Ehm v. Bd Trst Metro Rapid , 251 F. App'x 930 ( 2007 )


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  •           IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT United States Court of Appeals
    Fifth Circuit
    FILED
    October 24, 2007
    No. 06-51148
    Summary Calendar               Charles R. Fulbruge III
    Clerk
    ALFRED E EHM
    Plaintiff-Appellant
    v.
    BOARD OF TRUSTEES OF THE METROPOLITAN RAPID TRANSIT
    AUTHORITY OF SAN ANTONIO
    Defendant-Appellee
    Appeal from the United States District Court
    for the Western District of Texas
    USDC No. 5:06-CV-103
    Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
    PER CURIAM:*
    Alfred E. Ehm appeals, pro se, from the dismissal, without prejudice, of his
    pro se civil rights complaint for failure to state a claim. The Federal Rule of
    Civil Procedure 12(b)(6) dismissal is reviewed de novo. E.g., In re Katrina Canal
    Breaches Litig., 
    495 F.3d 191
    , 205 (5th Cir. 2007).
    Ehm maintains: the members of the Board of Trustees of the Metropolitan
    Rapid Transit Authority of San Antonio (Board) are selected by an
    *
    Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
    should not be published and is not precedent except under the limited
    circumstances set forth in 5TH CIR. R. 47.5.4.
    No. 06-51148
    unconstitutional method. The Board is composed of 11 members appointed in
    the following way: the San Antonio City Council appoints five members, the
    mayors of the municipalities within the Transit Authority appoint two members,
    the Commissioners Court of Bexar County appoints three members, and the
    majority of the Board appoints one member. TEX. TRANSP. CODE ANN. §§
    451.501(a), (e), 451.502(a), (e) (Vernon 2006).
    Ehm contends: the appointment of Board members rather than the
    general election of Board members by San Antonio citizens violates his rights
    under the Equal Protection Clause and the “one person, one vote” principle
    arising under that Clause. Ehm’s contentions are without merit. The Board was
    created by state statutory authority, which provides for appointment rather than
    election to the Board. Id. The statute gives the Board power to perform
    essentially administrative rather than legislative functions. See Id. § 451.053;
    City of Atlanta v. Metro. Atlanta Rapid Transit Auth., 
    636 F.2d 1084
    , 1089 (5th
    Cir. Unit B Feb. 1981). Accordingly, this system of appointment does not violate
    equal protection or the “one person, one vote” principle. See Sailors v. Bd. of
    Educ., 
    387 U.S. 105
    , 111 (1967); City of Atlanta, 
    636 F.2d at 1089
    . No authority,
    constitutional or otherwise, requires the Board to elect its members. See City of
    Atlanta, 
    636 F.2d at 1089
    ; Byrd v. City of San Antonio, 
    587 F.2d 184
    , 186 (5th
    Cir. 1979).
    To the extent that Ehm asserts the Board violated equal rights of citizens
    through taxation without representation, this claim fails as well. The Board has
    the power to levy taxes only with the prior approval by a vote from San Antonio
    citizens. TEX. TRANSP. CODE ANN. §§ 451.401 & 451.402 (Vernon 2006).
    For the first time on appeal, Ehm contends: the Board’s method of
    appointing its members violates the Voting Rights Act of 1965. This court need
    not address issues not raised in district court. Leverette v. Louisville Ladder Co.,
    
    183 F.3d 339
    , 342 (5th Cir. 1999).
    2
    No. 06-51148
    Accordingly, the district court did not err in granting the Board’s motion
    to dismiss Ehm’s complaint. See Bell Atl. Corp. v. Twombly, 
    127 S. Ct. 1955
    ,
    1974 (2007).
    AFFIRMED.
    3