    Case: 15-20560     Document: 00513685948      Page: 1   Date Filed: 09/20/2016




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


                                  No. 15-20560
                                                                             FILED
                                                                     September 20, 2016
                                                                        Lyle W. Cayce
                                                                             Clerk

INTEGRITY COLLISION CENTER; BUENTELLO WRECKER SERVICE,
                                             Plaintiffs–Appellees,
versus
CITY OF FULSHEAR,
                                             Defendant–Appellant.




                 Appeal from the United States District Court
                      for the Southern District of Texas




Before KING, SMITH, and COSTA, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      The City of Fulshear, Texas, appeals an order sought by Integrity Col-
lision Center (“Integrity”) and Buentello Wrecker Service (“Buentello”) requir-
ing it to include them on the city’s “non-consent tow list” and to develop neutral
criteria for that list. We reverse and render judgment in favor of the city.

                                        I.

      After withdrawing from Fort Bend County’s program in April 2012, the
city established its own non-consent tow list of private companies it calls upon
    Case: 15-20560     Document: 00513685948     Page: 2   Date Filed: 09/20/2016



                                  No. 15-20560
to tow vehicles that are to be impounded. The police chief included only two
companies, Riverside Collision and A&M Automotive, thus excluding Integrity
and Buentello, which are towing companies operating in the county. There
was no formal process for reaching that decision.

      In May 2012, Integrity and Buentello began requesting information on
the requirements for being added to the list, and in January 2014 they received
a response detailing the police department’s requirements. To be included, the
police chief required towing companies to have outside and secure inside stor-
age facilities within ten miles of the city, a million dollars in insurance cover-
age, a heavy-duty wrecker, so-called “rollback-capable wreckers,” the ability to
handle hazardous materials, a thirty-minute response time in the city, and
background checks on their drivers. Integrity and Buentello claimed to have
met all of those criteria except for the ten-mile limit, but the chief refused to
include them on the list.

      Discovery revealed that the chief’s actual requirements for inclusion
were more amorphous. The ten-mile limit was only a generalized proximity
requirement, and A&M Automotive was outside that range. The chief believed
a more important factor was the ability of the companies on the list to “support
each other.” He explained that “the two wreckers that are satisfying the needs
of what I have and what―what I need out of wrecker companies.” But he also
said that he “probably” would have included a third company if it had met his
requirements.

                                       II.
      Integrity and Buentello sued the city in state court in July 2014, alleging
that its refusal to include them on the non-consent tow list violated the Equal
Protection Clause of the Fourteenth Amendment. The city removed to federal
court, and Integrity and Buentello amended the complaint to clarify that the
                                        2
     Case: 15-20560       Document: 00513685948          Page: 3     Date Filed: 09/20/2016



                                       No. 15-20560
claim was brought as a class-of-one claim under 42 U.S.C. § 1983.

       The parties filed cross-motions for summary judgment. Integrity and
Buentello contended that the city had no rational basis for excluding them
despite being similarly situated to companies on the list. The city maintained
that the plaintiffs had no legal claim (because creating the list was a discre-
tionary decision that was not subject to a class-of-one equal protection claim)
and that there was a sufficient rational basis.

       On August 28, 2015, the district court issued an “Opinion on Summary
Judgment,” directing, inter alia, that “[t]he City of Fulshear must include
Integrity and Buentello in its towing rotation” and granting summary judg-
ment for them, holding that there was no rational basis for the refusal to
include them on the list. Seven days later, the court entered an Initial Order
on Remedy,” reading, in its entirely, as follows:
    1. By 12:00 p.m. on September 9, 2015, the City of Fulshear must
    include Integrity Collision Center and Buentello Wrecker Service in the
    City’s towing rotation.
    2. By October 23, 2015, the City of Fulshear must publish rational,
    specific, and neutral criteria for other companies’ admission into the
    towing rotation. The published criteria must be the sole consideration
    for admission into the towing program―enforced consistently for all
    applicants.
On September 28, the city filed a notice of appeal “from the Opinion on Sum-
mary Judgment entered in this action on August 28, 2015 and the Initial Order
on Remedy entered September 4, 2015.” 1




       1   On October 5, 2015, the district court denied the city’s motion for stay pending
appeal, and on October 22, a motions panel of this court denied a motion for stay for a lack of
a showing of irreparable harm but explained that “[t]his denial implies no position on the
[city’s] likelihood of success on the merits.”
                                              3
    Case: 15-20560     Document: 00513685948      Page: 4    Date Filed: 09/20/2016



                                  No. 15-20560
                                        III.
      The parties disagree on whether we have appellate jurisdiction. There
is no doubt, however, that “we have jurisdiction to determine our own jurisdic-
tion.” Brown v. Pac. Life Ins. Co., 462 F.3d 384, 390 (5th Cir. 2006).

       In its opening brief, the city asserts that “[t]his is not an appeal from a
final order or judgment [but] is an appeal of a preliminary injunction under
28 U.S.C. § 1292(a),” which gives the courts of appeals “jurisdiction of appeals
from: (1) interlocutory orders of the district courts . . . granting, continuing,
modifying, refusing or dissolving injunctions . . . .” In their brief, Integrity and
Buentello “contend that no basis for appellate jurisdiction exists in this ap-
peal,” reasoning that neither the Opinion on Summary Judgment nor the Ini-
tial Order on Remedy is a preliminary injunction.

      Regarding their claim that nothing issued by the district court is pres-
ently appealable, Integrity and Buentello clarified, at oral argument, that they
liken the Initial Order on Remedy to a discovery order, which normally would
not be immediately appealable. We disagree with that explanation. “A district
court ‘grant[s]’ an injunction when an action it takes is “directed to a party,
enforceable by contempt, and designed to accord or protect some or all of the
substantive relief sought in the complaint in more than a temporary fashion.”
In re Deepwater Horizon, 793 F.3d 479, 491 (5th Cir. 2015). The district court
ordered the city to include Integrity and Buentello on its non-consent tow list
and to develop neutral, exclusive, published criteria for that list as the remedy
for its judgment of liability against the city. That order is directed at the city,
is subject to enforcement by the district court, and provides substantive relief
for Integrity and Buentello. It is therefore an injunction, appealable under




                                         4
     Case: 15-20560      Document: 00513685948         Page: 5    Date Filed: 09/20/2016



                                      No. 15-20560
Section 1292(a)(1), so we have appellate jurisdiction. 2

                                            IV.
       The city questions the ruling that the exclusion of Integrity and Buen-
tello from its non-consent tow list violates the Equal Protection Clause of the
Fourteenth Amendment. The city contends that class-of-one equal-protection
claims do not apply to the decision to exclude a company from a non-consent
tow list and, if they do, the city has provided a sufficient rational basis for the
exclusion. We agree.

       A class-of-one equal-protection claim lies “where the plaintiff alleges that
[it] has been intentionally treated differently from others similarly situated
and that there is no rational basis for the difference in treatment.” Village of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000). “Typically, a class of one in-
volves a discrete group of people, who do not themselves qualify as a suspect
class, alleging the government has singled them out for differential treatment
absent a rational basis.” Wood v. Collier, No. 16-20556, --- F.3d ---, 2016 U.S.
App. LEXIS 16693, at *12 (5th Cir. Sept. 12, 2016). Such a theory of recovery
includes “forms of state action . . . which by their nature involve discretionary
decisionmaking based on a vast array of subjective, individualized assess-
ments.” Id. (quoting Engquist v. Oregon Dep’t of Agric., 553 U.S. 591, 603
(2008)).

       In Engquist, the Court held that class-of-one equal-protection claims are
inapposite in the context of discretionary public-employment decisions. To
that effect, in Chavers v. Morrow, 449 F. App’x 411 (5th Cir. 2011) (per curiam),



       2 Having found jurisdiction to review the September 4 order as an injunction, we need
not address whether either that order or the August 28 order awarding summary judgment
is a final judgment appealable under 28 U.S.C. § 1291 in the absence of a judgment entered
as a “separate document” as required by Federal Rule of Civil Procedure 58(a).
                                             5
    Case: 15-20560     Document: 00513685948     Page: 6   Date Filed: 09/20/2016



                                  No. 15-20560
we summarily affirmed a holding that a class-of-one equal-protection claim “is
unavailable in a ‘public employment context.’” Chavers v. Morrow, 2010 U.S.
Dist. LEXIS 89432, at *13 (S.D. Tex. Aug. 30, 2010) (citing Engquist, 553 U.S.
at 594). That conclusion logically applies as well to a local government’s dis-
cretionary decision to include or not include a company on a non-consent tow
list, where “allowing equal protection claims on such grounds ‘would be incom-
patible with the discretion inherent in the challenged action.’” Wood, 2016 U.S.
App. LEXIS 16693, at *13 (quoting Engquist, 553 U.S. at 604). Alternatively,
Integrity and Buentello’s class-of-one equal-protection claim fails because they
have not shown that the city had a discriminatory intent and because the city
has a rational basis for excluding them.

                                       A.
      Class-of-one equal-protection claims are “an application of [the] princi-
ple” that the seemingly arbitrary classification of a group or individual by a
governmental unit requires a rational basis. Engquist, 553 U.S. at 602. Such
a potential theory of recovery is available where there is “a clear standard
against which departures, even for a single plaintiff, could be readily assessed.”
Id. In Olech, 528 U.S. at 565, the Court recognized an equal-protection claim
where a municipality demanded more than double the easement onto the plain-
tiff’s property, to connect her to the water supply, than for any other property.
The physical space required for a water-line connection was measurable and
allowed the Court reasonably to evaluate the municipality’s decision to de-
mand the use of more land in that single instance. “There was no indication
in Olech that the zoning board was exercising discretionary authority based on
subjective, individualized determinations . . . however typical such determina-
tions may be as a general zoning matter.” Engquist, 553 U.S. at 602–03.

      Discretionary decisions about whom to hire as an employee or a service

                                        6
     Case: 15-20560      Document: 00513685948         Page: 7    Date Filed: 09/20/2016



                                      No. 15-20560
provider do not yield the same “clear standard” by which an equal-protection
claim can be evaluated. In Engquist, id. at 603, the Court held that employ-
ment decisions
    by their nature involve discretionary decisionmaking based on a vast
    array of subjective, individualized assessments. In such cases the rule
    that people should be “treated alike, under like circumstances and con-
    ditions” is not violated when one person is treated differently from
    others, because treating like individuals differently is an accepted con-
    sequence of the discretion granted. In such situations, allowing a chal-
    lenge based on the arbitrary singling out of a particular person would
    undermine the very discretion that such state officials are entrusted to
    exercise.
The same type of “subjective, individualized assessments” go into a city’s deci-
sion to purchase services from private companies for its non-consent tows. 3
There are measurable factors, such as proximity, insurance coverage amounts,
and types of equipment, to be sure. There are also equally important factors
that are not reasonably measurable, such as reputation, personal experience,
and the particularities of how the city wishes to operate its non-consent tow
program.

       The police chief’s considerations as he drew up the non-consent tow list
demonstrate this well. As part of the selection process, he considered previous
experience working with the chosen companies on non-consent tows.                       He
thought it important that the towing companies be able to “work together” and
“support each other” in completing towing assignments. He concluded that two
companies were enough to satisfy the city’s non-consent needs. Those consid-
erations are a reasonable part of a purchasing decision, and the exclusion of




       3A city is a consumer of towing companies’ services when it contracts for non-consent
tows. Cardinal Towing & Auto Repair, Inc. v. City of Bedford, Tex., 180 F.3d 686, 697 (5th
Cir. 1999).
                                             7
     Case: 15-20560       Document: 00513685948          Page: 8     Date Filed: 09/20/2016



                                       No. 15-20560
some companies is an inevitable result. 4 Municipalities are not compelled by
the Equal Protection Clause, as Integrity and Buentello claim, to develop a
formal process with constitutionally measurable criteria for determining from
whom they will purchase towing services. See Engquist, 553 U.S. at 606. In
this regard, the decision is not different from the process of selecting other
outside services, such as a janitorial or pest-control service.

       Furthermore, it is impractical for the court to involve itself in reviewing
these countless discretionary decisions for equal-protection violations. Eng-
quist, 553 U.S. at 608. For example, Integrity and Buentello ask us to resolve
whether it is plausible that a city has substantially increased the number of
police officers but still requires only two companies for non-consent tows. Mak-
ing such a determination is no more practical than second-guessing the merits
of a given individual employment decision or of a decision not to use additional
janitorial companies despite an increase in the number of city buildings. The
quality and number of towing companies the city requires to conduct non-
consent tows is not for us to decide, nor is it something that the Equal Protec-
tion Clause informs. 5 As with employment, “[t]he Equal Protection Clause
does not require ‘[t]his displacement of managerial discretion by judicial



       4 Texas law imposes no standard for selecting companies for a non-consent tow list.
Texas police officers have “been given legislative authorization to tow a vehicle, [and] inher-
ent in that authorization is the right to make reasonable decisions about who is permitted to
do the towing.” Fort Bend Cty. Wrecker Ass’n v. Wright, 39 S.W.3d 421, 425 (Tex. App.―Hou-
ston [1st Dist.] 2001, no pet.). Towing companies also have no “entitlement for access to,
presence upon, or the right to control a county wrecker rotation list” as long as they “still
have a right to do business with private individuals.” Id. at 427. Integrity and Buentello do
not claim that they are prohibited from so doing.
       5 “Of course, an allegation that speeding tickets are given out on the basis of race or
sex would state an equal protection claim, because such discriminatory classifications im-
plicate basic equal protection concerns. But allowing an equal protection claim on the ground
that a ticket was given to one person and not others, even if for no discernable or articulable
reason, would be incompatible with the discretion inherent in the challenged action.”
Engquist, 553 U.S. at 604 (quoted in Wood, 2016 U.S. App. LEXIS 16693, at *13 n.33).
                                              8
     Case: 15-20560        Document: 00513685948           Page: 9     Date Filed: 09/20/2016



                                        No. 15-20560
supervision.’”     Engquist, 553 U.S. at 608–09 (quoting Garcetti v. Ceballos,
547 U.S. 410, 423 (2006)).

                                               B.
       Even if the Equal Protection Clause were applicable, Integrity and Buen-
tello do not meet the requirements for bringing such a claim. 6 They must show
that the city “treat[ed] similarly situated individuals differently for a discrim-
inatory purpose.” 7 Discriminatory intent requires that the city’s decision must
be made at least in part because of its discriminatory effect on Integrity and
Buentello rather than mere knowledge that adverse consequences will result. 8

       In the amended complaint, summary-judgment briefing, and appellate
briefing, Integrity and Buentello do not allege or offer any evidence of an intent
to discriminate, relying instead solely on the alleged arbitrariness of the



       6  Integrity and Buentello also have not satisfied the pleading requirements for a
municipal-liability claim under Section 1983. Municipal liability for a constitutional viola-
tion will lie where that violation results from an “official custom or policy” of the city. Pio-
trowski v. City of Hous., 237 F.3d 567, 579 (5th Cir. 2001).
        Integrity and Buentello challenge the single decision to exclude them from the non-
consent tow list. The city can be liable for that decision only if it was made by an official with
“final policymaking authority” as determined by state law, City of St. Louis v. Praprotnik,
485 U.S. 112, 123–24 (1988), as distinguished from “final decisionmaking authority,” Bolton
v. City of Dall., Tex., 541 F.3d 545, 548 (5th Cir. 2008). The plaintiffs have made no claim
nor provided any evidence that the police chief has final policymaking authority. Instead,
they plead that he was “acting without guidance from city officials or due consideration of
any applicable statutes, code ordinances, or Constitutional obligations,” and the city is liable
for that on a respondeat superior theory. Such a theory is not cognizable in a Section 1983
municipal-liability claim. See Praprotnik, 485 U.S. at 126.
       7 Gil Ramirez Grp., L.L.C. v. Hous. Indep. Sch. Dist., 786 F.3d 400, 419 (5th Cir. 2015);
see also Olech, 528 U.S. at 564 (“Our cases have recognized successful equal protection claims
brought by a ‘class of one,’ where the plaintiff alleges that she has been intentionally treated
differently from others similarly situated and that there is no rational basis for the difference
in treatment.”).
       8  See Gil Ramirez Grp., 786 F.3d at 419–20 (citing Personnel Adm’r of Mass. v. Feeney,
442 U.S. 256, 279 (1979)) (holding that discrimination in favor of others is insufficient, by
itself, to show that the plaintiff was discriminated against).
                                                9
    Case: 15-20560      Document: 00513685948         Page: 10    Date Filed: 09/20/2016



                                     No. 15-20560
decision. There is also no finding by the district court of discriminatory intent
but only a similar reliance on the ad hoc decisionmaking of the police chief.

       Integrity and Buentello also failed to demonstrate that there is no
rational basis upon which the city could have excluded them from the non-
consent tow list. Because there is no suspect class, the exclusion “must be up-
held against equal protection challenge if there is any reasonably conceivable
state of facts that could provide a rational basis for the classification.” Heller
v. Doe, 509 U.S. 312, 320 (1993). “Moreover, the State need not articulate its
reasoning at the moment a particular decision is made. Rather the burden is
on the challenging party to negative ‘any reasonably conceivable state of facts
that could provide a rational basis.’” Bd. of Trs. of Univ. of Ala. v. Garrett, 531
U.S. 356, 367 (2001) (quoting Doe, 509 U.S. at 320).

       The plaintiffs have not carried their burden of negating all rational bases
for the decision to exclude them. That the police chief believes he needs no
more than two companies to satisfy the city’s non-consent tow requirements is
sufficient justification to survive rational-basis review. 9

      The orders complained of are REVERSED, and a judgment of dismissal
with prejudice is RENDERED for the City of Fulshear.




      9  Although the chief acknowledged that he “probably” would have added a third towing
service to the list if any had met his requirements, there is no evidence that he ever did.
Thus, the explanation that only two towing companies are necessary remains a sufficient
conceivable rational basis, given that the city has never expanded the list.
                                            10
