           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          October 22, 2009
                                     No. 09-30129
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk




NEWMAN MARCHIVE PARTNERSHIP, INC.,

                                                   Plaintiff-Appellant,

versus

KEITH HIGHTOWER, Individual Capacity;
CEDRIC GLOVER,
In His Official Capacity as Mayor of the City of Shreveport;
CITY OF SHREVEPORT,

                                                   Defendants-Appellees.




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                                No. 5:06-CV-1664




Before DAVIS, SMITH, and DENNIS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*



       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                   No. 09-30129

      Newman Marchive Partnership, Inc. (“Newman”), won judgments against
the City of Shreveport for the unpaid balance on two architectural contracts.
The city agreed to pay the principal but refused to pay judicial interest. New-
man appeals the summary judgment denying its equal protection and constitu-
tional retaliation claims. We vacate in part, reverse in part, and remand.


                                         I.
      Fifteen years ago, Newman entered into two architectural contracts with
the city to renovate Independence Stadium and to develop a “Campus Plan” for
governmental facilities. In 2002, Newman sued the city in state court on the In-
dependence Stadium contract for the unpaid balance, and the jury awarded
$251,304.34. The Louisiana Court of Appeal amended the judgment to include
legal interest from the date of judicial demand. Newman sued the city on the
Campus Plan contract and was awarded $414,200.45. The city made an uncon-
ditional tender of the principal amount of the judgments but refused to pay judi-
cial interest of $70,301.66.


                                         II.
      While simultaneously pursuing state court remedies, Newman filed this
federal suit against the city and its former mayor, Keith Hightower (jointly “the
city”), under 42 U.S.C. § 1983. Newman alleged that the refusal to pay judicial
interest violated the Equal Protection Clause of the Fourteenth Amendment and
was an unconstitutional retaliation against its exercise of the First Amendment
right to sue. The district court granted motions for summary judgment in favor
of the city, dismissing the suit in its entirety.
      Summary judgment is appropriate where “there is no genuine issue as to
any material fact and . . . the movant is entitled to judgment as a matter of law.”
F ED. R. C IV. P. 56. This court reviews summary judgments de novo. Settlement

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                                  No. 09-30129

Funding, LLC v. TransAmerica Occidental Life Ins. Co., 555 F.3d 422, 424 (5th
Cir. 2009) (citations omitted).


                                       III.
                                        A.
      Newman argues that the city violated the Equal Protection Clause of the
Fourteenth Amendment when it refused to pay judicial interest. That clause
requires that similarly-situated persons be treated alike. City of Cleburne v.
Cleburne Living Ctr., 473 U.S. 432 (1985). If claims do not involve a suspect
class or a fundamental right, courts review state action using a rational-basis
test. Differential treatment survives rational-basis scrutiny if the classification
is rationally related to achieving a legitimate government interest. Delahous-
saye v. City of New Iberia, 937 F.2d 144, 149 (5th Cir. 1991). The actual reason
for a state action is irrelevant for claims reviewed under rational-basis scrutiny
and will be upheld if “any state of facts reasonably may be conceived to justify
[its discrimination].” McGowan v. Maryland, 366 U.S. 420, 426 (1961).
      A plaintiff alleging discrimination on grounds other than membership in
a protected group may nevertheless prevail on an equal protection claim under
a “class of one” theory. Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
We review such claims under a two-prong test: The plaintiff must show (1) that
it was intentionally treated differently from others similarly situated and
(2) that there was no rational basis for the difference in treatment. Whiting v.
Univ. of S. Miss., 451 F.3d 339, 348 (5th Cir. 2006).
      The district court found that Newman had satisfied the first prong but
failed to meet the second. The court rejected all of the potential rational bases
supplied by the city but nevertheless held that refusal to pay legal interest was
rationally based on the legitimate state goal of protecting taxpayer money. Al-
though that is a laudable state objective, and refusing to pay helps to achieve it,

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the district court’s analysis is based on a misconception regarding equal protec-
tion analysis.
       To pass rational basis review, it is not sufficient for the state action merely
to serve some legitimate government purpose. Instead, there must be some ra-
tional basis for the classification, which must serve legitimate state ends. In
other words, there must be some rational basis for the government to treat an
individual or group differently from others similarly situated. City of Cleburne,
473 U.S. at 440-42.
       The objective of protecting the public fisc in no way serves to distinguish
Newman from the sixteen other judgment creditors whose judgments were paid
in full. The same can be said of the district court’s assertion that the unenforce-
ability of judgments against the city provides another rational basis for denying
this plaintiff legal interest. Neither of the supposedly rational bases offered by
the district court provides any explanation for distinguishing Newman and sub-
jecting it to differential treatment.1
       That analysis, however, does not end the inquiry. Under the rational-basis
test, the defendant does not bear the burden of demonstrating a rational basis
for its discriminating treatment. Instead, the plaintiff bears the burden of show-
ing that there is no conceivable rational basis. Bd. of Trs. of Univ. of Ala. v. Gar-
rett, 531 U.S. 356, 367 (2001). Thus, even if, as here, the explanations offered
by the city and the district court fail to pass rational-basis scrutiny, there may
be another reasonably-imaginable rationale that would survive the test. It is
Newman’s burden to show that there is none.



       1
          In the district court, the city also argued that a new city ordinance establishing a poli-
cy of not paying interest on judgments provides a rational basis on which to deny payment of
interest on the Campus Plan judgment. The court, having already found what it considered
to be a rational basis, declined to reach the merits of that argument. Because we conclude that
the rationales proposed by the court are insufficient, it may wish, on remand, to address the
new ordinance on the merits.

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                                   No. 09-30129

      Though yet more arguments supporting classification are plausible, it is
not the job of this court to invent them. The summary judgment on Newman’s
equal protection claim is based on the erroneous belief that Newman had failed
to negative the public-fisc rationale. Because that reasoning provides no explan-
ation for treating Newman’s claim differently from that of the other judgment
creditors, the summary judgment was premature. A conceivable rational basis
may still exist, however, for defendants’ actions. We thus vacate the summary
judgment on the equal protection claim and remand for further proceedings.


                                         B.
      Newman argues that the refusal to pay legal interest was in retaliation for
its exercising its constitutional right to seek judicial relief. The district court
reviewed the retaliation claim under the four-prong test in Reeves v. Wood, 206
F. App’x 368, 369 (5th Cir. 2006), under which the elements are “(1) a specific
constitutional right, (2) the defendant’s intent to retaliate against the [plaintiff]
for his or her exercise of that right, (3) a retaliatory adverse act, and (4) caus-
ation.” The court found that there was no retaliatory adverse act, because
“Newman was not deprived of a substantive or vested property right” (citing
Minton v. St. Bernard Parish Sch. Bd., 803 F.2d 129 (5th Cir. 1986)). The court
held that, because Newman had no right to enforce its judgment against the city,
the company did not suffer the requisite injury to show an adverse act.
      To the contrary, though Newman lacked a “vested property right,” it did
suffer an injury sufficient to meet the third prong of Reeves. Minton involved a
claim based on the Due Process Clause, which requires showing a deprivation
of life, liberty, or property, but the injury required to meet the “adverse act”
prong of a retaliation claim has no such threshold inquiry.
      Regardless of whether a plaintiff has a right to public funds, governments
may not deny payment based on the exercise of a constitutional right. Instead,

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the plaintiff must show only some injury that is more than de minimisSSthat is,
action that is “capable of deterring a person of ordinary firmness from further
exercising his constitutional rights.” Morris v. Powell, 449 F.3d 682, 686 (5th
Cir. 2006). A decision by a city not to pay a plaintiff interest because it has sued
the city has such potential to chill the exercise of First Amendment rights and
is therefore sufficient to satisfy the third prong.
      The district court held, in the alternative, that even if Newman satisfied
the first three prongs, its claim would fail for lack of causation. Once a prima
facie retaliation claim has been established, the burden shifts to the defendant
to show that it would have taken the same action regardless of any retaliatory
motive. Hartman v. Moore, 547 U.S. 250, 260 (2006). The district court held
that the city had satisfied that burden through deposition testimony indicating
that its actions were motivated primarily by a desire to save taxpayer money.
      There is, however, insufficient summary judgment evidence showing that
the city would have taken the same actions regardless of retaliatory animus. In
fact, the city’s discovery responses indicate that Newman’s decision to litigate
was precisely the trigger for the city’s adverse actions. Assuming, as did the dis-
trict court, that the plaintiff made out its prima facie retaliation claim, the city
failed to satisfy its summary judgment burden to show lack of causation. We
therefore reverse the summary judgment on the retaliation claim and remand
for consideration of the remaining elements of the retaliation analysis.
      For the foregoing reasons, the summary judgment on Newman’s equal
protection claim is VACATED, the summary judgment on the retaliation claim
is REVERSED, and this matter is REMANDED for further action in accord with
this opinion. We express no view on what decisions the district court should
make on remand or on the ultimate merits of any claims.




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