Barwood v. District of Columbia, 99-7027

• Decision Date: 04 February 2000
• Docket Number: No. 99-7027,99-7027
• Citation: 202 F.3d 290
• Parties: (D.C. Cir. 2000) Barwood, Inc., et al.,Appellees v. District of Columbia, et al.,Appellants
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 290

202 F.3d 290 (D.C. Cir. 2000)

Barwood, Inc., et al.,Appellees v. District of Columbia, et al.,Appellants

No. 99-7027

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 5, 1999

Decided February 4, 2000

[Copyrighted Material Omitted] Appeal from the United States District Court for the District of Columbia(No. 98cv01901)

Donna M. Murasky, Assistant Corporation Counsel, Office of the Corporation Counsel, argued the cause for appellants. With her on the briefs were Robert R. Rigsby, Interim Corporation Counsel, and Charles L. Reischel, Deputy Corporation Counsel.

Stephen W. Grafman argued the cause for appellees. With him on the brief was A. Thomas Morris. John Marshall entered an appearance.

Before: Williams, Ginsburg and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Williams.

Williams, Circuit Judge:

On June 12, 1998 the District of Columbia Taxicab Commission promulgated 31 D.C.M.R. § 828, restricting the circumstances under which suburban taxicabs may pick up passengers in the District and subjecting violators to criminal sanctions. Plaintiffs, various suburban taxicab companies and some of their drivers, sought a temporary restraining order ("TRO") against the Commission and various individual defendants, to prevent them from enforcing § 828. They argued that the Commission lacked the authority to alter the existing reciprocity arrangements, and that reciprocity infractions are subject only to civil sanctions. On July 31, 1998 the district court entered a TRO, which was later expanded in response to allegations that it had been violated. On February 16, 1999 the district court entered a preliminary injunction prohibiting the Commission from enforcing § 828, from imposing any criminal sanctions for reciprocity violations, or from otherwise altering the preexisting reciprocity arrangements. Barwood, Inc. v. District of Columbia, No. 98-1901 (D.D.C. Feb. 16, 1999). The District appealed.

Plaintiffs pursued this injunction--and so far as appears the entire lawsuit--almost exclusively on the basis of violations of District of Columbia law. The original complaint asserted diversity jurisdiction. See 28 U.S.C. § 1332(a). Later that same day, presumably upon realizing that the District of Columbia, like a state, is not a citizen of a state (or of itself) for diversity purposes, see Long v. District of Columbia, 820 F.2d 409, 414 (D.C. Cir. 1987), plaintiffs filed an amended complaint attempting to establish federal question jurisdiction. To this end they added claims that defendants' conduct had violated "the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983."

Because there are no allegations of federal constitutional violations independent of the purported violations of District of Columbia law (or at any rate no such allegations for which plaintiffs have standing), there is no subject matter jurisdiction. Accordingly, we vacate the preliminary injunction and remand for the district court to dismiss the complaint.

* * * The District law claims around which this suit has revolved are somewhat complex but can be generalized as assertions that various agencies and individuals of the District's executive branch acted ultra vires. In the District of Columbia Taxicab Commission Establishment Act of 1985 (the "Taxicab Act" or the "Act"), D.C. Code § 40-1701 et seq., the District created the District of Columbia Taxicab Commission ("D.C.T.C." or the "Commission"), and gave it "exclusive authority for intrastate regulation of the taxicab industry."Id. § 40-1704. The Act did not address the issue of taxicab reciprocity (i.e., the arrangements under which suburban taxicabs may operate within the District, and vice versa), but provided the Commission with the authority to "[a]dvise the Mayor regarding the entering, modifying, and terminating of reciprocal agreements respecting taxicabs with governmental bodies in the Washington metropolitan area." Id. § 40-1707(b)(1)(L). On August 13, 1987 the Commission's chairman issued "Administrative Order No. 4," which purported to govern the provision of taxicab service in the District by cabs licensed only in other jurisdictions.

On June 12, 1998 the District of Columbia Taxicab Commission promulgated a new provision to the District of Columbia Municipal Regulations, 31 D.C.M.R. § 828, limiting the scope of taxicab reciprocity with neighboring jurisdictions. The regulation provided penalties in the form of fines of up to $300 and imprisonment of up to 90 days.

Plaintiffs, suburban taxicab drivers and their companies, filed a complaint in the district court. They named as defendants the District, the District Chief of Police, and the Taxicab Commissioners. The complaint--and all successive amended complaints--specified that the various individual defendants were sued "in their official capacities." The complaint alleged that only the Mayor, not the Commission, possessed the exclusive authority "to change, modify or alter applicable reciprocity arrangements in the District of Columbia," Joint Appendix 186, and that the provision of civil penalties by the Taxicab Act, D.C. Code § 40-1719(a), was exclusive, negating the purported penalties under § 828.

In response to a TRO issued by the district court, the chairman of the D.C.T.C. issued an order rescinding Administrative Order No. 4--the 1987 internal agency memorandum setting forth the District's policy of reciprocity. Further, the Mayor delegated to the Commission his authority to alter reciprocity agreements. Soon thereafter the Commission rescinded existing § 828 and, under the Mayor's delegation, approved an identical rule as an "emergency" § 828.

Plaintiffs filed a contempt motion, arguing that the Commission's action violated the TRO. They also alleged that Harry Silverman, a Commissioner of the D.C.T.C., should be found in criminal contempt for deliberately running his car into a taxicab owned by one of the plaintiffs in an attempt to arrest the driver pursuant to § 828. Plaintiffs filed a Second Amended Complaint, expanding their claims to encompass the alleged infractions by the Commission and by Silverman.The district court followed up with TROs broader than the initial one, and on February 16, 1999 issued the preliminary injunction now on appeal. It enjoined the defendants from:"(1) enforcing 31 D.C.M.R. § 828, or any portion thereof; and (2) taking any action to effectuate any arrests or other criminal penal actions against taxicab drivers in connection with alleged reciprocity violations." In addition, the D.C.T.C. was enjoined from: "(1) taking any action ... in reliance upon any purported mayoral delegation regarding reciprocity;and (2) seeking to enact, modify, or repeal any regulations, administrative orders, or other administrative actions that have the effect of limiting, modifying, repealing, or otherwise altering reciprocity."

* * * We may dispense rapidly with jurisdictional theories advanced in or before oral argument. Plaintiffs say that if their District law theory is correct, the District lacks the authority to arrest taxicab drivers for reciprocity violations; thus any arrest is illegal and in violation of the Fourth Amendment.The argument has an initial plausibility: if an arrest without probable cause violates the Fourth Amendment, then surely one for which no cause could possibly exist must do so. If correct, of course, the argument would transform a wide class of state law claims into federal ones. Every arrest claimed to violate state law would entail an ancillary federal claim, even though the state law attack rested (as here) on state law theories having no connection whatever with the policies underlying the Fourth Amendment.

Cases such as Dombrowski v. Pfister, 380 U.S. 479 (1965), and Steffel v. Thompson, 415 U.S. 452 (1974), both cited by plaintiffs, allow anticipatory relief against threatened state law enforcement; but these cases turned on that enforcement's deterrent threat to plaintiffs' constitutional, in particular First Amendment, rights. (In Dombrowski, moreover, enforcement was alleged to be in bad faith, "only to discourage appellants' civil rights activities." 380 U.S. at 490.)Here plaintiffs make no parallel allegation that the District's arguably ultra vires taxicab regulations burden or chill any independent federal constitutional rights. Mere inconsistency with state, or even federal, law will not suffice to create a Fourth Amendment cause of action (unless, of course, the inconsistency is with the Fourth Amendment itself).

Plaintiffs also argue that any arrest under the disputed provisions will be a violation of the Fifth and Fourteenth Amendments, apparently asserting a due process theory. Again this is a state law claim in federal garb. But "the fact of a state law violation does not resolve whether a plaintiff has been deprived of due process." Committee of U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 944 (D.C. Cir. 1988); see also 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...