Case: 15-20117        Document: 00513368506          Page: 1     Date Filed: 02/03/2016




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT


                                       No. 15-20117                        United States Court of Appeals
                                                                                    Fifth Circuit

                                                                                  FILED
                                                                            February 3, 2016
                                                                             Lyle W. Cayce
HOUSTON PROFESSIONAL TOWING ASSOCIATION,                                          Clerk

                                                   Plaintiff–Appellant,

versus

CITY OF HOUSTON,

                                                   Defendant–Appellee.




                   Appeals from the United States District Court
                        for the Southern District of Texas




Before JONES and SMITH, Circuit Judges, and FITZWATER, District Judge.*
JERRY E. SMITH, Circuit Judge:

     Houston Professional Towing Association (“HPTA”) brings its third law-
suit challenging SafeClear, the freeway towing program run by the City of
Houston based on amendments to the program made in 2009 and 2011. HPTA
contends that the program is preempted by 49 U.S.C. § 14501 and violates its



     *   District Judge of the Northern District of Texas, sitting by designation.
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                                  No. 15-20117
commercial-speech rights.     HPTA appeals an adverse summary judgment.
Finding both of its contentions barred by res judicata, we affirm.

                                        I.
      In 2004, the city enacted Ordinance No. 2004-497, which created a free-
way towing program known as SafeClear to address congestion and safety
issues. The city contracted with eleven towing companies to patrol various
freeways around the clock and to remove wrecked and disabled vehicles. In
2005, HPTA, which represents tow operators in the Houston area (none of
which was awarded a SafeClear contract), sued in federal court. Among other
claims, HPTA argued that the ordinance was barred by the 49 U.S.C. § 14501,
which preempts state laws “related to a price, route, or service of any motor
carrier.” 

14501(c)(1). The district court concluded that the portions of
the ordinance that regulated consent tows (tows requested by the owner) and
prohibited “qualified tow operators from operating on major freeways” were
preempted. Hous. Prof’l Towing Ass’n v. City of Hous., No. CIV. A. H-05-0323,

, at *12 (S.D. Tex. Aug. 31, 2005) (“SafeClear I”).

      The city amended the ordinance to bring it into compliance. In 2006,
HPTA filed a second suit (this time in state court), challenging the amended
ordinance and again arguing that it was preempted by 49 U.S.C. § 14501.
HPTA also averred that the ordinance infringed on its commercial speech. The
city removed to federal court, and the district court entered summary judg-
ment, holding that the ordinance was not preempted by § 14501. Hous. Prof’l
Towing Ass’n v. City of Hous., No. CIV. A. H-06-1174, 

, at *1–
3, *6 (S.D. Tex. Apr. 16, 2008) (“SafeClear II”). The court specifically noted the
safety and non-consent exceptions to the statute, which allow states to regulate
for safety purposes as well as to regulate tows conducted without the owner’s
consent. See 

49 U.S.C. § 14501(c)(2)(A), (C). The court also rejected

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                                     No. 15-20117
the commercial-speech claims. SafeClear II, 

, at *5.

      In 2009, by Ordinance No. 2009-1347, the City made a minor amendment
to SafeClear, which clarified that tow operators were not allowed to solicit bus-
iness at the scene of an accident until the police had departed. Previously, the
city code stated that tow operators could not solicit business at an accident
scene until the police had completed their investigation or authorized solicita-
tion. See Houston Code of Ordinances § 8-128.

      In May 2011, the city again amended the SafeClear program 1 by Ordi-
nance No. 2011-324, which required vehicle owners to pay for the SafeClear
tows of vehicles stalled on the shoulder; previously the city had paid for those
tows. An agreement with SafeClear operators set the rate at $50. Notably,
before the 2011 amendments, SafeClear already had required the owners of
vehicles that were blocking traffic lanes to pay for towing, and tow operators
are allowed to charge up to $160. If the owner cannot pay for towing a stalled
vehicle from the shoulder, the tow operator is required to tow the vehicle to a
licensed storage facility that is lighted and manned on a twenty-four-hour
basis. The owner cannot be charged storage fees for the first forty-eight hours.
See Houston Code of Ordinances § 8-127(5).           The preamble to Ordinance
No. 2011-324 noted that the SafeClear program “expeditiously clear[s] stalled
and wrecked vehicles from Houston’s freeways” and explained that the “elimin-
ation of free towing and minor roadside assistance to citizens would alleviate
the City’s financial obligations.”

      In November 2011, HPTA filed this third suit, in state court, again
alleging that amendments to SafeClear are preempted by 49 U.S.C. § 14501,




      1  There have been minor later amendments to the SafeClear program, but they are
not at issue in this suit.
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                                       No. 15-20117
infringe on its members’ commercial speech, and constitute a regulatory tak-
ing. 2 The City again removed to federal court and maintained that the suit
was barred by res judicata. The district court denied the city’s motion to dis-
miss, determining that the city had not met its burden of proof with respect to
res judicata nor defeated the claim of preemption. After additional briefing,
the court granted the city’s motion for summary judgment, deciding that the
SafeClear amendments were not a substantive change to the program that
could form the basis for a new claim of federal preemption, so res judicata
applied. HPTA appeals.

                                             II.
                                             A.
       “Under res judicata, a final judgment on the merits of an action pre-
cludes the parties or their privies from relitigating issues that were or could
have been raised in that action.” Allen v. McCurry, 

, 94 (1980).
“[R]es judicata encompasses two separate but linked preclusive doctrines:
(1) true res judicata or claim preclusion and (2) collateral estoppel or issue pre-
clusion.” Comer v. Murphy Oil USA, Inc., 

, 466–67 (5th Cir. 2013)
(quoting Test Masters Educ. Servs., Inc. v. Singh, 

, 571 (5th Cir.
2005)). True res judicata “bars the litigation of claims that either have been
litigated or should have been raised in an earlier suit,” Test 

, while collateral estoppel “precludes relitigation of only those issues
actually litigated in the original action, whether or not the second suit is based
on the same cause of action,” Moch v. E. Baton Rouge Par. Sch. Bd., 

, 596 (5th Cir. 1977); see also 

. The city claims that the



       2  HPTA does not address the regulatory-takings claim in its brief. Failure adequately
to brief an issue on appeal is waiver. FED. R. APP. P. 28(a)(8)(A); United States v. Beaumont,

, 563 (5th Cir. 1992).
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                                          No. 15-20117
suit is barred by res judicata. 3

                                                 1.
      “Res judicata ‘has four elements: (1) the parties are identical or in privity;
(2) the judgment in the prior action was rendered by a court of competent
jurisdiction; (3) the prior action was concluded by a final judgment on the
merits; and (4) the same claim or cause of action was involved in both actions.’”

(quoting Test 

). HPTA does
not contest the application of the first three elements; the dispute centers on
whether “the same claim or cause of action” exists here and in SafeClear II.

      We apply a transactional test to determine “whether two suits involve
the same claim or cause of action.” 4 The transactional test focuses on whether
the two cases “are based on ‘the same nucleus of operative facts.’” 5 It is the
“nucleus of operative facts, rather than the type of relief requested, substantive
theories advanced, or types of rights asserted” that defines the claim. 6 Indeed,
    [w]hat factual grouping constitutes a “transaction”, and what groupings
    constitute a “series”, are to be determined pragmatically, giving weight
    to such considerations as whether the facts are related in time, space,
    origin, or motivation, whether they form a convenient trial unit, and
    whether their treatment as a unit conforms to the parties’ expectations
    or business understanding or usage.
Petro-Hunt, L.L.C. v. United States, 

, 396 (5th Cir. 2004) (quoting
RESTATEMENT (SECOND) OF JUDGMENTS § 24(2)).




      3   Nevertheless, the city cites both res judicata and collateral estoppel cases in its brief.
      4United States v. Davenport, 

, 326 (5th Cir. 2007); see also RESTATEMENT
(SECOND) OF JUDGMENTS § 24(2) (1982) (outlining the transactional test).
      5 

(quoting In re Southmark Corp., 

, 934 (5th
Cir. 1999)).
      6   

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                                      No. 15-20117
                                            B.
       HPTA contends that both the language of the ordinance and the “factual
predicate” underlying the program have changed. Because of this, HPTA con-
tends that there is a differing claim or cause of action. The SafeClear program
has been amended since the last suit, and one might conceive of those amend-
ments as a change in the “operative facts” or, alternatively, as a change in law.
Indeed, in addition to discussing the transactional test, see Test 

, HPTA cites cases in which we have found that a “change in
law” defeats the application of res judicata. 7

       Whether HPTA conceives of both the change-in-law and the change-in-
facts arguments as fitting under the fourth prong of the res judicata test, or
whether HPTA views them as two separate bases for rejecting res judicata is
uncertain. Our precedent is less than certain. 8 Indeed, in 

, we noted the difficulty in untangling whether a change in the governing
law should be conceived of as more factual or legal, but we declined to shed
light on the question. 9 Additionally, the scope and overall applicability of the
change-in-law doctrine is unresolved. 10          Nevertheless, we need not decide


       7See Jackson v. DeSoto Par. Sch. Bd., 

, 729 (5th Cir. 1978); 

.
       8 Compare 

(discussing change in law and change in facts
together and implying that they are the same exception or at least related) with Kirksey v.
City of Jackson, 

, 44 (5th Cir. 1983) (discussing the change-in-law exception
without mentioning changes in fact).
       9 See 

(observing that a “supervening change in the caselaw
[could] render[] a subsequent claim a different cause of action” or could be “an altered
circumstance”).
       10 We have discussed a change-in-law exception that would defeat res judicata. See
Wilson v. Lynaugh, 

, 850–51 & n.13 (5th Cir. 1989); 

;

; 

; Parnell v. Rapides Par. Sch. Bd., 

, 185 (5th Cir. 1977). The Supreme Court has provided limited support for this exception.
See State Farm Mut. Auto. Ins. Co. v. Duel, 

, 162 (1945) (observing that “res
judicata is no defense where between the time of the first judgment and the second there has
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                                        No. 15-20117
whether the change-in-law exception continues to have force or whether that
exception and the differing-claim exception are one and the same, because, for
purposes of our limited discussion, the inquiries are remarkably similar.

       At least in this case, where, in both the past and present suit, the plain-
tiff is challenging the ordinance itself, the relevant facts for determining
whether the same claim or cause of action exists and whether a change-in-law
exception applies are identical—the language of the ordinance. 11 The stan-
dards are also similar. Where we have applied the change-of-law exception,
we have required the change to be “significant.” 12 Likewise, we have required
factual changes to be “significant.” 

; 

. Thus, the critical question is not whether any facts or law have changed
between SafeClear II and this suit, but whether there have been any




been an intervening decision or a change in the law creating an altered situation”).
Nevertheless, in other decisions we have been more skeptical. See Baylor v. U.S. Dep’t of
Hous. & Urban Dev., 

, 225 (5th Cir. 1990); Nilsen v. City of Moss Point, 

, 563–64 (5th Cir. 1983). The Supreme Court has also declined to endorse a change-in-
law exception, at least where the change in law is judge-made. See Federated Dep’t Stores,
Inc. v. Moitie, 

, 398–99 (1981).
       Even where we have upheld a change in law, we have noted the exception’s limited
applicability. See 

–97 (“Generally, a postjudgment change of circum-
stances, either factual or legal, does not alter that judgment’s effect as a bar to later actions
based on the same cause of action.”); 

(collecting cases). The change-
in-law exception may be confined to cases of “overriding public policy” or “manifest injustice.”

. Likewise, the doctrine may be limited to constitutional claims. See

; 18 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE
§ 131.21[2] (3d ed. 2015); 18 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H.
COOPER, FEDERAL PRACTICE AND PROCEDURE § 4415 (2d ed. 2002).
       11  Contrast this with the situation where the plaintiff was not challenging the law
itself in the original suit, but the application of the law to facts (for example, whether the
plaintiff was negligent). In such a scenario, a change in the governing law (the standard for
negligence) would be different from a change in the underlying facts (a new instance of pur-
portedly negligent behavior), and the two inquiries would be quite different.
       12

–45 (explaining that “plaintiffs can retry their claims in light
of any significant changes in statutory or decisional law”); see also 

(discussing the significant change in law that defeated res judicata).
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                                      No. 15-20117
significant changes—whether the factual and legal basis undergirding HPTA’s
claim of preemption has changed. 13

                                            C.
        Title 49 U.S.C. § 14501(c)(1) prohibits any state (or its political subdivi-
sion) from “enact[ing] or enforc[ing] a law, regulation, or other provision having
the force and effect of law related to a price, route, or service of any motor
carrier . . . with respect to the transportation of property.” Nevertheless, the
statute does “not restrict the safety regulatory authority of a State with respect
to motor vehicles.” 14 “Local regulation of prices, routes, or services of tow
trucks” must be “genuinely responsive to safety concerns” to escape preemption
under        § 14501(c)(1). 15    Thus, to establish preemption, HPTA must
demonstrate that the SafeClear program (in whole or part) is not genuinely
responsive to safety concerns.

        To determine whether the safety exception under § 14501(c)(2)(A)
applies, we have looked to statements of intent on the face of the ordinance,
demonstrating that it was designed to promote safety, as well as to evidence
that there was a “nexus between th[e] ordinance and public safety.” VRC LLC
v. City of Dall., 

, 614–15 (5th Cir. 2006) (citing Loyal Tire & Auto
Ctr., Inc. v. Town of Woodbury, 

, 145 (2d Cir. 2006)). We have also
noted the economic burden on those regulated by the ordinance. 

uncertainty surrounding the change-of-law exception, and because the
change-of-law and same-claim-or-cause-of-action inquiries are analogous here, we confine
ourselves to the language of the same-claim-or-cause-of-action analysis. Even if we were to
apply the change-of-law exception, the amendments to SafeClear were not significant, as we
discuss, so they would not bar the application of res judicata.
        1449 U.S.C. § 14501(c)(2)(A). Likewise, municipalities are permitted to regulate for
purposes of safety. See City of Columbus v. Ours Garage & Wrecker Serv., Inc., 

,
429 (2002).
       15 City of 

.

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                                  No. 15-20117
                                        1.
      Thus, the facts relevant for purposes of preemption relate to (1) whether
the ordinance evinced a safety purpose and (2) whether it promotes safety. It
is difficult to see how changing who pays for the tows of stalled vehicles affects
either of these issues. In regard to purpose, the ordinance is clear; in its pre-
amble to the 2005 amendments (which significantly revised the program in the
wake of SafeClear I) the City explained,

   [T]he volume and the speed of traffic on the City’s freeways together
   with the proven safety dangers associated with wrecked or stalled vehi-
   cles on freeways necessitates the City’s institution of a program to effect
   the prompt removal of wrecked or stalled vehicles from freeways in
   order to protect the lives and the property of motorists on those
   roadways . . . .

Houston Ordinance No. 2005-271. The preamble also contains a number of
clauses discussing the safety motivations for the SafeClear program. There is
no doubt that safety is the justification for SafeClear.

      Instead, HPTA points to the preamble to Ordinance No. 2011-324 and
maintains that we should look at the stated reasons for the 2011 amendments,
which form the basis for this suit. This preamble notes the fiscal motivations
for passing on the cost of towing to vehicle owners, explaining that “elimination
of free towing and minor roadside assistance to citizens would alleviate the
City’s financial obligations by reducing its annual contribution to SafeClear.”
Houston Ordinance No. 2011-324. Nevertheless, the preamble also notes the
safety-related benefits of SafeClear (the program “assists citizens and im-
proves mobility by expeditiously clearing stalled wrecked vehicles form Hou-
ston’s freeways”). 

based on the preamble is unpersuasive. To determine
whether the ordinance is preempted, we must look to the stated intent for the

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                                   No. 15-20117
SafeClear program as a whole. To hold otherwise would mean that if a govern-
ment program is modified to cut costs, it is impossible for it to fulfill its original
purpose. Before the 2011 amendments, SafeClear already required vehicle
owners who were blocking traffic lanes to pay for the costs of towing, and that
provision is not challenged in the current suit. Thus, finding the 2011 amend-
ments preempted because they were designed to save the city money would
create the bizarre result that one SafeClear provision requiring vehicle owners
to pay for towing would be preempted and one would not, based on the accident
of its passage.

      Alternatively, finding Ordinance No. 2011-324 preempted would suggest
that if a safety regulation passes on costs to citizens, it is preempted. But we
have explicitly rejected that position. See 

(opposing the
notion that because a safety ordinance created a compliance cost for property-
owners, it must be preempted).

      Although the goal of the 2011 amendments may have been to cut costs
(and to make SafeClear fiscally sustainable over the long term), there is no
doubt that the continuing purpose of the program is to promote safety by expe-
ditiously clearing stalled and wrecked vehicles. Thus, for purposes of intent,
the relevant language is found in the preamble to Ordinance No. 2005-271,
which outlines the purpose behind the entire SafeClear program, not just the
motivation for specific amendments. Therefore, the overall purpose of Safe-
Clear (and thus the relevant “facts”) remains the same between SafeClear II
and this litigation.

                                          2.
      HPTA also posits that the on-the-ground facts regarding whether Safe-
Clear actually promotes safety have changed. HPTA points to expert testi-
mony that the number of SafeClear tows has decreased since the adoption of
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                                       No. 15-20117
the $50 vehicle owner fee. HPTA contends that that fact demonstrates that
SafeClear operators are shirking their duties to respond to tow vehicles that
are stalled in the shoulder, opting instead to tow vehicles from collisions at the
higher cost of $160. Thus, according to HPTA, requiring the owners of stalled
vehicles to pay $50 fees undermines safety.

       Yet, HPTA’s claim is pure speculation. The city provided expert testi-
mony that in 2013, almost 98% of all SafeClear tows were responded to within
six minutes, undermining HPTA’s charge of shirking.                      The city’s expert,
Dr. Stein, posited that one explanation for the decline in SafeClear tows may
be that, since the adoption of the $50 towing fee, vehicle owners are opting to
call their own tow trucks rather than waiting for police to do so. If this explana-
tion is correct, HPTA members have little to complain about, because the $50
fee makes it more likely that a stranded motorist will call an HPTA operator
to tow the vehicle to safety. 16

       Although the city’s expert noted that the total number of collisions on
Houston’s freeways has increased over time, that could be the result of factors
such as population growth. 17 Indeed, overall, Stein found that the adoption of
fees had no statistically significant effect on “the incidence of freeway



       16HPTA urges that SafeClear has placed a significant economic burden on its mem-
bers who are excluded from the program, but that exclusion existed before the 2011 amend-
ments. If anything, as discussed above, the 2011 amendments appear to make it more likely
that a non-SafeClear operator is called, thus reducing any economic burden to HPTA
members.
       17 The City’s expert also found an increase in overall clearance times since 2011, which
is a “factor contributing to collisions.” Nevertheless, 83% of tows still were cleared within
twenty minutes between 2011 and 2012, which is well over the program goal of 75%. Stein
posited that the increased clearance time may result from a higher number of collision tows
(themselves a probable result of the overall increase in collisions), which take longer to clear
than for stalled vehicles. Because vehicle owners involved in collisions blocking traffic were
already required to pay towing fees before the 2011 amendments, if this explanation is
correct, it is unlikely that the 2011 changes affected the increase in duration times.
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                                 No. 15-20117
collisions.”   Instead, the city’s expert found “strong evidence” that the
SafeClear program has “had a significant effect on reducing collisions on the
Houston freeways.”

      HPTA does little to rebut this evidence. It points out that the proper
variable to measure is secondary accidents (which occur as the result of pri-
mary collisions), because secondary accidents are what prompt towing is sup-
posed to reduce. Instead, the city presented evidence regarding overall colli-
sions. Although HPTA may be correct that secondary collisions would be a
more accurate measure of SafeClear’s success, nevertheless, as HPTA’s own
expert observes, information regarding secondary collisions is not available.
Overall, HPTA has not demonstrated that charging fees for shoulder tows has
had an impact on SafeClear’s ability to promote safety on Houston’s roads.

      Absent evidence that the 2011 amendments negatively impacted Safe-
Clear’s ability to be “genuinely responsive to safety concerns,” HPTA’s other
arguments regarding the overall effectiveness of SafeClear are foreclosed.
HPTA has failed to show that the 2011 amendments changed SafeClear’s pur-
pose of promoting safety or its actual ability to promote safety. In other words,
HPTA has not demonstrated that there has been a change in the relevant facts
undergirding its claim of federal preemption since the last suit. The nucleus
of operative facts remains the same. The claim of federal preemption is barred
by res judicata.

                                       D.
      There is another reason why HPTA cannot demonstrate that the 2011
amendments have had an impact on its claims of federal preemption. Sec-
tion 14501(c)(2)(C) contains an additional basis for local regulation of towing
to be exempted from federal preemption: Local governments may “enact or
enforce a law, regulation, or other provision relating to the price of for-hire
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                                        No. 15-20117
motor vehicle transportation by a tow truck, if such transportation is per-
formed without the prior consent or authorization of the owner or operator of
the motor vehicle.” (Emphasis added.) 18 Indeed, as the district court noted in
SafeClear II, to the extent that SafeClear regulates tows without the owner’s
consent, that is an independent basis for the program to be exempt from federal
preemption. See SafeClear II, 

at *2. The 2011 amendments
to SafeClear apply only to non-consent tows (which occur when a police officer
requests the tow). See Houston Code of Ordinances § 8-123(a). Consent tows
(where the vehicle owner requests the tow) are exempt from set fees. See 

8-103(c)(3), 8-123(a)–(b). Thus, the 2011 amendments cannot be pre-
empted, because they apply only to non-consent tows. Those amendments
create no new facts which could form a basis for preemption. Therefore, even
apart from the safety exception, res judicata precludes HPTA’s claims of fed-
eral preemption. 19

                                               E.
       HPTA also claims that the 2009 amendment, which stated that tow oper-
ators could not solicit business at the scene of an accident until after police had
departed, infringes on its commercial-speech rights. HPTA made a similar
argument in SafeClear II. 20 Thus, HPTA’s First Amendment argument also is


       18 This was the version of 49 U.S.C. § 14501(c)(2)(C) in force when these parties filed
their briefs. In December 2015, Congress amended this section to read, “[This provision] does
not apply to the authority of a State or a political subdivision of a State to enact or enforce a
law, regulation, or other provision relating to the regulation of tow truck operations performed
without the prior consent or authorization of the owner or operator of the motor vehicle.”
(Substituted text in italics). The amendment is not significant for our purposes. If anything,
it increases the ability of local government to regulate non-consent tows, because local regu-
lations are no longer confined to the price of transportation.
        Thus, HPTA’s claim that the city’s definition of non-consent tows is overinclusive is
       19

precluded. There has been no change in the facts affecting this definition between
SafeClear II and the present suit.
       20   See SafeClear II, 

at *6 (challenging SafeClear’s requirement that
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                                       No. 15-20117
barred by res judicata.

       Before the 2009 amendment, Houston Code of Ordinances § 8-128 made
it “unlawful for any wrecker driver to solicit the business of towing, removing
or repairing any abandoned or disabled vehicle at a police scene by words,
cards, circulars or gestures, until such time as a law enforcement officer has
completed his investigation or authorized the action.” Thus, the ordinance
already prohibited solicitation at police scenes. All the 2009 amendment did
was clarify that tow operators could not solicit business until “all law enforce-
ment officers have departed the scene.”

       Though there might be a short delay between when an officer concludes
an investigation and when he leaves the accident scene, requiring tow oper-
ators to wait to solicit business slightly longer under the new language, 21 this
is a distinction without a difference for First Amendment purposes. Allowing
a tow operator to solicit business a few minutes earlier does not affect the
commercial-speech analysis. The important fact remains the same both before
and after the amendment—tow operators are being excluded from solicitation
at accident scenes while police are working. Thus, no significant changes have
occurred between SafeClear II and this suit. The claim and cause of action are
identical. HPTA’s commercial-speech claim is barred by res judicata.

       The summary judgment is AFFIRMED.




tow operators wait until police have concluded their investigation to solicit business).
       21Or, alternatively, a small delay could be the result of the officers’ no longer being
permitted to authorize tow operators to solicit business before the officers leave the scene.
                                              14