Fighting racial injustice in the U.S. Court of Appeals: victory cited extensively since decision
We are pleased to celebrate the first anniversary of a notable court decision secured by Farber Schneider Ferrari LLP (“FSF”), in which the United States Court of Appeals vacated a District Court order dismissing a Federal Civil Rights case, reinstating the action. See Hu v. City of New York, 927 F.3d 81, 86 (2d Cir. 2019). With this success, in addition to reversing the lower court, the appellate court used this case as a platform to update and clarify the issue of sufficiency of pleading in certain Civil Rights claims, those which allege violation of the equal protection clause of the U.S. Constitution and of 42 U.S.C. § 1983.
FSF is also proud to announce that this sweeping, impactful decision—in just a year since its issuance—has already been cited and analyzed sixty (60) times by other courts. Truly, it is proving to be a seminal case in the Second Circuit. The Federal Rules of Civil Procedure regulate sufficiency of pleading as follows: “A pleading that states a claim for relief must contain…a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. Pro. 8(a) and (a)(2)(emphasis added). This language is contradictory to practical application, where most Complaints in Federal Court are anything but short and plain. Absent certain pleading requirements, which have been developed by judicial decision and which vary based upon the claim, despite the language of Rule 8, a Complaint will be immediately dismissible.
In Hu, FSF sued the NYC Department of Buildings (“DOB”) and various related parties for claims sounding in racial discrimination against Asian American contractors. The claims at issue are equal protection claims known as: (a) selective enforcement (referred to herein as a “LeClair claim” after LeClair v. Saunders, 627 F.2d 606 (2d Cir. 1980)); and (b) class-of-one (referred to herein as an “Olech claim” after Village of Willowbrook v. Olech, 528 U.S. 562 (2000)). LeClair and Olech are both claims which allege disparate treatment of laws for impermissible reasons. Leclair claims may proceed under two theories: (1) “that the defendants treated plaintiffs differently from others similarly situated on the basis of [a discriminatory purpose], Hu, 927 F.3d at 90; or (2) that the selective enforcement and disparate treatment was based upon “personal animus against [the plaintiffs].” Id. An Olech claim essentially alleges that plaintiffs were singled out and that “defendants' differential treatment of the plaintiffs violated the Equal Protection Clause because it was irrational and wholly arbitrary.” Id.
With regard to what a Complaint alleging LeClair and Olech claims must contain in order to be sufficiently pled, it has long been settled that “both types of Equal Protection claims require a showing that the plaintiff was treated differently from another similarly situated comparator.” Hu, 927 F.3d at 93. This means, in both types of cases, the Plaintiff must actually present, in the complaint itself, examples of others who are similarly situated (similar situations) who were treated differently than the plaintiff in a manner which gave rise to the claims. Upon doing so, “even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely, [so long as it is otherwise sufficient] a well-pleaded complaint [should be permitted to] proceed [beyond a motion to dismiss].” Id. at 97. In the course of vacating the District Court’s dismissal, the Hu Court authored a lengthy decision “to resolve some of this uncertainty and clarify the relationship between LeClair and Olech.” Id. at 93. These included resolving the number of comparators necessary to sustain either of these claims, the level of similarity between the comparators circumstances with the plaintiff’s necessary to sustain either of these claims and whether the similarity differed depending on whether a plaintiff proceeded under LeClair or Olec. The first uncertainty resolved is the number of comparators required to sustain either a LeClair or Olech claim. To this end, the Court held “Olech and LeClair both require the plaintiffs to plausibly plead at least one similarly situated comparator.” Id. at 96. As a result, in Hu with respect to the LeClair claim, the Court held that the single comparator it credited was sufficient to permit the case to continue to discovery. Id.
The Court’s other major clarification officially brought the Second Circuit into conformity with other Circuits around the country, holding that degree of similarity required in a LeClair claim is more lenient than in an Olich claim. It said, “While Olech requires an ‘extremely high’ degree of similarity between a plaintiff and comparator, LeClair merely requires a “reasonably close resemblance” between a plaintiff's and comparator's circumstances. Id. at 93. The ‘extremely high’ degree of similarity in Olech is most concisely described as: “prima facie identical.” Id. at 92. Indeed, in order to be able to make out a claim as a ‘class-of-one’ under Olech, litigants need to be able to find a comparator identical in nearly every way, but gets treated differently by a State actor—singled out—and thus treated as a ‘class of one’. However, this description of an Olech claim is strikingly similar to how a LeClair claim based upon personal animus would be described. In both kinds of claims, litigants seek redress for being singled out in the enforcement of a law based upon the litigant personally rather than their membership in a group. So, what is the difference, and why the latter get the benefit of the more lenient “reasonably close resemblance” standard? The Hu Court explains the distinction. It held, “unlike a malice-based LeClair claim, an Olech claim does not require proof of a defendant's subjective ill will towards a plaintiff. Instead, a plaintiff can prevail on an Olech claim on the basis of similarity alone.” Id. at 93. In essence, to get the benefit of the more lenient standard, a plaintiff must also plead a subjective element of personal ill will. Id. If that is not possible, then the Plaintiff is relegated to finding a comparator which is “prima facie” identical. There is no doubt that both claims are difficult to articulate in a way which can survive a motion to dismiss. The “short and plain statement” as required by Fed. R. Civ. Pro Rule 8 in Hu was more than fifty pages long. However, the Court has, by this decision, provided a clearer roadmap for pleading requirements of both types of claims. It is now plain that to avoid pleading and proving a subjective element, ill will, a claimant will have to find a comparator which is identical. Only pleading the reason for the personal animus, will reduce the similarity to “reasonably close resemblance.” Farber Schneider Ferrari LLP is extremely proud of this legal victory which revived a timely and impactful case for its clients. It created a legal precedent that, in its first year alone, has already been extensively cited due to fundamental clarification of standards of pleading in Civil Rights cases.
Please contact us if you have been the victim of civil rights violations.