Full opinion text
MEMORANDUM AND OPINION LEE H. ROSENTHAL, District Judge. James and Sandra Lindquist sued the City of Pasadena, Texas, challenging the City Council’s denial of their appeal from the City’s refusal of their application for a license to operate a used-car sales lot on property they owned. The City Council denied the appeal under a municipal ordinance requiring used-car lot operators to have a license. The ordinance required each newly licensed lot to be located a certain distance away from an existing licensed lot and from residential areas or subdivisions. The Lindquists alleged that the denial of their license-application appeal violated the Due Process and Equal Protection Clauses of the United States and Texas Constitutions. The alleged equal protection violation was based on their claim that they were a “class of one” and that the City had intentionally and arbitrarily treated them differently from other, similarly situated appellants. The City moved to dismiss the Lindquists’ original complaint for failure to state a claim. (Docket Entry No. 9). This court granted the City’s motion, holding that the Lind-quists failed to state a class-of-one equal protection claim in the absence of any allegation that the City’s actions were motivated by “illegitimate animus or ill will.” (Docket Entry No. 22). The Lindquists acknowledged that their lot did not meet the ordinance distance requirements and did not qualify for a license. They alleged that while the City enforced the ordinance’s distance requirements against them, the City did not enforce the requirements against other used-car lot license applicants whose property also failed to comply. This court dismissed the equal protection claim, relying on Fifth Circuit precedent requiring a plaintiff making selective-enforcement allegations to plead that “an illegitimate animus or ill will motivated [its] intentionally different treatment from others similarly situated and that no rational basis existed for such treatment.” See Shipp v. McMahon, 234 F.3d 907, 916 (5th Cir.2000), overruled on other grounds by McClendon v. City of Columbia, 305 F.3d 314, 328-29 (5th Cir.2002) (per cu-riam). This court dismissed the due process claim because it simply recast the equal protection claim in substantive due process terms. (Docket Entry No. 22). Finally, this court dismissed the “unbridled discretion” claim because the ordinance set out the criteria for City officials to use in deciding whether an applicant is entitled to a license and for City Council to use in deciding an appeal. (Id.). The Fifth Circuit upheld the dismissal of all the Lindquists’ claims except the class-of-one equal protection claim. See Lind- quist v. City of Pasadena, 525 F.3d 383, 387 (5th Cir.2008). Citing a case distinguishing between a claim arising from “the denial of zoning permits” and a claim arising from selective enforcement of ordinances or other laws in the class-of-one context, Mikeska v. City of Galveston, 451 F.3d 376 (5th Cir.2006), the Fifth Circuit held that the Lindquists’ equal protection claim did not sound in selective enforcement but rather challenged an adverse zoning decision. Lindquist, 525 F.3d at 387. Under Mikeska, a class-of-one plaintiff challenging the denial of a zoning permit need not allege ill will or impermissible animus, but must show a lack of a rational basis. A class-of-one plaintiff challenging a license denial on the basis of a selectively enforced ordinance must allege ill will or animus as well as the lack of a rational basis to state a claim. Mikeska, 451 F.3d at 381. The Fifth Circuit cautioned that although dismissal for failure to allege ill will or animus was not warranted, on remand, to “prevail on the [class-of-one] claim, the Lindquists must carry the heavy burden of ‘negativing any reasonably conceivable set of facts that could provide a rational basis’ for their differential treatment.” Lindquist, 525 F.3d at 387. Following remand, the parties engaged in discovery. After discovery ended, the Lindquists moved for partial summary judgment, arguing that the City has a policy or custom of using unbridled discretion in deciding appeals from license denials, making the ordinance unconstitutional because the City does not consistently apply the licensing requirements and “mal-administers” licensing appeals. The Lind-quists seek damages and an injunction directing the City to issue them an unrestricted license to sell used cars at the lot they own. (Docket Entry No. 55). The City responded, (Docket Entry No. 65), and the Lindquists replied, (Docket Entry No. 68). The City argues that the dismissal of the Lindquists’ unbridled-discretion claim was affirmed on appeal; that only the class-of-one equal protection claim remains for this court to consider; and that as a matter of law, the City is entitled to summary judgment dismissing that claim. The City moved for summary judgment, asserting that based on the undisputed facts in the record, the Lindquists have failed to meet their “heavy burden” to show no rational basis for the denial of their appeal from the City’s refusal to issue a license while other appeals were granted. (Docket Entry No. 59). The Lindquists responded, (Docket Entry No. 67), the City replied, (Docket Entry No. 69), and filed a supplemental reply, (Docket Entry No. 71). Based on a careful review of the motions, responses, and replies, the record, and the applicable law, this court denies the Lindquists’ partial summary judgment motion and grants the City’s summary judgment motion. Final judgment is issued by separate order. The reasons for these rulings are explained in detail below. I. Background The Lindquists are residents of Pasadena, Texas. They have a dealer’s license to sell used cars. For the last fifteen years, they have operated a dealership known as “Professional Auto” at 2602 Preston Road in Pasadena. Their business experience was not a factor in the license denial at issue in this case. The City’s former Planning Director, Tim Ti-etjens, testified in his deposition that he was not aware of any “issue with the Lind-quists that would taint their image or reputation in the community.” (Docket Entry No. 55, Ex. B, Deposition of Tim Tietjens, at 18-19). By 2003, the City of Pasadena had more than eighty licensed used-car dealerships. (Docket Entry No. 59, Ex. A). The City’s Motor Vehicle Dealers Ordinance was amended in 2003 to require used-car dealers to obtain a license for each location at which they sell cars. The amended ordinance was intended to curb the growth of new used-car dealerships. Pasadena, Tex., Code of Ordinances eh. 22, art. II, § 22-1 et seq. (2003). The preamble to the amendment states that it was passed “to implement standards to govern and promote the conservation and stabilization of property values, provide adequate open space for natural light and air, lessen congestion on streets and highways, serve the needs of the motoring public and minimize impacts on lesser intensity uses.” (Docket Entry No. 59, Ex. B). The preamble explains the City’s desire to “avoid and mitigate the secondary effects” associated with car dealerships that are “detrimental to the public health, safety, and welfare.” (Id.). These effects include “nighttime glare and light pollution impacting adjacent residential communities; thermal heat gain due to expansive parking and display area needs; production of point and non-point source pollution which flows into storm water systems of the City, and eventually discharges in the natural waterways; [and] the need for protection of motor vehicle dealers and the public from undesirable criminal elements trafficking in the dismantling and conveying of stolen vehicles and/or parts thereof.” (Id.). The City Council concluded that the licensing of each used-car dealership location would enable the City to further the purposes and goals of the ordinance. The amended ordinance requires a newly licensed used-car lot location to be a minimum distance from any currently licensed car dealership and from any residential area or subdivision. The relevant ordinance provisions are as follows: Each new license location is required to be a minimum of one thousand (1,000) feet from any existing license location as measured from nearest property line to nearest property line. Pasadena, Tex., Code of Ordinances ch. 22, art. II, § 22-22(c)(16) (2003) (the “1,000-foot rule”). There 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. Id. § 22-22(c)(4) (the “150-foot rule”). A grandfather clause permits a license to issue even if the 1,000-foot or the 150-foot rules are not met if certain conditions are shown, including that the dealership has been operating at the same location and continuously licensed for a minimum period, with no more than a sixty-day interruption of sales activity. The 1,000-foot rule provision also allows licenses for selling “classic” cars on a lot that falls under the rule, even if the applicant’s lot does not meet the ordinance distance criteria. Under the ordinance, a used-car dealership license application is first reviewed by a City building official. If that official denies the application, the applicant may appeal to the City Council. Id. § 22-29. The appeal provision states: The hearing before the council shall be de novo and the applicant shall have the burden of proving that he is entitled to the license. At such hearing, the council shall have the right and authority to consider the information obtained by the chief of police ... when investigating the applicant and also any report or statement of facts prepared by the city building official in connection with the matter.... After such hearing, the council shall decide, by motion, whether or not the license applied for shall be granted or refused. Id. § 22-29(b). In 2003, the Lindquists wanted to expand their car-dealership operation beyond the Preston Road lot. They considered two locations, one at 4545 Spencer Highway and the other at 4646 Spencer Highway. The 4545 Spencer Highway location was developed for and had been used as a car dealership; the lot at 4646 Spencer Highway was constructed for and was operated as a gas station. The Lindquists talked to City officials about purchasing one of these two lots for a used-car dealership. The officials told the Lindquists that both lots were ineligible for a used-car dealership license because both violated the 1,000-foot rule and one also violated the 150-foot rule. The 4646 Spencer Highway location was within 1,000 feet of an existing used-car dealership, Big Horn Auto at 4717 Spencer Highway. The 4545 Spencer Highway location was within 1,000 feet of two existing used-car dealerships and within 150 feet of a residential area. City officials told the Lindquists that although the 4545 Spencer Highway location had previously been used as a used-car lot, it did not qualify for the grandfather clause in the ordinance. The Lindquists bought the lot at 4646 Spencer Highway in 2003, knowing that it did not meet the ordinance requirements for a used-car lot license. On October 9, 2003, the Lindquists applied for a used-car lot license for the 4646 Spencer Highway property. (Docket Entry No. 59, Ex. D). City officials denied the application on October 27, 2003. (Id.). After their application was denied, the Lindquists met with two City Council members and with the City Director of Planning to discuss other possible uses for the lot at 4646 Spencer Highway. (Docket Entry No. 59, Ex. G, Deposition of James Lindquist, at 14:3-18). James Lindquist agreed with the suggestion that he and his wife use the lot to sell boats, motorcycles, travel trailers, golf carts, ATVs, classic cars, and classic trucks, for which they could obtain a “limited use” license under the ordinance. (Id.). On January 30, 2004, the City issued a “limited use” dealer license to the Lindquists to sell these types of vehicles at the 4646 Spencer Highway location. The Lindquists opened “Pasadena’s Toy Store” at the location to sell boats, motorcycles, travel trailers, golf carts, ATVs, classic cars, and classic trucks. (Id.). The dealership still sells such merchandise. In November 2003, Keith and Tammy Nielsen, who owned and operated a used-car sales business under the name “Kar-Mart,” bought the lot at 4545 Spencer Highway. City officials denied Kar-Mart a used-car dealer license for 4545 Spencer Highway because the lot violated the I,000-foot rule in the amended ordinance. The 150-foot rule was not a basis for the denial. The Nielsens appealed the denial of their license application to the City Council. The hearing on May 18, 2004 was attended by Mayor Pro Tem Jim Barker and City Council members Don Harrison, Jack Douglass, Jerri Neely, Bill Welch, James Guthrie, Dana Philibert, and J.J. Isbell. Mayor John Manlove was absent. The hearing was open to the public and the Lindquists were present. At the beginning of the appeal hearing, the City Planning Director, Tim Tietjens, stated: “This is not a variance request in which someone’s coming forward and seeking administrative relief around an ordinance. It is a section in the ordinance that’s allowed those who have made such application. It is of public record and everyone that gets rejected is able to make the same appeal. Each appeal stands on its own merits. Council has discretion to grant or refuse as you deem appropriate.” (Docket Entry No. 59, Ex. C, Transcript of May 18, 2008 City Council meeting, at 4:16-25). Tietjens stated that he would explain the facts and the reasons behind the City’s determination and then allow the Nielsens time to speak. Tietjens told the Council that the previous owner of the lot at 4545 Spencer Highway, Gulf Coast Truck Center, was issued an auto-dealer license in 1999. (Id., at 5:4-7). Tietjens stated that “at some undetermined point in time, Gulf Coast Truck Center formally closed operation and ceased selling vehicles on the lot.” Mail was returned from that address after September 29, 2003. (Id., at 6:3-11). After Tietjens gave this background, the Nielsens addressed the Council. The Niel-sens argued that the lot at 4545 Spencer Highway fell under the grandfather provision; that the lot was last used as a licensed car dealership; that the prior owners had spent approximately $800,000 to improve the lot for the specific purpose of operating as a car dealership; and that the lot was so committed to use as a car dealership that it had no other practical purpose. (Id., at 11:11-20; 13:23-25). The Nielsens also argued that it would be better to have the lot function as an active business producing tax revenues rather than stay a vacant lot. (Id., at 13:25-14:3). Because the 4545 Spencer Highway location had been vacant for a period, some Council members rejected the suggestion that the lot met the grandfather provision requirement that there be no more than a 60-day interruption in sales activity. Councilman Harrison stated that he felt the 60-day rule was unconstitutional but that the Council was bound to follow the ordinance and deny the Nielsen appeal because the lot had been vacant for longer than 60 days. Keith Nielsen pointed out that the previous owner, Gulf Coast Truck Center, had been granted a renewed used-car dealer license in June 2003. Nielsen stated that he obtained a copy of that license from the City before buying the property. He brought a copy of the license, which was valid until June 2004, to the meeting. Nielsen noted that the ordinance did not define the term “sales activity.” He argued for a broad definition, pointing to the Texas Transportation Code provision that to maintain an active State license to sell cars, a licensee must sell at least five cars per year. (Id., at 28:3-18). Nielsen asserted that there was evidence of sales by Gulf Coast in the previous year and that Gulf Coast’s dealer license had not been revoked by the State for inactivity. Nielsen had submitted to City officials title transfers and title registrations that Gulf Coast had completed for vehicles sold since the June 2003 license renewal. Nielsen argued that the City’s desire to limit the number of new dealerships in an area would not be affected by granting a used-car dealership license for 4545 Spencer Highway because that location had been an auto dealership for years. Mayor Pro Tern Barker observed that “there’s not much use for that lot the way it is other than a car dealership. The people who moved out, if they — if they kept their license up to date and their license is still in effect, even though it’s vacant, it looks to me like — it looks like we could put that to good use with a good car dealership right there.” (Id., at 27:12-19). Councilman Guthrie stated that the property at 4545 Spencer Highway was developed as a “showcase lot” and would not be suitable for any other use. Tietjens stated that the lot was the most recent newly built car dealership in Pasadena. Councilman Harrison stated that although the lot was vacant, the City was “getting taxes. But we’d get more taxes if it was put in use some way.” (Id., at 39:24-25). Councilman Welch said, “I think each case stands on its own. Each request for its variance stands on its own, and this has no dealing on anybody else.... I think this property is best suited as a car lot and I think we need to go ahead with it and allow this variance.” (Id., at 41:23-42:1). Councilman Guthrie asked Tietjens if the Nielsen lot met all ordinance requirements other than the 1,000-foot rule. In response, Tietjens stated that “[t]o my knowledge, it meets every code but the 1,000 feet.” (Id., at 43:4-5). Guthrie asked Tietjens what would happen if the Nielsens’ appeal was denied and whether they could request a variance. Tietjens responded, “Well, the appeals process is defined in this ordinance. It would be a lawsuit, I’m told.” (Id., at 43:14-16). Councilman Isbell, who voted against the Nielsens’ appeal, noted that during the debate on amending the ordinance, Gulf Coast Truck Center was specifically mentioned as a lot that would not meet the 60-day requirement in the grandfather clause because the lot had been vacant for months. Isbell continued: “[W]e all voted ... unanimous on this ordinance knowing all of those things at the time. And to me, it just — it just opens up a can of worms that this is not a variance issue. This is an appeal issue. And if this council goes against an ordinance that we passed saying that, no, even though we passed it, these issues we can overrule and grant a license. I think that that’s unfair to those folks that are in the business that do have to comply, and it is a struggle for me.” (Id., at 46:4-15). The City Council decided to grant the Nielsens a used-car dealership license for the lot at 4545 Spencer Highway. The vote was five to three. The day after that decision, the Lindquists reapplied for a used-car dealer license for 4646 Spencer Highway. City officials again denied the license application on the basis of the 1,000-foot rule. The Lindquists appealed. At the appeal hearing held on June 15, 2004, the City Council members participating were Mayor Manlove, Don Harrison, Jack Douglass, Bill Welch, Jim Barker, James Guthrie, Dana Philibert, and J.J. Isbell. Councilmember Neely was absent. Tietjens, the City Planning Director, began the meeting. “This appeal has been requested in accordance with Chapter 22-29(b) of the Pasadena Code of Ordinances. This is an actual appeal of a rejection to Council. It’s not a variance, as such. Each appeal stands on its own merits. Council has discretion to grant or refuse.” (Docket Entry No. 59, Ex. D, Transcript of June 15, 2004 City Council meeting, at 4:18-23). Tietjens explained that the Lindquists’ application for a used-car dealer license for 4646 Spencer Highway had been rejected, but that they had received a license to sell classic cars, boats, and motorcycles. Tietjens told the City Council that the Lindquists had opened “Pasadena’s Toy Store” in January 2004. Ti-etjens noted that the lot at 4646 Spencer Highway did not comply with the ordinance because there were two licensed competitors within 1,000 feet — Kar-Mart at 4545 Spencer Highway (235 feet away) and Big Horn Auto at 4717 Spencer Highway (390 feet away). (Id., at 6:3-7). Sandra Lindquist addressed the City Council. She argued that for purposes of the 1,000-foot rule, the City should measure “from side lot line to side lot line.” (Id., at 7:16-17). Lindquist asserted that “[o]ur lot, too, has been meant for the sole purpose of cars being on it.” (Id., at 7:11-12). She continued: “We bought this property with the intent to sell automobiles. Please don’t restrain us from growing with Pasadena. Thank you in advance for all your fairness.” (Id., at 8:7-9). Councilman Harrison asked Tietjens “how do you define the distance from a property line?” (Id., at 17:1-2). Tietjens, the City Planning Director, stated that the ordinance requires the distance to be measured “from the nearest property line to the nearest property line.” (Id., at 17:5-9). Councilwoman Philibert asked Tietjens for clarification as to why the Council was not being asked to decide a variance request. The following exchange occurred: Ms. Philibert: I want to make sure I understand. Because we’ve thrown around the term “variance” a lot over the last three years and with frustration by some members that we allow for variances to our ordinances for a variety of reasons. Mr. Tietjens: Because the ordinance itself has specific language on how to address a denial. It is not — it specifically outlines what you’re supposed to do in that Section 22-29(b). And it outlines it in the ordinance and describes the conditions that the — basically the burden of proof has to be on the applicant. Ms. Philibert: Okay. So for us to allow someone to open a used auto lot in any sort of setting that fits this criteria, we would actually have to change the ordinance; is that correct? I mean, we would have to modify the ordinance or change the distance, to change the timeline that Councilman Harrison’s concerned with for it to be accurate? Mr. Tietjens: To amend the ordinance to allow the dealership to open? Ms. Philibert: Uh-huh. I mean, if we— Mr. Tietjens: If there’s a reject — yes. In order for any dealership to open a variance would be required from that standpoint. But an appeal, no, a variance would not be required. Ms. Philibert: So can they receive a variance prior to the denial? I mean, I don’t mean to talk circular, but the problem is I think some of the confusion that we have is the law is the land — is the law of the land right now. Mr. Tietjens: It’s an appeal process. Yes, it’s specifically not a variance. Because a variance renders the code, due to some unique configuration of a site, impractical to implement a specific site condition as opposed to a more general requirement such as a distance requirement. {Id., at 12:7-14:3). Councilman Isbell stated that it was “cut and dried” and “black and white” that the Lindquists’ lot at 4646 Spencer Highway violated the 1,000-foot rule of the ordinance. He stated that, just as with the Nielsens’ appeal, he could not support approving the license because the applicants did not meet the ordinance requirements; if Council members did not like the requirements, they should change the ordinance. (Id., at 14:20-15:6). Sandra Lindquist asked, “how can we change the wording so that it reads side lot line to side lot line instead of nearest property line?” (Id., at 15:11-13). Councilman Is-bell responded: “Well, I guess the ordinance would have to be changed. But as the current ordinance stands, you know, it doesn’t say that.” (Id., at 15:14-16). Councilman Douglass stated that he believed it would be unfair to deny the Lindquists’ appeal, given that both the Lindquist lot and the Kar-Mart lot violated the ordinance. (Id., at 8:16-9:8). Councilman Douglass stated, “By allowing Keith Nielson [sic] to violate our Used Car Dealer Ordinance and turning around and not allowing the Lindquists the same courtesy sounds like favoritism.” (Id.). Council-members Barker and Welch explained that they would vote to deny the Lindquists’ appeal because these were different circumstances and a “totally different situation” from the Nielsens’ lot. Barker stated: “All appeals or variances are not treated the same, and we do have a right to do that. We have the right to overrule an appeal. We have the right to make a variance.” (Id., at 16:2-5). Barker and Welch both emphasized the differences between the Nielsens’ lot and the Lindquists’ lot. While the Nielsens’ lot had been developed and improved specifically as a used-car sales lot, the Lindquists’ lot had been operated as a gas station and would require construction and improvements to make it a car dealership. (Id., at 16:6-21). The City Council voted unanimously to uphold the denial of the Lindquists’ license application. The Lindquists filed this lawsuit on June 12, 2006. In August 2006, the City Council granted an appeal from the denial of a used-car dealer license for a lot at 2801 Preston Road owned by Joe Chambers. The lot had been operated as a used-car dealership until July 2004, when it was briefly operated as a check-cashing business, then became vacant. Chambers bought the property on July 1, 2005. He applied for a used-car dealership license on April 26, 2006 and was denied because the lot did not comply with the 150-foot rule. The 1,000 foot rule was not a basis for the denial. Chambers appealed to the City Council. The City Council members present at the hearings, held on July 25, 2006 and August 15, 2006, were Mayor John Manlove, Don Harrison, Jack Douglass, Jackie Welch, Jim Barker, James Guthrie, Dana Philibert, J.J. Isbell, and Ralph Riggs. (Docket Entry No. 59, Exs. E, F). As with the two previous appeal hearings under the ordinance, Tietjens began the meeting by explaining why the application was denied and how the appeal process worked. He stated: “You can appeal a rejection if it’s not a variance, as such. Each appeal stands on its own merits. Council does have the discretion to grant or refuse, as you deem appropriate.” (Docket Entry No. 59, Ex. E, Transcript of July 25, 2006 City Council meeting, at 4:4-7). Tietjens stated that “several single family residential units are within 150 feet” of the 2801 Preston Road lot and “[tjhat’s really the only issue that Mr. Chambers is dealing with.” (Id., at 5:4-11). Tietjens explained that the property was previously used as a used-car dealership called Crescent Motors. “It ceased operation on some unknown date.... We do know, however, it was before 7/23 of '04.... [I]t became a check cashing establishment at that point in time.” (Id., at 6:1-7). In his presentation to the City Council, Chambers asserted that before he bought the 2801 Preston property, he was told by a City official named Warren Escovy that he could put a used-car lot at that location. Chambers told the City Council that he knew the lot had previously been used for a used-car dealership and that he would not have bought the property if he did not think he could operate a used-car dealership there. After the City officials rejected his license application, Chambers was unable to sell the property because every interested buyer wanted to put a car dealership on the lot. Chambers explained that he had obtained the consent of the closest residential neighbor to reopen 2801 Preston Road as a car dealership. He had not spoken with any other neighbor. In response, Councilman Isbell stated: “The bottom line is that the property doesn’t meet ordinance.... But my problem is, if we had a city employee that told Mr. Chambers that it did and then based on that conversation he went out and bought this property ... I’m not sure the City doesn’t have some liability if we don’t allow this, based on the actions of the employees.” (Id., at 24:9-14; 47:9-11). Councilman Harrison stated that he heard a rumor that none of the residents within 150 feet objected to opening a car dealership there. Councilman Barker stated, “I feel like if there was no objection [from the neighbors], even though it is against the ordinance ... that would certainly help me to determine whether to vote for this variance or not.” (Id., at 48:7-12). Mayor Manlove followed up by stating: “If we had maybe letters from some of the residents that lived around that car lot that said they just absolutely wouldn’t mind, then we as a city, as a governing body, do have the ability to allow a variance. That gives us flexibility within our laws which is a very good thing. You cannot have a law necessary to fit every single situation. And this may very well be a good opportunity to allow a variance in this case.” (Id., at 49:16-25). Mayor Manlove moved to defer a final vote to allow time to speak with the affected residents. The Council unanimously voted to defer the decision for two weeks. At the August 15, 2006 continuation of the hearing, Chambers submitted letters from all the nearby residents stating that they did not oppose having a car dealership at 2801 Preston Road. (Docket Entry No. 59, Ex. U). Councilman Barker explained that he had driven past the lot and seen overgrown weeds. Barker stated, “I really believe that with a good car lot there and well maintained and taken care and meet all the requirements of the City that it would actually be an improvement of that particular spot. And since we have an okay from all the people who are surrounding there that we had a problem to begin with, then I can go along with that.” (Docket Entry No. 59, Ex. F, Transcript of August 15, 2006 City Council meeting, at 6:4-10). Councilwoman Welch observed that Chambers’s other business in Pasadena was always “neat and clean” so she would “go with him today” and vote to approve his license because he “will do a good job over there.” (Id., at 6:17-19). Councilman Guthrie explained that because the nearest subdivision was unrestricted and allowed commercial lots, and because none of the residents objected to having a car lot at 2801 Preston Road, he would also vote in favor of granting the license. (Id., at 7:9-16). Some members expressed concern about the “message” the Council would send to the community by approving this license application. Mayor Manlove stated: “I agree that our planning department, they are charged with upholding the law as the ordinances are written. However, the way our city government is structured, you can appeal a ruling by the department and bring it before the council in which we have by the authority vested in the people of Pasadena to allow variances from time to time which we do, which allows some flexibility to the law. Because many times one law doesn’t fit every single situation.” (Id., at 10:25-11:9). The City Council voted unanimously in favor of granting Chambers a used-car dealer license for 2801 Preston Road. In their amended complaint, the Lind-quists alleged that they were denied due process and equal protection because the City denied their appeal but granted licenses on appeal for two applicants whose lots did not comply with the ordinance distance requirements. The Lindquists alleged that “[t]he existence of unbridled discretion for the City to approve, or to deny licenses, violates the requirements of due process and/or the equal protection clauses of the 14th amendment of the United States Constitution, and of Article I, Sections 3 & 19 of the Texas Constitution.” (Docket Entry No. 14). The Lind-quists alleged that they were similarly situated to the Nielsens and to Chambers, and that the City had no rational basis to grant their appeals while denying the Lindquists’ appeal. Finally, the Lind-quists alleged that the City denied them substantive and procedural due process. This court granted the City’s Rule 12(b)(6) motion to dismiss for failure to state a claim. (Docket Entry No. 22). The Fifth Circuit affirmed the dismissal of all claims except the class-of-one equal protection claim. The Fifth Circuit stated that to prevail on this claim, “the Lind-quists must carry the heavy burden of ‘negativing any reasonably conceivable set of facts that could" provide a rational basis’ for their differential treatment.” Lind-quist, 525 F.3d at 387. After extensive discovery, the parties moved for summary judgment. II. The Legal Standard for Summary Judgment Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). “The movant bears the burden of identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact.” Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th Cir.2005) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). If the burden of proof at trial lies with the nonmoving party, the movant may satisfy its initial burden by “ ‘showing’— that is, pointing out to the district court— that there is an absence of evidence to support the nonmoving party’s case.” See Celotex, 477 U.S. at 325, 106 S.Ct. 2548. While the party moving for summary judgment must demonstrate the absence of a genuine issue of material fact, it does not need to negate the elements of the nonmovant’s case. Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir.2005) (citation omitted). “ ‘An issue is material if its resolution could affect the outcome of the action.’ ” DIRECTV, Inc. v. Robson, 420 F.3d 532, 536 (5th Cir.2005) (quoting Weeks Marine, Inc. v. Fireman’s Fund Ins. Co., 340 F.3d 233, 235 (5th Cir.2003)). “If the moving party fails to meet its initial burden, the motion for summary judgment must be denied, regardless of the nonmovant’s response.” Quorum Health Res., L.L.C. v. Maverick County Hosp. Dist., 308 F.3d 451, 471 (5th Cir.2002) (citing Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc)). When the moving party has met its Rule 56(c) burden, the nonmoving party cannot survive a summary judgment motion by resting on the mere allegations of its pleadings. “[T]he nonmovant must identify specific evidence in the record and articulate the manner in which that evidence supports that party’s claim.” Johnson v. Deep E. Tex. Reg’l Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th Cir.2004) (citation omitted). “This burden is not satisfied with ‘some metaphysical doubt as to the material facts,’ by ‘eonclusory allegations,’ by ‘unsubstantiated assertions,’ or by ‘only a ‘scintilla’ of evidence.’ ” Little, 37 F.3d at 1075 (internal citations omitted). In deciding a summary judgment motion, the court draws all reasonable inferences in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citation omitted). III. Analysis A. The Unbridled Discretion Claim The Lindquists argue that the Fifth Circuit’s decision that the ordinance is facially valid did not foreclose an as-applied challenge based on the City’s “exercise of unbridled discretion” in deciding whether to affirm or deny the decisions of City officials denying license applications. They contend that although the ordinance’s written requirements are facially valid, the City has established an unconstitutional policy or custom by not following those requirements in deciding appeals from denials of license applications. The Lind-quists contend that, contrary to the City’s arguments, the “law of the case” doctrine and the mandate rule do not bar consideration of the merits of their unbridled discretion claim. The Lindquists assert that this court dismissed only their facial invalidity claim and that the Fifth Circuit expressly considered only the facial validity of the ordinance. The Lindquists argue that no court has considered the merits of their as-applied challenge. The City responds that the Fifth Circuit affirmed the dismissal of all claims except the class-of-one equal protection claim. The City notes the Fifth Circuit’s holding that “[t]he district court did not err in dismissing the Lindquists’ ‘unbridled discretion’ claim.” Lindquist, 525 F.3d at 388. According to the City, this holding is the law of the case, barring this court’s consideration on remand of the unbridled discretion claim. Finally, the City argues that the mandate rule, which “compels compliance on remand with the dictates of a superior court and forecloses relitigation of issues expressly or impliedly decided by the appellate court,” Fuhrman v. Dretke, 442 F.3d 893, 897 (5th Cir.2006), bars consideration of the unbridled discretion claim. The City also contends that, even if considered on the merits, the as-applied unbridled-discretion challenge fails because the Lindquists have failed to show a policy or custom to exercise such discretion, much less to an unconstitutional degree. The City also argues that the Lind-quists have misrepresented the nature of their claims. According to the City, because the Fifth Circuit upheld the ordinance as facially valid, “the Plaintiffs could only complain that the provisions of the Ordinance were being selectively enforced against them, in the resolution of their appeal, for unconstitutional reasons — i.e., that, others who were similarly situated were treated differently with no conceivable rational basis — the very standard set forth in the Fifth Circuit’s opinion.” (Docket Entry No. 65, at 5). This means that the Lindquists must meet “the hurdles outlined for a ‘class of one’ equal protection claim” for their claims, however labeled. (Id.). The City contends that the Lindquists “cannot escape this burden through semantics or artful attempts at revival of dismissed claims.” (Id.). “An issue of law or fact decided on appeal may not be reexamined either by the district court on remand or by the appellate court on a subsequent appeal.” United States v. Becerra, 155 F.3d 740, 752 (5th Cir.1998). The law-of-the-case doctrine applies not only to matters decided explicitly but also to matters settled “by necessary implication.” These are “matters that were fully briefed to the appellate court and were necessary predicates to the ability to address the issue or issues specifically discussed are deemed to have been decided tacitly or implicitly, and their disposition is law of the case.” Office of Thrift Supervision v. Felt, 255 F.3d 220, 225 (5th Cir.2001). “[T]he law of the case controls legal claims which were fully litigated and decided in the first appeal, even if parties seek to introduce new legal or factual evidence on remand.” Cooper Tire & Rubber Co. v. Farese, 248 Fed.Appx. 555, 558 (5th Cir.2007). Courts have discretion to reexamine a decision covered by the law-of-the-case doctrine under narrow exceptions: “if substantially different evidence has been presented, there has been an intervening change in the law, or the prior decision was clearly erroneous and it would work a manifest injustice.” Browning v. Navarro, 887 F.2d 553, 556 (5th Cir.1989). “The mandate rule requires a district court on remand to effect [the appellate court’s] mandate and to do nothing else.” United States v. Castillo, 179 F.3d 321, 329 (5th Cir.1999) (citing Becerra, 155 F.3d at 753). On remand, the district court “must implement both the letter and the spirit of the appellate court’s mandate and may not disregard the explicit directives of that court.” United States v. Matthews, 312 F.3d 652, 657 (5th Cir.2002) (quoting Becerra, 155 F.3d at 753). “In implementing the mandate, the district court must ‘take into account the appellate court’s opinion and the circumstances it embraces.’ ” United States v. Lee, 358 F.3d 315, 321 (5th Cir.2004) (quoting Sobley v. Southern Natural Gas Co., 302 F.3d 325, 333 (5th Cir.2002)). Because the mandate rule is a corollary of the law of the case doctrine, it “compels compliance on remand with the dictates of a superior court and forecloses relitigation of issues expressly or impliedly decided by the appellate court.” Castillo, 179 F.3d at 329 (citation omitted). In their amended complaint, the Lindquists challenged “the [City Council’s] appeal without rules and the policy and practice allowing only some dealerships to avoid the 1000' rule, the 150' rule, and the requirements to obtain a license.” (Docket Entry No. 14). The Lindquists alleged that “as-applied, the City arbitrarily determines what City law actually prohibits: any person can obtain a license if City Council votes approval, in an appeal process with no standards, published or otherwise.” (Id.). This court granted the City’s motion to dismiss for failure to state a claim, rejecting the Lindquists’ argument that the ordinance is unlawful because it gives unfettered discretion to the City Council. On appeal, the Fifth Circuit first considered the Lindquists’ equal protection and due process claims. The appellate court reversed the dismissal of the class-of-one equal protection claim but affirmed dismissal of the due process claims. Finally, the appellate court analyzed the “unbridled discretion” claim, stating as follows: [T]he 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, 111 Tex. 350, 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. Lindquist, 525 F.3d at 388. The Fifth Circuit expressly affirmed this court’s holding that the ordinance is facially valid. But neither this court nor the Fifth Circuit considered the merits of the Lindquists’ as-applied challenge to the ordinance. Nor was the as-applied challenge “fully briefed to the appellate court” or a “necessary predicate[] to the [Fifth Circuit’s] ability to address the” facial validity of the ordinance. If the as-applied “unbridled discretion” claim is a distinct claim from the equal protection class-of-one claim, this court is not barred from considering it on the merits. The Lindquists’ as-applied unbridled discretion claim, however, is not a distinct claim from the class-of-one equal protection claim remanded to this court. The Lindquists have not articulated how their as-applied unbridled discretion claim differs from the equal protection claim. The as-applied challenge is based on the Lind-quists’ argument that the City “established a clear policy and custom of unbridled discretion when granting or denying licenses”; “the City in fact exercised this unbridled discretion in each appeal to city council”; and the City cannot “identify any basis to distinguish the Lindquist appeal— which was denied — from two other appeals, which were granted.” (Docket Entry No. 55, at 3). In the class-of-one equal protection claim, the Lindquists argue that the City’s “policy and custom that authorizes City Council to exercise unbridled discretion in deciding whether the Lindquists, Nielsens, and Chambers/Henderson could obtain used car dealer licenses” shows that there is no rational basis for the difference in treatment. (Docket Entry No. 67, at 14). The Lindquists argue that “there is no legitimate state interest” for the exercise of “unbridled discretion to grant or deny a license when an applicant does not comply with the Ordinance.” (Id.) (emphasis in original). The Lindquists’ as-applied unbridled discretion claim and their class-of-one equal protection claim are based on the same facts, arguments, and authorities. The Fifth Circuit recognized that the claims overlapped. See Lindquist, 525 F.3d at 388 (“Though framed as a distinct claim, their allegation that ‘the 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, [including the class-of-one claim].”). For the City to be held liable under 42 U.S.C. § 1983 for the unbridled discretion claim, the City’s alleged policy or custom of exercising unbridled discretion must cause a constitutional violation. The Lindquists have not alleged a constitutional violation other than equal protection and due process. The Fifth Circuit affirmed the dismissal of all the Lindquists’ constitutional claims except the class-of-one equal protection claim. The as-applied unbridled discretion claim is not separate from the equal protection analysis. As such, to show that the ordinance was unconstitutionally applied to them, in violation of equal protection, “the Lindquists must carry the heavy burden of ‘negativing any reasonably conceivable state of facts that could provide a rational basis’ for their differential treatment.” Id. at 387. The merits of the as-applied unbridled discretion claim are analyzed in connection with the merits of the equal protection claim. B. The Class-of-One Equal Protection Claim 1. The Requirements for a Class-of-One Claim In Village of Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000), the Supreme Court recognized that an equal protection claim can be brought by a ‘“class of one,’ 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.” Id. at 564, 120 S.Ct. 1073. The plaintiffs in Olech alleged that the Village had conditioned the connection of their property to the municipal water supply on the grant of an easement larger than the Village required of other property owners. Id. at 563, 120 S.Ct. 1073. The plaintiffs alleged that the Village’s request was motivated by ill will resulting from an earlier lawsuit they had filed against the Village. Id. The district court dismissed the complaint for failure to state a claim. The Seventh Circuit reversed, finding that the plaintiffs had alleged a class-of-one equal protection claim. Olech v. Village of Willowbrook, 160 F.3d 386 (7th Cir.1998), cert. granted in part, 527 U.S. 1067, 120 S.Ct. 10, 144 L.Ed.2d 841 (1999) and judgment aff'd, 528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000). The Seventh Circuit recognized and was troubled by the “prospect of turning every squabble over municipal services ... into a federal constitutional case.” Olech, 160 F.3d at 388. But the court concluded that this problem was alleviated by the requirement under Seventh Circuit case law that the plaintiff allege and prove subjective “ill will” or “illegitimate animus” in a class-of-one equal protection case. Id. The Supreme Court affirmed in a brief per curiam opinion. The Court stated: “Our cases have recognized successful equal protection claims brought by a ‘class of one,’ 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.” Olech, 528 U.S. at 564, 120 S.Ct. 1073. The Court concluded that the plaintiffs allegations — ■ that the Village demanded a larger easement than it demanded from other similarly situated property owners, and that the demand was “irrational and wholly arbitrary” were, “quite apart from the Village’s subjective motivation ... sufficient to state a claim for relief under traditional equal protection analysis.” Id. at 565, 120 S.Ct. 1073. The Supreme Court affirmed the Seventh Circuit’s opinion but did not “reach the alternative theory of ‘subjective ill will’ relied on by that court.” Id. Justice Breyer wrote a concurring opinion to express his view that a run-of-the-mill zoning decision would not violate the Equal Protection Clause because an additional factor had to be present: an allegation of “vindictive action,” “illegitimate animus,” or “ill will.” Id. That additional factor was necessary to prevent all zoning decisions from turning into alleged equal protection violations. Id. The added element avoided putting the federal courts in the position of a super-zoning board, re-, viewing routine decisions of municipal governance raised under a class-of-one equal protection challenge. Since the Olech decision, courts have struggled to define what a plaintiff must prove to succeed on a class-of-one equal protection claim. “All have recognized that, unless carefully circumscribed, the concept of a class-of-one equal protection claim could effectively provide a federal cause of action for review of almost every executive and administrative decision made by state actors.” Jennings v. City of Stillwater, 383 F.3d 1199, 1210-11 (10th Cir.2004). “Some courts, taking the lead of Justice Breyer, have attempted to cabin the reach of class-of-one equal protection cases by demanding that plaintiffs present evidence not merely of arbitrariness but of malice or ill-will against the plaintiff.” Id. at 1211 (citing Discovery House, Inc. v. Consol. City of Indianapolis, 319 F.3d 277, 283 (7th Cir.2003) (adopting Justice Breyer’s concurrence as the holding of Olech and noting that the malice requirement “is a very significant burden” put in place to ensure that federal courts do not become “zoning boards of appeal”); Harlen Assoc. v. Inc. Vill. of Mineola, 273 F.3d 494, 499-500 (2d Cir.2001) (personal animus is an element of a class-of-one case); Williams v. Pryor, 240 F.3d 944, 951 (11th Cir.2001) (explaining Olech as “holding that plaintiff stated constitutional Equal Protection Clause cause of action by alleging that village acted irrationally, wholly arbitrarily, and out of malice toward plaintiff’)). The courts have emphasized the need to proceed cautiously in applying the class-of-one theory. One court has helpfully summarized the concern expressed in these cases: In the paradigmatic class-of-one case, a public official inflicts a cost or burden on one person without imposing it on those who are similarly situated in material respects, and does so without any conceivable basis other than a wholly illegitimate motive. See Lauth v. McCollum, 424 F.3d 631, 633 (7th Cir.2005) (citations omitted): The paradigmatic “class of one” case, more sensibly conceived, is one in which a public official, with no conceivable basis for his action other than spite or some other improper motive (improper because unrelated to his public duties), comes down hard on a hapless private citizen. Perhaps he is the holder of a license from the state to operate a bar or restaurant or other business, and the official deprives him of a valuable property right that identically situated citizens toward whom the official bears no ill will are permitted the unfettered enjoyment of. As one moves away from the paradigmatic case, the sense of a wrong of constitutional dignity, and of a need for a federal remedy, attenuates. Most circuits ... have proceeded cautiously in applying the theory, sensitive to Justice Breyer’s warning against turning even quotidian exercises of government discretion into constitutional causes. See, e.g., Jennings v. City of Stillwater, 383 F.3d 1199, 1210-11 (10th Cir.2004). An approach that reads Olech too broadly could transform the federal courts into “general-purpose second-guessers of the reasonableness of broad areas of state and local decision-making: a role that is both ill-suited to the federal courts and offensive to state and local autonomy in our federal system.” Id. at 1211. Such a pervasive threat of federal litigation could straightjacket local governments that have neither the capacity to document the reasoning behind every decision nor the means to withstand an onslaught of lawsuits. Jicarilla Apache Nation v. Rio Arriba County, 440 F.3d 1202, 1209 (10th Cir.2006) (McConnell, J.). In another opinion, the same judge analyzed the circuit variations on the requirements of a class-of-one claim: One circuit appeared to reject a requirement of subjective ill will, see Jackson v. Burke, 256 F.3d 93, 97 (2d Cir.2001) (per curiam) (“To be sure, proof of subjective ill will is not an essential element of a ‘class of one’ equal protection claim.”), but has since called its early statements “merely dicta” and determined that the question remains open, Bizzarro v. Miranda, 394 F.3d 82, 88 (2d Cir.2005). Another has explicitly construed Olech as requiring subjective animus, see Hilton v. City of Wheeling, 209 F.3d 1005, 1008 (7th Cir.2000) (“gloss[ing]” Olech as requiring animus), although subsequent panels have attempted to change course, see Racine Charter One, Inc. v. Racine Unified Sch. District, 424 F.3d 677, 683-84 (7th Cir.2005) (noting competing lines of cases within the circuit and reserving the question). Two courts of appeals have adopted an approach similar to that of the majority, recognizing two or three types of class-of-one claims, only one of which requires subjective ill will. See Mikeska v. City of Galveston, 451 F.3d 376, 381 & n. 4 (5th Cir.2006); Tri-Health, Inc. v. Bd. of Comm’rs, Hamilton County, 430 F.3d 783, 788 (6th Cir.2005). But see Shipp v. McMahon, 234 F.3d 907, 916 (5th Cir.2000) (holding that Olech requires “illegitimate animus or ill will”), overruled in part on other grounds, McClendon v. City of Columbia, 305 F.3d 314 (5th Cir.2002) (en banc). Christian Heritage Acad. v. Okla. Secondary Sch. Activities Assoc., 483 F.3d 1025, 1043 n. 3 (10th Cir.2007) (McConnell, J., concurring in part and dissenting in part); see also Schor v. City Of Chicago, 576 F.3d 775 (7th Cir.2009) (“To allege a ‘class of one’ claim, the plaintiffs need to show (1) that they were intentionally treated differently from others similarly situated, and (2) that there was no rational basis for that differential treatment, or that the differential treatment was the result of an illegitimate animus toward the plaintiffs by the defendants.”) (emphasis added). As one commentator has noted, the case law on the contours of the class-of-one claim remains “muddled” and “in disarray.” Giaimo, 15 Forbham L.Rev. at 344-45. The “lack of resolve and clarity has perpetuated confusion in the district courts.” Id. at 345. The Supreme Court has recently further narrowed Olech. In Engquist v. Oregon Dep’t of Agriculture, — U.S. —, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008), the Court held that the class-of-one theory does not apply to decisions made by government in its role as employer. The Court stated the rationale of its holding broadly: the “class of one” theory does not apply to government decisionmaking that is necessarily “subjective and individualized, resting on a wide array of factors that are difficult to articulate and quantify.” Id. at 2154. The lower courts have read and applied Engquist as meaning the class-of-one theory is also unavailable in other contexts besides government employment, if government officials must make subjective discretionary decisions. The Fifth Circuit’s position on the requirements for proving a class-of-one equal protection claim has also evolved since Olech. In Bryan v. City of Madison, Miss., 213 F.3d 267 (5th Cir.2000), the Fifth Circuit’s first post-Olecfe equal protection decision, the plaintiff was denied a permit to build apartments on land he had contracted to buy but had not yet closed. The plaintiff alleged that the defendants prevented him from obtaining the permit until after the contract expired. The plaintiff alleged that: (1) the defendants applied zoning standards unreasonably by vetoing his applications; and (2) the “extraordinary” process he faced violated his equal protection rights. Id. at 276. The Fifth Circuit held that the first claim fell within the standard equal protection analysis, which requires proof that similarly situated individuals were treated differently, and that the plaintiff had failed to even allege those elements. Id. The plaintiffs second claim was selective enforcement. Id. at 277. The Fifth Circuit cited pre-Olech cases on selective-enforcement claims that required allegations and proof of subjective animus or ill will. The court read Olech to stand for the proposition that single plaintiffs can bring an equal protection claim based on selective enforcement but must allege an improper motive to state such a claim. Id. at 277 n. 17. The court concluded that the plaintiff had failed to allege an improper motive and affirmed the lower court’s dismissal under Rule 12(b)(6). Id. at 277. The court in Shipp v. McMahon, 234 F.3d 907, 916 n. 6 (5th Cir.2000), overruled on other grounds by McClendon v. City of Columbia, 305 F.3d 314, 328-29 (5th Cir.2002) (per curiam), noted that a class-of-one equal protection claim was a novel issue for the Fifth Circuit. “This court has yet to confront an Equal Protection challenge in the context of a class of one claim.” Id. (quoting Bryan, 213 F.3d at 277 n. 18 (stating that “ ‘[w]e have never specifically addressed whether [a motive of subjective animus] would be enough to support an equal protection claim without some other class-based discrimination, but that issue is not before us.’ ”)). In Shipp, a woman sued a county sheriff and deputy sheriffs, alleging equal protection violations based on law enforcement’s failure to protect her from a brutal attack by her husband. The police knew of the husband’s propensity for violent behavior and that he had threatened his wife. One of the defendants was the dispatcher who took the phone call reporting that the husband had tracked the plaintiff down and dragged her away. The dispatcher was the husband’s mother. She hung up the telephone without inquiring into the particulars of the incident and took no action other than advising one other deputy. By the time law enforcement found the couple, the plaintiff had been raped and shot. The Fifth Circuit stated that “[t]o state a claim sufficient for relief, a single [class-of-one] plaintiff must allege that an illegitimate animus or ill will motivated her intentionally different treatment from others similarly situated and that no rational basis existed for such treatment.” Shipp, 234 F.3d at 916 (citing Olech, 120 S.Ct. at 1074-75). The court found that while an individual has no constitutional right to police protection, a municipality may not discriminate in providing such protection. Id. (citation omitted). The court noted that in class-of-one equal protection cases alleging unequal police protection, the plaintiff must “ ‘present evidence that the defendant deliberately sought to deprive him of the equal protection of the laws for reasons of a personal nature unrelated to the duties of the defendant’s position.’ ” Id. (quoting Hilton v. City of Wheeling, 209 F.3d 1005, 1008 (7th Cir.2000)) (emphasis added). The Seventh Circuit in Hilton had “reasoned that such an improper motive is critical and ... its absence will defeat an Equal Protection challenge to unequal police protection.” Id. (citing Hilton, 209 F.3d at 1008). The Shipp court concluded that if the plaintiffs mother-in-law maintained ill will against her, the plaintiff might be able to establish an unequal police-protection claim under Olech. Id. at 916-17. In 2003, in a case similar to Brya