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No. 98-1288: Village of Willowbrook v. Olech

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 behalfof a "class of one" where the plaintiff does not allege discriminationbased on membership in a vulnerable group, but alleges that ill will motivatedthe 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 Clauseof the Fourteenth Amendment gives rise to a cause of action on behalf ofa "class of one" where the plaintiff does not allege discriminationbased on membership in a vulnerable group, but alleges that ill will motivatedthe government to treat her differently from others similarly situated.The United States has a substantial interest in the resolution of that questionbecause federal employees are frequently sued for alleged constitutionalviolations under Bivens v. Six Unknown Named Agents of Federal Bureau ofNarcotics, 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 suitin state court against the Village seeking monetary relief for damage totheir property caused by stormwater flooding. J.A. 5. One of the plaintiffsfailed to prosecute the action, but respondent and the other state courtplaintiffs ultimately prevailed in the litigation against the Village andobtained damage awards. Ibid.

While the state court litigation was pending, the well on respondent's propertybecame damaged beyond repair. J.A. 7. As a temporary solution, respondentobtained water from the well of one of her neighbors. Because that solutionleft respondent without a reliable source of water, however, respondentasked Village officials to hook her up to the municipal water system. J.A.8. The other state court plaintiffs made a similar request. Ibid. Villageofficials told respondent and the other state court plaintiffs that theVillage would not accede to that request unless respondent, the other statecourt plaintiffs, and the property owners on the other side of the streetfrom them each dedicated a 33-foot easement for the construction and maintenanceof a 66-foot dedicated street. J.A. 9. Respondent and the other state courtplaintiffs refused to grant the 33-foot easement. J.A. 10-11.

After a three-month delay, the Village withdrew its request for a 33-footeasement 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 theVillage." J.A. 10. Respondent and the other state court plaintiffsagreed to grant the 15-foot easement. J.A. 11.

Before work on the water project could be completed, the hose respondenthad used to obtain water from her neighbor's well froze. J.A. 12. Respondentand her husband went without water for more than four months. Ibid.

2. In 1997, respondent filed suit in federal district court against theVillage and several of its officials (petitioners), alleging that petitionershad violated her rights under the Equal Protection Clause. J.A. 1-13. Inparticular, respondent alleged that, by demanding a 33-foot easement asa condition for receiving water from the Village, petitioners had treatedrespondent and the other state court plaintiffs differently from all otherVillage property owners. J.A. 10. Respondent further alleged that the differencein treatment was motivated by "ill will generated by the state courtlawsuit." Ibid. In particular, the complaint alleged that the suitreceived substantial press coverage that made petitioners "look bad."J.A. 6. Respondent also alleged that petitioners' treatment of the statecourt plaintiffs was "irrational and wholly arbitrary." J.A. 10.Respondent sought damages for the harm suffered during the period she andher husband were without water. J.A. 12-13.

The district court granted petitioners' motion to dismiss the complaintfor 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 Esmailv. Macrane, 53 F.3d 176 (1995), respondents' allegations were insufficientto establish a violation of the Equal Protection Clause, because respondenthad failed to allege that petitioners had engaged in an "orchestratedcampaign of official harassment" against her. J.A. 66-67.

3. The court of appeals reversed. J.A. 170-175. The court noted that theEqual Protection Clause "is most commonly invoked on behalf of a personwho either belongs to a vulnerable minority or is harmed by an irrationaldifference 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 aspiteful effort to 'get' him for reasons wholly unrelated to any legitimatestate objective.'" J.A. 170-171 (quoting Esmail, 53 F.3d at 180). Thecourt concluded that respondent had adequately alleged such a violation.J.A. 172-173. The court specifically held that respondent's allegationsthat she and her husband had been treated differently from all other propertyowners only because their suit against the Village had angered Village officialswere sufficient to state a claim under Esmail. J.A. 172.

The court of appeals rejected the district court's view that Esmail requiredproof of an orchestrated campaign of harassment. J.A. 173-174. The courtconcluded that such a requirement has no basis in either the language orthe policy of the Equal Protection Clause. J.A. 174.

SUMMARY OF ARGUMENT

I. The question presented by petitioners is whether a person in a "classof one" can state an equal protection claim by alleging that ill willmotivated the government to treat her differently from others who are similarlysituated. Respondent's complaint, however, does not present that question.Respondent's complaint alleges that she is a member of a class of five personswho filed a state court suit against the Village for property damage, andthat ill will generated by the lawsuit motivated the Village to impose onthe state court plaintiffs a condition for obtaining access to water notimposed on any other property owner. Accordingly, the question presentedby respondent's complaint is whether a person can state a constitutionalclaim by alleging that she is a member of a class of persons subjected toretaliation for having filed a lawsuit.

This Court's cases provide a clear answer to that question. Under the FirstAmendment, the government may not retaliate against persons because theyhave filed a lawsuit against the government. And when the government singlesout a class of persons for differential treatment based on the exerciseof rights protected by the First Amendment, it violates the Equal ProtectionClause as well.

Because respondent's complaint does not raise the question presented bypetitioners, and because it so clearly states a claim for relief independentof the question presented, the Court may wish to dismiss the writ of certiorarias improvidently granted. In the alternative, the Court should affirm thejudgment reinstating respondent's complaint without reaching the questionpresented.

II. If the Court reaches the question presented, it should hold that a "classof one" claim is subject to the same analysis as other equal protectionclaims. Thus, unless a person in a "class of one" is singled outon the basis of a suspect classification or for exercising a fundamentalright, the sole inquiry is whether there is a conceivable rational basisfor treating the person in the "class of one" differently fromothers. Once a plausible rational basis for differential treatment is identified,judicial inquiry is at an end. A court may not probe further into the actualsubjective motivation for the decision.

The court of appeals held that, even when there is not a suspect classificationor a fundamental right involved, a person in a class of one can establishan equal protection violation by demonstrating that a difference in treatmentwas actually motivated by ill will. That actual motive analysis cannot bereconciled with the objective inquiry required by this Court's rationalbasis cases. The court of appeals' approach also permits any person adverselyaffected by a governmental decision at any level to transform an objectivelylegitimate decision into a potential equal protection violation. And itsanctions highly intrusive inquiries into the motivations for official action.

At the same time, petitioners err in contending that the Equal ProtectionClause only protects persons who are members of identifiable groups. Thetext of the Equal Protection Clause focuses on the protection of individuals,not groups. Consistent with the constitutional text, this Court's casesmake clear that the Equal Protection Clause affords protection to personswho are in a "class of one." We agree with petitioners that "classof one" claims have the potential to disrupt effective government.The proper response to those concerns, however, is to apply deferentialrational basis review to "class of one" claims, not to constrictthe reach of the Equal Protection Clause in a way that is not justifiedby 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 ImprovidentlyGranted

Petitioners contend that the Equal Protection Clause does not protect aperson who is in a "class of one." In particular, petitionerscontend that a person cannot state an equal protection claim by allegingthat ill will motivated the government to treat her differently from otherswho are similarly situated, in the absence of an allegation that the illwill was motivated by membership in a vulnerable group. Because this casearises on a motion to dismiss respondent's complaint, the allegations inthe complaint must be accepted as true. Hishon v. King & Spalding, 467U.S. 69, 73 (1984). For reasons that may not have been apparent to the Courtwhen it granted certiorari, the complaint in this case does not presentthe question raised by petitioners. The Court therefore may wish to considerdismissing the writ as improvidently granted.

1. One serious obstacle to review of the question presented is that respondent'scomplaint 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 fivepersons who filed suit against the Village seeking monetary relief for stormwaterdamage to their property. J.A. 10. Respondent's complaint specifically allegesthat petitioners treated the class of state court plaintiffs differentlyfrom other property owners in the Village by demanding a 33-foot easementas a condition for obtaining water from the Village. Ibid. Given that allegation,respondent's complaint does not present the question whether the Equal ProtectionClause protects a person who is in "a class of one."

2. The other significant obstacle to review of the question presented isthat respondent's complaint does not simply allege that general ill willmotivated the government to treat the state court plaintiffs differentlyfrom other property owners in the Village. Rather, her complaint allegesthat petitioners treated the state court plaintiffs differently from otherproperty owners because of ill will generated by the state court lawsuit.J.A. 10. According to respondent's allegations, the state court suit receivedsubstantial local press coverage that made petitioners "look bad,"J.A. 6, and petitioners retaliated by imposing a condition for access tothe Village water supply that petitioners did not impose on any other propertyowner in the Village, J.A. 10.

The question presented by respondent's complaint is therefore not whetherdifferential treatment based on general ill will is sufficient to statea constitutional claim, but whether differential treatment based on thefiling of a lawsuit is sufficient to state a constitutional claim. Thatlatter question does not warrant this Court's review. This Court's casesalready firmly establish that the government may not impose adverse treatmenton individuals because they have filed a lawsuit against the government.

Specifically, the Court has held that one component of the First Amendmentright "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. TruckingUnlimited, 404 U.S. 508, 510 (1972). That First Amendment right is protectednot only against direct government restraint, but also against governmentconduct that deters or chills its exercise. Laird v. Tatum, 408 U.S. 1,11 (1972). Thus, under the doctrine of unconstitutional conditions, thegovernment may not deny a benefit to a person based on that person's exerciseof a First Amendment right, even when the person has no entitlement to thebenefit. Board of County Comm'rs v. Umbehr, 518 U.S. 668, 674-675 (1996).For the same reason, the government may not "retaliate" againsta 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 Amendmentwas a substantial motivating factor in the government's decision to treatthe plaintiff adversely. Once such a showing is made, the burden shiftsto the government to show that it would have reached the same decision inthe 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 plainlystates a claim for relief. The First Amendment prohibits the governmentfrom retaliating against a class of persons because they have filed a lawsuit,and that is precisely what respondent has alleged in this case. Becauserespondent's complaint states a claim for relief under settled First Amendmentlaw, this case is not an appropriate vehicle for resolving the quite differentquestion presented by petitioners.

3. In sum, because respondent's complaint alleges that she is in a classof five, rather than a "class of one," and because her complaintalleges that the persons in her class were treated adversely based on theirhaving filed a lawsuit, not because of general ill will, respondent's complaintdoes not squarely present the question on which this Court granted certiorari.The Court may therefore wish to dismiss the writ of certiorari as improvidentlygranted.1

B. If The Court Does Not Dismiss The Writ, It Should Affirm The Court OfAppeals' Judgment Reinstating Respondent's Complaint On Grounds IndependentOf The Question Presented

If the Court does not dismiss the writ as improvidently granted, it shouldaffirm the judgment of the court of appeals reinstating respondent's complainton the ground that respondent's allegations of retaliation for the filingof a lawsuit state a claim for relief. While respondent's complaint refersonly to the Equal Protection Clause and not the First Amendment, J.A. 4,under the Federal Rules of Civil Procedure, "a complaint should notbe dismissed merely because plaintiff's allegations do not support the legaltheory he intends to proceed on." 5A Charles Alan Wright & ArthurR. 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 courtis "under a duty to examine the complaint to determine if the allegationsprovide for relief on any possible theory." Ibid. Because respondent'sallegations so clearly state a claim for relief under the First Amendment,respondent's failure to mention the First Amendment in her complaint isnot fatal.

Moreover, while a claim like respondent's is best analyzed as a First Amendmentclaim, this Court has held that dissimilar treatment that is based on theexercise 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 statesa claim for relief under the Equal Protection Clause as well.

II. A "CLASS OF ONE" EQUAL PROTECTION CLAIM IS GENERALLY SUBJECTTO ORDINARY RATIONAL BASIS REVIEW

If the Court reaches the question presented, it should hold that a "classof one" claim is subject to analysis under traditional equal protectionstandards. In the ordinary "class of one" case, therefore, inwhich-unlike in this case-no fundamental right is at stake, the relevantinquiry is whether the alleged difference in treatment is supported by aconceivable rational basis. The court of appeals erred in sanctioning amore probing inquiry into actual motive. At the same time, petitioners'contention that the Equal Protection Clause affords no protection to a personwho is in a "class of one" is incorrect.

A. Classifications That Are Not Suspect And That Do Not Affect A FundamentalRight Are Subject To Rational Basis Review

1. The Court has only recently reiterated that "a classification neitherinvolving fundamental rights nor proceeding along suspect lines . . . cannotrun afoul of the Equal Protection Clause if there is a rational relationshipbetween 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 neednot "actually articulate at any time the purpose or rationale supportingits classification." Nordlinger v. Hahn, 505 U.S. 1, 15 (1992). Instead,a classification must be upheld "if there is any reasonably conceivablestate of facts that could provide a rational basis for the classification."FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993). Thus, oncea conceivable rational basis supporting a difference in treatment is identified,judicial inquiry "is at an end." United States R.R. RetirementBd. v. Fritz, 449 U.S. 166, 179 (1980). It is "constitutionally irrelevantwhether this reasoning in fact underlay the legislative decision."Ibid. A classification fails rational basis review only in the relativelyrare 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-powersconsiderations. Drawing lines is inherent in the legislative process, andthe practical problems of government often require rough accommodationsthat may seem illogical, unfair, or improperly motivated. See Heller v.Doe, 509 U.S. 312, 321 (1993). If courts condemned all classifications thatappeared 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 ofjudicial review is that some improperly motivated differences in treatmentwill escape judicial condemnation. Here, as elsewhere, the remedy for improperlymotivated exercises of lawful power "lies * * * in the people, uponwhom, * * * reliance must be placed for the correction of abuses committedin the exercise of a lawful power." McCray v. United States, 195 U.S.27, 55 (1904). Unless a classification proceeds along suspect grounds oraffects a fundamental right, "the Constitution presumes that even improvidentdecisions 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 inquiringinto whether a decision that is objectively reasonable has been undertakenwith a malicious intent. That is precisely the rule that is followed inFourth Amendment cases. Graham v. Conner, 490 U.S. 386, 397 (1989) ("Anofficer's evil intentions will not make a Fourth Amendment violation outof an objectively reasonable use of force."). There is no reason thata court should engage in a more probing inquiry when it undertakes rationalbasis review under the Equal Protection Clause.2

2. Most of this Court's rational basis cases have involved judicial reviewof legislative decisions. This Court's cases make clear, however, that thesame basic standard of review applies to judicial review of administrativedecisions. Nordlinger, 505 U.S. at 15-16 & n.8 (explaining that rationalbasis review applies to administrative decisions and that the standard ofreview 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 Amendmentis to secure every person within the State's jurisdic- tion against intentionaland arbitrary discrimination, whether occasioned by express terms of a statuteor by its improper execution through duly constituted agents.").

The Equal Protection Clause does not prohibit negligent or inadvertent errorsin the administration of the law; it is only implicated when there is anintentional 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 treatmentis shown, however, the inquiry is the same as that applicable to legislativeclassifications: absent proof of a suspect classification or interferencewith a fundamental right, the relevant inquiry is whether the administrativeclassification 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 upheldadministrative classifications against equal protection challenge as longas they have been supported by a conceivable rational basis, regardlessof the official's actual motivation for the classification. See, e.g., Reidv. Rolling Fork Pub. Util. Dist., 854 F.2d 751, 753 (5th Cir. 1988) (refusalof utility district to grant a sewage treatment commitment does not violateequal protection "if there is any basis for a classification or officialaction that bears a debatably rational relationship to a conceivably legitimategovernmental end," even if some other nonsuspect but irrational factorsmay 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 evaluatingan equal protection claim based on town's refusal to provide sewer service,court considers not actual motivation for the decision but rather whethertown officials "reasonably could have believed that the action wasrationally related to a legitimate governmental interest") (emphasisadded); Wroblewski v. City of Washburn, 965 F.2d 452, 459 (7th Cir. 1992)(noting in challenge to administrative action that "[t]he rationalbasis standard requires the government to win if any set of facts reasonablymay be conceived to justify its classification"); Mahone v. AddicksUtil. Dist., 836 F.2d 921, 935, 936-937 (5th Cir. 1988) (local utility board'srefusal to provide water service to plaintiff's land must be upheld if thecourt finds "any conceivable factual basis" for the action).

That rational basis analysis does not preclude inquiry to determine theclassification on which the official actually relied, which might be a classof vulnerable persons, such as persons with disabilities, or a class ofpersons who are not vulnerable, such as real estate developers. Once a courtdetermines the classification, the inquiry then shifts to whether a rationalbasis exists for using that classification. At that stage, ordinary rationalbasis analysis precludes a direct inquiry into a government official's subjectivereasons for using a particular classification, and instead sustains thegovernmental action if a rational basis for using that classification canbe found.

3. The equal protection principles discussed above are directly applicablewhen a person in a "class of one" claims that a difference intreatment violates the Equal Protection Clause. Unless the person in the"class of one" is being singled out on the basis of a suspectclassification, or for exercising a fundamental right, ordinary rationalbasis review is applicable.

For example, if a town council enacted an ordinance providing that personsgenerally would have to give a 15-foot easement for obtaining access tothe town's water supply, but that a 33-foot easement would be required froma particular homeowner, and no suspect classification or fundamental rightwere involved, the relevant question would simply be whether there was arational 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 toprobe 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 administratorrequired a 33-foot easement from one particular homeowner but not others.The person in the "class of one" would first have to show thatthe administrator made a deliberate decision to treat him differently fromothers, 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 therewas a conceivable rational basis for treating that particular homeownerdifferently from others. As long as such a conceivable rational basis couldbe identified, a court could not probe further into the actual basis underlyingthe 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 equalprotection principles. Applying its prior decision in Esmail v. Macrane,53 F.3d 176 (1995), the court held that a plaintiff could establish an equalprotection violation by proving that a difference in treatment was actuallymotivated by ill will. J.A. 170-171, 173. As Esmail makes clear, the SeventhCircuit has concluded that a plaintiff can establish a malicious-intentequal protection claim without showing that the government has proceededalong suspect lines, affected a fundamental right, or acted without a plausiblerational basis. 53 F.3d at 178-179.

The court of appeals' analysis cannot be reconciled with the decisions ofthis Court discussed above holding that, unless a classification is suspector affects a fundamental right, the sole equal protection inquiry is whetherthere 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 courtis not free to undertake an additional inquiry into whether the decisionwas actually motivated by a malicious intent.

2. The court in Esmail sought to draw support for its equal protection theoryfrom this Court's decision in Cleburne. Esmail, 53 F.3d at 179. In the SeventhCircuit's view, Cleburne implied that malicious intent violates equal protection"when it pointed out that some objectives of state action simply areillegitimate and will not support actions challenged as denials of equalprotection." Id. at 179-180. The court of appeals' reliance on Cleburneis misplaced. While Cleburne makes clear that certain government objectives,such as a bare desire to harm a politically unpopular group, or a desireto 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 operationof multiple dwelling facilities violated the Equal Protection Clause whenit failed to permit the operation of a group home for persons with mentalretardation. Applying rational basis review, the Court held that the recordfailed to reveal any rational basis for the city's decision to treat thegroup home differently from other multiple dwelling facilities. 473 U.S.at 448. The Court examined each of the four grounds for differential treatmentsuggested by the city, and it concluded in each case that the asserted rationaledid not afford a basis for distinguishing between the group home at issueand other multiple dwelling facilities. Ibid. Having failed to identifyany rational basis for the city's decision, the Court concluded that thedecision could only be explained as resting on irrational prejudice againstpersons 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 basisreview merely by producing evidence that a decision was in fact motivatedby a malicious intent. Rather, it holds that a decision that is not supportedby a rational basis, and therefore can only be understood as resting onan impermissible motive, violates equal protection. The Seventh Circuittherefore erred in extrapolating its equal protection theory from Cleburne.3

3. The court of appeals' holding that proof of malicious intent can establishan equal protection violation in a "class of one" case threatensimportant governmental interests. The court of appeals itself recognizedthat its decision created "the prospect of turning every squabble overmunicipal services, of which there must be tens or even hundreds of thousandsevery year, into a federal constitutional case." J.A. 174. The courtof appeals, however, understated the dimensions of the problem. Under thecourt of appeals' approach, virtually any objectively legitimate decisionby any government actor at any level can be transformed into a potentialequal protection violation if a person affected by the decision allegesthat 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 alreadybe administered by the States." Paul v. Davis, 424 U.S. 693, 701 (1976).It has rejected constitutional theories that "would almost necessarilyresult in turning every alleged injury which may have been inflicted bya state official acting under 'color of law' into a violation of the FourteenthAmendment 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 inviteshighly intrusive inquiries into the motivations that underlie official action.In Harlow v. Fitzgerald, 457 U.S. 800 (1982), the Court specifically addressedthe unique harms of motive inquiries like those sanctioned by the courtof appeals. There, the Court explained that "it is now clear that substantialcosts attend the litigation of the subjective good faith of government officials."Id. at 816. In particular, "[n]ot only are there the general costsof subjecting officials to the risks of trial-distraction of officials fromtheir governmental duties, inhibition of discretionary action, and deterrenceof able people from public service." Ibid. In addition, there are "specialcosts to 'subjective' inquiries of this kind." Ibid. Because "thejudgments surrounding discretionary action almost inevitably are influencedby the decisionmaker's experiences, values, and emotions," questionsof subjective intent "rarely can be decided by summary judgment."Ibid. Moreover, when malicious intent is the ultimate issue, "thereoften is no clear end to the relevant evidence." Id. at 817. For thatreason, an inquiry into malicious intent "may entail broad-rangingdiscovery and the deposing of numerous persons, including an official'sprofessional colleagues." Ibid. Such inquiries "can be peculiarlydisruptive of effective government." Ibid. Based on those considerations,the Court in Harlow held that "bare allegations of malice should notsuffice to subject government officials either to the costs of trial orto the burdens of broad-ranging discovery." Id. at 817-818. The courtof appeals' equal protection theory, however, would have precisely thateffect.

5. We do not suggest that judicial inquiries into actual motive are neverjustified. Specific constitutional provisions contemplate an inquiry intoactual motive. See Farmer v. Brennan, 511 U.S. 825, 835-840 (1994) (EighthAmendment); Mount Healthy, 429 U.S. at 287 (First Amendment). Indeed, theEqual Protection Clause itself demands such an inquiry when a classificationis suspect. See Village of Arlington Heights v. Metropolitan Housing Auth.,429 U.S. 252, 264-266 (1977) (racial discrimination). When a court is reviewingofficial action under the Equal Protection Clause, however, and there isno suspect classification or fundamental right involved, the costs of anactual motive inquiry outweigh any possible benefit.

Moreover, as this Court recently explained in Crawford-El, there is an importantdistinction between bare allegations of malice and the allegations of intentthat are essential elements of certain constitutional claims. 523 U.S. at592. A general allegation of malice permits "an open-ended inquiryinto subjective motivation." Ibid. In contrast, in the contexts inwhich the Court has approved a motive inquiry, "the primary focus isnot on any possible animus directed at the plaintiff; rather, it is morespecific, such as an intent to disadvantage all members of a class thatincludes the plaintiff * * * or to deter public comment on a specific issueof public importance." Ibid. It is therefore not surprising that theCourt in Crawford-El expressed its understanding that "[i]t is obvious,of course, that bare allegations of malice would not suffice to establisha constitutional claim." Id. at 588. The court of appeals thereforeerred in holding that an allegation of malicious intent is sufficient tostate an equal protection claim.

C. The Equal Protection Clause Affords Protection To Persons Who Are InA "Class Of One"

At the same time, petitioners err in contending (Br. 15-16) that the EqualProtection Clause only protects individuals who are members of an identifiablegroup. While the "central purpose" of the Equal Protection Clause"is the prevention of official conduct discriminating on the basisof race," Washington v. Davis, 426 U.S. 229, 239 (1976), and "theabolition of all caste-based and invidious class-based legislation,"Plyler v. Doe, 457 U.S. 202, 213 (1982), its protections also extend tothose who are in a "class of one."

1. The Equal Protection Clause provides that no State shall "deny toany person within its jurisdiction the equal protection of the laws,"which is "essentially a direction that all persons similarly situatedshould 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). Theunmistakable focus of the constitutional text is on protection for the individual.As the Court has emphasized, a "basic principle" of the EqualProtection Clause is that it "protect[s] persons, not groups."Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 227 (1995) (emphasisomitted).

2. Consistent with the constitutional text and that basic principle, thisCourt's cases do not suggest that the Equal Protection Clause protects onlypersons who are members of an identifiable group. To the contrary, as earlyas 1879, the Court made clear that the Equal Protection Clause "meansthat no person or class of persons shall be denied the same protection ofthe laws which is enjoyed by other persons or other classes in the sameplace 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 affordsprotection to a person in a "class of one." For example, in Atchison,Topeka & Santa Fe Railroad v. Matthews, 174 U.S. 96, 104 (1889), theCourt stated that "the equal protection guaranteed by the constitutionforbids the legislature to select a person, natural or artificial, and imposeupon him or it burdens and liabilities which are not cast upon others similarlysituated. It cannot pick out one individual, or one corporation, and enactthat 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 otherindividual or corporation is subjected to the same rule."

In McFarland v. American Sugar Refining Co., 241 U.S. 79 (1916), state legislationprovided that any company engaged in the business of refining sugar withinthe State which paid less for sugar in the State than outside the Statewould 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 tothe American Sugar Refinery and was designed to combat that company's conduct.Id. at 85. The Court held the law unconstitutional, explaining that thelaw contained a "classification, which if it does not confine itselfto 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 itwas argued that it means, that the plaintiff's business was affected witha public interest by reason of the plaintiff's monopolizing it and thattherefore the plaintiff should be prima facie presumed guilty upon proofthat it was carrying on business as it does, we suppose that no one wouldcontend 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 Courtheld that a prosecutor's decision to withhold a motion to reduce a sentencebased on substantial assistance is subject to the same constitutional limitationsthat apply to selective prosecution claims. The Court went on to state thata single individual who alleged that the prosecutor acted arbitrarily andin bad faith in withholding a motion would be entitled to a remedy "ifthe prosecutor's refusal to move was not rationally related to any legitimateGovernment 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 personin a "class of one." As Justice Frankfurter explained, "theFourteenth Amendment does not permit a state to deny the equal protectionof its laws because such denial is not wholesale." Snowden, 321 U.S.at 15 (Frankfurter, J., concurring). A violation of equal protection canoccur when "conscious discrimination by a state touches the plaintiffalone." Ibid.

3. Petitioners argue (Pet. 24) that compelling public policy considerationsjustify a ruling that the Equal Protection Clause affords no protectionto a person who is in a "class of one." In particular, they argue(Pet. 24-25) that recognition of a "class of one" claim "willinvite legions of claims into federal courts," since anyone who hashad a bad experience with a government official can "claim that anyadverse act undertaken by that public official was done with improper motivationand therefore in violation of the Equal Protection Clause."

As our previous discussion shows, we share petitioners' concerns. The properresponse to those concerns, however, is to apply deferential rational basisreview to "class of one" claims, not to constrict the reach ofthe Equal Protection Clause in a way that is not justified by its text orthis Court's cases interpreting it. Thus, a person who is in a "classof one" can establish an equal protection violation, but only by showingthat there is no plausible rational basis for treating the "class ofone" 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 thecourt of appeals reinstating respondent's complaint should be affirmed.If the Court reaches the question presented, it should hold that a "classof 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 decisionbelow 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 noconflict. In Futernick, the Sixth Circuit held only that an allegation ofmalice is insufficient to state a claim of selective prosecution. Id. at1057-1059. Futernick does not purport to govern a claim like respondent's,both because it arises outside the context of selective prosecution, andbecause it involves the special case of malice motivated by the filing ofa lawsuit. Indeed, the Sixth Circuit held that an allegation that the governmenthas acted in order to deter or punish the exercise of a constitutional rightstates a claim for relief. Id. at 1057. Thus, even if respondent's complaintwere analogized to a selective prosecution claim, respondent's allegationof retaliation for the filing of a lawsuit would be sufficient to statea claim under Futernick.

2 Because the extent to which a court must defer to legislative choicesis grounded in separation-of-powers considerations, the highly deferentialstandard set forth above does not constrain Congress when it exercises itsauthority under Section 5 of the Fourteenth Amendment to enforce equal protectionguarantees. Under Section 5, Congress has considerable latitude to independentlyexamine the facts underlying a state legislative classification and decidewhether, in light of those facts, the classification satisfies the basicstandard of rationality or instead rests on impermissible bias. See Brieffor the United States at 22-28 (discussing cases) in United States v. FloridaBd. 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 rationalbasis review than the one the Court ordinarily applies. The rationale forthat more rigorous application of rational basis review would be that personswho are mentally retarded satisfy some, but not all, the conditions necessaryfor application of heightened scrutiny. See also Romer v. Evans, 517 U.S.620 (1996) (invalidating classification singling out persons who are gayfor differential treatment). That rationale for a more rigorous form ofrational 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 resolvedon a motion to dismiss or a motion for summary judgment without highly intrusivediscovery into an official's actual motive. See, e.g., Mahone, 836 F.2dat 936-937 (challenge to regulatory action under rational basis test maybe resolved on motion to dismiss because "using discovery proceduresto 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 actionis 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., concurringin part and dissenting in part) (arguing that because there were legitimate,rational, and identifiable grounds to justify differential treatment ofplaintiffs, 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 exerciseits discretion to protect government officials from unnecessary and burdensomediscovery or trial proceedings).