Leib v. Hillsborough County Public Transportation Commission

[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

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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.

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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).

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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.

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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

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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”

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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

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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

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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.

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AFFIRMED.

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