First Circuit Rejects Class-of-One Equal Protection Claim by Veterans’ Charity: Middleborough Veterans’ Outreach Center, Inc. v. Provencher, 2013 WL 135719 (1st Cir. 2013)
In a recent unpublished decision, the United States Court of Appeals for the First Circuit illustrated (once again) the difficulty of challenging governmental action under a class-of-one equal protection theory. In September 2010, Paul Provencher, the Veterans’ Agent for the Town of Middleborough, wrote letters to local newspapers warning area residents to exercise caution before donating to veterans’ charities that used telemarketing or direct solicitation to raise funds. Specifically, Provencher wrote:
There are a lot of administrative costs associated with telemarketing and direct contact solicitation and more than likely less than 20% of the money raised helps the cause you are being solicited for.
One newspaper published Provencher’s letter; another wrote an article based on the letters which quoted the Veterans’ Agent as stating that his purpose “was to point out that many nonprofits say they are helping veterans but have high administrative costs.”
In April 2011, the Middleborough Veterans’ Outreach Center, Inc. (“MVOC”), one of only two charities with high administrative costs specifically identified in Provencher’s letters, filed suit against the Veterans’ Agent under 42 U.S.C. § 1983, claiming it was unjustly singled out for official condemnation in violation of the Equal Protection Clause of the Fourteenth Amendment. On cross-motions for summary judgment, Judge Tauro disagreed and ruled in favor of Provencher. MVOC appealed. On January 11, 2013, the First Circuit affirmed the decision below.
In Village of Willowbrook v. Olech, 528 U.S. 562 (2000), the United States Supreme Court expanded the “traditional” equal protection remedy beyond members of protected classes or groups to include those in a class-of-one who have “been intentionally treated differently from others similarly situated and . . . there is no rational basis for the difference in treatment.” Id., 528 U.S. at 564. This expansion, however, was not a broad one. When properly focused, a class-of-one plaintiff vindicates the basic principle of “uniform treatment of persons standing in the same relation to the governmental action questioned or challenged.” Reynolds v. Sims, 377 U.S. 533, 565 (1964). Yet, the label cannot “transform every ordinary misstep by a local official into a violation of the federal Constitution.” 2013 WL 135719, *3, citing Cordi-Allen v. Conlon, 494 F.3d 245, 255 (1st Cir. 2007). Moreover, some government actions remain “ill-suited to judicial oversight under the class-of-one formula.” 2013 WL 135719, *3, citing Engquist v. Oregon Dep’t of Agriculture, 553 U.S. 591, 602 (2008) (holding class-of-one theory inapplicable to government employment setting).
To prevail under a class-of-one theory, a plaintiff must first show, with respect to the challenged government action, that he was similarly situated to others who were treated differently. Then, he must demonstrate that there was no rational basis for such difference in treatment. According to the First Circuit, MVOC stumbled (and fell) over the first hurdle.
Although MVOC and Provencher agreed on the identities of plaintiff’s comparators – those veterans’ charities treated differently by the Veterans’ Agent (i.e., not singled out in his letters) – they disagreed over the characteristic relevant to such disparate treatment. MVOC claimed it was “similarly situated” to the unidentified comparators because they were all private, local charitable organizations that provided free veterans’ services and did not employ professional solicitors. Provencher, on the other hand, claimed that MVOC was unlike the other local veterans’ charities because a much greater percentage of its donations was applied to administrative costs and overhead, not to aid area veterans. In other words, the relevant characteristic (according to Provencher) was the aid-to-overhead ratio and, on this criterion, MVOC and its comparators were not “similarly situated.” Thus, any difference in their treatment – singling out MVOC, but not the other charities – was not an equal protection violation. The First Circuit agreed.
In affirming the entry of summary judgment against MVOC, the First Circuit added that it was plaintiff’s burden to show that it was similarly situated to those treated differently. Thus, if its aid-to-overhead ratio was, in fact, similar to the ratios of its comparators, it was incumbent upon MVOC to come forward with evidence of such similarity. MVOC failed to do so.
As if class-of-one cases are not already difficult for equal protection plaintiffs to advance, the relevant characteristic and burden of proof issues addressed in the MVOC case clearly exemplify the disfavor with which the First Circuit views such claims.
Published in Developments in Municipal Law Spring 2013 Newsletter.