Integrity Collision Ctr. v. City of Fulshear

• Citation: 837 F.3d 581
• Decision Date: 20 September 2016
• Docket Number: No. 15-20560,15-20560
• Parties: Integrity Collision Center ; Buentello Wrecker Service, Plaintiffs–Appellees, v. City of Fulshear, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

837 F.3d 581

Integrity Collision Center ; Buentello Wrecker Service, Plaintiffs–Appellees,

v.City of Fulshear, Defendant–Appellant.

No. 15-20560

United States Court of Appeals, Fifth Circuit.

FILED September 20, 2016

Keval M. Patel, Law Office of Keval Patel, P.C., Sugar Land, TX, Sesha Kalapatapu, Houston, TX, for Plaintiffs–Appellees.

Eric Clayton Farrar, Patricia L. Hayden, Olson & Olson, L.L.P., Houston, TX, for Defendants–Appellants.

Before KING, SMITH, and COSTA, Circuit Judges.

JERRY E. SMITH

, Circuit Judge:

The City of Fulshear, Texas, appeals an order sought by Integrity Collision Center (“Integrity”) and Buentello Wrecker Service (“Buentello”) requiring it to include them on the city's “non-consent tow list” and to develop neutral criteria for that list. We reverse and render judgment in favor of the city.

I.

After withdrawing from Fort Bend County's program in April 2012, the city established its own non-consent tow list of private companies it calls upon to tow vehicles that are to be impounded. The police chief included only two companies, Riverside Collision and A&M Automotive, thus excluding Integrity and Buentello, which are towing companies operating in the county. There was no formal process for reaching that decision.

In May 2012, Integrity and Buentello began requesting information on the requirements for being added to the list, and in January 2014 they received a response detailing the police department's requirements. To be included, the police chief required towing companies to have outside and secure inside storage facilities within ten miles of the city, a million dollars in insurance coverage, a heavy-duty wrecker, so-called “rollback-capable wreckers,” the ability to handle hazardous materials, a thirty-minute response time in the city, and background checks on their drivers. Integrity and Buentello claimed to have met all of those criteria except for the ten-mile limit, but the chief refused to include them on the list.

Discovery revealed that the chief's actual requirements for inclusion were more amorphous. The ten-mile limit was only a generalized proximity requirement, and A&M Automotive was outside that range. The chief believed a more important factor was the ability of the companies on the list to “support each other.” He explained that “the two wreckers that are satisfying the needs of what I have and what—what I need out of wrecker companies.” But he also said that he “probably” would have included a third company if it had met his requirements.

II.

Integrity and Buentello sued the city in state court in July 2014, alleging that its refusal to include them on the non-consent tow list violated the Equal Protection Clause of the Fourteenth Amendment. The city removed to federal court, and Integrity and Buentello amended the complaint to clarify that the claim was brought as a class-of-one claim under 42 U.S.C. § 1983

.

The parties filed cross-motions for summary judgment. Integrity and Buentello contended that the city had no rational basis for excluding them despite being similarly situated to companies on the list. The city maintained that the plaintiffs had no legal claim (because creating the list was a discretionary decision that was not subject to a class-of-one equal protection claim) and that there was a sufficient rational basis.

On August 28, 2015, the district court issued an “Opinion on Summary Judgment,” directing, inter alia , that “[t]he City of Fulshear must include Integrity and Buentello in its towing rotation” and granting summary judgment for them, holding that there was no rational basis for the refusal to include them on the list. Seven days later, the court entered an Initial Order on Remedy,” reading, in its entirely, as follows:

1. By 12:00 p.m. on September 9, 2015, the City of Fulshear must include Integrity Collision Center and Buentello Wrecker Service in the City's towing rotation.

2. By October 23, 2015, the City of Fulshear must publish rational, specific, and neutral criteria for other companies' admission into the towing rotation. The published criteria must be the sole consideration for admission into the towing program—enforced consistently for all applicants.

On September 28, the city filed a notice of appeal “from the Opinion on Summary Judgment entered in this action on August 28, 2015 and the Initial Order on Remedy entered September 4, 2015.”¹

III.

The parties disagree on whether we have appellate jurisdiction. There is no doubt, however, that “we have jurisdiction to determine our own jurisdiction.” Brown v. Pac. Life Ins. Co. , 462 F.3d 384, 390 (5th Cir. 2006)

.

In its opening brief, the city asserts that “[t]his is not an appeal from a final order or judgment [but] is an appeal of a preliminary injunction under 28 U.S.C. § 1292(a)

,” which gives the courts of appeals “jurisdiction of appeals from: (1) interlocutory orders of the district courts ... granting, continuing, modifying, refusing or dissolving injunctions....” In their brief, Integrity and Buentello “contend that no basis for appellate jurisdiction exists in this appeal,” reasoning that neither the Opinion on Summary Judgment nor the Initial Order on Remedy is a preliminary injunction.

Regarding their claim that nothing issued by the district court is presently appealable, Integrity and Buentello clarified, at oral argument, that they liken the Initial Order on Remedy to a discovery order, which normally would not be immediately appealable. We disagree with that explanation. “A district court ‘grant[s]’ an injunction when an action it takes is ‘directed to a party, enforceable by contempt, and designed to accord or protect some or all of the substantive relief sought in the complaint in more than a temporary fashion.’ ” In re Deepwater Horizon , 793 F.3d 479, 491 (5th Cir. 2015)

. The district court ordered the city to include Integrity and Buentello on its non-consent tow list and to develop neutral, exclusive, published criteria for that list as the remedy for its judgment of liability against the city. That order is directed at the city, is subject to enforcement by the district court, and provides substantive relief for Integrity and Buentello. It is therefore an injunction, appealable under Section 1292(a)(1), so we have appellate jurisdiction.²

IV.

The city questions the ruling that the exclusion of Integrity and Buentello from its non-consent tow list violates the Equal Protection Clause of the Fourteenth Amendment. The city contends that class-of-one equal-protection claims do not apply to the decision to exclude a company from a non-consent tow list and, if they do, the city has provided a sufficient rational basis for the exclusion. We agree.

A class-of-one equal-protection claim lies “where the plaintiff alleges that [it] has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Village of Willowbrook v. Olech , 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000)

. “Typically, a class of one involves a discrete group of people, who do not themselves qualify as a suspect class, alleging the government has singled them out for differential treatment absent a rational basis.” Wood v. Collier , No. 16–20556, 836 F.3d 534, 541, 2016 WL 4750879, at *4, 2016 U.S. App. LEXIS 16693 at *12 (5th Cir. Sept. 12, 2016). Such a theory of recovery includes “forms of state action ... which by their nature involve discretionary decisionmaking based on a vast array of subjective, individualized assessments.” Id. (quoting Engquist v. Oregon Dep't of Agric. , 553 U.S. 591, 603, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008) ).

In Engquist

, the Court held that class-of-one equal-protection claims are inapposite in the context of discretionary public-employment decisions. To that effect, in Chavers v. Morrow , 449 Fed.Appx. 411 (5th Cir. 2011) (per curiam), we summarily affirmed a holding that a class-of-one equal-protection claim “is unavailable in a ‘public employment context.’ ” Chavers v. Morrow , 2010 WL 3447687, at *5, 2010 U.S. Dist. LEXIS 89432, at *13 (S.D. Tex. Aug. 30, 2010) (citing Engquist , 553 U.S. at 594, 128 S.Ct. 2146 ). That conclusion logically applies as well to a local government's discretionary decision to include or not include a company on a non-consent tow list, where “allowing equal protection claims on such grounds ‘would be incompatible with the discretion inherent in the challenged action.’ ” Wood , 2016 WL 4750879, at *5, 2016 U.S. App. LEXIS 16693, at *13 (quoting Engquist , 553 U.S. at 604, 128 S.Ct. 2146 ). Alternatively, Integrity and Buentello's class-of-one equal-protection claim fails because they have not shown that the city had a discriminatory intent and because the city has a rational basis for excluding them.

A.

Class-of-one equal-protection claims are “an application of [the] principle” that the seemingly arbitrary classification of a group or individual by a governmental unit requires a rational basis. Engquist , 553 U.S. at 602, 128 S.Ct. 2146

. Such a potential theory of recovery is available where there is “a clear standard against which departures, even for a single plaintiff, could be readily assessed.” Id.. In Olech , 528 U.S. at 565, 120 S.Ct. 1073, the Court recognized an equal-protection claim where a municipality demanded more than double the easement onto the plaintiff's property, to connect her to the water supply, than for any other property. The physical space required for a water-line connection was measurable and allowed the Court reasonably to evaluate the municipality's decision to demand the use of more land in that single instance. “There was no indication in Olech that the zoning board was exercising discretionary authority based on subjective, individualized determinations ... however typical such determinations may be as a general zoning matter.” Engquist , 553 U.S. at 602–03, 128 S.Ct. 2146.

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