# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 20

- 40599

**A**

**- Pro Towing and Recovery, L.L.C.,**  Plaintiff

— Appellant **,**

versus **Martin Cantu, Sr.,** Defendant

— Appellee

**.**
Appeal from the United States District Court for the Southern District of Texas USDC No. 1:19

- CV

- 16

Before **King, Dennis,** and **Ho,** Circuit Judges

**. Per Curiam**  **:** * Defendant Martin Cantu, Sr. , is a city commissioner in Port Isabel, Texas who owns (along with other family members) several towing companies . This 42 U.S.C. § 1983 suit arises out of certain actions Cantu is alleged to have taken with respect to the Port Isabel P olice D epartme nt’s management of its “ wrecker rotation list”

— the list that dictates which

* Pursuant to **5th Cir cuit**  **R ule**  47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in **5th Cir cuit**  **R ule**  47.5.4. United States Court of Appeals Fifth Circuit 

### FILED July 28, 2021 Lyle W. Cayce Clerk Case: 20-40599 Document: 00515956378 Page: 1 Date Filed: 07/28/2021No. 20

- 40599

2 towing company will be called to perform nonconsensual towing services for the department on a given day.
I. Plaintiff A

- Pro Towing and Recovery, L

. L

. C

. (A

- Pro) alleges that Cantu violated its right s to equal protection and due process by using his position as city commissioner to divert government referrals away from A

- Pro and to Cantu family towing companies. Relying , inter alia , on the affidavit of a former police de partment supervisor , A

- Pro asserts that on three unspecified occasions, Cantu called the police department’s rotation

list manager on A

- Pro’s assigned day , identified himself as “Commissioner Cantu,” and told the manager to skip over A

- Pro and direct all t owing requests to one of Cantu’s companies. On one of these occasions, the police chief allegedly told the list manager to carry out Cantu’s instructions because Cantu “ [ was ] a city commissioner.” When the list manager expressed concerns that Cantu was “ improperly using the [l] ist and creating a monopoly,” the police chief allegedly instructed the manager to drop the issue because Cantu was a commissioner and therefore could “do what he want[ed].” A

- Pro also claims that the police chief would sometimes r eassign A

- Pro’s days to a Cantu family company himself

. The district court granted Cantu summary judgment . A

- Pro appeals.
II. “This court reviews a grant of summary judgment de novo, applying the same standard as the district court.” Renfroe v. Parker , 974 F.3d 594, 599 (5th Cir. 2020). “Summary judgment is appropriate ‘if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” Id. (quoting **Fed. R. Civ. P.** 56(a)). “ A genuine issue of material fact exists when the evidence is such that a reasonable jury could return a verdict for the non

- moving party. ” Id. Case: 20-40599 Document: 00515956378 Page: 2 Date Filed: 07/28/2021No. 20

- 40599

3 “ All facts and reasonable inferences are construed in favor of the nonmovant, and the court should not weigh ev idence or make credibility findings.” Id.
III.
A.
A

- Pro does not assert that Cantu discriminated against it on account of its membership in a traditional protected class. Rather, it claims that “Cantu made sure that Port Isabel police intentionally treat ed A

- Pro differently than how his family’s companies were treated.”
“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 b asis for the difference in treatment.’” Integrity Collision Ctr. v. City of Fulshear , 837 F.3d 581, 586 (5th Cir. 2016) (quoting Vill. of Willowbrook v. Olech , 528 U.S. 562, 564 (2000)). “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.” Id. (quoting Wood v. Collier , 836 F.3d 534, 541 (5th Cir. 2016)). Assuming arguendo that a class

- of

- one equal

- p rotection claim i s cognizable here , A

- Pro’s claim fails. 1 “Because there is no suspect class, the

1 The Supreme Court has held that “a ‘class

- of

- one’ theory of equal protection has no place in the public employment context.” Engquist v. Oregon Dep’t of Agr. , 553 U.S. 591, 594 (2008 )

. See also id. at 605 (“[W]e have never found the Equal Protection Clause implicated in the specific circumstance where, as here, government employers are alleged to have made an individualized, subjective personnel decision in a seemingly arbitrary or irrational manner .”). And this court has since held that Engquist ’s bar “applies . . . to a local government’s discretionary decision to include or not include a company on a non

consent tow list,” Integrity , 837 F.3d at 586, as well as its decision to remove a company f rom a non
- consent tow list , s ee Rountree v. Dyson , 892 F.3d 681, 684

– 85 (5th Cir. 2018) (“If a city has the discretion to choose from whom it contracts private services, then it must equally retain the discretion to choose when to terminate such relationsh ip.”). It is Case: 20-40599 Document: 00515956378 Page: 3 Date Filed: 07/28/2021No. 20

- 40599

4 [government action] ‘must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. ’ ” Id. at 589 (quoting Heller v. Doe , 509 U.S. 312, 320 (1993)). Here, A

- Pro’s evidence against Cantu (rather than against the police chief or other actors) is an affidavit averring that , on a few occasions, Cantu in structed the police to skip A

- Pro because it had “an outstanding bond,” expired insurance, or an “out of commission” status

. These stated reasons are obviously rational. And despite multiple opportunities to do so, A

- Pro has p ointed to no evidence that A

- Pro was qualified and able to provide services on the specific days that Cantu allegedly redirected business away from A

- Pro. Accordingly, A

- Pro’s equal protection claim fails.
A

- Pro protests that it was Cantu’s burden to identify which dates A

- Pro was u n qualified to tow, and that there is a “factual issue

. . . as to whether the preferential treatment Cantu arranged was due to A

- Pro’s qualifications, or Cantu’s rent

- seeking.” But “the burden is on the challenging party to negative ‘ any reasonably conceivable state of facts that could provide a rational basis. ’ ” Id. ( quoting Bd. of Trs. o f Univ. of Ala. v. Garrett , 531 U.S. 356, 367 (2001) ). A

- Pro has simply failed to carry that burden. 2

arguable , then, that a decision about which towing company to call for a given job on a given day is the kind of inherently discretionary decision that has been shield ed from class

- of

- one equal

- protection challenges . But we need not decide t hat issue here because A

- Pro’s claim fails on the merits.

2 Because A

- Pro has failed to show it was qualified to operate on the days in question , it has also failed to show disparate treatment. For example, A

- Pro provides no evidence that Cantu companies were called to tow with outstanding bonds or expired insurance . In other words, while A

- Pro “generally alleges that other similarly situated [companies] were treated differently, . . . [it] points to no specific [company or companies] and provides no specifics as to their violations.” Rountree , 892 F.3d 681 at 685. “An Case: 20-40599 Document: 00515956378 Page: 4 Date Filed: 07/28/2021No. 20

- 40599

5 B.
A

- Pro also claims that “Cantu’s successful c ampaign to deprive [A

- Pro] of towing jobs violated its Fourteenth Amendment right to occupational liberty.” See , e.g. , San Jacinto Sav. & Loan v. Kacal , 928 F.2d 697, 702 (5th Cir. 1991) (“[T]he fifth and fourteenth amendments include

. . . the liberty to operate a legitimate business, free from arbitrary deprivation by local police acting under the color of state law.”).
A

- Pro’s due process claim suffers from some of the same defects as its equal protection claim. For example, there is still no evidence to refute Cantu’s stated reasons for diverting work away from A

- Pro. Moreover, an unpublished opinion suggests that A

- Pro’s alleged liberty deprivation is insufficient to be actionable. In Doss v. Morris , 642 F. App’x 443 (5th Cir. 2016), this court obser ved that “government actions that cause ‘a brief interruption’ of a person’s occupational calling do not amount to a deprivation of [a] liberty interest in the same way as ‘a complete prohibition of the right to engage in a calling.’” Id. at 447 (quoting Conn v. Gabbert , 526 U.S. 286, 292 (1999)). Th e panel then interpreted our precedent as recogniz ing that “a plaintiff’s liberty interest in operating a business [is] not violated where ‘the government [ has ] not significantly alter ed or de priv ed [a plaintiff] of his liberty interest in practicing [his profession] or his property interests in the profits therefrom.” Id. (quoting San Jacinto Sav. & Loan , 928 F.2d at 703) (last two alterations in original). “Defendants’ conduct did not depri ve Plaintiffs of their liberty interest in operating their legal business” because “the evidence . . . failed to show that

allegation that others are treated differently, without more, is merely a legal concl usion that we are not required to credit. [A

- Pro]’s equal protection claim fails.” Id. (footnote omitted). Case: 20-40599 Document: 00515956378 Page: 5 Date Filed: 07/28/2021No. 20

- 40599

6 Plaintiffs’ ability to operate their business was significantly altered or impaired.” Id.
A

- Pro concedes that the relevant standard is whether its business was

“ significantly altered or impaired

. ” Because the evidence suggests that A

- Pro was inconvenienced by only a “brief interruption” in its access to government employment (more precisely, government referrals) , this case i s
u nlike the cases in which the Supreme Court has recognized a “ generalized due process right to choose one’s field of private employment”

— cases that

“ all deal[t] with a complete prohibition of the right to engage in a calling

. ” Conn , 526 U.S. at 291

– 92 . In short, because A

- Pro has not produced evidence of a significant alteration or impairment of its business, A

- Pro ’s due process claim fails as a matter of law

. W e affirm. Case: 20-40599 Document: 00515956378 Page: 6 Date Filed: 07/28/2021