Hu v. City of New York
927 F.3d 81
| 2d Cir. | 2019Background
- Plaintiffs: Eric Hu (an Asian construction worker) and two Asian‑owned companies (NY Drilling and 888 Consulting) alleged DOB Inspector Dennis Burkart and colleagues targeted their jobsites with unwarranted inspections, violations, and stop‑work orders based on racial animus toward Asians and personal animus toward Hu.
- Allegations included racist comments, a picture of Hu on Burkart’s wall, statistical evidence that Burkart issued a disproportionate share of violations to Asian‑run sites, and four specific enforcement episodes described in the complaint.
- Plaintiffs sued under the Equal Protection Clause (LeClair and Olech theories), 42 U.S.C. § 1981, substantive due process (including a Chalfy pattern‑of‑harassment theory), Monell municipal liability, and a New York tax/statutory claim.
- The district court dismissed all federal claims under Rule 12(b)(6) and declined to exercise supplemental jurisdiction over the state claim; plaintiffs appealed, arguing the district court applied a heightened pleading standard.
- The Second Circuit affirmed dismissal of the Olech (class‑of‑one) claim, Due Process claims, and Monell claim; vacated dismissal of LeClair Equal Protection claims and the § 1981 claim; and vacated the remand decision so the district court may reconsider supplemental jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing (Hu and 888 Consulting) | Alleged lost clients, fines, legal fees and installation costs show concrete injury traceable to DOB actions | Plaintiffs lack plausibly pleaded injury‑in‑fact | Standing satisfied at pleading stage for Hu and 888 Consulting |
| Equal Protection — LeClair (selective enforcement; race and malice) | Burkart singled out plaintiffs vs non‑Asian comparators; alleges racial and personal animus | Complaint fails to identify similarly situated comparators | LeClair claims plausibly pleaded under a "reasonably close resemblance" standard; vacated dismissal |
| Equal Protection — Olech (class‑of‑one) | Plaintiffs argued arbitrary, irrational differential treatment (no rational basis) | Alleged comparators not sufficiently identical | Olech claim dismissed: requires an "extremely high"/prima facie identical similarity standard; affirmed dismissal |
| § 1981 (race interference with contracts) | Parallel to Equal Protection; same comparator pleading suffices | Failure to plead similarly situated comparator | Dismissal vacated along with LeClair claims; § 1981 claim survives pleading challenge |
| Due Process (occupational liberty & Chalfy harassment theory) | Enforcement campaign deprives plaintiffs of ability to work / pattern of harassment to drive them out of business | Interruptions and business losses do not amount to a complete prohibition; conduct is covered by Equal Protection | Dismissed: no complete prohibition of occupation; Chalfy theory subsumed by Equal Protection; affirmed |
| Monell municipal liability | City liable for ratification/constructive acquiescence in DOB misconduct | No final policymaker ratified misconduct; allegations not widespread/persistent to show municipal custom | Monell claim dismissed: plaintiffs failed to plausibly allege policymaker ratification or a manifest municipal custom; affirmed |
| Dismissal with prejudice / supplemental jurisdiction | District court should have allowed amendment or retained state claim | Plaintiffs never requested leave to amend; district court properly declined to sua sponte grant leave | Dismissal with prejudice as to affirmed claims not erroneous; remand decision vacated for reconsideration of supplemental jurisdiction |
Key Cases Cited
- Village of Willowbrook v. Olech, 528 U.S. 562 (2000) (recognizes "class‑of‑one" Equal Protection theory based on irrational, arbitrary differential treatment)
- LeClair v. Saunders, 627 F.2d 606 (2d Cir. 1980) (Second Circuit’s selective‑enforcement Equal Protection formulation focusing on disparate treatment plus impermissible motive)
- Neilson v. D'Angelis, 409 F.3d 100 (2d Cir. 2005) (articulates Second Circuit’s stringent similarity standard for Olech claims)
- Engquist v. Oregon Dep't of Agriculture, 553 U.S. 591 (2008) (limits application of class‑of‑one claims in certain discretionary employment contexts)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (Article III standing standards for pleading and proof)
- Chalfy v. Turoff, 804 F.2d 20 (2d Cir. 1986) (pattern‑of‑harassment Due Process theory — treated as subsumed where an explicit constitutional provision applies)
- Monell v. Dep't of Social Servs., 436 U.S. 658 (1978) (municipal liability under § 1983 requires an official policy or custom)
- Brown v. City of Oneonta, 221 F.3d 329 (2d Cir. 2000) (section 1981 pleading parallels Equal Protection comparator requirements)