IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-41256

INTERCITY AMBULANCE EMERGENCY MEDICAL TECHNICIANS, LLC; 

JUSTIN OAKERSON, Individually, 

 Plaintiffs–Appellants,

v.

CITY OF BROWNSVILLE, TEXAS, 

 Defendant–Appellee.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:14-CV-58

Before HIGGINBOTHAM, PRADO, and GRAVES, Circuit Judges.

PER CURIAM:*

Treating Appellants’ Petition for Rehearing En Banc as a Petition for 

Panel Rehearing, the Petition is DENIED, but we withdraw the prior opinion 

and substitute the following, which is amended only as to Subpart II(A).

In April 2014, Intercity Ambulance Emergency Medical Technicians, 

LLC (“IAEMT”), a privately owned ambulatory service, and IAEMT’s president

and principal stockholder, Justin Oakerson, sued the City of Brownsville 

 

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5th Cir. 

R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

July 25, 2016

Lyle W. Cayce

Clerk

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(“City”) after an IAEMT employee was cited for violating a City ordinance. The 

district court granted summary judgment in favor of the City. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On March 20, 2014, an IAEMT employee was cited for violating a City 

ordinance that required that all private ambulance companies working within 

the City be licensed by the City. When the employee appeared in court to 

address the citation, he was cited for two additional violations of the ordinance. 

All three citations were ultimately dismissed. 

In April 2014, IAEMT and Oakerson filed suit against the City, claiming 

that the citations issued to IAEMT’s employee were issued in retaliation for 

Oakerson’s involvement in a state court suit between the City and the 

Brownsville Firefighters Association IAFF Local 970 (“BFA”). In the state 

court suit, the BFA designated Oakerson as an expert witness, but the suit 

settled before Oakerson ever had the opportunity to testify.

In their amended complaint, IAEMT and Oakerson (collectively, 

“Plaintiffs”) asserted numerous causes of action against the City, including 

several constitutional claims. The City filed a motion for summary judgment 

in June 2015. Plaintiffs filed a cross-motion for partial summary judgment. 

The district court granted the City’s motion and denied Plaintiffs’ motion.

Plaintiffs timely appealed. 

II. DISCUSSION

The district court had jurisdiction over this suit under 28 U.S.C. § 1331. 

Our Court has jurisdiction pursuant to 28 U.S.C. § 1291. 

Our review of a district court’s grant of summary judgment is de novo, 

viewing “all facts and evidence in the light most favorable to the non-moving 

party.” Amerisure Mut. Ins. Co. v. Arch Specialty Ins. Co., 784 F.3d 270, 273 

(5th Cir. 2015). Summary judgment is appropriate “if the movant shows that 

there is no genuine dispute as to any material fact and the movant is entitled 

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to judgment as a matter of law.” Fed. R. Civ. P. 56(a). When “the evidence is 

such that a reasonable jury could return a verdict for the nonmoving party,”

summary judgment is improper. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

248 (1986) (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253 

(1968)).

After dismissing several of Plaintiffs’ claims, only three issues remained 

at summary judgment: 1) Oakerson’s First Amendment retaliation claim; 2) 

Plaintiffs’ equal protection claim; and 3) Plaintiffs’ request for equitable and 

declaratory relief. The district court granted summary judgment as to each, 

and we affirm. 

A. First Amendment Retaliation 

Oakerson argues that the City retaliated against him for asserting his 

First Amendment right to testify as an expert witness in the state court suit 

between the BFA and the City. He argues that the City retaliated against him

in two distinct ways: 1) by citing an IAEMT employee for operating an IAEMT 

ambulance in violation of a City ordinance and 2) by actively interfering with 

IAEMT’s relationships with its customers.

As a preliminary matter, Oakerson argues that the district court’s grant 

of summary judgment was premature because the deposition of his damages 

expert was not fully transcribed. But, Oakerson’s argument is without merit. 

If Oakerson felt that he could not properly defend against the City’s motion for 

summary judgment without additional time to complete discovery, Federal 

Rule of Civil Procedure 56(d) provided him with an appropriate remedy. See 

Washington v. Allstate Ins. Co., 901 F.2d 1281, 1285 (5th Cir. 1990).1 Because 

Oakerson failed to file an affidavit or declaration requesting additional 

 

1 The relief provided by Federal Rule of Civil Procedure 56(d) was previously found 

under subsection (f) of the same rule. Fed. R. Civ. P. 56(d) advisory committee’s note to 2010 

amendment.

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discovery under Rule 56(d), his argument that the district court prematurely 

granted summary judgment is waived. See Fed. R. Civ. P. 56(d); Access 

Telecom, Inc. v. MCI Telecomms. Corp., 197 F.3d 694, 719 (5th Cir. 1999). 

In its motion for summary judgment, the City alleged that Oakerson did 

not have standing to bring a First Amendment claim. In response, Oakerson 

appears to have argued that he has standing because any injury suffered by 

IAEMT was an injury suffered by Oakerson individually. The district court 

held that even assuming Oakerson and IAEMT can be treated as a single entity 

for the purpose of establishing standing, Oakerson still failed to demonstrate 

that he or IAEMT suffered a cognizable injury. 

Oakerson bears the burden of demonstrating he has standing to bring a 

First Amendment claim. See Duarte ex rel. Duarte v. City of Lewisville, 759 

F.3d 514, 517 (5th Cir. 2014). “Article III of the Constitution limits the 

jurisdiction of federal courts to ‘Cases’ and ‘Controversies.’” Lance v. Coffman, 

549 U.S. 437, 439 (2007). Central to this limitation is the requirement that 

plaintiffs must have standing to bring a claim. Id. To establish standing, 

Oakerson must demonstrate that he 1) “suffered an ‘injury in fact’” that is 2) 

“‘fairly traceable’ to the [City’s] actions” and 3) “the injury will ‘likely . . . be 

redressed by a favorable decision.’” Pub. Citizen, Inc. v. Bomer, 274 F.3d 212, 

217 (5th Cir. 2001) (second alteration in original) (quoting Lujan v. Defs. of 

Wildlife, 504 U.S. 555, 560–61 (1992)). The injury must affect Oakerson in a 

“personal and individual way.” Lujan, 504 U.S. at 560 n.1.

In reviewing a motion to dismiss, “general factual allegations of injury 

resulting from the defendant’s conduct may suffice.” Pub. Citizen, 274 F.3d at 

218 (quoting Lujan, 504 U.S. at 561). But, at summary judgment, Oakerson 

cannot “rest on . . . ‘mere allegations.’” Lujan, 504 U.S. at 561 (quoting Fed. R. 

Civ. P. 56(e)). He “must ‘set forth’ by affidavit or other evidence ‘specific facts’,” 

id. (quoting Fed. R. Civ. P. 56(e)), “that, if true, would demonstrate an injury 

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in fact that is fairly traceable to the defendant’s conduct and likely to be 

redressed by a favorable ruling,” Prison Legal News v. Livingston, 683 F.3d 

201, 212 (5th Cir. 2012). On appeal, Oakerson argues that his affidavit is 

sufficient to demonstrate that he suffered an injury in fact. See Blue Br. 23.

We disagree. The affidavit describes his injury in the following general and 

conclusory terms: 

[M]y ambulance company suffer[ed] substantial losses which 

directly effect my ability to provide for myself and my daughter, 

but I was more fearful of what the Fire Chief would do next if I 

continued to allow my ambulances [to] transfer patients into and 

out of the City of Brownsville because of my expert designation and 

testimony and the City of Brownsville.

ROA.1561. As such, Oakerson’s affidavit has failed to allege facts specific 

enough to support an injury in fact at this stage of litigation. See Lujan, 504 

U.S. at 561. 

Oakerson points to two additional pieces of evidence that he argues 

demonstrate that he suffered an injury in fact. First, he contends that an 

expert report on damages illustrates the financial loss suffered by Plaintiffs as 

a result of the City’s actions. Second, he argues that a medical report provided 

to the City’s counsel details the “mental and emotional harm caused by the 

actions of the City.” But, Oakerson failed to designate either report as 

summary judgment evidence in Plaintiffs’ response to the City’s motion for 

summary judgment or in support of Plaintiffs’ motion for partial summary 

judgment. In fact, Oakerson concedes that the medical report was never even

introduced into the district court record. Because Oakerson failed to bring 

either piece of evidence to the court’s attention in its response to the City’s 

motion for summary judgment, these arguments are waived on appeal. See

Keelan v. Majesco Software, Inc., 407 F.3d 332, 339 (5th Cir. 2005).

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Even assuming, as the district court did, that IAEMT and Oakerson can 

be treated as a single entity for standing purposes, Oakerson has failed to 

establish that he or IAEMT suffered an injury in fact. As Oakerson has failed 

to satisfy Article III’s standing requirements, the district court’s grant of 

summary judgment on Oakerson’s First Amendment claim is affirmed.

B. Equal Protection Claim 

In their amended complaint, Plaintiffs claim that the City’s failure to cite 

other ambulatory service companies for operating without a license is a 

violation of the Fourteenth and Fifteenth Amendments. But, Plaintiffs have 

abandoned this claim. The passing references in their brief are insufficient to 

preserve any argument related to either amendment on appeal. See United 

States v. Scroggins, 599 F.3d 433, 446–47 (5th Cir. 2010) (“A party that asserts 

an argument on appeal, but fails to adequately brief it, is deemed to have 

waived it.” (quoting Knatt v. Hosp. Serv. Dist. No. 1 of E. Baton Rouge Par., 

327 F. App’x 472, 483 (5th Cir. 2009))). Therefore, the district court’s grant of 

summary judgment on Plaintiffs’ equal protection claim is affirmed.

C. Equitable and Declaratory Relief

Plaintiffs seek both equitable and declaratory relief. First, Plaintiffs seek 

a declaration that the City “equitably licensed” them to operate within its 

limits. Second, Plaintiffs seek an injunction requiring the City to issue them 

an official license to operate. Third, Plaintiffs argue that the City implicitly 

granted IAEMT a license to operate within City limits under the theory of 

equitable estoppel. The district court granted summary judgment on all three 

claims. 

On appeal, Plaintiffs fail to distinguish between the various forms of 

equitable and declaratory relief requested. Plaintiffs seem to argue that 

summary judgment was improper simply because Plaintiffs sought equitable

and declaratory relief at all. We find this argument unavailing. Plaintiffs have 

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failed to provide any specific arguments as to how they are entitled to 

declaratory or injunctive relief. Similarly, Plaintiffs have failed to provide any 

specific arguments related to their equitable estoppel claim. As Plaintiffs have 

failed to raise a genuine dispute of material fact that they are entitled to any 

form of equitable or declaratory relief, the district court’s grant of summary 

judgment is affirmed.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district 

court.

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