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INTENDED ONLY FOR FIRST-YEAR STUDENTS AT DUKE UNIVERSITY SCHOOL OF LAW DO NOT CITE OR DISTRIBUTE
This document includes five sample casenotes that the Duke Law Journal is making available to first-year students in the spring of 2008. All five received strong scores from DLJ in the 2007 casenote competition, although the authors may not have “written-on” to the Journal. These five casenotes represent a range of approaches to last year’s case. The Journal cannot speak to how these casenotes were scored by any other law journal. WARNING: These casenotes may contain errors. They have not been checked for conformity to the Bluebook, and DLJ does not vouch for the formatting of the citations.
CASENOTE EXAMPLE 1
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THE TRIVIALIZATION OF OCCUPATIONAL LIBERTY: FORGET THE FIGHT; FIND A NEW CAREER
I. INTRODUCTION The court in Engquist v. Oregon Department of Agriculture1 allows the principles of substantive due process to serve as a supposed “safeguard” for public employees who are deprived of the liberty and the freedom to pursue their choice occupation. However, defining liberty as the freedom to seek one’s preferred employment is not a new concept and has been recognized in numerous cases such as Board of Regents of State Colleges v. Roth2. In Roth, liberty is described poetically as “broad and majestic” and is defined “not merely [as] freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life . . . and generally to enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness by free men.”3 However, this liberty is not as “broad and majestic” as the court so eloquently describes it to be; it is more of an abstract concept that the Court strictly constrains under the rather reassuring tone that the liberty is available subject only to “reasonable government regulation.”4 The Due Process Clause of the Fourteenth Amendment theoretically offers individuals hope: hope that they will be able to seek justice if they are shut out of a career by the actions of a government employer.5 While the Engquist court recognizes this right under a theory of substantive due process, 6 it does little more than state that an individual is entitled to bring such a claim before a court. Relying on the tests utilized by other jurisdictions for similar claims, the
478 F.3d 985 (9th Cir. 2007). 408 U.S. 564, 572 (1972). 3 Id. 4 See Conn v. Gabbert, 526 U.S. 286, 292 (1999) (Stevens, J., concurring). 5 See Engquist, 478 F.3d at 998. 6 Id.
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Ninth Circuit adopts a test that requires a plaintiff to prove that it is “virtually impossible for the employee to find employment in his chosen field.”7 By creating a standard that is practically unattainable in most circumstances, the court trivializes plaintiffs’ claims, allowing cases to be casually dismissed for lack of evidence, leaving plaintiffs with little alternative than to seek a different career. II. FACTS This case originated upon Plaintiff Anup Engquist’s termination from her position with the Export Service Center (ESC) as an international food standards specialist.8 Engquist qualified as a public employee of Oregon as her department was part of the Oregon Department of Agriculture.9 After approximately ten years of service and an ongoing conflict with the manager of ESC, Engquist’s position was “eliminated” after ESC was reorganized.10 Among other causes of action, Engquist brought a claim for a substantive due process violation.11 This substantive due process claim was a plausible cause of action as the Supreme Court had previously adjudicated that “liberty” under the Fourteenth Amendment included some right to pursue a desired profession.12 The court therefore denied Defendants’ motion for summary judgment as to this claim, and the case proceeded to trial by jury.13 Defendants moved for judgment as a matter of law after Plaintiff presented her case and again after “the close of evidence”; both motions were denied.14 On the substantive due process claim, the jury found for
Id. at 998. Id. at 990. 9 Id. 10 Id. at 991. 11 Id. 12 Id. at 997. 13 Id. at 991. 14 Id. 2
17 Id. Id.21 Therefore. 526 U.S. the Fourteenth Amendment. . liberty. THE GUIDANCE OF THE SUPREME COURT The Supreme Court has long recognized that an individual’s occupation is an essential component of that person’s life. which states “nor shall any state deprive any person of life.”18 Although the Supreme Court offered some guidance on the issue. at 996. LEGAL BACKGROUND When Engquist was appealed. 18 Id.15 The court subsequently denied the Defendants’ motion for judgment notwithstanding the verdict.S.J.S. without due process of law . at 573-74. in adjudicating the claim in Engquist. 20 Engquist.20 A. Roth.16 Both parties appealed the decision for various reasons which brought the case before the United States Court of Appeals for the Ninth Circuit. chose to rely on a variety of Seventh Circuit cases defining the issue in greater detail. 408 U. “the Supreme Court has not specified the boundaries of the right to pursue a profession. as the Engquist court recognized.19 Accordingly. 22 U.S. Const. the cases defining substantive due process in the employment context were distinguishable on various levels and did not fit well with the facts of Engquist. the court.3d at 998. at 287. and happiness. . XIV § 1. 23 Id. . 478 F. 19 See Conn. at 572. EXAMPLE 1 DO NOT CITE OR DISTRIBUTE the Plaintiff and awarded her damages. the Ninth Circuit had yet to determine what was necessary to constitute a valid substantive due process claim regarding an individual’s “right to pursue a particular profession. amend.17 III. 408 U. or property.”22 does apply to public employment decisions that deprive an individual of her right to pursue an occupation of her choice. 15 16 3 . but has Id.23 However. at 992.DUKE L. 21 Roth. liberty.
25 “The federal court is not the appropriate forum in which to review the multitude of personnel decisions that are made daily by public agencies. stating that a discharged employee has no redress “[i]n the absence of any claim that the public employer was motivated by a desire to curtail or to penalize the exercise of an employee’s constitutionally protected rights .” the plaintiff was not deprived of any protected liberty interest. provides little guidance for when a due process claim is actually implicated. . Wood. 4 .31 In essence.”24 One rationale for this limited guidance is that the Court is hesitant to strictly scrutinize the decisions of the government as an employer because of the potential flood of litigation that this could produce. 26 Id. EXAMPLE 1 DO NOT CITE OR DISTRIBUTE identified it generally.S. 27 Id. 29 Id.S. at 566. 341.30 However.”26 The Court.”29 The plaintiff’s cause of action was based on his belief that he had been deprived of occupational liberty because it would be more difficult to get a job after the University’s decided not to rehire him. at 573. 349 (1976). at 572. the Court held that he had not been “deprived of liberty . although it was obvious that the University’s decision not to rehire him did not reflect well on him as a candidate for other 24 25 Engquist. . at 570.3d at 997. where the plaintiff was an assistant professor hired for a one-year term of service and was not subsequently rehired. . 478 F. the Court held that since the University did not implicate his good name in the process nor “impose on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities. at 350. 426 U.”27 One of the leading Supreme Court cases on what liberty interest a public employee has under a theory of substantive due process is Board of Regents of State Colleges v.DUKE L. in a most evasive manner. . See Bishop v. 31 Id. 28 408 U. protected by the Fourteenth Amendment. 30 Id. 578. .J. Roth. however.28 In Roth.
The Seventh Circuit. this was hardly enough for the plaintiff to be able to claim that he had significantly been deprived of the liberty to seek employment in academia. 973 (7th Cir.37 relied on the Supreme Court’s precedent in Paul v. 526 U.2d 969.33 There. Justice Stevens. clientele. 693 (1976). the various circuits had to decide what actually constituted a viable substantive due process claim for the deprivation of liberty. at 293. the Supreme Court held that there was no cognizable right interfered with. classifying the search as a mere “brief interruption” in plaintiff’s profession. or professional qualifications were adversely affected by the search. does not infringe upon a liberty interest protected by Fourteenth 32 33 See Id. 35 Id. no liberty interest was implicated where there was “no evidence that respondent’s income. 5 . Davis38 that “infliction by the state of a stigma on one’s reputation. without more. reputation. EXAMPLE 1 DO NOT CITE OR DISTRIBUTE academic positions.J.S. in his concurring opinion.34 The Ninth Circuit Court of Appeals held for the plaintiff.”36 B. 1976). the plaintiff was an attorney who was physically searched while his client was testifying in court. 36 Id.32 The Supreme Court further specified the lengths to which a public employer may go before depriving an individual of their liberty when they decided Conn v. believing this behavior to be “unreasonable government interference” in the attorney’s practice of law. at 574. at 290. in Colaizzi v.35 However. at 287. 37 542 F.DUKE L.S. agreed that while the search was certainly of “shabby character”. 38 424 U. Gabbert. 34 Id. Walker. at 291. THE “STIGMA PLUS” TEST Following the somewhat meager guidance set forth in the aforementioned Supreme Court decisions.
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Amendment due process safeguards.”39 Therefore, the Seventh Circuit set forth a principle that if the State did defame an individual in combination with a discharge or a decision not to rehire then an individual could present a viable deprivation of liberty cause of action.40 In Perry v. Federal Bureau of Investigation,41 the Seventh Circuit further elaborated on the test proposed in Colaizzi, which became known as the “stigma plus” test.42 When a government employee is either terminated from his position or is not rehired, the individual can bring a claim that his liberty was infringed upon if “(1) the individual’s good name, reputation, honor or integrity are at stake by such charges as immorality, dishonesty, alcoholism, disloyalty, Communism or subversive acts or (2) the state imposes a stigma or other disability on the individual which forecloses other opportunities . . . .”43 Applying the elements of the test to the Perry case, the court determined that the plaintiff did not suffer injury to reputation nor were his opportunities to pursue a law enforcement career categorically foreclosed when the FBI circulated information regarding plaintiff and the questionable nature of his candidacy for federal jobs.44 The dissenting opinion, written by Chief Judge Cummings, took no issue with the proposed test, but concluded that reputation damages and lost opportunities should not be decided through summary judgment but should be left for decision on remand.45 Judge Cummings’ issue in the dissent is foreboding of future courts’ willingness to casually dismiss plaintiffs’ allegations that they have been deprived of an essential liberty – the freedom to pursue their chosen occupation.
Colaizzi, 542 F.2d at 972. Id. at 973. 41 781 F.2d 1294, 1300 (7th Cir. 1986) (Cummings, C.J., dissenting). 42 Id. at 1303. 43 Id. at 1300. 44 Id. at 1296, 1300-02. 45 Id. at 1306. 6
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Other circuits also sought to further clarify the grounds upon which a deprivation of liberty claim could be brought – also defining the extent of such liberty with far greater detail than the Supreme Court ever sought to. In Chilingirian v. Boris,46 the Sixth Circuit limited when a plaintiff could claim a deprivation of a liberty interest: “A charge that merely makes a plaintiff less attractive to other employers but leaves open a definite range of opportunity does not constitute a liberty deprivation.”47 By limiting viable claims to individuals who had truly been divested of an opportunity to pursue their chosen profession, the Sixth Circuit sought to offer the judicial system as an avenue of relief for those individuals who most needed it – and not those people seeking retribution for having been discharged for reasons such as “inadequate performance.”48 C. THE “VIRTUALLY IMPOSSIBLE” TEST The Seventh Circuit, in Bordelon v. Chicago School Reform Board of Appeals,49 appears to accept the test adopted and utilized in previous cases within that circuit’s jurisprudence. In finding for the defendant on a motion for summary judgment, the court evaluated whether the plaintiff had been sufficiently stigmatized so as to “destroy” any opportunities for him to pursue a career in education.50 While this appears to be the test previously proposed by the Seventh Circuit, the court here adopts additional language, which significantly bolsters the amount of evidence that must be produced by a plaintiff in order to succeed in a claim for deprivation of liberty.51 In establishing what is required of a plaintiff in such a situation, the court states that “the employee must show that the stigmatizing actions make it virtually impossible for the
882 F.2d 200, 206 (6th Cir. 1989). Id. 48 See id. 49 233 F.3d 524, 531 (7th Cir. 2000). 50 Id. 51 Id. 7
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employee to find new employment in his chosen field.”52 By adopting what is almost unattainable standard for any plaintiff to meet, the Bordelon court is defeating the inherent purpose and safeguards of the substantive due process clause: the plaintiff’s claims can be categorically dismissed with a lack of any real adjudication on the issue.53 IV. HOLDING The Court of Appeals for the Ninth Circuit held that “Engquist has stated a valid claim . . . under substantive due process by alleging that Defendants’ actions prevented her from pursuing her profession.”54 In coming to this conclusion, the court relied on Supreme Court decisions such as Conn v. Gabbert, as noted above, that recognized a “generalized” right to pursue the employment of one’s choice.55 However, the court, in an effort not to extend too much protection to the public employees, severely limited viable claims to only those which the individuals had essentially been “blacklisted” from their profession.56 Although this limitation may be severe and too far-reaching to protect occupational liberty to any discernable extent, the court purposely chose to impose this limiting principle to restrict the number of claims that could be brought and sustained.57 Although the court gallantly recognized that Engquist did have a deprivation of liberty claim, which, consequently, the jury found in her favor for, the court subsequently denied her claim on the basis of insufficiency of evidence.58 As previously mentioned, the court here adopted an incredibly high standard – the Bordelon standard – which Engquist was required to
Id. (emphasis added) (internal citations omitted). See Id. 54 Engquist, 478 F.3d at 996. 55 Id. 56 Id. at 997. 57 See Id. at 998 (holding that this limitation would preclude an unruly number of public employees litigating their discharge under substantive due process claims). 58 Id. at 996. 8
61 V. the court imposed the Seventh Circuit’s requirement that the actions of the government employer must “make it virtually impossible for the employee to find new employment in his chosen field.62 Even if one would accept the rationale behind the “virtually impossible” test set forth in recent cases. in actuality divests potential plaintiffs of any real opportunity to succeed in a deprivation of occupational liberty claim. 63 Gilbrook v. at 999.”60 Consequently. “the verdict . the Court has good reason to want to limit the number of claims that could be brought under this theory of law.DUKE L. as discussed by the court in Engquist and by other circuits. the court was able to dismiss all of the evidence presented by Engquist throughout her trial and overturn the judgment found by the jury in her favor on this claim. must be affirmed if there is substantial evidence to 59 60 Id. ANALYSIS The Engquist Court. at 998. Although. 1999). at 998 (holding that allowing only the most extreme cases to succeed would prevent “federal courts [from having to] review every public employee discharge).J. the court stated. 61 Id. City of Westminster. 177 F.63 In Gilbrook. . adopting such a high standard serves as a great deterrent to plaintiffs thinking of bringing such claims. concluding that she could not succeed on her substantive due process claim. 9 . 62 See Id. as most of the cases are dismissed by the court in summary judgment. EXAMPLE 1 DO NOT CITE OR DISTRIBUTE meet in order to succeed in showing that she had been deprived of an essential liberty. 856 (9th Cir. Id. The Ninth Circuit had explicitly laid out the standard of review in evaluating a jury’s verdict.59 Citing directly to Bordelon. in supporting what could aptly be coined as the “virtually impossible” test. the Engquist court erred in reversing the jury verdict in favor of the plaintiff. .3d 839.
1987). EXAMPLE 1 DO NOT CITE OR DISTRIBUTE support the verdict. somewhat inexplicably. 478 F. 68 Id. by introducing evidence “that Defendants made defamatory statements to two or three other people in the industry. for example. 1370-71 (9th Cir. the court seems to conveniently forget the standard of review laid out for jury verdicts.”64 In Engquist. at 999.3d at 998-99. the Appellate Court concluded that this evidence was not sufficient to prove that it was “‘virtually impossible’ for Engquist to find new employment.3d at 856 (citing to Landes Constr. at 999.67 After hearing this evidence. at 992.DUKE L. 71 Engquist.J. 67 Id. 69 Id. 478 F.3d at 999.2d 1365.”69 In previous decisions.”70 Given this readily understandable definition. 833 F.68 However.”66 Moreover. however. given that the Defendants defamed Engquist to people in 64 65 Id. 66 Id.”71 Therefore. the jury concluded that Engquist could succeed on her substantive due process claim.65 Engquist demonstrated this. v. Engquist. she testified that she had “applied for approximately 200 jobs” and while she had established her own company when it became obvious that her hopes for employment were almost nonexistent. Engquist produced a massive amount of evidence suggesting that she had been deprived of virtually every opportunity for a position in her field in the state of Oregon. Both the court and the Defendants acknowledged that Engquist’s line of work was “highly specialized” and “there simply are not many jobs available in that field in Oregon. 10 . it is difficult to see how this standard of evidence had not been met in Engquist’s situation. Royal Bank of Canada. this court has defined the “substantial evidence” standard of review as being met if evidence is produced that “reasonable minds might accept as adequate to support a conclusion even if it is possible to draw two inconsistent conclusions from the evidence. her business remained unprofitable. Co. at 991. 177 F. 70 Gilbrook.
72 The plaintiff in Bordelon did not face nearly the difficulty that Engquist confronted in her search for employment: Bordelon actually had his contract as principal renewed whereas Engquist’s position was eliminated and her reputation in Oregon was permanently tarnished.73 It seems highly inconsistent for the Ninth Circuit to apply the harsh test presented by Bordelon to the facts of Engquist while ignoring the glaring differences in the two cases. honor. Engquist likely could have succeeded in her deprivation of liberty claim. in Perry. The cases and judicial commentary preceding Engquist would suggest that the evidence presented in this case would be more than sufficient to render a judgment for Engquist’s deprivation of liberty claim. .3d at 531. Under the “stigma plus” test historically utilized in the Seventh Circuit (which lacked the additional phrase of “virtually impossible” that appeared in the Bordelon opinion). or integrity are at stake…” or if “the state imposes a stigma . 233 F. but it also establishes evidentiary standards that are contrary to this country’s jurisprudence. it seems almost as apparent that Engquist’s evidence satisfied the “virtually impossible” test required by the court.DUKE L. This decision is not only unfortunate because of the personal and financial ramifications that Engquist must suffer as a consequence of this adjudication. upon which the court relies so heavily in finding for the Defendants in Engquist. Bordelon. upon the individual which 72 73 See Bordelon. . 11 . For instance. See Id. a liberty interest is implicated upon an individual’s termination if the person’s “good name.J. EXAMPLE 1 DO NOT CITE OR DISTRIBUTE that particular industry – the “highly specialized” industry in which few jobs were available – this would appear to indicate that not only did the court err in reversing the jury verdict under a substantial evidence standard of review. is quite distinguishable from the facts in Engquist. reputation.
”79 By enumerating such factors. 1985)). fully aware that the industry in Oregon was limited.80 For Engquist. reputation. Justice Stevens’ concurring opinion in Conn suggests that a situation comparable to Engquist’s is exactly one that would implicate such a liberty interest. or professional qualifications were adversely affected . . 75 74 12 . See Id. at 1300-1302 (holding that criticism of plaintiff was “strictly limited to a few specified law enforcement agencies .J. 78 526 U. . . 77 See Conn. rather.3d at 991. . she certainly had suffered from some combination of these negative effects (which would suggest Perry.78 Justice Stevens suggests that there was no deprivation of liberty interest in Conn because the plaintiff produced “no evidence that [his] income. 693 (7th Cir. made comments implying that Engquist had “run the ESC ‘into the ground’”. he implies that these would be important considerations in establishing whether a deprivation of liberty had occurred. EXAMPLE 1 DO NOT CITE OR DISTRIBUTE forecloses other opportunities .”). Friske. even a few negative comments could essentially foreclose all opportunities in Oregon. 781 F. 80 Id. at 292 (holding that a mere brief interruption to a person’s occupation did not constitute a deprivation of liberty).77 Moreover.76 In Engquist’s case.S. at 293. . 76 Engquist. given the extenuating circumstances. 526 U. . .”74 Although the plaintiff in Perry was not found to have a successful claim for liberty deprivation75. . 754 F.2d at 1300 (citing to Munson v. the Justices of the Court may have intentionally left the right undefined and “generalized” so that various courts would be able to apply justice in the situation and not according to some pre-set standard.S. .2d 683. The few Supreme Court cases that speak to this issue of deprivation of liberty do not indicate that such a harsh test should be applied to the facts of a case. clientele. Engquist likely would have been successful since the state agents. 478 F.DUKE L. 79 Id.
is establishing a trend that will make it incredibly difficult for public employees to have any sort of real redress against unfair government employers.3d at 999. For Engquist. 478 F. beyond continuing in the financial wreck of self-employment. In a nation that prides itself on individual choice and liberty. is to move and seek employment elsewhere. It appears to be highly unfair to allow public employers to defame an individual in a limited industry and then force the plaintiff to prove that this defamation and discharge “reduced her employment options” to a point of nonexistence. See Engquist. 81 82 Engquist. it seems imprudent for a court to deny a plaintiff relief in such circumstances. a decision that seems beyond their authority to summarily adjudicate upon. 478 F. Her only hope of employment.81 The policy ramification of applying such a strict standard regarding the deprivation of liberty interests such as those in Engquist and Bordelon is essentially to prevent plaintiffs from succeeding in all but the rarest cases. EXAMPLE 1 DO NOT CITE OR DISTRIBUTE she had sufficiently been deprived of her liberty): she had definitely lost income and her reputation within the industry had been tainted. jury decisions can be causally dismissed.82 The result in Engquist is troubling in that the court.3d at 991. on the basis of a mere phrase in a Seventh Circuit opinion. 999. The policy ramifications set by this case are incredibly harsh on public employees – few plaintiffs will have the opportunity to survive summary judgment.DUKE L. her reputation has been essentially destroyed in a tiny industry. 13 .J. and the courts acquire the remarkable power to decide whether an individual retains even the slightest possibility of finding employment in her field.
U. the equal protection of the laws. the Ninth Circuit.2 While the class-of-one theory articulated in Village of Willowbrook v. Dep’t of Agric. § 1 (“No State shall . 6 Engquist v. 5 See Erwin Chemerinsky. 2007. INTRODUCTION In 2000. XIV. Olech. is a logical offshoot of equal protection jurisprudence.1 permitting an individual in a non-suspect class to claim violations of the Fourteenth Amendment’s Equal Protection Clause. .S. 9 Engquist.5 In February. at 996 (majority opinion). 7 Id. Suing the Government for Arbitrary Actions.8 Second. the Ninth Circuit misconstrued Olech by imposing a narrow interpretation of its scope.S. .6 determined in Engquist v. the court determined that when the government acts in its role as “proprietor. dissenting). OREGON DEPARTMENT OF AGRICULTURE AND THE CLASS-OF-ONE THEORY OF EQUAL PROTECTION I.S. deny to any person . CONST. Oregon Department of Agriculture. 478 F. breaking away from every other circuit to address the issue.A. 528 U.” rather than “lawmaker.4 the precise form and scope of the theory was left open due to the brevity of the opinion.3 with its focus on individual rights. a short. First. that class-of-one equal protection does not apply in the realm of government employment..A. 90 (2000).CASENOTE EXAMPLE 2 J O U R N A L DO NOT CITE OR DISTRIBUTE CLASS OF NONE: ENGQUIST V. 2007) (Reinhardt. at 565. 1011 (9th Cir. the distinction between the two functions of government 1 2 Vill. .7 The Engquist majority provided three main reasons supporting its decision. 562. per curiam Supreme Court decision accepted the “class-of-one” theory of equal protection. Or.3d 985. 36-MAY TRIAL 89. 4 See infra Part V. 478 F. . each of which is flawed in a different respect. amend.”).” class-of-one equal protection does not apply. of Willowbrook v.3d at 995. 8 See infra Part V. J. . 3 528 U. 565 (2000) (per curiam).. on a theoretical level. Olech.9 However.
in October. 2 . 478 F.11 ignoring substantive and procedural safeguards established by Olech and other circuits.3d at 994.. Or. at 990–91. 12 See infra Part V.J.12 II. although Engquist had a stronger educational background and more customer service experience.17 The extent of evidence related to improper motive behind her firing was essentially limited to a plan between her supervisor and a coworker to eliminate Engquist’s job because they believed that she was hard to “control” and that she was running the department “into the ground. at 990–91. Dep’t of Agric.3d 985. 16 Id. at 990.C. 19 Id. she was found unqualified for the only position available.19 10 11 See infra Part V. 2001. Engquist was fired as part of a reorganization of the ODA in response to the budget situation. at 991. on a practical level. 478 F. 18 Id. the Engquist court asserted that holding otherwise would result in an inundation of suits. 17 Id.”18 Although her collective bargaining agreement allowed Engquist to “bump” into a different job. at 991.B. Engquist. FACTS Anup Engquist held a specialist position in a laboratory for the Oregon Department of Agriculture (ODA).13 She was denied a promotion in the autumn of 2001. 2007).16 In January of 2002. the Governor of Oregon announced a state financial crisis and requested budget restrictions. not whether it applies. 14 Id.10 Lastly.14 The person chosen over Engquist had more experience in business and as a chemist. 990–91 (9th Cir. 15 Id.DUKE L. 13 Engquist v.15 Shortly thereafter. EXAMPLE 2 DO NOT CITE OR DISTRIBUTE merely affects the manner in which the class-of-one theory operates.
however. No. at 990.20 Her suit included an equal protection claim. Sept. at 991. stating that class-of-one equal protection claims cannot be applied to public employment decisions.26 The Seventh Circuit held that because the discrimination was intentional and arbitrary. 14. alleging that she was intentionally treated differently from others regarding the denial of the promotion.22 At trial. the firing.24 III. involved individual discrimination regarding government 20 21 Id. 02-1637-AS. 22 Id. 27 Id. the jury found the defendants liable for violating equal protection. one of two similarly situated paramedics was discharged for failure to perform her duties. Dist.27 Eighteen years later. LEGAL BACKGROUND According to Judge Posner. City of Chicago. 686 F. at *15 (D. the city’s actions violated equal protection.3d 631. 424 F. at 522–23.23 The Ninth Circuit reversed. Olech. 562 (2000) (per curiam). but rather on being individually discriminated against based on the class-of-one theory. was not based on being part of a suspect class. 28 528 U.S. the supervisor who fired her.DUKE L.28 That case. 2004) (denying defendants’ motion for partial summary judgment on class-ofone claim).3d at 996.21 The discrimination she alleged. while the other paramedic received no disciplinary action. 1982).25 In that case.. and the inability to bump. 2004 U. and the coworker who proposed the reorganization plan. 2005). 633–34 (7th Cir.S. 24 Engquist.J. Engquist v. EXAMPLE 2 DO NOT CITE OR DISTRIBUTE Engquist subsequently sued the ODA. 26 Ciechon v. the issue of the class-of-one first reached the Supreme Court in Village of Willowbrook v. 25 Lauth v. 23 Id. Or. Id. Dep't of Agric.2d 511. Or.. McCollum. also originating in the Seventh Circuit. LEXIS 18844. the “‘class-of-one’ movement” was started in 1982 with a case involving a government employee. 522 (7th Cir. 3 . 478 F.
. 2006) (allowing classof-one analysis for differing treatment regarding a city’s denial of billboard permits).”). EXAMPLE 2 DO NOT CITE OR DISTRIBUTE land-use regulations. Goldberg. J. 478 F. despite allowing for the claims. 955 (9th Cir.3d 936. J. in a concurrence. 31 See Chemerinsky.35 Every other circuit that has considered class-of-one equal protection in the realm of public employment has permitted such suits.”33 Engquist was the Ninth Circuit’s first public employment class-of-one case. dissenting). 37 See Lauth v.DUKE L. 2005) (“We are therefore not surprised to have found no ‘class-of-one’ cases in which a public employee has prevailed .3d 948. concurring).3d 631. at 563–64. at 89. v. stated that a crucial element for class-of-one claims involves some degree of animus or ill will on the part of the government. . since the extreme case that kicked off the ‘class-of-one’ movement more than two decades ago. at 565. 35 Valley Outdoor. 34 Engquist.34 The majority of the circuit’s previous class-of-one jurisprudence was limited to the area of government regulation. 633–34 (7th Cir. at 90.3d at 1011 (Reinhardt.. 944 (9th Cir. . Id. 32 Olech.29 The Supreme Court affirmed the Seventh Circuit’s holding that a city’s irrational and arbitrary demand that one resident grant a longer easement than all other residents violates the Equal Protection Clause. at 566 (Breyer. 36 Engquist. 375 F. leaving uncertainty for lower courts. City of Riverside. Inc. v.37 As a result. numerous circuits.32 Nevertheless.36 Nevertheless. 446 F. supra note 5. 2004) (involving disparate and selective regulatory enforcement. the federal appellate courts have adopted different approaches to limit the applicability of class-ofone for government employment decisions.S.31 Justice Breyer. 478 F. 4 . Squaw Valley Dev. there is a general discomfort in holding against the government. 424 F. 528 U.30 The opinion itself was short. in which government water quality control officials subjected one particular ski resort to stricter oversight than others). despite the fact that Justice Breyer’s analysis regarding ill will was not held to be necessary by the majority in 29 30 Id. supra note 5.3d at 991. McCollum. 33 Chemerinsky.J. this requirement was “expressly disavowed by the majority as relevant to its decision. For instance. Co.
. 110 (2nd Cir.41 However. Or. Dep’t of Agric. 2004). 455 F.. Sch.3d 96. 1038 (2007). cert. the Ninth Circuit stands alone in its Engquist approach of establishing an across-the-board prohibition against any class-of-one equal protection claims related to public employment. reversing the decision of the district court.40 Another option.3d 797.DUKE L.3d 985. Vill. Colombia Pub.J. 127 S. 44 Id. 40 E. E.. imposing a heavy burden on the plaintiff to show that differing treatment was given to others under truly similar circumstances.3d 150. supra note 5.39 Other circuits have focused their analysis on the “similarly situated” element. rather than denying the claim on narrow grounds as the other circuits have done with class-of-one government employment cases. used by the Fifth Circuit. 156 (1st Cir. 2003). Skehan v. the Ninth Circuit broadly held that “the class-of-one theory of equal protection is inapplicable to decisions made by public employers with regard to their employees.Ct. EXAMPLE 2 DO NOT CITE OR DISTRIBUTE Olech. HOLDING The Ninth Circuit Court of Appeals held that Engquist’s equal protection claim was invalid as a matter of law. J. Howard v. Campagna v..g. 2006).. at 996 (majority opinion).. 451 F. 5 .38 have expressly adopted such a requirement when it comes to public employment classof-one equal protection claims. 45 Id. 2007) (Reinhardt. 2006). 465 F. 349 (5th Cir.g. 334 F.42 IV. of Mamaroneck. 478 F. Dep’t of Envtl. 804 (8th Cir. denied.. 363 F. is to simply rely on the increased burden on the plaintiff under rational basis review as a means of dismissing claims. Mass. at 993. 2006). 239 (3d Cir.3d 339. 1011 (9th Cir.”44 Judge Tashima provided three main rationales behind this holding: (A) Olech was not meant to expansively include public employment decisions. Dist. at 89. Univ. 42 Engquist v.43 However.3d 225. Hill v. 43 Id. Prot. Miss.45 (B) class-of-one should be limited to when the government acts as a “lawmaker” and should not apply when the government 38 39 Chemerinsky. dissenting). of S. Borough of Kutztown. 41 See Whiting v.
EXAMPLE 2 DO NOT CITE OR DISTRIBUTE acts as a “proprietor. per curiam opinion. 955 (9th Cir.50 Since Engquist’s claim had nothing to do with regulations or land use.DUKE L. like Olech. v.53 he concluded that strict limits should also be placed on class-of-one equal protection claims. 49 Id.”52 Analogizing to the limited availability of constitutional claims dealing with public employment under the First and Fourth Amendments. 2006). Id. 478 F.47 First. have been limited to the area of regulatory land use. 51 Id. at 994. IV. City of Riverside. pointing to the fact that Olech was a short. 53 U.48 The Engquist opinion emphasized that Justice Breyer’s concurrence “expressed concern that Olech would transform ordinary violations of state or local laws into constitutional cases. the Ninth Circuit narrowly interpreted the scope of the Supreme Court’s holding in that case. CONST. 54 Id. I. 48 See id.”49 Judge Tashima stated that all of the Ninth Circuit’s previous class-of-one cases.3d 936. 944 (9th Cir. 2004)).S. 52 Id. Judge Tashima based a great deal of his analysis on the distinction between the government acting as lawmaker and the government acting as proprietor. at 993. Second.”46 and (C) allowing class-of-one claims for public employment would lead to a flood of cases. Squaw Valley Dev. amends.51 “Because the government as employer has broader powers than the government as regulator. 50 Engquist. 6 . the opinion cited to language from a Seventh Circuit case.54 In addition. at 996. v. “the scope of judicial review is correspondingly restricted. 446 F.J. at 994–95. at 995.3d 948. 375 F. stating that “[t]he paradigmatic class-of-one case should be one in which a public official. Inc. Co.” he said. for 46 47 Id.3d at 993 (referencing Valley Outdoor. at 994. the court determined that class-of-one was unavailable for her. at 994–95. Goldberg.
did not ban class-of-one employment claims. 7 . public employment decisions have never been sheltered from the Fourteenth Amendment. he noted that no circuit has faced this problem. McCollum.J.58 In addition.59 In a dissenting opinion. 58 Id. at 994.57 The opinion stated that other circuits have found it difficult to define the scope of class-of-one claims and argues that without certain limits. but rather emphasized that special deference should be given to the government employer in such cases. 57 Id. the fact that courts have “almost always ultimately concluded that the particular [employment] claim before them was insufficient” was asserted as proof that a per se rule against government employment class-of-one claims is necessary. 60 Id. nearly every inconsequential government decision could give rise to a federal cause of action. at 1010 (Reinhardt.60 He believed that Engquist runs counter to Supreme Court precedent and disagreed with the majority’s attempt to distinguish Olech. 424 F. dissenting).56 The third major reason behind the majority’s prohibition against class-of-one claims in the area public employment was that without such a strict rule.62 Regarding the fear of a “flood” of cases. at 994. 633 (7th Cir. at 993. at 1012. 59 Id. Judge Tashima argued that allowing class-of-one claims for government employment decisions would “completely invalidate” the long-established common-law rule of at-will employment. See 424 F. ‘comes down hard on a hapless private citizen.DUKE L. at 1011–12. stating that “those circuits have set standards for assessing 55 Id. 56 Id. Lauth. 2005)).. Judge Reinhardt aligned himself with all of the other circuits that have addressed the issue.’”55 Furthermore. J. federal courts would be inundated with cases. 62 Id. 61 Id. however. he asserted that unlike the First and Fourth Amendments. arguing that class-of-one equal protection is applicable in the area of public employment.61 Furthermore. EXAMPLE 2 DO NOT CITE OR DISTRIBUTE some improper motive. at 995 (quoting Lauth v.3d 631.3d at 634.
Second. at 90. the court’s practical worries regarding the potential flood of cases are unfounded. the Ninth Circuit’s interpretation of Olech seems to result 63 64 Id. Problematic Interpretation: Scope of Olech Although the short. 66 Id. 8 . the Ninth Circuit’s interpretation of Olech is questionable since that case gave no indication that class-of-one claims are to be so limited. the majority’s theoretical conclusions regarding the applicability of equal protection when the government acts as lawmaker compared to when the government acts as proprietor is off the mark. considering the procedural and substantive safeguards provided by Olech and followed by other appellate courts.65 Using that test. A.”63 Judge Reinhardt then set forth three approaches that other courts have used to apply class-of-one to employment: requiring plaintiffs to indicate an “identically situated” person not discriminated against. Goldberg.64 The best approach.3d 936. at 1015.66 V.J. 65 Id. and utilizing the rational basis test with a strong burden on the plaintiff. requiring evidence of animus or malice. Lastly. at 1013. Judge Reinhardt would have upheld the district court’s ruling in favor of Engquist. 67 Chemerinsky. Co. he argued. Id. per curium opinion in Olech does not provide much guidance to circuit courts. ANALYSIS The Engquist reasoning regarding the inapplicability of class-of-one equal protection for public employment is misguided on three major levels. supra note 5. 2004)). Indeed. similar to what the circuit has done for previous class-of-one cases. EXAMPLE 2 DO NOT CITE OR DISTRIBUTE class-of-one employment disputes such that petitioners win only in extreme cases.67 there is no indication that the class-of-one designation is only to apply to certain areas of government action. 375 F. First. 944 (9th Cir. v. (citing Squaw Valley Dev. involves a blend of all three techniques.DUKE L.
at 239 (emphasis added). Olech. 78 WASH. REV. 1194 (9th Cir. 239–40 (1976)) (emphasis added). Davis actually states that equal protection applies to discrimination between “individuals or groups. Washington v.” To clarify. Farrell. 307 (1976) (focusing on whether age-based classifications are constitutional). 71 Id. Kramer75 and Regents of the University of California v.DUKE L. unique branch of equal protection jurisprudence. contrary to the Supreme Court’s holding. 229. Bakke76 have taken this approach.S. 22 (1948) (stating that the rights of the Equal Protection Clause are “guaranteed to the individual” and are “personal rights”) (emphasis added).3d 1193. at 368. To restrict the scope of 9 68 .” 436 U.S. EXAMPLE 2 DO NOT CITE OR DISTRIBUTE more from its own belief that. 76 438 U. 620 (1996) (stating that classifications based on sexual orientation serve no legitimate government purpose). Landmark cases such as Shelley v. 367 (2003). Evans72 and Massachusetts Board of Retirement v. JUR. 367. 74 Farrell. Classes. The second function of the Equal Protection Clause is to protect individual rights. Harrington. 2D Courts § 129 (2007) (describing the stare decisis doctrine). written two years before Olech. 75 334 U. the clause limits government classifications. 73 427 U.68 Though the Ninth Circuit may be uncomfortable with the ruling of the Supreme Court.69 Although the class-of-one theory appears to be a new. 152 F. 72 517 U. asserts that equal protection claims must be “based upon membership in a protected class. supra note 70. Davis. This opinion. Equal Protection.S. 426 U.70 First. 265 (1978) (utilizing the “individual rights” model as a means of explaining why government actions benefiting minorities are constitutionally suspect). at 379. 1.J. stare decisis dictates that it must follow Olech. 70 Robert C. Professor Robert Farrell argues that the Equal Protection Clause serves dual functions. However.S. the Equal Protection Clause does not provide for class-of-one claims. concentrating primary on the individual rights of those given See Barren v.S. L. Supreme Court cases such as Romer v. (citing Washington v.71 For example. 69 See 20 AM. 1998).” Id. and Village of Willowbrook v.74 This is where class-of-one theory fits. its development is actually a logical offshoot of a traditional form of equal protection theory — that of “individual rights. Persons.S. Murgia73 focus their analyses primarily on whether a certain class of people has been treated differently from other classes.
562. 564 (2000) (per curiam) (quoting Sioux City Bridge Co.S. it would have been difficult to classify non-minorities as a suspect class. 2007) (Reinhardt.J. Olech. 445 (1923)) (emphasis added). Or. rather than looking for the existence of a classification. Olech asserts that “[t]he purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the State’s jurisdiction against intentional and arbitrary discrimination. 10 .77 The Ninth Circuit.3d 985.. Problematic Theoretical Conclusions: Government as Proprietor vs. supra note 70. Olech utilizes the second function of equal protection since it focuses on the protection of the individual. the Ninth Circuit’s conclusion that the Equal Protection Clause need not apply when the government acts as proprietor is inconsistent with equal protection jurisprudence and theory. at 368. 77 Farrell. 441.. it prefers to restrict the scope of equal protection to government classification analysis. 528 U. 478 F. is hesitant to acknowledge this function of the Equal Protection Clause. focusing on the individual rights of particular non-minorities allowed the Court to make a more direct connection to equal protection.”78 All other circuits have determined that claims of discrimination related to government employment decisions fall within the latter category of “improper execution through duly constituted agents” and therefore are subject to class-of-one treatment.DUKE L.79 affirmative action.S. whether occasioned by express terms of a statute or by its improper execution through duly constituted agents. Rather. EXAMPLE 2 DO NOT CITE OR DISTRIBUTE disparate treatment. dissenting). In contrast. of Willowbrook v. 79 Engquist v. J. v. 1011 (9th Cir. 260 U. Lawmaker While a distinction does exist between the government acting as a proprietor and the government acting as a lawmaker. 78 Vill. Dep’t of Agric. nevertheless. B. Dakota County.
These include the most basic decisions involved in running a government. 229 (1976). Indeed.3d 419. Davis. it does make a difference whether the government is acting as a proprietor or a lawmaker. of Regents v. at 398. 408 U. 176 F. however. supra note 70.S. Roth.S. 11 .S. the Ninth Circuit correctly distinguished the varying forms of government action. This difference.80 However. at 398–99. . 82 See. For public employment decisions. Pers. “classification” analysis tends to be invoked mainly when the government acts as a lawmaker. J. e. more than merely ‘arbitrary and capricious’ in the commonly accepted administrative-law sense.”83 In short. 129 (1992)). 83 Singleton v. 256 (1973). on the other hand. 422 U. when government officials make any of their millions of individual determinations daily. but rather how equal protection applies. 115.S. such as who gets hired for a government job. EXAMPLE 2 DO NOT CITE OR DISTRIBUTE On a theoretical level. 80 81 Farrell. the Equal Protection Clause creates a personal right. 1999) (en banc) (Arnold. is not whether equal protection applies. ..J.82 Therefore. The difference between applying the Constitution when the government acts as a legislature compared to when it acts as a proprietor can also be distinguished as a matter of degree. Feeney. when the government acts as proprietor. dissenting) (citing Collins v. Washington v. And here. The action must be ‘arbitrary in the constitutional sense. 564 (1972). Id. 426 U. where “governmental action must be more than merely ‘arbitrary’ in some general or logical sense. 503 U. Bd..81 In other words. Cecil. many landmark equal protection cases have dealt specifically with government employment. 433 (8th Cir. Harker Heights. Adm’r of Mass.DUKE L. “individual rights” analysis tends to be utilized. the subsequent conclusions it made are inconsistent with equal protection law and theory. As Farrell argues: It is quite a different story.g. the Ninth Circuit’s per se rule against the availability of class-of-one equal protection for government employment decisions is misplaced. according to Olech. v. These are individual decisions. These governmental decisions are not legislative and do not amount to broad generalizations about a large number of persons. who gets fired from a government job . However. a parallel can be drawn to Due Process Clause analysis.
517 U.S. rational basis review grants the government a great deal of deference. Unfounded Practical Concerns: Flood of Cases Another major factor behind the decision to deny class-of-one suits for government employment in Engquist was the fear that allowing such claims would trigger a flood of cases in the federal court system. Dep’t of Agric. v. Evans. 427 U.g. the same result could have been reached had the court simply gone through ordinary rational basis analysis.87 Second. In Engquist. a simpler categorization of the safeguards available is to consider two factors: (1) giving strong deference to the government and (2) imposing a heavy burden on plaintiffs.”90 utilizing the standard. 348 U. e... deferential form for class-of-one equal protection claims involving government employment would make it difficult for many plaintiffs to succeed. Moreno. Bd.J. 994 (9th Cir. & TR.DUKE L.R.S.S.. e.88 (1) Deference to Government: Rational Basis Review Typically. 473 U.S. in practice. 87 Id. which typically grants great deference to the government. 483 (1955). 478 F. 85 84 12 . Williamson v. Romer v. 432. City of Cleburne v.g. v. See supra text accompanying note 64. Lee Optical. it at least keeps open the possibility of legal remedies for extraordinary cases. 90 See. Dep’t of Agric. 334 (2001). Carreira.84 Judge Reinhardt’s dissent in Engquist points to three approaches used by other circuits to prevent this potential “flood.S. the use of the rational basis standard of review. U. EXAMPLE 2 DO NOT CITE OR DISTRIBUTE C.S.89 Although at times rational basis has been given more of a “bite. U. 2007). PROB.” 36 REAL PROP. While this may. 89 See. acts to limit the number of such suits. Fritz. Or. 86 See Hortensia S. New Orleans v. Engquist v.86 First. placing heavy pleading burdens on plaintiffs dissuade frivolous and unnecessary claims. Cleburne Living Ctr. Dukes.S. 88 Id.”85 However.. Ret. 528 (1973). J.S. 297 (1976). result in essentially the same outcomes as a per se rule against such claims. R. 413 U. (1985). 620 (1996). for example. 449 U.3d 985. 331. Protecting the “Class of One. 166 (1980).
446 F. 1012 (9th Cir. e. Supp. 239 (3d Cir..D..g. 478 F. 832 F. City of Stillwater.3d 1199.3d 150. (2) Heavy Burden on Plaintiff: Similarly Situated or Improper Motive Restricting the scope of class-of-one equal protection for public employment decisions can also be accomplished by establishing a high threshold for cognizable claims. 92 Engquist v.3d 985. Giambra. 13 . Line Sch. Borough of Kutztown. 334 F.94 Procedurally.DUKE L. 178. 2004) (“It is this comparative element that distinguishes the Equal Protection Clause from the Due Process Clause. Dep’t of Agric. 2007) (Reinhardt. Murphy v. Dist. 2003). while still protecting individuals against heinous governmental conduct.D. 455 F.J. 1213 (10th Cir.. 161 (W. 383 F. Miss..93 This element has both substantive and procedural importance for class-ofone claims. Or. the key reason for utilizing rational basis review over a per se prohibition would be to provide legal recourse for those rare. Substantively.91 Judge Reinhardt’s dissent points out that rational basis review “has always been used to insulate governmental decisions from searching review that would interfere with governmental functions. Dep’t of Envtl. W.N.”92 Indeed. e.Y. despite the fact that a vast majority of class-of-one public employment claims would fail.”). 1993). the comparative evaluation that flows from the “similarly situated” element is the foundation of equal protection analysis. Hill v.. 180–81 (N.. 2006).g. 94 See Jennings v. 91 See. Prot. 2006). 156 (1st Cir.3d 225. J. One method is to require the plaintiff to come forward with strong evidence in support of the “similarly situated” element. 93 See. dissenting). Mass. extreme instances in which the government employer has truly committed a constitutional violation. EXAMPLE 2 DO NOT CITE OR DISTRIBUTE Specifically. the court could have found a legitimate government interest in cutting costs due to a state budget crisis and could have determined that eliminating government employment positions is a rational means to accomplish that goal. this element gives judges great discretion to determine the level of discrimination and disparate treatment extraordinary enough to merit an equal protection remedy in the realm of public employment decisions. Supp. Campagna v. 2d 153. Flaherty v.
341 (1886). Hopkins. EXAMPLE 2 DO NOT CITE OR DISTRIBUTE Another option is to adopt Justice Breyer’s requirement of proving animus or ill will on the part of the government. J. 98 Jennings.S. by its very nature. 356. Jennings. there is no need to fear a flood of cases. Olech. the extent of class-of-one discrimination is.98 Procedurally..S. together with heavy burdens on plaintiffs. the extent of the discrimination is often obvious. 339. 97 See.3d at 1213–14. 528 U. the Ninth Circuit’s reasoning for completely prohibiting class-of-one claims in the area of public employment is flawed for misinterpreting the scope of Olech.J. 566 (2000) (Breyer. 118 U.S. of Willowbrook v. 383 F.DUKE L. 383 F. misapplying the applicability of class-of-one depending on the form of government action. limited to a single individual and therefore tends to be less glaring. 373 (1960). From a substantive perspective. 95 96 Vill. 562. and overestimating the practical consequences associated with permitting class-of-one claims in this realm. where there is broadly disparate treatment based on classifications.. 364 U. VI. In summary.3d at 1213–14. CONCLUSION Overall. because of the huge deference given to the government under rational basis review.95 This method also would have both substantive and procedural advantages in limiting class-of-one claims for public employment.96 In other words. it is much more difficult to discern whether discriminatory government action was legitimate or improper when dealing with an individual rather than a class of people. Lightfoot. 14 . placing an additional burden on plaintiffs to prove that the public employer acted with ill will would provide an additional disincentive to bring frivolous claims. e. Yick Wo v. concurring).g.97 On the other hand. Gomillion v.
2004). 6 See. Or. at 997–98.g.2 lower courts have struggled to define the substance and scope of this somewhat counterintuitive3 new claim. and the Court’s traditional use of the Equal Protection Clause as a vehicle against class discrimination.3d 985 (9th Cir. id. § 1 (“[N]o state shall . the Ninth Circuit was able to maintain a remedy against extreme cases of employment interference.S. It did so by rejecting the “class of one” theory in public employment settings. many circuits have allowed “class of one” employment claims in theory. 1 2 Vill. 5 See Lauth v. 2007). for a general discussion on how the “class of one” theory of equal protection diverges from both the original purpose of the Equal Protection Clause. 4 E. City of Stillwater. McCollum.CASENOTE EXAMPLE 3 J O U R N A L DO NOT CITE OR DISTRIBUTE A LOST CAUSE OF ACTION: THE NINTH CIRCUIT’S BOLD APPROACH TO THE ENIGMATIC “CLASS OF ONE” EMPLOYMENT CLAIM. 632–34 (7th Cir. CONST.6 However. Olech. . U. amend.7 the Ninth Circuit Court of Appeals found a more sophisticated way to balance the rights of public employees against the discretionary needs of public employers. . e. I.4 This struggle has been particularly apparent in the area of public employment. XIV. . 8 Id. L. Olech. 424 F.5 In an effort to reach extreme cases of employment discrimination without unduly interfering with public employers’ discretion. 478 F. 528 U. while consistently striking them down in practice.. Dep’t of Agric..”). Jennings v. deny to any person within its jurisdiction the equal protection of the laws .g.S.8 while nonetheless preserving a narrow substantive due process claim to protect employees’ occupational liberty. in Village of Willowbrook v. .9 Through this approach.1 first recognized a cause of action on behalf of a “class of one” under the Equal Protection Clause. . 89 KY. 69.. Oregon Department of Agriculture. 383 F. 562 (2000) (per curiam). while leaving public at-will employment virtually unscathed. in Engquist v. 2005). INTRODUCTION Ever since the Supreme Court. at 992. 1210–11 (10th Cir. Angry White Males: The Equal Protection Clause and “Classes of One”.J. 7 Engquist v.3d 1199. of Willowbrook v. . 9 Id. 3 See Timothy Zich.3d 631.
FACTS In 1992.3d at 990. 15 Id. 2 . at 990. he told Corristan that “it made him angry to have to go”). 17 See Appellee’s Brief.10 During her tenure at ODA. at 990–91. at 991. 18 Engquist. Id.17 While Engquist also applied for the position. 14 Engquist. claimed to have chosen Hyatt based on Hyatt’s business experience and work as a chemist.15 Subsequently. Corristan met with Hyatt’s supervisor and required Hyatt to attend diversity and anger management training. 478 F.3d 985 (No.18 Szczepanski.14 Hyatt claimed that he was working with Szczepanski towards this goal. Engquist repeatedly complained to Corristan about the offensive behavior of another employee in Corristan’s division. John Szczepanski (Szczepanski) took over Engquist’s laboratory division and indicated to others that he planned to “g[et] rid of” both Corristan and Engquist. and drafted a plan to reorganize Engquist’s division.3d at 990–91. it was offered to Hyatt despite Engquist’s more extensive educational background and customer-service experience. 19 Id.19 10 11 Id. 05-35170) [hereinafter Appellee’s Brief] (claiming that when Hyatt returned from his required anger management training. 478 F. EXAMPLE 3 DO NOT CITE OR DISTRIBUTE II. Joseph Hyatt (Hyatt). 05-35263. 478 F. 13 See Cross-Appellant’s Answering Brief on Appeal and Opening Brief on Cross-Appeal at 14.”13 In June of 2001.J. however. 16 Id. Engquist.DUKE L.11 In response. supra note 13. Anup Engquist (Engquist) was hired by Norma Corristan (Corristan) as an international food standards specialist for the Oregon Department of Agriculture (ODA). Szczepanski promoted Hyatt to a management position16 that Corristan had apparently left vacant in anticipation of budget cuts. 12 Id.12 This requirement apparently made Hyatt “angry.
violating her equal protection and substantive due process rights. 562 (2000) (per curiam).23 Specifically.25 III. 27 Id. 24 Id. Engquist applied for approximately 200 jobs. Olech. the jury found the Defendants liable under the “class of one” theory of equal protection for intentionally treating Engquist differently than other employees similarly situated with respect to promotions and termination. 25 Id. after which Szczepanski terminated the employment of both Corristan and Engquist. her search was unsuccessful. However.22 The jury concluded that the Defendants were liable for violations of equal protection and substantive due process.26 the Supreme Court explicitly recognized a cause of action on behalf of a “class of one” under the Equal Protection Clause in cases where a plaintiff alleges that he or she “has been intentionally treated differently from others similarly situated” without any “rational basis for the difference in treatment.J. of Willowbrook v. at 564–65. at 990. which the district court denied. 23 Id.”27 However. 22 Id.S.24 The Defendants filed a motion for judgment notwithstanding the verdict. EXAMPLE 3 DO NOT CITE OR DISTRIBUTE In October of 2001.21 Engquist filed suit against Szczpanski and Hyatt (Defendants) for.DUKE L. the Governor announced the need for major budget cuts.28 While Olech only involved government action in the enforcement 20 21 Id. Id. the Court’s short opinion did not clearly articulate the scope of the “class of one” cause of action or provide clear standards for its application. Olech. at 992. 3 . 28 See id.20 Subsequently. 26 Vill. at 564. LEGAL BACKGROUND In Village of Willowbrook v. 528 U. inter alia. because Oregon has very few opportunities in Engquist’s area of expertise.
29 the Court used expansive and unqualified language to justify the “class of one” theory.g. e. 2004).35 While the Ninth Circuit acknowledged that its holding was technically inconsistent with the precedent of other circuits.. 30 See.30 indicating a broader range of applications. at 564 (“[T]he purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the State’s jurisdiction against intentional and arbitrary discrimination.32 Yet. Second Circuit. 528 U. or by its improper execution through duly constituted agents. Or.S.” the claim could provide constitutional grounds to review practically every decision made by any government actor. whether occasioned by express terms of a statute. 18-feet longer than that required of other similarly situated property owners. Seventh Circuit. 32 See Engquist v. 260 U. in Olech. at 564–65. 31 Jennings v. Id. id. partly because the scope of judicial review of actions taken by the government as a proprietor of its own affairs has been consistently narrower under the Constitution than that of actions taken by the government in its legislative or regulatory capacities. lower courts “struggled to define the contours of class-of-one cases. at 563. 2007).J. as a condition for connecting her property to the municipal water supply.” recognizing that “unless carefully circumscribed. Third Circuit. Dep’t of Agric. the complainant alleged that the Village of Willowbrook had vindictively demanded a 33-foot easement from her. Sixth Circuit. 33 See Olech.34 IV. did not qualify its language or otherwise immunize government employers from liability. 478 F. 441. v. all seven circuits that had reviewed the issue had ultimately approved the “class of one” theory for use against government employers. it emphasized that those circuits that do recognize “class of one” claims in employment 29 In Olech.3d at 993 (citing recent cases from the First Circuit. the Ninth Circuit rendered the “class of one” theory of equal protection inapplicable to public employment decisions.31 One area of particular controversy has been government employment. the Court. Dakota County. EXAMPLE 3 DO NOT CITE OR DISTRIBUTE of laws. City of Stillwater.S. reviewing the issue de novo. Following Olech. 4 . 994 (9th Cir.” (quoting Sioux City Bridge Co. 34 See Engquist.DUKE L.. Fifth Circuit. 478 F. 383 F. and Tenth Circuit). 35 Id. HOLDING In Engquist. at 992. 445 (1923))) (internal quotation marks omitted).33 Prior to the Ninth Circuit’s decision in Engquist.3d 1199. 1210–11 (10th Cir.3d 985.
at 994–95. the court did not render public employees completely defenseless against extreme cases of government interference. See id. 43 Id. at 995. while the Ninth Circuit banished the “class of one” theory from public employment settings. because it found that: (1) the need for judicial deference is much greater when the government is acting as an employer rather than as a regulator.41 However. EXAMPLE 3 DO NOT CITE OR DISTRIBUTE settings almost always strike them down. recognizing the potential legitimacy of a substantive due process claim when an employer violates an employee’s occupational liberty.36 The Ninth Circuit also acknowledged the struggle of other circuits to strike an appropriate balance between an individual’s right to equal protection. 5 . the Ninth Circuit struck a different balance than other circuits. and the government’s need to make administrative decisions without excessive judicial oversight. the court analogized to other constitutional areas where the rights of public employees are less expansive than those of ordinary citizens.42 However. at 993–94.40 In particular.DUKE L.”43 36 37 Id.39 The Ninth Circuit relied on Supreme Court precedent to support this distinction between the government acting as a regulator and the government acting as a proprietor of its own internal affairs. Rather. at 997–98. 39 See id. 38 See id. at 997. 42 See id. the court offered public employees a different source of relief.38 and.37 Ultimately. (2) individuals’ need for judicial protection from arbitrary government action is much less substantial when the government is acting as their employer. 41 Id. the court carefully limited such claims to “extreme cases” where a government employer acts to “foreclose access to a particular profession to the same degree as government regulation.J. at 994–95. 40 Id. however.
”45 The facts surrounding Engquist’s claim provided more than enough ammunition to find a conceivable rational basis for both promoting Hyatt over Engquist46 and for eliminating Engquist’s position entirely. CONSTITUTIONAL LAW 630 (2d ed. Olech. at 11–12 (describing how Engquist’s laboratory division. EXAMPLE 3 DO NOT CITE OR DISTRIBUTE V. particularly when the Defendants’ treatment of Engquist is viewed together with their treatment of Corristan. and marketing skills” needed for the vacant position). managing budgets. at 13–20. while nonetheless retaining the theory in employment settings. 562.S. 2005) (describing rational basis review as extremely deferential to the government. 6 44 .44 “Class of one” actions can only prevail under Olech when the government has “no rational basis for [the alleged] differential treatment. 49 Cf. 564 (2000) (per curiam). 05-35263) (describing the conceivable legitimate reasons why Szczepanski may have promoted Hyatt instead of Engquist. FCC v. When the Supreme Court hands down a new weapon without qualifying its use. See ERWIN CHEMERINSKY. 48 See Appellee’s Brief. even though the facts of the case could perhaps support an inference that the Defendants really acted out of malice towards Engquist. Engquist. 307. “was running in the red. 47 See id. the Ninth Circuit could have simply found that Engquist’s claim failed rational basis review. 05-35170. supra note 13. and working as a supervising chemist. 45 Vill. running retail establishments. requiring only a conceivable legitimate purpose for a government action). 315 (1993). the Ninth Circuit had two obvious ways to send a warning to lower courts that this jury verdict had gone too far without altogether rejecting the “class of one” cause of action within public employment. it seems somewhat foolish for a circuit to completely throw that weapon away.” which Szczepanski apparently felt “gave Hyatt the entrepreneurial.J.48 such an inference is constitutionally irrelevant under rational basis review. managerial. of Willowbrook v. including “Hyatt’s experience starting his own coffee company. 528 U. developing business plans. Beach Commc’ns. ANALYSIS In Engquist.49 Alternatively.47 Furthermore.” and that Engquist’s termination was part of a larger plan to downsize the division). 478 F.DUKE L. 508 U. in particular.3d 985 (No. First.S. the Ninth Circuit could have used Engquist’s case as an opportunity to narrowly define the contours of “class of one” employment claims. 46 See Appellants’ Brief at 10.
409 F. XIV..55 instead bow down to public employers with such magisterial restraint? Perhaps the most obvious explanation is that the Equal Protection Clause needed a shoreline. 58 See Pers. where a paramedic who had done nothing wrong was intentionally made a scapegoat for a controversial death. nonetheless appear to justify judicial scrutiny. Adm’r v. § 1. 478 F. 286 F.53 So then. 2005).” it would be unwise to hold that “a public employee could never maintain a class-of-one case”). Purze v.51 Other circuits. 562. 51 Vill. EXAMPLE 3 DO NOT CITE OR DISTRIBUTE Most likely. 52 See. Lauth.. 2007).50 and. when such cases arise. e. While one has a constitutional right to equal protection of the law. the Second Circuit and Seventh Circuit require plaintiffs to allege that they were intentionally treated differently from another person so similarly situated that the two could be considered prima facie identical. judges may wish to dive into their judicial arsenals and emerge with the sweeping language of Olech.S. 405. of Willowbrook v. 57 See U. Olech.2d 511 (7th Cir. 686 F. 56 See Lauth. see supra note 30 and accompanying text. 455 (7th Cir.3d 452. 273 (1979). 633–34 (7th Cir. City of Chicago. D’Angelis. 424 F. 2005). Vacated.S.g.56 and the distinction between the government as a regulator and the government as an employer seemed like a good place for a beach. of Winthrop Harbor. 54 See Marybeth Herald. Reversed. recognizing this potential need.3d at 634 (concluding that “[i]n light of Ciechon. “any unexplained or unjustified disparity in treatment by public officials [could be] deemed a prima facie denial of equal protection. Or.58 And.” opening “endless vistas” of government liability). 55 Engquist v.52 have allowed “class of one” claims within public employment while limiting the scope of judicial review through other means. 53 For example. 77 OR. Vill. 528 U. the Supreme Court has consistently recognized that the government has broader power when it is acting as an employer One often cited “extreme” example is Ciechon v. 564 (2000) (per curiam).DUKE L. McMollum. there will be extreme cases where the actions of a government employer. Feeney. 424 F.3d 631. CONST. 407–08 (1998) (noting the Ninth Circuit’s liberal reputation). 442 U. 2002). Dep’t of Agric. 424 F.3d 100.S. REV.3d 985. and the Congress.3d at 633 (warning that without boundaries.57 one does not have a constitutional right to either a government job or continued government employment. L. See Lauth v. amend. while only directed at one employee. why did perhaps the most “liberal” circuit in the country. 1982).54 breaking from all others circuits that had reviewed the issue. 992–93 (9th Cir. the Ninth Circuit. See Neilson v. 105 (2d Cir.J. 7 50 . and Split: The Supreme Court. 256.
Cheney. 1166 (9th Cir.J. plurality opinion)). Dep’t of Human Res.”) (emphasis added). . After all. e. EXAMPLE 3 DO NOT CITE OR DISTRIBUTE rather than as a sovereign. unworthy of judicial solicitude. 511 U. e.S.. 661. See U. 963 F.S.59 Thus. 62 Generally. Nev.2d 1160. 721. public employment decisions based on classifications among people are reviewable under the Equal Protection Clause. rather. CONST. The Ninth Circuit does not deny the possibility that a government employer could discriminate against an individual employee to the point where a remedy would be appropriate. XIV. 61 See.. 538 U.. different in kind from all other claims recognized under the Equal Protection Clause.63 Because the Ninth Circuit is not requiring government employees to surrender their right to equal protection in general. § 1 (“[N]o state shall . the scope of judicial review over public employment is naturally more restrained. amend. Pruitt v. 478 F. 63 See. but rather only to this one equal protection theory. 671 (1994) (O’Connor. . private employers are not bound by the Equal Protection Clause of the Fourteenth Amendment.DUKE L. in the Ninth Circuit’s view. 1992) (applying rational basis review to a former army reserve officer’s claim that she was discharged from the military based only on her homosexual status). (2) the classifications only require rational basis review. if the sole justification for the Ninth Circuit’s decision was the need to free public employers from the constraints of the Equal Protection Clause.60 However.S. it appears to suggest substantive due process as a better tool for implementing the spirit of the “class of one” 59 Engquist. Hibbs.g. 728–29 (2003).3d at 994 (citing Waters v. there must be something different about “class of one” employment claims that renders them. Churchill. 8 .g. V. 60 See id. Perhaps the Ninth Circuit has really defined the “class of one” theory as sue genesis. so as not to render every government personnel decision subject to federal review.62 and. J. . its reasoning would be shamelessly flawed.61 even when: (1) similar private employment decisions would not be reviewable.
§ 14. McDonnell. E.”). 418 U.3d at 997–98.64 In so suggesting.69 Thus. not their unique individuality.” See Romer v. because except for the fact that the Equal Protection Clause has traditionally protected individuals from discrimination based on their classifications. Evans.68 Indeed. 562. 528 U. at 56768 (3d ed. 129 U. Olech. 558 (1972) (“The touchstone of due process is protection of the individual against arbitrary action of government. TREATISE ON CONSTITUTIONAL LAW – SUBSTANCE & PROCEDURE. 539. it will not tolerate legislative or regulative actions that are “borne of animosity. A.7. In this line of cases. The Due Process Clause has traditionally been trusted with the task of protecting individuals from arbitrary and unreasonable government action. 67 This may reflect a continued aversion to the use of substantive due process to protect economic rights. the “class of one” theory uses the Equal Protection Clause to protect individuals from discrimination. EXAMPLE 3 DO NOT CITE OR DISTRIBUTE theory in employment contexts. 66 See Vill. because this application is consistent with another recent equal protection trend: a greater willingness to brandish the Equal Protection Clause when legislators or government regulators act with animosity. the “class of one” theory does not appear inappropriate as an equal protection claim when applied against malicious government regulators. The “Class of One” Theory is Poorly Suited for Use in Employment Settings.S. 123 (1889))).DUKE L. the analysis under substantive due process and equal protection is virtually indistinguishable. 478 F. even under rational basis review.65 Yet. at 622–23 (describing how the Court has used the Equal Protection Clause to safeguard rights that more appropriately fall under the Due Process Clause in order to avoid the negative association between substantive due process and the “Lochner era”).g. even though Olech did not explicitly consider the See Engquist. the Ninth Circuit’s opinion guides the judiciary in a direction that is both theoretically sound and practically beneficial. 69 The Supreme Court has indicated that.” (citing Dent v. 517 U.. this Note argues. of Willowbrook v.67 Usually. Wolff v. 620. 114. CHEMERINSKY. supra note 44.J.66 rather than the Due Process Clause. 1999) (“[T]he difference in the method of analysis under the due process and equal protection guarantees relates only to whether or not the government act classifies persons. 564 (2000) (per curiam).S.S.S. ROTUNDA & JOHN E. the Court appears to evaluate the government’s motives 65 64 9 . Cf. this could be overlooked. NOWAK. 634 (1996). West Virginia. 68 See RONALD D.
J. 2007) (“[T]he paradigmatic class-of-one case should be one in which a public official. 71 See Engquist v. City of Cleburne v. 528. for an improper motive.J..” 73 Cf. 946 (9th Cir. 473–75 (1985). Moreno.. Croson Co.g.. it is much more difficult to maintain this façade in employment settings.3d 396. 488 U. v.S.3d 985. Goldberg. at 565 (finding it unnecessary to examine the government’s subjective motivation).DUKE L. Cleburne Living Ctr. when an individual is treated differently from others based only on his or her unique characteristics. 72 For example. 413 U. the Equal Protection Clause only makes sense in public employment when it is used to protect classes of people rather than individuals. This distinction should not matter when the behind a particular action. First. When an individual is discriminated against based on his or her immutable traits or group affiliations. 528 U. Or. Macrane. 493–94 (1989). including the Ninth Circuit. U. something distinct to that individual is causing the disparate treatment. 469. ‘comes down hard on a hapless private citizen. 633 (7th Cir. Inc. 10 . 432. 53 F.72 While the “class of one” theory can easily masquerade as an equal protection claim in regulatory settings. J. 995 (9th Cir.71 This trend also legitimates the more stringent “class of one” analysis that the Ninth Circuit employs when reviewing regulatory decisions that discriminate against individuals.. This application echoes the sentiment of Esmail v.S. 478 F. 70 See Olech.70 some lower courts.. 180 (7th Cir. 473 U. City of Richmond v. 2005))).A. have focused the “class of one” theory on cases where the government maliciously exploits its disproportionate strength to render individual citizens helpless against it. 375 F. allowing “class of one” claims to proceed where a plaintiff introduces evidence that a defendant’s “proffered rational basis” for differential treatment was merely a pretext for an improper motive. EXAMPLE 3 DO NOT CITE OR DISTRIBUTE malevolent nature of the government’s actions. 424 F. 534–35 (1973). the discrimination is likely based on stereotypes instead of the individual’s ability. 2004). See. McCollum. the court used a more stringent version of rational basis review. rather than whether the action bares a rational relationship to a conceivable government interest.’” (quoting Lauth v. at 565–66 (Breyer.S. But see id. v.S.S. Dep’t of Agric..3d 176. e.3d 631. concurring) (emphasizing that ill-will is an important “extra factor” for distinguishing ordinary instances of faulty decision making from “cases of constitutional right”). Dep’t of Agric.” and that “[a] class of one is likely to be the most vulnerable of all. where Judge Posner suggested that “classifications should be scrutinized more carefully the smaller and more vulnerable the class is.73 In contrast. in Squaw Valley Development Co. 1995).
’ where the plaintiff 75 74 11 . 995 (9th Cir.S.77 Employers must make nuanced decisions in order to maintain balance and control over their workforces. 528 U.” considering how easy it is to fabricate a case of unequal treatment. Dep’t of Agric. as in Olech.DUKE L. at 493.74 because government agents are not supposed to selectively enforce laws based on either stereotypes or their personal feelings towards individuals. is well-established under the common law of at-will employment. 82 See Vill.J. at 563.81 Second. 488 U. if permitted against public employers.76 employers are allowed to distinguish between employees based on their individual characteristics.. Croson. could drastically interfere with the entire dynamic of public employment. the need for government employers to evaluate employees on an individual basis automatically displaces the claim’s “similarly situated”82 requirement. 77 See Engquist v. McCollum. it still gives individual judges the power to determine what justifications are arbitrary or irrational. 53 F. 528 U. 78 See id. 2007) (“The power of employers to discharge employees for reasons that may appear arbitrary . 478 F. because See Olech. supra note 44. 80 See Lauth v. . this distinction does matter when the government is acting as an employer. for a description of how the “class of one” theory could transform public at-will employment “into something very close to tenured employment. 2005). 424 F. of Willowbrook v. the “class of one” theory.3d at 179–80. . at 121. EXAMPLE 3 DO NOT CITE OR DISTRIBUTE government is acting as a regulator. 633 (7th Cir.79 Indeed. While rational basis review is very deferential to the government. 562.78 Yet. 564 (2000) (per curiam) (“Our cases have recognized successful equal protections claims brought by a ‘class of one. That is. fearing the costs and hassles of litigation.75 However. id. 79 See id.S. While public employers are not permitted to make employment decisions based on presumptively irrelevant classifications.3d 985. 76 Cf.80 Even the availability alone of the “class of one” claim could deter employers from making certain good faith personnel decisions.S. supra note 3.3d 631. See Email.”). Or. allowing “class of one” claims in the employment setting would hand every disgruntled public employee access to both a federal judge and a constitutional weapon through which the rationality of his or her employer’s decisions could be second-guessed. 81 See Zich. Olech.
and permissible factors. at 34–35.86 Ultimately. 83 Under a “class of one” claim. this same evidence also seems to demonstrate that the Defendants were merely subjectively evaluating each employee on the basis of his or her unique. see supra note 50.87 However.83.” Neilson v. at 524. See Appellee’s Brief. two employees are never so “similarly situated” that differential treatment implies irrationality. 2005). relevant. alleges that she has been intentionally treated differently from others similarly situated . D’Angelis. 12 . prove that they reacted to those circumstances and performed their responsibilities equally. including a letter that spoke to the other paramedic’s “exceptional” reputation. 686 F. This is starkly different from equal protection claims brought on the basis of suspect classifications. . even though both paramedics “experienced the same set of circumstances and were equally responsible for patient assessment and treatment . supra note 13. alone. at 35 (claiming that Hyatt “worked with all kinds of races. 84 The previously discussed “extreme” case of Ciechon v. may seem like an exception to this statement.DUKE L. and evidence that the discharged paramedic was more involved with the patient at the scene. City of Chicago. one of two paramedics was made a scapegoat for an attendee’s death.85 but rather because of something unique to her. at 20. the paramedics’ shared experiences and responsibilities do not.”) (emphasis added). . . . evidence that individuals in similar situations were treated more favorably can be introduced to “provide an inference that the plaintiff was intentionally singled out for reasons that so lack any reasonable nexus with a legitimate government purpose that an improper purpose – whether personal or otherwise – is all but certain. .2d at 522. Engquist hoped to distinguish her treatment from that of other female minorities in order to prove that the Defendants did not make personnel decisions on the basis of her superficial and presumptively irrelevant characteristics. 87 See id. EXAMPLE 3 DO NOT CITE OR DISTRIBUTE employers must take subtle distinctions between individual employees into account when making employment decisions. 105 (2d Cir. where the treatment of similarly situated employees can be introduced to demonstrate a pattern of discrimination based on impermissible factors. In fact. 85 Engquist was both female and of a minority race. However.J.” 686 F. 86 See id.2d 511 (7th Cir 1982). Id. In Ciechon. 409 F3d 100. 84 The absurdity of applying a “class of one” analysis to employment decisions is epitomized by Engquist’s attempt to demonstrate that she was singled out not because of her immutable traits. . the court discounted subtle distinctions between the paramedics. both genders and he never targeted women or people of color for termination”). See id.
3d 631. 13 . Substantive Due Process is Better Suited to Protect the Rights of Public Employees. 478 F. 179 (7th Cir. 686 F. Macrane.3d at 997–98.3d at 995. See Esmail v.J. the power of government facilitates the harm. Instead. 424 F. while the arbitrary and vindictive enforcement of laws against vulnerable individuals may offend the Constitution.”). EXAMPLE 3 DO NOT CITE OR DISTRIBUTE Third. it protects public employees from extreme cases of government interference. When regulations are enforced in a malicious manner. 632 (7th Cir.2d at 516 (finding that the City’s investigation was “single-mindedly and intentionally” aimed at “ruining” the paramedic’s career).90 B. 686 F. the individual ought to have a remedy in federal court. see supra note 84. because it is the actor’s power as an employer that facilitates the injury. For those rare cases where a public employer’s interference with an employee’s career prospects does rise to the level of regulatory interference. The very private nature of an employment decision should not become public simply because the person making the decision happens to receive a government paycheck. 1982). 53 F. 90 See Engquist. the court could have held that the City violated the paramedic’s substantive due process rights because her discharge effectively ruined her future career prospects. cf.89 However. For example. 88 89 See supra notes 69–72 and accompanying text. See Ciechon. thus. could have been decided without relying on the Equal Protection Clause. 478 F. disfavored treatment does not solicit the same need for judicial protection. 1995) (“[I]f the power of government is brought to bear on a harmless individual merely because a powerful state or local official harbors a malignant animosity toward him. 91 See Engquist. even the “extreme” case of Ciechon v. Lauth v. This distinction really comes down to the source of power that is used to impose an injury on an individual. McCollum.DUKE L.91 In employment settings. City of Chicago.92 Second.88 arbitrary and vindictive employment decisions do not. First.2d 511 (7th Cir. the Ninth Circuit stocked its judicial arsenal with a less destructive weapon in the form of a substantive due process claim. the claim greatly limits the scope of judicial review over public employment decisions.”). 2005) (“There is clearly something wrong with a suit of this character coming into federal court dressed as a constitutional claim. when the government is acting as an employer. the need for a federal remedy is more compelling. under this approach.3d 176. 92 See id. this claim serves as a more sophisticated alternative to the “class of one” theory.
but rather an individual’s freedom. more impressively.94 Third. Although other circuits have restrained the “class of one” theory by striking down individual claims. because it is not the government job itself that the Ninth Circuit is recognizing a due process interest in. this holding is consistent with the distinction between the government as a proprietor of its own affairs.95 As long as the government is not actively infringing that external right. it relied on Supreme Court precedent and the spirit of the Constitution to do it. 96 See id. at 998 (“[W]e hold that there is a substantive due process protection against government employer actions that foreclose access to a particular profession to the same degree as government regulation. See id. this holding leaves public at-will employment virtually unscathed. Finally.” (emphasis added)). In contrast.DUKE L. Had the Ninth Circuit affirmed the jury’s verdict on Engquist’s substantive due process claim. See id. the Ninth Circuit actually addressed and solved the underlying problem of unfettered judicial oversight.J. 478 F. 94 93 14 . while also protecting public employers from excessive judicial review.93 Thus. in the absence of that job. CONCLUSION In sum. And. it would have essentially allowed the scarcity of comparable jobs to define the strength of a public employee’s “liberty interest” in maintaining his or her public employment. the Ninth Circuit used Engquist as an opportunity to protect government employees from overzealous government interference. 95 See id.96 VI. EXAMPLE 3 DO NOT CITE OR DISTRIBUTE because it only applies when the government’s actions directly prohibit an employee from pursuing his or her profession. because the substantive due process claim only applies when the government uses powers beyond those of an employer. neither the reasons for an employee’s termination nor the scarcity of comparable jobs are considered relevant. and the government as a regulator. See Engquist. to pursue his or her desired career. there can be no violation.3d at 998–99. such a control serves only as a stopgap against recovery— access to federal review remains vastly overinclusive. instead exploiting the extra power that only the government possesses.
. OREGON DEPARTMENT OF AGRICULTURE I.5 simplicity and reassurance have disappeared. Dep’t of Ag. self-evident and reassuring. of Willowbrook v. 478 F. U. for example by permitting challenges to unfair or arbitrary state action without requiring a showing of membership in a larger class of historically disadvantaged persons. 4 See supra notes 23–50 and accompanying text.3d 985 (9th Cir. Oregon Department of Agriculture1 that the Equal Protection Clause2 requires that “all persons similarly situated should be treated alike”3 seems simple. 478 F. CONST. . The class-of-one theory that the court adopts in Engquist is itself part of a trend in equal protection jurisprudence away from complexity and technicalities. 2007). The opinion considers a Supreme Court holding that a class-of-one plaintiff alleging “irrational and wholly arbitrary” state action may state an equal protection claim without alleging malicious or vindictive action.”).CASENOTE EXAMPLE 4 J O U R N A L DO NOT CITE OR DISTRIBUTE PROTECTION FOR PUBLIC EMPLOYEES BECOMES LESS EQUAL IN THE NINTH CIRCUIT: ENGQUIST V. INTRODUCTION In considering a challenge to the legality of state action. 6 Vill. amend. Olech. 478 F.3d at 992.S. a diffuse but coalescing consensus of federal appellate courts has sought to develop a method consistent with that standard to ensure access to federal 1 2 Engquist v. 3 Engquist.6 Since that holding. 528 U.S.. XIV (“No state shall . Or. the Ninth Circuit’s assertion in Engquist v.3d at 1010. 564 (2000) (per curiam). . 562.4 Yet by the time this court concludes by denying a claim challenging the legality of state action based on equal protection grounds by a plaintiff not claiming membership in any general class of persons (a “class-of-one” plaintiff). 5 Engquist. deny to any person within its jurisdiction the equal protection of the laws.
11 Engquist. 2004). EXAMPLE 4 DO NOT CITE OR DISTRIBUTE courts for constitutional claims while excluding ordinary law violations. Civ.. had been employed since 1992 as an international food standards specialist by the Oregon Department of Agriculture (“ODA”). the Ninth Circuit solved this problem by simply closing its door to all such suits under any conditions. 478 F. No. 12 Id. L.12 When both Engquist and Hyatt applied for a supervisory position in their unit. 13 Id.9 The question remains whether the court’s solution is appropriate for the problem it identified. 9 Id.J. 228–29 (2000). who had assumed oversight of the ODA. 35 VAL.11 John Szczepanski. 14. she complained to the director of her unit who responded by requiring Hyatt to attend various training sessions. 2004 WL 2066748.13 Szczepanski defended his 7 Nicole Richter. REV. U. Hyatt was successful. Or.10 After experiencing difficulties with Joseph Hyatt. 10 Engquist v. and was working with Hyatt to “get rid of” both her and the director who had responded to her earlier complaint. 478 F. II. Or. It seems likely that this opinion will not be the last judicial word to be heard on this matter.3d at 993.02-1637-AS. A Standard for “Class of One” Claims Under the Equal Protection Clause of the Fourteenth Amendment: Protecting Victims of Non-Class Based Discrimination From Vindictive State Claims.3d at 990. 8 Engquist. another employee. a woman whose national origin is India. at 996.DUKE L.8 Worried about the risk of encouraging multiple equal protection lawsuits on routine personnel matters that would undercut the employment-at-will doctrine in a public context.7 Yet the Ninth Circuit concludes by departing from the approach of those courts by disallowing the claim solely because it was made by a public employee challenging state personnel action. 2 . an Oregon state agency. Dep’t of Ag. Sept. stated that he could not “control” Engquist. at 990–91. at *1 (D. FACTS Plaintiff Anup Engquist. 197.
3d at 991.20 Regarding equal protection. as well as for interference with contract. 478 F. at *1.DUKE L. Engquist could find no other job.19 On appeal. but found the defendants liable for violation of equal protection and substantive due process. 3 . and she sued each of Hyatt. at 992–97. the Ninth Circuit first turned to a review of equal protection jurisprudence. the Ninth Circuit disagreed with several other federal circuit courts in holding that a class-of-one equal protection claim such as Engquist’s was not applicable to personnel decisions by public employers.16 Subsequently. 2004 WL 2066748. 22 Id. Engquist’s and her supervisor’s positions were eliminated.14 However. Szczepanski and the ODA in federal court. 18 Engquist.17 Engquist set forth various causes of action. 2004 WL 2066748.15 Shortly thereafter. at *2. 16 Engquist. including alleged violations of Title VII of the Civil Rights Act through harassment based on race.J. at 1010. 21 Id. Szczepanski had ignored staff recommendations that the minimum job qualification should include a relevant Master’s Degree.18 The jury rejected the Title VII claims. LEGAL BACKGROUND In assessing the claims in Engquist. sex and national origin as well as more general constitutional claims. 20 Id.3d at 992. when Engquist had two and Hyatt had none. Engquist. at 996. 19 Engquist.22 The court’s reasoning can be seen as an 14 15 Id. 478 F. at 990. color. EXAMPLE 4 DO NOT CITE OR DISTRIBUTE preference for Hyatt by pointing out his superior business experience and work as a chemist. 17 Id. at 991. emphasizing an evaluation of whether the emerging class-of-one theory should be permitted to apply to Engquist’s case. but not the interference claim. the Ninth Circuit reversed the judgment on the two federal grounds.21 III.
Angry White Males: The Equal Protection Clause And “Classes Of One”. 1181 (7th Cir. . .3d 1179. To make ‘classification’ an element of a denial of equal protection would therefore be vacuous. Bd. XIV (emphasis added). 101 F.S. 69.”27 23 24 U. 4 .J. 25 Id. 89 KY. A.25 B.J. . legislative districting. The Supreme Court and Olech Judge Posner in the Seventh Circuit gave early theoretical support for a class-of-one approach to mitigate this arguably artificial class-based jurisprudence lacking an express constitutional basis. the equal protection of the laws. The Fourteenth Amendment and Equal Protection The Equal Protection Clause prohibits the government from “deny[ing] to any person . L. 1996) (citations omitted). EXAMPLE 4 DO NOT CITE OR DISTRIBUTE attempt to resolve the tension between a recent expansion of equal protection rights and public policy considerations suggesting that this process needs some limitations. the amendment was originally drafted in reaction to Black Codes and other legislation enacted in the aftermath of the Civil War to discriminate on the basis of race. 27 Id. 26 Ind.DUKE L.24 This foundation led to a jurisprudence wherein specific classes of plaintiffs with similar vulnerabilities have been found to be eligible for “heightened” scrutiny and comprise most of the claims for equal protection. of School Comm'n. at 72 (mentioning affirmative action. single-sex military education and anti-gay legislation as dominating the then-current Supreme Court affirmative action docket). amend. CONST.”23 Nothing in this language suggests that any person who has suffered from such a denial is unprotected simply for lack of membership in a protected class. 71 (2000–2001). . Nevertheless. There is always a class. Timothy Zick. . State Teachers Ass'n v.26 He found that a protected class "can consist of a single member . or that there is any class of defendants with immunity from the prohibition.
S.S. Olech. 35 Id. EXAMPLE 4 DO NOT CITE OR DISTRIBUTE The Supreme Court.S. and necessary. of Willowbrook v. A Standard for “Class of One” Claims Under the Equal Protection Clause of the Fourteenth Amendment: Protecting Victims of Non-Class Based Discrimination From Vindictive State Claims.S. 528 U. 528 U. 31 Nicole Richter. 160 F. 388 (7th Cir. 29 28 5 .31 Nevertheless.29 The Supreme Court heard the case on appeal from a Seventh Circuit decision allowing a claim that a village had improperly conditioned plaintiff’s right to connect his property to a municipal water supply. at 565–66 (Breyer. aff’d. 562 (2000)). 35 VAL. (citing Vill.33 He noted that Judge Posner’s Seventh Circuit opinion found that the particular violation involved an “extra factor” he called “vindictive action.DUKE L. 34 Id. 33 Id. at 564 (citing Sioux City Bridge Co. L. 441 (1923). at least one such issue was identified in Justice Breyer’s concurrence. 32 Olech. 228–29 (2000). Olech. 1998). in Village of Willowbrook v.”34 The presence of such a factor was sufficient. 488 U. 562 (2000) (per curiam).” “illegitimate animus” or “ill will. v Comm’n of Webster County.35 Vill. Allegheny Pittsburgh Coal Co. 260 U. v. for Justice Breyer to join with the majority in allowing this equal protection claim to proceed. concurring). 30 Id. suggesting that it was effectively incorporated in Supreme Court decisions dating at least back to 1923 even if the term “class-of-one” was not then used.30 The Court’s short per curiam opinion left unclear the various issues likely to arise in other cases involving such an apparent broadening of a basic constitutional right.J.S. 336 (1989)). 528 U. at 563.3d 386.28 has since permitted an equal protection claim to proceed expressly based a class-of-one theory. J. 528 U. Dakota County. 197.S. Olech.32 Justice Breyer noted a concern that Olech might lead the Court to interpret the Equal Protection Clause so as to convert “ordinary” law violations into constitutional cases.. Olech. of Willowbrook v. U. REV.
S. animus or ill will in such cases.3d 176. concurring). is arguably softened by his willingness to join a per curiam opinion expressly disclaiming any inquiry into subjective motivation. of Selectmen. Bd. 1996) (holding “the relevant prerequisite is unlawful discrimination. J. and (3) without a rational basis for the difference. 247 U.g. Twp. EXAMPLE 4 DO NOT CITE OR DISTRIBUTE Nothing in the per curiam opinion suggested that an allegation of such an extra factor was necessary to the equal protection claim. Bd. See also supra notes 26–27 and accompanying text.g. & Lounge v. Esmail v. Yerardi's Moody Street Rest. of Wakefield. e. The per curiam opinion’s requirement that plaintiff plead the treatment was (1) intentional. 352 (1918)). 878 F. The court concluded by holding that an allegation that defendant’s actions are irrational and arbitrary is sufficient to state a class-of-one claim. 721 (8th Cir.40 In such cases. 350. v. 1989) (allowing claim based on allegedly disparate treatment due to “malicious or bad faith intent to injure”). 39 The firmness of Justice Breyer’s insistence on a finding of vindictiveness.36 except to the extent that it was implicitly answered through the requirement that such allegations must include that plaintiff “has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.J. L. 38 Id. Macrane. Even after the Olech 6 .3d 717. 79 F. A Standard for “Class of One” Claims Under the Equal Protection Clause of the Fourteenth Amendment: Protecting Victims of Non-Class Based Discrimination From Vindictive State Claims.. REV. 180 (7th Cir 1975) (holding claims can be made for actions taken for illegitimate or wholly irrational objectives). U. 528 U.41 In cases involving 36 Nicole Richter. 37 Olech. e.2d 16.. The Various Circuits’ Limitations Olech was not the first or the only case in which the class-of-one theory has been applied. regardless of the “subjective motivation” for such actions. at 564 (citing Sunday Lake Iron Co. 21 (1st Cir.”37 Such a requirement appears to address the same concern as the procedures imposed by some lower courts. Batra v.DUKE L.39 C.38 This conclusion points toward a lower threshold for permitting such actions. seems to give courts some leeway to exclude the ordinary law violations that Justice Breyer feared without going so far as to insist on Judge Posner’s extra factor.. not whether plaintiff is part of a victimized class”). id. at 565–66 (Breyer. circuit courts have dealt in various ways with a concern similar to Justice Breyer that the class-of-one theory should be limited in some way. 197. of Neb. of Regents of the Univ.S. (2) different from that given others similarly situated. 53 F... id. 41 See. 35 VAL. 228–29 (2000). 40 See.
2004) (Lyons..3d 705. Dep’t of Ag. 49 Hill. 239 (3d Cir.3d 906. EXAMPLE 4 DO NOT CITE OR DISTRIBUTE public employment. City of Greenwood. His persistence has been criticized. 261 (6th Cir.. 627 F. Scarbrough v.J.49 These circuits have held that governmental action fails rational basis scrutiny when it is unrelated to a decision. 83 (2000–2001).3d 631. 383 F. I cannot agree with the seemingly "head-in-the-sand" approach of the Seventh Circuit. 89 KY.3d at 1181. 911 (1st Cir. Indiana State Teachers Ass'n v. 69. 1007 (7th Cir. 2006).3d 225. 48 Timothy Zick.g. Third and Seventh Circuits require the plaintiff to identify someone situated identically who was not discriminated against. of Educ. 43 Id.DUKE L.3d 339..g.J. e.J. 44 Neilson v. 609 (2d Cir.3d 100. concurring) (“In the final analysis. LeClair v. 2004). Village of Wheeling. Saunders. 455 F.. v. Hill v. Indiana Land Co. 209 F. 1980). 1996). City of Stillwater. Ex Parte McCord-Baugh. 47 Rubinovitz v. See. 2000). Jennings v. Second and Tenth Circuit require that animus or malice be shown. such as those cited by both the majority42 and the dissenting43 opinions. 478 F. 894 So. 451 F. 60 F. subject to a combination of three limitation techniques. 2004). e. 1995). Rogato.47 These circuits allow a plaintiff to proceed when there is evidence of “bad faith or malicious intent to injure.46 The First. dissenting)..3d at 104. Borough of Kutztown. the circuit courts uniformly hold that the theory is applicable.”48 The Third. 455 F.2d 606. 2d 679. See. Whiting. 2007).3d 1199. 2005). 409 F. Morgan County Bd. I see no reasonable way of interpreting the opinion of the Supreme Court in Olech other than to accept it at face value. 7 .3d 1005. L. 470 F. The Second. 409 F. 1181–82 (7th Cir. 46 Nielson. 712 (7th Cir. C. 104 (2d Cir. Univ.. D’Angelis. at 1011 (Reinhardt. 691 (Ala. of School Comm'n. Fifth. by which it ignores the explicit holdings of the Supreme Court in Olech..3d 985.”). of Miss. Lauth v. 634 (7th Cir. v. 2005). 45 Indiana State Teachers Ass'n. 42 Engquist v. 2006). McCollum. J. 993 (9th Cir.”45 The two must have an extremely high level of similarity. and elects to accept as controlling the opinion of Justice Breyer concurring in the result. Sixth and Seventh Circuits require the plaintiff to disprove any rational basis offered in defense of the action in question. 101 F. 1211 (10th Cir.3d at 239.3d 250. Angry White Males: The Equal Protection Clause And “Classes Of One”. 101 F. 2007) (en banc). Or. Judge Posner retained his insistence that class-of-one plaintiffs plead some extra subjective factor that motivated the alleged violation. 378 F.44 These circuits believe that if “the two are truly identical the different treatment of them must be discriminatory. Hilton v. 424 F. Bd. 349 (5th Cir.3d 1179.
quoting the permissive three-pronged standard set forth therein that the conduct must be intentional. the opinion took a turn away from precedent. 299 (2001). 53 Engquist.54 From that point on.. CIV. 11 GEO. See supra notes 40–50 and accompanying text. See supra note 37 and accompanying text. It did not proceed to consider the merits of the various limiting techniques applied in the various circuits to distinguish whether or not particular alleged fact pattern merited such constitutional protection. MASON U.3d at 993. might be off limits to equal protection claims. RTS. 263. Instead. 2007).J. 992 (9th Cir. 478 F. Or. since there was nothing in Olech to suggest that some class of cases. animus can never be a legitimate governmental purpose. J. however. it undertook an examination of the nature of public employment in relation to equal Scarbrough. The Rising Tide of Equal Protection: Willowbrook and the New Non-Arbitrariness Standard. 51 50 8 .53 It then considered the cases in other circuits in which the issue was presented after Olech. 54 Id.50 IV. 470 F.DUKE L. Michael McGuinness. Dep’t of Ag. L. finding none in which class-of-one theory had been found inapplicable. EXAMPLE 4 DO NOT CITE OR DISTRIBUTE legitimate governmental purpose. 52 By even raising this issue. Engquist v.3d 985. such as those involving employment decisions. and without rational basis. The main focus of the class-of-one theory was to broaden availability of such claims by moving away from conditioning exercise of constitutional rights based on class. HOLDING In its de novo review of the judgment against defendants based on the Equal Protection Clause.J. different from that accorded others.52 the court proceeded to consider Olech. 478 F.51 After noting that the issue of whether the class-of-one theory applied to employment actions was one of first impression in the Ninth Circuit.3d at 261. the court conceded defendants a crucial point. the Engquist court initially recited precedent that the Clause protects all persons similarly situated.
DUKE L.J. Like Judge Posner. 59 Id. 57 Id. 58 Id. McCollum.56 Further in this vein. at 994–95. at 994–996.”58 Conversely. 633 (7th Cir.61 55 56 Id. 60 Id. see supra note 34 and accompanying text. public employees were found to have less need for such constitutional assistance “given the number of other legal protections that public employees enjoy. for which its powers are broader.60 Accordingly. this court leans toward Justice Breyer’s concurrence in Olech that class-of-one liability should be conditioned on some extra factor.57 Consequently. such as those under the First and Fourth Amendments.”59 Finally.55 The court noted a distinction in the public sphere between legislative or regulatory actions. despite the three-pronged standard of the Olech per curiam opinion. EXAMPLE 4 DO NOT CITE OR DISTRIBUTE protection. at 994. like improper motive. the court distinguished Olech to the extent that it could be characterized as the “paradigmatic class-of-one case” in which a governmental official with improper motive “comes down hard on a hapless private citizen. Id. the court expressed concern that allowing such claims would effectively invalidate at-will employment. and employment actions. as well as generate a “flood of new cases” relating to employment. had been found to be more limited for public employees than for ordinary citizens. the court noted that some constitutional rights. at 995 (citing Lauth v. 9 . 2005)).3d 631. without any need to consider the particular fact pattern. asking whether such protection should be available regardless of the particular facts of the case. 61 Id. at 996. for which the government has narrower powers. 424 F. the equal protection verdict was reversed based on a holding that the class-of-one theory was inapplicable to a public employment decision in general.
The measure of the reasonableness of a classification is the degree of its success in treating similarly those similarly situated. 69. See infra notes 67–75 and accompanying text. REV.g. Madison.S. . 344 (1949)). 64 Marbury v. ANALYSIS Equal protection is a fundamental safeguard of liberty.J. . . 473 U.. 37 CAL. EXAMPLE 4 DO NOT CITE OR DISTRIBUTE V. But it does require.S. Cleburne Living Center. L. The Constitution does not require that things different in fact be treated in law as though they were the same.J. Angry White Males: The Equal Protection Clause And “Classes Of One”. whenever he receives an injury.63 A. [the Equal Protection Clause] can be stated with deceptive simplicity.”64 The guarantee of such an essential safeguard of liberty is best simply stated: The essence of . that those who are similarly situated be similarly treated. 439 (1985) (“The Equal Protection Clause . Inc. . The Equal Protection of the Laws. and attempts to limit its reach should be tested against a broad understanding of its applicability.DUKE L. 66 See.66 The majority opinion in Engquist underestimates Olech when it states the brief per curiam opinion is “too slender a reed” on which to base what it characterizes as a transformation of 62 63 See infra notes 63–66 and accompanying text..65 This valuation of simplicity in applying fundamental constitutional protections such as equal protection liberally and in accordance with its literal terms is clear in Supreme Court opinions. 89 KY. 10 . in its concern for equality. (1 Cranch) 137. e. Background of Broad Equal Protection Equal protection is a continuation and fulfillment of the important concept of Marbury v. is essentially a direction that all persons similarly situated should be treated alike. L. 341. City of Cleburne v. 163 (1803). 5 U. 432.”). 83 (2000–2001) (citing Joseph Tussman & Jacobus tenBroek. 65 Timothy Zick. Madison that “the very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws.62 Substantial encroachments on that reach should not be suggested without careful regard for the framework of precedent that has developed to ensure competing interests are protected.
it would be extraordinary to require that such right first be exhausted through state remedies. 996 (9th Cir.69 In a similar manner. By instead applying Olech so as to deny applicability of such protection to public employees. See supra notes 58–59 and accompanying text. 457 U. 69 See Patsy v. the Ninth Circuit seems out of step with this trend.70 As for its treatment of precedent. 478 F. Or.”).J. of Regents. 70 Engquist. B. Dep’t of Ag. 11 . 496. Id. federally protected right is implicated in the first place. by starting with a determination of whether there is any practical downside to extending such protections rather than by asking whether the particular governmental action is the kind the constitution was intended to prohibit.67 The Olech opinion is not slender at all. the court’s search for a means to avoid a “flood of new cases” does not seem to follow from the conclusions of other circuits as to possible methods of 67 68 Engquist v.3d at 995 (finding federal courts should not review the “multitude” of public personnel decisions). Internal and External Inconsistencies The Engquist majority opinion raises further troublesome questions to the extent that its reasoning is inconsistent with the authority it invokes and with applicable precedent. there is nothing in the record to indicate that Engquist challenged her dismissal under the applicable CBA..68 However. the court distinguished Engquist’s case from the “paradigmatic class-ofone case” because of alternative protections available to public employees such as the plaintiff. at 995 (“In this case. 2007).DUKE L. As to its internal justifications. incremental step in a continuing trend of decisions that collectively articulate the value of simplicity and clarity in equal protection cases. if it is correctly understood as a small. the majority in Engquist seems to work backward in its constitutional analysis. 478 F. Bd.S.3d 985. EXAMPLE 4 DO NOT CITE OR DISTRIBUTE law. 516 (1982) (finding no need to exhaust state administrative remedies before challenging denial of employment opportunities under a federal statute). if a vital. for whatever reason.
Von Raab.DUKE L. 1958 (2006) (finding all First Amendment rights not surrendered by public employees). 489 U. 664 (1989) (finding the Fourth Amendment applies to the government as an employer)).72 Judge Reinhardt’s dissent suggests that the majority’s basis in precedent is tenuous. If. J. Ceballos. 944 (9th Cir. dissenting). Conclusion An employee. the majority expressly disavowed the “extra factor” advocated by Justice Breyer in permitting the plaintiff’s claim in Olech to proceed. 74 Id. 1951. 12 71 . 126 S. at 994 n.74 Judge Reinhardt points out that the acceptance of the class-of-one theory has not proven fatal to at-will employment or produced a flood of cases in other circuits.. such as Engquist.71 Furthermore. 73 Id. See supra note 60 and accompanying text. who has lost a job through governmental conduct shown to be arbitrary and irrational needs equal protection no less than an individual who loses an interest in property through similar conduct. EXAMPLE 4 DO NOT CITE OR DISTRIBUTE avoiding such a flood without damming up the river entirely.1 (recognizing that requiring such an extra factor was inconsistent with the per curiam opinion in Olech). Nat’l Treasury Employees Union v.S. 375 F. at 1013. See supra notes 34–37 and accompanying text. the Equal Protection Clause exists to protect all citizens from such conduct. 76 Id. 72 Id. Goldberg.3d 936. 656. Co. the dissent finds Supreme Court cases acknowledging that such limited rights are nevertheless not rendered completely nonexistent. as its literal words suggest.J. at 993–94 (reviewing cases recognizing class-of-one claims in public employment without adopting the relevant holding of any). 75 He prefers an outcome in Engquist based on Ninth Circuit precedent involving a regulatory decision in which a standard consistent with Olech was applied. 75 Id.Ct. at 1011 (Reinhardt.76 C. v. at 1012 (citing Garcetti v. 2004) (holding “plaintiff must show both that he was treated differently than others and that there was no rational basis for this treatment”)). then arguably her status as a public Id.73 Answering the cases cited by the majority that First and Fourth Amendment rights are limited for public employees. at 1012–13 (citing Squaw Valley Dev.
In Engquist.DUKE L. Given the extreme positioning of Engquist in the spectrum of prior federal circuit court opinions that have been written on this issue. but which neither individually nor in the aggregate seem to justify the bar to class-of-one actions that it concludes is necessary. EXAMPLE 4 DO NOT CITE OR DISTRIBUTE employee should be irrelevant in view of the relative importance of remedying arbitrary and irrational public action. it seems likely that its holding that equal protection does not reach public employment decisions will not be the last judicial word on the matter. Other courts have suggested various less absolute ways of limiting such actions in a manner sufficient to address legitimate concerns.J. Olech suggests that the limitation process should not be restrictive. the Ninth Circuit has advanced a variety of arguments that support concerns similar to those of Justice Breyer. A court should ask if there is another way to protect against Justice Breyer’s concern of converting ordinary law violations into constitutional cases. 13 . the more useful legal question seems to be which of these other ways is best rather than to disregard them all by absolutely closing the doors of federal courts to a claim within the literal words of the Fourteenth Amendment. Therefore. The importance of the equal protection right and the potential number of public employment disputes impacted by it suggest that this same issue will arise again.
101 F. 432 (1985). Comm’rs. Globe. Const. Cleburne Living Center.”2 Over the course of the last century and a half. The court’s decision ran counter to that of several other circuits which had applied 1 2 Cong. equal protection jurisprudence in the United States has evolved greatly. amend. 1996).CASENOTE EXAMPLE 5 J O U R N A L DO NOT CITE OR DISTRIBUTE RIGHTING THE WRONGS OF OLECH: RESPECTING THE FRAMERS OF THE FOURTEENTH AMENDMENT AND LOCAL GOVERNMENT I. Indiana Teachers Ass’n v. Board of Sch.6 In Engquist v. Olech.S.”5 In a brief per curiam opinion. 3 347 U.7 the Ninth Circuit limited this protection by refusing to allow for “class of one” protection within the context of public employment. INTRODUCTION “[The Equal Protection Clause] abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another.4 The Fourteenth Amendment prevents states from denying “any person within its jurisdiction the equal protection of the laws.3d 1179. 6 Village of Willowbrook v. 5 U. Oregon Department of Agriculture.S. 562 (2000) (per curiam). 528 U. 2007). 1095 (1866).” allowing individuals to make equal protection claims without being a member of any group. XIV. § 1. Board of Education3 to the defeat of laws banning group homes for the mentally challenged in City of Cleburne v.3d 985 (9th Cir. the Supreme Court extended the protections of the Fourteenth Amendment to apply to a “class of one. from the de-segregation of public schools in Brown v. 4 473 U. .”1 “The concept of equal protection is trivialized when it is used to subject every decision made by state or local government to constitutional review by federal courts. 1st Sess. 483 (1954). 1181 (7th Cir.S.. 7 478 F.S. 39th Cong.
J. a division of the Oregon Department of Agriculture. at 990. 13 Id. 2007).. but Hyatt was chosen due to his previous experience at the ODA despite Engquist’s superior educational history. FACTS The plaintiff Anup Engquist was hired in 1992 by the Export Service Center.13 Defendant John Szczepanski took control of the ESC in 2001 and promoted Hyatt to manager. 17 Id. EXAMPLE 5 DO NOT CITE OR DISTRIBUTE the doctrine to public employment but had only upheld one claim.14 Hyatt and Engquist both applied for the position.8 This does remove a potential claim basis from individual citizens.12 Hyatt underwent sensitivity training in response to his behavior towards Engquist.DUKE L. 8 9 1 . Engquist’s position was eliminated due to reorganization within the ESC which was suggested by Hyatt and implemented See infra Part III.10 During her tenure she often conflicted with defendant Joseph Hyatt.17 In 2002. 11 Id. at 991. a fellow employee. 10 Engquist v. 16 Id. he criticized Engquist to a client and assured the client that Engquist would not be working there much longer. at 991.3d 985. 15 Id.16 After Hyatt was promoted to manager. Dep’t of Agric. 12 Id.11 Hyatt made untrue accusations about Engquist and heavily scrutinized her behavior. 990 (9th Cir.15 Both Szczepanski and Hyatt informed others that they would “get rid of” Engquist. 478 F.9 II. but it serves to protect the original direction of the Fourteenth Amendment as well as the autonomy of local and state governments from intensive monitoring and supervision by the federal court system. Or. 14 Id. See discussion infra Part V.
S. 24 Id. 20 Id. the plaintiff was asked to grant a city-owned water provider with a 33-foot easement onto his land. at 563. Szczepanski. 25 528 U.26 The Court allowed a “class of one” claim by Olech and allowed for such protection if a “plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in 18 19 Id. LEGAL BACKGROUND The notion of “class of one” equal protection originated in the Supreme Court case of Village of Willowbrook v. Id.J.21 The district court found Hyatt and Szczepanski liable for violating Engquist’s rights to equal protection and substantive due process and for intentional interference with her right to contract. EXAMPLE 5 DO NOT CITE OR DISTRIBUTE by Szczepanski. 562 (2000) (per curiam).22 Engquist was awarded $175. and the Oregon Department of Agriculture claiming discrimination.19 The defendants’ vocational experts cite the scarcity of employment options in Oregon in Engquist’s areas of expertise for her failure to find a full-time position. 23 Id.20 Engquist filed suit against Hyatt. Olech.000 in punitive damages. a violation of her constitutional rights and interference with her right to contract.25 In Olech. they argued that Engquist’s equal protection and substantive due process claims should have been defeated as a matter of law. 26 Id.000 in compensatory damages and another $175.23 Defendants appealed the award.18 Engquist has since applied for around 200 openings. even though all other landowners had only been asked to give a 15-foot easement.24 III. 21 Id. but she has failed to receive a full-time position. 2 .DUKE L. at 990 22 Id.
Id. 414 F.33 The Court found that there was sufficient reason for defendants’ conduct to meet the standard. 451 F. at 565. Aurora Pub.29 He ultimately agreed with the decision. 409 F. 2005).31 In Squaw Valley. 348-50 (3rd Cir. 2006). 775-76 (7th Cir.3d 936 (9th Cir. 263 F. 470 F. 2006). 34 Id. Schs. of Miss..35 Although the application of “class of one” to public employment decisions had not yet been considered by the Ninth Circuit.30 The Ninth Circuit first officially recognized “class of one” protection in the case of Squaw Valley Development Company v. Levenstein v. 2004). 334 F. 29 Id. 31 375 F. 2003). EXAMPLE 5 DO NOT CITE OR DISTRIBUTE treatment.28 Justice Breyer’s concurring opinion worried that the holding would convert ordinary claims into constitutional questions. Mass Dep’t of Envtl. Whiting v. government employees. at 564. Hill v.DUKE L.J. 348-50 (5th Cir. seven other circuits have utilized the protection in such a fashion.3d 150. Bartell v.32 The Court used rational basis review to judge the conduct of defendants. Univ. Neilson v. Salafsky.3d 1143. 33 Id. 30 Id. 156 (1st Cir. at 938. Borough of Kutztown. plaintiff alleged that defendants. 2001). Prot. 35 Id.”27 The Court did not condition claims on malice by the discriminating party.3d 339. plaintiffs presented evidence that one of the defendants harbored animosity towards the resorted and that the reasons given for the conduct were only a pretext for malicious actions. 455 F. 2006). subjected plaintiff’s resort to greater regulatory scrutiny than it did other similarly situated resorts. 27 28 Id.. at 946-47. Goldberg.3d 767. 104 (2nd Cir. 36 See Scarborough v. D’Angelis.3d 100.36 The courts have taken different approaches and standard for evaluating these claims. of Educ. the conduct merely had to be arbitrary.3d 339.3d 250 (6th Cir. 1148-49 (10th Cir. Campagna v. at 944. 3 . Morgan County Bd. 2005). since there was evidence of malice on the part of city officials.. 32 Id.34 However.
1210-11 (10th Cir. dissent). only favoritism shown to the accused who were members of the Oklahoma State football team. the court asserted that any possible legitimate reason for a 37 38 Engquist v. 451 F.37 The Second and Seventh Circuits have stipulated that there must be similarly situated parties to the plaintiff.46 The Fifth Circuit has emphasized the burden of the plaintiff to refute any basis for the defendant’s conduct. There.DUKE L.40 The Tenth Circuit has required that a plaintiff must show malice on the part of the defendant in order to prevail on a “class of one” claim. 47 Whiting.3d 985.3d at 349. Or. 39 Levenstein.42 In Jennings v. 45 Id. 44 Id. claiming he discriminated against her in his handling of a rape investigation. EXAMPLE 5 DO NOT CITE OR DISTRIBUTE and some have placed restrictions on potential claims as to stop a potential flood of such cases. at 776.44 The plaintiff made no specific accusations of ill-will towards her.. 1013 (9th Cir. City of Stillwater. 414 F. 43 383 F. 4 .38 In Levenstein.3d 1199. 263 F.47 In Whiting. 2007) (Reinhardt. 46 Id.. the plaintiff brought suit against a local police officer.41 The court held that the defendant’s conduct must be part of a “spiteful effort to ‘get’ him” for the claim to succeed. The Seventh Circuit affirmed judgment against a university professor who had resigned after a sexual harassment scandal. Id. 41 Bartell. 43 the court stipulated that the malice had to be directed at the plaintiff. Dep’t of Agric. J.45 The court determined that any other plaintiff would have been treated in the same manner. 478 F.39 The court reasoned that a showing of malice was irrelevant without evidence of another similarly situated party. 40 Id.J. since the conduct was based on the status of the accused.3d 767. 2004).3d at 1168 42 Id.
54 Id. 478 F.49 The plaintiff must destroy any and all possible justification for the defendant’s behavior. 52 Id.. 661. 2d 686 (1994) (O’Connor. Dep’t of Agric.48 It is insufficient for the plaintiff to suggest possible malicious motives or reasons for the behavior. at 994. Or. J. Ct.J. 55 Id. 50 Id.53 The Court held that “class of one” equal protection did not apply within the context of public employment..51 The courts have also recognized the need to prevent the court system from being flooded with equal protection claims for routine government decisions. 57 Id. HOLDING Utilizing de novo review of the District Court’s denial of a judgment as a matter of law. in only one case has an employee succeeded with such a claim.3d 631.52 IV. 53 Engquist v.55 Interdepartmental dealings are different than government actions which affect the general public.3d 985. 128 L.S.56 The Supreme Court has held that “the government as employer indeed has far broader powers than does the government as sovereign. Ed. 2005). the Ninth Circuit reversed the decision for plaintiff based on her equal protection claim. (quoting Waters v. 49 48 5 . 56 Id. 2007). 511 U. EXAMPLE 5 DO NOT CITE OR DISTRIBUTE defendant’s behavior will thwart a plaintiff’s claim. McCollum.DUKE L. 114 S. 996 (9th Cir.50 While the other circuits have recognized the right. 671. 51 Lauth v. 1878. 633-34 (7th Cir.54 The court emphasized a tradition in jurisprudence differentiating between government action as a legislative or regulatory body and as a public employer. plurality opinion)). the court concluded that allowing for this protection within public Id.”57 Also. 424 F. Churchill. Id.
480 U. at 995 n.3.66 The court found no evidence that Engquist had moved under the collective bargaining agreement to overturn her dismissal. plurality opinion). 721-22 (1987) (O’Connor. can challenge arbitrary firings. EXAMPLE 5 DO NOT CITE OR DISTRIBUTE employment would endanger at-will employment.63 The court did not want every employee termination to be subject to a federal court’s determination of a rational reason for the firing. Ceballos. Waters.S. 67 Id.61 Additionally. a government employer may search an employee’s belongings without a warrant. due to the potentially great burden of obeying such procedures.58 The Supreme Court has held that an at-will government employee essentially has no constitutional claims.DUKE L. 60 Id. 126 S.J. at 995. 478 F. 61 Garcetti v. J. at 679.59 The court cited the restriction of other constitutional rights within the public employment setting to support its limitations on equal protection.S.64 Also. 62 O’Connor v.3d at 995. and transfers could be subject to review by the court system for arbitrariness or malice. 65 Id. 6 .67 58 59 Id. 1960 (2006). 709.. Engquist included. 63 Engquist.65 The court also emphasized the availability of other measures where an employee.60 The Supreme Court has acknowledged that legitimate government interests may allow for limitations on the First Amendment rights of employees. 64 Id. 511 U. Ortega. 1951. 66 Id. pay raises. various other employer actions such as promotions. Ct.62 The court expressed its concern that application of “class of one” protection to the employment sector would necessitate an inordinate amount of judicial review for routine personnel decisions which are made everyday.
Olech. 2002). 206 F. 424 F. Squaw Valley Dev. Goldberg. Mass. 127 (D. 2004). “It seems unlikely that the Supreme Court intended such a dramatic result in its per curiam opinion in Olech. EXAMPLE 5 DO NOT CITE OR DISTRIBUTE The court proceeded to invoke the nature of the “class of one” protection. 562 (2000) (per curiam). the impetus for the amendment is not 68 69 Id. 7 . the Court has prevented any employee from constitutionally challenging arbitrary and irrational decisions by government employers. 3d 936 (9th Cir. The ruling protects the government. 2005). no matter how valid it might be.S. From an equal protection standpoint.DUKE L. Original Concern of the Fourteenth Amendment While it is uncertain if the drafters of the Fourteenth Amendment intended for equal protection to apply to the individual or just to groups.69 The original cases to establish “class of one” rights involved private citizens being discriminated in land usage regulation. ANALYSIS By refusing to apply “class of one” equal protection to the workplace. Lauth v. Mass. v.3d at 995. 72 Campagna v. 70 See Village of Willowbrook v. 2d 120.71 The court is not willing to create such a broad extension of the holding from Olech. Contrary to this notion. at the expense of individual citizens who happen to work for the state in some capacity.3d 631. Dep’t of Envtl.”72 V. McCollum. at 995.. 478 F.J. 375 F. 633 (7th Cir. Co. 528 U.68 The “class of one” is designed to protect public citizens from being singled out by government actors.70 Additionally. the ruling actually promotes the original intent of the framers of the Fourteenth Amendment and still allows for valid claims to submitted by federal employees. A. 71 Engquist. the people are left defenseless and cannot make an argument. Prot. Supp. federal employees have a number of protections which ordinary public citizens may not necessarily enjoy.
88-89 (2000). he only claims that he has been discriminated against individually as compared to other property owners. 75 Id.73 The amendment was passed in the wake of slavery. “Class of one” protection does not involve the concern over caste systems which led to the Fourteenth Amendment. 76 Id. 69. the Supreme Court 73 Timothy Zick. 528 U. Olech.J. In the landmark case of Brown v. 80 Village of Willowbrook v.S.” 89 Ky. 79 Id. the Civil War. at 98.80 This distinction between group and individual protection is not merely an issue of semantics. 8 .74 The amendment was targeted at the racial caste system which existed within parts of the country. EXAMPLE 5 DO NOT CITE OR DISTRIBUTE widely disputed. Angry White Males: The Equal Protection Clause and “Classes of One.J.DUKE L.76 Ultimately.75 Those who supported the amendment in its ultimate form asserted that the legislation would limit the discriminatory statutes of the states. and perhaps most importantly “Black Codes.79 Olech is a classic example of this anti-differentiation perspective. L.78 This approach focuses on requiring “similarly situated” individuals to receive equal treatment from the government. since the plaintiff makes no allegations that his treatment is based on his membership in a certain group. at 91. 562 (2000) (per curiam). at 105. at 89.77 This doctrine represents a shift in the Supreme Court’s jurisprudence towards a broad system disfavoring any types of classifications.” laws passed by southern states which greatly restricted the rights and freedoms of blacks. 74 Id. the lawmakers did not want a system which favored or punished one class of citizens more than another. 78 Id. Board of Education. 77 Id.
but could not reasonably be deemed to have the type of psychological impact which school segregation caused. Id.DUKE L. EXAMPLE 5 DO NOT CITE OR DISTRIBUTE emphasized the severe impact which racial discrimination can have upon schoolchildren.83 where the ill treatment from the city water service might be unfair or inconvenient. 87 Id. 85 Id. since anyone who has received an unfavorable decision from a government actor is eligible to sue. 494 (1954).85 Additionally. the Ninth Circuit helped to restore the balance between the federal courts and local and state governments with its holding. can be subject to constitutional review under “class of one” protection. By refusing to apply the “class of one” protection. Federalism Concerns On a more practical level. executive or legislative.82 This rationale would not apply at all to Olech. 9 . supra at 119. 86 Id. 483.81 The stigma of being separated from other students merely because of race necessitated the use of equal protection. it re-asserts a perspective which held for much of the 20th Century.S.86 Finally. local or state. the courts are faced with the potential for an excess of cases. In the wake of Olech. While this decision runs counter to decisions of other circuits.S.J. the Ninth Circuit is emphasizing the original purpose of the Fourteenth Amendment. at the sacrifice of the court’s own authority.84 Any citizen who believes that she is the victim of arbitrary government action can sue in a federal court to have her claim heard. It also represents an attempt to determine the original meaning of a constitutional amendment. 562. B. 84 Zick. all governmental actions. 83 528 U. the Olech decision left the court system with no guidance as to how to proceed on the claims.87 81 82 347 U.
Sumpter Township. v.91 Due to this potential cost.93 The Sixth Circuit in Futernick concluded that local governments were in the best position to regulate behavior and that plaintiffs could 88 89 Engquist. such as those in Engquist. 10 .89 Many government employment decisions. 78 F. 93 Id. 532. Comm’rs. 91 Id. while preventing an extension of its privileges to any and all parties who may feel wronged by government action.S. 90 Id. 92 Futernick v. 1996). rather than making claims very difficult to prove as the other circuits had done. 1996). 470 U. 1181 (7th Cir. EXAMPLE 5 DO NOT CITE OR DISTRIBUTE The ruling by the Ninth Circuit actually strengthens the idea of equal protection by limiting its scope. Indianapolis Bd.3d 1051. rather than allow unworthy claims to be defeated within the system. 101 F. Indiana State Teachers Ass’n. restructuring.J. even if the defendant will ultimately prevail on summary judgment or at trial. will naturally provide some parties with benefits and injure others. 1058 (6th Cir.92 The Court elected to save possible defendants this great risk of expense and prevent any such claims. including promotions. and termination. The Ninth Circuit applied the logic of the Sixth Circuit in that there were more efficient methods of controlling harmful government conduct. and the adjudication of these disputes would greatly hinder the employer’s purposes and objectives. possibly forcing a governmental body to settle in order to avoid high costs of litigation.DUKE L.3d 1179.90 The federal courts are no more qualified to make these decisions than the employers themselves. of Sch. the court chose to ban the claims altogether.88 This application retains all of the protections which the Fourteenth Amendment initially created. Determining if an employment decision was arbitrary or justified will usually allow a plaintiff to advance into discovery.
470 U.94 The Ninth Circuit similarly suggested that Engquist had alternative remedies available within the collective bargaining agreement. at 995 n.3. Engquist. 11 . EXAMPLE 5 DO NOT CITE OR DISTRIBUTE seek redress in state courts.S.DUKE L.J.95 94 95 Id.
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