Back Beach Neighbors Committee v. Town of Rockport ( 2023 )

United States Court of Appeals
For the First Circuit
No. 22-1485
BACK BEACH NEIGHBORS COMMITTEE,
Plaintiff, Appellant,
v.
TOWN OF ROCKPORT,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Kayatta, Lynch, and Howard,
Circuit Judges.
Michael C. Walsh, with whom Walsh & Walsh LLP was on brief,
for appellant.
Deborah I. Ecker, with whom KP Law, P.C. was on brief, for
appellee.
March 27, 2023
LYNCH, Circuit Judge. The Back Beach Neighbors
Committee, an unincorporated association of individuals who reside
along or near Back Beach, a public beach in the Town of Rockport,
Massachusetts, sued the Town in federal district court, claiming
that the Town committed a class-of-one equal protection violation
by failing to adequately enforce various local rules against scuba
divers at Back Beach. The district court dismissed the Committee's
equal protection claim. Back Beach Neighbors Comm. v. Town of
Rockport, 535 F. Supp. 3d 57, 63 (D. Mass. 2021). We affirm.
I.
A.
When reviewing the grant of a motion to dismiss for
failure to state a claim, "we accept as true all well-pleaded facts
alleged in the complaint and draw all reasonable inferences
therefrom in the [plaintiff]'s favor." Legal Sea Foods, LLC v.
Strathmore Ins. Co., 36 F.4th 29, 34 (1st Cir. 2022) (alteration
in original) (quoting Alston v. Spiegel, 988 F.3d 564, 571 (1st
Cir. 2021)).
Back Beach is one of several public beaches in the Town.
Across the street from Back Beach is a bathroom facility, a gazebo,
and public parking. According to the Committee, the "parking
layout and metering" at Back Beach is "unlike [that at] any other
public area or beach in Town," making "access easier for strangers"
at Back Beach. This ready access has allegedly made Back Beach a
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popular location in the last two decades for commercial scuba
diving.1
The Committee alleges that the regular presence of scuba
divers has harmed the Committee members in various ways. For
example, the Committee alleges that noise from the divers and their
"clanging tanks" often can be heard early in the morning and past
midnight, "depriving the [m]embers of sleep." Further, the
Committee claims that its members "have seen divers engaging in
actual public nudity" while "changing in the public street or
sidewalk," causing distress for those members and their
"impressionable" children and grandchildren. The divers also
purportedly leave "trash and refuse . . . strewn on the [Committee
members'] land" and park their cars in a manner that both causes
the members to be "blocked in their driveway[s], unable to drive
down the street, or unable to return home" and "prevent[s] fire
trucks and public safety vehicles" from accessing the area safely.
The Committee further alleges that some divers have "retaliat[ed]
against the Committee [m]embers for summoning the police,"
including, in one instance, by "doxxing" a Committee member by
posting the member's "private personal information" onto a "niche
1 As the district court noted, the Committee's reference
to "commercial" scuba diving ostensibly describes "professional
divers who provide equipment and instruction to paying customers,"
not "companies or individuals engaged in commercial fishing
operations." Back Beach Neighbors Comm., 535 F. Supp. 3d at 61
n.1.
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divers internet forum" for the purpose of "embarrassment or
harassment." Ultimately, the divers' behavior has allegedly made
the Committee members "no longer feel safe on their own
propert[ies]."
The Committee alleges that the Town has a "bylaw against
diving"; a "beach regulation about changing in public"; a "bylaw
[that] prohibits commercial activities" and "limits large groups"
on public beaches; "rules and laws about day and nighttime beach
access"; and "parking rules at Back Beach." The Committee claims
that despite its members' having "made concerted efforts to
persuade the Town . . . to mitigate the harmful effects of the
diving" by enforcing these various rules, the Town has failed to
do so, instead "opt[ing] to encourage diving at [Back Beach] unlike
[at] any other beach in the Town."
B.
On July 6, 2020, the Committee sued the Town in the U.S.
District Court for the District of Massachusetts. The Committee's
complaint, as later amended, includes nine counts. Count I of the
complaint brings a class-of-one equal protection claim against the
Town, alleging that the "Back Beach [a]rea has been treated
differently than all other public beaches in [the Town]." The
Committee alleges that the Town's failure to consistently enforce
its various rules concerning diving, beach access, and parking has
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led to the "singl[ing] out [of Back Beach] as a place to welcome
divers."
The Town moved to dismiss the complaint under Federal
Rule of Civil Procedure 12(b)(6), and on April 21, 2021, the
district court granted the motion as to Count I and six of the
eight other counts. Back Beach Neighbors Comm., 535 F. Supp. 3d
at 67. With respect to Count I, the court found that the Committee
had "fail[ed] to identify any individuals or groups to which it is
similarly situated" and thus had failed to plausibly allege a
class-of-one equal protection claim. Id. at 63.
The lawsuit proceeded with respect to the two surviving
counts until May 27, 2022, when the district court granted summary
judgment for the Town on those counts. See Back Beach Neighbors
Comm. v. Town of Rockport, 605 F. Supp. 3d 243, 255 (D. Mass.
2022). Judgment entered for the Town on June 3, 2022, and this
timely appeal, concerned only with the prior dismissal of Count I,
followed.
II.
We review de novo the district court's dismissal of the
complaint for failure to state a claim.2 Plazzi v. FedEx Ground
2 At the outset, the Town contends that the Committee, as
an unincorporated association, is not a proper party to this
litigation, and thus that the Committee lacks associational
standing under the third prong of Hunt v. Washington State Apple
Advertising Commission, 432 U.S. 333 (1977). See id. at 343 ("[A]n
association has standing to bring suit on behalf of its members
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Package Sys., Inc., 52 F.4th 1, 4 (1st Cir. 2022). To survive a
motion to dismiss, the complaint must allege sufficient facts to
"state a claim to relief that is plausible on its face." Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). Although we "accept as true
all well-pleaded facts alleged in the complaint and draw all
reasonable inferences therefrom in the [plaintiff]'s favor," Legal
Sea Foods, 36 F.4th at 34 (alteration in original) (quoting Alston,
988 F.3d at 571), we "credit neither 'conclusory legal allegations'
nor factual allegations that are 'too meager, vague, or conclusory
to remove the possibility of relief from the realm of mere
conjecture,'" id. at 33 (citation omitted) (first quoting Cardigan
Mountain Sch. v. N.H. Ins. Co., 787 F.3d 82, 84 (1st Cir. 2015);
when: (a) its members would otherwise have standing to sue in their
own right; (b) the interests it seeks to protect are germane to
the organization's purpose; and (c) neither the claim asserted nor
the relief requested requires the participation of individual
members in the lawsuit."). Because we find for the Town on the
merits, we bypass the prudential question of whether the Committee,
as opposed to its members, was the proper party to bring this
lawsuit. See United Food & Com. Workers Union Loc. 751 v. Brown
Grp., Inc., 517 U.S. 544, 555 (1996) ("[T]he associational standing
test's third prong is a prudential one."); Nisselson v. Lernout,
469 F.3d 143, 151 (1st Cir. 2006) (noting that "[t]he determination
of who may maintain an otherwise cognizable claim turns on a
question of prudential standing, not one of Article III standing,"
and thus may be bypassed); cf. Lexmark Int'l, Inc. v. Static
Control Components, Inc., 572 U.S. 118, 127 n.3 (2014) (declining
to decide whether limitations on third-party standing are
constitutional or prudential).
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and then quoting SEC v. Tambone, 597 F.3d 436, 442 (1st Cir. 2010)
(en banc)).
As the Supreme Court has recognized, a plaintiff can
bring an equal protection claim as a "class of one" even where the
plaintiff does "not allege membership in a class or group."3
Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per
curiam). In a class-of-one claim, the plaintiff must show that
"she has been intentionally treated differently from others
similarly situated and that there is no rational basis for the
difference in treatment." Id.To bear their burden of showing that others are
"similarly situated," class-of-one plaintiffs must "identify[]
comparators who are 'similarly situated in all respects relevant
to the challenged government action.'" McCoy v. Town of
3 The Town argues that a class-of-one equal protection
claim can only be brought by a single plaintiff, and thus that the
Committee (an unincorporated association with multiple members)
cannot bring such a claim. But the Supreme Court has squarely
foreclosed this argument, stating that "[w]hether [a] complaint
alleges a class of one or of [more than one] is of no consequence
because . . . the number of individuals in a class is immaterial
for equal protection analysis." Village of Willowbrook v. Olech,
528 U.S. 562, 564 n.* (2000) (per curiam). Indeed, the Supreme
Court case that articulated the class-of-one framework involved a
complaint that "could [have been] read to allege a class of five."
Id. Our statement that "a class of one is not a class of many,"
Cordi-Allen v. Conlon, 494 F.3d 245, 254 (1st Cir. 2007), is not
to the contrary: this statement stands only for the proposition
that when the burdens identified by class-of-one plaintiffs are
also shared by non-plaintiffs, that fact undercuts an inference of
differential treatment. See id. Indeed, the class-of-one claim
in Cordi-Allen was brought by two plaintiffs. Id. at 248.
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Pittsfield, 59 F.4th 497, 507 (1st Cir. 2023) (quoting
Gianfrancesco v. Town of Wrentham, 712 F.3d 634, 640 (1st Cir.
2013)). "Plaintiffs must show an 'extremely high degree of
similarity' between themselves and those comparators." Id.(quoting Cordi-Allen v. Conlon, 494 F.3d 245, 251 (1st Cir. 2007)).
Although an "[e]xact correlation" is not required, Cordi-Allen,
494 F.3d at 251 (alteration in original) (quoting Tapalian v.
Tusino, 377 F.3d 1, 6 (1st Cir. 2004)), class-of-one plaintiffs
must demonstrate that the comparators "have engaged in the same
activity vis-à-vis the government entity without such
distinguishing or mitigating circumstances as would render the
comparison inutile," id.The Committee has failed to plausibly allege that
similarly situated comparators exist. As the district court noted,
the complaint makes no attempt whatsoever to "identify any
individuals or groups to which [the Committee] is similarly
situated, such as other residents or neighborhood associations" in
the Town. Back Beach Neighbors Comm., 535 F. Supp. 3d at 63.
Instead, the Committee's claim is premised on the argument that
Back Beach has been treated differently from the Town's other
public beaches.
Even if, as the Committee contends, the Town's public
beaches are appropriate units of comparison in the class-of-one
equal protection analysis, the complaint falls short of plausibly
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alleging that the Town's other beaches are similarly situated to
Back Beach. On the contrary, the complaint states that the
"parking arrangement at Back Beach is unlike [that at] any other
public area or beach in Town." The availability of public parking,
which the Committee acknowledges makes "access easier for
strangers," differentiates Back Beach from the Town's other public
beaches in a manner relevant to the complaint's central allegation
that the Town fails to adequately enforce regulations against
divers at Back Beach.4 And the Committee "makes no effort to
establish how or why [Back Beach] is similarly situated to [the
Town's other public beaches] in any relevant way, and does not
mention any other putative comparator." Gianfrancesco, 712 F.3d
at 640.
4 At oral argument, the Committee's counsel posited that
the Town committed an equal protection violation when it chose to
provide public parking at Back Beach but not at other public
beaches. Counsel stated, for example, that another beach called
Front Beach does not have public parking, despite being located
further downtown. But these allegations are not presented in the
Committee's complaint. Rather, the complaint alleges that the
Town failed to enforce various local rules -- such as those related
to diving, public nudity, beach access, and parking -- at Back
Beach in the same manner that it enforced those rules at other
public beaches. In any event, even if the Committee's complaint
claimed that the Town's decision to place public parking at Back
Beach was the source of the equal protection violation, the
complaint still fails to plausibly allege that Back Beach was
similarly situated to other public beaches "in all respects
relevant" to that decision. McCoy, 59 F.4th at 507 (quoting
Gianfrancesco, 712 F.3d at 640). Indeed, the complaint makes no
attempt to describe Front Beach or any other public beaches.
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The Committee argues that the Supreme Court's decision
in Engquist v. Oregon Department of Agriculture, 553 U.S. 591(2008), relaxed or eliminated the requirement that class-of-one
plaintiffs must identify similarly situated comparators. It
contends that when a plaintiff asserts that there has been an
"unfair deviation from a clear [governmental] standard," rather
than a "subjective governmental decision," that allegation
suffices to make out a class-of-one claim, regardless of whether
the existence of similarly situated comparators has been plausibly
alleged. The Committee posits that its complaint would meet this
relaxed standard because although it included allegations
concerning "lack of enforcement," it also pleaded that "clear
standards, such as the rule against diving in harbors and the beach
regulations, were not being applied" at Back Beach.
This argument misconstrues Engquist and is flatly
inconsistent with the Supreme Court's class-of-one equal
protection precedent. In Engquist, the Supreme Court identified
one sphere -- public employment -- in which plaintiffs cannot bring
class-of-one equal protection claims at all.5 See id. at 598. It
5 The Supreme Court noted that there may be other "forms
of state action," in addition to personnel decisions in the public
employment context, that "by their nature involve discretionary
decisionmaking based on a vast array of subjective, individualized
assessments" and thus are not susceptible to class-of-one equal
protection challenges. Engquist, 553 U.S. at 603. The Court cited
the example of a traffic officer issuing a speeding ticket to one
speeding driver among many, noting that "allowing an equal
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did not purport to alter the analytical framework for class-of-
one claims that can be pursued in other contexts. On the contrary,
Engquist expressly preserved the class-of-one framework set forth
in Olech. See id. at 602 (citing Olech for the proposition that
"[w]hen those who appear similarly situated are [intentionally]
treated differently, the Equal Protection Clause requires at least
a rational reason for the difference"). And nothing in Engquist
remotely supports the Committee's argument that the Supreme Court
intended to relax the "similarly situated" requirement. See id.;
see also id. at 608 (agreeing with the appellant's argument that
even where the class-of-one framework is applicable, a plaintiff
must "prove that the government's differential treatment was
intentional, that the plaintiff was treated differently from other
similarly situated persons, and that the unequal treatment was not
rationally related to a legitimate government purpose," which is
a "difficult" showing to make (emphasis added)). The Committee's
argument that the Town deviated from clear standards thus, at most,
helps protect the Committee's claim from being inadequate under
Engquist (a possibility on which we express no view), but does not
protection claim on the ground that a ticket was given to one
person and not others, even if for no discernible or articulable
reason, would be incompatible with the discretion inherent in the
challenged action." Id. at 604. We need not decide whether the
Town's alleged actions here are of the sort that are insulated
from class-of-one suits under Engquist, because even if they are
not, the Committee's failure to plausibly allege the existence of
similarly situated comparators vitiates its class-of-one claim.
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obviate the requirement of identifying similarly situated
comparators.
Because the Committee has not plausibly alleged the
existence of similarly situated comparators, its class-of-one
equal protection claim fails.
III.
For the foregoing reasons, the judgment of the district
court is affirmed.
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