El-Nahal v. Yassky

• Decision Date: 26 August 2016
• Docket Number: August Term 2014,No. 14–405–cv,14–405–cv
• Parties: Hassan El–Nahal, individually and on behalf of all others similarly situated, Plaintiff–Appellant, v. David Yassky, Commissioner Matthew Daus, Michael Bloomberg, The City of New York, Defendants–Appellees.
• Court: U.S. Court of Appeals — Second Circuit

835 F.3d 248

Hassan El–Nahal, individually and on behalf of all others similarly situated, Plaintiff–Appellant,

v.David Yassky, Commissioner Matthew Daus, Michael Bloomberg, The City of New York, Defendants–Appellees.

No. 14–405–cv

August Term 2014

United States Court of Appeals, Second Circuit.

Argued: December 11, 2014

Decided: August 26, 2016

Daniel L. Ackman , Law Office of Daniel L. Ackman, New York, N.Y., for Plaintiff–Appellant.

Elizabeth S. Natrella , for Zachary W. Carter, Corporation Counsel of the City of New York (Richard Dearing, Pamela Seider Dolgow, on the brief), New York, N.Y., for Defendants–Appellees.

Before: Pooler, Livingston, and Droney, Circuit Judges.

Judge Pooler

concurs in part and dissents in part in a separate opinion.

Debra Ann Livingston

, Circuit Judge:

Plaintiff–Appellant Hassan El–Nahal (“El–Nahal”), a New York City taxi driver, brought a 42 U.S.C. § 1983

suit in the United States District Court for the Southern District of New York (Forrest, J. ), principally alleging that the New York City Taxi and Limousine Commission (“TLC”)—through Defendants-Appellees Matthew Daus, a former chairman of the TLC; David Yassky, then-chairman of the TLC; Michael Bloomberg, then-Mayor of New York City; and the City of New York (collectively, “Defendants”)—had deprived him of his Fourth Amendment rights in various ways. As relevant to this appeal, El–Nahal argued that the TLC's mandate that all New York City taxicabs install technology systems equipped with Global Positioning System (“GPS”) tracking abilities amounted to a property-based search pursuant to United States v. Jones , ––– U.S. ––––, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012), and that this search violated his Fourth Amendment rights. The District Court granted summary judgment to Defendants on all of El–Nahal's Fourth Amendment claims, including his Jones claim, which is the only issue before us on appeal. Because the record is devoid of evidence as to whether El–Nahal had any interest in a taxi at the time of an alleged trespass or physical intrusion, El–Nahal failed to make a sufficient showing on an essential element of his property-based Fourth Amendment claim and Defendants were entitled to summary judgment. Accordingly, we AFFIRM the district court's grant of summary judgment to Defendants.

I.

A. Background

The TLC is an agency of the City of New York that is tasked with the “regulation and supervision of the business and industry of transportation of persons by licensed vehicles for hire in the city.” N.Y.C., N.Y., Charter ch. 65, § 2303a. Its duties include the regulation of “rates,” “standards and conditions of service,” “[r]equirements of standards of safety and ... efficiency in the operation of vehicles and auxiliary equipment,” and the “establishment of ... [a] uniform system of accounts,” which entails “the right ... to inspect books and records and to require the submission of such reports as the commission may determine.” Id. § 2303b. Pursuant to the New York City Administrative Code, the TLC may promulgate rules as necessary to implement its authority. N.Y.C., N.Y., Code § 19–503(a).

In 2004, the TLC promulgated a rule requiring that all New York City taxicabs begin to use a Taxicab Technology System (“TTS”), a physical device located in the backseat of taxicabs that would, among other things, provide credit and debit card payment services for customers, as well as transmit to the TLC electronic data about trips made by taxi drivers gathered by means of GPS. See N.Y.C., N.Y., Rules tit. 35, § 1-01 (2010). Through the TTS, the TLC would collect—only when drivers were on duty—“the taxicab license number; the taxicab driver's license number; the location of trip initiation; the time of trip initiation; the number of passengers; the location of trip termination; the time of trip termination; the metered fare for the trip; and the distance of the trip.” Id. § 3–06(b). Prior to the implementation of the TTS rule, the TLC required drivers to provide this same information in the form of handwritten trip records. The TTS rule mandated that taxicab medallion owners procure TTSs in their taxis by August 1, 2007. Id. § 1–11(g).

Around the same time as the TLC promulgated the TTS rule, the TLC also established a new system for taxi fare “rate codes,” corresponding to different types of fares a taxi driver may charge. Rate Code 1, for instance, is the standard New York City rate and is used for fares from point-to-point within New York City. Rate Code 4, meanwhile, doubles the fare for each additional unit driven, and may be engaged by a taxi driver only under certain circumstances upon entering Nassau or Westchester County.

In March 2010, the TLC issued a press release announcing that it had discovered that some taxicab drivers were using the Rate Code 4 setting to overcharge passengers. “Using GPS technology installed in taxicabs,” the press release explained, the “TLC has discovered 1,872,078 trips where passengers were illegally charged the higher rate” by 35,558 drivers for a total of $8,330,155 in alleged overcharges. J.A. 135. The press release qualified this finding by noting that “there were 361 million taxi trips during that time period, so the illegal fare was only charged in 0.5% of all trips,” and that the alleged “scam was primarily perpetrated by a small number of drivers, with 3,000 drivers overcharging more than 100 times.” Id.

Two months later, in May 2010, the TLC issued a second press release that modified its initial findings, announcing that the “TLC's completed analysis” revealed that “21,819 taxicab drivers overcharged passengers a total of 286,000 times ... for a total estimated overcharge of almost $1.1 million.” J.A. 146. The press release added that the TLC believed that 13,315 out of the 21,819 drivers had “engaged in overcharging just one or two times,” but that it expected “to be able to prove that some drivers engaged in 1,000 or more overcharges.” Id. In response to the scandal, the Manhattan District Attorney's office arrested 59 drivers “for defrauding and stealing from their customers,” J.A. 150, and the TLC programmed passenger screens to display “a highly visible alert that advises riders when the higher, out of town rate is activated,” J.A. 151. The TLC also brought administrative actions against many drivers.

Among those who faced administrative charges was El–Nahal, who at that point had been a taxi driver for more than twenty years. On January 3, 2012, the TLC sent El–Nahal a letter directing him to appear for a settlement conference in reference to allegations that he overcharged passengers on 10 occasions between November 20, 2009 and February 22, 2010 by improperly using the Rate 4 code. El–Nahal contested the allegations. On May 7, 2012, an administrative law judge found, based on trip records the TLC allegedly obtained via GPS, that El–Nahal violated the TLC's rules on six occasions. The administrative law judge thus imposed upon El–Nahal $550 in penalties and revoked El–Nahal's TLC license to drive taxis. On appeal, the Office of Administrative Trials and Hearings Taxi and Limousine Tribunal Appeals Unit (“Appeals Unit”) overturned the penalty, ruling that the administrative law judge's decision was “not supported by substantial evidence.” J.A. 187. The TLC then re-filed regarding one violation, and the administrative law judge found El–Nahal not guilty. Undeterred, the TLC re-filed five other charges against El–Nahal, and a different administrative law judge once again found El–Nahal guilty, imposed a fine, and revoked his license. El–Nahal again appealed, and the Appeals Unit again overturned the administrative law judge's decision on the ground that the administrative law judge's findings with respect to El–Nahal's alleged intent to overcharge were insufficient. Nonetheless, the TLC re-filed charges against El–Nahal once more. An administrative law judge yet again found El–Nahal guilty, based in part on GPS trip records and Google maps, and the Appeals Unit yet again reversed the decision on appeal. In reversing, the Appeals Unit dismissed the charges with prejudice and emphasized that the GPS evidence used to convict El–Nahal could not, by itself, show that El–Nahal “intended to overcharge, only that he did overcharge.” J.A. 216.

B. Procedural History

On May 31, 2013, El–Nahal filed his complaint.¹ As relevant here, the complaint alleged that “[t]he installation and use of [the] GPS device [through the TTS] ... constitutes a[n unlawful] search under the Fourth Amendment.” J.A. 34. The complaint also alleged violations of the New York Constitution, Article 78 of the New York Civil Practice Laws and Rules, the New York City Charter, and New York common law.

On August 21, 2013, Defendants moved to dismiss El–Nahal's complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6)

. Attached to the motion were seventy-two pages of exhibits. At an initial pretrial conference held on September 13, 2013, Judge Forrest converted Defendants' motion to dismiss into a motion for summary judgment and directed El–Nahal to file his opposition to Defendants' motion for summary judgment and his own motion for summary judgment by September 24, 2013. On September 24, 2013, El–Nahal cross-moved for partial summary judgment with respect to his § 1983

and New York Constitution claims, and opposed Defendants' motion for summary judgment.

By order dated January 29, 2014, the district court granted Defendants' motion for summary judgment on El–Nahal's § 1983

claim, and dismissed the state claims for lack of supplemental jurisdiction. El–Nahal v. Yassky , 993 F.Supp.2d 460, 469–70 (S.D.N.Y. 2014). The district court held that the installation and use of the TTS did not constitute a search for the purposes of the Fourth Amendment. As to whether the challenged conduct intruded on El–Nahal's reasonable expectation of privacy, the district court, citing our decision in Buliga v. N.Y.C. Taxi & Limousine Comm'n , 324...