NOT FOR PUBLICATION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
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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.”
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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
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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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