NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 26 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

OHANA CONTROL SYSTEMS, INC.; No. 22-15956

MICHAEL AMIR BOROCHOV,

D.C. No. Plaintiffs-Appellees, 1:21-cv-00345-JAO-KJM

v.

MEMORANDUM*

CITY & COUNTY OF HONOLULU; et al.,

Defendants,

and

TIM CAIRES; et al.,

Defendants-Appellants.

Appeal from the United States District Court for the District of Hawaii Jill Otake, District Judge, Presiding

Submitted June 8, 2023** Honolulu, Hawaii

Before: BADE, BUMATAY, and SANCHEZ, Circuit Judges. Partial Dissent by Judge BUMATAY.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Appellants Jeffrey Lee, Tim Caires, and David Malone (collectively,

“Appellants”) appeal the district court’s order denying their motion to dismiss

Appellees Ohana Control Systems, Inc. and Michael Amir Borochov’s

(collectively, “Ohana”) First Amended Complaint based on qualified immunity,

and its order denying partial reconsideration of the same. We have jurisdiction

under 28 U.S.C. § 1292.1 We affirm in part, reverse in part, and remand.

“The doctrine of qualified immunity protects government officials from

liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would

have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation

marks omitted). An officer will be denied qualified immunity “only if (1) the facts

alleged, taken in the light most favorable to the party asserting injury, show that

the officer’s conduct violated a constitutional right, and (2) the right at issue was

clearly established at the time of the incident such that a reasonable officer would

have understood her conduct to be unlawful in that situation.” Torres v. City of

1 We directed the parties to address our jurisdiction over this action considering Pelletier v. Federal Home Loan Bank of San Francisco, 968 F.2d 865, 871 (9th Cir. 1992) (“[A]n official defendant claiming qualified immunity is entitled to immediate appellate consideration of . . . only . . . the narrow and purely legal [issue] of whether the facts alleged . . . support a claim of violation of clearly established law.” (internal quotation marks omitted)). We conclude Pelletier does not divest us of jurisdiction. See, e.g., Knox v. Sw. Airlines, 124 F.3d 1103, 1107 (9th Cir. 1997).

2 Madera, 648 F.3d 1119, 1123 (9th Cir. 2011).

Ohana alleges Appellants violated the Equal Protection Clause based on a

“class-of-one” theory. This requires Ohana to demonstrate Appellants

(1) intentionally (2) treated it differently (3) from others similarly situated

(4) without a rational basis. See N. Pacifica LLC v. City of Pacifica, 526 F.3d 478,

486 (9th Cir. 2008).

We may analyze the two prongs of qualified immunity in any order. See

Ballentine v. Tucker, 28 F.4th 54, 61 (9th Cir. 2022). We begin with whether the

right at issue was clearly established at the time of alleged constitutional

deprivation.

Relying on Village of Willowbrook v. Olech, 528 U.S. 562 (2000), the

district court concluded the right at issue was freedom from “a government

official . . . treat[ing] similarly situated individuals differently without a rational

basis.” Appellants contend this conclusion is “incorrect as a matter of law”

because the stated right is too generalized. But we have consistently read Olech

broadly as clearly establishing the right to be free from differential treatment by the

state without a rational basis. See, e.g., SmileDirectClub, LLC v. Tippins, 31 F.4th

1110, 1122–23 (9th Cir. 2022); Gerhart v. Lake Cnty., Mont., 637 F.3d 1013, 1025

(9th Cir. 2011); Rosenbaum v. City & Cnty. S.F., 484 F.3d 1142, 1157 n.11 (9th

Cir. 2007); Engquist v. Ore. Dep’t Agric., 478 F.3d 985, 993 (9th Cir. 2007);

3 SeaRiver Mar. Fin. Holdings Inc. v. Mineta, 309 F.3d 662, 679 (9th Cir. 2002); see

also N. Pacifica, 526 F.3d at 486. And this reading accords with the broader

principle of qualified immunity, which is intended to shield officers from liability

where a reasonable person would not have known the alleged acts violate a

constitutional right. Torres, 648 F.3d at 1123. We accordingly affirm the district

court’s determination that the right claimed by Ohana was clearly established at the

time of the alleged violations.

We also affirm the district court’s conclusion that the First Amended

Complaint alleges facts sufficient to show Lee’s conduct violated a constitutional

right. Fairly read, Ohana alleges that Lee harbored anti-Semitic feelings and a

general animus against Ohana’s owner and that, based on these feelings, Lee—

cloaked with the power of the state—falsely represented to one of Ohana’s clients

that Ohana had failed a final inspection. According to Ohana, Lee singled Ohana

out for differential treatment—that is, Lee did not make false representations to the

clients of similarly situated fire-alarm installation firms. These allegations

sufficiently allege a “class-of-one” equal protection claim and the district court

correctly denied Lee qualified immunity against the claim.

We disagree, however, with the district court’s conclusions that Ohana has

sufficiently alleged a “class-of-one” equal protection claim against Caires and

Malone.

4 Ohana alleges that Caires violated its constitutional rights by emailing the

company that manufactures the alarm systems Ohana installs and inquiring about

its products in a disingenuous and threatening way.2 But those actions alone do not

demonstrate that Caires intended to treat Ohana differently from similarly situated

comparators for an arbitrary or impermissible reason. There are no allegations, for

example, that the emails actually referred to Ohana, nor that Ohana was harmed by

Caires’s emails. Accordingly, Ohana fails to plausibly allege that Caires violated

its rights under the Equal Protection Clause.

As for Malone, Ohana alleges he violated the Equal Protection Clause by

subjecting Ohana to more rigorous regulatory requirements than other similarly

situated installation firms. Ohana, however, does not allege that Malone inspected

any other competitors’ projects and therefore does not allege that Malone treated

Ohana differently.

For these reasons, we affirm the district court’s denial of qualified immunity

for Lee, reverse the district court’s denial of qualified immunity for Caires and

Malone, and remand for proceedings consistent with this disposition.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

2 Ohana also alleges Caires treated Ohana differently from similarly situated comparators when he required Ohana—and only Ohana—to install fireman’s phone jacks. These allegations are not addressed in Ohana’s briefing, and they are insufficient to establish an equal protection violation because Ohana does not allege that Caires ultimately required the installation of these phone jacks.

5

FILED

Ohana Control Systems, Inc. v. City & County of Honolulu, No. 22-15956 JUN 26 2023 Bumatay, Circuit Judge, dissenting in part: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I agree with the majority’s conclusion that Ohana Control Systems has not

sufficiently alleged a “class-of-one” equal protection claim against Tim Caires and

David Malone and that they are entitled to qualified immunity. So I concur with that

part of the majority decision.

But I would also grant qualified immunity to Jeffrey Lee. Even if Ohana

adequately pleaded an equal protection claim against Lee, Ohana has not sufficiently

shown that Lee violated clearly established law. Lee is thus entitled to qualified

immunity, and I dissent from that part of the majority decision.

The district court concluded that Lee, Malone, and Caires violated clearly

established law as set forth in Village of Willowbrook v. Olech, 528 U.S. 562 (2000).

In that case, the defendant demanded a 33-foot easement as a condition of connecting

the plaintiff’s property to the municipal water supply, when it only required a 15-

foot easement of other similarly situated property owners. Id. at 565. The district

court held that the Olech established “a governmental official cannot treat similarly

situated individuals differently without a rational basis.” Such a generalized

statement of law cannot serve as a basis of “clearly established” law to deny a state

official qualified immunity.

In analyzing whether rights are clearly established, we look to then-existing

“cases of controlling authority” or, absent such cases, to a “consensus” of persuasive authorities. Evans v. Skolnik, 997 F.3d 1060, 1066 (9th Cir. 2021). “A clearly

established right is one that is sufficiently clear that every reasonable official would

have understood that what he is doing violates [it].” Rico v. Ducart, 980 F.3d 1292,

1298 (9th Cir. 2020) (simplified).

The Supreme Court has cautioned that we should not analyze whether rights

are clearly established “at a high level of generality.” Kisela v. Hughes, 138 S. Ct.

1148, 1152 (2018). Our inquiry is whether “the violative nature of [the defendant’s]

particular conduct is clearly established . . . in light of the specific context of the

case.’” Rico, 980 F.3d at 1298. The Supreme Court has made clear that we must

consider the “specific facts under review.” Hamby v. Hammond, 821 F.3d 1085,

1091 (9th Cir. 2016). See also City & Cnty. of San Francisco v. Sheehan, 575 U.S.

600 (“We have repeatedly told courts—and the Ninth Circuit in particular—not to

define clearly established law at a high level of generality.”)

The district court’s approach conflates (1) caselaw that establishes the

existence of the “class of one” cause of action with (2) caselaw that would put a

reasonable officer on notice that his conduct was unlawful in a particular situation.

The Supreme Court has made clear that the former does not satisfy requirements for

the latter. Ashcroft v. al-Kidd, 563 U.S. 731, 742 (9th Cir. 2011) (“The general

proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of particular

conduct is clearly established.”).

The cases cited by the majority establish the existence of a “class of one” equal

protection claim—they do not announce clearly established law that would put Lee

on notice that his conduct in this particular case obviously violated the law. See

SmileDirectClub, LLC v. Tippins, 31 F.4th 1110, 1122–23 (9th Cir. 2022)

(recognizing availability of “class-of-one” claim); Gerhart v. Lake Cnty., Mont., 637

F.3d 1013, 1025 (9th Cir. 2011) (finding a constitutional right for Gerhart not to be

treated differently by the government than other similarly situated landowners were

treated); Rosenbaum v. City & Cnty. S.F., 484 F.3d 1142, 1157 n.11 (9th Cir. 2007)

(recognizing availability of “class-of-one” claim); Engquist v. Ore. Dep’t Agric., 478

F.3d 985, 993 (9th Cir. 2007) (“Based on Olech, we have applied the class-of-one

theory in the regulatory land-use context to forbid government actions that are

arbitrary, irrational, or malicious.”); SeaRiver Mar. Fin. Holdings Inc. v. Mineta, 309

F.3d 662, 679 (9th Cir. 2002) (recognizing availability of “class-of-one” claim); N.

Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008) (recognizing

availability of “class-of-one” claim).

These cases do not suggest that Olech serves as blanket “established law”

covering any conceivable class-of-one equal protection claim. Nor do they suggest

that Lee would have been on notice that his specific conduct violated Ohana’s constitutional rights. Ohana contends that Lee falsely told an association of

apartment owners that an alarm system installed by Ohana on their property was

never inspected for a final acceptance test, which then required a fire watch. These

allegations are unlike those in Olech, where the defendant violated clear zoning

requirements (a 15-ft easement requirement) in an “irrational and wholly arbitrary”

way. See Olech, 528 U.S. at 565. This case is also miles apart from Gerhart, where

ten property owners were allowed to build approaches to a county road, but the

plaintiff was rejected for no reason. 637 F.3d at 1022. None of the other cases cited

above have validated a class-of-one claim concerning property, building, or land use

permits or regulations. And here, Ohana hasn’t shown what clear standardized

regulation or requirement Lee violated by lying to the association.

Qualified immunity protects “all but the plainly incompetent or those who

knowingly violate the law.” Rico, 980 F.3d at 1298. Under the district court’s

approach to this case, we collapse the two-step qualified immunity test into a single

step—now, any well-pleaded class-of-one claim automatically meets the clearly

established law requirement. For this reason, I respectfully dissent from the denial

of qualified immunity for Lee.