Middleborough Veterans' Outrea v. Provencher, et al

Filing

OPINION issued by Sandra L. Lynch, Chief Appellate Judge; Michael Boudin, Appellate Judge and Norman H. Stahl, Appellate Judge. Unpublished. [12-1347]

Case: 12-1347

Document: 00116478657

Page: 1

Date Filed: 01/11/2013

Entry ID: 5703259

Not for Publication in West's Federal Reporter

United States Court of Appeals
For the First Circuit
No. 12-1347
MIDDLEBOROUGH VETERANS' OUTREACH CENTER, INC.,
Plaintiff, Appellant,
v.
PAUL J. PROVENCHER ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]

Before
Lynch, Chief Judge,
Boudin and Stahl, Circuit Judges.
*

Adam M. Bond for appellant.
Deidre Brennan Regan, with whom Leonard H. Kesten and Brody,
Hardoon, Perkins & Kesten, LLP were on brief, for appellee.

January 11, 2013

*

Judge Boudin heard oral argument in this matter, and
participated in the semble, but he did not participate in the
issuance of the panel's opinion in this case. The remaining two
panelists therefore issued the opinion pursuant to 28 U.S.C.
§ 46(d).

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Entry ID: 5703259

STAHL, Circuit Judge. In 2010, appellee Paul Provencher,
the Veterans' Agent for the Town of Middleborough, Massachusetts
("the Town"), wrote letters to local newspapers, advising area
residents

to

exercise

caution

before

donating

to

veterans'

charities that use telemarketing or direct solicitation, and naming
appellant Middleborough Veterans' Outreach Center ("MVOC") and one
other charity.

MVOC claims that, as a result of these letters, it

has experienced difficulty fundraising.

In response, MVOC sued,

alleging that Provencher unjustly singled it out for official
condemnation in violation of the Equal Protection Clause, U.S.
Const. amend XIV, § 1, cl. 4.

The district court granted summary

judgment for Provencher and the Town, and MVOC now appeals.

We

affirm.
I.

Facts & Background

MVOC, which is based in Middleborough, is a tax-exempt
charitable organization under 26 U.S.C. § 501(c)(3).
services

to

counseling.

local

veterans,

including

It provides

transportation

and

MVOC's President and CEO, Joseph Thomas, is the

organization's "sole service provider" and the person primarily
responsible for soliciting donations.
Provencher, in his capacity as Middleborough Veterans'
Agent, is tasked with (among other things) furnishing information,
advice, and assistance to veterans to enable them to procure
benefits

related

to

employment,

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vocational

and

educational

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opportunities, hospitalization, and medical care.

Entry ID: 5703259

See 108 Mass.

Code Regs. 12.04 (defining duties of municipal veterans' agents).
On September 26, 2010, Provencher sent the Taunton Daily
Gazette a letter, which he asked the newspaper to publish, advising
the public to donate to veterans' charities that "will use all of
your donation to help out the causes that are important to you."
The letter explained that MVOC and another charity, Bay State
Vietnam Veterans, had recently been telemarketing and soliciting in
the area, and that Provencher did not "support" any charities that
use "telemarketing or direct contact solicitation except for the
veterans' organizations that do their annual poppy or forget-me-not
drives" (which were not named). The letter suggested that citizens
check with the Commonwealth's Attorney General's Office in order to
determine what percentage of donations each organization used for
veterans' services, as opposed to expenses.

It closed by inviting

readers to call Provencher for further guidance, and was signed
"Paul Provencher, Director of Veterans' Services, Middleborough,
MA."
The Taunton Daily Gazette did not publish this letter,
but the Middleborough Gazette published an almost identical letter
from Provencher a few days later, under the headline "Letters to
the Editor."1

Further, the Taunton Daily Gazette subsequently ran

1

A similar letter from Provencher appeared on the website
www.southcoasttoday.com around the same time; this one did not name
MVOC, focusing instead on Bay State Vietnam Veterans.
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an article based on Provencher's letters, headlined "Veterans
services director in Middleboro says telemarketers working for
veterans charities invoked his name."

The article named MVOC as

one

a

of

two

telemarketers

groups

implicated

telling

"in

potential

'ploy'

donors

that

that
they

involves
work

with

[Provencher] and his office."

The article also included a comment

from

MVOC,

Thomas

telemarketing

on
or

behalf

of

"cold

call

in

which

solicit[ing]

he

denied

using

door-to-door."

The

article reported that Provencher said that the purpose of his
letters "was to point out that many nonprofits say they are helping
veterans but have high administrative costs."
After the letters were published, MVOC filed suit against
Provencher (in his individual and official capacities) and the Town
under 42 U.S.C. § 1983, claiming that Provencher's actions had
violated the Equal Protection Clause.

MVOC asserted that the

letters and the article had impeded its fundraising efforts.

For

example, the Middleborough Council on Aging withdrew permission for
MVOC to use the Council on Aging to sell raffle tickets, citing
concerns "about fundraisers and the amount of money that goes into
administration

versus

direct

help

to

veterans."2

MVOC

also

contended that Provencher's actions violated the Anti-Aid Amendment
to the Massachusetts Constitution, Mass. Const. amend. art. XVIII,

2

The Council on Aging and its director were initially
named as defendants below, but the claims against them were
subsequently dismissed via stipulation.
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§ 2, and Mass. Gen. Laws, ch. 268A, § 23(b)(2), although it offered
this argument in an attempt to establish that Provencher's actions
lacked a rational justification, not as the basis for additional
claims.
The

district

court

Provencher and the Town.

granted

summary

judgment

for

Middleborough Veterans' Outreach Ctr.,

Inc. v. Provencher, No. 11-cv-10688-JLT, 2012 WL 692878 (D. Mass.
Feb. 29, 2012).

The court explained that a class-of-one equal

protection claim (i.e., an equal protection claim not based on
membership in a class or group) requires a plaintiff to show that
she

has

"been

intentionally

treated

differently

from

others

similarly situated and that there is no rational basis for the
difference

in

treatment."

quotation marks omitted).

Id.

at

*2 (citation

and

internal

MVOC failed to make that showing; the

district court found that MVOC was not similarly situated to the
other charities alluded to in Provencher's letters because those
charities used a much higher percentage of their donations to fund
veterans' services.

Consequently, with respect to the distinction

apparently created by Provencher's letters -- charities with high
overheads versus those with low overheads -- MVOC was not similar
to its putative comparators.

See id. at *3-4.

On this rationale,

the district court ruled for Provencher and the Town.
appeals that judgment.

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MVOC now

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II.

Date Filed: 01/11/2013

Entry ID: 5703259

Analysis

We review a grant of summary judgment de novo, Baker v.
St. Paul Travelers Ins. Co., 670 F.3d 119, 125 (1st Cir. 2012), and
will affirm if there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law, see Fed.
R. Civ. P. 56(a).
motions

for

"Where, as here, we are presented with cross-

summary

judgment,

we

'must

view

each

motion,

separately,' in the light most favorable to the non-moving party,
and draw all

reasonable

inferences

in

that

party's

favor."

OneBeacon Am. Ins. Co. v. Commercial Union Assur. Co. of Can., 684
F.3d 237, 241 (1st Cir. 2012) (quoting Estate of Hevia v. Portrio
Corp., 602 F.3d 34, 40 (1st Cir. 2010)).
In support of its equal protection claim, MVOC attempts
to establish that Provencher's letters created a "classification"
that distinguishes between two "groups" of charities: those that
use "professional solicitors" to raise money and those that do not.
The letters themselves, however, make no reference to professional
solicitors; they discuss only the use of particular solicitation
methods (telemarketing and direct contact at retail stores).

In

any event, we think the classification issue is beside the point.
MVOC's

core

complaint

is

not

that

Provencher

irrationally

distinguished between charities that use solicitor organizations
and those that do not, but rather that he unjustly "denigrated"
MVOC while simultaneously "endorsing" other charities that, in

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MVOC's eyes, are indistinguishable from itself in the relevant
respects: they are also private, local charitable organizations
that provide free veterans' services and do not employ professional
solicitors.

To the extent that this allegation raises an equal

protection claim at all, it fits best within the class-of-one
rubric, under which an equal protection plaintiff may press a claim
"that she has been intentionally treated differently from others
similarly situated and that there is no rational basis for the
difference

in

treatment,"

even

membership in a class or group."

where

she

does

"not

[show]

Vill. of Willowbrook v. Olech,

528 U.S. 562, 564 (2000) (per curiam).3
Before we turn to the merits of MVOC's class-of-one
claim, we note an argument that the defendants raise in passing:
that, even if Provencher did irrationally treat MVOC differently
from other, similarly situated charities, no class-of-one claim
would lie here.

We are not unsympathetic to this argument.

As we

have explained before, class-of-one suits serve "an important but
relatively narrow function."

Cordi-Allen v. Conlon, 494 F.3d 245,

3

Some, but not all, of our post-Olech decisions have said
that a class-of-one plaintiff must show not only irrational
disparate treatment but also malice, ill will, or some other
motivating animus. Compare Clark v. Boscher, 514 F.3d 107, 114
(1st Cir. 2008), and Tapalian v. Tusino, 377 F.3d 1, 5–6 (1st Cir.
2004), with Toledo v. Sánchez, 454 F.3d 24, 34 (1st Cir. 2006), and
Donovan v. City of Haverhill, 311 F.3d 74, 77 (1st Cir. 2002).
Here, we need not address this requirement because MVOC's claim
would fail regardless. See Cordi-Allen v. Conlon, 494 F.3d 245,
250 n.3 (1st Cir. 2007).
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255 (1st Cir. 2007).
equal

protection

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Properly focused, they vindicate the basic

principle

of

"uniform

treatment

of

persons

standing in the same relation to the governmental action questioned
or challenged."
they should

Reynolds v. Sims, 377 U.S. 533, 565 (1964).

not

official into

a

transform

every

violation

of

ordinary

the

misstep

a

local

Constitution.

federal

by

But

See

Cordi-Allen, 494 F.3d at 255; see also Olech, 528 U.S. at 565
(Breyer, J., concurring).

Further, certain government actions are

ill-suited to judicial oversight under the class-of-one formula.
See Engquist v. Or. Dep't of Agric., 553 U.S. 591, 602 (2008)
(holding the
employment

class-of-one

decisions

and

doctrine

inapplicable

explaining

that

to government

a

"significant"

consideration in Olech and its forebears "was the existence of a
clear

standard

against

which

departures,

even

for

a

single

plaintiff, could be readily assessed").
Consequently, there may be considerable merit to the
suggestion that, on this record, the Equal Protection Clause does
not

reach

"unfavorable

Provencher's
zoning

conduct,

decisions,

which

is

withholding

quite
of

unlike

the

permits,

and

selective regulatory enforcement" that have served as the basis for
successful class-of-one claims.

Kan. Penn Gaming, LLC v. Collins,

656 F.3d 1210, 1216 (10th Cir. 2011) (internal citations omitted).
Even so, we have consistently declined to address arguments that
are, like this one, not fully developed.

-8-

See United States v.

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Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
this contention.

Entry ID: 5703259

Thus, we do not take up

Nor need we; as the district court recognized,

MVOC's claim fails even on its own terms.
A basic requirement of any class-of-one claim is that the
plaintiff must be, with respect to the challenged government
action, situated similarly to persons who were treated differently.
See

Olech,

528

U.S.

at

564;

SBT

Holdings,

LLC

Westminster, 547 F.3d 28, 34 (1st Cir. 2008).

v.

Town

of

Our precedents

"place the burden on the plaintiff . . . to show such identity of
entities and circumstances to a high degree."

Rectrix Aerodrome

Ctrs., Inc. v. Barnstable Mun. Airport Comm'n, 610 F.3d 8, 16 (1st
Cir. 2010).

MVOC does not clear this threshold.

The district court concluded, and the parties appear to
agree,

that

MVOC's

relevant

comparators

are

the

charities

identified in this sentence of Provencher's letters: "I . . . do
not support any organization that uses telemarketing or direct
contact solicitation except for the veterans' organizations that do
their annual poppy or forget-me-not drives." Although not named in
the letters, these charities are identified by the parties as the
Disabled American Veterans, the Veterans of Foreign Wars, and the
American Legion. Unlike MVOC, these charities were not the subject
of Provencher's warning.

The question thus becomes what traits

MVOC must share with these charities to be similarly situated with
regard to Provencher's disclaimer of "support."

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As to that question, we think that a fair reading of the
letters, in toto, reveals that the relevant characteristic is the
amount of money a charity uses directly for veterans' services, as
opposed to administration or fundraising.

The letters' stated

"purpose . . . is to ask [readers] to make donations to local
organizations . . . that will use all of [the] donation[s] to help
out the causes that are important to [them]."

Provencher warned

readers that "[t]here are a lot of administrative costs associated
with telemarketing and direct contact solicitation and more than
likely less than 20% of the money raised helps the cause you are
being solicited for."

MVOC contends that, as used here, "the

cause" must mean "the charity," which would make MVOC similarly
situated to any charity that (like MVOC) eschews professional
solicitors, because 100% of donations would go to "the cause . . .
solicited for."

In a vacuum, that reading might be plausible, but

we think it does not account for the context of this language's
use.

Rather, we think that Provencher's overarching concern, as

evinced by his invitation to readers to investigate how much money
a charity uses for "actually assisting veterans," was steering
donations toward charities "that will use all of [the] donation[s]
to help" veterans. Consequently, as the district court put it, for
MVOC to establish that it is relevantly similar to the other
charities alluded to in the letters, "it must show that a similar
percentage of its charitable donations [is] used to aid veterans,

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as opposed to being used for administrative costs or overhead."
2012 WL 692878, at *3.
This, MVOC cannot do. It has offered no evidence showing
the proportion of total revenue used for direct veterans' aid by
the other charities.

Instead, it has merely objected to the

defendants' evidence on this point (gleaned from the website
www.charitynavigator.com) as unauthenticated and incompetent.4
But, as the party bearing the burden of proof on the elements of
its class-of-one claim, MVOC cannot fend off, much less earn,
summary judgment simply by attempting to disqualify the defendants'
evidence, where the result would be no evidence probative of
similarity.

See Nebraska v. Wyoming, 507 U.S. 584, 590 (1993);

Plumley v. S. Container, Inc., 303 F.3d 364, 368 (1st Cir. 2002);
cf. Srail v. Vill. of Lisle, Ill., 588 F.3d 940, 945 (7th Cir.
2009) (noting that the class-of-one doctrine's similarly situated
requirement

"necessarily

requires

a

challenger

evidence of similarly situated persons").

to

introduce

Consequently, even if

MVOC is right that we may not consider the defendants' evidence,
the result is "a complete failure of proof concerning an essential
element of" MVOC's class-of-one claim.

4

See Celotex Corp. v.

As the district court described, the defendants' evidence
showed that the other charities put a much higher proportion of
their income toward direct veterans' aid than does MVOC, which had
only 13.5% of its total contributions left for direct aid after
paying its expenses and Thomas's salary in 2009.
See 2012 WL
692878, at *4.
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Catrett, 477 U.S. 317, 322 (1986). Accordingly, the district court
properly granted summary judgment for the defendants.5
III.

Conclusion

For the foregoing reasons, we affirm.

5

Because MVOC has failed to establish a necessary element
of its class-of-one claim, we need not address whether Provencher
would be entitled to qualified immunity, or whether the Town could
be held liable for his actions under Monell v. New York City
Department of Social Services, 436 U.S. 658 (1978).
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