IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 15, 2008
No. 07-20013
Charles R. Fulbruge III
Clerk
JAMES LINDQUIST; SANDRA LINDQUIST,
Plaintiffs-Appellants,
v.
THE CITY OF PASADENA, TEXAS,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
Before REAVLEY, BENAVIDES, and ELROD, Circuit Judges.
JENNIFER W. ELROD, Circuit Judge:
James and Sandra Lindquist appeal the district court’s dismissal of their
claims arising from the City of Pasadena’s refusal to grant them a license to
operate a used car dealership. We reverse and remand for proceedings
consistent with this opinion.
I. FACTS AND PROCEEDINGS
Because this is an appeal from a dismissal pursuant to Federal Rule of
Civil Procedure 12(b)(6), these facts are taken from the pleadings and presented
in the light most favorable to the Lindquists. In 2003, the Pasadena City
Council enacted an ordinance governing the issuance of used car dealer licenses.
The ordinance provided, among other things, that “[e]ach new license location
is required to be a minimum of one thousand (1,000) feet from any existing
No. 07-20013
license location as measured from nearest property line to nearest property line”
(the “1,000' Rule”). The ordinance also provided that “[t]here shall not be issued
a new license for the operation of a used car lot within one hundred fifty (150)
feet of the lot lines of a residential area or subdivision,” subject to certain
exceptions irrelevant to this appeal (the “150' Rule”). Finally, the ordinance
provided that an applicant refused a license by the city building inspector had
a right to appeal to the city council, and that “[t]he hearing before the council
shall be de novo and the applicant shall have the burden of proving that he is
entitled to the license.”
After the ordinance was enacted, the Lindquists considered purchasing
two lots in Pasadena to expand their used car dealership. One was located at
4545 Spencer Highway, and the other was located at 4646 Spencer Highway.
When the Lindquists consulted city officials responsible for issuance of the
necessary license, the officials told them that neither lot qualified for a license,
as 4545 Spencer Highway was within 1000 feet of two preexisting dealerships
and within 150 feet of a residential area, and 4646 Spencer Highway was within
1000 feet of one preexisting dealership. The Lindquists were unaware that the
city council sometimes issued licenses on appeal for properties that violated the
1000' Rule and the 150' Rule. They purchased the lot located at 4646 Spencer
Highway and, in reliance on the city officials’ statements, applied for and
received a license to sell “Boats, Motorcycles, Travel Trailers, Golf carts, ATV’S,
Classic Cars, and Classic Trucks,” but not other used cars.
The Lindquists subsequently discovered that their competitors Kieth and
Tammy Neilson had purchased the lot located at 4545 Spencer Highway and had
applied for a license to operate a used car dealership there. Consistent with
their treatment of the Lindquists, city officials informed the Neilsons that the
lot was not in compliance with the ordinance and refused to issue the license.
The Neilsons appealed to the city council, arguing that they should receive the
license despite the ordinance because of the “economic hardship” that would
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otherwise result. Despite the ordinance’s explicit restrictions, the city council
granted the appeal on May 18, 2004. A member of the city council commented
on the apparent inequity of the decision: “I do believe that there’s a double
standard in the City . . . [concerning] the car dealers particularly . . . . All things
being fair, we’re talking about double standards.”
The following day, the Lindquists applied for a license to operate a used
car dealership at 4646 Spencer Highway. Their application was denied, and
they appealed. At a hearing before the city council on June 15, 2004, city
officials testified that the 1000' Rule was the only impediment to the Lindquists’
application. After the city council voted to deny the Lindquists’ appeal, one
dissenting member described the decision as “favoritism” and another agreed,
stating: “[D]enial on one and acceptance on another in essentially the same exact
circumstances from the standpoint of documentation and wherewithal for this
facility does speak of favoritism.” In August 2006, the city council granted a
used car dealer license for another lot in violation of the 150' Rule after a former
city councilman told the council that the lot’s owner was a “‘respectable
businessman’ who made substantial donations to support local rodeos” and
would suffer “economic hardship” without the license.
The Lindquists sued the city, alleging that the licensing ordinance was
facially invalid under the United States and Texas constitutions because it gave
the city council “unbridled discretion” to grant or deny used car dealer licenses
on appeal. After the city filed a motion to dismiss for failure to state a claim, the
Lindquists amended their complaint to include claims that the city’s refusal to
grant the Lindquists a license after granting licenses to similarly situated used
car dealers violated their equal protection rights, and that the city council’s
arbitrary denial of their request for a license violated their due process rights.
The district court dismissed the Lindquists’ amended complaint for failure to
state a claim, and this appeal followed.
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No. 07-20013
II. STANDARD OF REVIEW
We review dismissal of a complaint for failure to state a claim de novo. In
re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007). We “accept[]
all well-pleaded facts as true, viewing them in the light most favorable to the
plaintiff.” Id. (internal quotation marks and citations omitted). The plaintiff
must plead “enough facts to state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, ___ U.S. ___, 127 S. Ct. 1955, 1974 (2007). “Factual
allegations must be enough to raise a right to relief above the speculative level,
on the assumption that all the allegations in the complaint are true (even if
doubtful in fact).” Id. at 1965 (internal citation and footnote omitted).
III. ANALYSIS
A. Equal Protection
In support of their equal protection claim, the Lindquists allege that the
city council refused to grant them a used car dealer license while granting
licenses to others similarly situated, and that no rational basis exists for the
disparate treatment.1 The district court dismissed the claim on the ground that
it sounded in selective enforcement and was therefore deficient in the absence
of any allegation that the city’s actions were motivated by “illegitimate animus
or ill will.”
Our precedent forecloses the district court’s analysis. In Mikeska v. City
of Galveston, the city condemned several beachfront homes and disconnected
their utilities after a tropical storm. 451 F.3d 376, 378-79 (5th Cir. 2006). The
owners of two of the homes sued the city, alleging in part that it had violated
their equal protection rights by refusing to permit reconnection of their homes’
1
The Lindquists allege violation of their equal protection rights under both
the United States and Texas constitutions. Because “the federal analytical
approach applies to equal protection challenges under the Texas Constitution,”
Bell v. Low Income Women of Tex., 95 S.W.3d 253, 266 (Tex. 2002), we do not
address separately the Lindquists’ claim under the Texas Constitution.
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No. 07-20013
utilities while permitting reconnection of the utilities of similarly situated
homes. Id. at 381. The district court granted summary judgment in favor of the
city, holding that its actions were rationally related to its “obligation to follow
state law to ‘protect the public beaches from interference.’” Id. at 379.
We reversed the district court’s grant of summary judgment, explaining
that the Equal Protection Clause required a rational basis for the city’s
differential treatment of similarly situated homes and setting forth the elements
of the homeowners’ claim:
The appellants’ equal protection claim is based on their contention
that there are a number of similarly situated homes that were
allowed reconnection of their utility services . . . . To bring such an
equal protection claim for denial of zoning permits, the appellant
must show that the difference in treatment with others similarly
situated was irrational.
Id. at 381 (citing Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (“Our
cases have recognized successful equal protection claims . . . 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.”));
see also Stotter v. Univ. of Tex. at San Antonio, 508 F.3d 812, 824 n.3 (5th Cir.
2007) (“[T]his court has rejected the argument that all ‘class of one’ equal
protection claims require a showing of vindictive animus.”). We held explicitly
that the homeowners’ equal protection claim did not sound in “selective
enforcement” or “personal vindictiveness” and was not subject to the “higher
evidentiary burden that would normally be required by either claim.” Mikeska,
451 F.3d at 381 n.4.2
2
Neither Mikeska nor our holding in the present case disturbs the well-
established rule that equal protection claims premised on selective enforcement
or prosecution, as well as analogous claims, require a showing of improper
motive. See, e.g., Bryan v. City of Madison, 213 F.3d 267, 277 (5th Cir. 2003)
(“[T]o successfully bring a selective prosecution or enforcement claim, a plaintiff
must prove that the government official’s acts were motivated by improper
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No. 07-20013
This precedent compels our holding that the Lindquists’ equal protection
claim does not sound in selective enforcement and does not require a showing
that the city acted with illegitimate animus or ill will. The district court thus
erred in dismissing the claim. Nonetheless, to ultimately prevail on the claim,
the Lindquists must carry the heavy burden of “negativ[ing] any reasonably
conceivable state of facts that could provide a rational basis” for their differential
treatment. Whiting v. Univ. of S. Miss., 451 F.3d 339, 349 (5th Cir. 2006)
(quoting Bd. of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 367 (2001))
(internal quotation marks omitted).
B. Due Process
The district court’s dismissal of the Lindquists’ substantive due process
claims was proper. The Lindquists complain that the city’s refusal to issue them
a license violated their substantive due process rights because other dealers
received licenses for properties that did not meet the requirements of the
licensing ordinance.3 As the district court correctly held, this claim is the
Lindquists’ equal protection claim recast in substantive due process terms and
cannot proceed. See County of Sacramento v. Lewis, 523 U.S. 833, 842 (1998)
(“[W]here a particular Amendment provides an explicit textual source of
constitutional protection against a particular sort of government behavior, that
considerations, such as race, religion, or the desire to prevent the exercise of a
constitutional right.”); see also Shipp v. McMahon, 234 F.3d 907, 916 (5th Cir.
2000) (observing that an equal protection claim premised on unequal police
protection requires a showing of improper motive), overruled on other grounds
by McClendon v. City of Columbia, 305 F.3d 314, 329 (5th Cir. 2002) (en banc).
3
The Lindquists also allege violation of the Texas Constitution’s Due
Course of Law Clause. Because the protections afforded by this clause and the
Due Process Clause are the same, no separate analysis of the due course of law
claim is necessary. See Univ. of Tex. Med. Sch. at Houston v. Than, 901 S.W.2d
926, 929 (Tex. 1995) (“While the Texas Constitution is textually different in that
it refers to ‘due course’ rather than ‘due process,’ we regard these terms as
without meaningful distinction.”).
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No. 07-20013
Amendment, not the more generalized notion of substantive due process, must
be the guide for analyzing these claims.”) (citation omitted); see also Willis v.
Town of Marshall, 426 F.3d 251, 266 (4th Cir. 2005) (“Because Willis’s
substantive due process claim thus ‘fully overlaps’ her Equal Protection claim,
the district court properly rejected the due process claim.”) (citation omitted).
The district court’s dismissal of the Lindquists’ procedural due process
claim was also proper. Procedural due process requires notice and an
opportunity to be heard. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,
546 (1985). The allegations in the Lindquists’ amended complaint establish that
they received both—they were aware of and participated in the appeal process
contemplated by the ordinance after city officials denied their license
application. In any event, the Lindquists have waived the issue by failing to
brief it. See Melton v. Teachers Ins. & Annuity Ass’n of Am., 114 F.3d 557, 561
(5th Cir. 1997).
C. Unbridled Discretion
Finally, the district court did not err in dismissing the Lindquists’
“unbridled discretion” claim. Though framed as a distinct claim, their allegation
that “[t]he existence of unbridled discretion for the City to approve[] or deny
licenses,” violated their due process and equal protection rights overlaps with
the claims analyzed above. To the extent the Lindquists argue that the licensing
ordinance is facially invalid because it does not provide adequate standards to
guide the city’s discretion, they are incorrect for the reasons stated in the district
court’s opinion: (1) unlike the ordinances at issue in Spann v. City of Dallas, 235
S.W. 513 (Tex. 1921), and other authorities the Lindquists cite, the ordinance at
issue here sets forth detailed requirements that city officials are to apply in
deciding whether an applicant is entitled to a license; and (2) the ordinance
requires an applicant to prove on appeal to the city council that he satisfies the
ordinance’s requirements to obtain a license. The district court’s holding that
the ordinance is not facially invalid was thus correct.
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No. 07-20013
IV. CONCLUSION
For the foregoing reasons, we REVERSE the district court’s judgment and
REMAND for proceedings consistent with this opinion.
8