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,

, 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.,

(1st Cir. 2022) (alteration

in original) (quoting Alston v. Spiegel,

, 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

- 2 - 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.

- 3 - 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

- 4 - 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,

, 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,

(1977). See

("[A]n association has standing to bring suit on behalf of its members

- 5 - Package Sys., Inc.,

(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,

(2009) (quoting Bell Atl. Corp. v.

Twombly,

(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,

(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.,

(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.,

(1996) ("[T]he associational standing test's third prong is a prudential one."); Nisselson v. Lernout,

(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.,

, 127 n.3 (2014) (declining to decide whether limitations on third-party standing are constitutional or prudential).

- 6 - and then quoting SEC v. Tambone,

(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,

(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."

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,

, 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."

Our statement that "a class of one is not a class of many," Cordi-Allen v. Conlon,

(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

Indeed, the class-of-one claim in Cordi-Allen was brought by two plaintiffs.

.

- 7 - Pittsfield,

(1st Cir. 2023) (quoting

Gianfrancesco v. Town of Wrentham,

(1st Cir.

2013)). "Plaintiffs must show an 'extremely high degree of

similarity' between themselves and those comparators."

(quoting Cordi-Allen v. Conlon,

(1st Cir. 2007)).

Although an "[e]xact correlation" is not required, Cordi-Allen,

(alteration in original) (quoting Tapalian v.

Tusino,

(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,"

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

- 8 - 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,

.

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,

(quoting Gianfrancesco,

). Indeed, the complaint makes no attempt to describe Front Beach or any other public beaches.

- 9 - The Committee argues that the Supreme Court's decision

in Engquist v. Oregon Department of Agriculture,

(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

. 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,

. The Court cited the example of a traffic officer issuing a speeding ticket to one speeding driver among many, noting that "allowing an equal

- 10 - 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

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

(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."

. 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.

- 11 - 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.

- 12 -