City not required to adopt formal criteria for non-consent tow list and may consider intangible/subjective factors

 Integrity Collision Center v. City of Fulshear, No. 15-20560 ( 5th Cir. September 20,2016)

This is an injunction case where a tow-truck company sued to compel the City to include it in the City’s non-consent tow list. The U.S. Court of Appeals for the Fifth Circuit reversed the injunction and dismissed the claims against the City.

The City created a non-consent tow list of private companies it calls upon to tow vehicles that are to be impounded. The police chief included only two companies but excluded Integrity and Buentello. There was no formal process or requirements for reaching that decision. Integrity and Buentello sued the city alleging that the City’s refusal to include them on the non-consent tow list violated the Equal Protection Clause.  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 discretionary decision that was not subject to a class-of-one equal protection claim) and that there was a sufficient rational basis. Both parties filed opposing summary judgment motions. The trial court ruled in favor of the tow-truck companies and the city appealed.

The 5th Circuit first addressed its own jurisdiction and determined that what the trial court ordered (i.e. the City must include Integrity and Buentello on the non-consent list) qualified as an injunction appealable under Section 1292(a)(1). Next, 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.” “Typically, a class of one involves 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.” However, a class-of-one equal-protection claim “is unavailable in a ‘public employment context.’” That conclusion logically applies as well to a local government’s discretionary decision to include or not include a company on a non-consent tow list, where “allowing equal protection claims on such grounds ‘would be incompatible with the discretion inherent in the challenged action.’” Further, no discriminatory intent is evident anywhere in the record. And while a non-consent tow list criteria can have measurable factors (such as insurance levels and proximity) 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 considerations are a reasonable part of a purchasing decision which means some companies will inevitably be excluded. Cities are not constitutionally required to develop a formal process with constitutionally measurable criteria for determining from whom they will purchase towing services.  “Furthermore, it is impractical for the court to involve itself in reviewing these countless discretionary decisions for equal-protection violations.” As a result, the court reversed the trial court’s order and rendered a decision for the City.

If you would like to read this opinion click here. The Panel includes Circuit Judge king, Circuit Judge Smith and Circuit Judge Costa. Circuit Judge Smith delivered the opinion of the court. Attorney listed for the City is Eric Clayton Farrar. Attorney listed for the companies is Keval M. Patel.