                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE NINTH CIRCUIT
                                                                            MAR 30 2017
                                                                        MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
SPEED’S AUTO SERVICES GROUP,                     No.   14-35608
INC., DBA Towncar.com, an Oregon
Corporation; FIESTA ENTERPRISES,                 D.C. No. 3:12-cv-00738-AC
LLC, DBA Fiesta Limousine, an Oregon
Limited Liability Company,
                                                 MEMORANDUM*
               Plaintiffs-Appellants,

          v.

CITY OF PORTLAND, OREGON,

               Defendant-Appellee.

                    Appeal from the United States District Court
                             for the District of Oregon
                    John V. Acosta, Magistrate Judge, Presiding

                        Argued and Submitted March 6, 2017
                                 Portland, Oregon

Before: FISHER and FRIEDLAND, Circuit Judges, and MAHAN, District
        Judge.**




      *
       This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
         The Honorable James C. Mahan, United States District Judge for the
District of Nevada, sitting by designation.
      Speed’s Auto Services Group and Fiesta Enterprises appeal the district

court’s entry of judgment for the City of Portland on their substantive due process

and equal protection claims challenging certain wait time and minimum fare

regulations imposed by the City. We have jurisdiction under 28 U.S.C. § 1291,

and we affirm.

      1. Assuming without deciding the challenged regulations qualify as a

“complete prohibition” under Dittman v. California, 191 F.3d 1020, 1029 (9th Cir.

1999), the plaintiffs’ substantive due process claim fails because the City has

offered a “conceivable basis” for the wait time and fare rules. Id. at 1031 (quoting

Lupert v. Cal. State Bar, 761 F.2d 1325, 1328 (9th Cir. 1985)). The City’s

conceivable rationales include the need to maintain a healthy transportation market

and to ensure the operators of each type of for-hire transportation remain

economically viable.

      The plaintiffs contend these rationales are a pretext for the regulations’ true

purpose of pure economic protectionism, but “[i]n our substantive due process

decisions regarding occupational liberty, we [have] not question[ed] whether the

government’s proffered justification was a pretext.” Engquist v. Or. Dep’t of

Agric., 478 F.3d 985, 999 n.8 (9th Cir. 2007), aff’d, 553 U.S. 591 (2008). We

“merely look to see whether the government could have had a legitimate reason for


                                          2
acting as it did.” Dittman, 191 F.3d at 1031 (quoting Halverson v. Skagit County,

42 F.3d 1257, 1262 (9th Cir. 1995)). Because the City has offered conceivable,

legitimate reasons for the regulations, the plaintiffs’ substantive due process claim

fails.

         2. The plaintiffs’ equal protection challenge to the minimum fare and wait

time regulations also fails, because even assuming taxis and sedans are similarly

situated for equal protection purposes, the regulations survive rational basis

scrutiny. “[T]he classification at issue [here] does not involve fundamental rights

or suspect classes, [so] it must be upheld ‘if there is a rational relationship between

the disparity of treatment and some legitimate governmental purpose.’”

Kahawaiolaa v. Norton, 386 F.3d 1271, 1279 (9th Cir. 2004) (quoting Heller v.

Doe, 509 U.S. 312, 319-20 (1993)). The plaintiffs bear the “‘burden[, as] the

one[s] attacking the legislative arrangement[,] to negative every conceivable basis

which might support it.’” Id. at 1280 (emphasis added) (quoting Heller, 509 U.S.

at 320).

         Here, although the plaintiffs are correct that “mere economic protectionism

for the sake of economic protectionism is irrational with respect to determining if a

classification survives rational basis review,” they have not adequately alleged that

the wait time and fare rules, in fact, constituted “mere economic protectionism.”



                                           3
Merrifield v. Lockyer, 547 F.3d 978, 991 n.15 (9th Cir. 2008); cf. Squaw Valley

Dev. Co. v. Goldberg, 375 F.3d 936, 946 (9th Cir. 2004) (“[A]n equal protection

plaintiff may [pursue an equal protection claim] by creating a triable issue of fact

that either: (1) the proffered rational basis was objectively false; or (2) the

defendant actually acted based on an improper motive.”), overruled on other

grounds by Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005). To the contrary,

the regulations formed part of a complex regulatory framework that conferred

certain benefits on the taxi industry but also imposed significant burdens – burdens

not borne by other point-to-point transportation operators. Thus, viewed in

context, the City’s differential treatment of sedans and taxis here was not a “naked

attempt to raise a fortress protecting [one subsection of an industry at the expense

of another].” Merrifield, 547 F.3d at 992 (alteration in original) (quoting

Craigmiles v. Giles, 312 F.3d 220, 229 (6th Cir. 2002)). Instead, it was rationally




                                            4
related to the City’s legitimate interest in maintaining a healthy and well-

functioning transportation market.1 The equal protection claim therefore fails.

      AFFIRMED.




      1
         Several other circuits have rejected similar equal protection challenges on
comparable reasoning. See, e.g., Greater Hous. Small Taxicab Co. Owners Ass’n
v. City of Houston, Tex., 660 F.3d 235, 240 (5th Cir. 2011) (upholding regulations
that allegedly favored “full-service” taxi companies over companies providing
more limited services because “there is no real dispute that promoting full-service
taxi operations is a legitimate government purpose under the rational basis test”);
Exec. Town & Country Servs. v. City of Atlanta, 789 F.3d 1523, 1527 n.8, 1528
(11th Cir. 1986) (upholding regulations that allegedly favored taxis over sedans
because they were conceivably designed to maintain a healthy transportation
market); see also Kan. City Taxi Cab Drivers Ass’n, LLC v. City of Kansas City,
Mo., 742 F.3d 807, 809-11 (8th Cir. 2013) (upholding laws that favored existing
taxi companies over newly formed ones because they served the city’s legitimate
interests in maintaining a high quality taxi industry).

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