American Federation of Government Employees, Local 2741 v. District of Columbia ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
AMERICAN FEDERATION OF )
GOVERNMENT EMPLOYEES, )
LOCAL 2741, et al., )
)
Plaintiffs, )
)
v. ) Civ. No. 09-1650 (TFH)
)
DISTRICT OF COLUMBIA, )
)
Defendant. )
____________________________________)
MEMORANDUM OPINION
Before the Court are Plaintiffs’ motion for a preliminary injunction and Defendant’s
motion to dismiss.1 After hearing oral argument on the matter, for the reasons stated below, the
Court will grant the motion to dismiss Counts I and IV of the amended complaint, and will
decline to exercise supplemental jurisdiction over plaintiff's remaining state law claims (Counts
II and III).
LEGAL STANDARD
A complaint submitted to a federal court need only set forth "a short and plain statement
of the claim showing that the pleader is entitled to relief, in order to give the defendant fair
notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly,
1
By its Order dated September 11, 2009 (Docket No. 11), this Court denied Plaintiffs’
motion for a temporary restraining order (finding that Plaintiffs had not shown they would suffer
irreparable harm in the absence of injunctive relief, nor that their claims have a substantial
likelihood of success on the merits), and scheduled a hearing on Plaintiffs’ motion for a
preliminary injunction.
550 U.S. 544, 555 (2007) (citation and quotation marks omitted). In assessing a complaint
challenged pursuant to Federal Rule of Civil Procedure 12(b)(6), a court must presume the
plaintiffs’ factual allegations to be true and construe all reasonable factual inferences in their
favor. Leatherman v. Tarrant County Narcotics & Coordination Unit, 507 U.S. 163, 164 (1993);
Phillips v. Bureau of Prisons, 591 F.2d 966, 968, (D.C. Cir. 1979); see also Pearson v. District
of Columbia, No. 08-0758, 2009 U.S. Dist. LEXIS 63556, at *2 (D.D.C. July 23, 2009).
However, "the court need not accept inferences drawn by plaintiffs if such inferences are
unsupported by the facts set out in the complaint." Kowal v. MCI Commc'ns Corp., 16 F.3d
1271, 1276 (D.C. Cir. 1994). Nor should the court accept "a legal conclusion couched as a
factual allegation," or "naked assertions [of unlawful conduct] devoid of further factual
enhancement." Iqbal, ___ U.S. ___, 129 S. Ct. at 1949-50 (internal quotation marks omitted); see
also Aktieselskabet AF 21. November 21 v. Fame Jeans Inc., 525 F.3d 8, 17 n.4 (D.C. Cir. 2008)
(explaining that the court has "never accepted legal conclusions cast in the form of factual
allegations"); cf. Herbage v. Meese, 747 F. Supp. 60, 65 (D.D.C. 1990) ("A plaintiff's bare
conclusions of law, or sweeping and unwarranted averments of fact, will not be deemed admitted
for purposes of a motion to dismiss.") (internal quotation marks omitted).
“The Court must determine whether the complaint states enough facts, as opposed to
legal conclusions, to ‘nudge [] [the] claims across the line from conceivable to plausible.’”
Tustin v. Jayaraj, No. 08-01034, 2009 U.S. Dist. LEXIS 46448, *3-4 (D. Conn. June 2, 2009)
(quoting Twombly, 550 U.S. at 570); Ashcroft v. Iqbal,129 S. Ct. 1937, 1949 (2009) (“To survive
a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face’”) (quoting Twombly, 550 U.S. at 570); Atherton v.
District of Columbia Office of the Mayor (D.C. Cir. 2009). A complaint is facially plausible
"when the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949. When
considering a motion to dismiss, a court first identifies the factual allegations entitled to an
assumption of truth and then determines "whether they plausibly give rise to an entitlement to
relief." Id. at 1950-51; Ferguson v. Local 689, Amalgamated Transit Union, 626 F. Supp. 2d 55,
59 (D.D.C. 2009). The Court may consider "the facts alleged in the complaint, documents
attached as exhibits or incorporated by reference in the complaint," Gustave-Schmidt v. Chao,
226 F. Supp. 2d 191, 196 (D.D.C. 2002), or documents "upon which the plaintiff's complaint
necessarily relies" even if the document is not produced by the plaintiff. Pearson, 2009 U.S.
Dist. LEXIS 63556, at *3 (citing Hinton v. Corrections Corp. of Am., No. 08-778, 2009 U.S.
Dist. LEXIS 49149, at *2 (D.D.C. 2009); see also Marshall v. Honeywell Tech. Solutions, Inc.,
536 F.Supp.2d 59, 65 (D.D.C. 2008) ("[W]here a document is referred to in the complaint and is
central to the plaintiff's claim, such a document attached to the motion papers may be considered
without converting the motion [to dismiss] to one for summary judgment.") (internal quotation
marks and citation omitted).
BACKGROUND
The District of Columbia Department of Parks and Recreation (DPR) Office of Education
Services (OES) has provided daycare and child-development services for some twenty-five
years. The District has announced and implemented plans to close at least one dozen daycare
centers operated by OES. Current or former OES employees, along with their union, the
American Federation of Government Employees, Local 2741 (“AFGE” or “Local 2741”) and its
bargaining unit members brought this lawsuit seeking, inter alia, to enjoin the District from
terminating some 165 positions. Plaintiffs’ claims arise under 42 U.S.C. § 1983 as well as under
D.C. law.
ANALYSIS
I. COUNT I: FIFTH AMENDMENT DUE PROCESS CLAIMS
The Court first addresses Plaintiffs’ Fifth Amendment claims, brought under 42 U.S.C.
§ 1983. Count I alleges that District officials deprived Plaintiffs’ of their Fifth Amendment
rights by failing to provide employees with the process they were due when implementing a
“formally adopted policy . . . to destabilize and eliminate daycare programs operated by
DPR/OES and the jobs associated with said programs in violation of laws of the District . . . .”
Am. Compl. ¶ ¶ 14, 19, 37. The policy was allegedly implemented in three parts, beginning in
2008 after “the Office of the State Superintendent for Education (OSSE) changed its funding
system for subsidized childcare programs to a reimbursement system based on daily attendance,
instead of enrollment . . . .” Pls.’ TRO Mot. Ex. 1 (Dkt. No. 3-2); Am. Compl. ¶ 7. “The first
prong of Defendant’s offensive was to manipulate enrollment in DPR’s daycare program so it
would appear that participation by affected families and children in the program was declining.”
Am. Compl. ¶ 7. District officials allegedly suppressed enrollment figures by ordering Plaintiffs
to cease accepting applications for daycare services, Pls.’ Reply Br. Ex. 2 (Dkt. No. 9-2, 15-2),
and by “excluding economically disadvantaged families and individuals known to have been
waitlisted for the program.” Am. Compl. ¶¶ 7, 10; Pls.’ Mot. for Prelim. Inj. Ex. 3 (Dkt. No. 15-
4). Next, District officials intentionally failed to apply for federal childcare block grants for
fiscal year 2010 (FY2010). Am. Compl. ¶ 12; Reply Br. Ex. 3 (Dkt. No. 9-3) (“Ferguson
Decl.”). Finally, District officials, without consulting the D.C. Council, “reprogrammed” funds
appropriated for DPR, such that OES now lacks adequate funding.2 Am. Compl. ¶ 30; Pls.’
Reply Br. Ex. 11. According to Plaintiffs, this funding shortfall was the pretext these officials
needed to eliminate OES. Pls.’ Reply Br. 7 (Dkt. No 9); Pls.’ Reply Br. 6 (Dkt. No. 22).
In April 2009, the District informed AFGE Local 2741, in general terms, of plans for a
Reduction in Force, Am. Compl. ¶ 16; Def.’s Opp’n. Mem. Ex. 2 (Dkt. No. 8-2), and began
soliciting proposals from prospective childcare service providers, Pls.’ Reply Br. Ex. 12 (Dkt.
No. 10-3). The reduction in force has come to pass, and the individual plaintiffs are now former
employees of OES whose positions were eliminated as of September 25, 2009. Plaintiffs claim
a constitutionally protected property interest in those positions, “subject to an appropriate
process for the removal and elimination of said jobs.” Am. Compl. ¶ 38; Dkt.#13 at 11; see
Pls.’ TRO Mot. Ex. 1, ¶ 7 (“Butler Aff.”) (“Incumbent DPR employees will be allowed to
compete for similar positions in DC Public Schools but there is no guarantee of continued
employment”).
Plaintiffs contend that a failure to comply with outsourcing provisions of the Collective
Bargaining Agreement (CBA),3 as well as applicable provisions of D.C. law, constitute a
2
In July 2009, the Acting DPR Director testified that “DPR is not able to collect
sufficient funding to cover operations of the Early Care and Education, Head Start, and Out of
School Time programs. These programs are funded by the District’s Office of the State
Superintendent of Education (OSSE) and the United Planning Organization (UPO). It is
important to note that the decision for DPR to no longer be a direct provider of these programs is
not a judgment upon the quality of care provided by the DPR, or the quality of the staff; rather it
is a difficult, but necessary programmatic and budgetary decision.” Pls.’ Reply Br. Ex. 11 (Dkt.
No. 10-3).
3
Curiously, despite numerous references to it, neither the District nor the Plaintiffs have
submitted a copy of the CBA as an exhibit. The Court here assumes the CBA to have been in
force at all relevant times and that the parties quote it accurately. The amended complaint
alleges that Article 16 of the CBA fosters a legitimate expectation of continued employment by
requiring DPR to consult with the union regarding contracting out or privatization, notify the
union sixty days in advance of “any contracting out actions which may displace any bargaining
deprivation of their due process rights.4 Am. Compl. ¶ 36. The due process clause provides that
“no person shall be deprived of life, liberty, or property, without due process of law.” U.S.
Const. amend. V. While certain property interests are protected by the Constitution, they are not
created by it. Board of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972). Such interests
"are created and their dimensions are defined by existing rules or understandings that stem from
an independent source such as state law - rules or understandings that secure certain benefits and
that support claims of entitlement to those benefits." Id. at 577.
This constitutional claim depends on DPR employees having held a property interest in
their continued employment. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538
(1985) (referring to Ohio civil service statute). Plaintiffs argue that many employees, including
some individual plaintiffs, held such an interest partly by virtue of statutory protections set forth
in the D.C. Code. Plaintiffs point in particular to D.C. Code § 2-301.05b, which sets forth
various requirements applicable where the District seeks to procure goods or services from
private entities.5 Plaintiffs further argue that the employees’ positions are protected by D.C.
Code §§ 47-363, 365 (concerning reprogramming requests).6 While these statutes may indirectly
afford some protection to District employees, they do not prescribe procedures for dismissing
unit employees,” and “minimize displacement actions . . . .” Am. Compl. ¶ 53; Pls.’ Prelim. Inj.
Mot. 8-9 (Dkt. No. 13) (citing CBA, at 18).
4
Plaintiffs’ amended complaint and memorandum in opposition to the motion to dismiss
denote this claim solely as a substantive due process claim, but Plaintiffs’ counsel has clarified
that both procedural and substantive due process deprivations are alleged. See Pls.’ Reply Br. 5-6
(Dkt. No 22).
5
Plaintiffs focus in particular on § 2-301.05b(d)(2), which requires new contractors to
provide displaced District employees with a limited right of first refusal in certain circumstances.
6
The complaint also emphasizes the protections of the “Day Care Facility Emergency
Act of 2009,” which, by Plaintiffs’ own admission, was never signed into law. Am. Compl. ¶
23. Because it has not been enacted, the Court does not consider it to be a relevant authority.
tenured employees as do those statutes that have been held to create a legitimate expectation of
continued employment. See, e.g. Loudermill, 470 U.S. at 539. Thus, the Court declines to rely
on these statutes as the source of a constitutional property interest. Certain District employees
do enjoy statutory “career service” protections, however. See D.C. Code § 1-608.01 (Creation of
a Career Service). Although Plaintiffs do not identify this statute as the source of a property
interest, they do state that some individual Plaintiffs are “permanent District employees.” Pls.
Opp’n. Br. at 6 (Dkt. No 21); see also Pls.’ Reply Br. At 5 (Dkt. No. 22). As such, the Court will
infer, for purposes of the motion to dismiss, that at least some employees were in the Career
Service. Therefore, the Court assumes arugendo that such employees held a protected property
interest in their jobs. Cf. McManus v. District of Columbia, 530 F. Supp. 2d 46, 72 (D.D.C.
2007).
A. Procedural Due Process
Plaintiffs’ procedural due process claim nevertheless fails because they do not allege
facts that suggest they were deprived of any process due to them. “An essential principle of due
process is that a deprivation of life, liberty, or property ‘be preceded by notice and opportunity
for hearing appropriate to the nature of the case.’” Loudermill, 470 U.S. at 542 (quoting Mullane
v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950)); see also Pearson 2009 U.S.
Dist. LEXIS 63556, at *58 (citing Mathews v. Eldridge, 424 U.S. 319 (1976). Plaintiffs do not
claim that the procedures set forth in the CBA, including arbitration, fail to comport with this
requirement. At oral argument, Plaintiffs’ counsel explained only that an arbitrator cannot
provide injunctive relief and that the arbitration procedure would be too lengthy to provide
adequate relief. Nor do they contend that the procedure used by the District was inconsistent the
Career Service statute. Indeed, although they argue that the union was not notified of
privatization plans, they do not deny that the union received timely notice of the RIF.7
Therefore, Plaintiffs cannot plausibly claim to have been deprived of due process, particularly
where they have failed to fully take advantage of the process afforded to them by the CBA’s
grievance procedures. Cf. Yates v. District of Columbia, 324 F.3d 724, 726 (D.C. Cir. 2003).
Even assuming the District’s actions have run awry of the privatization or reprogramming
statutes, however, such violations do not amount to a constitutional violation. “A mere violation
of law does not give rise to a due process claim.” AFGE, AFL-CIO, Local 446 v. Nicholson, 475
F.3d 341, 353 (D.C. Cir. 2007); cf. Duckett v. Quick, 282 F.3d 844, 848 (D.C. Cir. 2002).
B. Substantive Due Process
Although the loss of employment, in any circumstances, is a serious and potentially
tragic matter, Plaintiffs’ substantive due process claim must also fail because the conduct alleged
does not meet the threshold for such a violation. The "threshold question is whether the behavior
. . . [was] so egregious, so outrageous, that it may fairly be said to shock the contemporary
conscience." County of Sacramento v. Lewis, 523 U.S. 833 (1998) (no substantive due process
violation where police officer causes death through deliberate or reckless indifference to life in a
high-speed car chase aimed at apprehending a suspect). While the measure of what is
conscience-shocking is no calibrated yard stick, it does, as Judge Friendly put it, "point the way."
Id. at 847 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2nd Cir. 1973)). The conduct alleged
simply does not meet this high threshold, despite the amended complaint’s characterization of
the District’s actions as “arbitrary” and in violation of D.C. law. Cf. Barwood, Inc. v. District of
Columbia, 202 F.3d 290, 294 (D.C. Cir. 2000); Committee of U.S. Citizens Living in Nicaragua
7
The allegations and exhibits indicate that the District provided AFGE with advance
notice of the reduction in force, pursuant to the CBA. Am. Compl. ¶ 16; Def.’s Opp’n. to TRO
Mot. Ex. 2 (Dkt. No. 8-3).
v. Reagan, 859 F.2d 929, 944 (D.C. Cir. 1988) (“the fact of a state law violation does not resolve
whether a plaintiff has been deprived of due process”); Archie v. City of Racine, 847 F.2d 1211,
1217 (7th Cir. 1988) (en banc) ("A state ought to follow its law, but to treat a violation of state
law as a violation of the Constitution is to make the federal government the enforcer of state law.
State rather than federal courts are the appropriate institutions to enforce state rules").
Furthermore, “in substantive due process cases . . . courts have consistently held that ‘there is no
fundamental right to government employment.’” McManus v. District of Columbia, 530 F.
Supp. 2d 46, 71 (D.D.C. 2007) (citations omitted).
Mindful of the Supreme Court’s admonition not to permit the Due Process Clause to
“transform every tort committed by a state actor into a constitutional violation,” DeShaney v.
Winnebago County Dep't of Social Services, 489 U.S. 189, 202 (1989), this Court finds that
Plaintiffs have failed to state any plausible claim for relief under the due process clause.
II. COUNT IV: IMPAIRMENT OF CONTRACT
Plaintiff AFGE alone alleges that the District has violated the contract clause by
impairing “the obligations set forth in the CBA . . . .” Am. Compl. ¶61. The contract clause
states: “No State shall . . . pass any . . . Law impairing the Obligation of Contracts . . . .” U.S.
Const. Art. 1, sec. 10. It proscribes legislation that impairs contractual obligations. Barrows v.
Jackson, 346 U.S. 249, 260 (1953). What AFGE alleges here is merely breach of contract, not a
legislative impairment in violation of the contract clause. Cf. Horwitz-Matthews, Inc. v. City of
Chicago, 78 F.3d 1248, 1250 (7th Cir. Ill. 1996) (“It would be absurd to turn every breach of
contract by a state or municipality into a violation of the federal Constitution”). Regardless,
AFGE has failed to respond Defendant’s argument in favor of dismissal of this claim. See. Pls.’
Opp’n. Mem. (Dkt. No. 21). The Court will therefore dismiss this claim as conceded. See
Hopkins v. Women's Div., Gen. Bd. of Global Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003);
Day v. D.C. Dep't of Consumer & Regulatory Affairs, 191 F. Supp. 2d 154, 159 (D.D.C. 2002);
Pearson, 2009 U.S. Dist. LEXIS 63556, at *57 n21.
III. SUPPLEMENTAL JURISDICTION: COUNTS II and III
For the reasons set forth above, the Court finds that the facts alleged, taken in the light
most favorable to Plaintiffs, fail to state any Constitutional violation by the District. As such,
the Court must GRANT the District’s motion with regard to Counts I and IV of the amended
complaint. Pearson, 2009 U.S. Dist. LEXIS 63556, at *26 (“If ‘no constitutional right would
have been violated were the allegations established,’ the court must grant the motion to
dismiss.”) (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)).
A federal court has jurisdiction over substantial federal claims, along with local law
claims that are part of a common nucleus of operative fact. After the federal question claims
upon which a court’s original jurisdiction is based have been dismissed, the court must decide
whether to exercise supplemental jurisdiction over the remaining local law claims. See 28
U.S.C. § 1367(c)(3); Edmondson & Gallagher v. Alban Towers Tenants Ass'n, 48 F.3d 1260,
1265-66 (D.C. Cir. 1995). As the Court of Appeals for the District of Columbia Circuit has
explained:
A necessary condition for the exercise of supplemental jurisdiction is the
substantiality of the federal claims. If the federal claims are obviously
frivolous or so attenuated and unsubstantial as to be absolutely devoid of
merit,, a federal court lacks subject-matter jurisdiction over those claims and,
consequently, any local law claims.
Decatur Liquors, Inc. v. District of Columbia, 478 F.3d 360, 362 (D.C. Cir. 2007) (internal
quotation marks and citations omitted); see also United Mine Workers v. Gibbs, 383 U.S. 715,
726 (1966) ("Needless decisions of state law should be avoided both as a matter of comity and
to promote justice between the parties, by procuring for them a surer-footed reading of
applicable law. Certainly, if the federal claims are dismissed before trial, . . . the state claims
should be dismissed as well"). In light of the insubstantial nature of Plaintiffs’ constitutional
claims, the Court sees no reason to retain jurisdiction over the remaining claims under D.C. law
(Counts II and III).8
CONCLUSION
For the foregoing reasons, the Court will GRANT the District’s motion to dismiss Counts I
and IV. The court will not exercise supplemental jurisdiction over and therefore dismisses
Counts II and III without prejudice. Therefore, Plaintiffs’ motion for preliminary injunctive
relief must also be DENIED.
An appropriate order accompanies this memorandum opinion.
October 26, 2009
/s/ Thomas F. Hogan
Thomas F. Hogan
U.S. District Judge
8
Because the Court finds Plaintiffs’ federal claims to be insubstantial, Plaintiffs cannot
establish a substantial likelihood of success on the merits. As such, the Court must deny
Plaintiffs’ motion for preliminary injunctive relief. See Pearson, 2009 U.S. Dist. LEXIS 63556,
at *66 n26 (citing American Bankers Ass'n v. Nat'l Credit Union Admin., 38 F. Supp. 2d 114,
140 (D.D.C. 1999)).