The Future of Class-of-One Claims

This is my third and final post on  Engquist v. Oregon Dept of Agriculture, the class-of-one equal protection case the Supreme Court decided last week.  (Previous posts are here and here .)  My first post focused on the logic of the Court's equal protection analysis in finding the class-of-one theory inapplicable in the government employment context, and my second focused on Engquist as a government employee case.  (By the way, Paul Secunda, who studies the intersection of workplace law and con law, has posted his thoughts on the case on the Workplace Prof Blog here  and here. Indirect self-promotion alert: Paul's second posting comments on my second posting here on Prawfs.)

What I want to focus on here are the implications of Engquist.  It seems clear that class-of-one claims, even those alleging vindictive or malicious government action, will no longer be cognizable in the government employment context.  I might be wrong about that if lower courts are willing to distinguish Engquist on the grounds that in Engquist there was no "objective standard" against which to judge the reasonableness of the supervisor's employment decision.  So, assume an employment decision where employees are by and large treated according to a particular rule, but then one employee is treated more harshly than the rule would suggest.  This places the hypo squarely within the Engquist Court's description of Olech, yet the Court expressly states that "the class-of-one theory ... does not apply in the public employment context."  Presumably this statement from the Court will control and will in fact defeat any class-of-one employment claims; still, it might be interesting to see if a willful lower court judge works with the tension in the Court's opinion.

More likely, I think, will be non-employment cases that potentially raise some of the concerns the Court found to characterize class-of-one claims in the employment context.  Zoning cases come to mind.  Here's a key sentence from Engquist: "There was no indication in Olech that the zoning board was exercising discretionary authority based on subjective, individualized determinations -- at least not with regard to easement length, however typical such determinations may be as a general matter."  Significantly, later the Court cited such "subjective, individualized determinations" as exactly the sort not amenable to analysis under a class-of-one theory.  This to me seems a hint to the lower courts (and government defendants) in zoning cases to distinguish Olech on that ground.   Because a lot of zoning decisions are in fact based on facts unique to the affected parcel (I discussed this in an article from last year) this statement in Engquist may constitute an invitation to make equal protection off-limits to most challenges to zoning variance decisions.

I suspect there are other categories of government decisions that will fit within Engquist's description of subjective, individualized decisions to which the class-of-one theory is inapplicable.  On the other hand, I also suspect there's no bright line separating those decisions from the type of decision in Olech that is amenable to a class-of-one claim.  In Olech there was a letter from the village to the plaintiffs telling them that the village's policy was to require only the smaller easement that the plaintiffs alleged they were constitutionally due.  In future cases does there have to be such a policy in order for there to be the "objective standard" against which equal protection claims can be judged?  What about consistent but unwritten practice?  Or a formal policy, but one that is only inconsistenly enforced?

There are lots of permuations here.  Interestingly, and maybe perversely, the Court's approach in Engquist -- to cut off such claims but on this fuzzy "lack of an objective standard" reasoning -- may encourage the precise litigation the Court hoped to cut back on.  Before Enquist, class-of-one claims challenging fact-intensive government decisions were easy for the government to win, since the very fact-intensiveness of the decision made the plaintiff not similarly-situated to better-treated persons.  But now there may well have to be litigation about whether the government's policy (however defined) contained sufficiently objective standards as understood by Enquist.  In other words, easy, fact-based dismissals may now give way to more difficult, and more costly, litigation over the legal standards at issue.   Of course, a court could simply skip the latter question and hold that, regardless of the objectiveness of the standard, the plaintiff was not similarly situated to anyone else, and get rid of the case that way.  But in that case the Enquist Court will have accomplished little. 

Moreover, in accomplishing little the  Engquist Court will have tossed out of court class-of-one claims alleging animus.  I made this point in my second post, but I'll close with a repetition: if there are any class-of-one claims that deserve to be heard as a matter of doctrinal logic, then I would think claims alleging "a bare desire to harm" the plaintiff should be among the survivors.  Such claims fit with the Court's rational basis-plus cases from the 80's and 90's, and are consistent with equal protection's basic insistence that government singling-out (of which class-of-one cases are the most egregious example) should be at minimum supported by some appropriate government interest -- or at least not supported only by "a bare desire to harm" for harm's sake.