Sample Casenotes

8/6/2019 Sample Casenotes

1/67

O U R N A L

SAMPLE CASENOTES

I NTENDED O NLY FOR F IRST -Y EAR

S TUDENTS AT D UKE U NIVERSITY S CHOOL

OF L AW

D O N OT C ITE OR D ISTRIBUTE

This document includes five sample casenotes that theDuke Law Journal is making available to first-year studentsin the spring of 2008. All five received strong scores fromDLJ in the 2007 casenote competition, although the authorsmay not have written-on to the Journal . These fivecasenotes represent a range of approaches to last yearscase. The Journal cannot speak to how these casenoteswere scored by any other law journal.

WARNING: These casenotes may contain errors. They

have not been checked for conformity to the Bluebook , andDLJ does not vouch for the formatting of the citations.


2/67

CASENOTE EXAMPLE 1 J O U R N A L DO NOT CITE OR DISTRIBUTE

THE TRIVIALIZATION OF OCCUPATIONAL LIBERTY:FORGET THE FIGHT; FIND A NEW CAREER

I. INTRODUCTION

The court in Engquist v. Oregon Department of Agriculture 1 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 ones preferred employment is not a new concept and has been

recognized in numerous cases such as Board of Regents of State Colleges v. Roth 2. 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

1 478 F.3d 985 (9th Cir. 2007).2 408 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.


3/67

DUKE L.J. EXAMPLE 1 DO NOT CITE OR DISTRIBUTE

2

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 Engquists 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 Departmentof Agriculture. 9 After approximately ten years of service and an ongoing conflict with the

manager of ESC, Engquists 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

7 Id. at 998.8 Id. at 990.9 Id.10 Id. at 991.11 Id.12 Id. at 997.13 Id. at 991.14 Id.


4/67


3

the Plaintiff and awarded her damages. 15 The court subsequently denied the Defendants motion

for judgment notwithstanding the verdict. 16 Both parties appealed the decision for various

reasons which brought the case before the United States Court of Appeals for the Ninth Circuit. 17

III. LEGAL BACKGROUND

When Engquist was appealed, the Ninth Circuit had yet to determine what was necessary

to constitute a valid substantive due process claim regarding an individuals right to pursue a

particular profession. 18 Although the Supreme Court offered some guidance on the issue, 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.19

Accordingly, the court, inadjudicating the claim in Engquist , chose to rely on a variety of Seventh Circuit cases defining

the issue in greater detail. 20

A. THE GUIDANCE OF THE SUPREME COURT

The Supreme Court has long recognized that an individuals occupation is an essential

component of that persons life, liberty, and happiness. 21 Therefore, the Fourteenth Amendment,

which states nor shall any state deprive any person of life, liberty, or property, without due

process of law . . . . 22 does apply to public employment decisions that deprive an individual of

her right to pursue an occupation of her choice. 23 However, as the Engquist court recognized,

the Supreme Court has not specified the boundaries of the right to pursue a profession, but has

15 Id. at 992.16 Id.17 Id.18 Id. at 996.19 See Conn , 526 U.S. at 287; Roth , 408 U.S. at 573-74.20 Engquist , 478 F.3d at 998.21 Roth , 408 U.S. at 572.22 U.S. Const. amend. XIV 1.23 Id.


5/67


4

identified it generally. 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. 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. 26 The

Court, however, in a most evasive manner, provides little guidance for when a due process claim

is actually implicated, 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 employees constitutionally protected rights . . . . 27

One of the leading Supreme Court cases on what liberty interest a public employee hasunder a theory of substantive due process is Board of Regents of State Colleges v. Roth. 28 In

Roth , where the plaintiff was an assistant professor hired for a one-year term of service and was

not subsequently rehired, the Court held that he had not been deprived of liberty . . . protected

by the Fourteenth Amendment. 29 The plaintiffs 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

Universitys decided not to rehire him. 30 However, 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, the plaintiff was

not deprived of any protected liberty interest. 31 In essence, although it was obvious that the

Universitys decision not to rehire him did not reflect well on him as a candidate for other

24 Engquist , 478 F.3d at 997.25 See Bishop v. Wood , 426 U.S. 341, 349 (1976).26 Id.27 Id. at 350.28 408 U.S. at 572.29 Id. at 566, 578.30 Id. at 570.31 Id. at 573.


6/67


5

academic positions, 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. 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. Gabbert .33 There, the

plaintiff was an attorney who was physically searched while his client was testifying in court. 34

The Ninth Circuit Court of Appeals held for the plaintiff, believing this behavior to be

unreasonable government interference in the attorneys practice of law. 35 However, the

Supreme Court held that there was no cognizable right interfered with, classifying the search as a

mere brief interruption in plaintiffs profession. Justice Stevens, in his concurring opinion,agreed that while the search was certainly of shabby character, no liberty interest was

implicated where there was no evidence that respondents income, reputation, clientele, or

professional qualifications were adversely affected by the search. 36

B. THE STIGMA PLUS TEST

Following the somewhat meager guidance set forth in the aforementioned Supreme Court

decisions, the various circuits had to decide what actually constituted a viable substantive due

process claim for the deprivation of liberty. The Seventh Circuit, in Colaizzi v. Walker ,37 relied

on the Supreme Courts precedent in Paul v. Davis 38 that infliction by the state of a stigma on

ones reputation, without more, does not infringe upon a liberty interest protected by Fourteenth

32 See Id. at 574.33 526 U.S. at 291.34 Id. at 287.35 Id. at 290.36 Id. at 293.37 542 F.2d 969, 973 (7th Cir. 1976).38 424 U.S. 693 (1976).


7/67


6

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 individuals 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 theindividual 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.

39 Colaizzi , 542 F.2d at 972.40 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.


8/67


7

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 circuits 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

46 882 F.2d 200, 206 (6th Cir. 1989).47 Id.48 See id.49 233 F.3d 524, 531 (7th Cir. 2000).50 Id.51 Id.


9/67


8

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 plaintiffs 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 theemployment of ones 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

52 Id. (emphasis added) (internal citations omitted).53 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 publicemployees litigating their discharge under substantive due process claims).58 Id. at 996.


10/67


9

meet in order to succeed in showing that she had been deprived of an essential liberty. 59 Citing

directly to Bordelon , the court imposed the Seventh Circuits requirement that the actions of the

government employer must make it virtually impossible for the employee to find new

employment in his chosen field. 60 Consequently, 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, concluding that she could not succeed on her substantive due process

claim. 61

V. ANALYSIS

The Engquist Court, in supporting what could aptly be coined as the virtuallyimpossible test, in actuality divests potential plaintiffs of any real opportunity to succeed in a

deprivation of occupational liberty claim. Although, as discussed by the court in Engquist and

by other circuits, the Court has good reason to want to limit the number of claims that could be

brought under this theory of law, adopting such a high standard serves as a great deterrent to

plaintiffs thinking of bringing such claims, as most of the cases are dismissed by the court in

summary judgment. 62

Even if one would accept the rationale behind the virtually impossible test set forth in

recent cases, the Engquist court erred in reversing the jury verdict in favor of the plaintiff. The

Ninth Circuit had explicitly laid out the standard of review in evaluating a jurys verdict. 63 In

Gilbrook , the court stated, the verdict . . . must be affirmed if there is substantial evidence to

59 Id. at 998.60 Id.61 Id. at 999.62 See Id. at 998 (holding that allowing only the most extreme cases to succeed would preventfederal courts [from having to] review[] every public employee discharge).63 Gilbrook v. City of Westminster , 177 F.3d 839, 856 (9th Cir. 1999).


11/67


10

support the verdict. 64 In Engquist , however, the court seems to conveniently forget the standard

of review laid out for jury verdicts. 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. 65 Engquist demonstrated this, for example, by introducing evidence that Defendants

made defamatory statements to two or three other people in the industry. 66 Moreover, 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,

her business remained unprofitable. 67 After hearing this evidence, the jury concluded that

Engquist could succeed on her substantive due process claim.68

However, somewhatinexplicably, the Appellate Court concluded that this evidence was not sufficient to prove that it

was virtually impossible for Engquist to find new employment. 69

In previous decisions, 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. 70

Given this readily understandable definition, it is difficult to see how this standard of evidence

had not been met in Engquists situation. Both the court and the Defendants acknowledged that

Engquists line of work was highly specialized and there simply are not many jobs available

in that field in Oregon. 71 Therefore, given that the Defendants defamed Engquist to people in

64 Id.65 Engquist , 478 F.3d at 998-99.66 Id. at 999.67 Id. at 991.68 Id. at 992.69 Id. at 999.70 Gilbrook , 177 F.3d at 856 (citing to Landes Constr. Co. v. Royal Bank of Canada , 833 F.2d1365, 1370-71 (9th Cir. 1987).71 Engquist , 478 F.3d at 999.


12/67


11

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, it seems almost as apparent that Engquists evidence

satisfied the virtually impossible test required by the court. This decision is not only

unfortunate because of the personal and financial ramifications that Engquist must suffer as a

consequence of this adjudication, but it also establishes evidentiary standards that are contrary to

this countrys jurisprudence.

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 Engquistsdeprivation of liberty claim. Bordelon , upon which the court relies so heavily in finding for the

Defendants in Engquist , is quite distinguishable from the facts in Engquist .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 Engquists

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.

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), Engquist

likely could have succeeded in her deprivation of liberty claim. For instance, in Perry , a liberty

interest is implicated upon an individuals termination if the persons good name, reputation,

honor, or integrity are at stake or if the state imposes a stigma . . . upon the individual which

72 See Bordelon , 233 F.3d at 531.73 See Id.


13/67


12

forecloses other opportunities . . . . 74 Although the plaintiff in Perry was not found to have a

successful claim for liberty deprivation 75, Engquist likely would have been successful since the

state agents, fully aware that the industry in Oregon was limited, made comments implying that

Engquist had run the ESC into the ground. 76 In Engquists case, even a few negative

comments could essentially foreclose all opportunities in Oregon, given the extenuating

circumstances.

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; rather, the Justices of the

Court may have intentionally left the right undefined and generalized so that various courtswould be able to apply justice in the situation and not according to some pre-set standard. 77

Moreover, Justice Stevens concurring opinion in Conn suggests that a situation comparable to

Engquists is exactly one that would implicate such a liberty interest. 78 Justice Stevens suggests

that there was no deprivation of liberty interest in Conn because the plaintiff produced no

evidence that [his] income, reputation, clientele, or professional qualifications were adversely

affected . . . . 79 By enumerating such factors, he implies that these would be important

considerations in establishing whether a deprivation of liberty had occurred. 80 For Engquist, she

certainly had suffered from some combination of these negative effects (which would suggest

74 Perry , 781 F.2d at 1300 (citing to Munson v. Friske , 754 F.2d 683, 693 (7th Cir. 1985)).75 See Id. at 1300-1302 (holding that criticism of plaintiff was strictly limited to a few specifiedlaw enforcement agencies . . . .).76 Engquist , 478 F.3d at 991.77 See Conn , 526 U.S. at 292 (holding that a mere brief interruption to a persons occupation didnot constitute a deprivation of liberty).78 526 U.S. at 293.79 Id.80 Id.


14/67


13

she had sufficiently been deprived of her liberty): she had definitely lost income and her

reputation within the industry had been tainted. 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. For Engquist, her reputation has been essentially

destroyed in a tiny industry. Her only hope of employment, beyond continuing in the financial

wreck of self-employment, is to move and seek employment elsewhere. In a nation that prides

itself on individual choice and liberty, it seems imprudent for a court to deny a plaintiff relief in

such circumstances. It appears to be highly unfair to allow public employers to defame anindividual 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. 82

The result in Engquist is troubling in that the court, on the basis of a mere phrase in a

Seventh Circuit opinion, is establishing a trend that will make it incredibly difficult for public

employees to have any sort of real redress against unfair government employers. The policy

ramifications set by this case are incredibly harsh on public employees few plaintiffs will have

the opportunity to survive summary judgment, jury decisions can be causally dismissed, and the

courts acquire the remarkable power to decide whether an individual retains even the slightest

possibility of finding employment in her field, a decision that seems beyond their authority to

summarily adjudicate upon.

81 Engquist , 478 F.3d at 991, 999.82 See Engquist , 478 F.3d at 999.


15/67

CASENOTE EXAMPLE 2 J O U R N A L DO NOT CITE OR DISTRIBUTE

CLASS OF NONE: ENGQUIST V . OREGON DEPARTMENT OF AGRICULTURE AND THE CLASS-OF-ONE THEORY OF EQUAL PROTECTION

I. I NTRODUCTION

In 2000, a short, per curiam Supreme Court decision accepted the class-of-one theory

of equal protection, 1 permitting an individual in a non-suspect class to claim violations of the

Fourteenth Amendments Equal Protection Clause. 2 While the class-of-one theory articulated in

Village of Willowbrook v. Olech ,3 with its focus on individual rights, is a logical offshoot of

equal protection jurisprudence, 4 the precise form and scope of the theory was left open due to the

brevity of the opinion. 5 In February, 2007, the Ninth Circuit, breaking away from every other

circuit to address the issue, 6 determined in Engquist v. Oregon Department of Agriculture , that

class-of-one equal protection does not apply in the realm of government employment. 7

The Engquist majority provided three main reasons supporting its decision, each of which

is flawed in a different respect. First, the Ninth Circuit misconstrued Olech by imposing a

narrow interpretation of its scope. 8 Second, on a theoretical level, the court determined that

when the government acts in its role as proprietor, rather than lawmaker, class-of-one equal

protection does not apply. 9 However, the distinction between the two functions of government

1 Vill. of Willowbrook v. Olech, 528 U.S. 562, 565 (2000) (per curiam).2 U.S. C ONST . amend. XIV, 1 (No State shall . . . deny to any person . . . the equal protectionof the laws.).3 528 U.S. at 565.4 See infra Part V.A.5 See Erwin Chemerinsky, Suing the Government for Arbitrary Actions , 36-MAY T RIAL 89, 90(2000).6 Engquist v. Or. Dept of Agric., 478 F.3d 985, 1011 (9th Cir. 2007) (Reinhardt, J., dissenting).7 Id. at 996 (majority opinion).8 See infra Part V.A.9 Engquist , 478 F.3d at 995.


16/67


2

merely affects the manner in which the class-of-one theory operates, not whether it applies. 10

Lastly, on a practical level, the Engquist court asserted that holding otherwise would result in an

inundation of suits, 11 ignoring substantive and procedural safeguards established by Olech and

other circuits. 12

II. 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. 14 The person chosen

over Engquist had more experience in business and as a chemist, although Engquist had a

stronger educational background and more customer service experience.15

Shortly thereafter, inOctober, 2001, the Governor of Oregon announced a state financial crisis and requested budget

restrictions. 16 In January of 2002, Engquist was fired as part of a reorganization of the ODA in

response to the budget situation. 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

Engquists job because they believed that she was hard to control and that she was running the

department into the ground. 18 Although her collective bargaining agreement allowed Engquist

to bump into a different job, she was found unqualified for the only position available. 19

10 See infra Part V.B.11 Engquist , 478 F.3d at 994.12 See infra Part V.C.13 Engquist v. Or. Dept of Agric., 478 F.3d 985, 99091 (9th Cir. 2007).14 Id. at 990.15 Id. at 99091.16 Id. at 991.17 Id.18 Id. at 99091.19 Id. at 991.


17/67


3

Engquist subsequently sued the ODA, the supervisor who fired her, and the coworker

who proposed the reorganization plan. 20 Her suit included an equal protection claim, alleging

that she was intentionally treated differently from others regarding the denial of the promotion,

the firing, and the inability to bump. 21 The discrimination she alleged, however, was not based

on being part of a suspect class, but rather on being individually discriminated against based on

the class-of-one theory. 22 At trial, the jury found the defendants liable for violating equal

protection. 23 The Ninth Circuit reversed, stating that class-of-one equal protection claims cannot

be applied to public employment decisions. 24

III. L

EGALB

ACKGROUND

According to Judge Posner, the class-of-one movement was started in 1982 with a

case involving a government employee. 25 In that case, one of two similarly situated paramedics

was discharged for failure to perform her duties, while the other paramedic received no

disciplinary action. 26 The Seventh Circuit held that because the discrimination was intentional

and arbitrary, the citys actions violated equal protection. 27 Eighteen years later, the issue of the

class-of-one first reached the Supreme Court in Village of Willowbrook v. Olech .28 That case,

also originating in the Seventh Circuit, involved individual discrimination regarding government

20 Id. at 990.21 Id. at 991.22 Id.23 Id. ; Engquist v. Or. Dep't of Agric., No. 02-1637-AS, 2004 U.S. Dist. LEXIS 18844, at *15(D. Or. Sept. 14, 2004) (denying defendants motion for partial summary judgment on class-of-one claim).24 Engquist , 478 F.3d at 996.25 Lauth v. McCollum, 424 F.3d 631, 63334 (7th Cir. 2005).26 Ciechon v. City of Chicago, 686 F.2d 511, 522 (7th Cir. 1982).27 Id. at 52223.28 528 U.S. 562 (2000) (per curiam).


18/67


4

land-use regulations. 29 The Supreme Court affirmed the Seventh Circuits holding that a citys

irrational and arbitrary demand that one resident grant a longer easement than all other residents

violates the Equal Protection Clause. 30 The opinion itself was short, leaving uncertainty for

lower courts. 31 Justice Breyer, in a concurrence, stated that a crucial element for class-of-one

claims involves some degree of animus or ill will on the part of the government. 32 Nevertheless,

this requirement was expressly disavowed by the majority as relevant to its decision. 33

Engquist was the Ninth Circuits first public employment class-of-one case. 34 The

majority of the circuits previous class-of-one jurisprudence was limited to the area of

government regulation.35

Every other circuit that has considered class-of-one equal protection inthe realm of public employment has permitted such suits. 36 Nevertheless, despite allowing for

the claims, there is a general discomfort in holding against the government. 37 As a result, the

federal appellate courts have adopted different approaches to limit the applicability of class-of-

one for government employment decisions. For instance, numerous circuits, despite the fact that

Justice Breyers analysis regarding ill will was not held to be necessary by the majority in

29 Id. at 56364.30 Id. at 565.31 See Chemerinsky, supra note 5, at 90.32 Olech , 528 U.S. at 566 (Breyer, J., concurring).33 Chemerinsky, supra note 5, at 89.34 Engquist , 478 F.3d at 991.35 Valley Outdoor, Inc. v. City of Riverside, 446 F.3d 948, 955 (9th Cir. 2006) (allowing class-of-one analysis for differing treatment regarding a citys denial of billboard permits); SquawValley Dev. Co. v. Goldberg, 375 F.3d 936, 944 (9th Cir. 2004) (involving disparate andselective regulatory enforcement, in which government water quality control officials subjectedone particular ski resort to stricter oversight than others).36 Engquist , 478 F.3d at 1011 (Reinhardt, J., dissenting).37 See Lauth v. McCollum, 424 F.3d 631, 63334 (7th Cir. 2005) (We are therefore notsurprised to have found no class-of-one cases in which a public employee has prevailed . . .since the extreme case that kicked off the class-of-one movement more than two decadesago.).


19/67


5

Olech ,38 have expressly adopted such a requirement when it comes to public employment class-

of-one equal protection claims. 39 Other circuits have focused their analysis on the similarly

situated element, imposing a heavy burden on the plaintiff to show that differing treatment was

given to others under truly similar circumstances. 40 Another option, used by the Fifth Circuit, is

to simply rely on the increased burden on the plaintiff under rational basis review as a means of

dismissing claims. 41 However, 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. 42

IV. H

OLDING

The Ninth Circuit Court of Appeals held that Engquists equal protection claim was

invalid as a matter of law, reversing the decision of the district court. 43 However, rather than

denying the claim on narrow grounds as the other circuits have done with class-of-one

government employment cases, 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. 44 Judge Tashima provided three main rationales behind this holding: (A) Olech

was not meant to expansively include public employment decisions; 45 (B) class-of-one should be

limited to when the government acts as a lawmaker and should not apply when the government

38 Chemerinsky, supra note 5, at 89.39 E.g. , Skehan v. Vill. of Mamaroneck, 465 F.3d 96, 110 (2nd Cir. 2006); Howard v. ColombiaPub. Sch. Dist., 363 F.3d 797, 804 (8th Cir. 2004).40 E.g. , Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir. 2006); Campagna v. Mass.Dept of Envtl. Prot., 334 F.3d 150, 156 (1st Cir. 2003).41 See Whiting v. Univ. of S. Miss., 451 F.3d 339, 349 (5th Cir. 2006), cert. denied , 127 S.Ct.1038 (2007).42 Engquist v. Or. Dept of Agric., 478 F.3d 985, 1011 (9th Cir. 2007) (Reinhardt, J., dissenting).43 Id. at 996 (majority opinion).44 Id.45 Id. at 993.


20/67


6

acts as a proprietor; 46 and (C) allowing class-of-one claims for public employment would lead

to a flood of cases. 47

First, pointing to the fact that Olech was a short, per curiam opinion, the Ninth Circuit

narrowly interpreted the scope of the Supreme Courts holding in that case. 48 The Engquist

opinion emphasized that Justice Breyers concurrence expressed concern that Olech would

transform ordinary violations of state or local laws into constitutional cases. 49 Judge Tashima

stated that all of the Ninth Circuits previous class-of-one cases, like Olech , have been limited to

the area of regulatory land use. 50 Since Engquists claim had nothing to do with regulations or

land use, the court determined that class-of-one was unavailable for her.Second, Judge Tashima based a great deal of his analysis on the distinction between the

government acting as lawmaker and the government acting as proprietor. 51 Because the

government as employer has broader powers than the government as regulator, he said, the

scope of judicial review is correspondingly restricted. 52 Analogizing to the limited availability

of constitutional claims dealing with public employment under the First and Fourth

Amendments, 53 he concluded that strict limits should also be placed on class-of-one equal

protection claims. 54 In addition, the opinion cited to language from a Seventh Circuit case,

stating that [t]he paradigmatic class-of-one case should be one in which a public official, for

46 Id. at 995.47 Id. at 994.48 See id. at 996.49 Id. at 993.50 Engquist , 478 F.3d at 993 (referencing Valley Outdoor, Inc. v. City of Riverside, 446 F.3d948, 955 (9th Cir. 2006); Squaw Valley Dev. Co. v. Goldberg, 375 F.3d 936, 944 (9th Cir.2004)).51 Id. at 99495.52 Id. at 994.53 U.S. C ONST . amends. I, IV.54 Id. at 99495.


21/67


7

some improper motive, comes down hard on a hapless private citizen. 55 Furthermore, 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. 56

The third major reason behind the majoritys prohibition against class-of-one claims in

the area public employment was that without such a strict rule, federal courts would be inundated

with cases. 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, nearly every inconsequential

government decision could give rise to a federal cause of action. 58 In addition, the fact that

courts have almost always ultimately concluded that the particular [employment] claim beforethem was insufficient was asserted as proof that a per se rule against government employment

class-of-one claims is necessary. 59

In a dissenting opinion, Judge Reinhardt aligned himself with all of the other circuits that

have addressed the issue, arguing that class-of-one equal protection is applicable in the area of

public employment. 60 He believed that Engquist runs counter to Supreme Court precedent and

disagreed with the majoritys attempt to distinguish Olech .61 Furthermore, he asserted that

unlike the First and Fourth Amendments, public employment decisions have never been

sheltered from the Fourteenth Amendment. 62 Regarding the fear of a flood of cases, he noted

that no circuit has faced this problem, stating that those circuits have set standards for assessing

55 Id. at 995 (quoting Lauth v. McCollum, 424 F.3d 631, 633 (7th Cir. 2005)). Lauth , however,did not ban class-of-one employment claims, but rather emphasized that special deference should

be given to the government employer in such cases. See 424 F.3d at 634.56 Id.57 Id. at 994.58 Id. at 993.59 Id. at 994.60 Id. at 1010 (Reinhardt, J., dissenting).61 Id. at 101112.62 Id. at 1012.


22/67


8

class-of-one employment disputes such that petitioners win only in extreme cases. 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, requiring evidence of animus or malice, and utilizing the rational basis test with a strong

burden on the plaintiff. 64 The best approach, he argued, involves a blend of all three techniques,

similar to what the circuit has done for previous class-of-one cases. 65 Using that test, Judge

Reinhardt would have upheld the district courts ruling in favor of Engquist. 66

V. A NALYSIS

The Engquist reasoning regarding the inapplicability of class-of-one equal protection for public employment is misguided on three major levels. First, the Ninth Circuits interpretation

of Olech is questionable since that case gave no indication that class-of-one claims are to be so

limited. Second, the majoritys 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. Lastly, the courts practical worries regarding the potential flood of

cases are unfounded, considering the procedural and substantive safeguards provided by Olech

and followed by other appellate courts.

A. Problematic Interpretation: Scope of Olech

Although the short, per curium opinion in Olech does not provide much guidance to

circuit courts, 67 there is no indication that the class-of-one designation is only to apply to certain

areas of government action. Indeed, the Ninth Circuits interpretation of Olech seems to result

63 Id. at 1013.64 Id.65 Id. (citing Squaw Valley Dev. Co. v. Goldberg, 375 F.3d 936, 944 (9th Cir. 2004)).66 Id. at 1015.67 Chemerinsky, supra note 5, at 90.


23/67


9

more from its own belief that, contrary to the Supreme Courts holding, the Equal Protection

Clause does not provide for class-of-one claims. 68 Though the Ninth Circuit may be

uncomfortable with the ruling of the Supreme Court, stare decisis dictates that it must follow

Olech .69

Although the class-of-one theory appears to be a new, unique branch of equal protection

jurisprudence, its development is actually a logical offshoot of a traditional form of equal

protection theory that of individual rights. To clarify, Professor Robert Farrell argues that

the Equal Protection Clause serves dual functions. 70 First, the clause limits government

classifications .71

For example, Supreme Court cases such as Romer v. Evans72

andMassachusetts Board of Retirement v. Murgia 73 focus their analyses primarily on whether a

certain class of people has been treated differently from other classes. The second function of

the Equal Protection Clause is to protect individual rights .74 This is where class-of-one theory

fits. Landmark cases such as Shelley v. Kramer 75 and Regents of the University of California v.

Bakke 76 have taken this approach, concentrating primary on the individual rights of those given

68 See Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). This opinion, written twoyears before Olech , asserts that equal protection claims must be based upon membership in a

protected class . Id. (citing Washington v. Davis , 426 U.S. 229, 23940 (1976)) (emphasisadded). However, Washington v. Davis actually states that equal protection applies todiscrimination between individuals or groups. 436 U.S. at 239 (emphasis added).69 See 20 A M. JUR . 2D Courts 129 (2007) (describing the stare decisis doctrine).70 Robert C. Farrell, Classes, Persons, Equal Protection, and Village of Willowbrook v. Olech ,78 W ASH . L . R EV . 367, 367 (2003).71 Id. at 368.72 517 U.S. 620 (1996) (stating that classifications based on sexual orientation serve nolegitimate government purpose).73 427 U.S. 307 (1976) (focusing on whether age-based classifications are constitutional).74 Farrell, supra note 70, at 379.75 334 U.S. 1, 22 (1948) (stating that the rights of the Equal Protection Clause are guaranteed tothe individual and are personal rights) (emphasis added).76 438 U.S. 265 (1978) (utilizing the individual rights model as a means of explaining whygovernment actions benefiting minorities are constitutionally suspect). To restrict the scope of


24/67


10

disparate treatment, rather than looking for the existence of a classification. Olech utilizes the

second function of equal protection since it focuses on the protection of the individual. 77 The

Ninth Circuit, nevertheless, is hesitant to acknowledge this function of the Equal Protection

Clause. Rather, it prefers to restrict the scope of equal protection to government classification

analysis.

B. Problematic Theoretical Conclusions: Government as Proprietor vs. Lawmaker

While a distinction does exist between the government acting as a proprietor and the

government acting as a lawmaker, the Ninth Circuits conclusion that the Equal Protection

Clause need not apply when the government acts as proprietor is inconsistent with equal protection jurisprudence and theory. Olech asserts that [t]he purpose of the equal protection

clause of the Fourteenth Amendment is to secure every person within the States jurisdiction

against intentional and arbitrary discrimination, whether occasioned by express terms of a statute

or by its improper execution through duly constituted agents .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. 79

affirmative action, it would have been difficult to classify non-minorities as a suspect class. Incontrast, focusing on the individual rights of particular non-minorities allowed the Court to makea more direct connection to equal protection.77 Farrell, supra note 70, at 368.78 Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam) (quoting Sioux CityBridge Co. v. Dakota County, 260 U.S. 441, 445 (1923)) (emphasis added).79 Engquist v. Or. Dept of Agric., 478 F.3d 985, 1011 (9th Cir. 2007) (Reinhardt, J., dissenting).


25/67


11

On a theoretical level, classification analysis tends to be invoked mainly when the

government acts as a lawmaker. 80 However, when the government acts as proprietor, individual

rights analysis tends to be utilized. As Farrell argues:

It is quite a different story, on the other hand, when government officials makeany of their millions of individual determinations daily. These include the most

basic decisions involved in running a government, such as who gets hired for agovernment job, who gets fired from a government job . . . These governmentaldecisions are not legislative and do not amount to broad generalizations about alarge number of persons. These are individual decisions. And here, according toOlech , the Equal Protection Clause creates a personal right. 81

In other words, it does make a difference whether the government is acting as a proprietor or a

lawmaker. This difference, however, is not whether equal protection applies, but rather howequal protection applies. Indeed, many landmark equal protection cases have dealt specifically

with government employment. 82 Therefore, the Ninth Circuits per se rule against the

availability of class-of-one equal protection for government employment decisions is misplaced.

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. For public employment decisions, a parallel can be drawn to Due Process Clause

analysis, where governmental action must be more than merely arbitrary in some general or

logical sense, more than merely arbitrary and capricious in the commonly accepted

administrative-law sense. The action must be arbitrary in the constitutional sense. 83 In short,

the Ninth Circuit correctly distinguished the varying forms of government action. However, the

subsequent conclusions it made are inconsistent with equal protection law and theory.

80 Farrell, supra note 70, at 398.81 Id. at 39899.82 See, e.g. , Washington v. Davis, 426 U.S. 229 (1976); Pers. Admr of Mass. v. Feeney, 422U.S. 256 (1973); Bd. of Regents v. Roth, 408 U.S. 564 (1972).83 Singleton v. Cecil, 176 F.3d 419, 433 (8th Cir. 1999) (en banc) (Arnold, J., dissenting) (citingCollins v. Harker Heights, 503 U.S. 115, 129 (1992)).


26/67


12

C. 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. 84 Judge Reinhardts dissent in Engquist points to three approaches used

by other circuits to prevent this potential flood. 85 However, 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. 86 First, the use of the rational basis standard of

review, which typically grants great deference to the government, acts to limit the number of

such suits.87

Second, placing heavy pleading burdens on plaintiffs dissuade frivolous andunnecessary claims. 88

(1) Deference to Government: Rational Basis Review

Typically, rational basis review grants the government a great deal of deference. 89

Although at times rational basis has been given more of a bite, 90 utilizing the standard,

deferential form for class-of-one equal protection claims involving government employment

would make it difficult for many plaintiffs to succeed. While this may, in practice, result in

essentially the same outcomes as a per se rule against such claims, it at least keeps open the

possibility of legal remedies for extraordinary cases. In Engquist , for example, the same result

could have been reached had the court simply gone through ordinary rational basis analysis.

84 Engquist v. Or. Dept of Agric., 478 F.3d 985, 994 (9th Cir. 2007).85 See supra text accompanying note 64.86 See Hortensia S. Carreira, Protecting the Class of One , 36 R EAL PROP . PROB . & T R . J. 331,334 (2001).87 Id.88 Id.89 See, e.g. , U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166 (1980); New Orleans v. Dukes, 427 U.S.297 (1976); Williamson v. Lee Optical, 348 U.S. 483 (1955).90 See, e.g. , Romer v. Evans, 517 U.S. 620 (1996); City of Cleburne v. Cleburne Living Ctr., 473U.S. 432, (1985); U.S. Dept of Agric. v. Moreno, 413 U.S. 528 (1973).


27/67


13

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. 91 Judge Reinhardts dissent points out that rational

basis review has always been used to insulate governmental decisions from searching review

that would interfere with governmental functions, while still protecting individuals against

heinous governmental conduct. 92 Indeed, despite the fact that a vast majority of class-of-one

public employment claims would fail, the key reason for utilizing rational basis review over a

per se prohibition would be to provide legal recourse for those rare, extreme instances in which

the government employer has truly committed a constitutional violation.(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. One method is

to require the plaintiff to come forward with strong evidence in support of the similarly

situated element. 93 This element has both substantive and procedural importance for class-of-

one claims. Substantively, the comparative evaluation that flows from the similarly situated

element is the foundation of equal protection analysis. 94 Procedurally, 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.

91 See, e.g. , Flaherty v. Giambra, 446 F. Supp. 2d 153, 161 (W.D.N.Y. 2006); Murphy v. W. LineSch. Dist., 832 F. Supp. 178, 18081 (N.D. Miss. 1993).92 Engquist v. Or. Dept of Agric., 478 F.3d 985, 1012 (9th Cir. 2007) (Reinhardt, J., dissenting).93 See, e.g. , Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir. 2006); Campagna v. Mass.Dept of Envtl. Prot., 334 F.3d 150, 156 (1st Cir. 2003).94 See Jennings v. City of Stillwater, 383 F.3d 1199, 1213 (10th Cir. 2004) (It is thiscomparative element that distinguishes the Equal Protection Clause from the Due ProcessClause.).


28/67


14

Another option is to adopt Justice Breyers requirement of proving animus or ill will on

the part of the government. 95 This method also would have both substantive and procedural

advantages in limiting class-of-one claims for public employment. From a substantive

perspective, 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. 96 In other

words, where there is broadly disparate treatment based on classifications, the extent of the

discrimination is often obvious. 97 On the other hand, the extent of class-of-one discrimination is,

by its very nature, limited to a single individual and therefore tends to be less glaring. 98

Procedurally, placing an additional burden on plaintiffs to prove that the public employer actedwith ill will would provide an additional disincentive to bring frivolous claims. In summary,

because of the huge deference given to the government under rational basis review, together with

heavy burdens on plaintiffs, there is no need to fear a flood of cases.

VI. C ONCLUSION

Overall, the Ninth Circuits reasoning for completely prohibiting class-of-one claims in

the area of public employment is flawed for misinterpreting the scope of Olech , misapplying the

applicability of class-of-one depending on the form of government action, and overestimating the

practical consequences associated with permitting class-of-one claims in this realm.

95 Vill. of Willowbrook v. Olech, 528 U.S. 562, 566 (2000) (Breyer, J., concurring).96 Jennings , 383 F.3d at 121314.97 See, e.g. , Gomillion v. Lightfoot, 364 U.S. 339, 373 (1960); Yick Wo v. Hopkins, 118 U.S.356, 341 (1886).98 Jennings , 383 F.3d at 121314.


29/67

CASENOTE EXAMPLE 3 O U R N A L DO NOT CITE OR DISTRIBUTE

A L OST C AUSE OF A CTION : T HE N INTH C IRCUIT S B OLD A PPROACH TO THE E NIGMATIC

C LASS OF O NE E MPLOYMENT C LAIM .

I. I NTRODUCTION

Ever since the Supreme Court, in Village of Willowbrook v. Olech ,1 first recognized a

cause of action on behalf of a class of one under the Equal Protection Clause, 2 lower courts

have struggled to define the substance and scope of this somewhat counterintuitive 3 new claim. 4

This struggle has been particularly apparent in the area of public employment. 5 In an effort to

reach extreme cases of employment discrimination without unduly interfering with public

employers discretion, many circuits have allowed class of one employment claims in theory,

while consistently striking them down in practice. 6 However, in Engquist v. Oregon Department

of Agriculture ,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. It did so by

rejecting the class of one theory in public employment settings, 8 while nonetheless preserving

a narrow substantive due process claim to protect employees occupational liberty. 9 Through

this approach, the Ninth Circuit was able to maintain a remedy against extreme cases of

employment interference, while leaving public at-will employment virtually unscathed.

1 Vill. of Willowbrook v. Olech, 528 U.S. 562 (2000) (per curiam).2 U.S. C ONST . amend. XIV, 1 ([N]o state shall . . . deny to any person within its jurisdictionthe equal protection of the laws . . . .).3 See Timothy Zich, Angry White Males: The Equal Protection Clause and Classes of One , 89K Y. L.J. 69, for a general discussion on how the class of one theory of equal protectiondiverges from both the original purpose of the Equal Protection Clause, and the Courtstraditional use of the Equal Protection Clause as a vehicle against class discrimination.4 E.g. , Jennings v. City of Stillwater, 383 F.3d 1199, 121011 (10th Cir. 2004).5 See Lauth v. McCollum, 424 F.3d 631, 63234 (7th Cir. 2005).6 See, e.g. , id.7 Engquist v. Or. Dept of Agric., 478 F.3d 985 (9th Cir. 2007).8 Id. at 992.9 Id. at 99798.


30/67


2

II. F ACTS

In 1992, Anup Engquist (Engquist) was hired by Norma Corristan (Corristan) as an

international food standards specialist for the Oregon Department of Agriculture (ODA). 10

During her tenure at ODA, Engquist repeatedly complained to Corristan about the offensive

behavior of another employee in Corristans division, Joseph Hyatt (Hyatt). 11 In response,

Corristan met with Hyatts supervisor and required Hyatt to attend diversity and anger

management training. 12 This requirement apparently made Hyatt angry. 13

In June of 2001, John Szczepanski (Szczepanski) took over Engquists laboratory

division and indicated to others that he planned to g[et] rid of both Corristan and Engquist.14

Hyatt claimed that he was working with Szczepanski towards this goal, and drafted a plan to

reorganize Engquists division. 15 Subsequently, Szczepanski promoted Hyatt to a management

position 16 that Corristan had apparently left vacant in anticipation of budget cuts. 17 While

Engquist also applied for the position, it was offered to Hyatt despite Engquists more extensive

educational background and customer-service experience. 18 Szczepanski, however, claimed to

have chosen Hyatt based on Hyatts business experience and work as a chemist. 19

10 Id. at 990.11 Id.12 Id.13 See Cross-Appellants Answering Brief on Appeal and Opening Brief on Cross-Appeal at 14,

Engquist , 478 F.3d 985 (No. 05-35263, 05-35170) [hereinafter Appellees Brief] (claiming thatwhen Hyatt returned from his required anger management training, he told Corristan that itmade him angry to have to go).14 Engquist , 478 F.3d at 990.15 Id.16 Id. at 99091.17 See Appellees Brief, supra note 13.18 Engquist , 478 F.3d at 99091.19 Id. at 991.


31/67


3

In October of 2001, the Governor announced the need for major budget cuts, after which

Szczepanski terminated the employment of both Corristan and Engquist. 20 Subsequently,

Engquist applied for approximately 200 jobs. However, because Oregon has very few

opportunities in Engquists area of expertise, her search was unsuccessful. 21

Engquist filed suit against Szczpanski and Hyatt (Defendants) for, inter alia , violating her

equal protection and substantive due process rights. 22 The jury concluded that the Defendants

were liable for violations of equal protection and substantive due process. 23 Specifically, 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 promotionsand termination. 24 The Defendants filed a motion for judgment notwithstanding the verdict,

which the district court denied. 25

III. L EGAL BACKGROUND

In Village of Willowbrook v. Olech ,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. 27 However, the Courts short

opinion did not clearly articulate the scope of the class of one cause of action or provide clear

standards for its application. 28 While Olech only involved government action in the enforcement

20 Id.21 Id.22 Id. at 990.23 Id. at 992.24 Id.25 Id.26 Vill. of Willowbrook v. Olech, 528 U.S. 562 (2000) (per curiam).27 Id. at 564.28 See id. at 56465.


32/67


4

of laws, 29 the Court used expansive and unqualified language to justify the class of one

theory, 30 indicating a broader range of applications. Following Olech , lower courts struggled to

define the contours of class-of-one cases, recognizing that unless carefully circumscribed, the

claim could provide constitutional grounds to review practically every decision made by any

government actor. 31 One area of particular controversy has been government employment, 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. 32 Yet, the Court, in Olech , did not

qualify its language or otherwise immunize government employers from liability.33

Prior to the Ninth Circuits decision in Engquist , all seven circuits that had reviewed the issue had ultimately

approved the class of one theory for use against government employers. 34

IV. H OLDING

In Engquist , reviewing the issue de novo , the Ninth Circuit rendered the class of one

theory of equal protection inapplicable to public employment decisions. 35 While the Ninth

Circuit acknowledged that its holding was technically inconsistent with the precedent of other

circuits, it emphasized that those circuits that do recognize class of one claims in employment

29 In Olech , the complainant alleged that the Village of Willowbrook had vindictively demandeda 33-foot easement from her, 18-feet longer than that required of other similarly situated propertyowners, as a condition for connecting her property to the municipal water supply. Id. at 563.30 See, e.g. , id. at 564 ([T]he purpose of the equal protection clause of the FourteenthAmendment is to secure every person within the States jurisdiction against intentional andarbitrary discrimination, whether occasioned by express terms of a statute, or by its improper execution through duly constituted agents. (quoting Sioux City Bridge Co. v. Dakota County,260 U.S. 441, 445 (1923))) (internal quotation marks omitted).31 Jennings v. City of Stillwater, 383 F.3d 1199, 121011 (10th Cir. 2004).32 See Engquist v. Or. Dept of Agric., 478 F.3d 985, 994 (9th Cir. 2007).33 See Olech , 528 U.S. at 56465.34 See Engquist , 478 F.3d at 993 (citing recent cases from the First Circuit, Second Circuit, ThirdCircuit, Fifth Circuit, Sixth Circuit, Seventh Circuit, and Tenth Circuit).35 Id. at 992.


33/67


5

settings almost always strike them down. 36 The Ninth Circuit also acknowledged the struggle of

other circuits to strike an appropriate balance between an individuals right to equal protection,

and the governments need to make administrative decisions without excessive judicial

oversight. 37 Ultimately, however, the Ninth Circuit struck a different balance than other circuits,

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; 38 and, (2) individuals need for judicial

protection from arbitrary government action is much less substantial when the government is

acting as their employer. 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. 40 In particular, the court analogized to other constitutional

areas where the rights of public employees are less expansive than those of ordinary citizens. 41

However, while the Ninth Circuit banished the class of one theory from public

employment settings, the court did not render public employees completely defenseless against

extreme cases of government interference. Rather, the court offered public employees a different

source of relief, recognizing the potential legitimacy of a substantive due process claim when an

employer violates an employees occupational liberty. 42 However, 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. 43

36 Id. at 99394.37 See id.38 See id. at 99495.39 See id. at 995.40 Id. at 99495.41 Id.42 See id. at 997.43 Id. at 99798.


34/67


6

V. A NALYSIS

In Engquist , 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. First, the Ninth Circuit could have simply found that

Engquists claim failed rational basis review. 44 Class of one actions can only prevail under

Olech when the government has no rational basis for [the alleged] differential treatment. 45 The

facts surrounding Engquists claim provided more than enough ammunition to find a conceivable

rational basis for both promoting Hyatt over Engquist 46 and for eliminating Engquists position

entirely.47

Furthermore, even though the facts of the case could perhaps support an inferencethat the Defendants really acted out of malice towards Engquist, particularly when the

Defendants treatment of Engquist is viewed together with their treatment of Corristan, 48 such an

inference is constitutionally irrelevant under rational basis review. 49

Alternatively, the Ninth Circuit could have used Engquists case as an opportunity to

narrowly define the contours of class of one employment claims, while nonetheless retaining

the theory in employment settings. When the Supreme Court hands down a new weapon without

qualifying its use, it seems somewhat foolish for a circuit to completely throw that weapon away.

44 See ERWIN CHEMERINSKY , CONSTITUTIONAL LAW 630 (2d ed. 2005) (describing rational basisreview as extremely deferential to the government, requiring only a conceivable legitimate

purpose for a government action).45 Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam).46 See Appellants Brief at 10, Engquist , 478 F.3d 985 (No. 05-35170, 05-35263) (describing theconceivable legitimate reasons why Szczepanski may have promoted Hyatt instead of Engquist,including Hyatts experience starting his own coffee company, developing business plans,managing budgets, running retail establishments, and working as a supervising chemist, whichSzczepanski apparently felt gave Hyatt the entrepreneurial, managerial, and marketing skillsneeded for the vacant position).47 See id. at 1112 (describing how Engquists laboratory division, in particular, was running inthe red, and that Engquists termination was part of a larger plan to downsize the division).48 See Appellees Brief, supra note 13, at 1320.49 Cf. FCC v. Beach Commcns, 508 U.S. 307, 315 (1993).


35/67


7

Most likely, there will be extreme cases where the actions of a government employer, while only

directed at one employee, nonetheless appear to justify judicial scrutiny; 50 and, when such cases

arise, judges may wish to dive into their judicial arsenals and emerge with the sweeping language

of Olech .51 Other circuits, recognizing this potential need, 52 have allowed class of one claims

within public employment while limiting the scope of judicial review through other means. 53

So then, why did perhaps the most liberal circuit in the country, 54 breaking from all

others circuits that had reviewed the issue, 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,56

and the distinction between the government as a regulator and thegovernment as an employer seemed like a good place for a beach. While one has a constitutional

right to equal protection of the law, 57 one does not have a constitutional right to either a

government job or continued government employment. 58 And, the Supreme Court has

consistently recognized that the government has broader power when it is acting as an employer

50 One often cited extreme example is Ciechon v. City of Chicago , 686 F.2d 511 (7th Cir.1982), where a paramedic who had done nothing wrong was intentionally made a scapegoat for acontroversial death. See Lauth v. McMollum, 424 F.3d 631, 63334 (7th Cir. 2005).51 Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam); see supra note 30 andaccompanying text.52 See, e.g. , Lauth , 424 F.3d at 634 (concluding that [i]n light of Ciechon , it would be unwiseto hold that a public employee could never maintain a class-of-one case).53 For example, the Second Circuit and Seventh Circuit require plaintiffs to allege that they wereintentionally treated differently from another person so similarly situated that the two could beconsidered prima facie identical. See Neilson v. DAngelis, 409 F.3d 100, 105 (2d Cir. 2005);Purze v. Vill. of Winthrop Harbor, 286 F.3d 452, 455 (7th Cir. 2002).54 See Marybeth Herald, Reversed, Vacated, and Split: The Supreme Court, the Ninth Circuit,and the Congress , 77 O R . L . R EV . 405, 40708 (1998) (noting the Ninth Circuits liberalreputation).55 Engquist v. Or. Dept of Agric., 478 F.3d 985, 99293 (9th Cir. 2007).56 See Lauth , 424 F.3d at 633 (warning that without boundaries, any unexplained or unjustifieddisparity in treatment by public officials [could be] deemed a prima facie denial of equal

protection, opening endless vistas of government liability).57 See U.S. C ONST . amend. XIV, 1.58 See Pers. Admr v. Feeney, 442 U.S. 256, 273 (1979).


36/67


8

rather than as a sovereign. 59 Thus, the scope of judicial review over public employment is

naturally more restrained, so as not to render every government personnel decision subject to

federal review. 60

However, if the sole justification for the Ninth Circuits decision was the need to free

public employers from the constraints of the Equal Protection Clause, its reasoning would be

shamelessly flawed. After all, public employment decisions based on classifications among

people are reviewable under the Equal Protection Clause, 61 even when: (1) similar private

employment decisions would not be reviewable; 62 and, (2) the classifications only require

rational basis review.63

Because the Ninth Circuit is not requiring government employees tosurrender their right to equal protection in general, but rather only to this one equal protection

theory, there must be something different about class of one employment claims that renders

them, in the Ninth Circuits view, unworthy of judicial solicitude.

Perhaps the Ninth Circuit has really defined the class of one theory as sue genesis ,

different in kind from all other claims recognized under the Equal Protection Clause. 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; rather, it appears to

suggest substantive due process as a better tool for implementing the spirit of the class of one

59 Engquist , 478 F.3d at 994 (citing Waters v. Churchill, 511 U.S. 661, 671 (1994) (OConnor, J., plurality opinion)).60 See id.61 See, e.g. , Nev. Dept of Human Res. V. Hibbs, 538 U.S. 721, 72829 (2003).62 Generally, private employers are not bound by the Equal Protection Clause of the FourteenthAmendment. See U.S. C ONST . amend. XIV, 1 ([N]o state shall . . . .) (emphasis added).63 See, e.g. , Pruitt v. Cheney, 963 F.2d 1160, 1166 (9th Cir. 1992) (applying rational basis reviewto a former army reserve officers claim that she was discharged from the military based only onher homosexual status).


37/67


9

theory in employment contexts. 64 In so suggesting, this Note argues, the Ninth Circuits opinion

guides the judiciary in a direction that is both theoretically sound and practically beneficial.

A. The Class of One Theory is Poorly Suited for Use in Employment Settings.

The Due Process Clause has traditionally been trusted with the task of protecting

individuals from arbitrary and unreasonable government action. 65 Yet, the class of one theory

uses the Equal Protection Clause to protect individuals from discrimination, 66 rather than the Due

Process Clause. 67 Usually, this could be overlooked, because except for the fact that the Equal

Protection Clause has traditionally protected individuals from discrimination based on their

classifications, not their unique individuality, the analysis under substantive due process andequal protection is virtually indistinguishable. 68 Indeed, the class of one theory does not

appear inappropriate as an equal protection claim when applied against malicious government

regulators, 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. 69 Thus, even though Olech did not explicitly consider the

64 See Engquist , 478 F.3d at 99798.65 E.g. , Wolff v. McDonnell, 418 U.S. 539, 558 (1972) (The touchstone of due process is

protection of the individual against arbitrary action of government. (citing Dent v. WestVirginia, 129 U.S. 114, 123 (1889))).66 See Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam).67 This may reflect a continued aversion to the use of substantive due process to protecteconomic rights. Cf. CHEMERINSKY , supra note 44, at 62223 (describing how the Court hasused the Equal Protection Clause to safeguard rights that more appropriately fall under the DueProcess Clause in order to avoid the negative association between substantive due process andthe Lochner era).68 See R ONALD D. R OTUNDA & J OHN E. N OWAK , TREATISE ON CONSTITUTIONAL LAW SUBSTANCE & P ROCEDURE , 14.7, at 56768 (3d ed. 1999) ([T]he difference in the method of analysis under the due process and equal protection guarantees relates only to whether or not thegovernment act classifies persons.).69 The Supreme Court has indicated that, even under rational basis review, it will not toleratelegislative or regulative actions that are borne of animosity. See Romer v. Evans, 517 U.S.620, 634 (1996). In this line of cases, the Court appears to evaluate the governments motives


38/67


10

malevolent nature of the governments actions, 70 some lower courts, including the Ninth Circuit,

have focused the class of one theory on cases where the government maliciously exploits its

disproportionate strength to render individual citizens helpless against it. 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. 72

While the class of one theory can easily masquerade as an equal protection claim in

regulatory settings, it is much more difficult to maintain this faade in employment settings.

First, the Equal Protection Clause only makes sense in public employment when it is used to

protect classes of people rather than individuals. When an individual is discriminated against based on his or her immutable traits or group affiliations, the discrimination is likely based on

stereotypes instead of the individuals ability. 73 In contrast, when an individual is treated

differently from others based only on his or her unique characteristics, something distinct to that

individual is causing the disparate treatment. This distinction should not matter when the

behind a particular action, rather than whether the action bares a rational relationship to aconceivable government interest. See, e.g. , City of Cleburne v. Cleburne Living Ctr., Inc., 473U.S. 432, 47375 (1985); U.S. Dept of Agric. v. Moreno, 413 U.S. 528, 53435 (1973).70 See Olech , 528 U.S. at 565 (finding it unnecessary to examine the governments subjectivemotivation). But see id. at 56566 (Breyer, J., concurring) (emphasizing that ill-will is animportant extra factor for distinguishing ordinary instances of faulty decision making fromcases of constitutional right).71 See Engquist v. Or. Dept of Agric., 478 F.3d 985, 995 (9th Cir. 2007) ([T]he paradigmaticclass-of-one case should be one in which a public official, for an improper motive, comes downhard on a hapless private citizen. (quoting Lauth v. McCollum, 424 F.3d 631, 633 (7th Cir.2005))). 72 For example, in Squaw Valley Development Co. v. Goldberg , 375 F.3d 396, 946 (9th Cir.2004), the court used a more stringent version of rational basis review, allowing class of oneclaims to proceed where a plaintiff introduces evidence that a defendants proffered rational

basis for differential treatment was merely a pretext for an improper motive. This applicationechoes the sentiment of Esmail v. Macrane , 53 F.3d 176, 180 (7th Cir. 1995), where JudgePosner suggested that classifications should be scrutinized more carefully the smaller and morevulnerable the class is, and that [a] class of one is likely to be the most vulnerable of all.73 Cf. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 49394 (1989).


39/67


11

government is acting as a regulator, as in Olech ,74 because government agents are not supposed

to selectively enforce laws based on either stereotypes or their personal feelings towards

individuals. 75 However, this distinction does matter when the government is acting as an

employer. While public employers are not permitted to make employment decisions based on

presumptively irrelevant classifications, 76 employers are allowed to distinguish between

employees based on their individual characteristics. 77 Employers must make nuanced decisions

in order to maintain balance and control over their workforces. 78 Yet, 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 employersdecisions could be second-guessed. 79 Indeed, the class of one theory, if permitted against

public employers, could drastically interfere with the entire dynamic of public employment. 80

Even the availability alone of the class of one claim could deter employers from making

certain good faith personnel decisions, fearing the costs and hassles of litigation. 81

Second, the need for government employers to evaluate employees on an individual basis

automatically displaces the claims similarly situated 82 requirement. That is, because

74 See Olech , 528 U.S. at 563.75 See Email , 53 F.3d at 17980.76 Cf . Croson , 488 U.S. at 493.77 See Engquist v. Or. Dept of Agric., 478 F.3d 985, 995 (9th Cir. 2007) (The power of employers to discharge employees for reasons that may appear arbitrary . . . is well-establishedunder the common law of at-will employment.).78 See id.79 See id. While rational basis review is very deferential to the government, supra note 44, it stillgives individual judges the power to determine what justifications are arbitrary or irrational, id.80 See Lauth v. McCollum , 424 F.3d 631, 633 (7th Cir. 2005), for a description of how the classof one theory could transform public at-will employment into something very close to tenuredemployment, considering how easy it is to fabricate a case of unequal treatment.81 See Zich, supra note 3, at 121.82 See Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam) (Our cases haverecognized successful equal protections claims brought by a class of one, where the plaintiff


40/67


12

employers must take subtle distinctions between individual employees into account when

making employment decisions, two employees are never so similarly situated that differential

treatment implies irrationality. 83, 84 The absurdity of applying a class of one analysis to

employment decisions is epitomized by Engquists attempt to demonstrate that she was singled

out not because of her immutable traits, 85 but rather because of something unique to her. 86

Ultimately, 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 However, this same evidence also

seems to demonstrate that the Defendants were merely subjectively evaluating each employee onthe basis of his or her unique, relevant, and permissible factors.

alleges that she has been intentionally treated differently from others similarly situated . . . .)(emphasis added).83 Under a class of one claim, evidence that individuals in similar situations were treated morefavorably can be introduced to provide an inference that the plaintiff was intentionally singledout for reasons that so lack any reasonable nexus with a legitimate government purpose that animproper purpose whether personal or otherwise is all but certain. Neilson v. DAngelis,409 F3d 100, 105 (2d Cir. 2005). This is starkly different from equal protection claims broughton the basis of suspect classifications, where the treatment of similarly situated employees can beintroduced to demonstrate a pattern of discrimination based on impermissible factors. Id.84 The previously discussed extreme case of Ciechon v. City of Chicago , 686 F.2d 511 (7th Cir 1982), see supra note 50, may seem like an exception to this statement. In Ciechon , one of two

paramedics was made a scapegoat for an attendees death, even though both paramedicsexperienced the same set of circumstances and were equally responsible for patient assessmentand treatment . . . . 686 F.2d at 522. However, the paramedics shared experiences andresponsibilities do not, alone, prove that they reacted to those circumstances and performed their responsibilities equally. In fact, the court discounted subtle distinctions between the paramedics,including a letter that spoke to the other paramedics exceptional[] reputation, and evidencethat the discharged paramedic was more involved with the patient at the scene. See id. at 524.85 Engquist was both female and of a minority race. See Appellees Brief, supra note 13, at 20.86 See id. at 3435.87 See id. at 35 (claiming that Hyatt worked with all kinds of races, both genders and he never targeted women or people of color for termination).


41/67


13

Third, while the arbitrary and vindictive enforcement of laws against vulnerable

individuals may offend the Constitution, 88 arbitrary and vindictive employment decisions do not.

This distinction really comes down to the source of power that is used to impose an injury on an

individual. When regulations are enforced in a malicious manner, the power of government

facilitates the harm; thus, the need for a federal remedy is more compelling. 89 However, when

the government is acting as an employer, disfavored treatment does not solicit the same need for

judicial protection, because it is the actors power as an employer that facilitates the injury. 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.90

B. Substantive Due Process is Better Suited to Protect the Rights of Public Employees.

For t

Sample Casenotes

Documents

Transcript of Sample Casenotes