 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued September 19, 2011          Decided December 20, 2011

                         No. 10-7178

        HENRY N. DIXON AND CUONG THANH PHUNG,
                     APPELLANTS

                              v.

                   DISTRICT OF COLUMBIA,
                         APPELLEE


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:10-cv-00297)



     Gregory L. Lattimer argued the cause and filed the briefs
for appellants.
     Stacy L. Anderson, Assistant Attorney General, Office of
the Attorney General for the District of Columbia, argued the
cause for appellee. With her on the brief were Irvin B. Nathan,
Attorney General, Todd S. Kim, Solicitor General, and Donna
M. Murasky, Deputy Solicitor General.
                                 2

    Before: EDWARDS, GINSBURG,* and RANDOLPH, Senior
Circuit Judges.
   Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
     EDWARDS, Senior Circuit Judge: Appellants Henry Dixon
and Cuong Thanh Phung were arrested in 2008 and 2009,
respectively, in the District of Columbia (“the District” or
“D.C.” or “the city”) for speeding in excess of thirty miles per
hour (“mph”) above the posted speed limit. They filed this class
action on behalf of all individuals who have been arrested and
subjected to criminal penalties for such speeding in the last three
years. They allege that the District’s traffic enforcement
policies deny them the equal protection of law and thus violate
the Fifth Amendment. See Bolling v. Sharpe, 347 U.S. 497
(1954).
     Specifically, Appellants object to the District’s policy of
subjecting motorists who speed in excess of thirty mph over the
speed limit to different penalties, depending on how they are
caught. A motorist who is stopped by a police officer for
speeding over thirty mph above the speed limit is subject to
arrest, and possibly criminal prosecution and imprisonment. See
18 D.C. CODE MUN. REGS. § 2200.12 (Lexis 2009). A motorist
who is detected speeding over thirty mph above the posted speed
limit by the District’s Automated Traffic Enforcement System
(“the ATE” or “the System”) is subject to only a contestable
civil fine. See D.C. CODE § 50-2209.01–50-2209.02 (2001). In
other words, motorists speeding over thirty mph above the speed
limit face substantially stiffer penalties if they are apprehended
by police officers than if they are detected by the ATE.
    The District Court granted the District’s motion to dismiss


        *
          Judge Ginsburg took senior status after oral arguments were
heard in this case.
                                3

under Federal Rule of Civil Procedure 12(b)(6), holding that
Appellants had failed to state a claim upon which relief could be
granted. Dixon v. District of Columbia, 753 F. Supp. 2d 6
(D.D.C. 2010). In reaching this judgment, the District Court
first acknowledged that the Equal Protection Clause of the
Fourteenth Amendment applies to the District of Columbia
through the Due Process Clause of the Fifth Amendment. Id. at
8 n.1 (citing Bolling, 347 U.S. at 499). The court next posited
that the Equal Protection Clause is “essentially a direction that
all persons similarly situated should be treated alike.” Id. at 8
(quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432,
439 (1985)). The court then found that, because motorists who
are apprehended by police officers for speeding are not similarly
situated to motorists detected speeding by the ATE, the two
groups could be subjected to different penalties for the same
conduct. See id. at 8–9. The District Court thus concluded that
the District’s traffic enforcement policies do not run afoul of the
equal protection guarantee of the Fifth Amendment. Id. at 9.
     We affirm the District Court’s judgment, albeit on different
grounds. Appellants may be correct that motorists who are
stopped by police officers for speeding in excess of thirty mph
above the speed limit are similarly situated to at least some
motorists detected engaging in identical conduct by the ATE.
Their claim still lacks merit, however, because Appellants’
challenge cannot survive rational basis review. The District’s
disputed traffic enforcement policies neither burden a
fundamental right nor target a suspect class. Therefore, in
“attacking the rationality of the [District’s] legislative
classification[, Appellants] have the burden to negative every
conceivable basis which might support it.” FCC v. Beach
Commc’ns, Inc., 508 U.S. 307, 315 (1993) (citations omitted)
(internal quotation marks omitted). Appellants have not met this
burden.
                                 4

                         I. Background
A. Facts
     In 1999, the District introduced the ATE to deter speeding
violations. The System employs radars and cameras to detect
and photograph instances of speeding throughout the city. After
the ATE records a speeding violation, the Mayor’s office
automatically mails “a summons and a notice of infraction to the
name and address of the registered owner of the vehicle on file
with the Bureau of Motor Vehicle Services or the appropriate
state motor vehicle agency.” D.C. CODE § 50-2209.02(b). The
captured image is treated as “prima facie evidence of an
infraction and may be submitted without authentication.” Id. §
50-2209.01(b). Upon receipt of the notice and summons, the
owner of the vehicle becomes liable for the payment of a civil
fine assessed for the infraction, “unless the owner can furnish
evidence that the vehicle was, at the time of the infraction, in the
custody, care, or control of another person.” Id. § 50-
2209.02(a). The owner of the vehicle may also request a
hearing to challenge the infraction. Id. § 50-2209.02(c). It
appears that no other penalties may be imposed against a
motorist for any speeding violations detected by the ATE.
     Speeding motorists also may be apprehended by officers of
the Metropolitan Police Department (“MPD”). Indeed, for
nearly two decades, a MPD General Order has required officers
to effectuate arrests of motorists who operate their vehicles
“over 30 mph in excess of the posted speed limit.” METRO.
POLICE DEP’T, GENERAL ORDER 303.1, at 4 (1992), available at
http://www2.justiceonline.org/dcmpd/GO30301.pdf. A District
regulation further provides that such motorists may be subject to
criminal prosecution, and, upon conviction, a fine of $300 or
imprisonment for up to ninety days. 18 D.C. CODE MUN. REGS.
§ 2200.12.
    A MPD officer caught Appellant Dixon speeding in excess
                                 5

of thirty mph above the speed limit in 2008. Compl. ¶ 14,
reprinted in Joint Appendix (“J.A.”) 3. Dixon was arrested and
detained for several hours. Id. He faced a maximum
punishment of a $300 fine or ninety days of incarceration. Id.
A MPD officer caught Appellant Phung speeding more than
thirty mph above the speed limit in 2009. Id. ¶ 15. Phung was
also arrested and detained, and he faced the same potential
penalties. Id. Appellants filed this class action on behalf of
allegedly thousands of individuals who have been subjected to
arrest and criminal prosecution for speeding over thirty mph
beyond the limit in the last three years. See id. ¶¶ 2, 16, 17.
They assert that many other motorists, who have been detected
engaging in identical conduct by the ATE, have faced only civil
fines. The District does not dispute this. Finally, Appellants
argue that the District’s policy of subjecting motorists to
disparate punishment based on the method of detection violates
the equal protection guarantee of the Fifth Amendment. Id. ¶ 4;
see also Bolling, 347 U.S. at 499. They seek declaratory and
remedial injunctive relief, damages, fees, and costs. Compl. ¶
4.
B. Proceedings Before the District Court
       The District Court granted D.C.’s motion to dismiss for
failure to state a claim. The District Court stated that “[t]he
threshold inquiry in evaluating an equal protection claim
is . . . to determine whether a person is similarly situated to those
persons who allegedly received favorable treatment.” Dixon,
753 F. Supp. 2d at 8–9 (first alteration in original) (quoting
Women Prisoners of the D.C. Dep’t of Corr. v. District of
Columbia, 93 F.3d 910, 924 (D.C. Cir. 1996) (internal quotation
marks omitted)). The District Court found that motorists in
Appellants’ class – those who are caught speeding by MPD
officers – are dissimilar to motorists detected speeding by the
ATE. The District Court thus concluded that the District’s
traffic enforcement policies do not violate the equal protection
                               6

guarantee of the Fifth Amendment. See id. at 9. The District
Court reasoned that when an officer directly observes a speeding
motorist, that officer, by virtue of direct observation, has
probable cause to effectuate a warrantless arrest of the motorist
in the speeding vehicle. See id. In contrast, according to the
District Court, when the ATE detects and records a speeding car
through the use of radars and cameras, the police lack probable
cause to effectuate a warrantless arrest, because no officer is
present to confirm that the vehicle’s owner was the actual driver
who committed the infraction. See id. Based on this logic, the
District Court dismissed Appellant’s equal protection claim.
     On appeal, Appellants contend that the District Court’s
judgment must be reversed, because it is entirely predicated on
a faulty factual premise – viz. a motorist detected by the ATE
cannot be arrested without a warrant, because there was no
witness to his or her speeding violation. As Appellants point
out, this premise does not always hold. The ATE employs both
fixed-location cameras and mobile units of specifically trained
officers equipped with radars and cameras. See Metro. Police
Dep’t, Automated Speed Enforcement FAQs, http://mpdc.dc.gov/
mpdc/cwp/view,a,1240,q,547977,mpdcNav_GID,1552,mpdc
Nav,|31886|.asp (last visited Dec. 6, 2011), reprinted in J.A.
30–31. When a speeding vehicle is detected by fixed-location
cameras, there is no officer who witnesses the speeding
violation. But when a speeding vehicle is detected by a mobile
radar unit, an officer of that unit is, at least arguably, in a
position to abandon his or her station and equipment, pursue the
speeding vehicle, and thereby attain probable cause to effectuate
a warrantless arrest of the driver.
     Appellants and the class they represent therefore appear to
be similarly situated to motorists whose speeding is captured by
members of the ATE’s mobile radar units: Both groups of
motorists could be directly observed by police officers, and,
consequently, both could be subject to warrantless arrest. But
                                7

only those motorists who are observed speeding by police
officers who are not members of mobile radar units are actually
pursued, arrested, and subjected to criminal sanctions. And in
Appellants’ view, it is a violation of the equal protection
guarantee for the MPD to arrest speeding motorists who speed
in excess of thirty mph over the speed limit and are observed by
an officer without a camera – i.e., a traditional MPD officer –
but not to arrest speeding motorists who speed in excess of thirty
mph over the speed limit and are observed by an officer with a
camera – i.e., a member of a mobile radar unit.
                          II. Analysis
A. Standard of Review
     “We review a dismissal for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6) de novo.” Atherton v.
D.C. Office of the Mayor, 567 F.3d 672, 681 (2009) (citation
omitted). A complaint must provide “a short and plain
statement of the claim showing that the pleader is entitled to
relief.” FED. R. CIV. P. 8(a)(2). “[W]hen ruling on a defendant’s
motion to dismiss, a judge must accept as true all of the factual
allegations contained in the complaint.” Atherton, 567 F.3d at
681 (alteration in original) (citation omitted). But the pleader
must still provide “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not
do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citation omitted). Thus, as the Supreme Court recently
established, “[t]o survive a motion to dismiss, a complaint
must . . . state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citation
omitted) (internal quotation marks omitted).
B. Equal Protection
    “[I]f a law neither burdens a fundamental right nor targets
a suspect class, we will uphold the legislative classification so
long as it bears a rational relation to some legitimate end.”
                                 8

Romer v. Evans, 517 U.S. 620, 631 (1996) (citation omitted).
And as the Supreme Court explained in FCC v. Beach
Communications,
    [w]hether embodied in the Fourteenth Amendment or
    inferred from the Fifth, equal protection is not a license for
    courts to judge the wisdom, fairness, or logic of legislative
    choices. In areas of social and economic policy, 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.
508 U.S. at 313 (citations omitted).
      Appellants do not seriously dispute that their claim must be
reviewed under the highly deferential rational basis standard.
There is no allegation here that the District’s classification
targets a suspect class. And while the Appellants imply that
their claim involves the fundamental liberty of free mobility,
“[t]he law of this land does not recognize a fundamental right to
freedom of movement when,” as here, “there is probable cause
for arrest.” Hedgepeth v. Washington Metro. Area Transit
Auth., 386 F.3d 1148, 1156 (D.C. Cir. 2004) (citation omitted).
Thus, the District’s policy is subject to rational basis review, and
it is entitled to a presumption of rationality. See, e.g., Tate v.
District of Columbia, 627 F.3d 904, 910 (D.C. Cir. 2010)
(noting that a government “classification is accorded a strong
presumption of validity,” and, thus, “[t]he burden is on the one
attacking the [governmental] arrangement to negative every
conceivable basis which might support it, whether or not the
basis has a foundation in the record” (alterations in original)
(citation omitted) (internal quotation marks omitted)).
    In order to defeat the District’s motion to dismiss their
equal protection claim, Appellants “must allege facts sufficient
                                 9

to overcome the presumption of rationality that applies to
government classifications.” Wroblewski v. City of Washburn,
965 F.2d 452, 460 (7th Cir. 1992). And they must offer more
than a “conclusory assertion that the policy is ‘without rational
basis.’” Id. Appellants have failed to satisfy this burden.
     There is no question that D.C. has a legitimate interest in
deterring speeding to ensure public safety. Moreover, it is
rational for D.C. to conclude that it can best achieve this interest
through the combination of individualized, targeted enforcement
– i.e., officer stops – and widespread enforcement – i.e., ATE
monitoring. What Appellants object to is that motorists who
commit the same violation face strikingly different penalties.
The imposition of different penalties against similarly situated
motorists survives rational basis review, however, because each
penalty advances the District’s deterrence interest in a different
way and at a different cost. In addition, the variable
enforcement scheme increases the likelihood that speeding
motorists will be detected, and, as a result, it serves as a greater
deterrent to violations of traffic laws.
     The threat of officer stops deters speeding, because such
stops can result in the imposition of relatively strong sanctions.
An individual officer can catch only so many speeding
motorists. But when an officer witnesses a speeding motorist,
that officer has probable cause to effectuate a warrantless arrest.
See Virginia v. Moore, 128 S. Ct. 1598, 1604 (2008) (“In a long
line of cases, we have said that when an officer has probable
cause to believe a person committed even a minor crime in his
presence . . . arrest is constitutionally reasonable.” (citations
omitted)). The officer may decide to undertake the arrest purely
because of the motorist’s speeding, or because of the officer’s
suspicion that something else is afoot. But in any event, if the
speeding motorist is apprehended, he or she faces arrest, the
possibility of prosecution, and, upon conviction, a criminal fine
or imprisonment. 18 D.C. CODE MUN. REGS. § 2200.12. It is
                                10

precisely the severity of such sanctions that can be expected to
deter some motorists from speeding. Thus, taking into account
the relatively low risk of detection, the District may rationally
assume that individual stops will not effectively deter speeding
violations, if potential violators know that they will face nothing
more than civil fines.
     ATE monitoring poses a different calculus for police
officers and motorists. When the ATE detects a speeding
vehicle, it automatically directs a civil fine to the owner of that
vehicle. See D.C. CODE § 50-2209.02(a)–(b). Because the ATE
does not require police officers to pursue, detain, or arrest
speeding motorists, it is axiomatic that the District’s use of this
enforcement system substantially increases the number of
speeding motorists who will be detected and face a monetary
penalty. It is true that the owner of a vehicle who receives a
citation may request a hearing to demonstrate that he or she was
not driving the car when the speeding violation occurred. Id. §
50-2209.02(c). But the District has good reason to assume that
most persons who are cited via the ATE will not contest the fine,
either because they are actually guilty of speeding or because
objecting is not worth the aggravation.
    Furthermore, the District may rationally assume that it
would be too expensive and less effective for the city to pursue
criminal sanctions, as opposed to civil fines, through the ATE.
On the one hand, it is questionable whether there would be
probable cause to arrest the owners of vehicles that are detected
speeding via the ATE, because the detection system – consisting
of manned and unmanned radars and cameras – does not
automatically identify who is driving the speeding vehicle, only
who owns that vehicle. Therefore, if the District sought to
impose criminal sanctions, instead of civil fines, based on ATE
detection, either more police officers would be required to invest
more time in preparing arrest warrants, or members of mobile
radar units would have to pursue speeding motorists, thereby
                                 11

potentially compromising the ATE’s goal of widespread,
systematic, and low-cost detection. On the other hand, even if
ATE detections, without more, might give police officers
probable cause to arrest the owners of speeding vehicles, it is
fair to assume that more vehicle owners would challenge the
citations than do currently, and these challenges would likely
increase administrative costs for the District.
     Finally, there can be little doubt that the city is justified in
assuming that its variable enforcement scheme deters more
motorists from speeding than does an enforcement scheme that
relies solely on targeted enforcement through officer stops.
Motorists in D.C. now know that even if the risk of getting
stopped for speeding by an officer is relatively low, they still
face the higher risk of ATE detection and civil fines. The
District is also justified in assuming that its scheme deters more
motorists from speeding than does an enforcement scheme that
relies solely on civil citations. All motorists must account for
the background risk that speeding may result in arrest and
potentially either a criminal fine or imprisonment. The District
has decided that the best way to deter speeding is through the
creation of some variability and uncertainty in the city’s
enforcement schemes. The wisdom of such a determination is
not the appropriate subject of equal protection review.
                         III. Conclusion
     In sum, the District of Columbia’s different treatment of
motorists stopped by an officer for speeding in excess of thirty
mph above the speed limit and motorists civilly cited for the
same conduct via the ATE does not violate the equal protection
guarantee of the Fifth Amendment. The District’s policy is
rationally related to a legitimate governmental interest in
efficiently deterring violations of speed limits. Accordingly, we
affirm the judgment of the District Court.
                                                        So ordered.
