Here’s a new cert petition, seeking SCOTUS review of an unpublished opinion from the Eleventh Circuit. That court concluded that Dibbs’ equal protection challenge to the Hillsborough County’s Community Plan failed because he could not identify others who were similarly situated but treated differently.
Dibbs asserted. among other claims, that the County treated him differently from others when it rejected his development proposals as inconsistent with the Community Plan for three parcels he owned. Motivated by malice, he asserted, the County singled him out for ill treatment because of “vindictiveness, maliciousness, animosity, spite or other reasons unrelated to a legitimate government interest.”
Dibbs isn’t part of a protected class, so this is an Olech class-of-one claim in which he must show that he was treated differently from others similarly situated, and that the County “applied a facially neutral ordinance for the purpose of discriminating.” The district court and the Eleventh Circuit had a problem with the first part of that test, because Dibbs did not identify other landowners subject to the Community Plan who were treated differently. Dibbs argues that he did point out other landowners who were afforded different treatment, and, in any event, the standards should be relaxed somewhat when he introduced substantial evidence that the County had ill intent.
Here are the Questions Presented:
1. Whether the Eleventh Circuit’s decision conflicts with this Court’s decision in Village of Willowbrook v. Olech, 528 U.S. 562 (2000), recognizing class-of-one equal protection claims for landowners, or negates a landowner’s rights under Olech?
2. Whether the Eleventh Circuit’s decision conflicts with decisions of other courts of appeal, including Tapalian v. Tusino, 377 F.3d 1 (1st Cir. 2004), Loesel v. City of Frankenmuth, 692 F.3d 452 (6th Cir. 2012), cert. denied, 133 S.Ct. 878, 904 (2013), and Jacobs, Visconsi & Jacobs, Co. v. City of Lawrence, 927 F.2d 1111 (10th Cir. 1991)?
3. Whether the Eleventh Circuit’s decision conflicts with decisions of other courts of appeal, including Paterek v. Village of Armada, 801 F.3d 630 (6th Cir. 2015), and Swanson v. City of Cheter, 719 F.3d 780, 784 (7th Cir. 2013), that the “similarly situated” standard should be relaxed where, as here, there is substantial evidence of animosity or vindictiveness between the government and the class-of-one plaintiff?
4. Whether this Court should provide lower federal courts and state courts guidance concerning when class-of-one comparators, landowners or development projects are “similarly situated” in connection with a class-of-one equal protection claim?
Stay tuned.