United States Court of Appeals
For the First Circuit
No. 99-1930
BARRINGTON COVE LIMITED PARTNERSHIP,
Plaintiff, Appellant,
v.
RHODE ISLAND HOUSING AND MORTGAGE FINANCE CORPORATION,
RHODE ISLAND HOUSING TRUST FUND AND RICHARD H. GODFREY, JR.,
PERSONALLY AND IN HIS CAPACITY AS EXECUTIVE DIRECTOR OF THE
RHODE ISLAND HOUSING AND MORTGAGE FINANCE CORPORATION,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
Before
Lynch, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lipez, Circuit Judge.
Fred A. Kelly, Jr., with whom Jeffrey S. Brenner and Nixon
Peabody LLP were on brief for appellant.
Allen P. Rubine, with whom Melissa M. Horne and Winograd,
Shine & Zacks, P.C. were on brief for appellees.
April 5, 2001
CYR, Senior Circuit Judge. Barrington Cove Limited
Partnership (“Barrington”) appeals from a district court order
which dismissed its civil rights action against the Rhode Island
Housing and Mortgage Finance Corporation (RIHMFC) for allegedly
violating its constitutional rights to substantive due process
and equal protection by denying federal income tax credits
needed to finance its construction of a housing project for
lower-income families. We affirm.
I
BACKGROUND
RIHMFC, an agency established by the State of Rhode
Island to foster development of low-to-moderate-income housing,
also administers the federal lower-income housing tax credit
program in Rhode Island. See 26 U.S.C. § 42 et seq. During
1996, RIHMFC was authorized to award approximately $1.7 million
in federal tax credits to qualified private developers of lower-
income housing. Under its Rules and Regulations and Qualified
Action Plan [hereinafter: “Regulations”], RIHMFC allocates these
federal tax credits in accordance with various criteria, such as
project design, site location and overall construction costs.
The Regulations require that RIHMFC employ the same application
procedures in relation to for-profit and non-profit developers.
2
See Regulations at § 5 (setting application fee at $500 and 2%
of tax credit requested).
In 1996, Barrington, whose general partner is a company
owned by a Massachusetts resident, constructed an apartment
building for lower-income residents in Barrington, Rhode Island,
and submitted an application to RIHMFC for federal income tax
credits. Its application was awarded more points than any other
application under the criteria prescribed by the Regulations,
resulting in a $519,536 federal tax credit.
In order to minimize its resort to RIHMFC resources,
however, Barrington explicitly represented in its RIHMFC
application that it also expected to receive from the National
Park Service $100,000 in historic restoration tax credits in
connection with the lower-income apartment project. Although
Barrington had begun construction on the project before its
application for National Park Service historic restoration tax
credits was processed, it had been assured — informally — that
RIHMFC would “work with” Barrington in the event the historic
restoration tax credits failed to materialize. After
construction had advanced to the point that abandonment of the
project would have resulted in a substantial financial loss to
Barrington, the National Park Service rejected the application
for historic restoration tax credits, thereby effectively
3
rendering the project financially unsound.
In due course, Barrington applied for an additional
$100,000 federal income tax credit to offset its failure to
obtain the National Park Service historic restoration tax
credit. Initially, RIHMFC and defendant-appellee Richard
Godfrey, Jr., its executive director, were unreceptive, with
Godfrey stating not only that Barrington ought not receive
“another dime” from RIHMFC, but that it should be left “holding
the bag” and absorb the loss. Nevertheless, on December 11,
1996, RIHMFC awarded Barrington an additional $122,000 in
federal income tax credits, provided its individual contractors
agreed to make a $366,000 charitable contribution to the Rhode
Island Affordable Housing Trust Fund.1
Meanwhile, however, on November 20, 1996, another
developer, Gemini Hotel, had “remitted” to RIHMFC its $253,462
federal income tax credit allocation for 1996, in return for a
commitment from RIHMFC that Gemini Hotel would receive federal
income tax credits the following year. The Gemini Hotel
1 The trust fund was established by the State of Rhode Island
to receive charitable contributions in aid of goals consistent
with RIHMFC’s statutory mission of fostering lower-income
housing. See R.I. Gen. Laws § 42-55.1-1 et seq. The trust
fund is administered by the appellees. Ostensibly, the $366,000
charitable contribution represented RIHMFC’s estimate of one-
half the equity in the project attributable to the $122,000
supplemental federal tax credit.
4
“refund” was more than enough to fund all pending applications
for supplemental 1996 federal income tax credits, including that
submitted by Barrington. Thus, the statement Richard Godfrey,
Jr. allegedly made to Barrington — that Barrington’s “charitable
contribution” was essential in order that other qualified lower-
income housing project developers not be denied additional
federal income tax credits in 1996 — was knowingly false.
Furthermore, Barrington later learned that RIHMFC had
allocated additional federal income tax credits to several
developers in 1996, all of which (unlike Barrington) were non-
profits sponsored by Rhode Island residents. Yet those
developers were not required to make a charitable contribution.
Thereafter, in December 1997, Barrington sought to
determine why it was the only developer seeking additional 1996
federal income tax credits which was required to make a
charitable contribution. Although Godfrey offered no
explanation, he ventured the opinion that Barrington should not
have received additional federal income tax credits in the first
place. Finally, in May 1998, prior to its tax deadline,
Barrington reluctantly disbursed $323,172 to the Rhode Island
Affordable Housing Trust Fund in order to obtain the necessary
federal income tax credit documentation from RIHMFC.
In due course, Barrington filed its ten-count complaint
5
against RIHMFC and Godfrey in Rhode Island Superior Court, which
RIHMFC removed to federal district court. Count one alleges
that RIHMFC and Godfrey, by requiring a charitable contribution,
exceeded and abused their statutory and regulatory authority
under the Regulations relating to the imposition of application
fees. Counts two through nine allege that the defendants thereby
violated Barrington’s federal and state constitutional rights to
equal protection and substantive due process. Finally, count
ten asserts an unjust enrichment claim under Rhode Island law.
After RIHMFC and Godfrey moved to dismiss the complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6), a
magistrate judge recommended that the district court dismiss,
with prejudice, counts two through nine and that the pendant
state-law claims in counts one and ten be dismissed, without
prejudice. The district court adopted the report and
recommendation and Barrington appealed.
II
DISCUSSION
A. The Standard of Review
We review Rule 12(b)(6) dismissals de novo, accepting
all factual allegations in the amended complaint as true and
drawing all reasonable inferences favorable to the appellant.
Bessette v. Avco Fin. Servs., Inc., 230 F.3d 439, 443 (1st Cir.
6
2000). We are to affirm the district court ruling only if it
clearly appears that Barrington cannot recover on any viable
legal theory, given the facts alleged in its amended complaint.
Id. Although we construe all well-pleaded allegations liberally
at this stage in the proceedings, see, e.g., Barrios-Velazquez
v. Asociacion, 84 F.3d 487, 490 (1st Cir. 1996); see also
Leatherman v. Tarrant Cty. Narcotics Intelligence and
Coordination Unit, 507 U.S. 163, 168 (1993) (rejecting
heightened pleading requirements for civil rights claims), we do
not credit conclusory assertions, subjective characterizations
or “outright vituperation.” Coyne v. City of Somerville, 972
F.2d 440, 444 (1st Cir. 1992); see also Judge v. Lowell, 160
F.3d 67, 72 (1st Cir. 1998).
B. The Substantive Due Process Claim
First, Barrington argues that its amended complaint
stated a viable claim that the $323,172 “charitable
contribution” demanded by RIHMFC violated its substantive due
process rights under the federal and state constitutions. In
order to prevail against a motion to dismiss a substantive due
process claim under Rule 12(b)(6), however, it was essential
that the complaint either (i) allege that RIHMFC deprived
Barrington of a cognizable “property interest,” i.e., its right
to acquire additional federal income tax credits without being
7
required to pay an application fee in excess of that expressly
required by the Regulations, or, failing that, (ii) allege that
Barrington’s conduct was so egregious as to “‘shock[] the
conscience.’” Cruz-Erazo v. Rivera-Montanez, 212 F.3d 617, 622
(1st Cir. 2000) (citation omitted); Coyne, 972 F.2d at 443
(citation omitted); L.A. Ray Realty v. Town of Cumberland, 698
A.2d 202, 211 (R.I. 1997) (adopting federal test). As
Barrington failed to plead various essential allegations, the
district court correctly dismissed the substantive due process
claims. We explain.
1. The Alleged “Property Interest” in the Tax Credits
First, we consider whether Barrington held a cognizable
“property interest” in further federal income tax credits. In
order to qualify for “substantive due process” protection, an
alleged “property interest” in a governmental benefit must
consist of something more than either (i) “an abstract need or
desire” for the governmental benefit, or (ii) a mere “unilateral
expectation” that the claimant deserves it. Thus, Barrington
needed to allege facts demonstrating a “legitimate claim of
entitlement” to the supplemental tax credits. Board of Regents
v. Roth, 408 U.S. 564, 577 (1972) (emphasis added); Coyne, 972
F.2d at 443; Reed v. Village of Shorewood, 704 F.2d 943, 948
(7th Cir. 1983) (observing that a cognizable property interest
8
“is what is securely and durably yours under state [or federal]
law, as distinct from what you hold subject to so many
conditions as to make your interest meager, transitory, or
uncertain”) (emphasis added).
Since the Regulations ultimately vest in RIHMFC the
absolute discretion to determine whether federal income tax
credits are awarded to an applicant, see Figueroa-Serrano v.
Ramos-Alverio, 221 F.3d 1, 6 (1st Cir. 2000) (noting that
“property interest” is defined not by Federal Constitution, but
by independent sources such as state law or regulations),
Barrington can lay claim to no cognizable “property interest” in
the “promised” federal income tax credits. See, e.g., DeHarder
Inv. Corp. v. Indiana Hous. Fin. Auth., 909 F. Supp. 606, 613-14
(S.D. Ind. 1995) (addressing identical statutory scheme in 26
U.S.C. § 42, as applied and administered by State of Indiana).
As the DeHarder court aptly noted, the federal statute
simply mandates that states promulgate their own allocation
plans regarding these federal income tax credits, without
identifying any particular condition under which the states are
obligated to allocate them. Id. at 614; see also City of Santa
Clara v. Andrus, 572 F.2d 660, 676 (9th Cir. 1978) (“‘[A]
statute will create an entitlement to a governmental benefit
either if the statute sets out conditions under which the
9
benefit must be granted or if the statute sets out the only
conditions under which the benefit may be denied.’”) (citation
omitted).
Like the state plan in DeHarder, the Regulations simply
prescribe the criteria for assessing the comparative
deservedness of competing applicants for any federal income tax
credits allocated to Rhode Island. See Davila-Lopes v. Zapata,
111 F.3d 192, 195 (1st Cir. 1997) (“The [mere] existence of a
detailed set of procedural rules is clearly inadequate to create
a constitutionally protected property right.”). Moreover, none
of these prescribed criteria, many of which necessarily entail
highly subjective assessments, are susceptible to objective
quantification.
Accordingly, even if RIHMFC were to assign its highest
rating to an application following a preliminary assessment of
its criteria, the RIHMFC plan expressly accords the agency the
discretion to withhold federal income tax credits from any
applicant, albeit a high scorer. See DeHarder, 909 F. Supp. at
613-14 (“Although [federal law requires that] certain selection
criteria must be included in [the State] plan, no specific
directives mandate how the [State] Authority must weigh or
consider those criteria. In other words, once the criteria are
considered, no particular outcome necessarily follows.”); see
10
also Coyne, 972 F.2d at 443 (noting that “property interests”
normally wane as governmental regulation waxes). Thus, under
the governing regulatory scheme, Barrington never acquired a
“legitimate claim of entitlement” to supplemental federal income
tax credits. Roth, 408 U.S. at 577.
Barrington attempts to distinguish DeHarder on the
ground that the Regulations contemplate that each applicant is
to be assigned a set number of points, provided its proposed
project meets certain criteria, and that Barrington was far and
away the high scorer in this instance; a status which it
retained even after failing to win a National Park Service
“historic restoration” tax credit. Be that as it may, neither
the federal tax code nor the Regulations required RIHMFC to
award federal income tax credits to the high-scoring applicant.
Rather, the Regulations expressly preserve to RIHMFC
“the right to rescind reservations of tax credits for projects
in the event that [RIHMFC] determines that the project is
infeasible as proposed or a change of circumstances materially
altered the proposal as submitted and approved.” See
Regulations § IV(A). The quoted provision severely undermines
Barrington’s contention that it was “entitled” to, thus
possessed a property interest in, the 1996 federal income tax
credits. Indeed, Barrington acknowledged as much before the
11
district court, by noting that “[t]here is no regulation that
says that anyone is entitled to any number or a certain number
of credits.” As eligibility simply cannot be considered
synonymous with entitlement, its substantive due process claim
is fatally flawed.
2. The “Shock the Conscience” Element
Nor is the “shock the conscience” element in the
substantive due process test met on the basis of the motivation
RIHMFC allegedly harbored in demanding the charitable
contribution. See Cruz-Erazo, 212 F.3d at 622 (explaining that
state action “shocks conscience” only if it is “arbitrary and
capricious,” “run[s] counter to ‘the concept of ordered
liberty’” or “‘violat[es] universal standards of decency’”)
(citations omitted). Assuming arguendo that the charitable
contribution violated the Regulations, mere violations of a
state regulatory scheme are not the stuff of which substantive
due process claims are constituted. See Coyne, 972 F.2d at 444
(“It is bedrock law in this circuit[] . . . [] that violations
of state law – even where arbitrary, capricious, or undertaken
in bad faith – do not, without more, give rise to a denial of
substantive due process under the U.S. Constitution.”).
Additionally, although the comments Godfrey allegedly
made about Barrington might be characterized — arguably and at
12
worst — as harsh, callous or impolitic, see supra Section I, we
have held on numerous occasions that far more egregious
utterances by state officials did not satisfy the “shock the
conscience” standard. See, e.g., Brown v. Hot, Sexy and Safer
Prods., Inc., 68 F.3d 525, 532 (1st Cir. 1995) (“[T]he threshold
for alleging such [verbal-based] claims is high.”); Santiago-de-
Castro v. Morales-Medina, 943 F.2d 129, 131-32 (1st Cir. 1991)
(same). Moreover, the Supreme Court itself has been chary about
invoking the “shock the conscience” test, lest all policymaking
at the state level become routine grist for substantive due
process litigation in the federal courts. See Collins v. City
of Harker Heights, 503 U.S. 115, 128-29 (1992). Thus, the
substantive due process claims were properly dismissed.
C. The Equal Protection Claim
Barrington contends that it alleged a viable “selective
treatment” claim to the effect that appellees violated its equal
protection rights under the United States and Rhode Island
constitutions by requiring the $323,172 charitable contribution,
since no other developer attempting to obtain additional 1996
federal income tax credits was required to make a contribution.
See Yerardi’s Moody St. Rest. & Lounge, Inc. v. Board of
Selectmen, 932 F.2d 89, 94 (1st Cir. 1991); Rhode Island
Depositors Econ. Prot. Corp. v. Brown, 659 A.2d 95, 100 (R.I.
13
1995) (federal and Rhode Island equal protection standards
coterminous).
Under the Equal Protection Clause, similarly situated
entities must be accorded similar governmental treatment. See
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439-40
(1985). In order to establish its claim, however, Barrington
needed to allege facts indicating that, “compared with others
similarly situated, [it] was selectively treated . . . based on
impermissible considerations such as race, religion, intent to
inhibit or punish the exercise of constitutional rights, or
malicious or bad faith intent to injure a person.” Rubinovitz
v. Rogato, 60 F.3d 906, 909-10 (1st Cir. 1995) (emphasis added;
citations omitted).2
1. The “Similar Situation” Standard
In determining that the amended complaint failed the
“similarly situated” test, the district court faulted Barrington
for failing to allege, inter alia, whether its coapplicants (i)
received supplemental federal income tax credits due to their
failure to obtain the historic restoration tax credits which
2Barrington has not alleged that any other fundamental
constitutional right was violated by appellees in this regard.
See Batra v. Board of Regents, 79 F.3d 717, 721 (8th Cir. 1996)
(noting that equal protection claim need not allege violation of
a fundamental or constitutional right, but may allege
intentional discrimination for any illegitimate reason).
14
were a prerequisite to their initial RIHMFC allocation, or (ii)
commenced construction prior to confirmation of all the
financing required to construct their respective projects, or
(iii) would have failed to complete construction absent an
additional award of federal income tax credits from RIHMFC. See
Samaad v. City of Dallas, 940 F.2d 925, 941 n.31 (5th Cir. 1991)
(noting that an adequate “similarly situated” allegation is
essential to a viable equal protection claim).
Barrington insists that its amended complaint
surmounted the Rule 12(b)(6) dismissal threshold in that it
states unequivocally that Barrington and its coapplicants were
“similarly situated,” whereas the district court expected
Barrington to allege each and every pertinent attribute it
shared, qua applicant, with its coapplicants. Barrington argues
that the amended complaint was adequate because it alleged that
Barrington and its coapplicants were similarly situated in one
critical respect; i.e., each applied to RIHMFC for an additional
1996 federal income tax credit. On appeal, it contends that the
“similar situation” standard adopted by the district court is
overly cramped, in that it contemplates such identicality within
a particular class as to make it next to impossible to assert a
viable equal protection claim.
The formula for determining whether individuals or
15
entities are “similarly situated” for equal protection purposes
is not always susceptible to precise demarcation. See Coyne,
972 F.2d at 444-45 (“[T]he ‘line between sufficient facts and
insufficient conclusions is often blurred.’”) (citation
omitted). As we have explained, however, “[t]he test is whether
a prudent person, looking objectively at the incidents, would
think them roughly equivalent and the protagonists similarly
situated. Much as in the lawyer's art of distinguishing cases,
the ‘relevant aspects’ are those factual elements which
determine whether reasoned analogy supports, or demands, a like
result. Exact correlation is neither likely nor necessary, but
the cases must be fair congeners. In other words, apples should
be compared to apples.” Dartmouth Review v. Dartmouth Coll., 889
F.2d 13, 19 (1st Cir. 1989) (citation omitted); see also
Rodriguez-Cuervos v. Wal-Mart Stores, Inc., 181 F.3d 15, 21 (1st
Cir. 1999).
Thus, it was essential that Barrington allege, inter
alia, that it and its coapplicants were similarly situated “‘in
all relevant respects.’” Dartmouth Review, 889 F.2d at 19
(citation omitted; emphasis added). Its amended complaint did
allege, albeit in conclusory fashion, that Barrington and other
“similarly situated” applicants requested supplemental 1996
federal income tax credits, a fact which certainly is material
16
to the present issue.
Yet the issue before us is not only distinct, it is
further complicated by the significant characteristics which
Barrington alleges it possessed, without any mention whether its
coapplicants shared those characteristics. Consequently, at the
present stage in the Rule 12(b)(6) analysis, the question
reduces to whether it was necessary that Barrington allege these
correlations with reasonable particularity. We conclude that it
was incumbent upon Barrington to do so, for the following
reasons.
First, the complaint included allegations which
arguably intimated that Barrington was not similarly situated to
other applicants in several important respects. The three
factual allegations which gave the district court most concern
cannot be dismissed as either incidental or facially
inconsequential; i.e., (1) Barrington’s original application to
RIHMFC for federal income tax credits, which was based on an
explicit representation that it would receive the $100,000
historic restoration tax credit; (2) its commencement of
construction on the lower-income housing project prior to final
confirmation of its financing package; and (3) the financial
infeasibility of the project absent either the supplemental
federal income tax credits from RIHMFC or the historic
17
restoration tax credits from the National Park Service.
In our view, it would have been entirely reasonable for
RIHMFC to consider each of these matters an adequate basis
(i.e., dubious business acumen and judgment) for treating the
Barrington application differently in the competition for
supplemental federal income tax credits. Cf. Knapp v. Hanson,
183 F.3d 786, 789 (8th Cir. 1999) (“When all that must be shown
by defendant is ‘any reasonably conceivable state of facts that
could provide a rational basis for the [governmental]
classification,’ it is not necessary to wait for further factual
development [of the record].”) (quoting FCC v. Beach
Communications, Inc., 508 U.S. 307, 313 (1993)); cf. also Almon
v. Reno, 192 F.3d 28, 31 (1st Cir. 1999) (“[T]he government need
not actually articulate at any time the purpose or rationale
supporting its [selective] classification.”) (citing Heller v.
Doe, 509 U.S. 312, 320 (1993)), cert. denied, 121 S. Ct. 83
(2000).
Second, neither in its amended complaint, nor elsewhere
in the record on appeal, is there any indication that the
information Barrington would have needed in order to evaluate
whether its coapplicants were “similarly situated” in these
three important respects was inaccessible, let alone in the sole
possession or control of appellees (and hence, reasonably
18
accessible to Barrington only through discovery procedures
postdating the Rule 12(b)(6) stage). For that matter, in its
appellate brief Barrington relates in exhaustive detail the
contents of the RIHMFC applications filed by other applicants.
See, e.g., Judge, 160 F.3d at 72 n.3, 77 (mandating specificity
in complaint so civil rights claimant cannot “drag a defendant
past the pleading threshold” with “baseless claims,” or with a
“conclusory description[] of a ‘general scenario which could be
dominated by unpleaded facts’”) (emphasis added; citations
omitted); Glassman v. Computervision Corp., 90 F.3d 617, 629
(1st Cir. 1996) (“[I]t is plaintiff’s responsibility to plead
factual allegations, not hypotheticals.”) (emphasis added);
Futernick v. Sumpter Township, 78 F.3d 1051, 1058 (6th Cir.
1996). Thus, Barrington readily could have alleged sufficient
facts in its amended complaint to demonstrate that its co-
applicants were similarly situated in the “relevant” respects
noted by the district court. See, e.g., Nestor-Colon-Medina &
Sucesores, Inc. v. Custodio, 964 F.2d 32, 43 (1st Cir. 1992).
Moreover, exhaustive independent research has disclosed no case
authority supporting Barrington’s argument.
Finally, the three cases principally relied upon by
Barrington are inapposite. See Interboro Inst., Inc. v. Maurer,
956 F. Supp. 188 (N.D.N.Y. 1997); see also Santos v. Shields
19
Health Group, 996 F. Supp. 87 (D. Mass. 1998); X-Men Sec., Inc.
v. Pataki, 983 F. Supp. 101 (E.D.N.Y. 1997). Interboro involved
a junior college which brought an equal protection claim
alleging that state education officials had withheld TAP
funding, following an audit, because Interboro is located in
downstate New York and primarily enrolls minority students. The
district court rejected a motion to dismiss under Rule 12(b)(6),
noting that Interboro “has alleged that of all institutions
receiving TAP funds, it is the only school audited three times
in the past six years, and of those institutions audited more
than once during that time frame, all were downstate schools.”
Interboro Inst., 956 F. Supp. at 200 (emphasis added).
Interboro simply demonstrates that a complaint may
survive a Rule 12(b)(6) motion as long as the “similarly
situated” prong of the equal protection rubric is satisfied by
an allegation that the plaintiff was a member of the class,
viz., “all institutions receiving TAP funds,” thereby supporting
the essential implication that class members are similarly
situated in all relevant respects; hence, are qualified to make
the further allegation that the discriminatory action must have
been predicated on an impermissible ground, i.e., a race-based
animus.
Interboro did not consider the implications of a
20
complaint alleging additional facts arguably differentiating the
plaintiff in important respects from fellow class members. Id.
(“[T]he Court finds that the Complaint alleges sufficient facts
to make out a claim for a violation of the Equal Protection
Clause.”). 3 An equal protection claimant “‘may not prevail
[against a Rule 12(b)(6) motion] simply by asserting an inequity
and tacking on the self-serving conclusion that the defendant
was motivated by a discriminatory animus.’” Coyne, 972 F.2d at
444 (citation omitted).4
3Barrington incorrectly asserts that the Second Circuit, see
Interboro Inst., Inc. v. Maurer, 152 F.3d 918 (2d Cir. 1998),
affirmed the district court’s denial of the Rule 12(b)(6)
motion. Instead, it affirmed the district court’s subsequent
post-discovery dismissal of appellees’ motion for summary
judgment. Interboro Inst., Inc. v. Maurer, 984 F. Supp. 119, 124
(N.D.N.Y. 1997) (“Defendants, in turn, rebut each of . . .
[plaintiff’s] points.”). Moreover, even assuming their right to
an immediate appeal, we can discern no indication that the
Interboro defendants ever appealed the denial of their Rule
12(b)(6) motion. See, e.g., Camilo-Robles v. Zapata, 175 F.3d
41, 44-45 (1st Cir. 1999) (noting that orders denying motions to
dismiss normally are nonfinal, thus not subject to interlocutory
appeal).
4The two other case citations proffered by Barrington are
unavailing as well. See Santos, 996 F. Supp. at 94-95 (holding
that there remained a genuine issue of material fact, precluding
summary judgment, as to whether defendant treated plaintiff
differently than a fellow employee, but defendant never disputed
that the two employees were “similarly situated”); X-Men, 983 F.
Supp. at 112 (denying Rule 12(b)(6) motion to dismiss equal
protection claim where plaintiff, a security guard company,
alleged that defendants improperly singled it out due to its
affiliation with the Nation of Islam, since it could be inferred
from complaint that other applicants for government contract
were not so affiliated; but decision rested on “selective
21
2. The “Bad Faith” Allegation
Although the failure to allege that its coapplicants
were “similarly situated” suffices to dispose of its appeal, we
note that Barrington’s factual allegations regarding RIHMFC’s
“bad faith” were inadequate as well. See Rubinowitz, 60 F.3d at
909-10; cf. Yerardi’s, 932 F.2d at 94 (noting that where
plaintiff does not rest “equal protection” claim on alleged
violation of fundamental constitutional right, it is essential
that it “scrupulously me[e]t” the “bad faith” element of its
claim). Once again, cf. supra Section II.B.2, the mere fact
that appellees may have violated or abused federal or state
regulatory regimes by imposing the charitable contribution
requirement upon Barrington, in effect wrongfully imposing an
application “fee” in excess of regulatory limits, has no direct
bearing on whether appellees violated Barrington’s equal
protection rights. See Coyne, 972 F.2d at 444 n.7.
Further, the comments Godfrey made about Barrington’s
loss of the historic restoration tax credits – i.e., Godfrey
“wouldn’t give the project another dime” and would leave
treatment” element, rather that “similarly situated” element,
since court never suggested that complaint alleged additional
factual attributes of plaintiffs (other than their religious
affiliation) which might also differentiate them from other
security guard companies which were awarded government
contract).
22
Barrington “holding the bag” – are likewise readily explained as
rational reactions to the perceived imprudence demonstrated by
Barrington in commencing project construction before its entire
financing package was in place. Although such an inference is
not compelled, and we are to draw all reasonable inferences from
the amended complaint in Barrington’s favor,5 the ambiguity of
Godfrey’s comments unquestionably accentuates the tenuousness of
the claim that Barrington was subjected to selective treatment
because it is an out-of-state, for-profit organization.
As the discussion in Section II.C.1, supra, affords a
sufficient basis for resolving the present appeal, we affirm the
dismissal of the equal protection claims.
III
CONCLUSION
Accordingly, the district court order dismissing the
federal claims in counts two through nine, and the order
remanding the pendant state-law claims in counts one and ten to
the Rhode Island Superior Court, see 28 U.S.C. § 1367(c)(3)
5
RIHMFC implies in its appellate brief that the precise
preconditions for its approval of the Barrington credit
applications for federal income tax credits ( i.e., the so-called
commitment letters) were part of the appellate record, even
though it conceded at oral argument that the applications were
neither appended to the complaint nor incorporated by reference
below. Thus, the commitment letters form no part of the basis
for our decision. See Bessette, 230 F.3d at 443.
23
(supplemental jurisdiction), are affirmed. Nothing in this
opinion shall be construed as a statement on the merits of the
remanded state-law claims.
Affirmed. Costs to appellees. So ordered.
24