Association of Cleveland Fire v. City of Cleveland

Citation502 F.3d 545
Decision Date25 September 2007
Docket NumberNo. 06-3823.,06-3823.
PartiesASSOCIATION OF CLEVELAND FIRE FIGHTERS; Local 93 of the International Association of Fire Fighters; Local 93 of the IAFF Individual Members, et al., Plaintiffs-Appellants, v. CITY OF CLEVELAND, OHIO; Civil Service Commission City of Cleveland, et al., Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Before: KENNEDY, MOORE, and McKEAGUE, Circuit Judges.

McKEAGUE, J., delivered the opinion of the court, in which KENNEDY, J., joined. MOORE, J. (pp. 553-56), delivered a separate opinion concurring in part and dissenting in part.

OPINION

McKEAGUE, Circuit Judge.

Association of Cleveland Fire Fighters, Local 93 of the International Association of Fire Fighters and all individual members of Local 93, and individual fire fighters Samuel DeVito, Don Posante, and James Sliter (collectively, "Appellants") appeal from the district court's order dismissing their challenges to the residency requirement of the City of Cleveland (the "City"). Appellants allege that the residency requirement set forth in section 74(a) of the City Charter violates the Equal Protection Clause, the constitutional right to travel, and the right to travel set forth in the International Covenant on Civil and Political Rights, and that it is also void for vagueness. The district court granted the defendants-appellees' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). We AFFIRM.

I. BACKGROUND1

Section 74(a) of the Charter of the City of Cleveland provides that

[e]xcept as in this Charter otherwise provided or except as otherwise provided by a majority vote of the Council of the City of Cleveland, every temporary or regular officer or employee of the City of Cleveland, including members of all City boards and commissions established by the Charter or the ordinances of Cleveland, whether in the classified or unclassified service of the City of Cleveland, appointed after the effective date of this amendment, shall, at the time of his appointment, or within six months thereafter, be or become a bona fide resident of the City of Cleveland, and shall remain as such during his term of office or while employed by the City of Cleveland.

Cleveland, Ohio, Charter ch. 11, § 74(a). Appellants claim that the City Council of Cleveland (the "City Council") has "arbitrarily" granted exemptions from § 74(a) to "numerous City employees," J.A. at 11, but has denied exemptions to them.

Appellant Samuel DeVito requested an exemption from § 74(a) from the City of Cleveland Civil Service Commission (the "Commission") in April 1995 because one of his family members was experiencing health problems. He was told that no exemptions were given. He again requested an exemption on July 24, 2004, this time because other members of his family were experiencing health problems. The Commission apparently advised him to contact the City Council. The City Council, in turn, advised him to contact his councilman. On August 19, 2004, he sent a request to his councilman, who responded that the City Council "would not consider waiving the residency requirement without the full backing of the City Administration." J.A. at 12.

Appellant Don Posante's wife requested an exemption from the Commission on October 16, 2003, asserting that she and her husband wanted to live with his wife's mother, who experienced health problems. The Commission advised Posante's wife to contact their councilman. The councilman, in turn, advised Posante to send a letter to then-Director of Public Safety James Draper and the fire department chief. Posante received a letter from Draper on December 1, 2003, advising him that only the City Council could grant exemptions and that it could only do so by legislation. Posante then sent a letter to his councilman, asking the latter to introduce legislation granting him an exemption. A few weeks later, Posante received a letter from the councilman indicating that he would not support Posante's waiver request.

Appellant James Sliter asked then-City Council President Jay Westbrook how he could be exempted from the residency requirement. Sliter informed Westbrook that his family members feared going outside their house due to the fact that Sliter had been shot by gang members. His family feared gang activity outside the house. Westbrook informed Sliter that he could not be exempted. Later, Public Safety Director William Denihan called Sliter and told Sliter that no one subject to the residency requirement can live outside the city. When he later asked the Commission if he could apply for an exemption, the Commission indicated to him that he should not bother applying.

Appellants filed a complaint in the United States District Court for the Northern District of Ohio on October 4, 2004. In it, they complained that § 74(a) violated the Equal Protection Clause, the constitutional right to travel, and the right to travel set forth in the International Covenant on Civil and Political Rights,2 and that it was also void for vagueness. The City of Cleveland and the Commission (collectively, "Appellees") moved to dismiss pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted. On March 22, 2006, the district court granted the motion. Appellants filed a timely appeal.

II. ANALYSIS
A. Standard of Review

Whether a district court properly dismissed a suit pursuant to Rule 12(b)(6) is a question of law subject to de novo review. Thurman v. Pfizer, Inc., 484 F.3d 855, 859 (6th Cir.2007) (citation omitted). The Supreme Court has recently clarified the law with respect to what a plaintiff must plead in order to survive a Rule 12(b)(6) motion. Bell Atl. Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The Court stated that "a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 1964-65 (citations and quotation marks omitted). Additionally, the Court emphasized that even though a complaint need not contain "detailed" factual allegations, its "[f]actual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true." Id. (internal citation and quotation marks omitted). In so holding, the Court disavowed the oft-quoted Rule 12(b)(6) standard of Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (recognizing "the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief"), characterizing that rule as one "best forgotten as an incomplete, negative gloss on an accepted pleading standard." Twombly, 127 S.Ct. at 1969.

B. The Right to Travel

The district court properly dismissed this claim. In McCarthy v. Philadelphia Civil Serv. Comm'n, 424 U.S. 645, 647, 96 S.Ct. 1154, 47 L.Ed.2d 366 (1976) (per curiam), the plaintiff employee of the Philadelphia Fire Department claimed that his constitutional right to travel was violated. His employment was terminated because he moved from Philadelphia to New Jersey in violation of a municipal residency requirement. Id. The Court affirmed the Pennsylvania state courts' sustaining the requirement. Id. The Court explicitly stated that the plaintiff "claims a constitutional right to be employed by the city of Philadelphia while he is living elsewhere. There is no support in our cases for such a claim." Id. at 646-47, 96 S.Ct. 1154. Other circuits have accordingly declined right to travel challenges to municipal residency requirements. See Andre v. Bd. of Trustees, 561 F.2d 48, 52 (7th Cir.1977); Wright v. City of Jackson, 506 F.2d 900, 902 (5th Cir.1975). Thus, Appellants' assignment of error with respect to this issue must fail.

C. Equal Protection

Appellants' complaint states a facial equal protection challenge to the residency requirement. With respect to an as-applied challenge, the complaint is not entirely clear, yet it can be read to raise such a claim. Taking into account the stage of the proceedings, we assume, without deciding, that Appellants raise both as-applied and facial equal protection challenges to the residency requirement.

The residency requirement neither makes classifications along suspect lines nor burdens Appellants' right to travel. Furthermore, even Appellants do not purport that Appellees have, in applying the requirement, done so in such a manner so as to discriminate on the basis of suspect classes or to burden Appellants' fundamental rights. Nevertheless, the Supreme Court has recognized successful equal protection claims brought by "class[es] of one." Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (per curiam).3 In these "class of one" cases, the plaintiff must "allege[] that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment." Id. (citations omitted).

1. Facial Challenge

The Supreme Court has held that municipal residency requirements such as that at issue in the instant case do not, on their face, constitute an equal protection violation. In Detroit Police Officers Ass'n v. City of Detroit, 385 Mich. 519, 190 N.W.2d 97, 97-98 (1971), the Michigan Supreme Court held that a Detroit residency requirement requiring police officers to reside in the city did not violate the Equal Protection Clause because "[a] policeman's very presence, whether actually performing a specified duty during assigned hours,...

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