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No. 98-1288
In the Supreme Court of the United States
VILLAGE OF WILLOWBROOK, ET AL., PETITIONERS
v.
GRACE OLECH
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING THE JUDGMENT
SETH P. WAXMAN
Solicitor General
Counsel of Record
DAVID W. OGDEN
Acting Assistant Attorney General
BARBARA D. UNDERWOOD
Deputy Solicitor General
IRVING L. GORNSTEIN
Assistant to the Solicitor General
MARK B. STERN
DANA J. MARTIN
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Whether the Equal Protection Clause gives rise to a cause of action on behalf
of a "class of one" where the plaintiff does not allege discrimination
based on membership in a vulnerable group, but alleges that ill will motivated
the government to treat her differently from others similarly situated.
In the Supreme Court of the United States
No. 98-1288
VILLAGE OF WILLOWBROOK, ET AL., PETITIONERS
v.
GRACE OLECH
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING THE JUDGMENT
INTEREST OF THE UNITED STATES
The question presented in this case is whether the Equal Protection Clause
of the Fourteenth Amendment gives rise to a cause of action on behalf of
a "class of one" where the plaintiff does not allege discrimination
based on membership in a vulnerable group, but alleges that ill will motivated
the government to treat her differently from others similarly situated.
The United States has a substantial interest in the resolution of that question
because federal employees are frequently sued for alleged constitutional
violations under Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971).
STATEMENT
1. Respondent Grace Olech lives in the Village of Willowbrook, Illinois.
J.A. 4, 6. Respondent, her husband, and three of their neighbors filed suit
in state court against the Village seeking monetary relief for damage to
their property caused by stormwater flooding. J.A. 5. One of the plaintiffs
failed to prosecute the action, but respondent and the other state court
plaintiffs ultimately prevailed in the litigation against the Village and
obtained damage awards. Ibid.
While the state court litigation was pending, the well on respondent's property
became damaged beyond repair. J.A. 7. As a temporary solution, respondent
obtained water from the well of one of her neighbors. Because that solution
left respondent without a reliable source of water, however, respondent
asked Village officials to hook her up to the municipal water system. J.A.
8. The other state court plaintiffs made a similar request. Ibid. Village
officials told respondent and the other state court plaintiffs that the
Village would not accede to that request unless respondent, the other state
court plaintiffs, and the property owners on the other side of the street
from them each dedicated a 33-foot easement for the construction and maintenance
of a 66-foot dedicated street. J.A. 9. Respondent and the other state court
plaintiffs refused to grant the 33-foot easement. J.A. 10-11.
After a three-month delay, the Village withdrew its request for a 33-foot
easement and instead asked for a 15-foot easement. J.A. 11. In a letter,
the Village's attorney stated that the request for a 15-foot easement was
"consistent with Village policy regarding all other property in the
Village." J.A. 10. Respondent and the other state court plaintiffs
agreed to grant the 15-foot easement. J.A. 11.
Before work on the water project could be completed, the hose respondent
had used to obtain water from her neighbor's well froze. J.A. 12. Respondent
and her husband went without water for more than four months. Ibid.
2. In 1997, respondent filed suit in federal district court against the
Village and several of its officials (petitioners), alleging that petitioners
had violated her rights under the Equal Protection Clause. J.A. 1-13. In
particular, respondent alleged that, by demanding a 33-foot easement as
a condition for receiving water from the Village, petitioners had treated
respondent and the other state court plaintiffs differently from all other
Village property owners. J.A. 10. Respondent further alleged that the difference
in treatment was motivated by "ill will generated by the state court
lawsuit." Ibid. In particular, the complaint alleged that the suit
received substantial press coverage that made petitioners "look bad."
J.A. 6. Respondent also alleged that petitioners' treatment of the state
court plaintiffs was "irrational and wholly arbitrary." J.A. 10.
Respondent sought damages for the harm suffered during the period she and
her husband were without water. J.A. 12-13.
The district court granted petitioners' motion to dismiss the complaint
for failure to state a claim upon which relief could be granted. J.A. 60-67.
The district court ruled that, under the Seventh Circuit's decision in Esmail
v. Macrane, 53 F.3d 176 (1995), respondents' allegations were insufficient
to establish a violation of the Equal Protection Clause, because respondent
had failed to allege that petitioners had engaged in an "orchestrated
campaign of official harassment" against her. J.A. 66-67.
3. The court of appeals reversed. J.A. 170-175. The court noted that the
Equal Protection Clause "is most commonly invoked on behalf of a person
who either belongs to a vulnerable minority or is harmed by an irrational
difference in treatment." J.A. 170. The court held, however, that,
under Esmail, the Equal Protection Clause "can also be invoked * *
* by a person who can prove that 'action taken by the state * * * was a
spiteful effort to 'get' him for reasons wholly unrelated to any legitimate
state objective.'" J.A. 170-171 (quoting Esmail, 53 F.3d at 180). The
court concluded that respondent had adequately alleged such a violation.
J.A. 172-173. The court specifically held that respondent's allegations
that she and her husband had been treated differently from all other property
owners only because their suit against the Village had angered Village officials
were sufficient to state a claim under Esmail. J.A. 172.
The court of appeals rejected the district court's view that Esmail required
proof of an orchestrated campaign of harassment. J.A. 173-174. The court
concluded that such a requirement has no basis in either the language or
the policy of the Equal Protection Clause. J.A. 174.
SUMMARY OF ARGUMENT
I. The question presented by petitioners is whether a person in a "class
of one" can state an equal protection claim by alleging that ill will
motivated the government to treat her differently from others who are similarly
situated. Respondent's complaint, however, does not present that question.
Respondent's complaint alleges that she is a member of a class of five persons
who filed a state court suit against the Village for property damage, and
that ill will generated by the lawsuit motivated the Village to impose on
the state court plaintiffs a condition for obtaining access to water not
imposed on any other property owner. Accordingly, the question presented
by respondent's complaint is whether a person can state a constitutional
claim by alleging that she is a member of a class of persons subjected to
retaliation for having filed a lawsuit.
This Court's cases provide a clear answer to that question. Under the First
Amendment, the government may not retaliate against persons because they
have filed a lawsuit against the government. And when the government singles
out a class of persons for differential treatment based on the exercise
of rights protected by the First Amendment, it violates the Equal Protection
Clause as well.
Because respondent's complaint does not raise the question presented by
petitioners, and because it so clearly states a claim for relief independent
of the question presented, the Court may wish to dismiss the writ of certiorari
as improvidently granted. In the alternative, the Court should affirm the
judgment reinstating respondent's complaint without reaching the question
presented.
II. If the Court reaches the question presented, it should hold that a "class
of one" claim is subject to the same analysis as other equal protection
claims. Thus, unless a person in a "class of one" is singled out
on the basis of a suspect classification or for exercising a fundamental
right, the sole inquiry is whether there is a conceivable rational basis
for treating the person in the "class of one" differently from
others. Once a plausible rational basis for differential treatment is identified,
judicial inquiry is at an end. A court may not probe further into the actual
subjective motivation for the decision.
The court of appeals held that, even when there is not a suspect classification
or a fundamental right involved, a person in a class of one can establish
an equal protection violation by demonstrating that a difference in treatment
was actually motivated by ill will. That actual motive analysis cannot be
reconciled with the objective inquiry required by this Court's rational
basis cases. The court of appeals' approach also permits any person adversely
affected by a governmental decision at any level to transform an objectively
legitimate decision into a potential equal protection violation. And it
sanctions highly intrusive inquiries into the motivations for official action.
At the same time, petitioners err in contending that the Equal Protection
Clause only protects persons who are members of identifiable groups. The
text of the Equal Protection Clause focuses on the protection of individuals,
not groups. Consistent with the constitutional text, this Court's cases
make clear that the Equal Protection Clause affords protection to persons
who are in a "class of one." We agree with petitioners that "class
of one" claims have the potential to disrupt effective government.
The proper response to those concerns, however, is to apply deferential
rational basis review to "class of one" claims, not to constrict
the reach of the Equal Protection Clause in a way that is not justified
by its text or this Court's cases interpreting it.
ARGUMENT
I. THE COMPLAINT IN THIS CASE DOES NOT PRESENT THE QUESTION RAISED BY PETITIONERS
A. The Court May Wish To Consider Dismissing The Writ Of Certiorari As Improvidently
Granted
Petitioners contend that the Equal Protection Clause does not protect a
person who is in a "class of one." In particular, petitioners
contend that a person cannot state an equal protection claim by alleging
that ill will motivated the government to treat her differently from others
who are similarly situated, in the absence of an allegation that the ill
will was motivated by membership in a vulnerable group. Because this case
arises on a motion to dismiss respondent's complaint, the allegations in
the complaint must be accepted as true. Hishon v. King & Spalding, 467
U.S. 69, 73 (1984). For reasons that may not have been apparent to the Court
when it granted certiorari, the complaint in this case does not present
the question raised by petitioners. The Court therefore may wish to consider
dismissing the writ as improvidently granted.
1. One serious obstacle to review of the question presented is that respondent's
complaint does not allege that she is a member of a "class of one."
Instead, her complaint alleges that she is a member of the class of five
persons who filed suit against the Village seeking monetary relief for stormwater
damage to their property. J.A. 10. Respondent's complaint specifically alleges
that petitioners treated the class of state court plaintiffs differently
from other property owners in the Village by demanding a 33-foot easement
as a condition for obtaining water from the Village. Ibid. Given that allegation,
respondent's complaint does not present the question whether the Equal Protection
Clause protects a person who is in "a class of one."
2. The other significant obstacle to review of the question presented is
that respondent's complaint does not simply allege that general ill will
motivated the government to treat the state court plaintiffs differently
from other property owners in the Village. Rather, her complaint alleges
that petitioners treated the state court plaintiffs differently from other
property owners because of ill will generated by the state court lawsuit.
J.A. 10. According to respondent's allegations, the state court suit received
substantial local press coverage that made petitioners "look bad,"
J.A. 6, and petitioners retaliated by imposing a condition for access to
the Village water supply that petitioners did not impose on any other property
owner in the Village, J.A. 10.
The question presented by respondent's complaint is therefore not whether
differential treatment based on general ill will is sufficient to state
a constitutional claim, but whether differential treatment based on the
filing of a lawsuit is sufficient to state a constitutional claim. That
latter question does not warrant this Court's review. This Court's cases
already firmly establish that the government may not impose adverse treatment
on individuals because they have filed a lawsuit against the government.
Specifically, the Court has held that one component of the First Amendment
right "to petition the Government for a redress of grievances"
is a right to file suit in court for a redress of alleged wrongs. Sure-Tan,
Inc. v. NLRB, 467 U.S. 883, 897 (1984); Bill Johnson's Restaurants, Inc.
v. NLRB, 461 U.S. 731, 741 (1983); California Motor Transp. Co. v. Trucking
Unlimited, 404 U.S. 508, 510 (1972). That First Amendment right is protected
not only against direct government restraint, but also against government
conduct that deters or chills its exercise. Laird v. Tatum, 408 U.S. 1,
11 (1972). Thus, under the doctrine of unconstitutional conditions, the
government may not deny a benefit to a person based on that person's exercise
of a First Amendment right, even when the person has no entitlement to the
benefit. Board of County Comm'rs v. Umbehr, 518 U.S. 668, 674-675 (1996).
For the same reason, the government may not "retaliate" against
a person for having engaged in conduct protected by the First Amendment.
Crawford-El v. Britton, 523 U.S. 574, 588 & n.10, 592 (1998).
Impermissible motive is a crucial element in such a First Amendment claim.
Plaintiff must demonstrate that conduct protected by the First Amendment
was a substantial motivating factor in the government's decision to treat
the plaintiff adversely. Once such a showing is made, the burden shifts
to the government to show that it would have reached the same decision in
the absence of the protected conduct. Mount Healthy City Bd. of Educ. v.
Doyle, 429 U.S. 274, 287 (1977).
Under those settled First Amendment principles, respondent's complaint plainly
states a claim for relief. The First Amendment prohibits the government
from retaliating against a class of persons because they have filed a lawsuit,
and that is precisely what respondent has alleged in this case. Because
respondent's complaint states a claim for relief under settled First Amendment
law, this case is not an appropriate vehicle for resolving the quite different
question presented by petitioners.
3. In sum, because respondent's complaint alleges that she is in a class
of five, rather than a "class of one," and because her complaint
alleges that the persons in her class were treated adversely based on their
having filed a lawsuit, not because of general ill will, respondent's complaint
does not squarely present the question on which this Court granted certiorari.
The Court may therefore wish to dismiss the writ of certiorari as improvidently
granted.1
B. If The Court Does Not Dismiss The Writ, It Should Affirm The Court Of
Appeals' Judgment Reinstating Respondent's Complaint On Grounds Independent
Of The Question Presented
If the Court does not dismiss the writ as improvidently granted, it should
affirm the judgment of the court of appeals reinstating respondent's complaint
on the ground that respondent's allegations of retaliation for the filing
of a lawsuit state a claim for relief. While respondent's complaint refers
only to the Equal Protection Clause and not the First Amendment, J.A. 4,
under the Federal Rules of Civil Procedure, "a complaint should not
be dismissed merely because plaintiff's allegations do not support the legal
theory he intends to proceed on." 5A Charles Alan Wright & Arthur
R. Miller, Federal Practice and Procedure § 1357, at 336 (1989); id.
at 337 n.40 (citing cases); id. at 354 n.40 (Supp. 1999) (same). A court
is "under a duty to examine the complaint to determine if the allegations
provide for relief on any possible theory." Ibid. Because respondent's
allegations so clearly state a claim for relief under the First Amendment,
respondent's failure to mention the First Amendment in her complaint is
not fatal.
Moreover, while a claim like respondent's is best analyzed as a First Amendment
claim, this Court has held that dissimilar treatment that is based on the
exercise of a First Amendment right also violates the Equal Protection Clause.
Wayte v. United States, 470 U.S. 598, 608-609 (1985); cf. Police Dep't v.
Mosley, 408 U.S. 92, 95 (1972). Respondent's complaint therefore states
a claim for relief under the Equal Protection Clause as well.
II. A "CLASS OF ONE" EQUAL PROTECTION CLAIM IS GENERALLY SUBJECT
TO ORDINARY RATIONAL BASIS REVIEW
If the Court reaches the question presented, it should hold that a "class
of one" claim is subject to analysis under traditional equal protection
standards. In the ordinary "class of one" case, therefore, in
which-unlike in this case-no fundamental right is at stake, the relevant
inquiry is whether the alleged difference in treatment is supported by a
conceivable rational basis. The court of appeals erred in sanctioning a
more probing inquiry into actual motive. At the same time, petitioners'
contention that the Equal Protection Clause affords no protection to a person
who is in a "class of one" is incorrect.
A. Classifications That Are Not Suspect And That Do Not Affect A Fundamental
Right Are Subject To Rational Basis Review
1. The Court has only recently reiterated that "a classification neither
involving fundamental rights nor proceeding along suspect lines . . . cannot
run afoul of the Equal Protection Clause if there is a rational relationship
between disparity of treatment and some legitimate governmental purpose."
Central State Univ. v. American Ass'n of Univ. Professors, 119 S. Ct. 1162,
1163 (1999). Under that highly deferential standard, the government need
not "actually articulate at any time the purpose or rationale supporting
its classification." Nordlinger v. Hahn, 505 U.S. 1, 15 (1992). Instead,
a classification must be upheld "if there is any reasonably conceivable
state of facts that could provide a rational basis for the classification."
FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993). Thus, once
a conceivable rational basis supporting a difference in treatment is identified,
judicial inquiry "is at an end." United States R.R. Retirement
Bd. v. Fritz, 449 U.S. 166, 179 (1980). It is "constitutionally irrelevant
whether this reasoning in fact underlay the legislative decision."
Ibid. A classification fails rational basis review only in the relatively
rare case in which "the facts preclude[] any plausible inference"
that a legitimate basis underlies the difference in treatment. Nordlinger,
505 U.S. at 16.
That highly deferential standard is firmly grounded in separation-of-powers
considerations. Drawing lines is inherent in the legislative process, and
the practical problems of government often require rough accommodations
that may seem illogical, unfair, or improperly motivated. See Heller v.
Doe, 509 U.S. 312, 321 (1993). If courts condemned all classifications that
appeared to have one of those characteristics, government could not function.
Under rational basis review, a court therefore may not "judge the wisdom,
fairness, or logic of legislative choices." Beach, 508 U.S. at 313.
The price for observance of those fundamental limitations on the scope of
judicial review is that some improperly motivated differences in treatment
will escape judicial condemnation. Here, as elsewhere, the remedy for improperly
motivated exercises of lawful power "lies * * * in the people, upon
whom, * * * reliance must be placed for the correction of abuses committed
in the exercise of a lawful power." McCray v. United States, 195 U.S.
27, 55 (1904). Unless a classification proceeds along suspect grounds or
affects a fundamental right, "the Constitution presumes that even improvident
decisions will eventually be rectified by the democratic process."
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985).
Nor is there anything extraordinary about a court refraining from inquiring
into whether a decision that is objectively reasonable has been undertaken
with a malicious intent. That is precisely the rule that is followed in
Fourth Amendment cases. Graham v. Conner, 490 U.S. 386, 397 (1989) ("An
officer's evil intentions will not make a Fourth Amendment violation out
of an objectively reasonable use of force."). There is no reason that
a court should engage in a more probing inquiry when it undertakes rational
basis review under the Equal Protection Clause.2
2. Most of this Court's rational basis cases have involved judicial review
of legislative decisions. This Court's cases make clear, however, that the
same basic standard of review applies to judicial review of administrative
decisions. Nordlinger, 505 U.S. at 15-16 & n.8 (explaining that rational
basis review applies to administrative decisions and that the standard of
review is no different from the one applied to legislative classifications);
Sunday Lake Iron Co. v. Township of Wakefield, 247 U.S. 350, 352 (1918)
("The purpose of the equal protection clause of the Fourteenth Amendment
is to secure every person within the State's jurisdic- tion against intentional
and arbitrary discrimination, whether occasioned by express terms of a statute
or by its improper execution through duly constituted agents.").
The Equal Protection Clause does not prohibit negligent or inadvertent errors
in the administration of the law; it is only implicated when there is an
intentional difference in treatment. Snowden v. Hughes, 321 U.S. 1, 8 (1944);
Sunday Lake, 247 U.S. at 353. Once such an intentional difference in treatment
is shown, however, the inquiry is the same as that applicable to legislative
classifications: absent proof of a suspect classification or interference
with a fundamental right, the relevant inquiry is whether the administrative
classification is rationally related to a legitimate public end. Nordlinger,
505 U.S. at 15-16 & n.8.
Consistent with that analysis, the courts of appeals have generally upheld
administrative classifications against equal protection challenge as long
as they have been supported by a conceivable rational basis, regardless
of the official's actual motivation for the classification. See, e.g., Reid
v. Rolling Fork Pub. Util. Dist., 854 F.2d 751, 753 (5th Cir. 1988) (refusal
of utility district to grant a sewage treatment commitment does not violate
equal protection "if there is any basis for a classification or official
action that bears a debatably rational relationship to a conceivably legitimate
governmental end," even if some other nonsuspect but irrational factors
may have been considered); Front Royal & Warren County Indus. Park Corp.
v. Town of Front Royal, 135 F.3d 275, 289-290 (4th Cir. 1998) (in evaluating
an equal protection claim based on town's refusal to provide sewer service,
court considers not actual motivation for the decision but rather whether
town officials "reasonably could have believed that the action was
rationally related to a legitimate governmental interest") (emphasis
added); Wroblewski v. City of Washburn, 965 F.2d 452, 459 (7th Cir. 1992)
(noting in challenge to administrative action that "[t]he rational
basis standard requires the government to win if any set of facts reasonably
may be conceived to justify its classification"); Mahone v. Addicks
Util. Dist., 836 F.2d 921, 935, 936-937 (5th Cir. 1988) (local utility board's
refusal to provide water service to plaintiff's land must be upheld if the
court finds "any conceivable factual basis" for the action).
That rational basis analysis does not preclude inquiry to determine the
classification on which the official actually relied, which might be a class
of vulnerable persons, such as persons with disabilities, or a class of
persons who are not vulnerable, such as real estate developers. Once a court
determines the classification, the inquiry then shifts to whether a rational
basis exists for using that classification. At that stage, ordinary rational
basis analysis precludes a direct inquiry into a government official's subjective
reasons for using a particular classification, and instead sustains the
governmental action if a rational basis for using that classification can
be found.
3. The equal protection principles discussed above are directly applicable
when a person in a "class of one" claims that a difference in
treatment violates the Equal Protection Clause. Unless the person in the
"class of one" is being singled out on the basis of a suspect
classification, or for exercising a fundamental right, ordinary rational
basis review is applicable.
For example, if a town council enacted an ordinance providing that persons
generally would have to give a 15-foot easement for obtaining access to
the town's water supply, but that a 33-foot easement would be required from
a particular homeowner, and no suspect classification or fundamental right
were involved, the relevant question would simply be whether there was a
rational basis for treating that particular homeowner differently from others.
If there were a conceivable rational basis for the difference in treatment,
judicial inquiry would be at an end. A court would have no authority to
probe further into the actual motive for the town council's decision.
The same basic approach would apply to a claim that a town's water administrator
required a 33-foot easement from one particular homeowner but not others.
The person in the "class of one" would first have to show that
the administrator made a deliberate decision to treat him differently from
others, and that the decision was not simply the result of an inadvertent,
mistaken, or negligent application of the law. Once such a showing was made,
the question would be the same as in the legislative example-whether there
was a conceivable rational basis for treating that particular homeowner
differently from others. As long as such a conceivable rational basis could
be identified, a court could not probe further into the actual basis underlying
the water administrator's decision.
B. The Court Of Appeals Erred In Approving An Inquiry Into Actual Motive
1. The court of appeals in this case failed to apply those settled equal
protection principles. Applying its prior decision in Esmail v. Macrane,
53 F.3d 176 (1995), the court held that a plaintiff could establish an equal
protection violation by proving that a difference in treatment was actually
motivated by ill will. J.A. 170-171, 173. As Esmail makes clear, the Seventh
Circuit has concluded that a plaintiff can establish a malicious-intent
equal protection claim without showing that the government has proceeded
along suspect lines, affected a fundamental right, or acted without a plausible
rational basis. 53 F.3d at 178-179.
The court of appeals' analysis cannot be reconciled with the decisions of
this Court discussed above holding that, unless a classification is suspect
or affects a fundamental right, the sole equal protection inquiry is whether
there is a plausible rational basis for the classification. As we have discussed,
once such a plausible basis is identified, the case is at an end. A court
is not free to undertake an additional inquiry into whether the decision
was actually motivated by a malicious intent.
2. The court in Esmail sought to draw support for its equal protection theory
from this Court's decision in Cleburne. Esmail, 53 F.3d at 179. In the Seventh
Circuit's view, Cleburne implied that malicious intent violates equal protection
"when it pointed out that some objectives of state action simply are
illegitimate and will not support actions challenged as denials of equal
protection." Id. at 179-180. The court of appeals' reliance on Cleburne
is misplaced. While Cleburne makes clear that certain government objectives,
such as a bare desire to harm a politically unpopular group, or a desire
to accommodate private bias, are not legitimate state interests, 473 U.S.
at 446-448, it does not support the court of appeals' analysis here.
In Cleburne, the Court held that a city that generally permitted the operation
of multiple dwelling facilities violated the Equal Protection Clause when
it failed to permit the operation of a group home for persons with mental
retardation. Applying rational basis review, the Court held that the record
failed to reveal any rational basis for the city's decision to treat the
group home differently from other multiple dwelling facilities. 473 U.S.
at 448. The Court examined each of the four grounds for differential treatment
suggested by the city, and it concluded in each case that the asserted rationale
did not afford a basis for distinguishing between the group home at issue
and other multiple dwelling facilities. Ibid. Having failed to identify
any rational basis for the city's decision, the Court concluded that the
decision could only be explained as resting on irrational prejudice against
persons with mental retardation, an illegitimate basis for government action.
Id. at 450; see also id. at 448.
Cleburne therefore does not hold that a plaintiff can bypass rational basis
review merely by producing evidence that a decision was in fact motivated
by a malicious intent. Rather, it holds that a decision that is not supported
by a rational basis, and therefore can only be understood as resting on
an impermissible motive, violates equal protection. The Seventh Circuit
therefore erred in extrapolating its equal protection theory from Cleburne.3
3. The court of appeals' holding that proof of malicious intent can establish
an equal protection violation in a "class of one" case threatens
important governmental interests. The court of appeals itself recognized
that its decision created "the prospect of turning every squabble over
municipal services, of which there must be tens or even hundreds of thousands
every year, into a federal constitutional case." J.A. 174. The court
of appeals, however, understated the dimensions of the problem. Under the
court of appeals' approach, virtually any objectively legitimate decision
by any government actor at any level can be transformed into a potential
equal protection violation if a person affected by the decision alleges
that the government acted with a malicious motive.
This Court has previously made clear that the Fourteenth Amendment is not
"a font of tort law to be superimposed upon whatever systems may already
be administered by the States." Paul v. Davis, 424 U.S. 693, 701 (1976).
It has rejected constitutional theories that "would almost necessarily
result in turning every alleged injury which may have been inflicted by
a state official acting under 'color of law' into a violation of the Fourteenth
Amendment cognizable under § 1983." Parratt v. Taylor, 451 U.S.
527, 544 (1981). The court of appeals' decision conflicts with those admonitions.
4. The court of appeals' decision is particularly troubling because it invites
highly intrusive inquiries into the motivations that underlie official action.
In Harlow v. Fitzgerald, 457 U.S. 800 (1982), the Court specifically addressed
the unique harms of motive inquiries like those sanctioned by the court
of appeals. There, the Court explained that "it is now clear that substantial
costs attend the litigation of the subjective good faith of government officials."
Id. at 816. In particular, "[n]ot only are there the general costs
of subjecting officials to the risks of trial-distraction of officials from
their governmental duties, inhibition of discretionary action, and deterrence
of able people from public service." Ibid. In addition, there are "special
costs to 'subjective' inquiries of this kind." Ibid. Because "the
judgments surrounding discretionary action almost inevitably are influenced
by the decisionmaker's experiences, values, and emotions," questions
of subjective intent "rarely can be decided by summary judgment."
Ibid. Moreover, when malicious intent is the ultimate issue, "there
often is no clear end to the relevant evidence." Id. at 817. For that
reason, an inquiry into malicious intent "may entail broad-ranging
discovery and the deposing of numerous persons, including an official's
professional colleagues." Ibid. Such inquiries "can be peculiarly
disruptive of effective government." Ibid. Based on those considerations,
the Court in Harlow held that "bare allegations of malice should not
suffice to subject government officials either to the costs of trial or
to the burdens of broad-ranging discovery." Id. at 817-818. The court
of appeals' equal protection theory, however, would have precisely that
effect.
5. We do not suggest that judicial inquiries into actual motive are never
justified. Specific constitutional provisions contemplate an inquiry into
actual motive. See Farmer v. Brennan, 511 U.S. 825, 835-840 (1994) (Eighth
Amendment); Mount Healthy, 429 U.S. at 287 (First Amendment). Indeed, the
Equal Protection Clause itself demands such an inquiry when a classification
is suspect. See Village of Arlington Heights v. Metropolitan Housing Auth.,
429 U.S. 252, 264-266 (1977) (racial discrimination). When a court is reviewing
official action under the Equal Protection Clause, however, and there is
no suspect classification or fundamental right involved, the costs of an
actual motive inquiry outweigh any possible benefit.
Moreover, as this Court recently explained in Crawford-El, there is an important
distinction between bare allegations of malice and the allegations of intent
that are essential elements of certain constitutional claims. 523 U.S. at
592. A general allegation of malice permits "an open-ended inquiry
into subjective motivation." Ibid. In contrast, in the contexts in
which the Court has approved a motive inquiry, "the primary focus is
not on any possible animus directed at the plaintiff; rather, it is more
specific, such as an intent to disadvantage all members of a class that
includes the plaintiff * * * or to deter public comment on a specific issue
of public importance." Ibid. It is therefore not surprising that the
Court in Crawford-El expressed its understanding that "[i]t is obvious,
of course, that bare allegations of malice would not suffice to establish
a constitutional claim." Id. at 588. The court of appeals therefore
erred in holding that an allegation of malicious intent is sufficient to
state an equal protection claim.
C. The Equal Protection Clause Affords Protection To Persons Who Are In
A "Class Of One"
At the same time, petitioners err in contending (Br. 15-16) that the Equal
Protection Clause only protects individuals who are members of an identifiable
group. While the "central purpose" of the Equal Protection Clause
"is the prevention of official conduct discriminating on the basis
of race," Washington v. Davis, 426 U.S. 229, 239 (1976), and "the
abolition of all caste-based and invidious class-based legislation,"
Plyler v. Doe, 457 U.S. 202, 213 (1982), its protections also extend to
those who are in a "class of one."
1. The Equal Protection Clause provides that no State shall "deny to
any person within its jurisdiction the equal protection of the laws,"
which is "essentially a direction that all persons similarly situated
should be treated alike." Cleburne, 473 U.S. at 439; Plyler, 457 U.S.
at 216; F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920). The
unmistakable focus of the constitutional text is on protection for the individual.
As the Court has emphasized, a "basic principle" of the Equal
Protection Clause is that it "protect[s] persons, not groups."
Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 227 (1995) (emphasis
omitted).
2. Consistent with the constitutional text and that basic principle, this
Court's cases do not suggest that the Equal Protection Clause protects only
persons who are members of an identifiable group. To the contrary, as early
as 1879, the Court made clear that the Equal Protection Clause "means
that no person or class of persons shall be denied the same protection of
the laws which is enjoyed by other persons or other classes in the same
place and under like circumstances." Missouri v. Lewis, 101 U.S. 22,
31 (1879) (emphasis added).
The Court has on several occasions confirmed that the Equal Protection affords
protection to a person in a "class of one." For example, in Atchison,
Topeka & Santa Fe Railroad v. Matthews, 174 U.S. 96, 104 (1889), the
Court stated that "the equal protection guaranteed by the constitution
forbids the legislature to select a person, natural or artificial, and impose
upon him or it burdens and liabilities which are not cast upon others similarly
situated. It cannot pick out one individual, or one corporation, and enact
that whenever he or it is sued the judgment shall be for double damages,
or subject to an attorney's fee in favor of the plaintiff, when no other
individual or corporation is subjected to the same rule."
In McFarland v. American Sugar Refining Co., 241 U.S. 79 (1916), state legislation
provided that any company engaged in the business of refining sugar within
the State which paid less for sugar in the State than outside the State
would be presumed to be a party to a monopoly and would be subject to fines,
license revocation, ouster from the State, and sale of its property. Id.
at 81. The State defended the law on the ground that it applied only to
the American Sugar Refinery and was designed to combat that company's conduct.
Id. at 85. The Court held the law unconstitutional, explaining that the
law contained a "classification, which if it does not confine itself
to the American Sugar Refinery, at least is arbitrary beyond possible justice."
Id. at 86. The Court added that "[i]f the statute had said what it
was argued that it means, that the plaintiff's business was affected with
a public interest by reason of the plaintiff's monopolizing it and that
therefore the plaintiff should be prima facie presumed guilty upon proof
that it was carrying on business as it does, we suppose that no one would
contend that the plaintiff was given the equal protection of the laws."
Id. at 86- 87.
More recently, in Wade v. United States, 504 U.S. 181, 185 (1992), the Court
held that a prosecutor's decision to withhold a motion to reduce a sentence
based on substantial assistance is subject to the same constitutional limitations
that apply to selective prosecution claims. The Court went on to state that
a single individual who alleged that the prosecutor acted arbitrarily and
in bad faith in withholding a motion would be entitled to a remedy "if
the prosecutor's refusal to move was not rationally related to any legitimate
Government end." Id. at 186 (citing New Orleans v. Dukes, 427 U.S.
297, 303 (1976)).
The Equal Protection Clause therefore is not wholly inapplicable to a person
in a "class of one." As Justice Frankfurter explained, "the
Fourteenth Amendment does not permit a state to deny the equal protection
of its laws because such denial is not wholesale." Snowden, 321 U.S.
at 15 (Frankfurter, J., concurring). A violation of equal protection can
occur when "conscious discrimination by a state touches the plaintiff
alone." Ibid.
3. Petitioners argue (Pet. 24) that compelling public policy considerations
justify a ruling that the Equal Protection Clause affords no protection
to a person who is in a "class of one." In particular, they argue
(Pet. 24-25) that recognition of a "class of one" claim "will
invite legions of claims into federal courts," since anyone who has
had a bad experience with a government official can "claim that any
adverse act undertaken by that public official was done with improper motivation
and therefore in violation of the Equal Protection Clause."
As our previous discussion shows, we share petitioners' concerns. The proper
response to those concerns, however, is to apply deferential rational basis
review to "class of one" claims, not to constrict the reach of
the Equal Protection Clause in a way that is not justified by its text or
this Court's cases interpreting it. Thus, a person who is in a "class
of one" can establish an equal protection violation, but only by showing
that there is no plausible rational basis for treating the "class of
one" plaintiff differently from others.4
CONCLUSION
The Court may wish to dismiss the writ of certiorari as improvidently granted.
In the alternative, for the reasons stated in Part IB, the judgment of the
court of appeals reinstating respondent's complaint should be affirmed.
If the Court reaches the question presented, it should hold that a "class
of one" claim is subject to rational basis review.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
DAVID W. OGDEN
Acting Assistant Attorney General
BARBARA D. UNDERWOOD
Deputy Solicitor General
IRVING L. GORNSTEIN
Assistant to the Solicitor General
MARK B. STERN
DANA J. MARTIN
Attorneys
DECEMBER 1999
1 Petitioners sought review based on an asserted conflict between the decision
below and the Sixth Circuit's decision in Futernick v. Sumpter Township,
78 F.3d 1051, cert. denied, 519 U.S. 928 (1996), but in fact there is no
conflict. In Futernick, the Sixth Circuit held only that an allegation of
malice is insufficient to state a claim of selective prosecution. Id. at
1057-1059. Futernick does not purport to govern a claim like respondent's,
both because it arises outside the context of selective prosecution, and
because it involves the special case of malice motivated by the filing of
a lawsuit. Indeed, the Sixth Circuit held that an allegation that the government
has acted in order to deter or punish the exercise of a constitutional right
states a claim for relief. Id. at 1057. Thus, even if respondent's complaint
were analogized to a selective prosecution claim, respondent's allegation
of retaliation for the filing of a lawsuit would be sufficient to state
a claim under Futernick.
2 Because the extent to which a court must defer to legislative choices
is grounded in separation-of-powers considerations, the highly deferential
standard set forth above does not constrain Congress when it exercises its
authority under Section 5 of the Fourteenth Amendment to enforce equal protection
guarantees. Under Section 5, Congress has considerable latitude to independently
examine the facts underlying a state legislative classification and decide
whether, in light of those facts, the classification satisfies the basic
standard of rationality or instead rests on impermissible bias. See Brief
for the United States at 22-28 (discussing cases) in United States v. Florida
Bd. of Regents and Kimel v. Florida Bd. of Regents, Nos. 98-796 & 98-791.
3 It is possible to read Cleburne as applying a more rigorous form of rational
basis review than the one the Court ordinarily applies. The rationale for
that more rigorous application of rational basis review would be that persons
who are mentally retarded satisfy some, but not all, the conditions necessary
for application of heightened scrutiny. See also Romer v. Evans, 517 U.S.
620 (1996) (invalidating classification singling out persons who are gay
for differential treatment). That rationale for a more rigorous form of
rational basis review would not apply in the ordinary "class of one"
case.
4 As the courts of appeals have recognized, such claims can often be resolved
on a motion to dismiss or a motion for summary judgment without highly intrusive
discovery into an official's actual motive. See, e.g., Mahone, 836 F.2d
at 936-937 (challenge to regulatory action under rational basis test may
be resolved on motion to dismiss because "using discovery procedures
to develop facts showing the state's true reason for its actions could be,
for all practical purposes, both inefficient and unnecessary"); Wroblewski,
965 F.2d at 460 (where rational basis for challenged administrative action
is plausible and directly supported by the allegations in the complaint,
dismissal for failure to state a claim is warranted); E & T Realty v.
Strickland, 830 F.2d 1107, 1115-1116 (11th Cir. 1987) (Kravitch, J., concurring
in part and dissenting in part) (arguing that because there were legitimate,
rational, and identifiable grounds to justify differential treatment of
plaintiffs, there was no need to remand claim for inquiry as to defendants'
actual intent), cert. denied, 485 U.S. 961 (1988); see also Crawford-El,
523 U.S. at 597-600 (suggesting several means for a trial court to exercise
its discretion to protect government officials from unnecessary and burdensome
discovery or trial proceedings).
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