Sandlands C & D LLC v. County of Horry , 737 F.3d 45 ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1134
SANDLANDS C&D LLC; EXPRESS DISPOSAL SERVICE LLC,
Plaintiffs - Appellants,
v.
HORRY, COUNTY OF, a Political Subdivision of the State of
South Carolina acting by and through its duly elected County
Council; HORRY COUNTY SOLID WASTE AUTHORITY INC.,
Defendants – Appellees.
---------------------------
DELAWARE COUNTY SOLID WASTE AUTHORITY; ECOMAINE; CITY AND
COUNTY OF HONOLULU; INTERNATIONAL MUNICIPAL LAWYERS
ASSOCIATION; LANCASTER COUNTY SOLID WASTE MANAGEMENT
AUTHORITY; MARION COUNTY, OREGON; MONTGOMERY COUNTY, OHIO;
NATIONAL ASSOCIATION OF COUNTIES; SOLID WASTE ASSOCIATION OF
NORTH AMERICA; SOLID WASTE AUTHORITY OF CENTRAL OHIO; SOLID
WASTE DISPOSAL AUTHORITY OF THE CITY OF HUNTSVILLE; SOUTH
CAROLINA ASSOCIATION OF COUNTIES; SOLID WASTE AUTHORITY OF
PALM BEACH COUNTY; PINE BELT REGIONAL SOLID WASTE MANAGEMENT
AUTHORITY; SPOKANE REGIONAL SOLID WASTE SYSTEM; WASATCH
INTEGRATED WASTE MANAGEMENT DISTRICT; YORK COUNTY SOLID
WASTE AND REFUSE AUTHORITY,
Amici Supporting Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, Chief District
Judge. (4:09-cv-01363-TLW)
Argued: October 31, 2013 Decided: December 3, 2013
Before WILKINSON, DUNCAN, and DIAZ, Circuit Judges.
Affirmed by published opinion. Judge Duncan wrote the opinion,
in which Judge Wilkinson and Judge Diaz joined.
ARGUED: Vincent Austin Sheheen, SAVAGE, ROYALL & SHEHEEN, LLP,
Camden, South Carolina, for Appellants. Michael Warner Battle,
BATTLE & VAUGHT, PA, Conway, South Carolina, for Appellees. ON
BRIEF: Thomas S. Mullikin, MULLIKIN LAW FIRM, LLC, Camden, South
Carolina, for Appellants. Emma Ruth Brittain, THOMAS &
BRITTAIN, P.A., Myrtle Beach, South Carolina; Stan Barnett,
SMITH, BUNDY, BYBEE & BARNETT, Mt. Pleasant, South Carolina, for
Appellees. Scott M. DuBoff, Jeffrey C. Young, GARVEY SCHUBERT
BARER, Washington, D.C., for Amici Curiae. Michael F.X. Gillin,
Media, Pennsylvania, for Amicus Curiae Delaware County Solid
Waste Authority. Nicholas Nadzo, Mark Bower, JENSEN BAIRD
GARDNER & HENRY, Portland, Maine, for Amicus Curiae ecomaine.
Dana Viola, Deputy Corporation Counsel, Department Of
Corporation Counsel, CITY AND COUNTY OF HONOLULU, Honolulu,
Hawaii, for Amicus Curiae City and County of Honolulu. Alex
Henderson, HARTMAN UNDERHILL & BRUBAKER, Lancaster,
Pennsylvania, for Amicus Curiae Lancaster County Solid Waste
Management Authority. Scott Norris, Assistant Legal Counsel,
Marion County, Oregon, for Amicus Curiae Marion County, Oregon.
Mathias H. Heck, Jr., Montgomery County, Ohio Prosecuting
Attorney, Dayton, Ohio, for Amicus Curiae Montgomery County,
Ohio. Michael Belarmino, Associate General Counsel, NATIONAL
ASSOCIATION OF COUNTIES, Washington, D.C., for Amicus Curiae
National Association of Counties. Moran M. Pope, III, POPE &
POPE, P.A., Hattiesburg, Mississippi, for Amicus Curiae Pine
Belt Regional Solid Waste Management Authority. Barry Shanoff,
Rockville, Maryland, for Amicus Curiae Solid Waste Association
of North America. Michael C. Mentel, Chief Legal Officer, SOLID
WASTE AUTHORITY OF CENTRAL OHIO, Grove City, Ohio, for Amicus
Curiae Solid Waste Authority of Central Ohio. M. Clifton Scott
Jr., Senior Staff Attorney, SOUTH CAROLINA ASSOCIATION OF
COUNTIES, Columbia, South Carolina, for Amicus Curiae South
Carolina Association of Counties. Elizabeth Schoedel, Assistant
City Attorney, CITY OF SPOKANE, Spokane, Washington, for Amicus
Curiae Spokane Regional Solid Waste System. Charles H. Younger,
Huntsville, Alabama, for Amicus Curiae Solid Waste Disposal
Authority of the City of Huntsville, Alabama.
2
DUNCAN, Circuit Judge:
Appellants Sandlands C&D, LLC (“Sandlands”) and Express
Disposal Service, LLC (“EDS”) contest the validity of Horry
County’s Flow Control Ordinance, which prohibits disposal of
waste generated in Horry County at any site other than a
designated publicly owned landfill. The district court granted
summary judgment in favor of Horry County, and appellants
challenge its determination that the Ordinance violates neither
the Commerce Clause nor the Equal Protection Clause. For the
reasons that follow, we affirm.
I.
A.
Horry County occupies the northernmost coastal section of
South Carolina. Because of its sixty-mile coastline, large
geographic size, seasonal population changes, and high water
table, landfill waste disposal has been “expensive and
difficult.” See Horry Co., S.C., Ordinance 60-90, § 1 (Dec. 21,
1990). Consequently, in 1990 the County Council established the
Horry County Solid Waste Authority, Inc. (“SWA”), a nonprofit
corporation, to manage the county’s solid waste. Id. § 1.4.
Although the SWA is a separate legal entity, Horry County
maintains power over it in multiple ways: approving its budget,
large capital expenditures, and real estate transactions;
3
appointing its board of directors; wielding approval authority
over all bylaw amendments; and requiring that the Horry County
Treasurer hold all its funds and issue its checks. Furthermore,
the IRS categorizes the SWA as a “governmental unit” or
“affiliate of a governmental unit.” On appeal, it is undisputed
that the SWA is a public entity.
The SWA owns and operates two landfills (one for municipal
solid waste and one for construction and demolition (“C&D”)
waste) and a recycling facility in Horry County. In addition,
the SWA sponsors educational programs on recycling and runs a
green power facility that harnesses the methane gas emitted by
landfills to generate electricity. The SWA charges haulers and
others who use its landfills “tipping fees” based on the tonnage
of trash deposited. These fees, which are standard in the
waste-disposal industry, provide revenue to fund SWA operations.
Haulers who recycle a specified percentage of the waste they
collect pay a reduced tipping fee through an application-based
recycling incentive program.
On March 17, 2009, the Horry County Council enacted
Ordinance 02-09 (“Flow Control Ordinance” or “Ordinance”) to
create a county-wide plan for solid waste disposal. Horry Co.,
S.C., Ordinance 02-09 (Apr. 7, 2009). The final version of the
Flow Control Ordinance, as amended on April 7, 2009, provides:
4
The County hereby designates the disposal facilities
operated by the SWA and/or public owned facilities
designated by the SWA for the acceptance or disposal
of acceptable waste. The dumping or depositing by any
person at any place other than at the designated
facilities of any acceptable waste generated within
the County is prohibited.
Id. § 2.1.1. By requiring that all acceptable waste be disposed
of at SWA or other designated public landfills, the Ordinance
aims to conserve resources, prevent pollution, and protect the
public health, safety, and well-being. Id. § 1.1. It also
ensures the SWA a revenue stream from the tipping fees haulers
must pay to deliver waste.
To effect its objectives, the Ordinance sets out a detailed
regulatory and enforcement framework. It defines the term
“acceptable waste” as “ordinary household, municipal,
institutional, commercial and industrial solid waste” excluding
recyclables as well as hazardous waste, sewage, agricultural
waste, biomedical waste, and certain types of nuclear waste.
Id. §§ 1.2.1, 1.2.14 (defining acceptable and unacceptable
waste); §§ 6.1.2, 7.1.2, 8.1.5 (excluding recyclables). It also
sets out rules and licensing requirements for waste haulers.
Id. §§ 9–10.
The Flow Control Ordinance has been largely successful in
ensuring that waste generated in Horry County is deposited at an
approved landfill within the county. According to the South
Carolina Solid Waste Management Annual Reports from 2009, 2010,
5
and 2011, an SWA facility processed 689,708 out of 691,552 tons,
or over 99% of the waste generated in the county during those
years. J.A. 196–205. 1
The remaining 1,844 tons of waste were taken to four
landfills outside of the county: the Georgetown County Landfill,
the Berkeley County W&S Landfill, the Oakridge Landfill, and the
Richland Landfill. Horry County and Georgetown County have an
intergovernmental waste-sharing agreement, predating the
enactment of the Flow Control Ordinance, under which waste
collected near the counties’ shared border may be taken to the
other county’s government-operated landfills. According to the
SWA, much of the waste taken to the other landfills was not
“acceptable waste” under the Flow Control Ordinance--in other
words, it was waste, such as the hazardous material asbestos,
that the SWA landfills cannot process. Horry County also
acknowledged that some waste may have been removed from the
county without the SWA’s knowledge or consent.
B.
The enactment of the Flow Control Ordinance altered the
local economy of waste management. For example, Sandlands,
which operates a private landfill for C&D waste in neighboring
Marion County, South Carolina, saw a significant decrease in its
1
References to the Joint Appendix are abbreviated “J.A.”
6
business. Because the Sandlands landfill is located only two
miles from the Horry County border, a significant portion of the
waste deposited there used to originate in Horry County. The
Ordinance now prohibits haulers from bringing Horry County waste
to the Sandlands landfill in order to take advantage of its
lower tipping fees. Sandlands has since struggled financially
because of its inability to replace the revenue stream lost as a
result of the Ordinance.
EDS operates a waste hauling service in southeastern North
Carolina and northeastern South Carolina. Prior to the passage
of the Flow Control Ordinance, EDS transported waste from Horry
County to the Sandlands landfill and received certain benefits
as a result, such as increased hours of access and special,
lower tipping fees. EDS has been issued at least seventeen
citations for violating the Flow Control Ordinance.
As an alternate business strategy, Sandlands attempted to
open a facility to process recovered materials 2 at its Marion
County site, where it would have sorted general C&D debris into
recyclable materials and landfill-ready waste. When Sandlands
requested permission from Horry County to remove mixed C&D
2
Recovered materials are “materials or substances that
still have useful physical or chemical properties after serving
a specific purpose and can be reused or recycled for the same or
other purposes.” Horry Co., S.C., Ordinance 02-09, § 1.2.11
(Apr. 7, 2009).
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debris for this purpose, a representative from the Horry County
Attorney’s Office responded, “[D]ebris from a construction site
that simply contains materials that have not yet been separated
is still solid waste and is subject to the requirements of the
ordinance.” J.A. at 69. No company has been allowed to take
mixed waste generated in Horry County outside of the county,
although two other companies extract recoverable materials from
acceptable waste at small transfer stations within Horry County.
C.
Appellants brought an action for declaratory judgment,
damages, and injunctive relief in South Carolina state court,
which Horry County removed to federal court. Among other
claims, appellants argued that the Flow Control Ordinance
violates the Equal Protection Clauses of the United States and
South Carolina Constitutions, the Commerce Clause of the United
States Constitution, and the Contract Clauses of the United
States and South Carolina Constitutions. 3 After a hearing, the
district court granted Horry County’s motion for summary
3
In their amended complaint, appellants also alleged a
variety of constitutional, statutory, and torts claims. In
addition, appellants argued that the Flow Control Ordinance is
preempted by the South Carolina Solid Waste Policy and
Management Act, S.C. Code Ann. § 44-96-10, et. seq. The
district court certified that question to the South Carolina
Supreme Court, which responded that it was not preempted.
8
judgment as to each of the causes of action. This appeal
followed.
II.
Appellants contest the district court’s rulings on the
validity of the Flow Control Ordinance under the Commerce Clause
and Equal Protection Clause of the U.S. Constitution. 4 As to the
“Dormant” Commerce Clause, appellants argue that the district
court erred by failing to analyze whether the Flow Control
Ordinance is facially discriminatory, by misapplying the test
laid out in Pike v. Bruce Church, Inc., 397 U.S. 137 (1970),
and by ignoring genuine disputes of material fact at the
summary-judgment stage. As to the Equal Protection Clause,
appellants contend that summary judgment is not appropriate
because there remain genuine disputes of material fact regarding
whether private companies are subject to differential treatment
under the Flow Control Ordinance.
We review de novo the district court’s grant of summary
judgment. Building Graphics, Inc. v. Lennar Corp., 708 F.3d
573, 578 (4th Cir. 2013). Summary judgment is appropriate when
the moving party shows that there is no genuine dispute of
4
Appellants do not mention a separate South Carolina Equal
Protection Clause claim in their appellate brief, so they have
waived this state law claim. Fed. R. App. P. 28(a)(8).
9
material fact and it is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a).
A.
Appellants first argue that the Flow Control Ordinance
violates the Commerce Clause of the U.S. Constitution, which
gives Congress the power to “regulate Commerce with foreign
Nations, and among the several States, and with the Indian
Tribes.” U.S. Const. art. I, § 8, cl. 3. The Supreme Court has
interpreted the Commerce Clause as also having a negative
implication, often called the “Dormant Commerce Clause”: states
generally cannot pass protectionist measures that favor in-state
actors over out-of-state actors. See, e.g., Or. Waste Sys.,
Inc. v. Dep’t of Envtl. Quality, 511 U.S. 93, 99 (1994); City of
Philadelphia v. New Jersey, 437 U.S. 617, 623–24 (1978). The
Supreme Court has also used the Dormant Commerce Clause to
invalidate locally protectionist measures that target all
outsiders, not just those from other states. See, e.g., Dean
Milk Co. v. City of Madison, 340 U.S. 349, 353 (1951)
(invalidating under the Dormant Commerce Clause a municipal
ordinance that forbade the sale of milk unless it was
pasteurized within five miles of the city center).
We begin our Dormant Commerce Clause analysis by “ask[ing]
whether a challenged law discriminates against interstate
commerce.” Dep’t of Revenue v. Davis, 553 U.S. 328, 338 (2008).
10
When a restriction on commerce is discriminatory--that is, it
benefits in-state economic interests while burdening out-of-
state economic interests--“it is virtually per se invalid.” Or.
Waste Sys., 511 U.S. at 99. The state may only overcome the
presumption of unconstitutionality by showing that the
protectionist measure serves a legitimate local purpose that
could not be served by alternate, nondiscriminatory means.
Davis, 553 U.S. at 338; see also Maine v. Taylor, 477 U.S. 131,
138–40 (1986). “Absent discrimination for the forbidden
purpose,” a statute affecting interstate commerce is subject to
the balancing test laid out in Pike. Davis, 553 U.S. at 338.
In such a case, the law “will be upheld unless the burden
imposed on such commerce is clearly excessive in relation to the
putative local benefits.” Pike, 397 U.S. at 142.
The recent Supreme Court decision in United Haulers Ass’n
v. Oneida-Herkimer Solid Waste Management Authority, 550 U.S.
330, 346 (2007), is not only instructive, it is largely
dispositive of appellants’ Dormant Commerce Clause claims. In
United Haulers, the Court upheld Oneida and Herkimer Counties’
flow control ordinances, which are remarkably similar to the one
at issue here. The Oneida and Herkimer ordinances also
“require[d] haulers to bring waste to facilities owned and
operated by a state-created public benefit corporation.” 550
U.S. at 334. The Court first determined that the challenged
11
flow control ordinances are not discriminatory because they
favor the government while treating all private parties the
same. Id. at 345. Then, a plurality of the Court determined
that they withstood the Pike balancing test. Id. at 347. We
now apply United Haulers to the facts before us.
1.
First, we must determine whether the Flow Control Ordinance
discriminates against interstate commerce. A statute will
almost always violate the Dormant Commerce Clause if it
“discriminates facially, in its practical effect, or in its
purpose.” McBurney v. Young, 667 F.3d 454, 468 (4th Cir. 2012)
(internal quotations and citations omitted). In United Haulers,
the Supreme Court determined that flow control ordinances
favoring the government while “treat[ing] in-state private
business interests exactly the same as out-of-state ones[] do
not ‘discriminate against interstate commerce’ for purposes of
the dormant Commerce Clause.” 550 U.S. at 345.
As the Supreme Court reiterated in Davis, “a government
function is not susceptible to standard dormant Commerce Clause
scrutiny owing to its likely motivation by legitimate objectives
distinct from the simple economic protectionism the Clause
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abhors.” 553 U.S. at 341. 5 Trash disposal is a traditional
function of local government, so county waste-management
ordinances can permissibly distinguish between private
businesses and those controlled by states, counties, and
municipalities. See United Haulers, 550 U.S. at 342, 344. Like
the ordinances in United Haulers, the Horry County Flow Control
Ordinance “benefit[s] a clearly public facility.” 550 U.S. at
342.
We now consider whether the Flow Control Ordinance treats
all private businesses alike. Appellants argue that it does not
and should thus be subject to the rule of per se invalidity for
discriminatory statutes under Oregon Waste Systems, 511 U.S. at
99. We reject each of their arguments because the record does
not indicate that appellants have been treated differently from
other private businesses.
Appellants contend that the Sandlands landfill has been
treated differently from the landfill owned by neighboring
Georgetown County, because that facility has continued to
receive waste from Horry County, despite not being designated
under the Ordinance. Under the Dormant Commerce Clause,
5
We decline appellants’ invitation to hunt for a
discriminatory purpose in the Flow Control Ordinance’s
legislative history and County Council members’ post hoc
statements.
13
however, the question is whether Sandlands has been treated
differently from other private businesses--not other public
entities. Appellants’ argument that there is no justification
for differential treatment of public and private landfills
misapprehends the public-private distinction articulated in
United Haulers, which definitively distinguished the government-
favoring Oneida and Herkimer ordinances from an ordinance
favoring a private facility that was struck down in C&A Carbone,
Inc. v. Town of Clarkstown, 511 U.S. 383 (1994). See 550 U.S.
at 341.
Appellants also maintain that Horry County has
discriminated against them by not allowing them to process and
sort mixtures of acceptable waste and recyclables at their
facility in Marion County. The district court rejected this
argument and so do we, because appellants have not been treated
differently from other private businesses. Sandlands and EDS
could choose to separate recyclables and unacceptable waste from
acceptable waste covered by the Flow Control Ordinance, just as
other companies have done within Horry County. The extracted
recovered materials could then be removed to their facility in
Marion County.
To conclude, because no private landfills can be designated
by the SWA, all private landfills are treated equally.
Furthermore, all private haulers are prohibited from
14
transporting waste from Horry County to landfills not operated
by or designated by the SWA. Under the Ordinance, EDS can still
haul Horry County waste to the SWA landfills, as do other local
hauling companies. Therefore, the Flow Control Ordinance does
not discriminate against interstate commerce.
2.
Because the Flow Control Ordinance is not discriminatory,
we must consider its burdens and benefits under Pike. 6 In Pike,
the Supreme Court held that if a “statute 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.” 397 U.S.
at 142 (internal citations omitted). Even when examining
county-level regulations, we focus on burdens to interstate
commerce by asking whether there exists a “disparate impact on
out-of-state as opposed to in-state businesses.” United
Haulers, 550 U.S. at 346.
6
Appellants briefly assert that the trier of fact must make
its determinations before the application of the Pike test. The
posture of United Haulers itself belies this position. Although
United Haulers was decided “[a]fter years of discovery” in which
the district court judge “could not detect any disparate
impact,” 550 U.S. at 346 (emphasis omitted), it too was decided
at the summary-judgment stage, United Haulers Ass’n v. Oneida-
Herkimer Solid Waste Mgmt. Auth., 438 F.3d 150, 155 (2d Cir.
2006).
15
Here, we need not actually balance the interests laid out
in Pike because the Supreme Court has already done so. See
United Haulers, 550 U.S. at 346–47. In United Haulers, the
Court held that flow control ordinances do address a legitimate
local public interest. Id. at 334. It did not “decide whether
the ordinances impose[d] any incidental burden on interstate
commerce” because it found that “any arguable burden does not
exceed the public benefits of the ordinances.” Id. at 346. The
same analysis is applicable to the Horry County Flow Control
Ordinance, because it clearly confers public benefits that
outweigh any conceivable burden on interstate commerce.
To begin, the Flow Control Ordinance has only an arguable
effect on interstate commerce, even if it does affect intrastate
commerce to some degree. Appellants have only shown that the
Flow Control Ordinance affects them; they have not shown it has
any impact on out-of-state businesses. And contrary to
appellants’ contention that the Flow Control Ordinance only
generates revenue and confers no benefits, the record clearly
shows that the Flow Control Ordinance produces the same benefits
that the Supreme Court plurality recognized in United Haulers.
See id. at 346–47. Moreover, the Flow Control Ordinance’s
waste-management program is a quintessential exercise of local
police power, which courts are loathe to overturn by
16
substituting their judgment for that of local elected officials.
See id. at 347.
Like the ordinances in United Haulers, the Horry County
Ordinance provides “a convenient and effective way to finance
[an] integrated package of waste disposal services.” Id. at
346. The Ordinance creates a revenue stream through which the
county can support waste management, recycling programs, and its
911 calling system. Although revenue generation alone cannot
justify facial discrimination, United Haulers recognized that it
can constitute a benefit under the Pike test. Id. The
Ordinance also confers other “significant health and
environmental benefits.” See id. at 347. Examples include
public education about recycling, increased opportunities for
recycling, and the operation of a green power facility that
generates electricity using landfill gas. In fact, the SWA has
won statewide awards for its environmentally friendly waste-
management programs.
In sum, the Horry County Flow Control Ordinance provides
the same types of benefits and imposes the same types of burdens
as the ordinances upheld in United Haulers. We therefore
conclude that it does not violate the Dormant Commerce Clause.
To hold otherwise would ignore precedents ensuring that this
court does not become a superlegislature that “rigorously
17
scrutinize[s] economic legislation passed under the auspices of
the police power.” United Haulers, 550 U.S. at 347.
3.
Appellants argue that summary judgment is not appropriate
because there is a factual dispute about whether the Flow
Control Ordinance discriminates against interstate commerce.
The record, however, does not reveal any disputes of material
fact. At summary judgment, “[a]lthough the court must draw all
justifiable inferences in favor of the nonmoving party, the
nonmoving party must rely on more than conclusory allegations,
mere speculation, the building of one inference upon another, or
the mere existence of a scintilla of evidence.” Dash v.
Mayweather, 731 F.3d 303, 311 (4th Cir. 2013).
Appellants allege that the SWA discriminates by allowing
some haulers to take waste to landfills outside of Horry County,
while penalizing EDS for attempting to do the same. The only
evidence appellants cite for their argument, however, is that
1,844 tons of waste have left Horry County since 2009. In
response, SWA officials testified that all Horry County waste
that has not been disposed of at an SWA or another public
landfill has either constituted unacceptable waste falling
outside of the Ordinance or been removed without the SWA’s
knowledge or approval. Sandlands and EDS have presented no
evidence to contradict this testimony, and the record does not
18
show that EDS has been cited for taking trash to a public
landfill.
B.
Finally, appellants challenge the district court’s
determination that the Flow Control Ordinance does not violate
the Equal Protection Clause of the U.S. Constitution.
Appellants argue that summary judgment is not appropriate
because material issues of fact remain regarding whether they
were in fact treated like similarly situated businesses.
Sandlands and EDS allege the same factual disputes under the
Equal Protection Clause that we rejected under the Dormant
Commerce Clause. We reject them here as well.
The Equal Protection Clause prohibits states from
“deny[ing] to any person within its jurisdiction the equal
protection of the laws.” U.S. Const. amend. XIV, § 1. “To
succeed on an equal protection claim, a plaintiff must first
demonstrate that he has been treated differently from others
with whom he is similarly situated and that the unequal
treatment was the result of intentional or purposeful
discrimination.” Morrison v. Garraghty, 239 F.3d 648, 654 (4th
Cir. 2001). If a plaintiff makes this initial showing, the
court analyzes the disparity under an appropriate level of
scrutiny. Id. However, we do not reach that level of analysis
because Sandlands and EDS have failed to show that they have
19
been intentionally treated differently from other similarly
situated companies. Summary judgment is therefore appropriate
on appellants’ Equal Protection Clause claim.
III.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
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