# Integrated Facilities Construction Corp. v. Carol W Gladstone

> District Court, D. Massachusetts · July 20, 2022

URL: https://www.frixlaw.com/law-library/cases/10200455

## Case

- **Court:** District Court, D. Massachusetts
- **Decided:** July 20, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10200455

## How later opinions describe it (automated extraction)

- declining to reach the question of whether a de facto debarment implicates a liberty interest
- explaining that “formally debarring a corporation from government contract bidding constitutes a deprivation of liberty that triggers the procedural guarantees of the Due Process Clause” (citation omitted)
- noting that “[d]enial of notice and hearing before debarment would ‘give rise to serious constitutional issues’” (citation omitted)

## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
____________________________________
)
INTEGRATED FACILITIES )
CONSTRUCTION CORP., )
)
Plaintiff, )
)
)
v. )
)
COMMONWEALTH OF )
MASSACHUSETTS DIVISION OF )
CAPITAL ASSET MANAGEMENT ) Civil Action No. 21-cv-11607-AK
AND MAINTENANCE, )
CAROL W. GLADSTONE, in her )
individual and official capacities, )
CHARLES W. KELSEY, III, in his )
individual and official capacities, )
KATHLEEN TWOMEY, in her )
individual and official capacities, and )
MATTHEW H. RYAN, in his individual )
and official capacities, )
)
Defendants. )
)

MEMORANDUM AND ORDER
A. KELLEY, D.J.
Plaintiff Integrated Facilities Construction Corp. (“IFCC”) brings this action against the
Commonwealth of Massachusetts Division of Capital Asset Management and Maintenance
(“DCAMM”) and four DCAMM employees, Carol W. Gladstone (“Gladstone”), Charles W.
Kelsey, III (“Kelsey”), Kathleen Twomey (“Twomey”), and Matthew H. Ryan (“Ryan”), in their
individual and official capacities. IFCC alleges it was effectively, or de facto, debarred from
bidding on state construction contracts in violation of Fourteenth Amendment due process and
equal protection guarantees. IFCC seeks monetary damages, an injunction, and a declaratory
judgment that the statutory and regulatory scheme concerning the evaluation and certification of
public construction contractors is unconstitutional. The defendants have moved to dismiss the
action in its entirety. [Dkt. 15]. For the reasons that follow, the defendants’ motion is
GRANTED IN PART and DENIED IN PART.

I. Background
Unless otherwise noted, the facts are presented as alleged in IFCC’s complaint. [See Dkt.
1 (“Complaint”)]. Massachusetts has established a comprehensive statutory scheme governing
public construction contracts. See generally Mass. Gen. Laws ch. 149. That framework requires
contractors who submit bids on public construction contracts valued at more than $150,000 to
include a Certificate of Eligibility as part of its submissions. Id. § 44D(1)(a). DCAMM, the
state agency that oversees public construction, makes preliminary and final decisions granting or
denying Certificates of Eligibility. Id. § 44D(1)-(4). DCAMM will issue a Certificate of
Eligibility only if a contractor demonstrates that it is “competent and responsible” based on a
number of factors, including financial responsibility, number of projects completed, management

and supervisory personnel, and past performance on public projects. 810 Mass. Code Regs.
§ 4.04. Certificates of Eligibility are effective for one year from the date of issue. Mass. Gen.
Laws ch. 149, § 44D(3). Contractors who disagree with DCAMM’s preliminary decision may
submit further information with a request for reconsideration, and contractors who disagree with
DCAMM’s final decision may appeal to the Massachusetts Attorney General, who must
investigate and issue a written decision. Id. at § 44D(4). After the Attorney General renders her
decision, DCAMM or the contractor may seek remedies at law. Id.
IFCC first received a Certificate of Eligibility in 2016. [Complaint at ¶ 37]. IFCC
completed more than $13,000,000 in contracts for which a Certificate of Eligibility was required
from 2016 to 2019. [Id. at ¶ 38]. In 2019, however, IFCC’s application for renewal was denied.
[Id. at ¶ 78]. The reason for this denial was two-fold. First, DCAMM concluded IFCC had
received failing scores on two of its project evaluations.1 [Id. at ¶ 82]. Second, DCAMM
concluded that one of the private project evaluations IFCC submitted with its application was

fraudulent. [Id. at ¶ 81]. As part of its previous Certificate of Eligibility applications, IFCC had
relied on an evaluation for a private construction project for an entity called 60 Tupelo Realty
Trust (the “Tupelo Project”). [Id. at ¶¶ 60-67, 72]. The evaluation was signed by “Cynthia
Costinden,” and a project spreadsheet submitted to DCAMM each year similarly listed “Cynthia
Costinden” in connection with the Tupelo Project. [Id. at ¶¶ 71-72]. Prior to submitting its 2019
renewal, IFCC changed the spelling to “Cynthia Kostinden” in the project spreadsheet. [Id.].
Cynthia Kostinden is the wife of Thomas Kostinden, an IFCC employee. [Id. at ¶ 75]. IFCC
withdrew its application when DCAMM inquired about the change. [Id. at ¶ 73].
Months later, IFCC submitted another Certificate of Eligibility application, including a
replacement evaluation signed by Ms. Kostinden, and sent an email stating that Mr. Kostinden

told IFCC that he or someone on his behalf had filled out the prior evaluation and IFCC was
unaware of the name misspelling prior to 2019. [Id. at ¶¶ 75-77]. DCAMM still concluded that
the original Tupelo Project evaluation was fraudulent; that IFCC was involved in the preparation
and submission of the original Tupelo Project evaluation; and that IFCC willfully supplied
materially false information to obtain certification to bid on public work. [Id. at ¶ 81]. DCAMM
denied IFCC’s application, noting that IFCC had to wait a minimum of one year to reapply. [Id.
at ¶ 83]. Although IFCC sent a letter objecting to the denial of its Certificate of Eligibility, it did
not take further action to appeal DCAMM’s final determination. [Id. at ¶ 84].

1 Every public agency must submit project evaluations after contractors have completed building projects
under its control, which are kept in contractors’ evaluation files. Mass. Gen. Laws ch. 149, § 44D(7).
IFCC submitted another application for a Certificate of Eligibility on February 17, 2021.
[Id. at ¶ 96]. DCAMM denied this application based on the Tupelo Project evaluation and four
failing project evaluations, two of which were submitted after DCAMM denied IFCC’s 2019
request for certification. [Id. at ¶¶ 89, 97-99]. IFCC timely objected to DCAMM’s preliminary

determination, asked for a meeting, and requested reconsideration. [Id. at ¶ 100]. IFCC met
with DCAMM, Twomey, and Kelsey shortly thereafter, and DCAMM later issued a final
determination denying IFCC’s application. [Id. at ¶ 101-103]. IFCC appealed to the Attorney
General. [Id. at ¶¶ 107-110]. In connection with that appeal, the defendants stated that they
chose to consider the Tupelo Project evaluation as a reason to deny IFCC’s certification
applications through at least 2023 and that the existence of three failing evaluations during the
previous five years would mandate denial of IFCC’s certification applications through 2024. [Id.
at ¶ 108]. The Attorney General denied the appeal in September 2021. [Id. at ¶ 111]. IFCC has
since filed suit in state court, seeking to reverse DCAMM’s decision. See Integrated Facilities
Construction Corp. v. DCAMM, No. 2184CV02253 (Suffolk Sup. Ct.).

IFCC brings a due process claim pursuant to 42 U.S.C. § 1983. IFCC alleges the
defendants deprived IFCC of its property and liberty interests in bidding and working on public
contracts by imposing a de facto debarment without due process of law (“Count I”). [Complaint
at ¶¶ 126-133]. IFCC further asserts, pursuant to 42 U.S.C. §§ 1981, 1983, that the defendants
have violated its equal protection rights by intentionally treating IFCC differently from others
similarly situated (“Count II”). [Id. at ¶¶ 134-39]. IFCC also seeks a declaratory judgment
invalidating Mass. Gen. Laws ch. 149, § 44D, and the regulations promulgated thereunder, and
an injunction prohibiting the enforcement thereof (“Count III”). [Id. at ¶¶ 140-44]. The
defendants seek dismissal pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
II. Legal Standard
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a
complaint must allege sufficient facts to state a claim for relief that is “plausible on its face” and
actionable as a matter of law. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Reading the complaint “as a whole,” the Court
must conduct a two-step, context-specific inquiry. García-Catalán v. United States, 734 F.3d
100, 103 (1st Cir. 2013). First, the Court must perform a close reading of the complaint to
distinguish factual allegations from conclusory legal statements. Id. Factual allegations must be
accepted as true, while legal conclusions are not entitled to credit. Id. A court may not disregard
properly pleaded factual allegations even if actual proof of those facts is improbable. Ocasio-
Hernández v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011). Second, the Court must determine
whether the factual allegations present a “reasonable inference that the defendant is liable for the
misconduct alleged.” Haley v. City of Bos., 657 F.3d 39, 46 (1st Cir. 2011) (citation omitted). If
the facts alleged are sufficient to state a cause of action, the motion to dismiss must be denied.

Back Beach Neighbors Comm. v. Town of Rockport, 535 F. Supp. 3d 57, 62 (D. Mass. 2021).
Dismissal for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1)
is “similar to that accorded a dismissal for failure to state a claim pursuant to” Federal Rule of
Civil Procedure 12(b)(6). Murphy v. United States, 45 F.3d 520, 522 (1st Cir. 1995).
III. Discussion
IFCC has sued DCAMM, a state agency, and four individuals in their individual and
official capacities, pursuant to 42 U.S.C. § 1983. Section 1983 provides that “[e]very person”
acting “under color of any statute, ordinance, regulation, custom, or usage of any State or
Territory or the District of Columbia” who subjects or causes to subject someone “to the
deprivation of any rights, privileges, or immunities secured by the Constitution and laws” shall
be liable to the injured party. 42 U.S.C. § 1983. An individual asserting a Section 1983 claim
must show that the challenged conduct is “attributable to a person acting under color of state
law” and that the conduct was a “denial of rights secured by the Constitution or by federal law.”

Soto v. Flores, 103 F.3d 1056, 1061 (1st Cir. 1997); see Graham v. Connor, 490 U.S. 386, 393-
94 (1989) (citation omitted) (explaining that Section 1983 is “not itself a source of substantive
rights, but merely provides a method for vindicating federal rights elsewhere conferred”). The
defendants argue that the Eleventh Amendment bars IFCC’s claims against DCAMM and the
individual defendants in their official capacities. [Dkt. 16 at 8-9]. The defendants also maintain
that IFCC has failed to state a claim for relief for due process and equal protection violations and
that, regardless, the individual defendants are entitled to qualified immunity. [Id. at 10-20].
A. Eleventh Amendment
The Eleventh Amendment bars suits by citizens against the state or state agencies unless
a state has waived its immunity or Congress has overridden it. Brait Builders Corp. v. Mass.

Div. of Capital Asset Mgmt., 644 F.3d 5, 11 (1st Cir. 2011) (citations omitted). As an initial
matter, IFCC agrees that dismissal of DCAMM is proper. [Dkt. 27 at 10]. And Eleventh
Amendment jurisprudence dictates exactly that. See Brait, 644 F.3d at 11 (noting that claims
against DCAMM are “barred by the Eleventh Amendment,” which prohibits “federal suits by
citizens against the state or state agencies” (quoting O’Neill v. Baker, 210 F.3d 41, 47 (1st Cir.
2000)). The Court therefore grants the defendants’ motion to dismiss as to DCAMM.
The Eleventh Amendment also bars any claims for monetary damages brought pursuant
to Section 1983 against individuals in their official capacities. See Will v. Michigan Dep’t of
State Police, 491 U.S. 58, 71 (1989) (“We hold that neither a State nor its officials acting in their
official capacities are ‘persons’ under § 1983.”); see also Redondo-Borges v. U.S. Dep’t of
Hous. & Urban Dev., 421 F.3d 1, 7 (1st Cir. 2005). IFCC effectively concedes this. [See Dkt.
27 at 10-12]. To the extent IFCC asserts any official capacity claims for damages, those claims
are dismissed.2 See Arizonans for Official English v. Arizona, 520 U.S. 43, 69 n.24 (1997)

(“State officers in their official capacities, like States themselves, are not amenable to suit for
damages under § 1983.” (citations omitted)). The Eleventh Amendment does not, however, bar
prospective injunctive relief against defendants in their official capacities, nor does it outlaw
injunctive or monetary relief against the defendants in their individual capacities. Redondo-
Borges, 421 F.3d at 7; see Will, 491 U.S. at 71 n.10 (“[A] state official in his or her official
capacity, when sued for injunctive relief, would be a person under § 1983 because ‘official-
capacity actions for prospective relief are not treated as actions against the state.’” (citing
Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985))). All counts in the complaint seek either
prospective injunctive relief or monetary damages against the remaining defendants in their
individual capacities. As such, the Eleventh Amendment does not require wholesale dismissal of

IFCC’s claims against the individual defendants.
B. Counts I and III: Due Process
The defendants maintain that IFCC has not articulated a cognizable liberty or property
interest and that the procedures provided by state law are adequate. [Dkt. 16 at 10-15; Dkt. 30 at
2-8]. The defendants also assert that they are entitled to qualified immunity and therefore cannot
be held liable in their individual capacities. IFCC counters that the denial of its application for a
Certificate of Eligibility resulted in a de facto debarment implicating a liberty interest sufficient
to trigger due process protections. [Dkt. 27 at 12-16]. IFCC also argues that it has alleged facts

2 IFCC specifies in Count I that it seeks monetary damages against the defendants in their individual
capacities, but it does not provide the same clarity in Count II. [See Complaint at 21-22].
sufficient to establish a plausible claim that it was not afforded meaningful process.3 [Id. at 16-
24]. To survive dismissal, a plaintiff must plead facts demonstrating that (1) the plaintiff
possesses a protected property or liberty interest and (2) the defendants deprived the plaintiff of
that right “without constitutionally adequate process.” Aponte-Torres v. Univ. of P.R., 445 F.3d

50, 56 (1st Cir. 2006) (citation omitted).
1. Property or Liberty Interest
Although IFCC briefly states in its complaint that it has a “liberty and/or property interest
in bidding on contracts for the Commonwealth,” IFCC argues in its briefs solely that it has a
liberty interest. [See, e.g., Complaint at ¶ 127]. The Court limits its examination in kind.4
While the First Circuit has yet to determine whether the de facto debarment of a government
contractor under Mass. Gen. Laws ch. 149, § 44D, necessarily implicates a liberty interest, it has
probed related issues. In Redondo-Borges v. United States Department of Housing and Urban
Development, the First Circuit examined whether the denial of a “responsible bidder” status
implicated a property interest (it did not) and noted that the “case might have taken a different

turn” had the plaintiffs argued a claim premised on a liberty interest. 421 F.3d at 8 n.3. The
First Circuit refrained from answering whether the plaintiffs had a liberty interest, explaining that
“cases that support the existence of a protected liberty interest are relevant only to the plaintiffs’

3 Besides a cursory reference to substantive due process, the complaint fails to advance a substantive due
process claim, and IFCC does not rebut the defendants’ substantive due process arguments. [See
Complaint at ¶¶ 129, 132; Dkt. 27 at 12-24]. As such, the Court treats IFCC’s due process claim as a
procedural one.
4 The First Circuit has explained that a plaintiff’s “dashed hopes of receiving future government work,
without more, cannot yield a constitutionally protected property interest,” even if they stem from
DCAMM’s denial of the Certificate of Eligibility. Redondo-Borges v. U.S. Dep’t of Hous. & Urban
Dev., 421 F.3d 1, 9 (1st Cir. 2005). That is, the plaintiff does “not have a strong enough claim of
entitlement to a” Certificate of Eligibility to “create a constitutionally protected property interest.” Id. at
10. While IFCC’s alleged debarment adds another dimension to this inquiry, see Brait Builders Corp. v.
Mass. Div. of Capital Asset Mgmt., 644 F.3d 5, 12 n.6 (1st Cir. 2011), the Court need not resolve that
issue here, as IFCC argues only that it has a liberty interest.
effective debarment claim, which, no matter the interest raised, has been pleaded without the
necessary factual underpinnings.” Id. The First Circuit has, however, recognized that “[i]n the
context of government procurement contracts, a liberty interest requiring due process protection
arises” when a “company is barred from the procurement process, or eliminated from it, because

of charges of fraud or dishonesty made without an opportunity for a hearing on those charges.”
Smith & Wesson v. United States, 782 F.2d 1074, 1081 (1st Cir. 1986). Meanwhile, courts in
other circuits recognize a liberty interest in debarment regardless of charges of dishonesty or
fraud. See Trifax Corp. v. Dist. of Columbia, 314 F.3d 641, 643-44 (D.C. Cir. 2003) (explaining
that “formally debarring a corporation from government contract bidding constitutes a
deprivation of liberty that triggers the procedural guarantees of the Due Process Clause” (citation
omitted)); Phillips v. Mabus, 894 F. Supp. 2d 71, 81 (D.D.C. 2012) (“De facto debarment occurs
when a contractor has, for all practical purposes, been suspended or blacklisted from working
with a government agency without due process, namely, adequate notice and a meaningful
hearing.” (citations omitted)). Under either standard, IFCC has alleged facts sufficient to

survive dismissal.
Without a Certificate of Eligibility, IFCC cannot bid on government contracts. IFCC
alleges the defendants denied its application for a Certificate of Eligibility in 2019, citing the
“forged” and “fraudulent” Tupelo Project evaluation as one of the reasons for denial. [E.g.,
Complaint at ¶ 81]. IFCC also claims that its 2021 application for a Certificate of Eligibility was
rejected on the same grounds, in addition to several negative project evaluations mandating
denial. [E.g., id. at ¶ 104]. Moreover, IFCC asserts that the defendants stated, in writing, that
they will consider the Tupelo Project evaluation as a reason to deny IFCC’s applications through
at least 2023 and that the existence of failing evaluations mandates denial of IFCC’s Certificate
of Eligibility through 2024. [Id. at ¶ 108]. In other words, as pleaded, IFFC’s application for a
Certificate of Eligibility, and therefore its ability to bid on government contracts, has been and
will be denied from 2019 through 2024, in part because of what the defendants stated was
fraudulent behavior. IFCC has thus pleaded the “relevant factual underpinnings” of a liberty

interest implicating due process under either standard—debarment tied to charges of fraud or de
facto debarment alone.5 See Redondo-Borges, 421 F.3d at 8 n.3.
2. Adequate Process
Because IFCC has alleged that the denial of the Certificate of Eligibility gives rise to a
liberty interest, the next question is whether IFCC has pleaded facts sufficient to demonstrate
that it was not afforded adequate process. Due process is “flexible” and requires “procedural
protections as the particular situation demands.” Mathews v. Eldridge, 424 U.S. 319, 334 (1976)
(citing Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). Generally, this requires at least notice
and an opportunity to be heard. Gorman v. Univ. of R.I., 837 F.2d 7, 12 (1988). IFCC alleges
multiple deficiencies with the process it received, including issues with the meeting it had with

the defendants (which was granted only at IFCC’s request and not as a matter of right),
investigative deficiencies, biased decisionmakers, and lack of procedures for information
gathering. [E.g., Complaint at ¶¶ 28-29, 31-35, 100-01]. IFCC also avers that the post-
deprivation appeal to the Attorney General is meaningless, as the defendants are not bound by
that decision, and certiorari is not an appropriate or effective remedy. [See id. at ¶¶ 32, 107-10].
These measures, IFCC claims, are significantly less than those provided for formal debarment
proceedings pursuant to Mass. Gen. Laws ch. 29, § 29F, which requires, at minimum, an

5 The Court does not, at this time, determine whether a denial of a Certificate of Eligibility is, in fact, a de
facto debarment, nor whether a de facto debarment necessarily implicates a liberty interest. It merely
finds that IFCC has pleaded facts sufficient to survive dismissal.
adjudicatory or quasi-judicial hearing. [Id. at ¶ 36]. As alleged by IFCC, the denial of a
Certificate of Eligibility may result in a de facto debarment, and the risk of an erroneous
deprivation of due process is heightened by the regulatory scheme’s mandatory denial of
applications involving fraud or dishonesty and for those contractors receiving three or more

failing project evaluations, which can span several years. See 810 Mass. Code Regs. 4.04(6),
(8). These allegations, taken together, are sufficient to state a claim that IFCC was denied due
process and that the statutory and regulatory scheme is constitutionally deficient. See, e.g.,
Myers & Myers, Inc., 527 F.2d 1252, 1259 (2d Cir. 1975) (noting that “[d]enial of notice and
hearing before debarment would ‘give rise to serious constitutional issues’” (citation omitted)).
3. Qualified Immunity
The defendants argue that even if IFCC has pleaded a viable due process claim, they are
entitled to qualified immunity from any claim against them in their individual capacities.
Qualified immunity provides that “government officials performing discretionary functions” are
generally “shielded from liability for civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of which a reasonable person would have
known.” Floyd v. Farrell, 765 F.2d 1, 4 (1st Cir. 1985) (citing Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)). The Court must decide “(1) whether the facts alleged or shown by the plaintiff
make out a violation of a constitutional right; and (2) if so, whether the right was ‘clearly
established’ at the time of the defendant’s alleged violation.” Maldonado v. Fontanes, 568 F.3d
263, 269 (1st Cir. 2009) (citing Pearson v. Callahan, 555 U.S. 223, 232, 236 (2009)). To answer
the second question, the Court must evaluate whether the law was “sufficiently clear” such that
“every reasonable official would understand that what he is doing is unlawful.” Eves v. LePage,
927 F.3d 575, 583 (1st Cir. 2019) (citation and internal quotation marks omitted). Courts need
not follow the two-step analysis sequentially. Maldonado, 568 F.3d at 270.
The second prong of the qualified immunity inquiry is decisive here. Although the First
Circuit has stated that debarment based on charges of fraud or dishonesty implicates a

contractor’s liberty interest, see Smith & Wesson, 782 F.2d at 1801, it is unclear whether a de
facto debarment implicates a liberty interest requiring procedural due process protections, see,
e.g., Redondo-Borges, 421 F.3d at 8, n.3 (declining to reach the question of whether a de facto
debarment implicates a liberty interest). Moreover, at the time of the alleged due process
violation (and now), it was not clear that the denial of a Certificate of Eligibility, which is
applied for on a yearly basis, could be considered debarment. See Eves, 927 F.3d at 584
(explaining that there was “no ‘controlling authority’ or even a ‘consensus of cases of persuasive
authority’ that would lead to the conclusion that [the defendant] can be denied immunity”
(citation omitted)). And even if it were, it was not clear that the state-sanctioned process
afforded IFCC, which included a request for reconsideration, appeal to the Attorney General, and

certiorari review, was insufficient. The defendants are therefore entitled to qualified immunity.
Qualified immunity protects public officials from Section 1983 suits for damages. It does
not, however, apply to declaratory or injunctive relief. See Battista v. Clarke, 645 F.3d 449, 452
(1st Cir. 2011). As such, qualified immunity does not require dismissal of Count III, which
seeks declaratory relief related to the constitutionality of the statutory scheme. Count I,
however, requests damages in the defendants’ individual capacities and “such other relief as this
Court deems equitable, just, and appropriate.” [Complaint at 21]. Qualified immunity dictates
dismissal of Count I as it pertains to damages in the defendants’ individual capacities. IFCC
seeks to save Count I by asking the Court to construe Count I’s reference to “such other relief as
this Court deems equitable, just, and appropriate” as seeking prospective, equitable relief against
the defendants in their official capacities. [Dkt. 27 at 11-12; see Complaint at 21]. IFCC,
however, fails to specify the prospective, equitable relief it seeks, and the Court will not interpret
Count I as requested. Instead, the Court will allow IFCC leave to amend Count I so as to add a

specific request for prospective, equitable relief against the defendants.
For all of these reasons, the defendants’ motion to dismiss is granted as to Count I,
though IFCC may amend Count I in its complaint to include a specific request for prospective,
equitable relief, and denied as to Count III.
C. Count II: Equal Protection
IFCC brings a class-of-one equal protection claim against the defendants. [See
Complaint at ¶¶ 134-39]. The equal protection guarantee of the Fourteenth Amendment
prohibits the state from “deny[ing] any person within its jurisdiction the equal protection of the
laws” and has been interpreted to require that “all persons similarly situated should be treated
alike.” Pagán v. Calderón, 448 F.3d 16, 34 (1st Cir. 2006) (citations omitted). The First Circuit

has urged caution in allowing class-of-one equal protection claims based on the discretionary
grant of government benefits. See id. (“Where applicable state law vests the decisionmaker with
discretionary authority to award or withhold a state benefit, a plaintiff who grounds an equal
protection claim on the denial of that benefit faces a steep uphill climb.”); Nestor Colon Medina
& Sucesores, Inc. v. Custodio, 964 F.2d 32, 44-45 (1st Cir. 1992) (“If disgruntled permit
applicants could create constitutional claims merely by alleging that they were treated differently
from a similarly situated applicant, the correctness of virtually any state permit denial would
become subject to litigation in federal court.”). A plaintiff must allege that he has been
“intentionally treated differently from others similarly situated and that there is no rational basis
for the difference in treatment.” Buchanan v. Maine, 469 F.3d 158, 177 (1st Cir. 2006) (citation
omitted). A plaintiff must also plead facts establishing a “gross abuse of power, invidious
discrimination or fundamentally unfair procedures.” Baker v. Coxe, 230 F.3d 470, 474 (1st Cir.
2000) (explaining that “an arbitrary denial of a permit in violation of state law—even in bad

faith—does not rise above the constitutional threshold for equal protection” and there is “a
marked difference between the inevitable misjudgments, wrongheadedness, and mistakes of local
government bureaucracies and the utterly unjustified, malignant, and extreme actions of those
who would be parochial potentates”).
IFCC alleges it was treated differently than similarly situated contractors Brait Builders
Corporation (“Brait”) and Bonomo Tile (“Bonomo”). [Complaint at ¶¶ 117-19]. In particular,
IFCC maintains that Brait was denied a Certificate of Eligibility for one year for falsifying the
value of a project and Bonomo was denied a Certificate of Eligibility for eight months for
submitting a falsified Certificate of Eligibility to awarding authorities to whom it was bidding.
[Id. at ¶¶ 117-18]. Both of these rejections occurred more than a decade before IFCC’s denial.

[Id.]. Even assuming these allegations are sufficient to establish that IFCC was treated
differently than other contractors, IFCC has not pleaded facts indicating that Brait and Bonomo
were similarly situated. IFCC has not alleged that either Brait or Bonomo had any failing project
evaluations attached to the denied application, unlike IFCC, which had up to four, nor does IFCC
claim that the defendants believed Brait or Bonomo had provided materially false information on
applications for consecutive years, as they believed IFCC did. Because both of these factors
played vital roles in the defendants’ decision to deny IFCC’s Certificate of Eligibility, IFCC has
failed to plead facts demonstrating that IFCC, Brait, and Bonomo are similarly situated “to a
high degree.” Rectrix Aerodrome Ctrs., Inc. v. Barstable Mun. Airport Comm’n, 610 F.3d 8, 16
(1st Cir. 2010). Moreover, IFCC agreed to dismiss DCAMM from the suit and has not alleged
that any of the individual defendants were involved in the Brait and Bonomo decisions. As such,
IFCC has not sufficiently pleaded that the individual defendants engaged in disparate treatment
with respect to IFCC, Brait, and Bonomo. See Peñalbert-Rosa v. Fortuño-Burset, 631 F.3d 592,

594-95 (1st Cir. 2011) (“[A]n adequate complaint must include not only a plausible claim but
also a plausible defendant. Yet there is nothing in the complaint beyond raw speculation to
suggest that the named defendants participated—either as perpetrators or accomplices—in the
[alleged injustice].”); Rogan v. Menino, 175 F.3d 75, 77 (1st Cir. 1999) (“It is axiomatic that the
liability of persons sued in their individual capacities under section 1983 must be gauged in
terms of their own actions.”).
For all these reasons, the defendant’s motion is granted as to Count II, and the claim is
dismissed in its entirety.
IV. Conclusion
For the foregoing reasons, the defendants’ motion to dismiss [Dkt. 15] is GRANTED IN

PART and DENIED IN PART. The motion is GRANTED as to Count I, though the plaintiff
may amend Count I of the complaint to include a specific request for prospective, equitable
relief, GRANTED as to Count II, and DENIED as to Count III.
SO ORDERED.
Dated: July 20, 2022 /s/ Angel Kelley
Hon. Angel Kelley
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10200455. Public record. Not legal advice.