          United States Court of Appeals
                       For the First Circuit

No. 12-1422

                         ROBERT S. SNYDER,

                        Plaintiff, Appellee,

                                 v.

                  RALPH E. GAUDET; PATRICK POWELL,

                      Defendants, Appellants,

    BERNADETTE D. SEWELL; CITY OF WALTHAM; SERAFINA COLLURA;
                     JEANNETTE A. MCCARTHY,

                            Defendants.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

              [Hon. Rya W. Zobel, U.S. District Judge]


                               Before
                        Lynch, Chief Judge,
               Thompson and Kayatta, Circuit Judges.


          Bernadette Dunn Sewell, Assistant City Solicitor, City
of Waltham Law Department, for appellants.
          Zaheer A. Samee, with whom Leonard A. Frisoli and
Frisoli Associates, P.C., were on the brief, for appellee.


                           June 25, 2014
           KAYATTA,    Circuit   Judge.     Robert    Snyder    operated   a

business in a building he owned, and shared with two tenants, in a

mostly residential area of Waltham, Massachusetts.             After Snyder

fired an employee who was a member of the Waltham city council, the

former employee complained to the city building department that

Snyder   was   using   his   property   unlawfully.    Code     enforcement

officers then scrutinized Snyder's use of his property and fined

him under a local land use ordinance.          Snyder eventually brought

this suit under 42 U.S.C. § 1983 against the city of Waltham and

five individuals, claiming a violation of his right to equal

protection of the laws under the Fourteenth Amendment to the United

States Constitution. After unsuccessfully seeking summary judgment

based on immunity defenses, two of the individual defendants filed

this appeal.     Finding that they are entitled to judgment as a

matter of law, we reverse.

                               I. Background

           In reviewing an interlocutory appeal from a denial of

qualified immunity, we accept as given the facts that the district

court ruled could be found by a reasonable jury viewing the

evidence in the light most favorable to the plaintiff. See Johnson

v. Jones, 515 U.S. 304, 313-19 (1995).             We do not entertain

challenges to the inferences drawn by the district court in doing

so or to its determinations regarding the evidentiary support for

the plaintiff's claims. See id.; Cady v. Walsh, ___ F.3d ___, ___,


                                    -2-
2014 WL 2518865, at *10 (1st Cir. June 4, 2014).        We can consider

an interlocutory appeal of this kind, then, to the extent the

appellants ground their arguments in the record as viewed most

favorably   to   the   plaintiff,   leaving    undisturbed   all   factual

inferences implied by the district court's decision.         See Johnson,

515 U.S. at 319.       Here, while Gaudet and Powell sometimes stray

from that path in their brief, the facts that ultimately prove

dispositive are those that both sides agree we can assume to be

true for purposes of this appeal.         We describe those facts below,

adding some additional context.

            Snyder's difficulties with the city began when he fired

an employee, Serafina Collura, who served as a member of the

Waltham city council.        Collura soon complained to the city's

building department that Snyder's use of his building violated a

land use ordinance because, according to Collura, Snyder rented a

portion of the second floor as a residence.        Collura continued to

pressure city officials to investigate Snyder over the following

months.

            Appellants Ralph Gaudet and Patrick Powell were Waltham's

superintendent of public buildings and senior building inspector,

respectively. Gaudet and Powell eventually did investigate Snyder.

The district court found it reasonable to infer, and we accept for

purposes of this appeal, that Gaudet and Powell knew of Collura's

motivations and acted "in aid of [her] efforts."        Powell inspected


                                    -3-
Snyder's property twice in February 2007, approximately seven

months after Collura first complained. Although Powell initially

indicated in a conversation with a city attorney that he had found

no violations during his inspections, he later issued a citation to

Snyder in June 2007.   We assume that Powell's about-face can be

attributed to pressure from Collura.

          In the citation, Powell found that Snyder had violated a

zoning variance issued to the original owner of the building in

1967 by using it for purposes other than professional offices. The

original owner, an optometrist, had sought to use the property for

three medical offices and received a variance allowing its use as

"professional offices."   The original owner sold the property to

another optometrist, who sold to Snyder in 1997.       The parties

dispute whether the variance allowed use of the second floor as a

residence, but we need not consider the issue, because we accept

solely for purposes of our consideration of this interlocutory

appeal that Snyder never engaged in such residential use.

          Snyder maintains that he complied with the variance

because the building was used entirely for professional offices.

But he has admitted the truth of several facts described in

Powell's citation.   First, Powell found, and Snyder has conceded,




                                -4-
that one room in the building was used to perform massages.1

Second, he has conceded that a second room was used as the office

of a roofing contractor, who he says also used it for work as a

paralegal.     Finally, Powell found that Snyder used his own office

as a "warehouse" for "receiving and shipping."        Although Snyder

disputes the characterization of his own office as a "warehouse,"

he admits that he used it to store the small metal components his

company manufactures for eventual shipment to customers.

             Powell's citation instructed Snyder to either cease and

desist from violations of the variance, or show evidence that he

was applying to the city's zoning board of appeals to modify the

variance.     If he did neither, he would face fines escalating to

$300 per day.     Snyder eventually pursued a modification, but the

zoning board of appeals did not grant one.       Meanwhile, the city

issued several fines to Snyder, starting with a $50 fine in

November 2007 (about four months after the citation issued),

followed by further fines in May 2008, at which time Snyder was

told that he would continue to be fined $300 for each additional

day that passed until he corrected the violation.

             Snyder contested the fines in the Waltham district court,

which denied their enforcement in December 2008. Approximately two



     1
       According to the tenant who performed massages, she was not
a licensed masseuse, and although she also worked as a nurse,
nothing she did on Snyder's property related to nursing. Snyder
does not dispute this testimony.

                                  -5-
and a half years later, the court entered a docket entry, at the

behest of an attorney for Waltham, to "clarify" that it had found

sufficient evidence of a violation but had dismissed the fine

because Snyder had later come into substantial compliance.

                           II. Standard of Review

             As noted above, we have jurisdiction only to consider

Gaudet and Powell's legal argument that, on the facts described

above, they were entitled to immunity.             On that legal issue, our

review is de novo.       Suboh v. District Attorney's, 298 F.3d 81, 90

(1st Cir. 2002).

                               III. Analysis

             To assess qualified immunity, we ask whether a government

official "violated a statutory or constitutional right that was

clearly established at the time of the challenged conduct."

Plumhoff   v. Rickard, 134 S. Ct. 2012, 2023 (2014) (internal

quotation marks omitted).          For a right to be clearly established,

"existing precedent must have placed . . . beyond debate" that the

"particular conduct" at issue violated the plaintiff's rights.

Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083-84 (2011).

             In   the   district    court,    Snyder   alleged   that   Gaudet,

Powell, and the other defendants violated his rights to equal

protection    and   substantive      due     process   under   the   Fourteenth

Amendment, and his right to be free from unreasonable seizure under

the Fourth Amendment, and that they conspired to do so.                     The


                                       -6-
defendants moved for summary judgment, claiming among other points

that Gaudet and Powell were entitled to qualified immunity.                    The

district   court   denied   that    motion    as    to   all    claims   and   all

defendants.     On this appeal, Snyder relies only on his equal

protection    claim   to   defeat   Gaudet    and    Powell's      assertion    of

qualified immunity, thereby waiving any argument that the other

claims survive the immunity defense.           See Tower v. Leslie-Brown,

326 F.3d 290, 299 (1st Cir. 2003).           Snyder also asserts before us

a violation of the Excessive Fines Clause of the Eighth Amendment,

but he never presented that claim to the district court, so we will

not consider it.      See Rodríguez-García v. Miranda-Marín, 610 F.3d

756, 774-75 (1st Cir. 2010).        We therefore train our review on his

only preserved federal claim against these defendants: his equal

protection claim.2

              Because Snyder contends that the government singled him

out for differential treatment for reasons unique to him, rather

than because of his membership in any group, his equal protection

claim is of the "class of one" variety.            See id.     In such an equal

protection claim, Snyder must show that he "has been intentionally

treated differently from others similarly situated and that there

is no rational basis for the difference in treatment."                   Vill. of

Willowbrook v. Olech, 528 U.S. 562, 564 (2000).                In claims such as



     2
        Snyder's complaint also raised several state law claims,
which are not at issue on this appeal.

                                     -7-
Snyder's,    the    plaintiff      ordinarily   must    also    show   that   the

defendant's differential treatment of the plaintiff was motivated

by "bad faith or malicious intent to injure," Rubinovitz v. Rogato,

60 F.3d 906, 911 (1st Cir. 1995), but we need not reach that

requirement because we find that Snyder cannot prevail in showing

differential treatment.

             In a class of one equal protection claim, proof of a

similarly     situated,      but   differently     treated,     comparator     is

essential.    See Cordi-Allen v. Conlon, 494 F.3d 245, 250 (1st Cir.

2007).    In particular, "plaintiffs must show an extremely high

degree of similarity between themselves and the persons to whom

they compare themselves."           Id. at 251 (internal quotation marks

omitted).    They must show that they "engaged in the same activity

. . . without such distinguishing or mitigating circumstances as

would    render    the    comparison   inutile."        Id.     Moreover,     this

requirement "must be enforced with particular rigor in the land-use

context   because    zoning     decisions    'will     often,   perhaps   almost

always,    treat    one    landowner   differently      from    another.'"     Id.

(quoting Olech, 528 U.S. at 565 (Breyer, J., concurring)).                Snyder

has not argued that the rigorous similarity requirement should be

relaxed due to any special circumstance of his case.

             Snyder does not point to any owner of another building,

operating under a similar variance, who was allowed to use that

other building as Snyder used his own. Instead, Snyder says he was


                                       -8-
treated   differently     than    the    prior    owner   of   this   particular

property, who received a letter from Gaudet in 1994 stating that

his use of the property was acceptable under the variance.                   In

particular, according to the letter, the prior owner could use the

"first floor office for Optometry" and the second floor for

"residential use for the Optometrist and his/her family."                Snyder

points to this letter as proof that he was treated differently than

the prior owner.

            But Snyder also admits that he and his tenants used the

property in very different ways than the prior owner: not for

providing personal services by medical professionals but rather

for, among other things, coordinating contract work for roofing and

paralegal     services,     and         facilitating      Snyder's      business

manufacturing   small     metal   components.         These    differences   are

relevant to the city's actions in this case.                   The variance was

first requested and obtained by an optometrist who sought to use

the building for medical offices.             The next owner continued to use

the building as an optometry office, and Gaudet's 1994 letter

confirmed that this use was acceptable. In other words, both prior

owners used the building exactly as the city had originally

authorized it to be used.          Snyder's use, in contrast, departed

significantly from that original purpose.              These undisputed facts

separate this case from those in which we have allowed an equal

protection claim to proceed, such as where multiple landowners


                                        -9-
installed         plumbing      with   no     permit,     in    materially         identical

circumstances,            but   only   one    was    required        to    disconnect         the

plumbing.         Rubinovitz, 60 F.3d at 910-12.

                  Snyder    nevertheless       maintains       that       the    differences

between his use and that of the prior owner were immaterial because

both       used    the     building    for   "professional           offices."          We    are

skeptical          that     a   roofing      contractor        and    the       owner    of     a

manufacturing company, for example, qualify as professionals under

the variance, as Snyder urges us to conclude.                        But even if we were

to so conclude, our task is not to decide in the first instance how

the variance should be applied.                Rather, we need only to determine

if there was a rational basis for distinguishing between Snyder and

the prior owner.             See Cordi-Allen, 494 F.3d at 250-51.                   In other

words, the similarly situated standard requires more than a showing

that       the     government      erred      in    applying         authority      open       to

interpretation in a novel situation.3                   See id. at 251 (explaining

that "[t]he 'similarly situated' requirement furnishes the limiting

principle" that prevents "virtually every zoning decision" from

leading to an equal protection case).




       3
        Because the undisputed facts make clear that there was a
rational basis for distinguishing between Snyder and the prior
owner, we need not consider the effect of the statement issued by
the Waltham district court, two and a half years after the end of
the enforcement proceedings, that he had failed to comply with the
variance.

                                             -10-
           Snyder's   claim   is   also   weakened    by   the   passage   of

thirteen years between Gaudet's letter to the prior owner in 1994

and the city's citation of Snyder in 2007.       We have noted that "the

most reliable comparisons are likely to be from roughly the same

time   frame,"   particularly      in   the   land-use     context,    where

"differential treatment following a time lag . . . may indicate a

change in policy rather than an intent to discriminate."              Id. at

253.   Here, indeed, the city may have changed its policy regarding

the enforcement of variances.       Gaudet and Powell point to a city

ordinance passed in 2005 that arguably affected the degree of

discretion afforded to city officers in applying variances. Snyder

offers no rebuttal to the defendants' claim that the ordinance

distinguishes his situation from that of the prior owner.

           Given the undisputed facts, no law clearly established at

the time Gaudet and Powell acted would allow Snyder to prevail on

his equal protection claim by showing he was treated differently

than the prior owner.    And he fares no better in his attempt to

compare how the city treated him after he fired Collura to how it

treated him before he did so. Snyder cites no case suggesting, let

alone clearly establishing, that a plaintiff in an equal protection

case can use himself as a comparator. On the contrary, the Supreme

Court and this court have always described equal protection claims

as based on differential treatment between one person, or a group

of people, and "others similarly situated."          E.g., Olech, 528 U.S.


                                   -11-
at 564 (emphasis added). We are doubtful Snyder can use himself as

his own comparator, as accepting that approach would have broad

implications, converting any claim of retaliation (for any reason)

into an equal protection case, and effectively eliminating the

differential    treatment      element      of    equal       protection    claims.

Nonetheless, we need not resolve that question because, as a

factual matter, Snyder does not allege that Gaudet, Powell, or

anyone in the city's building department knew before he fired

Collura how he was using the property, so there would appear to be

no differential treatment even if he were allowed to be his own

comparator.

                                IV. Conclusion

             We acknowledge that many citizens looking at the facts of

this case would perceive an abuse of government power.                     Indeed, we

have assumed, solely for the purposes of this appeal, that Collura

acted   in    bad   faith,    and    that    Gaudet       and    Powell    knowingly

contributed to her retaliatory effort.              But local governments make

countless     decisions      every   day,    many        of    which   inevitably

disadvantage someone who can credibly claim that a local official

acted out of personal hostility.                 This is especially so in our

smaller cities and towns, where many people know their public

officials.      State and local law often provides recourse for

challenging     the   imposition       of        fines    or     the   burdens      of

administrative rulings by local officials that violate state or


                                      -12-
local law.    So, too, the political process may provide a venue for

correcting or deterring abuses.    And federal courts obviously play

an important role in adjudicating claims that such abuses violate

federal law.    Where, as here, however, municipal officials did not

violate any clearly established federal law, federal law provides

no basis for making local government officials pay damages.

             We therefore reverse the district court's denial of

Gaudet and Powell's motion for summary judgment on Snyder's federal

claims.

             So ordered.




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