Fraternal Order of Police v. Dist. of Columbia, 21-7059

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtKATSAS, CIRCUIT JUDGE:
PartiesFraternal Order of Police, Metropolitan Police Department Labor Committee, D.C. Police Union, Appellant v. District of Columbia and Muriel Bowser, in her official capacity as Mayor of the District of Columbia, Appellees
Docket Number21-7059
Decision Date19 August 2022

Fraternal Order of Police, Metropolitan Police Department Labor Committee, D.C. Police Union, Appellant

District of Columbia and Muriel Bowser, in her official capacity as Mayor of the District of Columbia, Appellees

No. 21-7059

United States Court of Appeals, District of Columbia Circuit

August 19, 2022

Argued February 2, 2022

Appeal from the United States District Court for the District of Columbia (No. 1:20-cv-02130)

Anthony M. Conti argued the cause for appellant. With him on the briefs was Daniel J. McCartin.

Holly M. Johnson, Senior Assistant Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for appellees. With her on the brief were Karl A. Racine, Attorney General, Loren L. AliKhan, Solicitor General, Caroline S. Van Zile, Principal Deputy Solicitor General, and Carl J. Schifferle, Deputy Solicitor General.


Before: ROGERS, MILLETT, and KATSAS, Circuit Judges.



This case involves federal constitutional challenges to a District of Columbia statute eliminating the right of D.C. police officers to bargain over procedures for disciplining individual officers. The police union contends that the statute violates equal protection principles, the Bill of Attainder Clause, the Contract Clause, and the Fifth Amendment Due Process Clause. We reject all the challenges.


The Comprehensive Merit Personnel Act (CMPA) governs collective bargaining by employees of the District of Columbia government. It allows officers of the Metropolitan Police Department, like other D.C. government employees, to unionize and engage in collective bargaining. D.C. Code § 1-617.01(b). They have done so and are represented by the plaintiff in this case, the Fraternal Order of Police, Metropolitan Police Department Labor Committee, D.C. Police Union (FOP).

The CMPA provides that "[a]ll matters shall be deemed negotiable" except for a list of rights reserved to management. D.C. Code § 1-617.08(b). Management rights include the right to "hire, promote, transfer, assign, and retain employees" as well as the right to "suspend, demote, discharge, or take other disciplinary action against employees for cause." Id. § 1-617.08(a). The parties have long understood the CMPA to give management full discretion over whether or how to


discipline officers who commit wrongdoing, while allowing for negotiation over the procedures for adjudicating it.

Article 12 of the Metropolitan Police Department's 2017 collective bargaining agreement contained detailed provisions on disciplinary procedure. See Collective Bargaining Agreement Between the District of Columbia Metropolitan Police Department and the D.C. Police Union, art. 12 (J.A. 9095) (2017 Agreement). It also stated that these provisions "shall be incorporated" into successor agreements unless modified by a joint labor-management committee or, in the event of an impasse, an arbitration panel. Id. § 2 (J.A. 91).

The 2017 Agreement expired on September 30, 2020. Two months earlier, following the death of George Floyd while in Minneapolis police custody, the D.C. Council passed emergency legislation setting forth a wide range of police reforms. See Comprehensive Policing and Justice Reform Second Emergency Amendment Act of 2020 (Reform Act), D.C. Act 23-336. At issue in this case is section 116 of the Reform Act, which temporarily amends the CMPA to eliminate the right of "sworn law enforcement personnel" to bargain over disciplinary procedure. See D.C. Code § 1-617.08(c). The amendment applies to "any collective bargaining agreement entered into with the Fraternal Order of Police/Metropolitan Police Department Labor Committee after September 30, 2020." Id. [1]


Shortly after section 116 became law, the FOP sued to enjoin its enforcement. The union raised federal constitutional challenges based on equal protection principles, the Bill of Attainder Clause, the Contract Clause, and the Fifth Amendment Due Process Clause.

The district court rejected these claims and dismissed the case without prejudice for failure to state a claim. Fraternal Ord. of Police, Metro. Police Dep't Lab. Comm., D.C. Police Union v. District of Columbia, 502 F.Supp.3d 45 (D.D.C. Nov. 4, 2020). The FOP then moved to alter the judgment so that it could amend its complaint. The district court denied the motion as futile.

The FOP appealed both decisions. We have jurisdiction under 28 U.S.C. § 1291.


We start with the dismissal order. We review the dismissal of constitutional claims de novo. Patchak v. Jewell, 828 F.3d 995, 1001 (D.C. Cir. 2016).


The FOP first raises an equal-protection challenge. The Equal Protection Clause provides that "[n]o State shall. . . .deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV. The Supreme Court has held that the Fifth Amendment Due Process Clause extends equal-protection principles to actions by the D.C. government. See Bolling v. Sharpe, 347 U.S. 497, 498-99 (1954). According to


the union, section 116 violates equal protection because it irrationally discriminates between police officers and similarly situated government employees. We disagree.

Legislation that covers some occupations but not others- which neither burdens fundamental rights nor makes suspect classifications-satisfies equal protection if the distinction at issue is "rationally related to a legitimate state interest." Friedman v. Rogers, 440 U.S. 1, 17 (1979) (quoting New Orleans v. Dukes, 427 U.S. 297, 303 (1976)); see Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 489 (1955) (optometrists versus opticians). Under rational-basis review, legislation carries "a strong presumption of validity." Cent. State Univ. v. Am. Ass'n of Univ. Professors, 526 U.S. 124, 126 (1999) (limitation on bargaining rights for college professors). "Perfection in making the necessary classifications is neither possible nor necessary." Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 314 (1976) (police retirement age). Absent irrationality, a law does not fail rational-basis review for being over- or under-inclusive. Nordlinger v. Hahn, 505 U.S. 1, 16-17 (1992). And because legislative classifications may be grounded in "rational speculation unsupported by evidence or empirical data," a challenger must negate "every conceivable basis" that might support the distinction. FCC v. Beach Commc'ns, 508 U.S. 307, 314-15 (1993) (cleaned up).

The FOP has failed to carry that considerable burden. The D.C. Council could rationally have concluded that section 116 furthers a legitimate interest in improving police accountability. By taking disciplinary procedures off the bargaining table, it gave management more flexibility in deciding how to consider allegations of police misconduct. And even if new procedural rules would reduce the protections for accused officers, "equal protection is not a license for courts


to judge the wisdom, fairness, or logic of legislative choices." Beach Commc'ns, 508 U.S. at 313.

The FOP disputes that police accountability motivated the Council. The union notes that the Reform Act included no legislative findings or explanation supporting the choice to curtail bargaining rights for the police while preserving those rights for other public-sector workers. The union further invokes language in a different provision of the legislation- section 101, which recounts Floyd's death from a neck restraint and then states an intent to ban such restraints in the District of Columbia. See D.C. Code § 5-125.01. According to the FOP, this language shows that the Council unfairly sought to impute to D.C. police concerns about misconduct elsewhere.

This argument misunderstands the basics of rational-basis review. Under that level of scrutiny, the legislature's actual motive is "entirely irrelevant"; all that matters is whether there are "plausible reasons" to conclude that the statutory classification furthers a legitimate government interest. Beach Commc'ns, 508 U.S. at 313-15 (cleaned up). Likewise, because ordinary legislative choices are not subject to "courtroom fact-finding," the absence of findings, studies, or statements of purpose has "no significance." Id. at 315 (cleaned up). In the wake of Floyd's death, the Council could rationally have concluded that the use of neck restraints "presents an unnecessary danger to the public." D.C. Code § 5125.01. And regardless, it could rationally have concluded that preserving management control over disciplinary procedures would improve police accountability.

The FOP objects that section 116 does not apply to prison guards or protective-services officers. But they differ from police in key respects. Prison guards, for example, operate in a highly regimented and supervised environment. See D.C. Code § 24-211.02.


Protective-services officers safeguard government agencies and property. See Cannon v. District of Columbia, 717 F.3d 200, 203 (D.C. Cir. 2013). Given these differences, the D.C. Council could rationally have concluded that improving accountability for officers who directly police the general public on a daily basis was a more pressing concern. See Lee Optical, 348 U.S. at 489 ("Evils in the same field may be of different dimensions and proportions, requiring different remedies."). Likewise, it could rationally have concluded that targeting police discipline was an appropriate first step in improving accountability for all law-enforcement personnel. Beach Commc'ns, 508 U.S. at 316 ("the legislature must be allowed leeway to approach a perceived problem incrementally"). And because police officers make up the lion's share of workers that the union claims as similarly situated, it could rationally have concluded that the amendment would be at worst slightly under-inclusive. Under rationalbasis review, any of these rationales is good enough.


The FOP...

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