Griffith v. Lanier

• Decision Date: 04 April 2008
• Docket Number: No. 07-7072.,07-7072.
• Parties: Christopher GRIFFITH et al., Appellants v. Cathy L. LANIER, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

521 F.3d 398

Christopher GRIFFITH et al., Appellants v. Cathy L. LANIER, Appellee.

No. 07-7072.

United States Court of Appeals, District of Columbia Circuit.

Argued February 15, 2008.

Decided April 4, 2008.

Appeal from the United States District Court for the District of Columbia (No. 06cv01223).

Matthew A. LeFande argued the cause and filed the briefs for appellants.

Holly M. Johnson, Assistant Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for appellee. With her on the brief were Linda J. Singer, Attorney General, Todd S. Kim, Solicitor General, and Edward E. Schwab, Deputy Attorney General.

Before: HENDERSON and ROGERS, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge WILLIAMS.

WILLIAMS, Senior Circuit Judge:

Christopher Griffith and Daniel K. Kim are members of the District of Columbia's Metropolitan Police Department Reserve Corps, a corps of unpaid volunteers who assist full-time officers of the Metropolitan Police Department ("MPD") in the provision of law enforcement services. See D.C.Code § 5-129.51 (Supp.2007). Griffith and Kim brought suit in the district court to enjoin the enforcement of the MPD's General Order 101.03, issued in 2006 by then-Chief of Police Charles Ramsey, which brought the Reserve Corps into conformity with certain regulations issued under the Volunteer Services Act ("VSA") of 1977, D.C.Code § 1-319.02 (2001). See D.C. Mun. Regs. tit. 6, § 4000.1-.26. Among other claims, the plaintiffs challenged the General Order's limitation of their "right to organize for collective bargaining purposes" as a facial violation of the First Amendment. They also protested the order's provision for at-will dismissal as depriving them, without due process, of a statutorily-conferred property interest in continued volunteer service.

Ramsey filed a motion to dismiss on all counts. The district court granted this motion after Ramsey had left office, substituting as defendant the new police chief, Cathy L. Lanier. Griffith v. Lanier, No. 06-01223, 2007 WL 950087, slip op. at 1 & n. 1 (D.D.C. Mar. 28, 2007). The plaintiffs now appeal the substitution of Lanier as well as the dismissal of their First Amendment and due process claims. For the reasons discussed below, we affirm the judgment of the district court. (We need not address the plaintiffs' request for class-action certification.)

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First, a word on the parties. The complaint names Ramsey as the sole defendant, "acting in his official capacity as the MPD Chief of Police." Compl. 2. Such language "is best understood as a reference to the capacity in which the state officer is sued, not the capacity in which the officer inflicts the alleged injury." Hafer v. Mela, 502 U.S. 21, 26, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991). Moreover, the plaintiffs seek injunctive relief as well as money damages, Compl. 11-12; the former is obviously available only from a currently serving official defendant. Thus, the district correctly construed the complaint as naming Ramsey in his official capacity. It follows that Lanier's taking office triggered application of Fed.R.Civ.P. 25(d), which "automatically" substitutes the successor of a public officer named in his "official capacity." Accord Fed. R.App. P. 43(c)(2).

In a motion for reconsideration, the plaintiffs asked the district court to withdraw the substitution and to add Lanier as a separate official defendant, apparently wishing to proceed against Ramsey in his personal capacity (presumably for money damages only). The court denied the motion without comment. On appeal, the plaintiffs repeat their objections to the substitution, but do not explicitly request that Lanier be added as a separate defendant. See Griffith Br. 53 (stating that the plaintiffs "presently offer no allegation of misconduct" against Lanier). Since the district court's reading of the complaint was correct and the plaintiffs' wishes concerning Lanier are unclear, we affirm the district court on this issue as well. We note that in the end nothing actually turns on the question (for we affirm the judgment in full on the merits), and also that, had the plaintiffs sought leave to amend their complaint to name Ramsey in his personal capacity, such leave would have been freely given if "justice so require[d]." Fed.R.Civ.P. 15(a)(2).

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The plaintiffs' First Amendment claim concerns a declaration in the General Order that Reserve Corps members, as volunteers, "shall not be eligible for any benefits normally accruing to employees of the District of Columbia, including health insurance, retirement, life insurance, leave, or the right to organize for collective bargaining purposes, unless such benefits are specifically provided by the laws of the District of Columbia." MPD General Order 101.03 § IV.C.5 (emphasis added). The plaintiffs read this provision as a prior restraint of their First Amendment freedoms to speak and associate on matters related to collective bargaining.

The plaintiffs clearly have standing to raise their facial challenge, as the General Order would, on their reading, tend to discourage their expression of opinions on collective bargaining. Moreover, we assume arguendo that they have a sufficient interest in their volunteer positions to be protected against speech-related dismissal under such cases as Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), as did the district court.

But while the plaintiffs' reading of the General Order may be a possible one, it is not the most likely reading. Even "[a] limiting construction that is `fairly' possible can save a regulation from facial invalidation," Initiative & Referendum Inst. v. U.S. Postal Serv., 417 F.3d 1299, 1316 (D.C.Cir.2005) (quoting Bd. of Airport Comm'rs v. Jews for Jesus, Inc., 482 U.S. 569, 575, 107 S.Ct. 2568, 96 L.Ed.2d 500 (1987)), and here the more plausible reading is completely innocent of First Amendment difficulties. Few would consider free speech as a "benefit" along the lines of health insurance or retirement pay. In this context, the restricted "right to organize for collective bargaining purposes" is more naturally understood as the right to engage in collective bargaining — i.e., the right to force the District to negotiate with representatives of a collective bargaining unit composed of reserve officers. "[I]n the context of federal sector labor-relations, collective bargaining is a term of art with a well-established statutory meaning," Nat'l Treas. Employees Union v. Chertoff, 452 F.3d 839, 857 (D.C.Cir. 2006), one that imposes an "obligation" on an employer to negotiate with "the exclusive representative of [its] employees," id. (quoting 5 U.S.C. § 7103(a)(12)). Indeed, defendant Lanier's brief offers just this meaning, identifying the negated benefit as the right "normally accruing" to District employees to "engage in collective bargaining concerning terms and conditions of employment" under the Comprehensive Merit Personnel Act, D.C.Code § 1-617.01(b)(2) (Supp.2006). See Lanier Br. 10-11.

This narrower reading of the General Order leaves the plaintiffs' First Amendment rights intact (as they themselves concede, see Griffith Br. 26), for while "the Constitution guarantees workers the right individually or collectively to voice their views to their employers, ... [it] does not afford such employees the right to compel employers to engage in a dialogue or even to listen." Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 313, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979) (citations omitted). Thus the clause survives the plaintiffs' facial challenge.

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The plaintiffs also bring a due process claim concerning their tenure in office. The General Order declares that Reserve Corps members "serve at the pleasure of the Chief of Police" and may be removed at will without any administrative review. MPD General Order 101.03 § IV.J. The plaintiffs contend that D.C. law prohibits their dismissal except for cause, and thereby establishes a property interest in continued volunteer service; the General Order, they say, threatens to deprive them of this interest unconstitutionally. Cf. Bd, of Regents v. Roth, 408 U.S. 564, 576-77, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).

The plaintiffs correctly recognize that the success of their due process claim requires local legal protection of their interests in continued service. To "have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it"; he must have "a legitimate claim of entitlement to it," created "by existing rules or understandings that stem from an independent source such as state law." Id. at 577, 92 S.Ct. 2701. Whether such local law protection is a sufficient condition for a "property interest" is a matter we need not reach; there is some authority that the continued service of an unpaid volunteer — even if guaranteed by statute — cannot qualify as a property interest under the Due Process Clause. Compare Versarge v. Twp. of Clinton, 984 F.2d 1359, 1370 (3d Cir.1993) (finding no property interest in volunteer service absent some further form of compensation), with Thornton v. Barnes, 890 F.2d 1380, 1388 & nn. 11-12 (7th Cir.1989) (suggesting that such an interest may exist in the volunteer position itself). But because the plaintiffs' interests are unprotected by D.C. law, the Due Process Clause offers them no help.

We construe D.C. law as it has been interpreted by the D.C. Court of Appeals, see Poole v. Kelly, 954 F.2d 760, 761 (D.C.Cir.1992) — or, in the absence of such guidance, as we predict that court would interpret it, see, e.g., Friends for All Children, Inc. v. Lockheed Aircraft Corp., 746 F.2d 816, 824 & n. 13 (D.C.Cir. 1984). The D.C. Court of Appeals has twice held (albeit in unpublished decisions) that Reserve Corps members are "unpaid volunteers" under D.C.Code § 5-129.51, and are...