Here's the amici brief we're filing today on behalf of the National Federation of Independent Business Small Business Legal Center and the Hillsborough County Chapter of the NAACP in support of a cert petition now pending at the Supreme Court.
The case centers around a "class of one" Equal Protection claim in which the plaintiff/petitioner alleges that his land use requests were treated by the County differently than other "similarly situated" landowners. The District Court granted summary judgment to the County because the other owners whom the plaintiff proffered in comparison were not subject to the Keystone Community Plan as were his properties. The Eleventh Circuit affirmed.
The court held that the comparators must be "identical in all relevant respects," and since the other owners were not subject to the Keystone CP, end of story. It didn't matter that the applicable provisions in the Keystone CP were the same as in the other County CP's, and the court didn't look beyond the label.
We think this was error, because the jury should have been able to consider regulatory similarity, and it should not have been prevented from weighing the evidence or regulatory similarity and determine that the plaintiff’s position was (or was not) substantially similar to the proffered comparators.
Our brief frames the issue like this:
In class-of-one Equal Protection claims which allege the plaintiff was treated differently from others similarly situated, may the jury consider evidence that the challenged regulatory action is substantively similar to that applicable to the proffered comparators?
We argue that at least one other circuit utilizes a different analysis in comparative circumstances, and actually looks at the substance of the various regulations to see if they are actually similar. Here's the Summary of Argument from our brief:
By requiring Petitioner prove he was in exactly the same circumstances as the other Hillsborough County (County) property owners he proffered as comparators to support his class of one claim, the Eleventh Circuit effectively held that Petitioner must belong to a class of at least two.The rule cannot require a comparator to be so similar to the plaintiff as to be practically indistinguishable. That would be an impossible standard, and would allow government to treat individuals differently without any rational justification. The Eleventh Circuit’s approach requires a plaintiff to search for unicorns, not evidence. A viable Equal Protection claim does not require that comparators be “identical in all relevant respects” as the Eleventh Circuit held, merely that the plaintiff has been treated differently than others similarly situated.
The Eleventh Circuit’s most critical error—and where its approach diverges from other courts—is that it assumed the County’s regulations applicable to Petitioner under the Keystone Community Plan were so different from the regulations applicable to the other property owners whom Petitioner sought to introduce as substantially similar comparators that they were irrelevant. In the court’s view, the substantive similarity (more precisely, the lack of articulable differences) between the Keystone Community Plan and the other community plans, had no relevance whatsoever.
There is no basis for assuming that landowners in one district are ipso facto differently situated simply because of an arbitrary line on the zoning map. In all relevant respects, the separate community plans were materially similar. Thus, Petitioner should have been treated by the County the same as other County landowners. But the Eleventh Circuit proceeded without reviewing, or even comparing, the substance of these community plans—an approach that conflicts with the standards set forth by other courts. Petitioner should have been allowed to submit the question of regulatory similarity to a jury, which could have weighed the evidence to determine whether the plaintiff’s position was or was not substantially similar to the proffered comparators.
This brief argues that the Eleventh Circuit’s approach diverges from how other courts have considered the same issue. The better rule is that the substance of the regulations are themselves a factor which the trier of fact may consider to determine whether proffered comparators are substantially similar to the plaintiff. This Court should grant certiorari to consider this issue.
Br. at 4-5.
The County, naturally, doesn't see it that way, as argued in its Brief in Opposition.
We'll keep following along, and when the reply brief comes in, will post it.
