Foster et al v. United States Environmental Protection Agency et al

Filing 148

MEMORANDUM OPINION AND ORDER concluding that plaintiffs will be permitted to amend their complaint to include a First Amendment retaliation claim, but not to include a substantive due process or "class of one" equal protection claim; dire cting that plaintiffs submit, within 15 days, a revised Second Amended Complaint that more explicitly includes a First Amendment retaliation claim among the causes of action, along with the amended factual material presented in the proposed second amended complaint; granting the 117 MOTION for leave to file a second amended complaint to the extent set forth herein, and is otherwise denied. Signed by Judge John T. Copenhaver, Jr. on 8/22/2016. (cc: attys; any unrepresented parties) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
RON FOSTER, MARKETING & PLANNING
SPECIALISTS LIMITED PARTNERSHIP, and
FOSTER FARMS, LLC.
Plaintiffs,
v.

Civil Action No. 2:14-cv-16744

UNITED STATES ENVIRONMENTAL PROTECTION
AGENCY, and GINA MCCARTHY, in her
official capacity as Administrator,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending is plaintiffs’ motion for leave to file a
second amended complaint, filed October 5, 2015.
Background
This case arises from plaintiffs’ objections to
various actions taken by the United States Environmental
Protection Agency, including the content of a compliance order
and the procedures undertaken before and after its issuance.
The court set out the background and posture of the case in its
order of September 30, 2015.

See Foster v. United States Envtl.

Prot. Agency, No. 2:14-CV-16744, 2015 WL 5786771 (S.D.W. Va.
Sept. 30, 2015).
Plaintiffs Ron Foster, Marketing & Planning

Specialists, and Foster Farms initially alleged, among other
claims, that their rights to substantive due process and equal
protection of the law under the Fifth Amendment had been
violated.

The court’s order entered September 30 granted the

government’s motion to dismiss these two claims, while denying
the motion in other respects not relevant here.
Plaintiffs now wish to amend their First Amended
Complaint to resuscitate the two claims that the court
previously dismissed.

In particular, plaintiffs argue that four

pieces of newly discovered information should be added as
allegations to the complaint.

First, they wish to add material

from a deposition with Richard Hemann, an employee of the Army
Corps of Engineers, which they believe establishes the unusual
nature of the EPA’s actions against plaintiffs.

Second,

plaintiffs obtained, from the EPA’s internal files, a print-out
from an internet site stating that plaintiffs contributed to the
campaign of a United States Congressman, with plaintiffs’ name
circled by hand.

They wish to add discussion of this document

to the complaint.
Third, plaintiffs wish to add testimony from Bryan
Scott Moore suggesting that an EPA report misrepresented Moore’s
statements as one part of an effort to build a record against
plaintiffs.

Fourth, they wish to suggest that the EPA’s
2

decision to claim privileges as to certain documents sought
during discovery itself demonstrates the EPA’s malevolent
motives toward plaintiffs.
Plaintiffs believe that all four of these additions
will support their claim that their equal protection rights were
violated.

They also believe that the last three additions – the

campaign contributions document, the EPA’s alleged distortion of
Moore’s statements, and the materials withheld as privileged –
also support their substantive due process claim.
Legal Standard
“The district courts have applied a two-step analysis
for use when a motion to amend the pleadings is made after the
deadline set in the scheduling order has passed: (1) the moving
party must satisfy the good cause standard of Rule 16(b), and
(2) if the movant satisfies Rule 16(b), the movant then must
pass the tests for amendment under Rule 15(a).”

3-16 Moore's

Federal Practice - Civil § 16.13 (2015); see also Hawkins v.
Leggett, 955 F.Supp.2d 474, 497-99 (D. Md. 2013)(stating and
applying two-part test).

This analysis has emerged because

litigants seeking to amend their pleadings outside the court’s
deadlines for doing so must effectively modify the scheduling
order under Rule 16 as well.

Thus, “[a]lthough leave to amend a

complaint should be ‘freely give[n] [. . .] when justice so
3

requires,’ Fed. R. Civ. P. 15(a)(2), ‘after the deadlines
provided by a scheduling order have passed, the good cause
standard [of Fed. R. Civ. P. 16] must be satisfied to justify
leave to amend the pleadings.’”

RFT Mgmt. Co., LLC v. Powell,

607 F. Appx. 238, 242 (4th Cir. 2015)(alterations added and in
original)(quoting Nourison Rug Co. v. Parvizian, 535 F.3d 295,
298 (4th Cir. 2008)); see also Montgomery v. Anne Arundel
County, 182 Fed. Appx. 156, 162 (4th Cir. May 3, 2006)(affirming
denial of amendment based on Rule 16 standard where scheduling
order deadline had passed).
“Rule 16(b)'s good cause standard focuses on the
timeliness of the amendment and the reasons for its tardy
submission; the primary consideration is the diligence of the
moving party.”

Montgomery, 182 F. Appx. at 162; see also

Hawkins, 955 F.Supp.2d at 498 (“The movant satisfies the good
cause requirement by showing that, despite diligence, the
proposed claims could not have been reasonably brought in a
timely manner.”).
Rule 15(a)(2) instructs that “[t]he court should
freely give leave when justice so requires,” which has been held
to disallow an amendment “only where it would be prejudicial,
there has been bad faith, or the amendment would be futile.”
Nourison, 535 F.3d at 298 (citing HCMF Corp. v. Allen, 238 F.3d
4

273, 276–77 (4th Cir. 2001)).

An “amendment [is] futile when

the proposed amended complaint fails to state a claim,” Van Leer
v. Deutsche Bank Sec., Inc., 479 F. Appx. 475, 479 (4th Cir.
2012)(citation omitted), or when it otherwise “fails to satisfy
the requirements of the federal rules,” United States ex rel.
Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 370, 376 (4th
Cir. 2008))(rejecting complaint for failure to state a claim as
well as for lack of sufficient particularity under Rule
9(b))(citation omitted).
Discussion
As stated above, the purpose of this motion is to
revive plaintiffs’ claims that were previously dismissed by this
court.

See Mem. in Supp. of Pl. Mot. for Leave to File Second

Am. Compl. at *8 (“The proposed Second Amended Complaint merely
pleads facts, not previously known prior to discovery, which
Foster Plaintiffs believe cure the facial deficiencies in
Plaintiffs’ amended complaint identified by this Court in its
September 30, 2015 Memorandum Opinion and Order.”).

The court

thus views each of plaintiffs’ currently-defunct claims to
determine whether the proposed amendments will breathe new life
into them, and whether the amendments are permissible at this
stage of litigation.

5

a. The Substantive Due Process Claim
As the court’s September 30 order discussed, “[i]n a
due process challenge to executive action, the threshold
question is whether the behavior of the governmental official is
so egregious, so outrageous, that it may fairly be said to shock
the contemporary conscience.”

County of Sacramento v. Lewis,

523 U.S. 833, 847 n.8 (1998); see e.g., Rochin v. California,
342 U.S. 165, 172 (1952)(forcible stomach pumping of suspect in
an effort to produce swallowed evidence “shock[ed] the
conscience” and was held to be a violation of substantive due
process.).

This is a high standard not easily met.

As the

Eighth Circuit explained in Golden ex rel. Balch v. Anders:
Substantive due process is concerned with violations
of personal rights [...] so severe [...] so
disproportionate to the need presented, and [...] so
inspired by malice or sadism rather than a merely
careless or unwise excess of zeal that it amounted to
brutal and inhumane abuse of official power literally
shocking to the conscience.
324 F.3d 650, 652-53 (8th Cir. 2003)(internal quotation marks
omitted).
Here, plaintiffs have offered three new facts
purportedly demonstrating conduct of such extreme character.
One of them, the fact that the EPA withheld documents in
discovery based on a claim of privilege, Pl. Second Am. Compl. ¶
36, comes nowhere close to shocking the contemporary conscience.
6

Plaintiffs do not even know what these documents contain.

See,

e.g., Mem. in Supp. of Pl. Mot. for Leave to File Second Am.
Compl. at *5-6 (“These documents may even discuss the substance
of the political research document, if not the document
itself.”)(emphasis added).

Speculation about their possible

contents is not a factual allegation, and will not substitute
for a showing of outrageous executive overreach.
So, too, for the allegation that the EPA
misrepresented Moore’s statements.

Plaintiffs have no basis for

believing that the claimed “misrepresentation” was not merely a
mistake, and do not even assert that it was intentional.
Pl. Proposed Second Am. Compl. ¶ 23.

See

Without any suggestion of

intent, a factual error in one part of the record in a
longstanding enforcement action is perhaps best described as “a
merely careless . . . excess of zeal,” Anders, 324 F.3d at 65253, rather than a conscience-shocking action akin to the
forcible pumping of a suspect’s stomach to recover evidence.
See Rochin v. California, 342 U.S. 165.
The EPA’s hand-annotated document taking note of
plaintiffs’ political contributions is a far different matter.
See Pl. Proposed Second Am. Compl. ¶ 36.

The court is troubled

by the possibility that a government agency took certain actions
against an individual because of his political beliefs or
7

activities.

And the document presented by plaintiffs, along

with allegations that the EPA’s procedures were irregular in the
present case, show that this possibility cannot be discounted at
the present stage.

The government’s suggestion that review of

the document was part of a legitimate effort to ascertain the
ownership of Marketing & Planning Specialists relates to the
weight of the evidence, not to its legal sufficiency in stating
a claim.
Plaintiffs’ theory regarding the political document,
however, cannot state a substantive due process claim because it
should instead have been raised under a more specific
constitutional provision: the First Amendment.
Connor, 490 U.S. 386, 395 (1989).

See Graham v.

In Graham, the plaintiffs

brought a § 1983 claim against police officers for the use of
excessive force, alleging a substantive due process violation.
Id. at 390.

The Court held that the plaintiffs’ claims should

not be analyzed using substantive due process standards:
Because the Fourth Amendment provides an explicit
textual source of constitutional protection against
this . . . conduct, that Amendment, not the more
generalized notion of “substantive due process,” must
be the guide for analyzing these claims.
Id. at 395.

Thus, “Graham . . . requires that if a

constitutional claim is covered by a specific constitutional
provision . . . the claim must be analyzed under the standard
8

appropriate to that specific provision, not under the rubric of
substantive due process.”

United States v. Lanier, 520 U.S.

259, 272 n.7 (1997).
The “specific constitutional provision” requirement
applies to allegations of retaliatory behavior violative of the
First Amendment.

See Pagan v. Calderon, 448 F.3d 16 (1st Cir.

2006); Bell v. Johnson, 308 F.3d 594 (6th Cir. 2002).

In Pagan,

the First Circuit rejected a substantive due process claim
based, in part, on a politician’s alleged retaliation against a
former political official because of his association with a
rival political party.

448 F.3d at 25, 33-34.

The court wrote

that “[s]ubstantive due process is an inappropriate avenue of
relief when the governmental conduct at issue is covered by a
specific constitutional provision.”

Id. at 33.

The court then

explained that “political discrimination or retaliation” raises
a claim under the First, not the Fourteenth, Amendment.
33-34.

Id. at

In Bell, the Sixth Circuit similarly concluded that

First Amendment retaliation claims should be brought under the
standards of that provision, and not under the “shocks the
conscience” standard.

308 F.3d at 610.

Plaintiffs’ complaint regarding the political
contribution document is precisely the sort of theory that
should have been raised as a First Amendment retaliation claim.
9

The purpose of discussing the document is plainly to show that
the government impermissibly acted against plaintiffs on account
of Foster’s political speech.

Plaintiffs’ proposed second

amended complaint discusses at length the EPA’s “political
research on plaintiffs,” Proposed Second Am. Compl. ¶ 36, and
states that “[d]efendants have, with improper, retaliatory and
animus based motivation, delay in providing a forum for hearing,
and irregular sequencing of jurisdictional review, issued a
compliance order against Plaintiffs.”

Id. at ¶ 72.

Plaintiffs’

briefing on this motion even cites First Amendment cases, such
as Citizens United v. FEC, 558 U.S. 310 (2010), and makes direct
reference to “political speech,” as well as viewpoint
discrimination, to illustrate that their rights were violated.
See Mem. in Supp. of Pl. Mot. for Leave to File Second Am.
Compl. at *3 (“Political speech has been clearly recognized as a
protected constitutional civil right.”); Pl. Repl. at *3
(discussing government action targeting particular political
viewpoints), *7-8 (discussing other First Amendment doctrine).
The court does not need to determine that plaintiffs’
First Amendment claim would succeed, but merely that the harm
alleged would receive relief, if at all, under that Amendment.
See Pagan, 448 F.3d at 34 (“We add only that the application of
this . . . rule depends only on whether a specific

10

constitutional provision addresses the type of conduct at issue;
it does not depend on a prediction that the complaining party
will be successful in pursuing a claim under the applicable
provision, nor does it depend on a conclusion that the party has
a valid claim thereunder.”); see also Albright v. Oliver, 510
U.S. 266, 273-75 (1994)(“We express no view as to whether
petitioner's claim would succeed under the Fourth Amendment,
since he has not presented that question in his petition for
certiorari.

We do hold that substantive due process, with its

scarce and open-ended guideposts, can afford him no
relief.”)(internal quotation marks and citations omitted).
Here, where plaintiffs’ claim alleges impermissible government
action taken because of an individual’s political activities,
the First Amendment is the appropriate channel for any relief.
“It is the First Amendment, not the Fourteenth Amendment, that
guards individuals against state-sponsored acts of political
discrimination or retaliation.”

Pagan, 448 F.3d at 33-34.

Plaintiffs, in sum, cannot effectively use the
political contribution document as part of a substantive due
process theory, because the type of wrong alleged to have arisen
from the document creates a cognizable First Amendment claim.
Accordingly, plaintiffs’ amendments, inasmuch as they seek to
bolster the substantive due process claim, will not be permitted

11

because they will still fail to state a claim and are therefore
futile.

See Van Leer, 479 F. Appx. at 479; Kellogg Brown &

Root, 525 F.3d at 376.
b. First Amendment Retaliation Claim
Since the court has determined that plaintiffs’
allegations of mistreatment because of their campaign
contributions state a claim, if at all, under First Amendment
retaliation doctrine, the court will consider whether amendment
may be allowed on that basis.1
The United States Constitution provides that “Congress
shall make no law . . . abridging the freedom of speech.”
Const. amend. I.

U.S.

“‘The First Amendment right of free speech

includes not only the affirmative right to speak, but also the
right to be free from retaliation by a public official for the
exercise of that right.’”

Constantine v. Rectors & Visitors of

George Mason Univ., 411 F.3d 474, 499 (4th Cir. 2005)(quoting
Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 685 (4th Cir.

Plaintiffs’ claims for relief, though less specific than one
might hope, make a claim for a “U.S. Constitutional violation,”
which focuses on “Defendants’ improper and animus based
enforcement actions.” Pl. Proposed Second Am. Compl. ¶ 69. The
court believes that this language suggests a grievance that the
First Amendment is designed to address, particularly in light of
plaintiffs’ emphasis on campaign contributions in the factual
allegations of the complaint.
1

12

2000)).
“A plaintiff seeking to recover for First Amendment
retaliation must allege that (1) she engaged in protected First
Amendment activity, (2) the defendants took some action that
adversely affected her First Amendment rights, and (3) there was
a causal relationship between her protected activity and the
defendants’ conduct.”

Constantine, 411 F.3d at 499 (citing

McGraw, 202 F.3d at 686).

The Fourth Circuit’s Constantine

opinion explained that the “adverse[] effect” on First Amendment
rights may be shown by conduct that would tend to “chill the
exercise of constitutional rights”:
We have never held that a plaintiff must prove that
the allegedly retaliatory conduct caused her to cease
First Amendment activity altogether. The cause of
action targets conduct that tends to chill such
activity, not just conduct that freezes it completely.
. . . . Thus, for purposes of a First Amendment
retaliation claim under § 1983, a plaintiff suffers
adverse action if the defendant's allegedly
retaliatory conduct would likely deter “a person of
ordinary firmness” from the exercise of First
Amendment rights. Washington v. County of Rockland,
373 F.3d 310, 320 (2d Cir.2004); Keenan v. Tejeda, 290
F.3d 252, 258 (5th Cir.2002); Carroll v. Pfeffer, 262
F.3d 847, 850 (8th Cir.2001); Smith v. Plati, 258 F.3d
1167, 1176 (10th Cir.2001); Suppan v. Dadonna, 203
F.3d 228, 235 (3d Cir.2000); Bloch v. Ribar, 156 F.3d
673, 678 (6th Cir.1998); Bart v. Telford, 677 F.2d
622, 625 (7th Cir.1982). While the plaintiff's actual
response to the retaliatory conduct provides some
evidence of the tendency of that conduct to chill
First Amendment activity, it is not dispositive.
411 F.3d at 500 (citations abridged)(emphasis in original).
13

Plaintiffs’ complaint contains material that supports
a claim under the First Amendment retaliation doctrine.

In

particular, plaintiff alleges the following facts:
[A]t some time during 2012, someone at EPA conducted
unprecedented political research on plaintiffs Ron
Foster and Marketing and Planning Specialists, LP. [A
document recovered during discovery] shows a list of
2009 to 2010 political campaign contributions and
contributors in Putnam County, West Virginia. On the
second page of the document, plaintiffs Ron Foster and
Marketing and Planning Specialists, LP are circled and
underlined, respectively, for their March 3, 2010
$250.00 contribution to “McKinley for Congress.”
Despite the Foster Plaintiffs’ deposing a half dozen
EPA employees, no one could identify the origin of the
document. . . . Only Pamela Lazos, admitted to
recollecting that she had seen the document prior to
discovery. Ms. Lazos stated that she could not
recollect where or how she obtained the document, but
stated that she did believe it had been in her files.
. . . Numerous documents related to EPA’s preparation
of responses to Congressional inquiries have been
withheld, some or all of which may address the
response to Congressman McKinley’s inquiry to the
agency on behalf of Ron Foster fall within time frames
for which it is reasonable to believe that the
political research on Ron Foster and Marketing &
Planning Specialists, LP may have been conducted. Ms.
Lazos’ withheld personal notes also bridge the
timespan when the unprecedented, highly irregular, and
indeed shocking, political research (which Ms. Lazos
stated in deposition that she recalled being in her
files) had to have been conducted or received.
Pl. Proposed Second Am. Compl. ¶ 36.
Plaintiffs’ proposed amended complaint alleges that
they “engaged in protected First Amendment activity,” the first
element of a retaliation claim, in the form of “their March 3,
2010 $250.00 contribution to ‘McKinley for Congress,’” Pl.
14

Proposed Second Am. Compl. ¶ 36. The Supreme Court has explained
that “the First Amendment safeguards an individual's right to
participate in the public debate through political expression
and political association,” and “[w]hen an individual
contributes money to a candidate, he exercises both of those
rights: The contribution ‘serves as a general expression of
support for the candidate and his views’ and ‘serves to
affiliate a person with a candidate.’”

McCutcheon v. Fed.

Election Comm'n, 134 S. Ct. 1434, 1448 (2014).

See also Buckley

v. Valeo, 424 U.S. 1, 14 (1976)(“[C]ontribution . . .
limitations operate in an area of the most fundamental First
Amendment activities.

Discussion of public issues and debate on

the qualifications of candidates are integral to the operation
of the system of government established by our Constitution.”).
Second, the complaint states that the government
thereafter took a set of irregular and burdensome enforcement
measures against plaintiffs, thus asserting that “the defendants
took some action that adversely affected [plaintiffs’] First
Amendment rights.”

As stated above, “a plaintiff suffers

adverse action if the defendant's allegedly retaliatory conduct
would likely deter ‘a person of ordinary firmness’ from the
exercise of First Amendment rights.”
500.

Constantine, 411 F.3d at

Here, plaintiff states that the EPA took the very unusual

15

step of “superseding,” or assigning to itself, the usual
authority of the Army Corps of Engineers to “verify the
jurisdictional status of aquatic resources at” plaintiffs’
property.

Proposed Second Am. Compl. ¶¶ 32, 43.

The effects of

this decision, plaintiffs claim, were, first, to remove the
Corps of Engineers’ power to issue an after-the-fact permit
under Section 404 of the Clean Water Act, which would have
resolved the compliance issues in the case, and, second, to
remove plaintiffs’ right to appeal the government’s
determination that the land was covered under the Clean Water
Act.

Proposed Second Am. Compl. ¶ 33.

In addition, the EPA

told plaintiffs that the “case had been referred to the U.S.
Department of Justice for ‘civil prosecution,’” and, based on
plaintiffs’ past conduct, “a civil penalty in the amount of
$414,830.00 would be an appropriate fine.”
Compl. ¶ 40.

Proposed Second Am.

Plaintiffs maintain that the government’s

enforcement action, and particularly its irregularities, are not
justifiable by legitimate law enforcement rationales.
e.g., Proposed Second Am. Compl. ¶ 61.

See,

A person of “ordinary

firmness” would certainly be deterred from engaging in First
Amendment activity when faced with unjustifiable law enforcement
activity, particularly in the form of nearly half a million
dollars in fines and the foreclosure of valuable legal options
available to other persons.

See Tobey v. Jones, 706 F.3d 379,
16

387 (4th Cir. 2013)(ruling that plaintiff had adequately pled
retaliatory conduct by stating that police seized him without
probable cause).
Third, the complaint adequately alleges causation at
this stage.

Plaintiff has here stated that the EPA’s political

research took place “at some time during 2012.”
Am. Compl. ¶ 36.

Proposed Second

All of the government’s enforcement actions

against plaintiffs, and all of the alleged irregularities in the
process, took place in 2012 or later, which was a marked change
from the government’s actions before that time.

In the years

prior to 2012, plaintiffs’ interactions with the government were
limited to negotiation regarding obligations to remediate
certain land purchased from a bankruptcy estate that had been
the subject of past EPA enforcement action, and the EPA’s
investigation of other land in the same parcel – land which was
not previously subject to enforcement – to determine whether it
was within the jurisdiction of the Clean Water Act.
Proposed Second Am. Compl. ¶¶ 11-24.

See

As late as April 2011, the

government’s internal correspondence suggests that officials
were not even satisfied that they had jurisdiction over some of
plaintiffs’ land.

Proposed Second Am. Compl. ¶ 25.

Things changed immediately, and drastically, in 2012.
“On January 24, 2012, Defendants issued a compliance order to
17

Foster Farms, LLC, claiming that the Property was subject to the
CWA, and alleging that Plaintiffs had illegally filled an
unnamed tributary on the property.”
¶ 26.

Proposed Second Am. Compl.

As the court’s prior order noted, violation of such a

compliance order can be fined by tens of thousands of dollars
per day.

Foster v. United States Envtl. Prot. Agency, 2015 WL

5786771, at *8.

In April 2012, the EPA told plaintiffs that

appeal of its assertion of jurisdiction over the property was
impermissible because the EPA had superseded the Army Corps of
Engineers’ authority in the matter.
¶¶ 31-33.

Proposed Second Am. Compl.

Later, the EPA informed plaintiffs that $414,830.00

would be an appropriate fine for the conduct in the case.
Proposed Second Am. Compl. ¶¶ 40.
The Fourth Circuit has stated that “the temporal
proximity” of the retaliatory behavior to the time when the
government gained knowledge of First Amendment activity may
allow the court to infer causation at the motion-to-dismiss
stage.

Tobey, 706 F.3d at 387; see also Trulock v. Freeh, 275

F.3d 391, 405 (4th Cir. 2001)(“the timing of the search raises
an inference of retaliatory motive”).

Although plaintiffs have

not stated exactly when in 2012 the political research took
place, it seems enough, at this juncture, to assert that it
occurred within that year.

Because of the striking change in

18

the government’s behavior that came about in 2012, the court
will infer that the government’s actions took place in
retaliation against plaintiffs’ political speech.
Plaintiffs have thus satisfied the three elements of a
First Amendment retaliation claim.

Accordingly, the court

concludes that permitting amendment on that basis would not be
futile.
The government contends that plaintiffs have unduly
delayed their amendment, and that the government would be
prejudiced by an amendment at this late stage in litigation.
Def. Opp. to Pl. Mot. for Leave to File Second Am Compl.
(hereinafter “Def. Opp.”) at 3-4.

Regarding undue delay, the

government states that plaintiffs knew of both the “political
research” document and Richard Hemann’s testimony in June of
2015, but waited until October, after the court’s order on the
government’s motion to dismiss, to propose an amendment.
4-7.

Id. at

Plaintiffs respond that there is not usually a continuing

requirement to amend the facts in a complaint to support its
existing legal theories, particularly where a litigant believes
that those theories are sufficient to withstand the motion to
dismiss.

Rep. in Supp. of Pl. Mot. for Leave to File Second Am.

Compl. at 1-2.
The government also claims that allowing amendment
19

would “unfairly prejudice the United States” because it has
“invested significant resources into briefing its Motion to
Dismiss.”

Def. Opp. at 7.

The government points out that it

has now filed two motions to dismiss, and suggests that it may
need to file a third such motion should the amendment be
allowed.

Id. at 7-8, 8 n.4.
The court first notes that the government’s claim

regarding “unfair prejudice” is not persuasive.

Even on the

government’s own account, plaintiffs did not receive the new
facts that are the subject of this amendment, including the
political research document, until June 2015.

By that time, the

government had already filed its second motion to dismiss.
Unless the government wishes to take the unsustainable position
that plaintiffs should never, at any time, have been permitted
to file an amended complaint based on the political research
document, then the government’s investment of time into the
briefing of prior motions to dismiss is not relevant.

Moreover,

the court would note that it has determined, above, that the
proposed amendment is not futile, which will thus relieve the
government of any further need to move for dismissal, at least
under Rule 12(b)(6).
Regarding the government’s claims of undue delay, the
court notes that, while plaintiffs could have amended their
20

complaint earlier, they presumably would not have wished to do
so had their substantive due process claim not been dismissed.
The court recognizes that plaintiffs previously included
significant factual material supporting the substantive due
process claim, and that knowing when such a claim has been
successfully pled presents a difficult line-drawing problem.
Counsel’s erroneous belief that the substantive due process
claim was properly pled is forgivable.

The First Amendment

retaliation claim is essentially a substitute for the
substantive due process cause of action, relying on many of the
same facts.

Perhaps most importantly, the rights guaranteed by

the First Amendment are sufficiently important that the court is
willing to accommodate some delay should it be necessary for
their vindication.
c. The “Class of One” Equal Protection Claim
The court’s September 30 opinion also outlined the law
governing “class of one” claims under the Equal Protection
clause.

Foster v. United States Envtl. Prot. Agency, 2015 WL

5786771 at *25-28.

In Village of Willowbrook v. Olech, the

Supreme Court held that an equal protection claim arises for a
“class of one” when a “plaintiff . . . has been intentionally
treated differently from others similarly situated and . . .
there is no rational basis for the difference in treatment.”
21

528 U.S. 562, 564 (2000)(per curiam).

The Fourth Circuit’s

opinion in Ruttenberg v. Jones, a case where the plaintiff
alleged gross and systematic police misconduct based on an
officer’s personal distaste for a nightclub owner, dismissed a
class-of-one claim because “the complaint fail[ed] to allege the
existence of similarly situated individuals.”

283 F. App'x 121,

131 (4th Cir. 2008).
The initial complaint did not expressly describe any
“similarly situated” individuals, or even allege, as a
generality, that the government had treated some similarly
situated persons differently.

To the contrary, the complaint

alleged that the EPA had also taken action against the previous
owners, who were “about as ‘similarly situated’ as one could be
to the current plaintiffs.”

Foster v. United States Envtl.

Prot. Agency, 2015 WL 5786771 at *28.

The court thus dismissed

the claim.
The amended complaint adds facts supporting a
generalized allegation that plaintiffs were treated differently
from others against whom regulatory action was taken, although
it still fails to point out, by name, description, or otherwise,
any individual who was similarly situated but treated
differently.

See Proposed Second Am. Compl. ¶ 33.

Plaintiffs

first give a new explanation of why this enforcement action was
22

unusual, stating that the EPA superseded the authority of the
U.S. Army Corps of Engineers to determine whether jurisdiction
over the property existed under the Clean Water Act.
Second Am. Compl. ¶ 33.

Proposed

Plaintiffs state that the EPA’s action

made the jurisdictional determination unappealable where it
otherwise could have been challenged, and also foreclosed
plaintiffs’ ability to apply for an after-the-fact permit.

See

id.; see also Mem. in Supp. of Pl. Mot. for Leave to File Second
Am. Compl. at *2.

The proposed amendments then refer to

testimony from Richard Hemann, an employee of the Corps of
Engineers, stating that the EPA’s actions in this case were
highly uncommon.

See Proposed Am. Compl. ¶ 33 (“None of this is

common, what happens here.”).

He evidently went so far as to

say that, in twenty years as a regulator, he had never before
personally seen these actions taken.

Id.

The complaint, in other words, compares plaintiffs to
the group of persons within Hemann’s knowledge against whom the
EPA has taken regulatory action because of alleged violations of
the Clean Water Act, but it does not name any of them or their
circumstances in particular.

Thus, the core question in

determining if the “class of one” theory states a claim is
whether the abstraction plaintiffs have presented, namely, the
group of persons known to Hemann who are regulated by the EPA,

23

but not identified by name or otherwise as being similarly
situated to plaintiffs, will suffice.
The Fourth Circuit has not had occasion to provide a
clear standard as to how concretely and specifically a plaintiff
must compare himself to others to state a class-of-one claim.
The court of appeals has, of course, allowed class-of-one claims
to go forward where a particular, similarly-situated person is
identified.

Such was the case in Willis v. Town of Marshall,

N.C., where a woman claimed that she was singled out for
negative consequences because of her dancing, while her dance
partner, who was engaged in the same activity, received no such
consequences.

426 F.3d 251, 263 (4th Cir. 2005)(reversing grant

of summary judgment to defendant).

On the other hand, the

unpublished Ruttenberg opinion, cited above, characterizes the
complaint it reviewed as follows:
The complaint alleges that Mayor Jones, Chief Evans,
Detective L, and Detective W “selectively enforced the
ABC laws and narcotics laws” in violation of
Appellants' equal protection rights. The district
court dismissed this claim because the “conclusory
allegations” were “plainly insufficient” and “d[id]
not allege the existence of any similarly situated
persons, nor ... that [Appellants] were treated
differently from any such persons.”
Ruttenberg, 283 F. App'x at 131 (alterations in original)
(internal citations omitted).

The court then stated that the

district court’s dismissal of the claim should be affirmed, in
24

part, because “the complaint fails to allege the existence of
similarly situated individuals.”

Id.

From this analysis, it is

evident that a mere allegation of “selective[] enforcement” of
the law is insufficient to state a class-of-one claim.

Inasmuch

as the allegation attributed to Hemann lacks specificity, this
case falls somewhere near Ruttenberg.
Most other courts of appeals directly confronting the
pleading standard for a class-of-one claim – particularly those
addressing it after Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009) – apparently
require plaintiffs to name specific parties or to assert facts
at the motion-to-dismiss stage showing that there is a
reasonably close similarity between those parties and the
plaintiffs.

See Freeman v. Town of Hudson, 714 F.3d 29, 38 (1st

Cir. 2013)(noting, at motion-to-dismiss stage, that “[w]e have
held that class-of-one claims require an extremely high degree
of similarity between [the plaintiffs] and the persons to whom
they compare themselves.

In the land-use context, this means

more than point[ing] to nearby parcels in a vacuum and leav[ing]
it to the municipality to disprove conclusory allegations that
the owners of those parcels are similarly situated.”)(internal
quotations and citations omitted)(alterations in original);
Ruston v. Town Bd. for the Town of Skaneateles, 610 F.3d 55, 60

25

(2d Cir. 2010)(affirming district court’s grant of motion to
dismiss where plaintiffs named particular parties for
comparison, but court was unsatisfied that they were
sufficiently similar); TexCom Gulf Disposal, L.L.C. v.
Montgomery Cty., 623 F. App'x 657, 661 (5th Cir. 2015)(affirming
dismissal where the complaint “alleges that other applicants
were not subjected to this intensive review . . . [but] does not
identify these alleged other applicants or allege that the same
regulations have been overlooked in other specific cases”);
Rondigo, L.L.C. v. Twp. of Richmond, 641 F.3d 673, 684 (6th Cir.
2011)(affirming dismissal of class-of-one claim where plaintiffs
named a particular person, but court believed that person’s
situation was not sufficiently similar to plaintiffs’); Higgins
Elec., Inc. v. O'Fallon Fire Prot. Dist., 813 F.3d 1124, 1129-30
(8th Cir. 2016)(affirming dismissal where electrician claimed
that the fire district treated him “differently from other
similarly situated electrical contractors,” but failed to
“allege[] [that] another contractor, whose employees were
members of a different union, was identical or directly
comparable to [him] in all material aspects”)(internal
quotations omitted); Andy's BP, Inc. v. City of San Jose, 605 F.
App'x 617, 618-19 (9th Cir. 2015)(affirming dismissal of classof-one claim, noting that “[p]laintiff cannot state an equal
protection claim based on the different treatment that Andy's BP
26

and Moe's Stop received because the two gas stations are not
similarly situated”; and affirming rejection of amended
complaint on grounds of futility because the amendment “failed
to . . . show . . . that the gas stations are similarly
situated”); Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210,
1219 (10th Cir. 2011)(affirming dismissal where plaintiff stated
that it was treated differently from “other, similarly situated
property owners” within its county but did not name any in
particular, and including in the opinion a discussion of
heightened pleading standards under Iqbal and Twombly for classof-one claims); Leib v. Hillsborough County Pub. Transp. Comm'n,
558 F.3d 1301, 1307 (11th Cir. 2009)(affirming dismissal upon
flat assertion that plaintiff was treated differently from
others similarly situated, and noting that “plaintiffs are not
permitted simply to ‘rely on broad generalities in identifying a
comparator’”).
The most persuasive opinions written by those courts
of appeals adopting the majority rule note that the heightened
pleading standards in Twombly and Iqbal, when combined with the
elements of a class-of-one claim, require that pleadings specify
similarly-situated parties and state facts explaining why they
are situated similarly.
1220.

See Kansas Penn Gaming, 656 F.3d at

In Olech, a successful class-of-one claim, the Supreme

27

Court stated that “the plaintiff alleges that she has been
intentionally treated differently from others similarly
situated.”

528 U.S. at 564.

When the Supreme Court decided

Olech in the year 2000, pleading requirements could be satisfied
simply by putting opposing parties on notice of a claim.

But

the Supreme Court has more recently held in 2007 and again in
2009 that, to survive a motion to dismiss, “a complaint must
contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Iqbal, 556 U.S.
at 678 (quoting Twombly, 550 U.S. at 570).

The claim must

amount to “more than labels and conclusions,” and “a formulaic
recitation of the elements of a cause of action will not do.”
Twombly, 550 U.S. at 555.

Thus, “[a]fter Twombly and Iqbal, it

is insufficient [to state a class-of-one claim] to simply allege
that other, unidentified properties have ‘comparable’ or
‘similar’ conditions — the claim must be supported by specific
facts plausibly suggesting the conditions on the properties and
the properties themselves are similar in all material respects.”2
Kansas Penn Gaming, 656 F.3d at 1220.

2

It is not clear whether the plaintiffs in Olech provided
specific descriptions of similarly situated persons in their
complaint. Although the Third Circuit’s opinion in Phillips
states that “Olech herself did not ‘name names' in her
complaint,” 515 F.3d 224, 244 (quoting DeMuria v. Hawkes, 328
F.3d 704, 707 (2d Cir. 2003)), this detail appears nowhere in
the Supreme Court’s opinion.
28

This rule is not shared by the Seventh Circuit or a
2008 decision by the Third Circuit.

See Miller v. City of

Monona, 784 F.3d 1113, 1120 (7th Cir. 2015)(“[W]e have
repeatedly confirmed that ‘[p]laintiffs alleging class-of-one
equal protection claims do not need to identify specific
examples of similarly situated persons in their
complaints.’”)(citing Capra v. Cook Cnty. Bd. of Review, 733
F.3d 705, 717 (7th Cir.2013)); Geinosky v. City of Chicago, 675
F.3d 743, 748 (7th Cir. 2012)(“Even in a case where a plaintiff
would need to identify a similarly situated person to prove his
case . . . we see no basis for requiring the plaintiff to
identify the person in the complaint. . . . Rule 8(a)(2)
requires only ‘a short and plain statement of the claim showing
that the pleader is entitled to relief.’ Even the more demanding
pleading requirements under Iqbal and Twombly do not require a
plaintiff to identify specific comparators in a complaint.”)
(emphasis in original); Phillips v. Cty. of Allegheny, 515 F.3d
224, 245 (3d Cir. 2008)(noting that “the Olech decision does not
establish a requirement that a plaintiff identify in the
complaint specific instances where others have been treated
differently for the purposes of equal protection,” and
instructing district court to permit amendment of complaint
where it contained no allegation that plaintiff was treated
differently from others); but see Spiker v. Whittaker, 553 F.
29

App'x 275, 280 (3d Cir. 2014)(unpublished opinion)(affirming
dismissal of claim where plaintiff stated that he was situated
similarly to twenty other sex offenders, but court believed that
the alleged similarity was insufficient); Pioneer Aggregates,
Inc. v. Pennsylvania Dep't of Envtl. Prot., 540 F. App'x 118,
124 (3d Cir. 2013)(unpublished opinion)(dismissing claim where
insufficient similarity between plaintiff and other named
person).
Although the court is not entirely persuaded that a
successful class-of-one plaintiff must “name names” of specific
comparators in the complaint, the heightened pleading standards
announced in Twombly and Iqbal will preclude a claim based on
plaintiffs’ quite general allegations in this case.

Plaintiffs

simply give no information in the proposed amended complaint
about any regulated entities or properties to which Hemann
refers, and thus no information from which the court may
determine that those to whom he refers were situated similarly
to plaintiffs.
In addition, Hemann’s testimony, as mentioned in the
complaint, fails to suggest that enforcement outcomes were
different for other regulated entities or properties than they
were for plaintiffs.

Hemann mentions only the procedural

differences between plaintiffs’ case and others, and does not
30

suggest that others received lower fines or otherwise had better
ultimate outcomes.

Because Hemann does not suggest that any

other persons received better final results than plaintiffs, his
testimony fails to support an allegation that plaintiffs were
“treated differently” from others similarly situated.3
Conclusion and Order
The court concludes that plaintiffs will be permitted
to amend their complaint to include a First Amendment
retaliation claim, but not to include a substantive due process
or “class of one” equal protection claim.

To effectuate this

conclusion, the court ORDERS that:


Plaintiffs submit, within fifteen days, a revised Second
Amended Complaint that more explicitly includes a First
Amendment retaliation claim among the causes of action,
along with the amended factual material presented in the
proposed second amended complaint.



Plaintiffs’ motion for leave to file a second amended
complaint be, and it hereby is, granted to the extent set
forth above, and is otherwise denied.

It is so ORDERED.

Moreover, it is noted that the previous complaint did not even
present an unadorned allegation that plaintiffs were situated
similarly to other persons. See Foster v. United States Envtl.
Prot. Agency, 2015 WL 5786771 at *25-28. In fact, the complaint
suggested that plaintiffs were treated much like the property’s
prior owner, who was situated very similarly to plaintiffs for
obvious reasons.
3

31

directed to appear.
02/29/2016

Entry of scheduling order.

03/08/2016

Last day to serve F.R. Civ. P 26(a)(1) disclosures.
The Clerk is directed to transmit copies of this order
The Clerk is requested to transmit this Order and

Notice to to counsel of record and any unrepresented parties.
all counsel of record and to any unrepresented
parties.
ENTER: August 22, 2016
DATED: January 5, 2016
John T. Copenhaver, Jr.
United States District Judge

32