[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
FEBRUARY 19, 2009
No. 08-14271 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-01598-CV-T-24-TGW
MOSHE LEIB,
doing business as TB Limo.Com,
Plaintiff-Appellant,
versus
HILLSBOROUGH COUNTY PUBLIC TRANSPORTATION
COMMISSION,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(February 19, 2009)
Before MARCUS, WILSON and PRYOR, Circuit Judges.
MARCUS, Circuit Judge:
Moshe Leib (“Leib”) appeals from the district court’s dismissal of his suit,
brought under 42 U.S.C. § 1983, against the Hillsborough County Public
Transportation Commission (“HCPTC,” or “the Commission”) for denying him
permission to operate a Toyota Prius as one of the limousines offered by his
transportation service. Leib argues that the HCPTC violated his due process and
equal protection rights, and that the Commission’s rules are unconstitutionally
vague and impermissibly burden interstate commerce. The district court dismissed
Leib’s complaint under Rule 12(b)(6). After thorough review, we affirm.
I.
Leib owns and operates TB Limo.com, a limousine service in the Tampa
Bay area. Seeking to offer customers an “environmentally-friendly” alternative to
traditional limousines, Leib bought a Prius. In order to operate the Prius as a
limousine within Hillsborough County, Leib had to obtain a permit from the
HCPTC, the administrative agency charged by the Florida State Legislature with
regulating the operation of public vehicles on Hillsborough County’s public
highways. Act of May 25, 2001, Ch. 2001-299, § 2(1). The Commission denied
Leib’s request on the ground that the Prius did not qualify as a “luxury” vehicle,
and thus did not meet the definition of “limousine” in HCPTC Taxi Rule 1.15,
which states:
“Limousine” means any motor vehicle for hire not equipped with a
taximeter, with the capacity for 15 passengers or less, including the
2
driver. This definition consists of vehicles which are recognized by
the industry as “luxury” vehicles, that are considered as high-end
luxury vehicles by the manufacturer and vehicles that have been
uniquely modified so as to provide “luxury” limousine service. The
“luxury” quality of vehicles will be determined by assessing aesthetics
of the interior and exterior of the vehicle, amenities provided to the
passenger, spaciousness and comparison to current industry standards
for vehicles performing limousine service in Hillsborough County.
Leib subsequently applied for a waiver of Rule 1.15’s “luxury” requirement.
At an August 2007 meeting, however, the HCPTC considered the request and
denied it. The Commission based its decision on HCPTC Taxi Rule 15.5, which
explains the circumstances under which waivers and variances are to be granted:
Variances and waivers shall be granted when the person subject to the
rule demonstrates that the purpose of the underlying statute will be or
has been achieved by other means by the person and when application
of a rule would create a substantial hardship or would violate
principles of fairness. For purposes of this section, “substantial
hardship” means a demonstrated economic, technological, legal, or
other type of hardship to the person requesting the variance or waiver.
For purposes of this section, “principles of fairness” are violated when
the literal application of a Rule affects a particular person in a manner
significantly different from the way i[t] affects other similarly situated
persons who are subject to the Rule.1
After his waiver request was denied, Leib filed the instant suit seeking an
injunction allowing him to use his Prius as a limousine. The complaint alleges that
the Commission violated his right to earn a living under the Fifth and Fourteenth
1
The HCPTC made changes to certain of its rules that became effective on January 2,
2009. Minor changes were made to Rule 15.5’s text but none of these is important for purposes
of this opinion.
3
Amendments (Count I), and his right to equal protection under the Fourteenth
Amendment (Count II). In addition, the complaint alleges that the Commission
violated Leib’s right to due process by arbitrarily and capriciously denying his
request to use the Prius as a limousine (Count III), by exercising its police power
unlawfully (Count IV), and by granting “unbridled discretion” to administrative
officials (Count VI). Finally, Leib’s suit alleges that the Commission’s rules are
unconstitutionally vague (Count V), and that they place an unconstitutional burden
on interstate commerce (Count VII).2 Each count asserts both a facial and an as-
applied challenge to the Commission’s rules.
II.
We review de novo the district court’s grant of a Rule 12(b)(6) motion to
dismiss for failure to state a claim, accepting the allegations in the complaint as
true and construing them in the light most favorable to the plaintiff. Mills v.
Foremost Ins. Co., 511 F.3d 1300, 1303 (11th Cir. 2008).
We first reject Leib’s argument that the district court erred in dismissing his
2
In addition to the claims arising under § 1983, the complaint asserts a claim under
Florida’s Administrative Procedure Act, Fla. Stat. Ann. § 120.68. Having dismissed all of Leib’s
federal claims, the district court declined to exercise supplemental jurisdiction over his state law
claim pursuant to 28 U.S.C. § 1367. Because we affirm the district court’s dismissal of Leib’s
federal claims, we also find no abuse of discretion in the district court’s decision not to retain
jurisdiction over the state law claim. See, e.g., Parker v. Scrap Metal Processors, Inc., 468 F.3d
733, 738 (11th Cir. 2006) (district court’s decision not to exercise supplemental jurisdiction over
state law claims is reviewed for abuse of discretion).
4
equal protection claim in Count II.3 The Equal Protection Clause requires the
government to treat similarly situated persons in a similar manner. Gary v. City of
Warner Robins, Ga., 311 F.3d 1334, 1337 (11th Cir. 2002). “When legislation
classifies persons in such a way that they receive different treatment under the law,
the degree of scrutiny the court applies depends upon the basis for the
classification.” Id. If a law treats individuals differently on the basis of race or
another suspect classification, or if the law impinges on a fundamental right, it is
subject to strict scrutiny. Eide v. Sarasota County, 908 F.2d 716, 722 (11th Cir.
1990). Otherwise, the law need only have a rational basis -- i.e., it need only be
rationally related to a legitimate government purpose. Id.
Because Leib makes no allegation that he belongs to a suspect class or that
the HCPTC’s rules violate a fundamental right,4 his equal protection claim is
3
We begin with Count II of the complaint because Leib’s appeal makes no mention of
Count I (which alleged a violation of his right to earn a living under the Fifth and Fourteenth
Amendments) and we accordingly deem Count I to have been waived. Access Now, Inc. v.
Southwest Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (legal claims not briefed before
the court are deemed abandoned).
4
As noted previously, while Leib’s complaint alleges a violation of his right to earn a
living, he has abandoned that claim on appeal. The claim would have failed in any event given
our holding that employment rights do “not enjoy substantive due process protection” because
such “rights are state-created . . . , not ‘fundamental’ rights created by the Constitution.”
McKinney v. Pate, 20 F.3d 1550, 1560 (11th Cir. 1994). Nor does Leib claim that any of the
other rights invoked in his complaint are fundamental. On the contrary, all of his arguments on
appeal presuppose that his claims are subject only to rational basis review.
5
subject only to rational basis review. The rational basis test asks (1) whether the
government has the power or authority to regulate the particular area in question,
and (2) whether there is a rational relationship between the government’s objective
and the means it has chosen to achieve it. Cash Inn of Dade, Inc. v. Metro. Dade
County, 938 F.2d 1239, 1241 (11th Cir. 1991). This standard is easily met. As the
Supreme Court has held, under rational basis review, a state “has no obligation to
produce evidence to sustain the rationality of a statutory classification.” Heller v.
Doe by Doe, 509 U.S. 312, 320 (1993). Rather, a statute is presumed
constitutional, and the burden is on the one attacking the law to negate every
conceivable basis that might support it, even if that basis has no foundation in the
record. Id. Under rational basis review, a court must accept a legislature’s
generalizations even when there is an imperfect fit between means and ends. Id.
Rule 1.15 easily survives rational basis review. Because Leib does not
contest the government’s power to regulate public transportation, we need consider
only whether the Rule, and in particular its “luxury” requirement, has any rational
basis. We agree with the district court that a multitude of rational bases might be
adduced in support of the requirement. Thus, for example, without the
requirement, any old jalopy might be passed off as a limousine. The luxury
requirement is rationally related to preventing such misrepresentations and
6
confusion. Leib contends that the district court erred by failing to accept the
allegations in his complaint as true, but this is simply incorrect. Quite to the
contrary, the court concluded that, even assuming that all of his allegations were
true, Leib was unable to show that Rule 1.15 and its luxury requirement lacked a
rational basis.
We also reject the “class of one” equal protection argument asserted in
Count II alongside Leib’s traditional equal protection claim. A “class of one”
equal protection claim does not allege discrimination against a protected class, but
rather asserts that the plaintiff “has been intentionally treated differently from
others similarly situated and that there is no rational basis for the difference in
treatment.” Young Apartments, Inc. v. Town of Jupiter, Fla., 529 F.3d 1027, 1032
n.1 (11th Cir. 2008) (quoting Griffin Indus. v. Irvin, 496 F.3d 1189, 1202 (11th
Cir. 2007)). To prove a “class of one” claim, the plaintiff must show (1) that he
was treated differently from other similarly situated individuals, and (2) that the
defendant unequally applied a facially neutral ordinance for the purpose of
discriminating against him. Id. at 1045. Leib’s “class of one claim” fails to meet
either requirement.
With respect to the first prong, we have frequently noted that the “similarly
situated” requirement must be rigorously applied in the context of “class of one”
7
claims. See, e.g., Douglas Asphalt Co. v. Qore, Inc., 541 F.3d 1269, 1275 (11th
Cir. 2008); Griffin, 496 F.3d at 1207. Employing “[t]oo broad a definition of
‘similarly situated’ could subject nearly all state regulatory decisions to
constitutional review in federal court and deny state regulators the critical
discretion they need to effectively perform their duties.” Griffin, 496 F.3d at 1203.
Indeed, even in run-of-the-mill discrimination cases, we have emphasized that
plaintiffs are not permitted simply to “rely on broad generalities in identifying a
comparator.” Id. at 1204.
Furthermore, we have observed that where the challenged governmental
decision is simple or one-dimensional -- for example, where the decision involves
the application of a single criterion to a single issue -- making out a “class of one
claim” is generally easier than in cases where governmental action is
“multi-dimensional, involving varied decisionmaking criteria applied in a series of
discretionary decisions made over an extended period of time.” Id. at 1203; cf.
Engquist v. Oregon Dep’t of Agric., 128 S. Ct. 2146, 2153 (2008) (noting the
difficulty of establishing “class of one” equal protection claims where discretionary
authority is exercised “based on subjective, individualized determinations”). The
decisions at issue in this case are of the latter variety because the Commission’s
determinations concerning Rule 1.15’s “luxury” requirement involve the
8
discretionary application of a variegated set of factors (e.g., aesthetic
considerations, comparison with industry standards). In short, establishing a
“class of one” equal protection claim can be an onerous task, and properly setting
forth a “class of one” claim should not be regarded as a perfunctory matter.
Leib’s “class of one” claim undeniably falls far short of the mark. Indeed,
his complaint makes only the barest conclusory assertion that the HCPTC’s rules
“unreasonably required the Plaintiff to submit to controls not imposed on other
similarly situated businesses or properties.” Given the complaint’s complete lack
of factual detail regarding the “similarly situated” requirement, Leib’s “class of
one” claim was properly dismissed.
III.
Leib’s substantive due process claims fare no better than his equal protection
claims. Indeed, because they are so poorly developed, the substantive due process
claims fare worse. In Count III, for example, Leib asserts that the Commission’s
rules and decisions were “arbitrary and capricious.” Although Leib appears to
regard this as a straightforward substantive due process claim, the precise basis for
the “arbitrary and capricious” cause of action is uncertain. In advancing the claim,
he cites only our decision in Eide v. Sarasota County, 908 F.2d 716 (11th Cir.
1990). While Eide indeed recognized an “arbitrary and capricious due process
9
claim” as one of several closely related substantive due process claims, the dispute
at issue in that case involved a zoning ordinance. We specifically “consider[ed]
only the standards that would be applied to a claim which involves a grievance
similar to Eide’s,” and we expressly refrained from offering any “opinion as to
what the standards would be for other types of claims such as physical taking and
procedural due process claims.” Id. at 720 n.6. Leib’s failure to articulate the
basis of his arbitrary and capricious due process claim is a sufficient ground for its
dismissal. See, e.g., Tyler v. Runyon, 70 F.3d 458, 465 (7th Cir. 1995) (“[I]f an
appellant fails to make a minimally complete and comprehensible argument for
each of his claims, he loses regardless of the merits of those claims as they might
have appeared on a fuller presentation.”).
Even putting aside its uncertain doctrinal basis, Leib’s arbitrary and
capricious due process claim fails. Like equal protection claims, substantive due
process claims are subject to rational basis review, so long as they do not infringe
fundamental rights and are not discriminatory. In re Wood, 866 F.2d 1367, 1371
(11th Cir. 1989) (“The standard for evaluating substantive due process challenges
to social and economic legislation is virtually identical to the ‘rational relationship’
test for evaluating equal protection claims.”). Since the Commission’s rules
survived rational basis review for purposes of Leib’s equal protection claim, it
10
follows a fortiori that the rules survive rational basis review here as well.
Against this, Leib again contends that the district court dismissed his
arbitrary and capricious claim because it failed to accept the allegations in his
complaint as true. Specifically, he claims that the complaint’s “allegations of his
vehicle’s safety, the fact that the Prius can operate on the highways of
Hillsborough County under the ‘taxicab’ label, and the emergence of the Prius as a
limousine in major metropolitan areas, assuming such allegations are accepted as
true, show that the challenged regulations are not substantially related to the public
health, safety, morals, or general welfare.” But the test is not whether the luxury
Rule is substantially related to health, safety, or the general welfare; it is whether
the Rule is rationally related to a legitimate governmental purpose. Id. Moreover,
as explained above, Leib is simply incorrect in asserting that the district court
failed to accept his allegations as true.
IV.
The foregoing line of analysis also applies to Leib’s police power claim in
Count IV. Leib argues that the Commission unlawfully exercised its police power
by adding the “luxury” requirement to the definition of “limousine” in Rule 1.15.
It is true that the definition of “limousine” in the HCPTC’s enabling act does not
include a luxury requirement. Act of May 25, 2001, Ch. 2001-299, § 3(17)
11
(defining “limousine” as “any motor vehicle for hire not equipped with a taximeter,
with a capacity for 15 passengers or less, including the driver”). But this hardly
suggests that the requirement is contrary to the legislature’s intent. Rather, in
creating the Commission, the legislature gave it the authority to “[r]egulate and
supervise the operation of public vehicles upon the public highways and in all
other matters affecting the relationship between such operation and the traveling
public.” Id. § 5(1)(a). In adding the luxury requirement to the definition of
“limousine,” the HCPTC’s was doing precisely what it was created to do.
Leib further contends that the luxury requirement fails rational basis review,
arguing that luxury vehicles are no safer than non-luxury vehicles, and that, as a
result, there is no rational relationship between the luxury requirement and public
safety. But the Commission need not show that luxury vehicles are always safer
than other vehicles; it need only show a rational relationship between luxury and
safety (say, on the theory that luxury vehicles are generally larger and that larger
vehicles are generally safer). The Rule survives rational basis review even if it
“seems unwise . . . or if the rationale for it seems tenuous.” Romer v. Evans, 517
U.S. 620, 632 (1996). More importantly, there is no need to show that the Rule
specifically promotes safety, so long as it promotes the general welfare or some
other legitimate governmental aim. We are therefore unpersuaded by Leib’s police
12
power claim and conclude that the district court was correct to dismiss it as well.
V.
We are also unpersuaded by Leib’s claim in Count VI that Rule 15.5 gives
the Commission “unbridled discretion” in the enforcement of its rules. As noted
above, Rule 15.5 provides that “[v]ariances and waivers shall be granted when the
person subject to the rule demonstrates that the purpose of the underlying statute
will be or has been achieved by other means,” or “when application of a rule would
create a substantial hardship or would violate principles of fairness.” Leib argues
that “the purpose of the underlying statute” is too nebulous a standard to provide
any guidance in ruling upon waiver requests, and that the Rule therefore gives the
Commission unbridled discretion in making decisions. We disagree.
As an initial matter, we note once again that Leib fails to articulate the
precise nature of this claim or to indicate the way in which it differs from other
claims asserted in the complaint. Cf. Lindquist v. City of Pasadena, Tex., 525 F.3d
383, 388 (5th Cir. 2008) (although asserted independently, plaintiffs’ “unbridled
discretion” claim was not distinct from their equal protection and due process
claims). In particular, it is difficult to distinguish Leib’s “unbridled discretion”
claim from his void-for-vagueness claim. Leib’s chief argument in support of the
unbridled discretion claim is that the “purpose of the underlying statute” standard
13
is too nebulous for people of ordinary intelligence to comply with -- which, as is
discussed more fully in the next section, is the gravamen of a void-for-vagueness
claim. Yet Leib separately advances a void-for-vagueness claim in Count V the
complaint. In short, as with his arbitrary-and-capricious due process claim, Leib
has not asserted his “unbridled discretion” claim clearly enough to permit our
review. See, e.g., Tyler, 70 F.3d at 465.
Yet even on the merits, Leib’s unbridled discretion claim is unpersuasive.
His argument in support of the claim rests almost entirely on VFW John O’Connor
Post #4833 v. Santa Rosa County, Fla., 506 F. Supp. 2d 1079 (N.D. Fla. 2007).
There, a zoning ordinance provided that a requirement could be waived “upon a
proper showing,” but gave no further guidance as to what might count as such a
showing. The district court held that the “proper showing” standard was void for
vagueness because it was not “set out in terms that the ordinary person exercising
ordinary common sense can sufficiently understand and comply with.” Id. at 1092
(internal quotation omitted).
Leib argues that Rule 15.5’s “purpose of the underlying statute” waiver
standard is no more definite than the “proper showing” waiver standard of the local
zoning ordinance examined in VFW John O’Connor. We disagree. The
“underlying statute” to which Rule 15.5 alludes -- the enabling act under which the
14
HCPTC was created -- gives substance to the “purpose of the underlying statute”
standard. At the most general level, for example, the statute makes clear that the
Commission was established to ensure the orderly and efficient “operation of
public vehicles upon the public highways of Hillsborough County and its
municipalities.” See Act of May 25, 2001, Ch. 2001-299, § 2(1). Plainly, granting
waivers will be consistent with the orderly regulation of public vehicles in some
circumstances but not in others. In this case, for example, granting Leib a
dispensation from Rule 1.15’s requirements might well undermine orderly and
efficient regulation because the Prius simply does not have the features necessary
to qualify as a limousine. If Leib were granted a waiver, it is unclear why a waiver
should not be given for virtually any other vehicle.
Moreover, Leib ignores the fact that the “purpose of the underlying statute”
is only one of the criteria mentioned in Rule 15.5. The Rule goes on to say that a
waiver may be granted when application of a rule would “create a substantial
hardship” or would “violate principles of fairness.” Notably, Leib does not contest
the definiteness of either of the latter standards. Indeed, the Rule goes on to define
“substantial hardship” as “a demonstrated economic, technological, legal, or other
type of hardship to the person requesting the variance or waiver,” and to explain
that “principles of fairness” are violated “when the literal application of a Rule
15
affects a particular person in a manner significantly different from the way i[t]
affects other similarly situated persons who are subject to the Rule.” Even
assuming that the “purpose of the underlying statute” criterion left the Commission
with potentially too much discretion when considered in isolation, the
Commission’s discretion cannot be considered unbridled in light of the additional
limits imposed by the “substantial hardship” and “principles of fairness” standards.
Hence, the district court was correct in dismissing Leib’s “unbridled discretion”
claims.
VI.
For largely the same reasons, we reject Leib’s suggestion in Count V that the
term “luxury” in Rule 1.15 is unconstitutionally vague. To overcome a vagueness
challenge, statutes must “give the person of ordinary intelligence a reasonable
opportunity to know what is prohibited, so that he may act accordingly,” and “must
provide explicit standards for those who apply them.” Grayned v. City of
Rockford, 408 U.S. 104, 108 (1972)). The Supreme Court has explained that the
“degree of vagueness that the Constitution tolerates . . . depends in part on the
nature of the enactment.” Vill. of Hoffman Estates v. Flipside, Hoffman Estates,
Inc., 455 U.S. 489, 498 (1982). In particular, the Court has “expressed greater
tolerance of enactments with civil rather than criminal penalties because the
16
consequences of imprecision are qualitatively less severe.” Id. at 498-99. Indeed,
a civil statute is unconstitutionally vague only if it is so indefinite as “really to be
no rule or standard at all.” Seniors Civil Liberties Ass’n, Inc. v. Kemp, 965 F.2d
1030, 1036 (11th Cir. 1992).
Rule 1.15 is not unconstitutionally vague. Consumers and travelers have a
common-sense understanding of what counts as a “limousine” and what counts as a
“luxury” vehicle. Rule 1.15 gives these concepts even further content and meaning
by specifying additional criteria -- the vehicle’s interior and exterior aesthetics, its
spaciousness, the amenities it provides to passengers, its comparison to current
industry standards -- in terms of which “luxury” is to be judged. True, there is an
inherent degree of imprecision in making “aesthetic” judgments. But “the
Constitution does not require precision; all that is required is that the language
conveys sufficiently definite warning as to the proscribed conduct when measured
by common understanding.” This That and Other Gift & Tobacco, Inc. v. Cobb
County, Ga., 285 F.3d 1319, 1325 (11th Cir. 2002) (internal quotation marks
omitted). The Commission’s definition of “luxury” easily meets this standard.
Accordingly, the district court properly dismissed Leib’s void-for-vagueness claim.
VII.
Lastly, we reject Leib’s contention in Count VII that the HCPTC’s rules
17
impose an unreasonable burden on interstate commerce. The Constitution’s
Commerce Clause gives Congress the power to regulate commerce among the
states. U.S. Const. art. 1, § 8, cl. 3. Correlatively, “the Commerce Clause also
forbids a state or municipality from impeding the flow of goods and services across
state borders, or from favoring in-state economic interests at the expense of
out-of-state economic interests.” S. Waste Sys, LLC. v. City of Delray Beach, Fla.,
420 F.3d 1288, 1290 (11th Cir. 2005). Since prearranged public transportation
services constitute a form of interstate commerce, the HCPTC’s regulations would
be unconstitutional if they somehow burdened interstate commerce. Nat’l Solid
Wastes Mgmt. Ass’n v. Alabama Dep’t of Envtl. Mgmt., 910 F.2d 713, 719-20
(11th Cir. 1990). The first step in assessing violations of the Commerce Clause is
to consider whether the law or regulation in question represents an overt form of
protectionism, in which case the measure is generally invalid per se. City of
Philadelphia v. New Jersey, 437 U.S. 617, 624 (1978). However, where a statute
or rule “regulates even-handedly to effectuate a legitimate local public interest, and
its effects on interstate commerce are only incidental, it will be upheld unless the
burden imposed on such commerce is clearly excessive in relation to the putative
local benefits.” Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970).
HCPTC Rule 1.15 is not an overtly protectionist measure. On its face, the
18
Rule purports merely to regulate travel in the Tampa Bay area. We doubt whether
the Commission’s rules place any special burden on interstate commerce at all.
Leib emphasizes that under the rule “all passengers (including those engaged in
interstate commerce) are prohibited from utilizing the economical and
environmentally-friendly transportation services offered by Leib’s Toyota Prius,
thereby constituting an unreasonable burden on interstate commerce.” But this
suggests that Rule 1.15 burdens in-state and out-of-state commerce equally.
Indeed, as the Commission points out, the Rule has not been challenged by an out-
of-state business. Rather, Leib purports to challenge the Rule from within the state
that is the supposed beneficiary of the putative burden on interstate commerce.
Moreover, Leib’s argument rests on a factual mistake: he argues that
“environmentally-friendly passengers that desire to utilize ecologically superior
transportation are left with no alternative options whatsoever as a result of the
HCPTC’s complete prohibition of eco-friendly vehicles for use as limousines.”
This is simply false: an environmentally-friendly vehicle may qualify as a
limousine so long as it meets Rule 1.15’s luxury and other requirements.
Accordingly, Leib’s interstate commerce claim was properly dismissed.
In sum, we conclude that the district court properly dismissed Leib’s
complaint.
19
AFFIRMED.
20
Leib v. Hillsborough County Public Transportation Commission
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2009-02-19
Citations: 558 F.3d 1301
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