NYC Cabbies Hail Decision on Due Process

     MANHATTAN (CN) – New York City cabdrivers can pursue due-process claims over a policy that suspends their licenses if they have been charged with a felony or certain types of misdemeanor, the 2nd Circuit ruled.
     The Taxi and Limousine Commission (TLC) suspension policy takes effect regardless of whether the alleged felony or misdemeanor occurred when the drivers were on duty.
     It also gives the commission power to suspend drivers who fail drug tests, even if they have do not face accusations of driving under the influence.
     In a 2008 class action, the New York City Taxi Workers Alliance and four drivers claimed that the commission suspends drivers as a default response and does not deliver on due-process guarantees at post-deprivation hearings.
     No more than a quarter of drivers suspended for criminal charges are ultimately convicted of their alleged crimes, court documents states.
     Nevertheless, U.S. District Judge Sydney Stein put the brakes on the suit in 2010.
     Almost exactly a year ago, the 2nd Circuit indicated that it was “ troubled ” that a post-suspension hearing “does nothing more than confirm the driver’s identity and the existence of a pending criminal proceeding against him.”
     The drivers’ lawyer, Daniel Ackman, called the commission’s tribunal “systematically biased’ in favor of the agency.
     “The TLC has won more than 800 cases in a row,” Ackman said in an email. “This Brezhnevian winning streak is caused by (and evidence of) the systemic bias of the TLC administrative tribunal. The TLC judges who adjudicate at revocation hearings are at-will employees of the agency and can be terminated without cause.” (Parentheses in original.)
     On Monday, a three-judge panel vacated the dismissal.
     “On remand, after such further discovery and briefing as the district court may order, the district court should consider whether the word “may” in the mandatory drug-testing rule misleadingly suggested a permissive standard rather than the mandatory one the TLC actually applied,” the order states.
     It continues: “The court should also address plaintiffs’ argument that specific TLC rules governing drugs suggested that a failed drug test would not be grounds for revocation absent a finding of addiction or on-duty use.”
     The judges added that they were seeking clarification, not a green light for drivers to take drugs off the clock.
     “To the extent the district court identifies ambiguities in the text, regulatory history expressing an intent to establish a ‘zero tolerance’ policy and a ‘drug- free driving force’ may be relevant to resolving ambiguity,” the order states.
     The order also forces Judge Stein to review the policy suspending licenses for certain criminal offense allegations.
     “Moreover, the district court should address the evidence in the record that an unpublished TLC policy imposed revocation as a per se penalty for conviction for certain offenses, including the offenses of which plaintiffs were convicted, with a hearing only to confirm the correct identity and nature of the offense,” the order states.
     Circuit Judges Joseph McLaughlin, Rosemary Pooler and Reena Raggi issued the unanimous, unsigned summary order.
     City lawyers were not immediately available to comment.

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