
control”; and adjudicating “charges of violations of the 17
provisions of the administrative code and rules promulgated 18
thereunder.” Id. §§ 2300, 2303. 19
The number of medallions is limited by law to 13,237. 20
At least 231 are designated for wheelchair-accessible 21
vehicles, though any medallion owner may operate such a taxi 22

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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
regardless of whether the medallion has that designation. 1
Currently, 233 taxis are so accessible; 98.2% of medallion 2
taxis are therefore inaccessible to persons in wheelchairs. 3
3
Not surprisingly, the wait time for accessible taxis is 4
prolonged. The record shows that the chances of hailing any 5
taxi in Manhattan within ten minutes is 87.33%, whereas the 6
chances of hailing an accessible taxi within ten minutes is 7
3.31%. 8
* * * 9
After some discovery, plaintiffs moved for partial 10
summary judgment only on the ADA claims and only as to 11
liability. Defendants cross-moved on all claims. Each 12
side’s motion for summary judgment was granted in part and 13
in part denied. 14
As to Part B of Title II of the ADA (“Title II(B)”), 15
which governs public transportation, the district court 16
granted summary judgment in favor of defendants. The 17
district court reasoned that although the TLC has “extensive 18
regulatory powers,” the agency itself has “no authority to 19

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8
provide [public transportation] services, and does not 1
function as a transportation services provider, to the 2
public.” Noel v. New York City Taxi & Limousine Comm’n, -- 3
F. Supp. 2d --, No. 11 Civ. 237 (GBD), 2011 WL 6747466, *5 4
(S.D.N.Y. Dec. 23, 2011). Because the TLC does not 5
“operate” a public transportation service, the district 6
court held that the TLC is not obligated under Title II(B) 7
to ensure meaningful access to taxis for persons with 8
disabilities. Id. at *6. 9
However, as to Title II(A), which governs public 10
services generally, the district court granted summary 11
judgment in favor of plaintiffs. The district court 12
reasoned that the TLC “is a public entity carrying out a 13
public regulatory function that affects and confers a 14
benefit on New York City taxicab riders,” and therefore may 15
not discriminate in any of its functions--including its 16
regulatory activities--and must ensure persons with 17
disabilities have meaningful access to taxis in New York 18
City. Id. at *8. The district court determined that 19
plaintiffs enjoyed no meaningful access to taxis, id., and 20
were therefore entitled to summary judgment, id. at *8-9. 21
22

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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
The district court then entered a temporary injunction 1
that had immediate impact in view of recent changes in New 2
York State law, which had authorized the issuance of 3
additional medallions and authorized, for the first time, 4
livery cabs to pick up street hails in under-served areas of 5
the City. See supra note 1. The injunction is as follows: 6
[t]he TLC must propose a comprehensive plan to 7
provide meaningful access to taxicab service for 8
disabled wheelchair bound passengers. Such a plan 9
must include targeted goals and standards, as well 10
as anticipated measurable results. Until such a 11
plan is proposed and approved by th[e District] 12
Court, all new taxi medallions sold or new street- 13
hail livery licenses or permits issued by the TLC 14
must be for wheelchair accessible vehicles. 15
Id. at *9. 16
On appeal, defendants challenge the temporary 17
injunction and the grant of summary judgment, to the extent 18
it bears on the injunction. While the appeal was pending, 19
we granted defendants’ motion to stay enforcement of the 20
injunction. We now consider the merits of defendants’ 21
appeal and vacate the temporary injunction. 4
22

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10
JURISDICTION 1
We have jurisdiction over this interlocutory appeal 2
because the district court entered an order “granting” an 3
“injunction[].” See 28 U.S.C. § 1292(a)(1). By the same 4
token, we have jurisdiction to “consider the underlying 5
merits of the case, to the extent they relate to the 6
propriety of granting injunctive relief.” United States v. 7
Allen, 155 F.3d 35, 39 (2d Cir. 1998) (alterations and 8
internal quotation marks omitted) (holding that this Court 9
had jurisdiction to consider not only the injunction but 10
also the merits of the district court’s determination that 11
the appellee was entitled to summary judgment). 12
Accordingly, we review the entry of the temporary injunction 13
as well as the grant of partial summary judgment on which it 14
is based. 15
16
DISCUSSION 17
We review a district court’s grant of injunctive relief 18
for abuse of discretion. Kapps v. Wing, 404 F.3d 105, 112 19
(2d Cir. 2005). “A district court abuses its discretion 20
when it rests its decision on an error of law or clearly 21
erroneous finding of fact.” Abrahams v. MTA Long Island 22
Bus, 644 F.3d 110, 115 (2d Cir. 2011). 23

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11
We review the grant of summary judgment, which was the 1
basis for the temporary injunction, de novo. Miller v. 2
Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 3
2003). 4
5
I 6
One goal of the ADA is to “‘provide a clear and 7
comprehensive national mandate for the elimination of 8
discrimination against individuals with disabilities.’” 9
Henrietta D. v. Bloomberg, 331 F.3d 261, 273 (2d Cir. 2003) 10
(quoting 42 U.S.C. § 12101(b)(1)). To do so, the ADA’s 11
“first three titles proscribe discrimination against 12
individuals with disabilities in employment and hiring 13
(Title I), access to public services (Title II), and public 14
accommodations (Title III).” Id. Title II is, in turn, 15
“divided into Parts A and B”: “Part A governs public 16
services generally,” and Part B “governs the provision of 17
public transportation services.” Abrahams, 644 F.3d at 115. 18
This appeal involves only Title II(A). 19
Title II(A) provides: “Subject to the provisions of 20
this subchapter, no qualified individual with a disability 21
shall, by reason of such disability, be excluded from 22

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12
participation in or be denied the benefits of the services, 1
programs, or activities of a public entity, or be subjected 2
to discrimination by any such entity.” 42 U.S.C. § 12132. 3
To prevail under Title II(A), “plaintiffs must demonstrate 4
that (1) they are ‘qualified individuals’ with a disability; 5
(2) that the defendants are subject to the ADA; and (3) that 6
plaintiffs were denied the opportunity to participate in or 7
benefit from defendants’ services, programs, or activities, 8
or were otherwise discriminated against by defendants, by 9
reason of plaintiffs’ disabilities.” Henrietta D., 331 F.3d 10
at 272. Defendants do not dispute that plaintiffs are 11
qualified individuals or that the TLC is a public entity 12
that is generally subject to Title II(A). The only question 13
on appeal then is whether the TLC denied plaintiffs an 14
opportunity to participate in its services, programs, or 15
activities, or otherwise discriminated against them on 16
account of a disability. 17
18
II 19
“As a remedial statute, the ADA must be broadly 20
construed to effectuate its purpose” of providing “a clear 21
and comprehensive national mandate for the elimination of 22

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13
discrimination against individuals with disabilities.” 1
Innovative Health Sys., Inc. v. City of White Plains, 931 F. 2
Supp. 222, 232 (S.D.N.Y. 1996) (internal quotation marks 3
omitted), aff’d in part, 117 F.3d 37 (2d Cir. 1997), 4
recognized as superseded on other grounds, Zervos v. Verizon 5
N.Y., Inc., 252 F.3d 163, 171 n.7 (2d Cir. 2001). 6
Accordingly, the phrase “services, programs, or activities” 7
has been interpreted to be “a catch-all phrase that 8
prohibits all discrimination by a public entity.” 9
Innovative Health Sys., 117 F.3d at 45. 10
Although the ADA is to be interpreted broadly, “the 11
scope of Title II is not limitless.” See Reeves v. Queen 12
City Transp., Inc., 10 F. Supp. 2d 1181, 1185 (D. Col. 13
1998). In enacting Title II, Congress directed the Attorney 14
General to promulgate regulations to implement Title II(A), 15
see 42 U.S.C. § 12134(a), and the Attorney General’s 16
regulations add scope and shape to the general prohibitions 17
in the ADA, which are not self-reading. As the House 18
Judiciary Committee Report conceded, it is “the purpose of 19
this section . . . to direct the Attorney General to issue 20
regulations setting forth the forms of discrimination 21
prohibited.” H.R. Rep. 101-485(III) at 52, reprinted in 22
1990 U.S.C.C.A.N. 445, 475. 23

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14
The most relevant regulation here is 28 C.F.R. 1
§ 35.130(b)(6), which governs the conduct of a public entity 2
administering a licensing program. The TLC, of course, 3
administers a licensing program: the licensing of taxis. 4
Section 35.130(b)(6) prohibits a “public entity” from 5
“administer[ing] a license or certification program in a 6
manner that subjects qualified individuals with disabilities 7
to discrimination on the basis of disability” or 8
“establish[ing] requirements for the programs or activities 9
of licensees or certified entities that subject qualified 10
individuals with disabilities to discrimination on the basis 11
of disability.” 12
Notwithstanding the broad construction of the ADA, 13
Section 35.130(b)(6) does not support plaintiffs’ claim 14
against the TLC. Section 35.130(b)(6) prohibits the TLC 15
from refusing to grant licenses to persons with disabilities 16
who are otherwise qualified to own or operate a taxi (i.e., 17
qualified medallion purchasers and drivers); it does not 18
assist persons who are consumers of the licensees’ product. 19
This reading of Section 35.130(b)(6) is consistent with the 20
Technical Assistance Manual of the Department of Justice 21
(“TAM”), which is persuasive authority as to the ADA’s 22
meaning, unless it is plainly erroneous or inconsistent with 23

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15
the ADA’s regulations. See Innovative Health Sys., 117 F.3d 1
at 45 n.8. The section involving licensing makes clear that 2
the persons who are protected are those who are seeking 3
licenses: 4
A public entity may not discriminate on the basis 5
of disability in its licensing, certification, and 6
regulatory activities. A person is a “qualified 7
individual with a disability” with respect to 8
licensing or certification, if he or she can meet 9
the essential eligibility requirements for 10
receiving the license or certification. . . . 11
Public entities may not discriminate against 12
qualified individuals with disabilities who apply 13
for licenses, but may consider factors related to 14
the disability in determining whether the 15
individual is “qualified.” 16
ADA TAM II-3.7200, available at 17
http://www.ada.gov/taman2.html#II-3.7200 (last visited June 18
20, 2012). The example given in the TAM reinforces that 19
limitation: 20
ILLUSTRATION: A State prohibits the licensing of 21
transportation companies that employ individuals 22
with missing limbs as drivers. XYZ company 23
refuses to hire an individual with a missing limb 24
who is ‘qualified’ to perform the essential 25
functions of the job, because he is able to drive 26
safely with hand controls. 27
Id. The TAM concludes that such a licensing requirement 28
would violate Title II(A), id., but--critically--that “[t]he 29
State is not accountable for discrimination in the 30
employment or other practices of XYZ company, if those 31

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16
practices are not the result of requirements or policies 1
established by the State.” Id. 2
That guidance goes far to deciding this appeal. The 3
gravamen of plaintiffs’ claim is that there are too few 4
accessible taxis in New York City and that the TLC should 5
use its regulatory authority to require that more taxis be 6
accessible. But no such claim is cognizable under Title 7
II(A) against the TLC because nothing in the TLC’s 8
administration of the licensing program discriminates 9
against persons with disabilities. Although only 231 10
medallions are conditioned on wheelchair accessibility, none 11
of the medallions issued by the TLC prohibits any medallion 12
owner from operating an accessible taxi. 13
14
III 15
Plaintiffs contend that the TLC violates Title II(A) 16
because the industry it licenses fails to provide meaningful 17
access to taxis for persons with disabilities. 18
As an initial matter, Title II(A) makes clear that 19
“[t]he programs or activities of entities that are licensed 20
or certified by a public entity are not, themselves, covered 21

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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
by [Title II(A)].” 28 C.F.R. § 35.130(b)(6). 5 As the TAM 1
advises: “[a]lthough licensing standards are covered by 2
title II, the licensee’s activities themselves are not 3
covered. An activity does not become a ‘program or 4
activity’ of a public entity merely because it is licensed 5
by the public entity.” ADA TAM II-3.7200 (emphasis added). 6
At the risk of being obvious, “[t]he New York City taxicab 7
industry is a private industry.” Freidman v. Gen. Motors 8
Corp., 721 F. Supp. 2d 218, 220 (S.D.N.Y. 2010). 9
Accordingly, even if private industry (such as the New York 10
City taxi industry) fails to provide meaningful access for 11
persons with disabilities, a licensing entity (such as the 12
TLC) is not therefore in violation of Title II(A), unless 13
the private industry practice results from the licensing 14
requirements. See ADA TAM II-3.7200. 15
This conclusion was adopted by the two district courts 16
that have considered the issue. It was claimed in Tyler v. 17
City of Manhattan, 849 F. Supp. 1429, 1441-42 (D. Kan. 18
1994), that Manhattan (Kansas) violated Title II(A) by 19
granting liquor licenses to businesses that were 20

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18
inaccessible to persons with disabilities. The district 1
court concluded “that the regulations implementing Title II 2
of the ADA do not cover the programs and activities of 3
[private] entities that are licensed or certified by a 4
public entity.” Id. at 1441 (citing 28 C.F.R. 5
§ 35.130(b)(6)); accord id. (explaining that “[a]lthough 6
City programs operated under contractual or licensing 7
arrangements may not discriminate against qualified 8
individuals with disabilities, the programs or activities of 9
licensees or certified entities are not themselves programs 10
or activities of the public entity merely by virtue of the 11
license or certificate.” (internal citation, quotation 12
marks, and alteration omitted)). Tyler ruled that the 13
licensing of non-accessible private establishments did not 14
deny “access to services, aids, and programs provided by the 15
City under licensing or contractual arrangements.” Id. at 16
1442. 17
The plaintiff in Tyler also argued that the city’s 18
physical inspection of licensed facilities provided a 19
benefit to non-disabled people only, because only non- 20
disabled people could enter those establishments. Id. The 21
district court explained that it was not the government 22
inspections that denied access to the facilities or the 23

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19
benefits of being there; it was the facilities themselves, 1
which were operated privately. Id. Such a claim is not 2
actionable under Title II(A), Tyler reasoned, because “Title 3
II . . . and its implementing regulations prohibit 4
discrimination against qualified individuals only by public 5
entities” and do “not go so far as to require public 6
entities to impose on private establishments, as a condition 7
of licensure, a requirement that they make their facilities 8
physically accessible to persons with disabilities.” Id. 9
Because private establishments are not services, programs or 10
activities of a public entity, Tyler held that they are not 11
governed by Title II(A) or its implementing regulations. 12
Id. 13
In Reeves v. Queen City Transportation, Inc., 10 F. 14
Supp. 2d 1181 (D. Colo. 1998), a private company transported 15
guests to resorts in vehicles that were not wheelchair 16
accessible. The plaintiffs sued the public utility 17
commission that had issued the company a certificate to 18
operate, alleging a violation of Title II(A). Id. at 1182- 19
83. 20
In rejecting the Title II(A) challenge, the District of 21
Colorado concluded that the utility commission “operates a 22
certification program, not a transportation program,” and 23

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20
that “issuance of a certificate of” operation to a private 1
transportation company “does not constitute a violation of 2
Title II even if [that company] subsequently engage[s] in 3
unlawful discrimination.” Id. at 1186 (internal quotation 4
marks omitted). 5
Plaintiffs undertake to distinguish these cases on the 6
ground that this Circuit interprets the ADA more broadly. 7
To be sure, this Circuit broadly interprets the ADA, see 8
Innovative Health Sys., 117 F.3d at 45--and the district 9
court here relied on that broad construction, see Noel, 2011 10
WL 6747466, at *7-8. However, the ADA is not without 11
limits, and limits are found in the Attorney General’s 12
regulations, which (as relevant here) emphasize that Title 13
II(A)’s prohibition on discrimination by public entities 14
does not compel public entities to police compliance by the 15
private entities they license. E.g., 28 C.F.R. 16
§ 35.130(b)(6); see also ADA TAM II-3.7200. Moreover, 17
Reeves can hardly be distinguished on the ground that it is 18
incompatible with the Second Circuit’s broad reading of the 19
ADA; Reeves properly cites our decision in Innovative Health 20
Systems for that proposition. Reeves, 10 F. Supp. 2d at 21
1183. 22
23

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21
Plaintiffs also contend that this case is different 1
because the TLC’s control of the taxi industry is pervasive. 2
See N.Y.C. Charter § 2303(b); Statharos v. N.Y. City Taxi & 3
Limousine Comm’n, 198 F.3d 317, 321, 324 (2d Cir. 1999). 4
Pervasive control is significant, plaintiffs argue, because 5
it was the dispositive factor in Paxton v. State of West 6
Virginia Department of Tax & Revenue, 451 S.E. 2d 779 (W. 7
Va. 1994). 8
In Paxton, the West Virginia Supreme Court affirmed a 9
writ of mandamus compelling a lottery commission--a public 10
entity--to require all places that sell lottery tickets to 11
be accessible to persons with disabilities. Id. at 781, 12
786. The court noted that the lottery commission has 13
substantial control and regulatory authority over the 14
lottery, id. at 783-84, but that was not essential to the 15
decision. The crucial fact--which was held to distinguish 16
the lottery franchises from the liquor licenses in Tyler-- 17
was that, “through its contract vendors the Lottery 18
Commission furnishes the lottery devices and services that 19
allow the licensee to conduct lottery sales.” Id. at 785. 20
Thus the lottery commission was not “only engaged in a 21
licensing arrangement,” but “provide[d] an aid, benefit or 22
service on a continuing basis to its licensee”; and that is 23

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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
the reason that the West Virginia Supreme Court held that 1
the commission was covered by Title II(A). Id. (“[T]he 2
lottery is the service provided by the Lottery Commission, 3
and it is this service that makes the Lottery Commission 4
subject to the ADA under 28 C.F.R. § 35.130(b)(1).”). 6
5
We neither endorse nor challenge the reasoning of 6
Paxton. In any event, our case is a closer analog to Reeves 7
and Taylor, in which the public entity is merely the entity 8
charged with regulating and licensing private industry. The 9
TLC’s control over the taxi industry, however pervasive it 10
is at this time, does not make the private taxi industry “a 11
‘program or activity’ of a public entity.” See ADA TAM II- 12
3.7200; accord 28 C.F.R. § 35.130(b)(6). 7 Accordingly, the 13

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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
TLC does not violate the ADA by licensing and regulating a 1
private taxi industry that fails to afford meaningful access 2
to passengers with disabilities. 3
4
IV 5
None of the regulations cited by plaintiffs require a 6
different result. 7
Section 35.130(b)(1)(i) provides that “[a] public 8
entity, in providing any aid, benefit, or service, may not, 9
directly or through contractual, licensing, or other 10
arrangements, . . . [d]eny a qualified individual with a 11
disability the opportunity to participate in or benefit from 12
the aid, benefit, or service” “on the basis of [that 13
individual’s] disability.” 28 C.F.R. § 35.130(b)(1)(i). 14
This provision bars a public entity from discriminating by 15
refusing to issue a license to a person who has a disability 16
because of the disability; but the TLC denies that it 17
engages in any such discrimination, and Plaintiffs do not 18

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24
dispute the point. Moreover, to the extent that plaintiffs 1
argue that the “service” the TLC provides is the regulation 2
of the taxi industry, plaintiffs’ argument is the same 3
argument that was rejected in Tyler, where the plaintiff 4
pleaded inability to avail himself of the benefits of the 5
municipality’s physical inspections of non-accessible 6
facilities. 7
Plaintiffs also rely on 28 C.F.R. § 35.130(b)(3)(i), 8
which prohibits a “public entity . . . , directly or through 9
contractual or other arrangements,” from “utiliz[ing] 10
criteria or methods of administration . . . [t]hat have the 11
effect of subjecting qualified individuals with disabilities 12
to discrimination on the basis of disability.” This is 13
aimed at requirements that discriminate against people with 14
disabilities, such as when a public entity refuses to do 15
business with a person who has a disability. See, e.g., ADA 16
TAM II-3.7100, available at 17
http://www.ada.gov/taman2.html#II-3.7100 (last accessed June 18
20, 2012). Plaintiffs raise no such claim against the TLC. 19
Finally, plaintiffs argue that Section 35.130(b)(6) 20
(discussed at length above) governs their claim because it 21
(in part) prohibits “a public entity [from] establish[ing] 22
requirements for the programs or activities of licensees or 23

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25
certified entities that subject qualified individuals with 1
disabilities to discrimination on the basis of disability.” 2
An example of such discrimination would be denying licenses 3
to transportation companies that employ individuals with 4
disabilities, which causes discrimination against 5
prospective employees who are otherwise qualified. ADA TAM 6
II-3.7200. The TLC licensing scheme is distinguishable on 7
the elementary ground that it does not cause discrimination. 8
Instead, plaintiffs contend that the TLC violates the 9
ADA because it could require more taxis to be accessible, 10
but does not. The TLC’s licensing requirements do not 11
discriminate and do not cause anyone else to discriminate, 12
by licensing or otherwise. The TLC’s licenses do not bar 13
taxi owners from operating accessible vehicles. The only 14
medallions that specify whether the taxi must be accessible 15
specify that the taxi operated pursuant to that license be 16
accessible. No doubt, more such taxis would be on the 17
streets if the TLC required more of them to be accessible. 18
But the TLC’s failure to use its regulatory authority does 19
not amount to discrimination within the meaning of the ADA 20
or its regulations. 21
22
23

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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
V 1
It may be that there is a failure to provide meaningful 2
access to taxis for persons with disabilities. But if so, 3
it is a failure of the taxi industry in New York City. 4
Plaintiffs do not--and cannot--bring such a claim against 5
the taxi industry directly under Title III of the ADA (which 6
governs private entities), because Title III expressly 7
exempts taxi providers from purchasing or leasing 8
“accessible automobiles.” 49 C.F.R. § 37.29(b). 8
9
Plaintiffs assert their claim under Title II(A), but 10
Title III is instructive nevertheless. Plaintiffs contend 11
that the TLC violates the ADA because the industry it 12
pervasively regulates fails to afford meaningful access to 13
persons with disabilities. But since the taxi industry 14
itself is exempt, there is no underlying violation of the 15
ADA for the TLC to redress by regulation. The district 16
court, which has held that the TLC must increase the number 17
of handicap-accessible taxis, has thus run counter to the 18

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27
policy choice of the political branches, which exempted the 1
taxi industry from the ADA. 2
This was a problem of which the district court was all 3
too aware. Discussing plaintiffs’ Title II(B) claim, the 4
district court observed: 5
Title III cannot be read as exempting taxicab 6
owners from any requirement that they purchase 7
wheelchair accessible automobiles, but at the same 8
time have intended that subtitle B of Title II 9
impose such a personal obligation based solely on 10
the extent of the control of the public regulatory 11
agency. The effect would be to impose an 12
obligation on those private owners under subtitle B 13
of Title II that Congress explicitly intended to 14
exempt under Title III. Congress had the same 15
power to require regulated private owners providing 16
taxi service to purchase wheelchair accessible 17
automobiles under Title III, and chose not to do 18
so. 19
Noel, 2011 WL 6747466, at *6. 20
That sound reasoning applies with equal force to 21
plaintiffs’ Title II(A) claim. If the TLC is required under 22
Title II(A) to ensure that the taxi industry provides a 23
sufficient number of accessible taxis, then private taxi 24
owners would be required to purchase or lease accessible 25
taxis even though the ADA explicitly exempts them from such 26
requirements. 49 C.F.R. § 37.29(b). The exemption compels 27
the conclusion that the ADA, as a whole, does not require 28
29

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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
the New York City taxi industry to provide accessible 1
taxis.9
2
* * * 3
In sum, Title II(A) does not obligate the TLC to use 4
its licensing and regulatory authority over the New York 5
City taxi industry to require that taxi owners provide 6
meaningful access to taxis for persons with disabilities. 7
The district court therefore erred in granting summary 8
judgment for plaintiffs on their Title II(A) claim and in 9
entering a temporary injunction premised on that grant of 10
summary judgment. See Abrahams, 644 F.3d at 115 (holding 11
that “[a] district court abuses its discretion when it[, 12
inter alia,] rests its decision on an error of law”). 13
14

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29
CONCLUSION 1
Accordingly, the district court’s temporary injunction 2
is vacated. The case is remanded with instructions for the 3
district court to grant summary judgment to defendants on 4
the Title II(A) claim and for further proceedings consistent 5
with this opinion. 6

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