Joseph Baliga v. Michael Smith

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued December 13, 2023
Decided February 9, 2024
Before
DIANE P. WOOD, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
JOHN Z. LEE, Circuit Judge
No. 23-1786
JOSEPH BALIGA,
Plaintiff-Appellant,
v.
MICHAEL SMITH, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Southern District of Indiana,
Indianapolis Division.
No. 1:21-cv-00472-JRS-TAB
James R. Sweeney II,
Judge.
O R D E R
The Indiana Horse Racing Commission suspended Dr. Joseph Baliga’s license to
practice veterinary medicine at horse-racing tracks after a witness reported seeing him
administering a drug in an unapproved manner. Baliga sought judicial review, and the
Indiana Court of Appeals remanded, concluding that the Commission had abused its
discretion. The Commission later dismissed the charges against Baliga, who then
brought this suit in federal court, asserting a class-of-one equal protection claim. The
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

-- 1 of 9 --

No. 23-1786 Page 2
district court entered summary judgment for the defendants. Though the standards that
apply to class-of-one claims are unsettled in this court, we affirm because Baliga’s claim
fails regardless of which standard we apply.
Background
This appeal concerns the Indiana Horse Racing Commission’s investigation and
prosecution of Baliga after he allegedly violated the Commission’s drug administration
rules. The Commission, which is both a regulatory and adjudicative body, prohibits
horses dosed with any foreign substance except furosemide from participating in a race.
71 I ND. A DMIN . C ODE 8-1-2, 3. (Furosemide—brand name Lasix—is a diuretic that is
commonly given to racehorses. Baliga v. Ind. Horse Racing Comm’n, 112 N.E.3d 731, 734
(Ind. Ct. App. 2018).) The Commission has strict protocols for the race-day
administration of Lasix: Only veterinarians licensed by the Commission may administer
it, and only a certain amount from a factory-sealed bottle. 71 I ND. ADMIN . C ODE 8-1-5. A
Lasix “escort” must accompany the veterinarian. See id.
On September 30, 2016, Baliga, a veterinarian with the requisite Commission
license, administered Lasix to horses that were racing later that day. He was
accompanied by a Lasix escort, David Hicks. According to Hicks, at one point while he
and Baliga were in the Lasix room (a secure room to which only a few people had a
key), Baliga drew fluid from a small, unidentified vial into a syringe. Baliga then drew
Lasix into the same syringe and placed the syringe in his pocket. Later, Hicks saw
Baliga remove the syringe from his pocket and administer its contents to a horse.
After Baliga finished administering Lasix for the day, Hicks told the track judges,
who are authorized to impose summary suspensions, I ND. C ODE § 4-31-12-15, what he
had allegedly witnessed. Hicks then found a small, non-Lasix vial in the Lasix room’s
trashcan. That evening, the Commission’s general counsel, Lea Ellingwood, emailed a
Commission investigator, the executive director, the deputy executive director, and
others. She said that Baliga had “operated on the fringe without getting caught in the
past,” and instructed the recipients to, “for sake [sic] of prosecuting this,” ensure that
they had Hicks identify the vial and confiscate it, “[t]oss Baliga’s truck,” and “[s]earch
Baliga and his wife.”
Under Indiana Law, an incident like the one here can lead to two types of
disciplinary proceedings. Baliga, 112 N.E.3d at 732–33. First, the track judges may
summarily suspend a license, after which the licensee is entitled to a hearing contesting

-- 2 of 9 --

No. 23-1786 Page 3
the summary decision. See generally 71 I ND. ADMIN . C ODE 10-2. The judges may then
continue to a disciplinary hearing at which they hear the evidence and decide whether
the licensee committed any violations. See id. Second, the Commission, through its
executive director, may file an administrative complaint against a licensee, after which
the licensee may request a hearing. See id. 10-3-20. Commission staff prosecute the
complaint, and an administrative law judge—chosen by the Commission’s chairman—
presides over the hearing. The ALJ then issues an order, which the Commissioners may
affirm, modify, dissolve, or remand. Id. 10-3-15.
The Commission pursued both routes against Baliga. The track judges
summarily suspended Baliga’s license based on Hicks’s statement. After the hearing on
the summary suspension, the judges decided to leave the suspension in place until a
merits hearing could be held. Baliga, 112 N.E.3d at 733. And on November 10, 2016, the
Commission’s executive director, Michael Smith, filed an administrative complaint
against Baliga. The complaint alleged that Baliga had violated the Commission’s
regulations by administering a substance other than furosemide, failing to keep
compliant records, and having contact with a horse for purposes other than injecting
furosemide. (Baliga emphasizes that the complaint relied on an affidavit from Hicks
that was not signed until November 10, though the complaint was dated November 4.)
Ellingwood assigned Holly Newell, the deputy general counsel, to prosecute the
complaint before the ALJ. Ellingwood herself would advise the Commissioners on how
to proceed on the ALJ’s order.
Newell was already familiar with Baliga. In 2014, the Commission had
confiscated a package that Baliga had left for someone at a racetrack, and an unknown
substance was found inside. Around that time, Newell sent an email to track judges
stating that it “would be fun” to “get the Baliga ruling out.” The judges responded,
“Hey that really sounds like fun.” The contents of that package were tested in 2016, and
the test was negative for impermissible substances. Newell then sought to have the
contents retested in 2017, and Smith asked about the substance and test results in 2018.
Smith later testified that he could not recall the Commission ever holding a substance
for so long.
Newell also was familiar with the attorney who represented Baliga before the
Commission: He had previously filed two complaints against Newell—one with the
Commission and one with the Indiana Supreme Court’s disciplinary body. The
complaints did not result in discipline, although they prompted Ellingwood and Smith
to speak with Newell about them.

-- 3 of 9 --

No. 23-1786 Page 4
We return to the matter at hand. The Commission sent off the blood and urine of
the treated horse for testing as well as the vial Hicks reported finding in the Lasix room.
The blood and urine results, which the Commission likely received before filing the
administrative complaint (although the record does not establish this definitively), were
negative for impermissible substances. And the results for the vial, which the
Commission received after it filed the complaint, indicated only Lasix. Neither Newell
nor Smith could recall a time when a licensee was charged for improper drug
administration when the test results did not indicate prohibited drugs and the accused
did not admit to the allegations.
To defend against the administrative complaint, Baliga was required to timely
request a hearing. 71 IND. A DMIN . C ODE 10-3-20(d). Although he appealed the summary
suspension by the track judges, he did not request a hearing to challenge the
administrative complaint. Baliga, 112 N.E.3d at 734. Six days after the time to request a
hearing expired, and the same day the Commission received the results from the vial’s
testing, Newell (with Smith’s authorization) moved for a default judgment against
Baliga. Neither Newell nor Smith could recall ever having sought a default judgment
before.
The ALJ recommended that Baliga be found in default. Id. The Commissioners
agreed, entered the default judgment, and imposed a five-year suspension of Baliga’s
Commission license, a permanent ban from the Lasix administration program, and a
$20,000 fine. Id. The Commission’s newsletter later announced Baliga’s suspension.
Baliga sought judicial review in state court. Baliga, 112 N.E.3d at 734. The Indiana
Court of Appeals ultimately concluded that the default judgment was an abuse of
discretion and remanded to the Commission for a hearing on the merits. Id. at 737–38.
The Commission sought review by the Indiana Supreme Court, which denied transfer
in December 2019. Baliga v. Ind. Horse Racing Comm’n, 123 N.E.3d 140 (Ind. 2019).
Smith decided at some point before October 2019 to cease prosecuting Baliga, but
the administrative complaint was not withdrawn until June 11, 2020, after Smith had
retired. Deena Pitman replaced Smith as executive director of the Commission.
In October 2020, Baliga applied for a new Commission license. His application
was referred to Pitman because of his history. Although applications are typically
processed within 72 hours of submission, no action was taken on Baliga’s application by
the end of the racing season, over a month later. Pitman later testified that the

-- 4 of 9 --

No. 23-1786 Page 5
application was in the “executive queue,” which was generally reserved for individuals
with previous racing indiscretions, and Pitman never acted on it because she was
especially busy that season.
Baliga applied for a license again in 2021. This time, Pitman approved the
application. But Baliga did not receive notice from the Commission that it was
approved, although such notice was customarily provided.
Baliga then sued numerous Commission defendants—including the
Commissioners, their general counsels, and their executive directors, as well as the track
judges—in federal court, asserting an equal protection violation under a class-of-one
theory.1 See 42 U.S.C. § 1983. After the district court partially granted a motion to
dismiss, the defendants moved for summary judgment. They argued that they had a
rational basis for bringing the disciplinary actions, that Baliga lacked evidence that they
acted with animus, and that he failed to identify similarly situated individuals who
were treated better than he. The defendants also asserted several types of legal
immunity. In response, Baliga argued that he had produced evidence from which a
reasonable jury could conclude that the defendants’ conduct was irrational and
motivated by animus and, thus, he did not need to identify similarly situated licensees.
In making his case, he also relied on the defendants’ admissions that they had not taken
some of these actions before.2
The district court entered summary judgment for the defendants. It noted the
unsettled law in our circuit regarding the role of animus in class-of-one claims and
questioned whether this type of equal protection claim is coextensive with claims under
the due-process clause. But, in the end, it concluded, relying on Katz-Crank v. Haskett,
843 F.3d 641 (7th Cir. 2016), that because the defendants’ actions were discretionary in
nature, Baliga could not challenge them through a class-of-one claim. And regardless,
the court continued, the defendants had a rational basis for initiating disciplinary
proceedings, and Baliga did not show that he was treated worse than other licensees.
The court then denied Baliga’s timely motion to reconsider. See F ED. R. C IV. P. 59(e).
Baliga appeals both decisions. See F ED. R. A PP . P. 4(a)(4)(A)(iv).
1 Baliga brought other constitutional and state-law claims, but he presses only his
equal protection claim on appeal.
2 On appeal, Baliga appears to re-frame this argument by asserting only that he
need not identify similarly situated individuals if he can show animus.

-- 5 of 9 --

No. 23-1786 Page 6
Analysis
On appeal, Baliga argues that the district court incorrectly ruled that the
defendants’ discretionary decisions were outside the scope of a class-of-one claim and
that he produced sufficient evidence that the defendants’ actions were irrational and
motivated by malice. To succeed on a class-of-one equal protection claim, Baliga must
show, at a minimum, that he was “intentionally treated differently from others similarly
situated and that there is no rational basis for the difference in treatment.” Village of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000). We review the summary judgment
decision de novo and construe the evidence in the light most favorable to Baliga.
Brunson v. Murray, 843 F.3d 698, 704 (7th Cir. 2016).
Though the Olech standard is uncontroversial, the requirements for a successful
class-of-one claim—particularly, what, if any, role animus has—remain unsettled in this
court. See FKFJ, Inc. v. Village of Worth, 11 F.4th 574, 588–89 (7th Cir. 2021) (collecting
cases); Frederickson v. Landeros, 943 F.3d 1054, 1061–62 (7th Cir. 2019). This court’s
attempt to harmonize its precedent in Del Marcelle v. Brown County Corp., 680 F.3d 887
(7th Cir. 2012) (en banc), resulted in three separate opinions, and an affirmance by an
evenly divided court. In Brunson, we summarized the three Del Marcelle opinions:
The crux of the disagreement was whether the plaintiff in a class-of-one
claim must demonstrate only that there is no possible justification or
rational basis for the defendant’s actions, id. at 900 (Easterbrook, C.J.,
concurring in the judgment), or if the plaintiff must demonstrate a lack of
justification and also present evidence of hostile intent or animus, id. at 889
(Posner, J., plurality opinion), or if the plaintiff must demonstrate an
absence of rational basis, which can be satisfied with evidence of animus,
id. at 913 (Wood, J., dissenting).
843 F.3d at 706. But, here, we need not resolve these questions because Baliga
cannot succeed regardless of which standard we apply.
I.
We agree with Baliga that the first reason that the district court gave for granting
summary judgment—that class-of-one claims “cannot be used to challenge
discretionary governmental action”—overstates the principle. Outside the public
employment context, we have permitted multiple class-of-one challenges to various

-- 6 of 9 --

No. 23-1786 Page 7
types of discretionary conduct. See, e.g., Geinosky v. City of Chicago, 675 F.3d 743, 745
(7th Cir. 2012) (issuing parking tickets); Hanes v. Zurick, 578 F.3d 491, 492 (7th Cir. 2009)
(making repeated arrests); cf. Hilton v. City of Wheeling, 209 F.3d 1005, 1007–08 (7th Cir.
2000) (enforcing public nuisance laws).
True, we have stated that a plaintiff may not use a class-of-one claim “to
challenge discretionary governmental action like the decision to initiate prosecution,”
Katz-Crank, 843 F.3d at 649, at least when the challenge is “premised solely on
arbitrariness/irrationality,” United States v. Moore, 543 F.3d 891, 901 (7th Cir. 2008).
Cf. Hanes, 578 F.3d at 495 (stating that “Moore simply honors the rule that prosecutorial
conduct is absolutely immune from civil liability because prosecutors need unfettered
discretion”). But we construe Baliga as challenging more than just the “discretionary”
initiation of disciplinary proceedings: He asserts generally that the defendants
conducted a “prolonged campaign” against him and subjected him to “years of
harassment, and misuse of governmental power,” in order to “disrupt and significantly
affect [his] livelihood.” We have allowed plaintiffs to bring class-of-one claims
challenging similar purportedly targeted actions. See, e.g., Esmail v. Macrane, 53 F.3d 176,
179–80 (7th Cir. 1995) (plaintiff could succeed on class-of-one claim if he could prove
defendants were out to “get” him and subjected him to an “orchestrated campaign of
official harassment”); see also Swanson v. City of Chetek, 719 F.3d 780, 782, 784 (7th Cir.
2013) (class-of-one claim premised in part on defendant causing delay or denial in
permit and initiation of prosecution, survived summary judgment).
II.
We turn to the district court’s second reason for entering summary judgment—
that a reasonable jury could not conclude that there was no rational basis for the
defendants’ actions. In attacking the court’s rational-basis conclusion, Baliga must
“eliminate any reasonably conceivable state of facts that could provide a rational basis.”
D.B. ex rel. Kurtis B. v. Kopp, 725 F.3d 681, 686 (7th Cir. 2013) (citation omitted). The
reasons need not be the ones that actually motivated the defendants; only “a conceivable
rational basis” is required. Id. (emphasis in original).
On this record, no reasonable factfinder would find that the defendants lacked a
conceivable rational basis for how they proceeded against Baliga. Baliga seems to
concede that the initial suspension of his license was justified based on Hicks’s
statement and the empty vial. He argues, however, that there is no rational basis for
what occurred after the test results came back negative for banned substances. We

-- 7 of 9 --

No. 23-1786 Page 8
disagree for several reasons. Some of the test results came back after the Commission
filed its administrative complaint. And Smith explained during his deposition that there
could have been wrongdoing even if the test results were negative: Some prohibited
drugs are not detected by the tests. Regardless, the question whether Baliga
administered Lasix in a way that violated established protocols—e.g., by using a non-
Lasix vial—is a rational basis for proceeding against him (even if this was not one of the
offenses charged originally).
We similarly conclude that no reasonable jury would find that the delay in
processing Baliga’s 2020 license application lacked any rational basis. The application
was placed in the executive queue due to his prior history. Pitman explained that she
was unusually busy organizing the Breeders Crown event and did not review the
application. Baliga has not pointed to any evidence disputing this assertion, nor is there
any indication that Pitman had ignored his application and not others in the executive
queue. Cf. McDonald v. Village of Winnetka, 371 F.3d 992, 1009 (7th Cir. 2004) (even if
plaintiff was “wronged,” he did not show wrong was “discriminatory in nature”).
Baliga points out that, even when the application was approved, he did not receive any
notice from the Commission that this was the case. And he complains that, even after
the Commission decided to stop pressing its charges against him, it did not dismiss the
charges for some time. While the Commission certainly could have acted with more
dispatch in both situations, nothing in the record indicates that these delays were
intentional, let alone motivated by animus.
Indeed, there are no facts in the record from which a reasonable jury could infer
animus. In the district court, Baliga highlighted numerous circumstances which he
argued showed animus. But we generally look for “a clear showing of animus,” for
example, when a plaintiff “has identified his specific harasser, provided a plausible
motive and detailed a series of alleged actions” by the harasser that seem illegitimate.
Swanson, 719 F.3d at 783, 785. Baliga’s evidence cannot be described as showing this
“readily-apparent hostility.” Id. at 785. Bureaucratic delay, the use of permitted
litigation tactics, and snide remarks simply aren’t the kinds of evidence that we have
described as suggesting animus. Compare id. at 784–85 (mayor’s “statements made clear
that his personal hatred caused … unwarranted difference in treatment,” including
harassment, investigation into plaintiff, delay in permit); Brunson, 843 F.3d at 707–08
(defendants repeatedly attempted to enforce “non-existent state and local liquor laws”
while also refusing to act on license renewal to drive plaintiff out of business), with Bell
v. Duperrault, 367 F.3d 703, 709 (7th Cir. 2004) (“bureaucratic inefficiencies,” “downright
rudeness” do not show animus).

-- 8 of 9 --

No. 23-1786 Page 9
Furthermore, Baliga attempts to string together numerous incidents to
demonstrate animus, but these actions were taken by different people, in different
contexts, sometimes years apart. (For example, he cites both an email that Newell sent
in 2014 and Pitman’s actions in 2020.) And Baliga does not point to any evidence that
these people all shared the same hostility toward him or that the animus of any person
can be imputed to all the rest.
Because the evidence of animus falls short, there is no need to address Baliga’s
argument that a showing of animus relieves a plaintiff from identifying similarly
situated individuals who were treated more favorably. See Swanson, 719 F.3d at 784.
And we need not address the defendants’ arguments that they are entitled to immunity
because we conclude that Baliga’s claim does not prevail on the merits.
* * *
The Commission’s proceedings against Baliga may not have been a “well-
administered investigation, or a wise exercise of prosecutorial discretion.” See Kopp,
725 F.3d at 687. But class-of-one plaintiffs must meet a heavy burden, see FKFJ, Inc.,
11 F.4th at 588, and Baliga lacks sufficient evidence for his class-of-one claim to
withstand summary judgment. We therefore affirm.
AFFIRMED

-- 9 of 9 --