Petition for Writ of Certiorari — Griffin Industries, Inc. v. Irvin (No. 07-1063)

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No. 07- OZLTLOS4EER 8 - 9008

IN THE OFFICE OF TIH: CLERK

Supreme Court of the United States

oe a ihe a eel

GRIFFIN INDUSTRIES, INC.,

Petitioner,

TOMMY IRVIN, in his official capacity as Commissioner of

the Georgia Department of Agriculture and in his individual

capacity, LEE MYERS, in her official capacity as

Assistant Commissioner of the Georgia Department of

Agriculture and in her individual capacity, GEORGE

GORNTO, JOSHUA E. KIGHT, DUBOSE PORTER, and

HAROLD REHEIS,

Respondents.

ON PETITION FOR A Writ OF CERTIORARI TO THE

UNITED STATES Court OF APPEALS

FOR THE ELEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

KevIN L. Murruy L. Lin Woop

GRAYDON HEAD Counsel of Record

& RitcHeEY LLP NICOLE JENNINGS WADE

Suite 300 KATHERINE VENTULETT HERNACKI

2400 Chamber Center Dr. POWELL GOLDSTEIN LLP

Ft. Mitchell, KY 41017 One Atlantic Center

(859) 282-8800 Fourteenth Floor

1201 W. Peachtree St., NW

Atlanta, GA 30309-3488

(404) 572-6600

Attorneys for Petitioner

213660 ce

COUNSEL PRESS

(800) 274-332! © «800) 359-6859

QUESTIONS PRESENTED

In this case decided on a motion to dismiss, the

Eleventh Circuit imposed a heightened pleading

standard on the plaintiff in a “class of one” equal

protection claim. This virtually insurmountable standard

was applied based upon the conclusion that the allegedly

unconstitutional conduct involved “multi-dimensional

decisions,” a conclusion derived from selective portions

of documents attached to the complaint. The Eleventh

Circuit further held that only factually similar authority

may provide fair warning of a constitutional violation for

purposes of qualified immunity. The questions presented

are:

I. Whether a federal court should apply a heightened

pleading standard more stringent than the

pleadings requirements of Rule 8(a) of the Federal

Rules of Civil Procedure in a “class of one” equal

protection claim under 42 U.S.C. § 1983 based upon

a factual finding derived from documents attached

to the complaint that the decision in question was

“multi-dimensional.”

II. Whether “fair warning” of a constitutional violation

in a “class of one” equal protection claim can be

established only by prior cases with “materially

similar” facts for purposes of qualified immunity.

STATEMENT PURSUANT TO RULE 29.6

Petitioner, Griffin Industries, Inc., has no parent

corporation and no publicly held company owns 10% or

more of its stock.

TABLE OF CONTENTS

Page

Questions Presented

Statement Pursuant to Rule 29.6

ae Gr Ra 6 dn ceca cceeeceneee eens

Table of Appendices

Table of Cited Authorities

Opinions Below

Jurisdiction

Statutory Provisions Involved

Statement of the Case

A. Introduction

b. Constitutional Background

Factual Background

The District Court Opinion

The Panel Opinion

Contents

Reasons for Granting the Petition .............

The Panel’s Standard For Considering

“Class Of One” Equal Protection Claims

Conflicts With The Decisions Of This

Court And Decisions Of The Eleventh

SR hn Seach eke aaa ece ess

In Olech, This Court Did Not Hold

That Analysis Of The Nature Of The

Governmental Decision In A “Class

Of One” Equal Protection Claim Was

Appropriate In Adjudicating A

Motion To Dismiss. ................

There Is No Precedent For The Novel

Application At The Motion To Dismiss

Stage Of A Heightened Pleading

Standard For “Multi-Dimensional”

Governmental Decisions. ..........

Circuit Courts Are Imposing

Different Standards In “Class Of One”

Equal Protection Cases. ...........

The Panel Ignored Precedent From

This Court Outlining The Pleading

Standard For Cases Involving

Alleged Constitutional Violations. ..

II. The

Contents

The Panel’s Application Of Fed. R.

Civ. P 10(c) Conflicts With Decisions

From Other Circuits. ..............

Griffin Properly Pled A Claim For An

Equal Protection Violation. ........

Eleventh Circuit’s Requirement Of

Factually Similar Authority To Establish

Fair Warning Of An Equal Protection

Violation For Purposes Of Qualified

Immunity Conflicts With The Decisions Of

This Court And The Eleventh Circuit. ..

Conclusion

This Court’s Opinion In Hope

Eliminated The Requirement

That Prior Case Law Must Be

“Substantially Similar” In Order To

Place A Defendant On Notice That

His Behavior Is Unconstitutional. ..

In Contrast To The Panel’s Decision,

The Second Circuit Has Held That

Equal Protection Violations In

“Class Of One” Cases Were “Clearly

Established” By Olech

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Page

TABLE OF APPENDICES

Appendix A — Opinion Of The United States

Court Of Appeals For The Eleventh Circuit

Filed August 21, 2007

Appendix B — Order Of The United States

District Court For The Northern District Of

Georgia, Atlanta Division Filed March 238, 2006

Appendix C — Order Of The United States Court

Of Appeals For The Eleventh Circuit Denying

Petition For Panel Rehearing And Rehearing

En Banc Filed November 13, 2007

Appendix D — Revelant Constitutional Provision

And Statute Involved

Page

vii

TABLE OF CITED AUTHORITIES

Page

Cases

Akins v. Fulton County, Ga.,

420 F.3d 1293 (11th Cir. 2005) ............... 29

Alleghany Pittsburgh Coal Co.

v. County Comm’n of Webster County,

St EE Wa eo kndnesnaduseusee de 3, 15, 28

Anderson v. Creighton,

ee Sr EE thn duu paccneundos nowaes 27

Associated Builders, Inc. v. Ala. Power Co.,

ee ee Oe Ce Oe NEED bcos cnawcenccewaas 24

Ass’n of Cleveland Fire Fighters

v. City of Cleveland,

502 F.3d 545 (6th Cir. 2007) .............. 17-18, 19

Bell Atlantic Corp. v. Twombly,

be Re Ry) rr » Ay

Campbell v. Rainbow City,

434 F.3d 1306 (11th Cir. 2006), cert. denied,

Se a ET Go 6 vubavndweevdeseeees 13

City of Cleburne v. Cleburne Living Ctr.

RE EE, Wadananepeceahésewnndesax 3

Cobb v. Pozz1,

S63 F.3d 89 (24 Cir. 2004) .. 2.2... 2s cc cccce shor

Vill

Cited Authorities

Page

Conley v. Gibson,

ee Us GE CANOE) kh dok vicavienceseueeanean 20

Crawford-El v. Britton,

ee Sia BER CANOE sco vevsndevandansveseue 21

Crowley v. McKinney,

400 F.3d 965 (Tth Cir. 2005) ..............05. 16

DeMuria v. Hawkes,

Saat Fae T04 (G Cle: BOGS) oc dsaavecsasneas 16

Erickson v. Pardus,

RZi Gh. OE. BUS COED 6 ekcekdconnstnaes 19, 20, 22

Executive 100, Inc. v. Martin Co.,

922 F.2d 1536 (11th Cir. 1991), cert. denied,

502 U.S. 810 (1991) ..........0008: 7, 16, 26, 29, 32

Gant v. Wallingford Bd. of Educ.,

69 F.3d 669 (2d Cir. 1995) ................... 23

Gates v. Akins,

S06 U.55. 1GRG GOOGG) onc sever sccnsaenaeisaat 29

(romez v. Toledo,

06 US. Gee bie cseiese eee ae 20, 21

Griffin Indus., Inc. v. Couch,

2006 WL 783354 (N.D. Ga. Mar. 23, 2006) .... 7

Cited Authorities

Page

Griffin Indus., Inc. v. Irvin,

496 F.3d 1189 (11th Cir. 2007) ............ §

Harlow v. Fitzgerald,

PEED scccnecccecesescestceces 26

Hicks v. Jackson County Comm’n,

374 F. Supp. 2d 1084 (N.D. Ala. 2005) ....... 14

Hill v. McDonough,

TED sc ccvocececssccccceeceec 21

Hope v. Pelzer,

SE MEP OEED scuccccccccceseccocses ,1ssim

Jennings v. City of Stillwater,

383 F.3d 1199 (10th Cir. 2004) ............... )

Jicarilla Apache Nation v. Rio Arriba County,

440 F.3d 1202 (10th Cir. 2006) ............... 17

Knight v. Baptist Hosp. of Miami, Inc.,

330 F.3d 1313 (11th Cir. 2003) ............... 13

Leatherman v. Tarrant County Narcotics

Intelligence Coordination Unit,

SE MEE, MU ERO) cocccccecccccccccsccccces 21

McDonald v. Village of Winnetka,

371 F.3d 992 (7th Cir. 2004) ............... | 14

Cited Authorities

Mercado v. City of Orlando,

407 F.3d 1152 (11th Cir. 2005) ...............

Mimics, Inc. v. Village of Angel Fire,

394 F.3d 836 (10th Cir. 2005) ................

Neitzke v. Williams,

Gy Gi, Cn nah cea nkcnnsebeueuns

Northern Ind. Gun & Outdoor Shows, Inc.

v. City of South Bend,

163 F.3d 449 (7th Cir. 1998) .................

Purze v. Village of Winthrop Harbor,

286 F.3d 452 (7th Cir. 2002) .................

Saucier v. Katz,

a ne ae ar

Sioux City Bridge Co. v. Dakota County, Neb.,

es Ui Ge ED veecekenacetansene 3, 14,

Sunday Lake Iron Co. v. Wakefield Tp.,

oie Bt rrr err

TriHealth, Inc. v. Bd. of Comm'rs,

430 F.3d 783 (6th Cir. 2005) .................

Page

Cited Authorities

Page

United States v. Lanier,

ee eae pushes bane 27

Village of Willowbrook v. Olech,

DEE boc bddns cn soccccavkess passim

United States Constitution

U.S. Const. Amend. XIV, § 1 .................. ]

Statute

Oe Mes OF RE CE) ccccccccesvcscccesvna i1,4,9

Miscellaneous

Robert C. Farrell, Classes, Persons, Equal

Protection, and Village of Willowbrook v.

Olech, 78 Wash. L. Rev. 367 (2003) .......... 15

Petitioner Griffin Industries, Inc. respectfully seeks

a writ of certiorari to the United States Court of Appeals

for the Eleventh Circuit in this case.

OPINIONS BELOW

The order of the United States District Court for

the Northern District of Georgia in which it denied

qualified immunity to Respondents George Gornto,

Joshua Kight, Tommy Irvin, Lee Myers, Harold Reheis

& Dubose Porter (collectively “Respondents”), is

unreported, but may be found at 2006 WL 783354 (N.D.

Ga. Mar. 23, 2006), and is reproduced in the Appendix to

this Petition (“App.”) at 43a-89a. The initial decision of

the Eleventh Circuit is reported at 496 F.8d 1189 (11th

Cir. 2007), and is reproduced at App. la-42a. The

Eleventh Circuit denied panel rehearing and rehearing

en banc in an order that is reported in table format at

F.3d (lith Cir. Nov. 13, 2007) (Table No. 06-

12370AA) and is reproduced at App. 90a.

JURISDICTION

The Eleventh Circuit Court of Appeals entered

judgment on August 21, 2007. The Court of Appeals

denied panel rehearing and rehearing en banc on

November 13, 2007. This Court has jurisdiction under

28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

Section One of the Fourteenth Amendment to the

United States Constitution, U.S. Const. Amend. XIV and

42 U.S.C. § 1983 are reproduced at App. 92a.

STATEMENT OF THE CASE

A. Introduction

This case presents a scenario of vital importance to

all citizens and entities subject to governmental

regulation. In direct conflict with this Court’s precedent,

the Eleventh Circuit’s opinion blocks virtually all “class

of one” equal protection claims within the Eleventh

Circuit by requiring a plaintiff to establish the elements

of its case prior to obtaining any discovery. With no

means of vindication, individuals and entities are

essentially stripped of their constitutional rights, at the

will and mercy of government acting free of legal

consequence. This utter decimation of “class of one”

equal protection claims is in direct conflict with this

Court’s opinion in Village of Willowbrook v. Olech, 528

U.S. 562 (2000), and with the case law from other circuits

in which courts have recognized that there is no

heightened pleading standard in such cases.

Likewise, the requirement that a plaintiff must

present factually identical authority to establish “fair

warning” of a constitutional violation renders the

possibility of piercing the shield of qualified immunity

virtually impossible. The requirement of showing

factually similar authority to establish “fair warning” for

purposes of qualified immunity is in direct conflict with

this Court’s opinion in Hope v. Pelzer, 536 U.S. 730 (2002).

These direct conflicts should be addressed by this Court.

B. Constitutional Background

“The Equal Protection Clause of the Fourteenth

Amendment commands that no State shall ‘deny to any

person within its jurisdiction the equal protection of the

laws,’ which is essentially a direction that all persons

similarly situated should be treated alike.” City of Cleburne

v. Cleburne Living Ctr, 473 U.S. 482, 439 (1985). It is not

necessary for a plaintiff asserting a violation of its equal

protection rights to allege that it is amember of a protected

class. A plaintiff may successfully bring a “class of one”

equal protection claim where the plaintiff alleges that it

has been “intentionally treated differently from others

similarly situated and there is no rational basis for the

difference in treatment.” Village of Willowbrook v. Olech,

528 U.S. at 564 (citing Sioux City Bridge Co. v. Dakota

County, Neb., 260 U.S. 441, 445 (1923); Alleghany

Pittsburgh Coal Co. v. Comm’n of Webster County, 488 U.S.

336 (1989)).

In order to overcome a defendant’s claim of qualified

immunity against a claim for violation of equal protection

rights, a plaintiff must first show that a governmental actor

violated a constitutional right. Hope, 536 U.S. at 736. If a

constitutional right has been violated, “the next, sequential

step is to ask whether the right was clearly established.”

Saucier v. Katz, 5383 U.S. 194, 201 (2001). If the plaintiff

demonstrates that the actor violated a clearly established

constitutional right, then qualified immunity from suit does

not apply. Hope, 536 U.S. at 745.

C. Factual Background

Griffin Industries, Inc. (“Griffin”) filed this action

on March 11, 2005, asserting claims under 42 U.S.C.

§ 1983 for violation of its rights to equal protection and

due process of law and for conspiracy to violate those

constitutional rights.

Griffin is engaged in the business of rendering.

Rendering is the process of recycling the inedible parts

of slaughtered animals, such as fat, bone and offal, into

useful products, such as livestock and poultry feed.

Griffin operates two (2) poultry rendering facilities in

the State of Georgia, comprising approximately five (5)

percent of the state’s poultry rendering market. Griffin’s

primary competitor in Georgia is American Proteins, Inc.

(“American Proteins”), which operates three (3) poultry

rendering facilities in the State of Georgia. American

Proteins’ rendering facilities comprise approximately

eighty-five (85) to ninety (90) percent of Georgia’s

poultry rendering market.

Griffin has owned and operated a rendering facility

in Laurens County, Georgia, adjacent to the city of East

Dublin, Georgia (“the Dublin Facility”) since 1981. At

the time Griffin purchased and began to operate the

Dublin Facility, the area surrounding the plant was rural

with few, if any, residences. In the late 1990s, developers,

including Respondent George Gornto and business

associates of Respondent Dubose Porter, purchased land

and erected residential developments near the Dublin

Facility. Respondents Gornto and Porter were both

prominent political figures in the East Dublin area.

At the same time, and at the apparent prompting of

Respondents Gornto and Porter, as well as Defendants

the City of East Dublin and Laurens County, the Dublin

Facility began to receive an increased number of

complaints from surrounding residents regarding odor.’

This also coincided with Griffin’s procurement of

additional contracts with significant poultry producers

in the State of Georgia.

In its complaint, Griffin alleges that certain state and

city governmental officials conspired to harm Griffin’s

business and shut down the Dublin Facility by subjecting

it to disparate and arbitrary environmental and

administrative regulation and permitting practices

without rational basis. The complaint alleges that

Respondents violated, and conspired to violate, Griffin’s

rights to equal protection and due process of law by

undertaking a series of unlawful acts, including:

(1) targeted harassment of Griffin; (2) subjecting Griffin

to regulatory requirements not required of similarly

situated rendering facilities with respect to conditions

imposed in Griffin’s Clean Air Act Title V Air Permit

(“Title V Permit”); and (3) suspending Griffin’s Land

Application System Permit (“LAS Permit”) without

notice or hearing, by use of a meritless “Emergency

Order.”

1. Additional defendants were named in Griffin’s complaint,

including Carol Couch, in her official capacity as Director of the

Georgia Environmental Protection Division of Georgia, the City

of East Dublin, Georgia and Laurens County, Georgia. Claims

against these additional defendants were not the subject of the

appeal considered by the Eleventh Circuit.

The emergency suspension of the LAS Permit was

allegedly based on an isolated test of an on-site well

which purported to show nitrate levels in excess of those

allowed by law. The emergency suspension of the LAS

Permit resulted in a partial shutdown of the Dublin

Facility, causing damages to Griffin in excess of Four

Hundred Thousand Dollars ($400,000.00). The same

standard for the maximum acceptable level of nitrates

in wastewater applies uniformly to all rendering

companies with LAS Permits. However, Respondents did

not seek an emergency suspension of the LAS Permit of

American Proteins’ plant, despite the fact that tests of

the ground water surrounding that facility far exceeded

both legal limits and the readings found at Griffin’s

Dublin Facility. With respect to the emergency

suspension, an Administrative Law Judge (“the ALJ”)

subsequently ruled that: (1) there was no basis for the

suspension; and (2) the Environmental Protection

Division for the State of Georgia (““EPD”) had not

imposed similar penalties on similarly situated rendering

plants.

Griffin alleged that Respondents subjected it to

undue and improper regulatory requirements by

imposing arbitrary and capricious requirements and

sanctions upon its Dublin Facility without rational basis.

Griffin alleged that it had been singled out by

Respondents and that other similarly situated rendering

facilities operating in Georgia, including its chief

competitor, American Proteins, had not been subjected

to similar treatment despite the fact that environmental

conditions at their facilities were far worse than those

at the Griffin facility.

D. The District Court Opinion

The district court granted in part and denied in part

the Respondents’ various motions to dismiss, for

judgment on the pleadings and/or for transfer. Griffin

Indus., Inc. v. Couch, 2006 WL 783354 (N.D. Ga. Mar.

23, 2006). The district court’s opinion is set out in full at

App. 48a-89a.

Of primary importance to this petition, the trial court

denied the individual Respondents’ claims of qualified

immunity, holding that Griffin had asserted a valid “class

of one” equal protection claim and that Respondents had

fair warning that their acts were unconstitutional for

purposes of denying qualified immunity. The district

court accepted the allegations of Griffin’s complaint as

true for purposes of the Respondents’ 12(b)(6) motions

to dismiss. Citing this Court’s opinion in Village of

Willowbrook v. Olech, the trial court held that Griffin

had sufficiently alleged that it had been singled out and

treated disparately than other similarly situated

rendering facilities in Georgia, including its primary

competitor, American Proteins. The district court further

held that this Court’s opinion in Olech and the Eleventh

Circuit’s opinion in Executive 100, Inc. v. Martin Co.,

922 F.2d 1536 (11th Cir. 1991), cert. denied, 502 U.S. 810

(1991), both of which concerned equal protection

violations, provided Respondents with “fair warning”

that the conduct alleged by Griffin was unlawful. Thus,

the district court denied the Respondents’ claim of

qualified immunity.

E. The Panel Opinion

The Eleventh Circuit Panel (“the Panel’) reversed in

part the district court’s order and remanded for further

proceedings. Griffin Indus., Inc. v. Irvin, 496 F.3d 1189

(11th Cir. 2007), App. 1la-42a.

The Panel held that Griffin failed to state a “class of

one” equal protection claim based on the Panel’s

determination that Griffin failed to establish that it was

“similarly situated to its competitor, American Proteins.”

Specifically, the Panel held that statements in the ALJ order

attached to the complaint established that American

Proteins was not similarly situated to Griffin pursuant to a

novel and rigorous test applied by the Panel because it

urged that this case involved “multi-dimensional decisions.”

The Panel also held that Griffin had failed to show that the

Respondents’ actions lacked a rational basis based upon

its determination that the exhibits to the complaint

“suggest” a possible rational basis for Respondents’ actions.

The Panel further held that Griffin had not established

that Respondents had “fair warning” that their actions were

unconstitutional because Griffin had not provided

precedent to show a violation of clearly established law that

involved a similar factual situation.

Based upon its determination that the allegedly

unconstitutional decision was “multi-dimensional,” the

Panel did not accept the allegations of Griffin’s complaint

as true for purposes of the Respondents’ motions to dismiss,

but instead held Griffin to the higher standard of having to

prove the elements of its claims and simultaneously refute

any potential defenses against those claims ~ all without

the benefit of any discovery.

REASONS FOR GRANTING THE PETITION

Griffin’s petition provides this Court with an

opportunity to preserve the rights of individuals and

entities to pursue “class of one” equal protection claims in

keeping with the holdings and principles enunciated by this

Court. The lower courts have wrestled with this Court’s

opinion in Village of Willowbrook v. Olech since it was issued

in 2000, with 3,989 opinions citing this three (3) page

decision.” The Panel’s decision, in which it adopted a novel

test for analyzing and deciding “class of one” equal

protection claims under 42 U.S.C. § 1983 at the motion to

dismiss stage, personifies the confusion that characterizes

the post-Olech landscape. The Panel’s decision radically

departs from Supreme Court precedent, as well as the case

law of other circuits and the Eleventh Circuit itself, by

imposing a heightened pleading standard for “class of one”

claims under certain circumstances. The Panel’s decision

virtually extinguishes all “class of one” cases in the

Eleventh Circuit and creates an opportunity for other

circuits to block such claims elsewhere. Review should be

granted to correct this grave consequence. This case

presents this Court with an opportunity to revisit the Olech

decision, preserve its integrity and define the contours of

the “class of one” equal protection claim.

2. See, e.g., Jennings v. City of Stillwater, 383 F.3d 1199,

1210-11 (10th Cir. 2004) (noting that “[iJn the wake of Olech, the

lower courts have struggled to define the contours of class-of-

one cases,” and that commentators have similarly struggled to

define the parameters of Olech) (internal citations omitted).

This petition also presents the important question of

whether a plaintiff must present factually similar authority

in order to demonstrate that a constitutional right was

clearly established sufficient to strip governmental actors

of immunity. Griffin submits that the Eleventh Circuit’s

opinion directly conflicts with this Court’s decision in Hope

v. Pelzer, in which this Court rejected prior case law holding

that before a precedent could give a defendant “fair

warning,” such precedent had to have “materially similar”

facts to the decision at issue.

I. THE PANELS STANDARD FOR CONSIDERING

“CLASS OF ONE” EQUAL PROTECTION

CLAIMS CONFLICTS WITH THE DECISIONS

OF THIS COURT AND DECISIONS OF THE

ELEVENTH CIRCUIT.

The Panel’s novel “multi-dimensional decisions”

standard for addressing “class of one” equal protection

cases directly conflicts with decisions of this Court, the

Eleventh Circuit and other circuits. The Panel decision

essentially writes Olech out of the law by ending virtually

all plaintiffs’ ability to pursue “class of one” cases in the

Eleventh Circuit. The novel approach marks a radical

departure from the pleadings standard set forth by this

Court and the Eleventh Circuit and sets a dangerous

precedent. This Court should grant certiorari in order

to address this important conflict.

A. In Olech, This Court Did Not Hold That

Analysis Of The Nature Of The Governmental

Decision In A “Class Of One” Equal

Protection Claim Was Appropriate In

Adjudicating A Motion To Dismiss.

This Court held in Olech that a plaintiff states a claim

for a constitutional violation for a “class of one” where

she alleges that she has been treated differently from

others similarly situated and that there is no rational

basis for the difference in treatment. Village of

Willowbrook v. Olech, 528 U.S. 562, 564-65 (2000).

The Court’s opinion in Olech does not contain any

analysis of the nature of the governmental decision that

was being made in that case or the factors that were

being considered by the government actor.

The plaintiff in Olech stated a claim by alleging in

her amended complaint that the defendant demanded a

larger easement from her than it did from “similarly

situated property owners” and that the demand “was

‘irrational and wholly arbitrary.’” Jd. The plaintiff’s

amended complaint in that case alleged that the

defendant Village of Willowbrook demanded a 33-foot

easement as a condition to connecting her property to

the municipal water supply when the Village had

demanded only a 15-foot easement from other similarly

situated property owners. /d. at 565. The plaintiff’s

amended complaint further alleged that the Village’s

demand was irrational and wholly arbitrary. Jd.

The defendant Village argued that the plaintiff failed

to state a claim because certain allegations in the

plaintiff’s amended complaint demonstrated a rational

basis for the demand for a larger easement in conjunction

with connecting the plaintiff’s residence to the municipal

water supply. Specifically, the amended complaint alleged

that the purported reason for the larger easement was

that it was necessary in connection with proposed

improvement of the infrastructure of the road. See

Petition for Writ of Certiorari To the United States Court

of Appeals for the Seventh Circuit filed by Petitioner

Village of Willowbrook, 1999 WL 33609285, at *18

(Feb. 10, 1999).

This Court accepted as true for the purpose of the

motion to dismiss Olech’s allegations that there were

similarly situated property owners and that there was

no rational basis for the Village’s disparate demand upon

her. This Court did not address the factors that would

be considered by the Village in making the decision

regarding the necessary size of the easement. Although

the plaintiff had pled in her complaint the Village’s

purported rational basis for drawing a distinction

between her and other property owners, this Court

refused to conduct a fact-finding inquiry at the motion

to dismiss stage to determine whether the plaintiff was

actually similarly situated or whether there was actually

a rational basis for the decision in question. It was

sufficient that plaintiff had pled both of these elements.

In the case before this Court, the Panel summarily

decided that the decision at issue in Olech was “one-

dimensional” because the only issue was the size of the

easement necessary to connect to the water supply.

However, Olech’s own amended complaint demonstrated

that at least one potentially differentiating factor -

specifically the need for more space to improve

infrastructure — was purportedly being considered as

part of the decision on the size of the easement necessary

to connect to the water supply. The Panel ignored the

plain language in Olech and instead applied a heightened

pleading standard based on its determination that the

alleged unconstitutional decisions at issue were “multi-

dimensional” in nature. Griffin submits, however, that

the application of the “multi-dimensional” analysis is a

red herring. The Panel’s new standard is simply another

way to employ the summary judgment standard at the

motion to dismiss stage, and it is therefore contrary to

this Court’s ruling in Olech.

B. There Is No Precedent For The Novel

Application At The Motion To Dismiss Stage Of

A Heightened Pleading Standard For “Multi-

Dimensional” Governmental Decisions.

The Panel cited no authority to support its position

that it is acceptable to consider the various factors that

might go into a governmental decision at the motion to

dismiss stage. Instead, the only authorities cited by the

Panel as precedent for this new approach were cases

addressing summary judgment or post-trial issues. In

these summary judgment and post-trial cases, the facts

had been sufficiently developed to determine whether

parties were similarly situated or whether government

actors had acted without rational basis. See Campbell v.

Rainbow City, 434 F.3d 1306, 1314 (11th Cir. 2006), cert.

denied, 127 S. Ct. 559 (2006) (“similarly situated”

analysis conducted post-jury verdict); Knight v. Baptist

Hosp. of Miami, Inc., 330 F.3d 1313, 1316-19 (11th Cir.

2003) (summary judgment); Purze v. Village of Winthrop

Harbor, 286 F.3d 452 (7th Cir. 2002) (summary

judgment); McDonald v. Village of Winnetka, 371 F.3d

992, 1002 (7th Cir. 2004) (summary judgment); Hicks v.

Jackson County Comm’n, 374 F. Supp. 2d 1084, 1096

(N.D. Ala. 2005) (summary judgment).

The Panel’s “multi-dimensional decisions” standard

conflicts with the analysis in Olech as well as the

authority upon which Olech rested. In Sioux City Bridge

Co. v. Dakota County, Neb., 260 U.S. 441 (1923), for

example, this Court allowed a claim for an equal

protection violation to proceed at its initial stage, where

the plaintiff plainly alleged that it had been treated

differently than other property owners. /d. at 447. Far

from involving a simple, one-dimensional set of decisions,

Sioux City involved the question of whether both state

and county authorities properly taxed a portion of a

bridge that spanned two states. Jd. at 442. The bridge in

Sioux City not only spanned two states, but also was

leased by two different railroads, was too light for

modern traffic and had been improved. /d. Despite the

unique features of the subject bridge, this Court held

that the allegation that the bridge was subject to a higher

tax rate than other properties (both similar and

dissimilar) in the area stated a threshold claim of

an equal protection violation. /d. at 446-47. Most

importantly, this Court assumed discrimination, but left

for another day the question of whether discrimination

had actually occurred:

It is therefore just that upon reversal we

should remand the case for a further hearing

upon the issue of discrimination, inviting

attention to the well-established rule in the

decisions of this court, cited above, that mere

errors of judgment do not support a claim of

discrimination, but that there must be

something more — something which in effect

amounts to an intentional violation of the

essential principle of practical uniformity.

Id. at 447 (citing Sunday Lake Iron Co. v. Wakefield Tp.,

247 U.S. 350, 353 (1918)).

Despite the fact that the Scowx City case involved

multiple decisions based on multiple factors, this Court

applied the proper analysis in assuming the plaintiff’s

allegations as true and leaving for another day the

determination of actual discrimination. The Panel,

however, referred to this Court’s opinion in Stoux City

and its prior decision in Allegheny Pittsburgh Coal Co.

v. County Comm’n of Webster County, 488 U.S. 336

(1989), as being “ ‘ as far removed from the pantheon of

influential equal protection cases as one could imagine.’ ”

App. at 22a (quoting Robert C. Farrell, Classes, Persons,

Equal Protection, and Village of Willowbrook v.

Olech, 78 Wash. L. Rev. 367, 394 (2003)). The Panel

distinguished the Sioux City opinion as involving a

“single answer to a single question . . . the market value

of the property.” App. at 25a. However, it is clear that,

despite the apparent multiplicity of factors at issue in

the Sioux City case, this Court accepted the plaintiff’s

allegations of unequal treatment and delayed summary

determination until after discovery.

Prior to the Panel’s decision in this case, another

panel of the Eleventh Circuit held that “class of one”

cases may proceed past the Rule 12(b)(6) stage on the

basis of “general” allegations. Exec. 100, Inc. v. Martin

County, 922 F.2d 1536, 1541 (11th Cir. 1991), cert. denied,

502 U.S. 810 (1991). In Exec. 100, the Eleventh Circuit

reversed a lower court dismissal of a “class of one” claim,

holding that “the plaintiffs state an as applied equal

protection claim” where “[t]he plaintiffs allege that the

defendants treated them differently from other similarly

situated landowners ... without any reasonable basis.”

Id. at 1541. The Eleventh Circuit accepted the allegations

of plaintiffs as true, as it was required to do, and did not

engage in an analysis of the nature of the decision being

challenged in that case. Jd. at 1539.

Other circuits have similarly held that a “class of

one” equal protection claim survives a motion to dismiss

on the pleaded facts. See Crowley v. McKinney, 400 F.3d

965, 971-72 (7th Cir. 2005) (dismissal of “class of one”

claim at Rule 12(b)(6) stage was premature when general

allegations of similarity and impermissible motive were

made in complaint); DeMuria v. Hawkes, 328 F.3d 704,

707 (2d Cir. 2003) (general allegations sufficient to pass

Rule 12(b)(6) analysis in consideration of Olech). At least

two circuits have specifically recognized the distinction

between the pleading requirements for a motion to

dismiss and for a motion for summary judgment with

respect to the “similarly situated” prong of a “class of

one” claim. See TriHealth, Inc. v. Bd. of Comm'rs, 430

F.3d 788, 788 (6th Cir. 2005) (distinguishing a case

reversing the dismissal of a “class of one” claim because

“in reviewing the district court’s award of summary

judgment, we are not bound by the ‘decidedly liberal’

standard of review applied to a complaint challenged

under Rule 12(b)(6)”). The Tenth Circuit held that:

Because the Supreme Court considered Olech

on a motion to dismiss, it had nothing more

than an allegation that the plaintiff was

similarly situated to others. Since then,

appellate courts have examined Olech claims at

the summary judgment stage, where the factual

record is more thoroughly developed. In such

cases, courts have insisted that plaintiffs

demonstrate similarity in all material respects.

Jicarilla Apache Nation v. Rio Arriba County, 440 F.3d

1202, 1212 (10th Cir. 2006) (emphasis added).

C. Circuit Courts Are Imposing Different

Standards In “Class Of One” Equal Protection

Cases.

As discussed supra, several circuit opinions have

recognized that Olech does not provide for a heightened

pleading standard in “class of one” claims. However, one

recent appellate decision raises the question of whether

other circuits will also impose requirements in “class of

one” claims not permitted by this Court pursuant to its

decision in Olech.

The Sixth Circuit recently applied a constrained

analysis similar to the Panel’s decision when it pierced the

pleadings to find that plaintiffs had failed to state a “class

of one” claim where it assumed that defendants had not

been treated differently than others and that a rational

basis existed for the complained of action. Ass’n of

Cleveland Fire Fighters v. City of Cleveland, 502 F.3d 545,

550 (6th Cir. 2007). The dissent in Cleveland Fire Fighters

highlighted the very issue presented by this petition by

noting the Sixth Circuit panel’s failure to adhere to Olech:

In my view, however, the Olech decision should

carry far more weight in our decision today than

the majority acknowledges. ...

... Like Olech’s complaint, the complaint here

can “fairly be construed” as alleging that the

City of Cleveland intentionally denied residency

exemptions to [plaintiffs] though the City

granted exemptions to other similarly situated

employees. ... These allegations are sufficient

to state a claim for relief under Olech.

Id. at 554 (Moore, C.J., concurring in part and dissenting

in part).

The Panel’s decision, as well as the Sixth Circuit’s

Cleveland Fire Fighters decision, provides support for

other circuits to ignore the plain language in Olech and

instead impose such stringent requirements upon

plaintiffs that it will be virtually impossible to assert a

claim for violation of equal protection in a “class of one”

case. This Court should grant review in this case to

address this issue of significant importance.

D. The Panel Ignored Precedent From This

Court Outlining The Pleading Standard For

Cases Involving Alleged Constitutional

Violations.

The Panel decision in this case, like the Cleveland

Fire Fighters decision discussed supra, conflicts with

the notice pleading standards applicable to a Rule 12

motion to dismiss as enunciated by this Court. Indeed,

this Court’s decisions have been clear that “Rule 12(b)(6)

does not countenance ... dismissals based on a judge’s

disbelief of a complaint’s factual allegations.” Neztzke v.

Williams, 490 U.S. 319, 327 (1989). In Bell Atlantic Corp.

v. Twombly, 127 S. Ct. 1955 (2007), this Court held that

the pleading specificity standard “does not impose a

probability requirement at the pleading stage” but

instead “simply calls for enough fact to raise a reasonable

expectation that discovery will reveal evidence”

supporting the claim. Jd. at 1959. Thus, it is sufficient if

the complaint “identifies facts that are suggestive

enough to render |the claim] plausible.” /d. at 1965.

This Court most recently addressed the pleadings

standard in the constitutional context in Frickson v.

Pardus, 1278. Ct. 2197 (2007) (per curiam). In Erickson,

a prisoner brought a Section 1983 claim against prison

medical officials, alleging deliberate indifference to his

medical needs in violation of his Eighth Amendment

rights. Jd. at 2198. The Tenth Circuit affirmed the district

court’s dismissal in Erickson based on its conclusion that

the plaintiff had made “only conclusory allegations to

the effect that he has suffered a cognizable independent

harm....” Jd. at 2199. This Court, however, found that

the plaintiff had sufficiently pleaded harm and that

“it was error for the Court of Appeals to conclude that

the allegations in question ... were too conclusory to

establish for pleading purposes that petitioner had

suffered ‘a cognizable independent harm’... .” Jd. at

2200. This Court further held:

Federal Rule of Civil Procedure 8(a)(2)

requires only “a short and plain statement of

the claim showing that the pleader is entitled

to relief.” Specific facts are not necessary; the

statement need only “ ‘give the defendant fair

notice of what the. . . claim is and the grounds

upon which it rests.”” Bell Atlantic Corp. v.

Twombly, supra, quoting Conley v. Gibson,

255 U.S. 41, 47 (1957). In addition, when ruling

on a defendant’s motion to dismiss, a judge

must accept as true all factual allegations

contained in the complaint.

Id.

Moreover, this Court has repeatedly held that

heightened pleading and evidentiary standards are

inappropriate in Section 1983 cases. In Gomez v. Toledo,

446 U.S. 635 (1980), this Court addressed whether, in a

Section 1983 case against a public official who may be

entitled to immunity, a plaintiff must plead allegations

in anticipation of the affirmative defense of qualified

immunity. Jd. at 635-36. This Court first reaffirmed that:

[t]wo and only two allegations are required in

order to state a cause of action under [Section

1983]. First, the plaintiff must allege that some

person has deprived him of a federal right.

Second, he must allege that the person who

has deprived him of that right acted under

color of state or territorial law.

Id. at 640. The Court in Gomez then refused to force a

plaintiff to adhere to a heightened pleadings standard

to address the anticipated defense of qualified immunity.

Id. at 641.

In Crawford-El v. Britton, 523 U.S. 574 (1998), this

Court considered whether federal courts should apply a

heightened evidentiary standard in Section 1983

unconstitutional motive cases. Jd. at 577. The Court

refused to impose such a standard and noted that “we

have consistently declined similar invitations to revise

established rules that are separate from the qualified

immunity defense.” Jd. at 595. The Court further

explained that “questions regarding pleading, discovery,

and summary judgment are most frequently and most

effectively resolved either by the rulemaking process or

the legislative process.” Jd. See also Leatherman v.

Tarrant County Narcotics Intelligence Coordination

Unit, 507 U.S. 163, 168 (1993) (refusing to allow

heightened pleading standard in Section 1983 civil rights

action against municipality); H7ll v. McDonough, 547

U.S. 573 (2006) (noting in connection with a Section

1983 case that “[iJmposition of a heightened pleading

standard is quite a different matter. Specific pleading

requirements are mandated by the Federal Rules of Civil

Procedure, and not, as a general rule, through case-by-

case determinations of the federal courts.”).

The Panel opinion reversed the inquiry mandated

by this Court in Erickson and its predecessors and held

that Griffin’s claim should be dismissed because “[t]he

complaint is filled with facts that suggest a rational basis

for the defendant’s [sic] actions.” The novel test applied

by the Panel violated well-established precedent by

construing the allegations against Griffin and by

imposing upon Griffin a heightened pleading standard.

The Panel unjustifiably assumed that because certain

allegations were not supported, Griffin would not be able

to obtain evidence to support those facts.

E. The Panel’s Application Of Fed. R. Civ. P. 10(¢)

Conflicts With Decisions From Other Circuits.

This Court has never interpreted Rule 10(c) to

determine the precise treatment to be given to

attachments in considering a motion to dismiss, but the

appellate courts have issued various contradictory

rulings on this issue.

The Eleventh Circuit has held that all facts contained

in the attachments to the complaint must be considered

to be true, and applying that standard, the Panel

determined that Griffin had “pled too much.” Most

prominently, the Panel construed statements in the ALJ

order as contradicting allegations in Griffin’s complaint.

Moreover, the Panel did not merely consider these facts

to be true — the Panel considered the facts contained in

the attachments to be the only evidence that might ever

be adduced on certain points.

Other circuits have held clearly that Rule 10(c) does

not require a plaintiff to adopt as true all facts in

attachments to a complaint. See, e.g., Gant v. Wallingford

Bd. of Educ., 69 F.3d 669, 674-75 (2d Cir. 1995) (holding

that it “is not a proper reading of the rule” to contend

that “Rule 10(c) requires a plaintiff to adopt as true the

full contents of any document attached to a complaint or

adopted by reference”); Northern Ind. Gun & Outdoor

Shows, Inc. v. City of South Bend, 163 F.3d 449, 455-56

(7th Cir. 1998) (“When the exhibit, however, is not the

subject of the claim, Rule 10(c) does not require a

plaintiff to adopt every word within the exhibits as true

for purposes of pleading simply because the documents

were attached to the complaint to support an alleged

fact.”).

The reasoning of the Second and Seventh Circuits

is more sound than that of the Eleventh Circuit on this

point. [It would be unfair to force a plaintiff to adopt as

true each and every fact contained in any attachment to

a complaint. In many instances, evidence developed

during discovery could disprove facts contained in an

attachment. For example, in a defamation case, the

plaintiff plainly disavows certain statements contained

in attached articles which are alleged to be defamatory.

Certainly just because a statement is made in an

attachment does not mean that the fact has been

conclusively established and cannot be disproved by

other evidence. Moreover, a plaintiff should not be

punished - as Griffin was in this case — because it

attached documents in an attempt to support its factual

allegations in the complaint.

Regardless of the interpretation of Rule 10(c), the

statements in the ALJ order support, and do not

contradict, Griffin’s allegations. Therefore, the order

cannot possibly be construed to “reveal facts which

foreclose recovery as a matter of law.” See Associated

Builders, Inc. v. Ala. Power Co., 505 F.2d 97, 100 (5th

Cir. 1974).

F. Griffin Properly Pled A Claim For An Equal

Protection Violation.

In this case, the Panel improperly decided at the

pleading stage, contrary to direct allegations in the

complaint, that the government decisions at issue in this

case were “multi-dimensional.” The facts as alleged,

however, show that the basis for Griffin’s discriminatory

treatment claim involved a single answer to the single

question of whether conditions at Griffin’s Dublin

Facility posed an emergency requiring action to shut

down the plant, without warning, by suspending the LAS

Permit. The same standard for the maximum acceptable

level of nitrates in wastewater applies uniformly to all

rendering companies with LAS Permits. Yet while the

EPD suspended Griffin’s LAS Permit based on isolated

readings of water in one on-site test well, the same action

was not taken with respect to Griffin’s competitor whose

water readings far exceeded the legal limits for an

extended duration of time. Griffin has alleged that there

was no rational basis for treating the two competitors

differently in determining whether the purportedly high

levels of nitrates posed a threat to human health.

These specific allegations, along with the general

allegations that Griffin and American Proteins were

similarly situated, easily satisfy the pleading standards

set forth in Olech and Twombly. The Panel decision

radically departed from this Court’s holdings and from

the interpretation of Olech by other courts to impose a

summary judgment standard on Griffin’s complaint in

ruling on a motion to dismiss.

Nothing in the ALJ’s ruling directly contradicts and

forecloses proof of the allegations in the complaint.

Although certain statements in certain of the

attachments to Griffin’s complaint could arguably

support Respondents’ argument that Griffin and its

competitors were not similarly situated, those

statements are not the only possible evidence on this

point. To the contrary, other statements in the same

attachments support Griffin’s allegations that Griffin and

its competitors are similarly situated. Moreover, Griffin

can introduce substantial evidence — and would have done

so prior to the summary judgment stage — supporting

its contention that it is similarly situated with its

competitors. The Panel improperly held not only that

all statements in the attachments were true but also that

certain statements constituted conclusive evidence on

the point in question.

The Panel’s novel “multi-dimensional decisions” test

requires district courts to make a factual determination

at the notice pleading stage regarding whether a decision

is multi-dimensional without having the benefit of the

factual record developed through discovery. This new

standard runs the significant risk that the court’s

assumption — as it was here — will be incorrect. This novel

test conflicts with the requirements set forth by the

Court in Olech for pleading a “class of one” claim and

conflicts with decisions rendered by the Eleventh Circuit

and other circuits.

. THE ELEVENTH CIRCUIT’S REQUIREMENT

OF FACTUALLY SIMILAR AUTHORITY TO

ESTABLISH FAIR WARNING OF AN EQUAL

PROTECTION VIOLATION FOR PURPOSES

OF QUALIFIED IMMUNITY CONFLICTS

WITH THE DECISIONS OF THIS COURT AND

THE ELEVENTH CIRCUIT.

The Panel improperly held that Olech and Executive

100 did not give Respondents “fair warning” that their

actions were unconstitutional, because the Panel

required the cases to be very similar factually in violation

of the Supreme Court’s holding in Hope v. Pelzer, 536

U.S. 730 (2002).

A. This Court’s Opinion In Hope Eliminated The

Requirement That Prior Case Law Must Be

“Substantially Similar” In Order To Place A

Defendant On Notice That His Behavior Is

Unconstitutional.

The qualified immunity defense requires courts to

enter judgment in favor of a government employee

unless the employee’s conduct violates “clearly

established statutory or constitutional rights of which a

reasonable person would have known.” Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). In Saucier v. Katz,

533 U.S. 194, 200 (2001), this Court held that lower

courts’ “first inquiry must be whether a constitutional

right would have been violated on the facts alleged.” Only

if there is a constitutional violation can lower courts

proceed to consider whether the official is entitled to

qualified immunity. /d. at 201. For a right to be clearly

established, “[t]he contours of the right must be

sufficiently clear that a reasonable official would

understand that what he is doing violates that right.”

Anderson v. Creighton, 483 U.S. 635, 640 (1987). In light

of pre-existing law, “the unlawfulness must be apparent.”

ld. at 640.

In Hope v. Pelzer, 536 U.S. 730 (2002), this Court

rejected prior case law requiring “materially similar”

authority in order to give a defendant “fair warning” that

his conduct was violative of the Constitution. Hope

involved the issue of whether punishment in the form of

tying a prisoner to a hitching post violated the Eighth

Amendment’s prohibition against cruel and unusual

punishment. /d. at 733. Finding no authority directly on

point to provide “fair warning” under a materially similar

set of facts, this Court opined that

general statements of the law are not

inherently incapable of giving fair and clear

warning, and in other instances a general

constitutional rule already identified in the

decisional law may apply with obvious clarity

to the specific conduct in question, even

though “the very action in question has [not]

previously been held unlawful.”

Id. at 741 (quoting Anderson, 483 U.S. at 640). Citing

this Court’s previous opinion in United States v. Lanier,

520 U.S. 259 (1997), the Court held that “officials can

still be on notice that their conduct violates established

law even in novel factual circumstances. Indeed, we

expressly rejected a requirement that previous cases be

‘fundamentally similar.’” Hope, 536 U.S. at 741.

Therefore, “the salient question” is “whether the state

of the law” at the time of violation “gave respondents

fair warning that their alleged treatment ... was

unconstitutional.” /d.

In Hope, this Court found that the use of a hitching

post “unnecessarily and wantonly inflicted pain,” and

thus constituted a clear violation of the Eighth

Amendment. /d. Indeed, this Court found the violation

to be “so obvious” that the Court’s own cases, albeit not

factually similar, gave the respondents fair warning that

their conduct was unconstitutional. /d.

This Court has recognized for at least 85 years that

an equal protection violation occurs when government

actors treat a plaintiff differently than those similarly

situated without rational basis. See Sioux City Bridge

Co. v. Dakota County, Neb., 260 U.S. at 445. This fact

was recognized and reaffirmed in Olech when this Court

held specifically:

Our cases have recognized successful equal

protection claims brought by a “class of one”

where the plaintiff alleges that she has been

intentionally treated differently from others

similarly situated and there is no rational basis

for the difference in treatment.

Olech, 528 U.S. at 564 (citing Sioux City, 260 U.S. at 441;

Allegheny Pittsburgh Coal Co., 488 U.S. at 336).

Prior to the Panel’s decision in this case, the

Eleventh Circuit explicitly recognized the “class of one”

equal protection claim where an individual was

intentionally treated differently than others similarly

situated. In Exec. 100, Inc. v. Martin County, discussed

supra, the Eleventh Circuit reversed a lower court

dismissal of a “class of one” claim, holding that “the

plaintiffs state an as applied equal protection claim”

where “[tjhe plaintiffs allege that the defendants

treated them differently from other similarly situated

landowners. . . without any reasonable basis.” H'xec. 100,

922 F.2d at 1541.

The Eleventh Circuit has previously acknowl=dged

that after this Court’s decision in Hope, it is not reqaired

to search for factually similar authority in order to find

“fair warning” for purposes of qualified immunity.

See Akins v. Fulton County, Ga., 420 F.3d 12938, 1307

(llth Cir. 2005) (“Post-Hope, as instructed by the

Supreme Court, we are compelled to engage in a

different analysis.”), cert. denied sub nom., Gates v.

Akins, 546 U.S. 1095 (2006); Mercado v. City of Orlando,

407 F.3d 1152, 115 (11th Cir. 2005) (“The ‘reasoning,

though not the holding’ of prior cases can also ‘send the

same message to reasonable officers’ in novel factual

situations.”) (quoting Hope, 536 U.S. at 743).

Contrary to the rulings of this Court, as well as its

own precedent, the Panel in this case effectively used a

pre-Hope analysis when it held that existing “class of

one” decisions could never provide a “broad principle of

law” placing government actors on notice that they

cannot discriminate against a plaintiff because the

“precise facts of a case are critical in evaluating a ‘class

of one’ claim.” App. at 39a. The Panel’s decision indicates

that because its new analysis for “class of one” cases is

so fact-intensive, only cases with “materially similar

facts” can provide government actors “fair warning” that

their actions are unconstitutional. This holding is in

direct conflict with the mandate in Hope that a case does

not need to address “materially similar facts” to give a

public official “fair warning” that his or her conduct is

unconstitutional.

B. In Contrast To The Panel’s Decision, The

Second Circuit Has Held That Equal

Protection Violations In “Class Of One” Cases

Were “Clearly Established” By Olech.

In contrast with the Panel decision, the Second

Circuit has held that the Olech opinion made the “class

of one” equal protection violation “well established” for

purposes of qualified immunity in a number of different

factual circumstances.

In Cobb v. Pozzi, 363 F.3d 89 (2d Cir. 2004), the

Second Circuit held that Olech-based equal protection

principles were “clearly established” for purposes of

qualified immunity. /d. at 111. The Pozz2 court examined

whether corrections department officials alleged to have

retaliated against the plaintiff corrections officers

because of their association with the union were entitled

to qualified immunity. Jd. at 92-98, 111. The Pozzi

defendants argued that they were entitled to qualified

immunity based on the argument that “the equal

protection principles articulated in Olech were not

clearly established law at the time of the alleged

unconstitutional conduct at issue,” and that they “treated

the [plaintiffs] in a manner that was objectively

reasonable.” /d. at 111. Despite the fact that the conduct

at issue pre-dated Olech, the Second Circuit nevertheless

found that the “class of one” equal protection claim was

simply reaffirmed by Olech:

We reject these arguments. First, the law

pertaining to “class of one” equal protection

claims was clearly established in 1999. As we

recently noted ... the Supreme Court did not

depart from well settled equal protection

principles in Olech. Rather, the Olech Court

merely “reaffirmed” that “equal protection

claims can be brought by a class of one.” As

the Supreme Court underscored in Olech, the

Court has long “recognized successful equal

protection claims brought by a ‘class of one’

where the plaintiff alleges that she has been

intentionally treated differently from others

similarly situated and that there is no rational

basis for the difference in treatment.”

Pozzi, 363 F.3d at 111 (citing Olech, 528 U.S. at 564

(“citing cases stretching back to 1923”)).

The Pozzi court denied qualified immunity based on

the well-established principles reaffirmed in Olech,

despite the fact that Olech concerned an entirely

different and distinguishable factual scenario. /d. at 111-

12. See also Mimics, Inc. v. Village of Angel Fire, 394

F.3d 836, 849 n.8 (10th Cir. 2005) (finding equal protection

violation where plaintiff alleged that building inspector

and village officials “singled [plaintiff’s business] out”

and “treated [plaintiff] differently” than other similarly

situated business, but granting qualified immunity only

because conduct pre-dated Olech: “In Village of

Willowbrook v. Olech, the Supreme Court definitively

established the availability of an equal protection claim

brought by a “class of one.”).

Under this Court’s authority, the authority of the

Eleventh Circuit and other circuit courts, Respondents

had “fair warning” that the Constitution is violated when

a public official “intentionally treat{s] [the plaintiff]

differently from others similarly situated and [] there is

no rational basis for the difference in treatment.” Olech,

528 U.S. at 564. Thus, the decisions in Olech and

Executive 100 gave Respondents “fair warning” that it

is unconstitutional to apply the same regulations

differently to similarly situated entities.

CONCLUSION

The petition for writ of certiorari should be granted.

Respectfully submitted,

L. Lin Woop

Counsel of Record

NICOLE JENNINGS WADE

KATHERINE VENTULETT HERNACKI

POWELL GOLDSTEIN LLP

One Atlantic Center

Fourteenth Floor

1201 W. Peachtree St., NW

Atlanta, GA 30309-3488

(404) 572-6600

Kevin L. MurpPHy

GRAYDON HEAD

& RitcHEY LLP

Suite 300

2400 Chamber Center Dr.

Ft. Mitchell, KY 41017

(859) 282-8800

Attorneys for Petitioner

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