Express Oil Change, L.L.C. v. Miss. Bd. of Licensure for Prof'l Eng'rs & Surveyors

• Decision Date: 19 February 2019
• Docket Number: No. 18-60144,18-60144
• Parties: EXPRESS OIL CHANGE, L.L.C.; TE, L.L.C., Doing Business as Tire Engineers, Plaintiffs–Appellants, v. MISSISSIPPI BOARD OF LICENSURE FOR PROFESSIONAL ENGINEERS & SURVEYORS; Terrell Temple, in Their Individual and Official Capacities as the Members of the Mississippi Board of Licensure for Professional Engineers & Surveyors; Rick Turner, in Their Individual and Official Capacities as the Members of the Mississippi Board of Licensure for Professional Engineers & Surveyors; Joseph Franklin Lauderdale, in Their Individual and Official Capacities as the Members of the Mississippi Board of Licensure for Professional Engineers & Surveyors; Joseph E. Lauderdale, in Their Individual and Official Capacities as the Members of the Mississippi Board of Licensure for Professional Engineers & Surveyors; Bennie J. Sellers, in Their Individual and Official Capacities as the Members of the Mississippi Board of Licensure for Professional Engineers & Surveyors; Dr. Dennis D. Truax, in Their Individual and Official Capacities as the Members of the Mississippi Board of Licensure for Professional Engineers & Surveyors; James Matthew Rankin, in Their Individual and Official Capacities as the Members of the Mississippi Board of Licensure for Professional Engineers & Surveyors; Joe W. Byrd, in Their Individual and Official Capacities as the Members of the Mississippi Board of Licensure for Professional Engineers & Surveyors; Shannon D. Tidwell, in Their Individual and Official Capacities as the Members of the Mississippi Board of Licensure for Professional Engineers & Surveyors, Defendants–Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

916 F.3d 483

EXPRESS OIL CHANGE, L.L.C.; TE, L.L.C., Doing Business as Tire Engineers, Plaintiffs–Appellants,

v.MISSISSIPPI BOARD OF LICENSURE FOR PROFESSIONAL ENGINEERS & SURVEYORS; Terrell Temple, in Their Individual and Official Capacities as the Members of the Mississippi Board of Licensure for Professional Engineers & Surveyors; Rick Turner, in Their Individual and Official Capacities as the Members of the Mississippi Board of Licensure for Professional Engineers & Surveyors; Joseph Franklin Lauderdale, in Their Individual and Official Capacities as the Members of the Mississippi Board of Licensure for Professional Engineers & Surveyors; Joseph E. Lauderdale, in Their Individual and Official Capacities as the Members of the Mississippi Board of Licensure for Professional Engineers & Surveyors; Bennie J. Sellers, in Their Individual and Official Capacities as the Members of the Mississippi Board of Licensure for Professional Engineers & Surveyors; Dr. Dennis D. Truax, in Their Individual and Official Capacities as the Members of the Mississippi Board of Licensure for Professional Engineers & Surveyors; James Matthew Rankin, in Their Individual and Official Capacities as the Members of the Mississippi Board of Licensure for Professional Engineers & Surveyors; Joe W. Byrd, in Their Individual and Official Capacities as the Members of the Mississippi Board of Licensure for Professional Engineers & Surveyors; Shannon D. Tidwell, in Their Individual and Official Capacities as the Members of the Mississippi Board of Licensure for Professional Engineers & Surveyors, Defendants–Appellees.

No. 18-60144

United States Court of Appeals, Fifth Circuit.

FILED February 19, 2019

Michael James Bentley, Esq., Simon Turner Bailey, Esq., Bradley Arant Boult Cummings, L.L.P., Jackson, MS, Michael J. Douglas, Esq., Leak, Douglas & Morano, P.C., Birmingham, AL, for Plaintiffs-Appellants.

Harold Edward Pizzetta, III, Esq., Special Attorney to the Attorney General, Office of the Attorney General for the State of Mississippi, Jackson, MS, for Defendants-Appellees.

Kaytie Michelle Pickett, Esq., Jones Walker, L.L.P., Jackson, MS, for Amici Curiae American Council of Engineering Companies, American Council of Engineering Companies-MS, American Society of Civil Engineers, National Society of Professional Engineers.

Before SMITH, BARKSDALE, and HO, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Mississippi regulates the practice of engineering and restricts the use of the term "engineer." Express Oil Change ("Express") operates several automotive service centers in Mississippi under the name "Tire Engineers." In 2015, the Mississippi Board of Licensure for Professional Engineers & Surveyors ("the Board") determined that the name "Tire Engineers" violated the pertinent statutes and requested that Express cease using it. Following protracted correspondence, the parties could not reach a compromise, and Express sued for a declaratory judgment and related relief. The company contended, inter alia , that the relevant statutory provisions violate the First Amendment as incorporated through the Due Process Clause of the Fourteenth Amendment. After discovery, the district court granted the Board’s motion for summary judgment and dismissed. Because the Board’s decision violates the First Amendment’s commercial speech protections, we reverse and render judgment for Express.

I.

Mississippi regulates several professions and the use of certain terms and phrases associated with those occupations. See , e.g. , MISS. CODE ANN. § 73-1-1 et seq. (West 2018). Relevant here, the state regulates the practice of engineering, id. §§ 73-13-1 to -45, and restricts, inter alia , the use of the term "engineer." Id. § 73-13-39. Violating the statute is punishable by civil and criminal penalties, including fines and imprisonment. Id. §§ 73-13-37 to -39.

Express operates a number of automotive service centers in Mississippi under the Tire Engineers mark. According to Express, Tire Engineers provides "oil changes, car repairs, and tire services—repair, maintenance, and replacement—to customers in fifteen states, including Mississippi."

In February 2015, the Board informed Express that the name Tire Engineers violated § 73-13-39 and "respectfully request[ed] that Tire Engineers change its company advertisement name in Mississippi and use an alternate title such as ‘technicians’ or ‘experts’ and that the engineer title be omitted." In June 2016, after the parties were unable to agree, Express sued, seeking a declaratory judgment and related relief on three theories: first, that the Board’s decision concerning the use of the term engineer violated Mississippi law; second, that it violated Express’s "rights of commercial free speech guaranteed by the First Amendment"; and third, that the decision violated Express’s "rights under preemptive federal trademark law [pursuant to] the Lanham Trademark Act of 1946, 15 U.S.C. §§ 1051 – 1127."

Following discovery, the parties filed cross-motions for summary judgment. The district court granted the Board’s motion and denied as moot all other pending motions. Express raises only its constitutional claim on appeal.

II.

EOC appeals the summary judgment in favor of the Board. A "court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). We review a summary judgment de novo . Pub. Citizen, Inc. v. La. Att’y Disciplinary Bd. , 632 F.3d 212, 218 (5th Cir. 2011). Where "the evidentiary facts are not disputed, a court in a nonjury case may grant summary judgment if trial would not enhance its ability to draw inferences and conclusions."¹ In cases involving cross-motions for summary judgment, "the motions are reviewed independently, with evidence and inferences taken in the light most favorable to the nonmoving party." White Buffalo Ventures , LLC v. Univ. of Tex. at Austin , 420 F.3d 366, 370 (5th Cir. 2005).

A.

"In order to safeguard life, health, and property, and to promote the public welfare," MISS. CODE ANN. § 73-13-1, the state regulates the engineering profession. Id. §§ 73-13-1 to -45. Consequently, no "person or firm [is permitted to] practice, or offer to practice, engineering in [Mississippi] without being licensed in accordance with" state law. Id . § 73-13-39.

Unless licensed in accordance with the provisions of [ §§ 73-13-1 to -45], no person shall ... [d]irectly or indirectly employ, use, cause to be used or make use of any of the following terms ... as a professional, business or commercial identification, title, [or] name ...: ‘engineer,’....

Id . In challenging that language, Express contends that the Tire Engineers trademark is protected by the First Amendment.

Although the Constitution protects commercial speech,² that protection is more limited than for most other speech. Ohralik v. Ohio State Bar Ass’n , 436 U.S. 447, 456, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978). The test for when a government actor may regulate commercial speech is as follows:

At the outset, [a court] must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, [a court] ask[s] whether the asserted governmental interest is substantial. If both inquiries yield positive answers, [a court] must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.

Cent. Hudson , 447 U.S. at 566, 100 S.Ct. 2343. "The party seeking to uphold a restriction on commercial speech carries the burden of justifying it." Bolger v. Youngs Drug Prods. Corp. , 463 U.S. 60, 71 n.20, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983). This "burden is a ‘heavy’ one," Pub. Citizen, Inc. v. La. Att’y Disciplinary Bd. , 632 F.3d 212, 218 (5th Cir. 2011) (quoting 44 Liquormart, Inc. v. Rhode Island , 517 U.S. 484, 516, 116 S.Ct. 1495, 134 L.Ed.2d 711 (1996) ), and may not be "satisfied ‘by mere speculation or conjecture,’ " id. (quoting Edenfield v. Fane , 507 U.S. 761, 770, 113 S.Ct. 1792, 123 L.Ed.2d 543 (1993) ).

B.

"In order for commercial speech to be protected under the First Amendment, ‘it at least must concern lawful activity and not be misleading.’ " Am. Acad. of Implant Dentistry v. Parker , 860 F.3d 300, 306 (5th Cir. 2017) (quoting Cent. Hudson , 447 U.S. at 566, 100 S.Ct. 2343 ). Commercial statements that are actually or inherently misleading do not enjoy the protections of the First Amendment.³ "[A] statement is actually or inherently misleading when it deceives or is inherently likely to deceive." Joe Conte Toyota, Inc. v. La. Motor Vehicle Comm’n , 24 F.3d 754, 756 (5th Cir. 1994). Statements that are only potentially misleading, however, are safeguarded by the First Amendment.⁴ In such a case, a state actor must " ‘show[ ] that the restriction directly and materially advances a substantial state interest in a manner no more extensive than necessary to serve that interest.’ " Am. Acad., 860 F.3d at 308–09 (alteration in original) (quoting Ibanez v. Fla. Dep’t of Bus. & Prof’l Reg., Bd. of Accountancy , 512 U.S. 136, 142, 114 S.Ct. 2084, 129 L.Ed.2d 118 (1994) ).

1. Inherently Misleading

The district court found that "[Express’s] use of the name ‘Tire Engineers’ is ‘inherently likely to deceive’ Mississippi consumers to believe that the services performed at Tire Engineers are performed by tire engineers or under the supervision of tire engineers." The court ruled for the Board based on "substantial evidence" that tended to show "the term ‘tire engineers’ is used by courts, universities, tire manufacturers, tire manufacturers, general periodicals, specialized periodicals, and the general public to refer to actual engineers who have expertise in the manufacture, selection, and repair of tires."

Express asserts that the Tire...