17-783-cv
NRP Holdings LLC v. City of Buffalo
17-783-cv
NRP Holdings LLC v. City of Buffalo
United States Court of Appeals
FOR THE SECOND CIRCUIT
______________
August Term, 2017
(Argued: January 31, 2018 Decided: February 20, 2019)
Docket No. 17‐783‐cv
______________
NRP HOLDINGS LLC, NRP PROPERTIES LLC,
Plaintiffs‐Appellants,
–v.–
CITY OF BUFFALO, BYRON W. BROWN, DEMONE A. SMITH, BUFFALO URBAN
RENEWAL AGENCY, STEVEN M. CASEY,
Defendants‐Appellees,
RICHARD A. STENHOUSE, BUFFALO JEREMIAH PARTNERSHIP FOR COMMUNITY
DEVELOPMENT, INC., JOHN DOE 1‐10, JOHN DOE COMPANIES, 1‐5,
Defendants.*
______________
Before:
SACK, PARKER, and CARNEY, Circuit Judges.
* The Clerk of Court is directed to amend the case caption to conform to the above.
______________
Plaintiffs‐Appellants NRP Holdings LLC and NRP Properties LLC (together,
“NRP”) made preliminary arrangements from 2007 through 2009 with the City of
Buffalo to build affordable housing on City‐owned land and to finance the project in
part with public funds. The project never came to fruition, allegedly because NRP
refused to hire a political ally of the mayor. NRP sued the City, the Buffalo Urban
Renewal Agency, the mayor, and other City officials, seeking redress. Between 2012 and
2017, the United States District Court for the Western District of New York (Skretny, J.)
resolved all of NRP’s claims in favor of defendants, some by dismissal under Rules
12(b)(6) and 12(c) and others by summary judgment. NRP appeals. We affirm. NRP’s
civil RICO claim against the City officials is barred by common‐law legislative
immunity because the mayor’s refusal to take the final steps necessary to approve the
project was discretionary legislative conduct, and NRP’s prima facie case would require
a factfinder to inquire into the motives behind that protected conduct. NRP’s “class of
one” Equal Protection claim was properly dismissed because NRP failed to allege in
sufficient detail the similarities between NRP’s proposed development and other
projects that previously received the City’s approval. NRP’s claim for breach of contract
was properly dismissed because the City’s “commitment letter” did not create a
binding preliminary contract in conformity with the Buffalo City Charter’s
requirements for municipal contracting. Finally, NRP fails to state a claim for
promissory estoppel. Under New York law, promissory estoppel is unavailable against
municipal entities except in rare cases of “manifest injustice.” N.Y. State Med.
Transporters Ass’n, Inc. v. Perales, 77 N.Y.2d 126, 130 (1990). NRP’s claim in the end fails
to meet this demanding standard.
AFFIRMED.
______________
NELSON PEREL (Thomas S. Lane, on the brief), Webster Szanyi
LLP, Buffalo, NY, for Plaintiffs‐Appellants.
2
MICHAEL A. BRADY (Daniel J. Brady, on the brief), Hagerty &
Brady, Buffalo, NY, for Defendants‐Appellees City of
Buffalo, Byron W. Brown, and Demone A. Smith.
RICHARD T. SULLIVAN, Harris Beach PLLC, Buffalo, NY, for
Defendant‐Appellee Buffalo Urban Renewal Agency.
Rodney O. Personius, Personius & Melber LLP, Buffalo, NY,
for Defendant‐Appellee Steven M. Casey.
______________
SUSAN L. CARNEY, Circuit Judge:
We confront here primarily a question of legislative immunity raised by a
mayor’s inaction in the face of well‐developed but extra‐contractual expectations of the
prospective developer of a low‐income housing project.
A real estate development team that included plaintiffs‐appellants NRP
Holdings LLC and NRP Properties LLC (together, “NRP”) made preliminary
arrangements with the City of Buffalo (“Buffalo,” or the “City”) from 2007 to 2009 to
build affordable housing on City‐owned land, a project that would be financed in large
part by public grants, loans, and tax exemptions (the “Project”). As the planning phase
drew to a close, NRP felt pressure from the City to hire an organization sponsored by a
political ally of Mayor Byron W. Brown as a contractor on the Project. After NRP hired a
different contractor—one that, in NRP’s estimation, offered a more attractive proposal
at lower cost—the City failed to take the steps necessary to approve the Project, and the
whole undertaking died on the vine.
In the aftermath, NRP filed suit seeking damages in the United States District
Court for the Western District of New York (Skretny, J.). As defendants, NRP named,
inter alia, the City, the City’s Urban Renewal Agency, and three City officials (the latter
three, the “individual defendants”): Mayor Brown; Deputy Mayor Steven M. Casey; and
3
Demone A. Smith, a member of the Buffalo Common Council (the City’s legislative
body). From 2012 through 2017, the District Court issued orders that resolved all of
NRP’s claims in defendants’ favor, some by dismissal under Federal Rule of Civil
Procedure 12(b)(6) and 12(c), and others by award of summary judgment under Rule 56.
NRP now appeals the District Court’s 2017 final judgment as to four claims that it
lodges against all of these defendants: one under the Racketeer Influenced and Corrupt
Organizations Act (“RICO”), 18 U.S.C. §§ 1961–1968; an equal protection claim asserted
under 42 U.S.C. § 1983; and two New York common‐law claims, one for breach of
contract and one under a theory of promissory estoppel.
We are troubled by the implications of the evidence that NRP adduced in
support of its claims. That evidence suggests that defendants’ motives for scuttling the
Project—a development that, it appears, might have benefited low‐income individuals
and families in Buffalo—stemmed from either caprice or a form of political engagement
whose ethical valence seems dubious. Nonetheless, as a matter of law, we conclude that
NRP’s damages claims fail. We therefore AFFIRM the District Court’s judgment in
favor of defendants.
BACKGROUND
I. Factual background
The following account is drawn from the record before the District Court when it
adjudicated defendants’ motions for summary judgment.2 The facts as described here
are undisputed by the parties unless otherwise indicated.
This evidence is relevant to our review of the District Court’s summary judgment rulings, but
2
we look only to NRP’s pleadings when reviewing the District Court’s earlier rulings on
defendants’ Rule 12 motions.
4
A. The proposed affordable housing project
In late 2007, NRP’s development team began discussions with the City and the
City of Buffalo Urban Renewal Agency (“BURA”) about a possible affordable housing
project to be located on Buffalo’s East Side.3 The Project was dubbed “East Side Housing
Opportunities II” (“East Side II”) because it was intended to resemble a recent similar
development project in the City, “East Side Housing Opportunities I” (“East Side I”), in
which certain members of NRP’s development team had played key roles.
As they had for East Side I, the parties developed a plan under which NRP
would purchase real property from the City and finance construction of the buildings
and infrastructure with a combination of private funds and four types of public
support:
(1) Federal “HOME” fund loans, which are made available under
the HOME Investment Partnerships Program and allocated by
state and local entities like BURA, see 42 U.S.C. §§ 12741–12756;
(2) An agreement for “payments in lieu of taxes” (a “PILOT
agreement”), under which NRP would be exempted from local
and county property taxes, and would instead comply with a
predefined schedule of payments to the City and to Erie
County;
(3) State tax credits provided under the New York State Low‐
Income Housing Tax Credit Program, see N.Y. Pub. Hous. Law
§§ 21–25; and
3 In early 2008, NRP entered into an agreement with the Belmont Shelter Corporation
(“Belmont”) under which Belmont would act as a developer on the Project, while NRP would
act as general contractor and assume responsibility for obtaining the necessary government
approvals. NRP later agreed to absorb Belmont’s Project‐related expenses in exchange for an
assignment of Belmont’s Project‐related rights and legal claims. In light of that assignment, it is
unnecessary here to differentiate between the two companies’ specific roles, and so we will refer
to “NRP” when describing actions taken by either company with respect to the Project.
5
(4) A low‐interest loan from the New York State Housing Trust
Fund, see N.Y. Priv. Hous. Fin. Law §§ 1100–1103.
Not surprisingly, each of these programs requires various applications and sets
processes for obtaining the necessary governmental approvals. As relevant for this
appeal, Buffalo municipal law provides that the City may enter into contracts for
transfers of City‐owned property and for PILOT agreements only if such contracts have
been approved by a vote of the City’s legislative body, called the “Common Council.”
City law vests Buffalo’s mayor with broad discretion over whether to introduce to the
Common Council the resolutions necessary to secure City approval.
B. The Wanamaker letter
In February 2008, the City and BURA set forth the fundamentals of their
undertakings with regard to East Side II in a series of letters addressed to NRP by
Timothy Wanamaker, who then served as BURA’s Vice President and (concurrently) as
the Executive Director of Buffalo’s Office of Strategic Planning. Most relevant for our
purposes is a letter addressed to NRP and dated February 25, 2008 (the “Wanamaker
letter”).
In what he called a “commitment letter,” Wanamaker described East Side II as
“redevelop[ing] a significant number of long vacant properties and creat[ing] much
needed affordable housing” in Buffalo by providing “fifty . . . units of single‐family
homes in the Masten Park and Cold Springs neighborhoods.” App’x 408‐09. He
confirmed to NRP that BURA had “earmarked” $1.6 million in HOME funds for the
Project, App’x 408, noting at the same time that before issuing any such funds, “BURA
is required to meet all applicable Federal, State and local rules and regulations,” App’x
409. Wanamaker also declared that “[t]he City will provide” $1.6 million in HOME
funds, will extend its “usual” Low‐Income Housing PILOT agreement to NRP, and will
6
provide “51 buildable vacant lots . . . at a price no greater than $2,000 per buildable lot,
and not to exceed a total price of $100,000.” Id. He cautioned, still, that “[t]his
commitment letter is only valid if [NRP] is successful in securing a 2008 Low‐Income
Housing Tax Credit allocation to complete the project” from New York State. Id.
C. Preliminary steps, but no final approval
In 2008 and early 2009, the City, BURA, and NRP took further steps to make East
Side II a reality. The City proposed a list of specific lots to be included in the Project.
BURA unanimously passed a resolution allocating $1.6 million in federal HOME funds
to the Project, an allocation decision that was then approved by the Buffalo Fiscal
Stability Authority (“BFSA”), which oversees the City’s financial operations. Serving as
an ex officio member of BFSA’s Board of Directors, Mayor Brown voiced no objection to
BURA’s proposed allocation of HOME funds in the BFSA proceedings. In his capacity
as Mayor, in March 2009 he filed a request with the United States Department of
Housing and Urban Development (“HUD”) for the release of $1.6 million of HOME
funds to support the Project.
In deposition, Mayor Brown testified that he and the City “were trying to move
this project forward” during this period, and “had every intention of supporting this
project.” App’x 1055. He further acknowledged that, based on communications such as
the Wanamaker letter and actions such as the City’s request to HUD for the release of
funds, NRP’s development team “could definitely feel that they were receiving support
from the city,” and “that it made sense for them to do everything that they were
supposed to do to try to complete [the] project.” Id. at 1059–60.
NRP did precisely that. It secured over $3 million in tax credits and low‐interest
loans from New York State and completed various other Project‐related tasks: it
conducted appraisals and title searches for the proposed lots, prepared architectural
7
designs, took out private loans, obtained insurance coverage, and submitted
applications for requisite permissions to various governmental bodies with jurisdiction
over the Project, such as the City Planning Board and the City’s Department of
Economic Development, Permit and Inspection Services. During this planning phase,
NRP spent more than $489,000 on unreimbursed Project‐related expenses and
uncompensated labor devoted to Project‐related tasks.
By mid‐2009, almost all the preliminary arrangements were in place. NRP was
prepared to begin construction as soon as Mayor Brown signed off on certain final
matters. Critically, the City’s legislature—the Common Council—had not yet approved
the property transfer or the PILOT agreement because Mayor Brown had not yet
introduced the necessary resolutions for the Council’s action.
As it turned out, he never would. As a result, the Project never received the
City’s final approval. NRP never broke ground, and East Side II was never built.
To encounter such an impasse so late in the development process was apparently
a rarity. Mayor Brown could not identify any other instance when an affordable
housing project failed to proceed after BURA approved the needed allocation of HOME
funds. As described above, he further testified that as late as March 2009, he and the
City “had every intention of moving . . . forward” with East Side II. App’x 1828.
Defendants have not offered any substantial explanation for the Mayor’s reversal.
D. The City’s request to include the Jeremiah Partnership in East Side II
NRP proffers this explanation: it asserts that Brown blocked East Side II in
retaliation for NRP’s refusal to comply with the Mayor’s demand, Appellants’ Br. 2,
namely, that NRP create a paid contractor role for a not‐for‐profit coalition of faith‐
based organizations based in Buffalo’s East Side, referred to locally as the Buffalo
8
Jeremiah Partnership for Community Development (the “Jeremiah Partnership”). That
organization was led by the Reverend Richard A. Stenhouse, whom NRP characterizes
as a “key opinion[ ]maker” in Buffalo and Brown’s “political ally.” Appellants’ Br. 10.
Not surprisingly, the facts relevant to NRP’s assertion are disputed by the parties.
Because this appeal arises out of defendants’ successful motions for summary
judgment, we resolve all ambiguities and draw all reasonable inferences from the
record in NRP’s favor. See Willey v. Kirkpatrick, 801 F.3d 51, 62 (2d Cir. 2015).
1. The City’s request that NRP hire the Jeremiah Partnership
According to sworn statements made by defendant Casey (then Buffalo’s deputy
mayor), and Steven Weiss (NRP’s outside counsel during the planning phase of East
Side II), Mayor Brown stated on multiple occasions in late 2008 and early 2009 that the
Project would move forward only if NRP provided a prominent paid role for the
Jeremiah Partnership.4 The Mayor expressed frustration, Casey and Weiss averred, that
large development projects like East Side II were often orchestrated by “out of town
white developers,” and said he wanted Reverend Stenhouse to be involved “as the face
of [this] Project in the Black community.” App’x 2151.
4 NRP relied on Casey’s and Weiss’s sworn statements rather than deposition testimony because
Defendants moved for summary judgment before the close of discovery, when NRP had not yet
deposed Casey and various other witnesses whom it had slated for examination. See Dist. Ct.
Dkt. 154‐1 at 9–10 (declaration in support of NRP’s motion to strike or defer resolution of
defendants’ summary judgment motions until completion of discovery). The District Court
concluded, however, that NRP had presented no legal basis for deferring adjudication of
defendants’ motions. Dist. Ct. Dkt. 175 at 3‐4 (Decision and Order filed Nov. 17, 2016). The
court’s order denying deferral noted, too, the individual defendants’ assertion of qualified and
legislative immunity as defenses against NRP’s federal claims and, in acting before the close of
discovery, cited this Circuit’s directive that “questions of immunity should be resolved ‘at the
earliest possible stage of the litigation.’” Id. at 3 (alteration omitted) (quoting Drimal v. Tai, 786
F.3d 219, 225 (2d Cir. 2015)).
9
Several contemporaneous emails and letters corroborate these accounts. On
March 12, 2009, for example, a BURA official emailed NRP seeking a signed agreement
with NRP for the purposes, among other things, of meeting certain goals for local hiring
and for inclusion of minority‐ and women‐owned business enterprises (“MWBEs”), and
of “[w]ork[ing] with the . . . Jeremiah Partnership on this project.” App’x 1986. The
BURA official wrote that she had met with Stenhouse and “worked out” an agreement
under which the Jeremiah Partnership would “assist in recruiting local minority sub‐
contractors,” and NRP would permit Jeremiah‐affiliated individuals to “shadow” NRP
staff throughout the Project so that those individuals could gain experience in
contracting and development. Id.
In a March 30, 2009 email to members of NRP’s development team, NRP Vice
President Aaron Pechota complained that he had “just [been] put on the spot” when a
City official reiterated to him the City’s request that NRP secure a “service contract”
under which the Jeremiah Partnership would “help” NRP meet its goals for contracting
with MWBEs (as requested by the City) and for employing low‐income individuals (as
required by federal law for projects financed by HOME funds, see 12 U.S.C. §§ 1701u, et
seq.). App’x 2000. Pechota noted that he was “waiting to hear how much [Jeremiah]
want[s]” for those services, but explained to his colleagues that the City “want[s] an
answer asap (next 1.5 hours) if we are going to get our land approved [by the Common
Council] tomorrow.” Id.
Only one hour later, Stenhouse emailed NRP and City officials, proposing in a
five‐line email that Jeremiah “provide mwbe and [low‐income] subcontractors for the
fifty houses” to NRP in exchange for $30,000 and a year’s worth of “management
training” for Jeremiah members. App’x 1984. Shortly thereafter on March 30, after
meeting, NRP emailed a counter‐proposal, which it fleshed out the following day. NRP
10
withdrew that offer, however, in a letter dated April 8, 2009, explaining that, “[t]o avoid
even the appearance of any impropriety,” NRP had opted for “an open and public
process to engage a local organization” for assistance with its hiring goals. App’x 1696.
When Weiss notified Mayor Brown of NRP’s decision to proceed with competitive
bidding, Brown replied (as Weiss averred) “that he didn’t care what [NRP] did so long
as [it] hired ‘the right company.’” App’x 2170.
On April 15—before NRP released its request for proposals for Project
subcontractors (the “RFP”)—a Jeremiah representative emailed Pechota a proposed
service agreement, advising that “Reverend Stenhouse is ready to place his call to the
Mayor endorsing our approach, provided I can show him an executed agreement with
your firm.” App’x 2004. Two weeks later, the City’s Commissioner of Economic
Development told Mayor Brown and Deputy Mayor Casey that he’d met with Weiss,
who “said [NRP] knows what to do” and “will do it.” App’x 2008. The Commissioner
wrote further, “Rev. Stenhouse will call [the] Mayor should that contract be signed this
AM. IF that happens, presumably the file could be introduced for passage today [before
the Common Council].” Id. When a City official promptly followed up, however,
Pechota responded that NRP “cannot execute any documentation prior to undertaking
the RFP process.” App’x 2010.
2. NRP’s competitive bidding process
In late April 2009, NRP released its RFP for outreach services. It received
responsive proposals from, among others, the Jeremiah Partnership, and the University
at Buffalo’s Center for Urban Studies (the “University Center”). As compared to
Jeremiah’s three‐page offering, the University Center’s twelve‐page proposal provided
substantial detail when describing the Center’s past successes and its proposed work
plan for East Side II. Moreover, Jeremiah’s bid of $80,000—which included an opaque
11
lump‐sum “administrative” fee of $35,000—was nearly double the University Center’s
bid of $40,524 for what to all appearances was a substantially similar set of services.
In a letter dated May 12 of that year, NRP notified the City that it had selected
the University Center for the job, explaining that the Center’s proposal “ranked far
superior to the others.” App’x 2094. Weiss shared this news with Mayor Brown in a
conversation. As Weiss remembered it, the Mayor responded, “I told you what you had
to do and you hired the wrong company.” App’x 2171.
3. Mayor Brown’s professed reasons for declining to approve East Side II
According to Deputy Mayor Casey, Mayor Brown’s attitude toward East Side II
“pivoted” after NRP selected the University Center over the Jeremiah Partnership.
App’x 2152. For the first time, Brown began expressing concerns about two features of
the Project: first, that the housing units would be built on scattered sites rather than in
one consolidated area; and second, that the units would be made available on a 30‐year
rent‐to‐own basis rather than on other terms. Those two features had been part of East
Side II’s design from the very beginning, however, as confirmed by the February 2008
Wanamaker letter. The City itself identified the specific lots to be included in the
Project, and later approved at least one other housing project that was similarly built on
scattered sites. Meanwhile, Wanamaker had declared in his February 2008 letter that the
City supported the lease‐to‐own financial structure because it would “provide[] future
homeownership opportunities to residents who are not currently prepared to become
homeowners, while providing them with clean, state‐of‐the‐art housing today.”
App’x 409.
Meanwhile, June passed with no action by the Mayor. In a letter dated July 10,
2009, NRP protested to Mayor Brown that “[t]he only reason the Project has not and
will not move forward is the inaction of your office,” including Brown’s failure to
12
“forward[] necessary resolutions to the Buffalo Common Council.” App’x 2119. In
NRP’s view, the City had “repeatedly communicated . . . that the real reason for the
inaction” was NRP’s decision not to “contract with the Jeremiah Partnership as a
consultant.” Id.
II. Procedural history
NRP filed suit in June 2011, asserting claims under federal and New York State
law against the City, BURA, and the individual defendants.5 From 2012 through 2017,
the District Court issued a series of orders that collectively resolved all claims in
defendants’ favor. See NRP Holdings LLC v. City of Buffalo, No. 11‐CV‐472S, 2012 WL
2873899, 2012 U.S. Dist. LEXIS 97027 (W.D.N.Y. July 12, 2012) (granting in part a motion
to dismiss by the City and the individual defendants); NRP Holdings LLC v. Buffalo
Urban Renewal Agency, No. 11‐CV‐472S, 2013 WL 5276540, 2013 U.S. Dist. LEXIS 132602
(W.D.N.Y. Sept. 17, 2013) (granting in part BURA’s motion to dismiss); NRP Holdings
LLC v. City of Buffalo, No. 11‐CV‐472S, 2015 WL 9463199, 2015 U.S. Dist. LEXIS 172153
(W.D.N.Y. Dec. 28, 2015) (granting in part defendants’ motions for judgment on the
pleadings); NRP Holdings LLC v. City of Buffalo, No. 11‐CV‐472S, 2017 WL 745860, 2017
U.S. Dist. LEXIS 27064 (W.D.N.Y. Feb. 27, 2017) (granting defendants’ motions for
summary judgment).
NRP timely appealed the resulting judgment entered for defendants, challenging
the District Court’s resolution of the following four sets of claims:
(1) A civil RICO claim asserted against the individual defendants
(resolved by summary judgment);
5 NRP also named Reverend Stenhouse and the Jeremiah Partnership as defendants in its
original complaint. In 2012, however, NRP voluntarily dismissed all claims against them with
prejudice.
13
(2) A violation of the Equal Protection Clause, asserted via section
1983 against the City, BURA, and the individual defendants
(dismissed under Rule 12(b)(6));
(3) A claim for breach of contract asserted against the City and
BURA (dismissed under Rule 12(b)(6)); and
(4) A claim for promissory estoppel asserted against the City,
BURA, and the individual defendants (dismissed in part under
Rule 12(c), and later resolved by summary judgment).6
DISCUSSION
We review de novo dismissals under Rules 12(b)(6) and 12(c), asking whether the
allegations in the complaint, taken as true, state a plausible claim for relief. Willey, 801
F.3d at 61‐62. We also review de novo an order granting summary judgment under Rule
56, construing all record evidence in the light most favorable to the non‐moving party.
Id. at 62. We will affirm a summary judgment only if “there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a).
NRP’s allegations and evidence raise troubling questions about defendants’
conduct regarding the East Side II development, particularly insofar as it can reasonably
be inferred that the City would have approved the Project had NRP only agreed to pay
the Mayor’s ally for services in an amount that might be subject to question. For the
6 In addition to the claims listed in the text above, NRP asserted claims against the City, BURA,
and the individual defendants for due process violations, tortious interference with contract,
and tortious interference with prospective economic advantage. The District Court dismissed
these claims under Rules 12(b)(6) and 12(c). Although NRP’s notice of appeal purports to appeal
the District Court’s disposition of all of NRP’s causes of action against the City, BURA, and the
individual defendants, NRP’s appellate briefs make no mention of due process violations or
tortious interference. We thus treat these claims as abandoned. See Mortimer Off Shore Servs., Ltd.
v. Fed. Republic of Germany, 615 F.3d 97, 103 n.9 (2d Cir. 2010).
14
reasons set forth below, however, we are nonetheless constrained to affirm the District
Court’s judgment on all claims. We conclude first that NRP’s civil RICO claim is barred
by the common‐law doctrine of legislative immunity. Second, as to its claim for a “class
of one” equal protection violation, NRP’s complaint fails because it does not sufficiently
allege the existence of similarly situated comparators. Next, NRP does not state a viable
claim for breach of contract because NRP has failed to show that either the City or
BURA entered into a binding preliminary agreement under municipal contracting rules
that obligated the parties to continue negotiating in good faith. Finally, NRP fails to
state a claim for promissory estoppel under New York law because it has not shown
that defendants’ conduct worked a “manifest injustice”—a stringent standard that is
only rarely met by a plaintiff desiring to pursue a promissory estoppel claim against a
municipal entity in New York.
I. Civil RICO
NRP asserts a civil RICO claim under 18 U.S.C. § 1964 against the individual
defendants, each in his individual capacity.7 It characterizes these defendants as
conspiring to extort concessions from NRP (and from other unnamed developers
working on other affordable housing projects), in violation of 18 U.S.C. § 1962(c) and
(d).8 To succeed on this claim, however, as we explain below, NRP must adduce facts
concerning Mayor Brown’s failure to introduce certain Project‐related resolutions before
7 Section 1964 provides a private right of action for “[a]ny person injured in his business or
property by reason of a violation of section 1962 of this chapter,” referring to title 18, chapter 96,
“Racketeer influenced and corrupt organizations.”
8 As relevant here, section 1962(c) makes it unlawful “for any person . . . associated with any
enterprise . . . to conduct or participate, directly or indirectly, in the conduct of such enterprise’s
affairs through a pattern of racketeering activity . . . .” Section 1962(d) makes it unlawful to
conspire to do (among other acts) what section 1962(c) prohibits.
15
the City’s Common Council—ultimately the action, or perhaps better termed the
inaction, that ended the East Side II Project. Because we conclude that his failure to
introduce the necessary resolutions amounted to protected legislative conduct, we agree
with the District Court that NRP’s civil RICO claim is barred by the common‐law
doctrine of legislative immunity. Accordingly, we affirm the court’s award of summary
judgment to the individual defendants on NRP’s civil RICO claim.
A. Legislative immunity for state and local officials
Under the Speech or Debate Clause of the federal Constitution, members of the
United States Congress enjoy absolute immunity from civil and criminal liability for
conduct that falls “within the sphere of legitimate legislative activity.” Eastland v. U. S.
Servicemenʹs Fund, 421 U.S. 491, 503 (1975) (discussing U.S. Const. art. I, § 6, cl. 1).9 The
Supreme Court has determined that, under the common law, state and local
government officials similarly enjoy absolute immunity against federal civil claims
asserted against them in their individual capacities for equivalent legislative activity.
Bogan v. Scott‐Harris, 523 U.S. 44, 49 (1998). “Regardless of the level of government,” the
Bogan Court explained, “the exercise of legislative discretion should not be inhibited by
judicial interference or distorted by the fear of personal liability.”10 Id. at 52.
9 The clause provides in relevant part:
The Senators and Representatives . . . shall in all Cases, except Treason, Felony
and Breach of the Peace, be privileged from Arrest during their Attendance at the
Session of their respective Houses, and in going to and returning from the same;
and for any Speech or Debate in either House, they shall not be questioned in
any other Place.
U.S. Const. art. I, § 6, cl. 1.
The Supreme Court observed in Bogan at the same time that “certain deterrents to legislative
10
abuse may be greater at the local level than at other levels of government.” Bogan, 523 U.S. at 53.
16
The related common‐law immunity that the Court has recognized attaches to
particular types of conduct, not to particular job titles. See Gravel v. United States, 408 U.S.
606, 624–25 (1972). Thus, “officials outside the legislative branch” may be entitled to
legislative immunity when “they perform legislative functions.” Bogan, 523 U.S. at 55
(mayor performed “formally legislative” activities when introducing a budget
resolution and signing an ordinance); see also Sup. Ct. of Va. v. Consumers Union of U. S.,
Inc., 446 U.S. 719, 731 (1980) (state supreme court acted legislatively when it issued
attorney code of conduct). Analysis of the function at issue is therefore critical to a
determination of whether legislative immunity will shield a defendant.
As discussed in greater detail below, a defendant may be entitled to invoke
legislative immunity when the plaintiff’s prima facie case depends on an inquiry into
the defendant’s legislative activity. United States v. Brewster, 408 U.S. 501, 512 (1972). A
comprehensive immunity analysis thus would require a court to determine each
individual defendant’s potential entitlement to legislative immunity by considering
whether NRP’s civil RICO claim targets legislative conduct engaged in by that defendant.
Here, that would call for scrutiny of NRP’s civil RICO claim with respect to each
Unlike the states and the federal government, it observed, municipal entities “can be held
[directly] liable for constitutional violations . . . . And, of course, the ultimate check on
legislative abuse—the electoral process—applies with equal force at the local level, where
legislators are often more closely responsible to the electorate.” Id. We note, in addition, that
federal common‐law legislative immunity protects state and local officials only against federal
civil law claims; it does not preclude federal or state criminal prosecutions or the pursuit of
state‐law causes of action for damages. United States v. Gillock, 445 U.S. 360, 373 (1980); Lake
Country Estates, Inc. v. Tahoe Reg’l Planning Agency, 440 U.S. 391, 405 (1979). And significantly,
unlike the constitutional immunity enjoyed by federal legislators, common‐law immunity may
be abrogated by statute. See, e.g., Tenney v. Brandhove, 341 U.S. 367, 376 (1951) (concluding that
Congress intended no such abrogation with respect to liability under section 1983 for state
legislators). But we need not decide here whether the federal civil RICO statute abrogates
common‐law immunity: NRP has made no argument to that effect.
17
defendant. Neither the District Court nor the parties performed that type of
individualized assessment here, however. Instead, they focused solely on the question
whether Mayor Brown performed a legislative function when he declined to introduce
those anticipated resolutions before the Common Council that would have approved a
sale of City‐owned property to NRP and a PILOT agreement. In the sections that follow,
we adopt the parties’ general approach and address each element of the legislative
immunity defense, asking, first, whether Brown’s conduct was legislative in nature and,
if so, whether NRP must adduce facts concerning that conduct to state a valid civil
RICO claim against one or more of the individual defendants.
B. Characterizing Brown’s conduct as “legislative” or “administrative”
As we have observed, the Supreme Court directed courts to accord absolute
legislative immunity to “all actions taken in the sphere of legitimate legislative activity.”
Bogan, 523 U.S. at 54 (internal quotation marks omitted). In doing so, it stressed that
“[w]hether an act is legislative turns on the nature of the act, rather than on the motive
or intent of the official performing it.” Id.
Drawing on Bogan, our Court has defined a two‐part inquiry for determining
whether an act is legislative:
First, it is relevant whether the defendants’ actions were
legislative in form, i.e., whether they were integral steps in
the legislative process. Second, it may also be relevant
whether defendants’ actions were legislative in substance, i.e.,
whether the actions bore all the hallmarks of traditional
legislation, including whether they reflected discretionary,
policymaking decisions implicating the budgetary priorities
of the government and the services the government provides
to its constituents.
State Emps. Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 89 (2d Cir. 2007) (first
emphasis added) (internal quotation marks, citations, and alterations omitted). When
18
“high‐level executive branch officials” like Mayor Brown seek to “claim the protections
of an immunity traditionally accorded to members of the legislative branch,” they must
“show that their activities were ‘legislative’ both in form and in substance.” Id. (final
emphasis added).
We conclude that Mayor Brown’s discretionary conduct in declining to introduce
the necessary resolutions before the Common Council satisfies both elements of the
Rowland test, and therefore constitutes protected legislative activity. Our reasons are as
follows.
As an initial matter, Brown’s actions (or specific inaction, here) seem to us
without doubt legislative in form. Introducing a measure for a vote by a legislative body
amounts to an “integral step[] in the legislative process,” and is therefore a “formally
legislative” act, even when performed by an executive official. Bogan, 523 U.S. at 55; see
also Kilbourn v. Thompson, 103 U.S. 168, 204 (1880) (legislative immunity protects
“resolutions offered”). If introducing a resolution is a legislative act, then, precedent
suggests, so must be refusal to introduce a resolution. See Sup. Ct. of Va., 446 U.S. at 731–
34 (concluding that Virginia Supreme Court acted legislatively both when it
promulgated attorney code of conduct and when it declined to amend code of conduct);
see also Yeldell v. Cooper Green Hosp., Inc., 956 F.2d 1056, 1063 (11th Cir. 1992) (explaining
that legislative immunity “protect[s] the democratic integrity of the legislative process”
by preventing individuals from suing legislators “to ensure that a certain piece of
legislation is brought before [a legislative] body for a vote”). The “exercise of legislative
discretion” that legislative immunity is meant to protect, Bogan, 523 U.S. at 52, surely
implies a genuine choice whether or not to perform a given legislative act.
We turn, therefore, to the second element of the Rowland test, which asks
whether Brown’s conduct was legislative in substance. On this point, we lack the benefit
19
of any precedential cases presenting similar facts. Since Bogan, our discussions of
legislative immunity for state and local officials in precedential opinions have arisen
primarily from disputes concerning individuals in public employment, not real estate or
large‐scale public projects.11 Those employment cases established the following
principles, instructive here: “The elimination of a position . . . is a substantively
legislative act . . . . By contrast, a personnel decision is administrative in nature if it is
directed at a particular employee . . . and is not part of a broader legislative policy.”
Rowland, 494 F.3d at 91 (emphases added) (internal quotation marks, citations, and
alterations omitted). 12
Reasoning from those cases, NRP argues that “[i]n the land development context,
refusal to process a proposed development plan and/or issue a needed permit is
administrative in nature, and thus not protected by legislative immunity.” Appellants’
Br. 36. In support, it cites Anderson Group, LLC v. City of Saratoga Springs, 557 F. Supp. 2d
332 (N.D.N.Y. 2008), in which the district court concluded that legislative immunity
protected members of the Saratoga Springs City Council who voted to rezone a district,
but not members of the City Planning Board who—allegedly in bad faith—delayed
adjudicating a particular application for a special use permit. Id. at 345. The Planning
See Rowland, 494 F.3d at 91‐92; Almonte v. City of Long Beach, 478 F.3d 100, 108 (2d Cir. 2007);
11
Harhay v. Town of Ellington Bd. of Educ., 323 F.3d 206, 210–11 (2d Cir. 2003); Camacho v. Brandon,
317 F.3d 153, 164‐65 (2d Cir. 2003); see also Jessen v. Town of Eastchester, 114 F.3d 7, 8–9 (2d Cir.
1997) (per curiam) (pre‐Bogan decision assessing immunity for state legislators in connection
with a public‐employment dispute).
We recognize that the categories of “legislative” and “administrative” acts, while mutually
12
exclusive, are not necessarily exhaustive of the conduct of officialdom: the Supreme Court has
also defined legislative activity by way of comparison to, for example, “political” activity,
Brewster, 408 U.S. at 512, and “enforcement” actions, Sup. Ct. of Va., 446 U.S. at 735–36. We focus
here on Rowland’s legislative/administrative distinction because this analytical framework
appears best‐suited to the facts at hand, and because it occupied a central role in both the
District Court’s analysis and the briefing on appeal.
20
Board defendants appealed and, in a non‐precedential order, this Court affirmed the
denial of legislative immunity to those defendants on the grounds that the action taken
with regard to the special use permit application was “administrative in nature.”
Anderson Grp., LLC v. Lenz, 336 F. App’x 21, 23 (2d Cir. 2009) (summary order). NRP
argues that Mayor Brown’s “conduct was [similarly] administrative in nature
because . . . it was directed [at] a single developer on a single project and was not part of
a broader legislative policy.” Appellants’ Br. 35.
Although the argument has some force, it fails to persuade us. Even if the
Anderson rulings were binding here (and they are not), their factual setting is quite
unlike that presented by NRP, and their conclusions would not affect our result. In this
case, NRP did not merely apply to a planning board seeking, pursuant to well‐
established zoning rules, a permit to build homes on its own land using its own money.
Rather, East Side II was conceived as a joint public‐private venture through which the
City would expand affordable housing options for its residents by contributing
substantial municipal resources. Had the Project proceeded, these contributions would
have taken the form of (as listed supra Background Section I.A) a PILOT tax incentive,
the transfer of City‐owned property, and the allocation of $1.6 million in BURA‐
administered HOME funds. Mayor Brown, the City’s chief executive, faced the decision
whether to seek Common Council approval for certain aspects of the Project. Those
aspects affected municipal resources in their own right and carried additional
significance when viewed in context: approval of those features was needed before NRP
could secure financing and begin construction. Unlike the zoning board in Anderson,
Brown was not deciding simply whether to seek the Common Council’s blessing for a
private development project; he was deciding whether a multimillion‐dollar housing
project, which would use extensive City resources, should proceed at all.
21
Upon review of these circumstances, we agree with the District Court that Mayor
Brown’s decision not to introduce the resolutions for Common Council action
amounted to a “discretionary, policymaking decision[]” that implicated the City’s
“budgetary priorities . . . and the services [it] provides to its constituents.” NRP
Holdings, 2017 WL 745860, at *8, 2017 U.S. Dist. LEXIS 27064, at *24 (quoting Rowland,
494 F.3d at 89). We decide, therefore, that Mayor Brown’s conduct in failing to present
the resolution for Common Council action was legislative in substance, as well as in
form, and thus constitutes protected legislative conduct for purposes of our analysis of
common‐law legislative immunity.
NRP argues that Brown’s conduct is nonetheless not entitled to legislative
immunity because his alleged pay‐to‐play scheme removes his actions from the “sphere
of legitimate legislative activity.” Rowland, 494 F.3d at 89 (quoting Bogan, 523 U.S. at 54)
(emphasis added). This argument fails, however, because it conflates Brown’s
legislative conduct—his inaction before the Common Council—with other possibly
illicit and unprotected acts in his alleged scheme—that is, his purported demands that
NRP hire Stenhouse for what NRP describes as substantially a no‐show role. The term
“legitimate,” as we and the Supreme Court have used it in this context, serves no
function other than to emphasize that legislative immunity attaches only when a given
act is validly classified as legislative. See Tenney v. Brandhove, 341 U.S. 367, 377 (1951)
(“The claim of an unworthy purpose does not destroy the privilege.”).
C. Identifying the relevant conduct for civil RICO purposes
Having concluded that by declining to submit the resolutions for approval,
Mayor Brown engaged in protected legislative conduct, we next consider whether that
conduct is an essential component of NRP’s civil RICO claim. We conclude that NRP’s
theory of RICO liability against all three individual defendants depends, in part, on a
22
showing that Brown’s legislative decision not to introduce Common Council
resolutions was fatally tainted by improper motive.13 The Mayor could have declined to
introduce the resolutions for either legitimate or illegitimate reasons; either way, this
decision is protected by legislative immunity. We therefore affirm the District Court’s
conclusion that legislative immunity bars NRP’s civil RICO claim against the individual
defendants.
1. The defense of legislative immunity is available against only those claims
that would require a factfinder to consider evidence of an official’s legislative actions.
The Supreme Court defined the contours of this test in a pair of decisions arising out of
federal corruption prosecutions: United States v. Johnson, 383 U.S. 169 (1966), and United
States v. Brewster, 408 U.S. 501 (1972). Before discussing these cases, we pause to explain
why, in a civil appeal concerning common‐law legislative immunity asserted by city
officials, we see fit to rely on criminal cases that addressed constitutional legislative
immunity asserted by federal officials in defending criminal prosecutions.
The District Court appeared to disclaim reliance on any legislative immunity
cases arising out of criminal proceedings, explaining that, unlike constitutional
legislative immunity, common‐law legislative immunity does not protect against
federal criminal prosecutions. The District Court is correct that constitutional immunity
protects against a broader set of claims than does the common‐law doctrine. See United
States v. Gillock, 445 U.S. 360, 373 (1980); Lake Country Estates, Inc. v. Tahoe Reg’l Planning
Agency, 440 U.S. 391, 405 (1979). That difference in scope aside, however, courts have
13 As noted above in Discussion Section I.A, courts should generally consider the defense of
legislative immunity on a defendant‐by‐defendant basis. We nonetheless affirm the District
Court’s aggregated immunity analysis in this instance based on the record and the arguments
presented to us in this appeal.
23
generally construed the two doctrines to be closely parallel in application. See Sup. Ct. of
Va., 446 U.S. at 733 (“[W]e generally have equated the legislative immunity to which
state legislators are entitled . . . to that accorded Congressmen under the Constitution.”);
Star Distributors, Ltd. v. Marino, 613 F.2d 4, 8 (2d Cir. 1980) (“The shared origins and
justifications of these two doctrines would render it inappropriate for us to differentiate
the scope of the two without good reason.”); Schmidt v. Contra Costa Cty., 693 F.3d 1122,
1132 (9th Cir. 2012) (characterizing “common‐law immunity against civil suits” as
“parallel to the immunity provided by the Speech or Debate Clause”).
Here, neither the District Court nor the parties have offered any basis for
presuming that the civil or criminal nature of a case would influence a court’s
determination that a defendant’s conduct constitutes (or does not constitute) protected
legislative activity, or that the conduct is (or is not) integral to the opposing side’s prima
facie case. We thus see no reason not to look for guidance to Supreme Court precedent
arising out of criminal, as well as civil, proceedings, as have our sister circuits in other
civil appeals. See, e.g., Youngblood v. DeWeese, 352 F.3d 836, 840 (3d Cir. 2004) (in civil
case, citing criminal decisions that address definition of “legislative” activity); Thillens,
Inc. v. Cmty. Currency Exch. Ass’n of Ill., Inc., 729 F.2d 1128, 1131 (7th Cir. 1984) (in civil
case, citing criminal decisions that discuss “prima facie” standard). Because these
criminal cases may provide useful insight, then, we now turn to a closer discussion of
Johnson and Brewster.
In 1966, in Johnson, the Court affirmed the Fourth Circuit’s decision setting aside
a federal representative’s criminal conspiracy convictions on legislative immunity
grounds. The charged offense conduct at issue on appeal consisted primarily of
accepting bribes in exchange for making a speech in the House of Representatives; the
prosecution’s conspiracy theory “depended upon a showing that the speech was made
24
solely or primarily to serve private interests.” 383 U.S. at 177. In other words, the
prosecution asked the jury to consider both the “motives underlying the making of the
speech” and the speech’s “contents” to convict. Id. at 184. Finding that the act of
delivering the speech in the House was quintessentially legislative activity, the Court
declined to consider the asserted motivations for the act, and concluded that the
representative was entitled to constitutional legislative immunity.14
In contrast, in Brewster, the Court determined that a former U.S. Senator was not
entitled to legislative immunity. The former legislator was charged under a statute that
the Court characterized as criminalizing “accepting a bribe in exchange for a promise
relating to an official act.” 408 U.S. at 502 (describing 18 U.S.C. § 201(c)(1), (g)).
Critically, in Brewster the government bore no obligation to show that the defendant
former Senator “fulfilled the alleged illegal bargain” because the statutory violation was
complete upon accepting something of value in exchange for a promise. Id. at 526
(emphasis added). As the Court observed, “Taking a bribe is, obviously, . . . not a
legislative act.” Id. Thus, the defendant was not entitled to legislative immunity: unlike
in Johnson, “no inquiry into legislative acts or motivation for legislative acts [was]
necessary for the [prosecution] to make out a prima facie case.” Id. at 525. All that was
needed was the threshold determination that the act for which he was prosecuted—
accepting a bribe—was not legislative.
2. Applying this framework to the case at hand, we begin by identifying the
required elements of NRP’s civil RICO claim against the three individual defendants.
We next consider whether NRP, as plaintiff, can satisfy those elements without
The Court noted that the representative’s “speech . . . was only a part of the conspiracy
14
charge” lodged under 18 U.S.C. § 371. Johnson, 383 U.S. at 185. It left open the possibility of a
retrial “wholly purged of elements offensive to the Speech or Debate Clause.” Id.
25
considering the fact of, or motives for, Mayor Brown’s refusal to seek Common Council
approval for the transfer of City‐owned lots or the PILOT agreement. Because we
determine that the circumstances of this case preclude NRP from doing so, we hold that
the three individual defendants are shielded by legislative immunity.
To state a civil RICO claim, NRP must show, first, that the individual defendants
committed a substantive RICO violation, and second, that the violation proximately
caused an injury to NRP’s business or property. See 18 U.S.C. § 1964(c); DʹAddario v.
DʹAddario, 901 F.3d 80, 96 (2d Cir. 2018). As to the second element, NRP asserts that it
was directly injured by the individual defendants’ demands that it provide the Jeremiah
Partnership with an (overpriced) paid consulting role in East Side II. Attempting to
draw an analogy to Brewster, NRP insists that “the extortion[ate] demand itself [gave]
rise to fear of economic loss, regardless of whether . . . [the individual defendants] made
good on this threat.” Appellants’ Reply Br. 21. This fear, they urge, was injury enough
to sustain that claim.
NRP’s theory falls short of the mark. NRP has cited no authority to support its
assertion that mere fear of economic loss is sufficient to satisfy the required RICO
element of a compensable injury to business or property. In our view, the only
potentially cognizable injury to NRP in this matter consists of the $489,000 in
expenditures that it incurred during the Project’s preliminary planning phases. Those
expenditures did not become losses, however, until the Project failed to move forward
as planned. To show a proximately caused injury, NRP must demonstrate that East Side
II failed to move forward because of a substantive RICO violation committed by the
individual defendants. DʹAddario, 901 F.3d at 96 (requiring RICO plaintiffs to show
“some direct relation between the injury asserted and the injurious conduct alleged”);
see, e.g., Chappell v. Robbins, 73 F.3d 918, 921 (9th Cir. 1996) (concluding that a state
26
senator’s “acceptance of bribes caused no injury” to plaintiff, a private citizen, until the
senator “acted on those bribes and pushed legislation through” that harmed plaintiff’s
business (emphasis added)). This, they cannot do without reference to the Mayor’s
failure to introduce the required resolutions—the act that is legislative in substance and
in form.
It is undisputed that the East Side Housing II development could not be realized
without a transfer of City‐owned property and execution of a PILOT agreement, and
that both of these acts required the Common Council’s approval. It is also undisputed
that Mayor Brown retained sole discretion over whether to introduce the resolutions
necessary to obtain that approval. Brown’s decision not to introduce those resolutions
thus constitutes a “necessary step in the causal chain linking the [individual]
defendant[s’] alleged [misconduct] to [NRP’s] injury.” Sergeants Benevolent Ass’n Health
& Welfare Fund v. Sanofi‐Aventis U.S. LLP, 806 F.3d 71, 87 (2d Cir. 2015). Whatever RICO
violations the individual defendants may have committed during the Project’s planning
phase, NRP cannot show an injury proximately caused by those violations without
inquiring into Brown’s discretionary decision not to seek Common Council approval for
the land transfer and the PILOT agreement. If Brown’s decision was not itself a RICO
violation, and if he was authorized to make the same decision irrespective of any prior
racketeering activity, that decision would amount to an intervening cause sufficient to
break the causal chain. See id.15
In Sergeants Benevolent Association, we discussed the import of such intervening causes as
15
follows in the context of an asserted RICO mail‐fraud violation:
Although reliance on the defendant’s alleged misrepresentation is not an element
of a RICO mail‐fraud claim, the plaintiffs’ theory of injury in most RICO mail‐
fraud cases will nevertheless depend on establishing that someone . . . relied on
the defendant’s misrepresentation. . . . [I]f the person who was allegedly
27
We determined above that Brown’s inaction regarding the Common Council
resolutions was protected legislative conduct. We now conclude that NRP is unable to
“make out a prima facie case” on its RICO claim without reliance on that legislative
conduct. Brewster, 408 U.S. at 525. NRP’s civil RICO claim as against all three individual
defendants is therefore barred by the legislative immunity that attaches to Brown’s
protected legislative conduct. See, e.g., Chappell, 73 F.3d at 921‐22 (affirming dismissal of
civil RICO claim “because the conduct by which the [defendant senator’s] bribe
proximately caused [plaintiff’s] injury was legislative, and therefore immune”).
For these reasons, we affirm the District Court’s grant of summary judgment on
NRP’s civil RICO claim to the three individual defendants.
II. Equal Protection
NRP also charges that the City, BURA, and the individual defendants violated
NRP’s rights, as a “class of one,” under the Equal Protection Clause, thereby entitling it
to damages under 42 U.S.C. § 1983. The District Court dismissed this claim under
Rule 12(b)(6). We affirm the dismissal because NRP failed to sufficiently allege the
existence of similarly situated comparators.16
deceived by the misrepresentation . . . would have acted in the same way
regardless of the misrepresentation, then the misrepresentation cannot be a but‐
for, much less proximate, cause of the plaintiffs’ injury.
806 F.3d at 87 (emphasis added) (internal citations and footnote omitted).
The District Court provided two grounds for its dismissal of NRP’s class‐of‐one claim. First,
16
the District Court suggested that NRP had likely failed to establish itself as similarly situated to
other developers because NRP allegedly “was treated differently from other developers (i.e., not
hired for the project) because it acted differently (i.e., refused to involve Stenhouse) than the other
developers who allegedly complied with the City’s demands.” NRP Holdings LLC, 2012 WL
2873899, at *16, 2012 U.S. Dist. LEXIS 97027, at *47 (emphasis in original). Second, the court
28
Although “[t]he Equal Protection Clause has traditionally been applied to
governmental classifications that treat certain groups of citizens differently than others,”
the Supreme Court has also endorsed “a class‐of‐one theory for equal protection claims,
under which a single individual can claim a violation of her Equal Protection rights
based on arbitrary disparate treatment.” Fortress Bible Church v. Feiner, 694 F.3d 208, 221
(2d Cir. 2012) (emphasis added) (citing Village of Willowbrook v. Olech, 528 U.S. 562, 564
(2000) (per curiam)). To establish a “class of one” claim, a plaintiff must show that:
(i) no rational person could regard the circumstances of the
plaintiff to differ from those of a comparator to a degree that
would justify the differential treatment on the basis of a
legitimate government policy; and (ii) the similarity in
circumstances and difference in treatment are sufficient to
exclude the possibility that the defendants acted on the basis
of a mistake.
Id. at 222 (quoting Ruston v. Town Bd. for Town of Skaneateles, 610 F.3d 55, 60 (2d Cir.
2010)).
NRP’s second amended complaint alleges that, pursuant to an “official custom or
policy established by Brown, Casey, and/or Smith,”
NRP was treated differently than other developers of
projects in the City of Buffalo. When other developers found
noted that in Engquist v. Oregon Dep’t of Agr., 553 U.S. 591 (2008), the Supreme Court held that
“class of one” claims are not available “in the public employment context,” id. at 594, and
concluded that “this holding logically extends to the government‐contractor relationship.” NRP
Holdings, 2012 WL 2873899, at *16, 2012 U.S. Dist. LEXIS 97027, at *48. We rely on neither of
these grounds here. See Lotes Co. v. Hon Hai Precision Indus. Co., 753 F.3d 395, 413 (2d Cir. 2014)
(appeals court may “affirm on any basis for which there is sufficient support in the record,
including grounds not relied on by the district court”). In addition, we decline to consider
NRP’s newly asserted claim that Mayor Brown discriminated against NRP on the basis of racial
animus. NRP failed to articulate this racially based “selective treatment” equal protection
theory before the District Court, either in its operative complaint or in its opposition to
defendants’ motion to dismiss. NRP has therefore forfeited any such claim.
29
a way to pay monies to Stenhouse and/or affiliated
organizations, [defendants] allowed their projects to proceed
to completion. Because NRP refused to make such
payments, [defendants] . . . actively took steps to kill the
Project. The difference in treatment was not on the basis of
any legitimate government policy or the product of a
mistake.
2d Am. Compl. ¶¶ 153, 156. This differential, NRP urges, entitles it to relief under
section 1983.
To establish a class‐of‐one claim, a plaintiff must “show an extremely high
degree of similarity between itself and its comparators.” Fortress Bible, 694 F.3d at 222.
NRP’s complaint, however, provides insufficient detail about the “other developers”
and the projects that were allegedly approved. Potentially relevant facts include
whether those developers’ projects concerned affordable housing or some other type of
construction; whether they involved transfers of City‐owned property; and whether
they required public funding or tax exemptions.17 Those silences are fatal to NRP’s
claim. Compare Olech, 528 U.S. at 565 (permitting a “class of one” claim where the
plaintiff alleged that “the Village intentionally demanded a 33‐foot easement as a
condition of connecting her property to the municipal water supply where the Village
required only a 15‐foot easement from other similarly situated property owners”), with
Ruston, 610 F.3d at 59–60 (affirming dismissal because, although plaintiffs “identif[ied]
several properties that allegedly were allowed to connect to the Village’s sewer
NRP does allege, it is true, that “[t]he difference in treatment” among the development
17
projects “was not on the basis of any legitimate government policy,” 2d Am. Compl. ¶ 156, but
was based on the Mayor’s improper demands. But this conclusory allegation regarding the
other projects does not cure the claim’s deficiencies: a “formulaic recitation of the elements of a
cause of action” will not protect a claim against dismissal absent additional factual support.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
30
system,” including commercial facilities and single homes, none of those properties was
sufficiently “similar to [plaintiffs’] proposed 14‐home development”).
For these reasons, we conclude that NRP’s allegations fail to establish that any
individual defendant violated NRP’s Equal Protection rights.18 We further conclude that
NRP has failed to allege a valid equal protection claim against the City or BURA:
because NRP’s alleged injuries are solely attributable to the actions of named individual
defendants, NRP’s failure to allege a constitutional violation by the individual
defendants necessarily forecloses a claim of municipal liability. Matican v. City of New
York, 524 F.3d 151, 154 (2d Cir. 2008) (If the individual officials’ actions did not “violate
[plaintiff’s] constitutional rights . . . , then the City cannot be liable to [plaintiff] under
§ 1983, regardless of whether the [officials] acted pursuant to a municipal policy or
custom.”).
For these reasons, we affirm the District Court’s dismissal of NRP’s class‐of‐one
claim as against all defendants.
III. Breach of Contract
NRP asserts a claim for breach of contract against the City and BURA. In its
second amended complaint, NRP alleges that Wanamaker’s February 25, 2008 letter
established a “preliminary agreement obligating [the City] and/or BURA to make good
faith efforts to realize the specific commitments set forth in the agreement,” and that
defendants breached that agreement by “failing . . . to move the Project forward in good
faith.” 2d Am. Compl. ¶¶ 118, 121. The District Court dismissed this claim under Rule
18 Because we conclude that NRP failed to sufficiently allege an Equal Protection violation by
any defendant, we need not consider defendants’ related arguments regarding abandonment,
legislative immunity, or qualified immunity.
31
12(b)(6) on the grounds that the Wanamaker letter does not evince the parties’ mutual
intent to be bound to continued negotiations in good faith. We agree, and therefore
affirm the dismissal.
To create a binding contract under New York law, the parties must provide a
“manifestation of mutual assent sufficiently definite to assure that [they] are truly in
agreement with respect to all material terms.” Stonehill Capital Mgmt., LLC v. Bank of the
West, 28 N.Y.3d 439, 448 (2016) (internal quotation marks and citations omitted). In
determining whether mutual assent has been shown, courts “look to the objective
manifestations of the intent of the parties as gathered by their expressed words and
deeds.” Id. (internal quotation marks and citations omitted). Even in situations where
the parties have not manifested mutual assent as to all material terms, New York courts
have held that “parties may enter into a binding contract under which the obligations of
the parties are conditioned on the negotiation of future agreements.”19 IDT Corp. v. Tyco
Grp., S.A.R.L., 23 N.Y.3d 497, 502–03 (2014) (emphasis added). In New York, a
preliminary agreement of that nature obligates the parties to continue “negotiat[ions] in
good faith.” Id at 503.
Beyond these common‐law requirements, state and local statutes and ordinances
may impose additional requirements on municipal contracting “to protect the public
from corrupt or ill‐considered actions [by] municipal officials.” Henry Modell & Co. v.
City of New York, 159 A.D.2d 354, 355 (1st Dep’t 1990). “Municipal contracts which
Although the nomenclature has not been uniformly adopted, our Court has sometimes
19
referred to such agreements as “Type II” preliminary agreements. See Brown v. Cara, 420 F.3d
148, 157 (2d Cir. 2005) (“While a Type I preliminary agreement is fully binding as to the final
contractual goal, a Type II agreement does not commit the parties to their ultimate contractual
objective but rather to the obligation to negotiate the open issues in good faith.” (internal
quotation marks omitted)).
32
violate express statutory provisions are invalid,” even if the purported contracts bear
the hallmarks of mutual assent. Granada Bldgs., Inc. v. City of Kingston, 58 N.Y.2d 705,
708 (1982); see also Casa Wales Hous. Dev. Fund Corp. v. City of New York, 129 A.D.3d 451,
451 (1st Dep’t 2015) (applicable “statutory” law includes municipal charters). Moreover,
a party wishing to contract with a municipality “is chargeable with knowledge of the
statutes which regulate its contracting powers and is bound by them.” Mans Const.
Oversite, Ltd. v. City of Peekskill, 114 A.D.3d 911, 912 (2d Dep’t 2014) (citing Parsa v. State,
64 N.Y.2d 143, 147 (1984)).
Buffalo’s City Charter provides that “[e]very contract to which the city is a party
shall be made and executed in the name of the city and approved as to form by the
corporation counsel, and signed and acknowledged by the head of the department
charged with the execution of the matter therein provided for.” City Charter § 22‐1.20
The Charter does not expressly direct that municipal contracts be in writing, but that
expectation is unmistakably conveyed through the concurrent requirements that city
contracts be “executed” and “signed” by certain officials. In determining whether the
Wanamaker letter created a binding preliminary agreement among the parties, then, we
search for evidence of mutual assent within the four corners of the letter itself and do
not consider extrinsic evidence. See Parsa, 64 N.Y.2d at 147 (“Even though a promise to
pay may be spelled out from the parties’ conduct, a contract between them may not be
implied to provide ‘rough justice’ and fasten liability on the [government] when
applicable statutes expressly prohibit it.”).
The Charter is publicly available at https://ecode360.com/13550986 (last visited February 19,
20
2019). The Charter provisions relevant for this appeal were effective as of July 1, 2000, City
Charter § 32‐8, long before the events that led to this lawsuit.
33
Having conducted this review, we conclude that the Wanamaker letter did not
create a binding preliminary agreement. We are unable to discern in the letter evidence
of a shared commitment by the parties to continue negotiations with each other in good
faith. The letter provides no evidence of the parties’ mutual assent to be bound. Acting
in his capacity as Executive Director of Buffalo’s Office of Strategic Planning,
Wanamaker signed the letter on behalf of BURA and the City. No member of NRP’s
development team executed or otherwise endorsed the letter. The letter contains no
undertakings by NRP, and, as the District Court observed, the letter does not even
contain a “signature line where NRP could have signed.” NRP Holdings, 2012 WL
2873899, at *7, 2012 U.S. Dist. LEXIS 97027, at *22 (emphasis added).
In arguing that the Wanamaker letter bound them both, NRP relies primarily on
Brown v. Cara, 420 F.3d 148 (2d Cir. 2005), and Goodstein Construction Corp. v. City of New
York, 67 N.Y.2d 990 (1986), each of which held that the parties entered into an
enforceable preliminary agreement. Those cases are easily distinguishable, however. In
Brown, the parties’ memorandum of understanding (“MOU”) forthrightly stated and
defined “the parties’ agreement to ‘work together to develop, build, market, and
manage [the property]’ and to ‘work together in accordance with the terms and
conditions outlined [in the MOU].’” 420 F.3d at 158 (alterations in original) (quoting the
MOU). Similarly, in Goodstein Construction, the terms of the agreement committed the
defendant city to “cooperate with [the] plaintiff in developing [certain documents] for
eventual submission” to municipal entities. 67 N.Y.2d at 991. Here, by contrast, the
Wanamaker letter says nothing about future negotiations or NRP’s obligations. Rather,
the letter articulates commitments by BURA and the City to perform governmental acts by
allocating HOME funds, approving a PILOT agreement, and transferring City‐owned
lots. NRP does not seek to enforce those commitments, however; rather, NRP seeks to
34
enforce an unstated understanding that the parties would continue negotiating in good
faith to bring the planned project to fruition.
NRP insists that Wanamaker’s letter “memorialized the parties’ prior
agreements” and “must be read in the context of the parties’ agreement to take the steps
necessary to complete the Project.” Appellants’ Br. 65. It emphasizes Brown’s statement
in deposition that, based on the Wanamaker letter, NRP’s team could “definitely feel
that they were receiving support from the city,” and “that it made sense for them to do
everything that they were supposed to do to try to complete [the] project.” App’x 1059–
60. Because NRP’s breach of contract claim failed on a motion to dismiss under Rule
12(b)(6), however, Brown’s testimony is not properly before us with respect to this
claim. In any event, that testimony would not alter our analysis. As the New York Court
of Appeals has stated, “The mere expectation that a contract will be entered into does
not constitute a contract.” Papa v. New York Tel. Co., 72 N.Y.2d 879, 881 (1988) (quoting 1
Williston, Contracts § 27, at 66 (3d ed. 1957)) (alterations omitted). The Buffalo Charter
requires that municipal contracts be in writing. Thus, the putative contractual document
must, on its face, evince the requisite meeting of the minds. Although the Wanamaker
letter evinces the city’s serious interest in the project, it does not embody mutual assent
of any kind, never mind to any enforceable proposition.21
We conclude that the Wanamaker letter did not establish a binding agreement
requiring the City or BURA to engage in continued negotiations with NRP, and so we
affirm the District Court’s dismissal of NRP’s claim for breach of contract.
It is true that New York recognizes unilateral contracts, under which one party makes a
21
unilateral “offer to contract, which . . . becomes a binding obligation” if another party takes
whatever actions are specified as conditions of acceptance. I. & I. Holding Corp. v. Gainsburg, 276
N.Y. 427, 433 (1938). NRP has not argued, however, that the Wanamaker letter constituted a
unilateral offer to contract, and so we do not consider whether it would qualify as such.
35
IV. Promissory Estoppel
Finally, NRP asserts a claim for promissory estoppel against the City, BURA, and
the individual defendants, seeking to hold them liable for NRP’s reliance on the
“commitments” articulated in the Wanamaker letter. The District Court dismissed the
claim under Rule 12(c) as to some of those alleged promises, and later granted summary
judgment to defendants as to the remaining promises.
We affirm the judgment in favor of defendants on this count. Under New York
law, municipal defendants may not be subject to promissory estoppel claims except in
rare cases of “manifest injustice,” N.Y. State Med. Transporters Ass’n, Inc. v. Perales, 77
N.Y.2d 126, 130‐31 (1990). This exception is not available to NRP on the facts of this
case.22
To establish a claim of promissory estoppel, a plaintiff “must demonstrate that
the [defendant] made a clear and unambiguous promise, upon which the [plaintiff]
reasonably relied, to its detriment.” Wilson v. Dantas, 29 N.Y.3d 1051, 1062 (2017). Even
if a plaintiff can establish those elements, however, promissory estoppel is generally
“not available against a governmental agency engaging in the exercise of its
governmental functions.”23 Advanced Refractory Techs., Inc. v. Power Auth. of State of N.Y.,
81 N.Y.2d 670, 677 (1993) (internal quotation marks omitted); see also Perales, 77 N.Y.2d
22 The District Court relied on other grounds in adjudicating defendants’ various dispositive
motions, but as noted above, we “may affirm on any basis for which there is sufficient support
in the record.” Lotes, 753 F.3d at 413. This rationale was available to defendants both on the face
of the pleadings and at the summary judgment stage, and so it is immaterial for present
purposes that the District Court resolved different components of NRP’s claims at different
phases of the case.
NRP has not contested that defendants performed a “governmental function” when making
23
decisions about whether to proceed with the East Side II project.
36
at 130–31 (articulating similar limit on equitable estoppel). In particular, if a putative
agreement fails to satisfy municipal contracting requirements, courts will generally
dismiss both “contractual and noncontractual . . . causes of actions, including . . .
promissory estoppel.” Michael R. Gianatasio, PE, P.C. v. City of New York, 159 A.D.3d 659,
660 (1st Dep’t 2018); accord Casa Wales, 129 A.D.3d at 451 (affirming dismissal of claims
for breach of contract and promissory estoppel because, “where there is a lack of
authority on the part of agents of a municipal corporation to create a liability, except by
compliance with well‐established regulations, no liability can result unless the
prescribed procedure is complied with and followed”).
New York courts have carved out a narrow exception to this rule in cases where
the government’s “misleading nonfeasance would otherwise result in a manifest
injustice.” Agress v. Clarkstown Cent. Sch. Dist., 69 A.D.3d 769, 771 (2d Dep’t 2010). Thus,
while “the possibility of estoppel against a governmental agency” is not “absolutely
precluded,” the doctrine is unavailable “in all but the rarest cases.” Perales, 77 N.Y.2d at
130. “[T]hose who deal with the government are expected to know the law, and cannot
rely on the conduct of government agents contrary to law as a basis for ‘manifest
injustice’ claims.” Id. at 131; see also Granada, 58 N.Y.2d at 708 (“[A] governmental
subdivision cannot be held answerable [under estoppel] for the unauthorized acts of its
agents.”).
NRP seeks to hold defendants liable for the commitments articulated in the
Wanamaker letter: namely, the City’s stated intention to allocate $1.6 million in HOME
funds, to approve the PILOT agreement, and to transfer City‐owned property. We have
already concluded that the Wanamaker letter did not create a binding contract; NRP’s
promissory estoppel claims based on the same document are therefore presumptively
invalid absent a showing of “manifest injustice.”
37
NRP contends with some force that the exception should apply here based on
defendants’ unsavory and “extortionate pay‐to‐play scheme.” Appellants’ Br. 57. The
New York case law applying this exception strongly suggests, however, that the
circumstances presented here do not meet the manifest injustice standard as those
courts have understood it. New York appellate courts have permitted estoppel claims
against municipal entities to proceed where individual persons relied to their detriment
on a city’s erroneous promises concerning, for example, their financial benefits as public
employees,24 or their obligation to file a timely notice of claim when suing the
municipality.25 We are not aware of any case, however, in which a sophisticated
business entity was permitted to use a promissory estoppel theory to enforce an alleged
agreement with a municipality that failed to comply with municipal contracting
requirements. New York courts have denied estoppel to contractors who fully performed
their extensive contractual duties and then were denied payment when the contract was
found to be invalid. In a recent case, a New York Supreme Court decision
acknowledged that New York City had “failed to pay [the plaintiff] more than $1.5
million for work done and money outlaid” under two construction contracts. Michael R.
Gianatasio, PE, P.C. v. City of New York, 53 Misc. 3d 757, 771 (N.Y. Sup. 2016). The
See Vassenelli v. City of Syracuse, 138 A.D.3d 1471, 1475 (4th Dep’t 2016) (“Plaintiff alleged that,
24
based on his reliance on the city defendants’ payment for services and medications prior to
August 2009, he failed to apply for Medicare Part B benefits when he became eligible to do so,
thereby requiring the payment of significant penalties.”); Agress, 69 A.D.3d at 771 (Plaintiff
“made certain employment and insurance decisions based upon the [erroneous] representations
that she was entitled to receive continuing health insurance coverage from the School District.”).
Konner v. New York City Transit Auth., 143 A.D.3d 774, 775–77 (2d Dep’t 2016) (“[A] municipal
25
corporation may be equitably estopped from asserting lack of notice of claim when it has
wrongfully or negligently engaged in conduct that misled or discouraged a party from serving
a timely notice of claim or making a timely application for leave to serve a late notice of claim,
and when that conduct was justifiably relied upon by that party.” (citing Bender v. N.Y. City
Health & Hosps. Corp., 38 N.Y.2d 662, 668 (1976))).
38
Appellate Division nonetheless affirmed the trial court’s dismissal of the plaintiff’s
claims for breach of contract and promissory estoppel, finding dispositive its conclusion
that “the contract at issue never met the requirements of . . . the New York City
Charter.” Michael R. Gianatasio, 159 A.D.3d at 660; see also Mans Const., 114 A.D.3d at 912
(“The mere acceptance of benefits does not estop the municipality from denying
liability for payment for services rendered, where a contract was neither validly entered
into nor ratified.”). Here, NRP merely incurred costs while preparing to perform on an
expected agreement. NRP has not pointed to any analogous case in which a New York
court has applied promissory estoppel against a New York municipality, even after
performance has occurred.
The New York Court of Appeals acknowledged long ago that results like these
“may seem unjust.” Parsa, 64 N.Y.2d at 147. It explained its decision hewing to the high
standard of “manifest injustice” by reasoning that “any other rule would completely
frustrate statutes designed to protect the public from governmental misconduct or
improvidence.” Id. To protect themselves, municipal contractors may “withhold [their]
services unless an agreement is executed and approved as the statutes require.” Id. They
may not, however, invoke estoppel to salvage otherwise unenforceable agreements.
We conclude that NRP’s claim of promissory estoppel as against all defendants
cannot be sustained under prevailing principles of New York law. We therefore affirm
the District Court’s judgment in defendants’ favor on this claim.
CONCLUSION
NRP argues that a proposed 50‐home affordable housing project in the City of
Buffalo fell apart at the eleventh hour because City officials prioritized cronyism over
civic responsibility. Those are serious allegations, and NRP has come forward with
39
substantial evidence of their accuracy. That evidence, however, is insufficient to
overcome the significant legal flaws in NRP’s claims for damages. Municipal officials
are shielded against certain federal civil claims by the common‐law doctrine of
legislative immunity. Plaintiffs asserting equal protection “class of one” claims bear the
burden of sufficiently alleging similarly situated comparators. Municipal entities may
not be sued under New York law if the plaintiff detrimentally relied on promises by
municipal officials but failed to secure a binding contract that complied with municipal
law. NRP has failed to surmount these barriers. We therefore AFFIRM the judgment of
the District Court.
40