                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 13-1343
                        ___________________________

Kansas City Taxi Cab Drivers Association, LLC; Gammachu Mixicha; Taddessee Erbetto

                      lllllllllllllllllllll Plaintiffs - Appellants

                                           v.

                          City of Kansas City, Missouri

                      lllllllllllllllllllll Defendant - Appellee
                                     ____________

                     Appeal from United States District Court
                for the Western District of Missouri - Kansas City
                                 ____________

                         Submitted: November 19, 2013
                           Filed: December 19, 2013
                                ____________

Before BENTON, BEAM, and SHEPHERD, Circuit Judges.
                           ____________

BENTON, Circuit Judge.

      Ordinance section 76-73 regulates the number of taxicab permits in Kansas
City, Missouri. Gammachu Mixicha, Taddessee Erbetto, and Kansas City Taxi Cab
Drivers Association, LLC (“Cab Drivers”) sued the city to overturn the ordinance.
The district court1 granted summary judgment to the City, finding the ordinance
constitutional under both the Equal Protection and Due Process clauses. Having
jurisdiction under 28 U.S.C. § 1291, this court affirms.

       A permit is required for a taxicab to pick up passengers in Kansas City,
Missouri. City of Kansas City, Mo., Code of Ordinances Sec. 76-70. In 2005, with
554 outstanding permits, the City enacted section 76-73. It decreases the number of
permits by attrition. Existing permits may be renewed. Additional permits are not
issued until the number of permits drops below 500. (The number of permits has
apparently dropped by seven to 547 between 2005 and the present.) The ordinance
also establishes a minimum permit requirement for new applicants, who must apply
for a bundle of at least ten permits. The Cab Drivers argue that these provisions
entirely exclude entrants from the taxicab market. When the number of permits
reaches 499, existing permit holders may apply for an additional permit. New
applicants must wait until the number of permits reaches 490, because they must
apply for ten permits at a time. The Cab Drivers contend that this disparate treatment
of new applicants versus existing firms is not rationally related to a legitimate
government interest. Vacco v. Quill, 521 U.S. 793, 799 (1997); Lovell v. City of
Griffin, Ga., 303 U.S. 444, 450 (1938) (“It is also well settled that municipal
ordinances adopted under state authority constitute state action . . . .”).

      This court reviews de novo a grant of summary judgment. Wenzel v.
Missouri-Am. Water Co., 404 F.3d 1038, 1039 (8th Cir. 2005). “A rational basis that
survives equal protection scrutiny also satisfies substantive due process analysis.”
Executive Air Taxi Corp. v. City of Bismark, N.D., 518 F.3d 562, 569 (8th Cir.
2008). In areas of economic policy,




      1
       The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.

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      a statutory classification that neither proceeds along suspect lines nor
      infringes fundamental constitutional rights must be upheld against equal
      protection challenge if there is any reasonably conceivable state of facts
      that could provide a rational basis for the classification. Where there are
      plausible reasons . . . our inquiry is at an end. This standard of review
      is a paradigm of judicial restraint.

FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313-14 (1993) (internal citations and
quotations omitted). “In short, the judiciary may not sit as a superlegislature to judge
the wisdom or desirability of legislative policy determinations made in areas that
neither affect fundamental rights nor proceed along suspect lines . . . .” City of New
Orleans v. Dukes, 427 U.S. 297, 303 (1976).

      The City’s stated purpose for the ordinance was insufficient demand for
taxicabs. The Cab Drivers argue that the renewal provision and minimum-permit
requirement do not rationally relate to this purpose. However, this court is not bound
to consider only the stated purpose of a legislature. United States R.R. Ret. Bd. v.
Fritz, 449 U.S. 166, 179 (1980); Barket, Levy & Fine, Inc. v. St. Louis Thermal
Energy Corp., 21 F.3d 237, 240 (8th Cir. 1994). The district court identified other
purposes: creating incentives to invest in infrastructure and increasing quality in the
taxicab industry. The renewal provision and minimum-permit requirement are
rationally related to these purposes. Existing firms may invest knowing the number
of permits they will hold in the future. Low-quality single-cab firms are avoided. See
Greater Houston Small Taxicab Co. Owners Ass’n v. City of Houston, Tex., 660
F.3d 235, 240 (5th Cir. 2011) (“[T]he larger the taxi company, the more likely it is to
offer a broader range of services that better serve consumer needs.”).

       While these provisions favor existing firms, they are constitutionally
permissible. See Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 468 (1981)
(“The fact that the legislature in effect ‘grandfathered’ paperboard containers, at least
temporarily, does not make the Act’s ban on plastic nonreturnables arbitrary or
irrational.”); Dukes, 427 U.S. at 305 (“It is suggested that the ‘grandfather provision,’

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allowing the continued operation of some vendors was a totally arbitrary and
irrational method of achieving the city’s purpose. . . . [T]he city could rationally
choose initially to eliminate vendors of more recent vintage.”); Red River Serv. Corp.
v. City of Minot, N.D., 146 F.3d 583, 591 (8th Cir. 1998) (“The preference created
for existing customers does no more than recognize and protect their reliance
interest.”); National Collegiate Athletic Ass’n v. Governor of N.J., 730 F.3d 208,
239-40 (3d Cir. 2013):

      While Appellants contend that Dukes and Clover Leaf Creamery support
      their position because they upheld temporary grandfathering clauses,
      there was no indication in either case that the clauses upheld were
      indeed temporary, that the legislatures were obligated to rescind them
      in the future, or even that the supposedly temporal quality of the laws
      was the basis of the Court’s holdings, other than a statement in passing
      in Dukes that the legislature had chosen to “initially” target only a
      particular class of products.

       While rational basis review is not toothless, Mathews v. Lucas, 427 U.S. 495,
510 (1976), the authority cited by the Cab Drivers is not persuasive. Some cases are
non-economic in nature. E.g., Romer v. Evans, 517 U.S. 620, 635 (1996)
(classification based on sexual orientation); City of Cleburne, Tex. v. Cleburne
Living Ctr., 473 U.S. 432, 449-50 (1985) (classification of the mentally
handicapped); Reed v. Reed, 404 U.S. 71, 76-77 (1971) (classification based on sex).
Others involve classifications based on residency or cutoff dates. E.g., Williams v.
Vermont, 472 U.S. 14, 27 (1985) (residency classification for motor vehicle use tax);
Hooper v. Bernalillo Cnty. Assessor, 472 U.S. 612, 623 (1985) (residency
requirements for veteran tax exemption); Delaware River Basin Comm’n v. Bucks
Cnty. Water & Sewer Auth., 641 F.2d 1087, 1090 (3d Cir. 1981) (classification based
on date of interstate compact), limited by National Collegiate Athletic Ass’n, 730
F.3d at 240 n.18 (“Nor does our decision in Delaware River Basin Commission . . .
support the notion that permanent grandfathering clauses are invalid . . . .”).




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        The Cab Drivers cite Craigmiles v. Giles, 312 F.3d 220 (6th Cir. 2002). The
court there struck down a statute requiring certification as a funeral director in order
to sell caskets. This “naked attempt to raise a fortress protecting the monopoly rents
that funeral directors extract from consumers” failed to satisfy even the “slight review
required by rational basis review.” Id. at 229. However, in the context of taxicab
regulation, the Fifth Circuit stated:

      Moreover, even if the City is motivated in part by economic
      protectionism, there is no real dispute that promoting full-service taxi
      operations is a legitimate government purpose under the rational basis
      test. Craigmiles and other cases confirm that naked economic
      preferences are impermissible to the extent that they harm consumers.
      The record here provides no reason to believe that consumers will suffer
      harm under the Ordinance.

Greater Houston Small Taxicab Co., 660 F.3d at 240. See also St. Joseph Abbey
v. Castille, 712 F.3d 215, 222-23 (5th Cir. 2013) (affirming Greater Houston Small
Taxicab Co. as to taxicabs, while following Craigmiles as to casket sales); Powers
v. Harris, 379 F.3d 1208, 1223 (10th Cir. 2004) (refusing to apply Craigmiles to “a
nearly identical” regulation of casket sales).

       “[I]n the local economic sphere, it is only the invidious discrimination, the
wholly arbitrary act, which cannot stand consistently with the Fourteenth
Amendment.” Dukes, 427 U.S. at 303-04. Section 76-73 is neither wholly arbitrary
nor invidious. It is rationally related to a number of legitimate government purposes.
The Cab Drivers bear the burden of negating “‘every conceivable basis which might
support’ the classification at issue.” Barket, 21 F.3d at 240 (quoting FCC, 508 U.S.
at 315). They have not met this burden.

                                     *******

      The judgment of the district court is affirmed.
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