Da Vinci Investment, L.P. v. City of Arlington, Texas, et al

Filing

UNPUBLISHED OPINION FILED. [14-10880 Affirmed in Part and Reversed in Part] Judge: JLW , Judge: LHS , Judge: JEG Mandate pull date is 09/01/2015 [14-10880]

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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-10880

United States Court of Appeals
Fifth Circuit

FILED
DA VINCI INVESTMENT, LIMITED PARTNERSHIP,

August 11, 2015
Lyle W. Cayce
Clerk

Plaintiff - Appellee
v.

CHARLIE PARKER; KATHRYN WILEMON; SHERI CAPEHART; JIMMY
BENNETT; MICHAEL GLASPIE,
Defendants - Appellants

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:13-CV-971
Before WIENER, SOUTHWICK, and GRAVES, Circuit Judges.
PER CURIAM:*
Plaintiff Da Vinci Investment Limited Partnership sued the City of
Arlington, Texas, and five city council members in their official and individual
capacities. Da Vinci claimed violations of its substantive due process and equal
protection rights under 42 U.S.C. § 1983, and also claimed that an unlawful
taking occurred under the Texas Constitution.

The individual council

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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members filed a motion for judgment on the pleadings on the Section 1983
individual capacity claims on the basis of absolute and qualified immunity.
The district court denied the motion. This interlocutory appeal followed. We
AFFIRM in part and REVERSE in part.
FACTUAL AND PROCEDURAL BACKGROUND
This case arises out of a proposed development plan to build a car wash
in Arlington, Texas. In 1991, Da Vinci purchased approximately 12 acres of
undeveloped land in Arlington and obtained a zoning change on the property
to “planned development” (“PD”). PD zoning provides that property can only
be developed in accordance with an approved development plan. Over several
years, Da Vinci developed and sold portions of the land. The land at issue in
this appeal is Da Vinci’s sole remaining tract (the “Lot”). In 2012, Da Vinci
contracted with a third party who would purchase the Lot; the purchase was
conditioned upon approval by the City of a development plan to build a car
wash. Pursuant to the PD zoning, a car wash was a permitted use on the Lot.
In February 2013, the City conducted a review and found that the
proposed development plan for a car wash was unlikely to have a negative
effect on the location and was consistent with the surrounding uses. In March,
Da Vinci and the purchaser submitted a formal development plan application
for the Lot. That same month, a City staff report found that the plan complied
with the minimum commercial design standards and would have no impact on
traffic.
There was significant opposition to the development plan from real
estate developer Jim Poynter and two former city officials. These individuals
sent emails to the council members stating their objections and sometimes
attaching letters of opposition from community members. Council member
Parker answered one such email from Poynter: “Thanks Jim more wood for
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the fire and it is much appreciated.” Another email from Parker to Poynter
stated: “I think that you have this thing knocked. I know that I can get [council
member] Sheri[] [Capehart’s] vote against also.”
In May, after a public hearing, the planning and zoning commission
recommended against approving the development plan because the plan did
not mitigate compatibility problems and enhance the neighborhood areas. Da
Vinci appealed the commission’s decision to the city council; the council agreed
to hear the appeal. The next day, Poynter sent an email to council member
Bennett inquiring about the decision to approve the appeal.

Bennett

responded: “I voted in favor because I have a personal policy to hear almost
all [o]f these types [o]f requests. That being said, I cannot imagine a scenario
where the case would ever get my support. Thanks for all you do Jim.”
In August, the city council conducted a public hearing to consider the
development plan.

The hearing consisted of, among other things, a

presentation by Da Vinci and opinions of citizens who spoke both for and
against the plan. At the conclusion of the hearing, the council voted to deny
the development plan application by a vote of 5-4. The denial was made
without discussion. The contract of sale between Da Vinci and the purchaser
was thereafter terminated.
In November 2013, Da Vinci filed suit against the City and the council
members in state court. The case was removed to the United States District
Court for the Northern District of Texas. The council members filed a motion
for judgment on the pleadings and a motion for summary judgment. 1 In the
motions, the council members argued they were entitled to absolute or at least
qualified immunity. The district court denied the motion for judgment on the

The pleadings before the district court were Da Vinci’s complaint and a Federal Rule
of Civil Procedure 7(a) reply to the council members’ answer. No dispositive motions were
filed by the City or the council members in their official capacities.
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pleadings and did not consider the motion for summary judgment. The district
court then issued a pretrial scheduling order directing the parties to conduct
limited discovery related to the immunity defenses. The council members filed
a timely appeal of the district court’s denial of absolute and qualified immunity
and the discovery order.
DISCUSSION
Orders rejecting absolute and qualified immunity defenses are
immediately appealable. Will v. Hallock, 546 U.S. 345, 350 (2006). A district
court’s refusal to dismiss claims on the basis of absolute or qualified immunity
is reviewed de novo. Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999).
A motion for judgment on the pleadings under Federal Rule of Civil
Procedure 12(c) is subject to the same standards as a Rule 12(b)(6) motion to
dismiss. Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008). “To survive
a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)).
When asserting an immunity defense, “[i]t is sufficient that the movant
in good faith pleads that it is entitled to absolute or qualified immunity.” Beck
v. Tex. State Bd. of Dental Exam’rs, 204 F.3d 629, 633 (5th Cir. 2000). “Once
the movant asserts this affirmative defense, the burden shifts to the plaintiff
to rebut it.” Id. at 633-34 (citation, quotation marks, and alteration omitted).
I.

Absolute Immunity

“Local legislators are entitled to absolute immunity from § 1983 liability
for their legislative activities.” Bogan v. Scott-Harris, 523 U.S. 44, 54 (1998).
To determine whether a particular activity is legislative, we use two tests:
The first test focuses on the nature of the facts used to reach the
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given decision. If the underlying facts on which the decision is
based are legislative facts, such as generalizations concerning a
policy or state of affairs, then the decision is legislative. If the facts
used in the decisionmaking are more specific, such as those that
relate to particular individuals or situations, then the decision is
administrative. The second test focuses on the particularity of the
impact of the state action. If the action involves establishment of
a general policy, it is legislative; if the action single[s] out specific
individuals and affect[s] them differently from others, it is
administrative.
Hughes v. Tarrant Cnty., 948 F.2d 918, 921 (5th Cir. 1991) (quotation marks
omitted).
The district court held that Da Vinci had “pleaded sufficient facts to
overcome Individual Defendants’ absolute immunity defense.”

The court

relied on the fact that the denial of the development plan “affected a specific
individual and a specific situation” and “was not a general and prospective
action that affected the entire community or a prospective amendment of a
larger general plan that merely related to Plaintiff’s property.”
The council members argue that they are entitled to absolute immunity
because the denial of the development plan application was a legislative
activity. They contend that the “process for obtaining approval of [Da Vinci’s]
development plan application was a zoning event under the City’s code
provisions” and zoning is a legislative activity. 2 Da Vinci contends that this is
not a zoning case because “it does not involve a change to the zoning
classification for Da Vinci’s property.” It argues that the council members fail
to distinguish between the ordinance processes for rezoning into a new PD
district and plan approval for property in an existing PD zone. The denial of
its development plan, Da Vinci argues, only involved the second step and was

All ordinances referenced in this opinion are those that were in effect at the time of
the events in question.
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therefore not a zoning decision.
In one precedent, a developer submitted a plan to build apartments.
Bryan v. City of Madison, 213 F.3d 267, 269 (5th Cir. 2000). The plan was
approved, but the developer failed to apply for a permit within the deadline
established by the city ordinances. Id. at 270. As a result, he was forced to
resubmit the plan for approval. Id. His site plan was again approved, but the
mayor vetoed it. Id. Bryan submitted another plan, which the board approved,
and the mayor vetoed. Id. at 271. This pattern repeated itself until Bryan
eventually lost his opportunity to purchase the land. Id. Bryan sued the
mayor, among others, under Section 1983 alleging violation of his Fifth and
Fourteenth Amendment rights. Id. at 272. The district court concluded the
mayor was entitled to absolute immunity. Id.
On appeal, we reversed. Id. Applying the tests used in Hughes, we
determined that the mayor’s vetoes were not legislative actions:
In each instance, the mayor was vetoing a determination that
Bryan’s plan satisfied city zoning ordinances or building
requirements.
Such a determination does not involve the
determination of a policy. Rather than constituting a prospective
rule, an overall plan, or general policy, this determination entered
the realm of enforcement with respect to approval of a specified
proposed plan. Finally, under the two . . . tests, the determination
was based on specific, particular facts and affected Bryan’s
development alone.
Id. at 273 (internal quotation marks omitted). We also noted that, under our
precedent, zoning is a legislative activity because it “is general and
prospective” and “directly affects the entire community.” Id. We determined
that “[i]n the present case, however, general rules are being applied to one
specific piece of property” and therefore the activity was administrative rather
than legislative. Id. at 273-74.
Da Vinci’s development plan was “based on specific, particular facts and
affected [Da Vinci’s] development alone.” See id. at 273. The denial of the plan
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did not “involve the determination of a policy,” but, instead, applied “general
rules . . . to one specific piece of property.” See id. at 273-74 (citation and
quotation marks omitted). We conclude that the council members’ denial of Da
Vinci’s development plan was not a legislative decision. There is no absolute
immunity for the council members’ actions.
The council members argue that regardless of any similarity to the
actions in Bryan, the present case involves zoning and Bryan did not. The
City’s ordinances can be read to label the development plan review process as
zoning, but we are not controlled by the labels a city chooses. The land was
zoned PD twenty-two years prior to the development plan application. The
decision being contested now involved “specific, particular facts,” which
affected “[one] development alone,” and was in “the realm of enforcement with
respect to approval of a specific proposed plan.” See id. at 273 (quotation marks
omitted). A city cannot categorize all its decisions as “zoning” in order to grant
its legislators blanket immunity.
Da Vinci pleaded sufficient facts to overcome the council members’ claim
to absolute immunity.
II.

Absolute Quasi-Judicial Immunity
The district court held that “[p]laintiff’s allegations show that Individual

Defendants’[] actions were not essentially judicial in nature and [they] were
not performing functions essentially similar to those of judges when they voted
to deny Plaintiff’s development plan and, therefore, Individual Defendants are
not entitled to quasi-judicial immunity.” In doing so, it considered the factors
enumerated in Butz v. Economou, 438 U.S. 478, 512 (1978).
Absolute quasi-judicial immunity protects officials that “perform
functions comparable to those of judges and prosecutors.” Beck, 204 F.3d at
634 (citing Butz, 438 U.S. at 512-13). Under this “functional approach,” we
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look “at the nature of the function performed, not the identity or title of the
actor who performed it.” Id. (citing Buckley v. Fitzsimmons, 509 U.S. 259, 268
(1993)). The Supreme Court has
identified a nonexhaustive list of factors to determine whether
[nonjudicial actors] perform[] “quasi-judicial” functions, and thus
are entitled to absolute immunity: (1) the need to assure that the
individual can perform his functions without harassment or
intimidation; (2) the presence of safeguards that reduce the need
for private damages actions as a means of controlling
unconstitutional conduct; (3) insulation from political influence;
(4) the importance of precedent; (5) the adversary nature of the
process; and (6) the correctability of error on appeal.
Id. (citing Butz, 438 U.S. at 511-13). “No one factor is controlling.” Id.
Da Vinci argues that the district court properly denied the council
members’ claim for absolute quasi-judicial immunity because “[i]n judicial
proceedings, judges do not solicit opposition to, and evidence against, a party
in the proceeding, as happened here.” As to the Butz factors, Da Vinci argues
that there was “absolutely no insulation of the development plan process from
political influence.” That influence was evidenced by the communications
between the council members and members of the community. Further, there
was evidence that the council members did not consider precedent to be of
importance, as they ignored the fact that the council had approved a similar
development plan for a car wash. Da Vinci also contends the process was not
adversarial because, though parties for and against the plan were provided an
opportunity to address the city council, nobody testified under oath and, with
one exception, there was no cross-examination.
The council members did not analyze the Butz factors in their initial
brief. They acknowledge the factors in their reply brief but state they “are not
absolute.” Instead, the council members contend that Texas law controls the
question whether the council members were acting in a quasi-judicial capacity.
They argue that under Texas law, a city’s consideration of whether a
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subdivision plat complies with ordinances is a quasi-judicial matter. Thus, the
denial of a development plan application is also quasi-judicial.
We disagree.

The council members cite no binding or persuasive

authority indicating that we should abandon our past consistent reliance on
Butz and instead examine state law on quasi-judicial immunity. 3 Under Butz,
Da Vinci has pleaded sufficient facts to overcome the council members’
entitlement to absolute quasi-judicial immunity.

First, because private

communications occurred between city council members and citizens, the
evidence-gathering and decision-making process was not judicial in nature.
See Beck, 204 F.3d at 634. Second, several of the Butz factors weigh in Da
Vinci’s favor. As to the second factor, there is no indication that the significant
safeguards that exist in judicial proceedings applied to the council meeting.
The record reflects that opponents and supporters of the development
registered to make presentations to the council, but that is not the equivalent
of a judicial proceeding.

No one has identified a provision in the City’s

ordinances that gives procedural rights such as a right to counsel or to crossexamine witnesses to those seeking approval of a project. Regarding the third
factor, it is evident from the facts of this case that council members are subject
to political pressures. On the fourth factor, Da Vinci’s allegation that the city
council previously approved a similar development plan supports the
conclusion that precedent is not a controlling factor. As to the fifth factor, there
were no allegations that, at the hearing, anyone was put under oath or that
witnesses were called. We have held that a proceeding was adversarial where
the “hearings were conducted by a presiding officer who administered oaths to
witnesses and made evidentiary rulings.” Id. at 636. There certainly were

For support of their contention that Texas law controls, the council members cite to
cases from the Third Circuit and the District of Colorado.
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advocates and opponents here, but they were not presenting sworn and
competing testimony from which a fact-finder was required, at least
technically, to make an objective decision.
The district court properly denied the council members’ motion for
judgment on the pleadings on the ground of absolute quasi-judicial immunity.
III.

Qualified Immunity
The council members argue that qualified immunity protects them from

liability against Da Vinci’s claims of a violation of substantive due process and
of equal protection. “[A] plaintiff seeking to defeat qualified immunity must
show: ‘(1) that the official violated a statutory or constitutional right, and (2)
that the right was “clearly established” at the time of the challenged conduct.’”
Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011) (en banc) (quoting
Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011)).
A.

Substantive Due Process Claim
The district court held that Da Vinci sufficiently pleaded a substantive

due process violation. The court determined that Da Vinci asserted a valid
property interest in having the development plan approved. Further, the
complaint supported the conclusion that the council members violated clearly
established law by arbitrarily denying Da Vinci’s property rights.
“To prevail on a substantive due process claim, [a plaintiff] must first
establish that it held a constitutionally protected property right to which the
Fourteenth Amendment’s due process protection applies.” Simi Inv. Co., v.
Harris Cnty., 236 F.3d 240, 249-50 (5th Cir. 2000). “To have a property interest
in a benefit,” a plaintiff must “have a legitimate claim of entitlement to it”;
relevant entitlements are “created and their dimensions are defined by
existing rules or understandings that stem from an independent source such
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as state law.”

Town of Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005)

(citation and quotation marks omitted). If the benefit may be granted or denied
at the discretion of government officials, it is not an entitlement. Id. Courts
look for “‘explicitly mandatory language,’ i.e., specific directives to the
decisionmaker that if the regulations’ substantive predicates are present, a
particular outcome must follow.” Ridgely v. FEMA, 512 F.3d 727, 735-36 (5th
Cir. 2008) (quoting Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 463 (1989)).
The substantive due process right Da Vinci claims it was denied is the
right to use its land “in a lawful manner for a lawful purpose.” That is too
broad a definition to be useful for our substantive due process analysis. 4 Da
Vinci must show an entitlement under state or local law to approval of its
development plan.

In Ridgely, we held there was no property right in

continued rent assistance because the pertinent statutes and regulations
contained no mandatory language entitling the plaintiffs to the benefit. Id. at
736.

Instead, the statutes provided that “FEMA may provide continued

housing assistance.” Id. (citation and quotation marks omitted). We held that
“[b]ecause no ‘specific directives’ limit FEMA’s discretion by compelling it to
provide assistance upon a showing of eligibility, these provisions do not give
rise to a property interest.” Id.
Here, if, under the ordinances, city council members could “grant or deny
[a development plan application] in their discretion,” there was no entitlement

Da Vinci argues that its property rights do not need to arise from a particular statute
or ordinance. Instead, it argues that its property right arises generally from Texas law, citing
a decision of this court in which we stated that “Texas law recognizes that the right of the
owner of a property interest to use his property for a lawful purpose” is a “property right” for
due process purposes. Shelton v. City of Coll. Station, 754 F.2d 1251, 1256-57 (5th Cir. 1985).
After Shelton was reheard en banc, though, the full court effectively withdrew that definition
of a protected property right for due process purposes. We ruled on other grounds, and said
“we do not today undertake the task of defining the property right in question or deciding the
related question of whether the state has deprived [the plaintiffs] of any property.” Shelton
v. City of Coll. Station, 780 F.2d 475, 479 (5th Cir. 1986) (en banc).
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to the benefit and, therefore, no protected property right. See Castle Rock, 545
U.S. at 756. Da Vinci argues that the council members had no discretion to
deny its development plan because it had met all the guidelines set forth in the
ordinances. We find no such mandatory language. Neither in its pleadings
nor its brief does Da Vinci cite any explicit language in the ordinances
requiring, for example, the city council to grant a development plan application
when all guidelines are met. While Da Vinci is correct that section 9-300(E)(9)
of the ordinances states that “[n]othing listed [in the guidelines] shall limit the
Council’s ability to require more restrictive standards necessary to protect the
public’s health, safety and welfare,” that language does not require the council
to approve a development plan application that meets all the guidelines.
Because there is no “explicitly mandatory language” in the ordinances
requiring city officials to approve a development plan, even where a plan meets
all required guidelines, the city council had discretion to grant or deny the
benefit. Accordingly, Da Vinci did not have a protected property right in the
approval of its development plan. 5
Without a protected property interest, there can be no substantive due
process violation.

See Simi Inv. Co., 236 F.3d at 249-50.

Because no

constitutional violation has been shown, we need not address the second prong

Da Vinci also argues that “Texas courts have also held that, although the granting
of permits is generally considered a privilege and not a right, if one meets the required
criteria to obtain a permit, it may not be lawfully refused, thereby becoming a right.” With
one exception, none of the Texas state cases cited by Da Vinci for support of this argument
addresses protected property rights for due process purposes. The case that does address
constitutionally protected property rights supports our holding. In that decision, the court
stated that “whether a property-holder possesses a legitimate claim of entitlement to a [landuse] permit or approval turns on whether, under state and municipal law, the local agency
lacks all discretion to deny issuance of the permit or to withhold its approval.” Arbor Bend
Villas Hous., L.P. v. Tarrant Cnty., Hous. Fin. Corp., No. 4:02-CV-478, 2005 WL 548104, at
*18 (N.D. Tex Mar. 9, 2005) (quoting Gardner v. Baltimore Mayor and City Council, 969 F.2d
63, 68 (4th Cir. 1992)).
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of qualified immunity. The council members are entitled to qualified immunity
on Da Vinci’s substantive due process claim.
B.

Equal Protection Claim
The district court held that Da Vinci pleaded sufficient facts to establish

that the council members’ conduct violated Da Vinci’s “clearly established
constitutional right to equal protection in application of these land-use
regulations,” and the law was “clearly established . . . at the time of the
challenged actions in this case.”
The Supreme Court has 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.” Village of Willowbrook v.
Olech, 528 U.S. 562, 564 (2000) (citation omitted).
Da Vinci argues the district court was correct as it sufficiently pleaded
that it was treated differently than other similarly situated landowners
without a rational basis. Da Vinci pleaded that it was treated differently than
the “Cooper Project,” a development plan for a car wash facility that was
approved by the city council less than two years before Da Vinci’s application.
In light of this, Da Vinci argues, there was no rational basis for the council
members to deny its development plan application. As to whether the right
was clearly established, Da Vinci argues that, at the time of the alleged acts,
“this court had clearly established that different treatment of similarly
situated parties without a rational basis was a violation of equal protection
rights.”
The council members failed in their initial brief to make any argument
on Da Vinci’s equal protection claim. They discuss the Cooper Project in their
reply brief in the context of their absolute immunity claim, but “[a]rguments
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raised by appellants for the first time in reply briefs are waived.” Warren v.
Chesapeake Expl., L.L.C., 759 F.3d 413, 420 (5th Cir. 2014).
We conclude Da Vinci’s well-pleaded facts, which we must accept as true,
“state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 570). Accordingly, the district court’s conclusion
that Da Vinci sufficiently pleaded its equal protection claim was proper.
On the second part of the qualified immunity analysis, Da Vinci argues
that the law surrounding the violation of equal protection rights under facts
similar to those at hand is clearly established and cites several cases of this
circuit. We agree with the district court that “[i]n the context of land-use
decisions, a ‘class of one’ equal protection claim was clearly established . . . at
the time of the challenged actions in this case.” See, e.g., Olech, 528 U.S. at
564 (holding an equal protection claim sufficiently stated where the plaintiff
alleged the municipality intentionally treated similarly situated property
owners differently without a rational basis); Mikeska v. City of Galveston, 451
F.3d 376, 381-82 (5th Cir. 2006) (reversing summary judgment for the
defendant city on an equal protection claim involving a land use decision and
noting that the plaintiff “must show that the difference in treatment with
others similarly situated was irrational”); Bryan, 213 F.3d at 276 (noting that
“[a]s a prerequisite to [an equal protection claim], the plaintiff must prove that
similarly situated individuals were treated differently”).
Because Da Vinci has pleaded facts sufficient to overcome the council
members’ qualified immunity defense on its equal protection claim, the district
court’s denial of the council members’ motion for judgment on the pleadings on
this claim is affirmed.
IV.

Discovery Order
After denying the council members’ motion for judgment on the
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pleadings, the district court ordered discovery “limited to . . . issues relating to
Individual Defendants’ assertions of absolute, qualified, and official immunity
in defense of the claims asserted against them[.]” 6

It also ordered that

“[s]ummary judgment motions based on immunity, if any,” were to be filed by
a specific date.
Once qualified immunity is raised as a defense, a district court generally
should not permit discovery until the immunity issues have been addressed.
“One of the most salient benefits of qualified immunity is protection from
pretrial discovery, which is costly, time-consuming, and intrusive.” Backe v.
LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012). “If [a] complaint alleges facts to
overcome the defense of qualified immunity, the district court may then
proceed . . . to allow the discovery necessary to clarify those facts upon which
the immunity defense turns.” Wicks v. Miss. State Emp’t Servs., 41 F.3d 991,
995 (5th Cir. 1995). We see no reason to treat discovery questions differently
when absolute immunity is claimed.
Here, the district court concluded that Da Vinci pleaded sufficient facts
to overcome the council members’ entitlement to absolute and qualified
immunity. It then ordered limited discovery to explore the factual basis for the
claims of immunity. We have affirmed the district court’s holding that Da
Vinci pleaded sufficient facts to overcome the council members’ entitlement to
a dismissal based on absolute and qualified immunity on the equal protection
claim. The council members do not assert that discovery would exceed the
narrow focus appropriate for the immunity issues. Instead, they argue that
any discovery will intrude into the integrity of the legislative process by
examining their motives, knowledge, and the like. We reject that argument as

The district court also ordered discovery on “issues relating to Plaintiff’s claims
against the City of Arlington.”
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the decision in question was not a legislative one. Discovery relating to the
council members’ assertions of immunity defenses on Da Vinci’s equal
protection claim is proper. The council members are entitled to qualified
immunity on Da Vinci’s substantive due process claim, though, and discovery
that pertains to that claim was not properly ordered.
***
We AFFIRM the district court’s denial of the council members’ motion
for judgment on the pleadings on Da Vinci’s equal protection claim.

We

REVERSE the district court’s denial of the council members’ motion for
judgment on the pleadings on the substantive due process claim and hold that
the council members are entitled to qualified immunity as to that claim. As to
the discovery order, we AFFIRM to the extent discovery relates to the equal
protection claim but REVERSE as to the substantive due process claim.

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