Local 36 Int'l Ass'n Of Firefighters v. Dennis Rubin & Dist. Of D.C., No. 09-CV-543.

• Citation: 999 A.2d 891
• Decision Date: 22 July 2010
• Docket Number: No. 09-CV-543.
• Parties: LOCAL 36 INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, Appellant,v.Dennis RUBIN & District of Columbia, Appellees.
• Court: Court of Appeals of Columbia District

999 A.2d 891

LOCAL 36 INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, Appellant,v.Dennis RUBIN & District of Columbia, Appellees.

No. 09-CV-543.

District of Columbia Court of Appeals.

Submitted May 25, 2010.

Decided July 22, 2010.

COPYRIGHT MATERIAL OMITTED

Jeremiah A. Collins, Devki Virk, Washington, DC, and Jason Peckenpaugh were on the brief for appellant.

Peter J. Nickles, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, Donna M. Murasky, Deputy Solicitor General, and Richard S. Love, Senior Assistant Attorney General, were on the brief for appellees.

Before KRAMER and OBERLY, Associate Judges, and BELSON, Senior Judge.

OBERLY, Associate Judge:

Local 36, International Association of Firefighters, AFL-CIO is a union that represents uniformed personnel of the District of Columbia Fire & Emergency Medical Services Department (“FEMS”) through the rank of Captain. Dennis Rubin, the Chief of FEMS, has announced that all uniformed FEMS employees will be subject to criminal background checks. The Union sued Rubin and the District of Columbia in Superior Court, seeking an injunction preventing Rubin from implementing the background check policy and a declaration that the policy violates District and federal law. The Superior Court held a hearing to consider the Union's request for an injunction, consolidated that hearing with a trial on the merits, and entered judgment for Rubin and the District.

On the Union's appeal, we do not reach the merits, but conclude that the trial court erred by granting judgment to appellees because the case is not ripe for judicial review. Although the parties have not addressed the ripeness issue in their briefs, the lack of ripeness is plain on the record before us. The Union's complaint, the transcript of the hearing on the motion-for-a-preliminary-injunction-turned-trial, and the parties' briefs all make clear that the challenged policy has not been implemented. Moreover, the parties have not sought to supplement the briefs or the record to show that facts have changed since briefing was complete. We decline to issue an advisory opinion on the validity of a policy that, so far as the record reveals, has never been put into effect. Accordingly, we vacate the judgment of the Superior Court and remand the case with instructions to dismiss the Union's complaint.

I.

This case involves two statutes, one passed by Congress and the other by the D.C. Council. The congressional statute is the National Child Protection Act of 1993, Pub.L. No. 103-209, 107 Stat. 2490 (1993), codified, as amended, at 42 U.S.C. § 5119 et seq. The local statute is the Criminal Background Checks for the Protection of Children Act of 2004, D.C.Code § 4-1501.01 (2008).

For our purposes, the key provisions of the national act read as follows. Section 5119a (a)(1) authorizes States to “have in effect procedures ... that require qualified entities designated by the State to contact an authorized agency of the State to request a nationwide background check for the purpose of determining whether a provider has been convicted of a crime that bears upon the provider's fitness to have responsibility for the safety and well-being of children, the elderly, or individuals with disabilities.” A “provider” is:

(A) a person who- (i) is employed by or volunteers with a qualified entity (including an individual who is employed by a school in any capacity, including as a child care provider, a teacher, or another member of school personnel);

(ii) who owns or operates a qualified entity; or

(iii) who has or may have unsupervised access to a child to whom the qualified entity provides child care; and

(B) a person who-

(i) seeks to be employed by or volunteer with a qualified entity (including an individual who seeks to be employed by a school in any capacity, including as a child care provider, a teacher, or another member of school personnel);

(ii) seeks to own or operate a qualified entity; or

(iii) seeks to have or may have unsupervised access to a child to whom the qualified entity provides child care.

42 U.S.C. § 5119c(9). The act defines “care” to mean “the provision of care, treatment, education, training, instruction, supervision, or recreation to children, the elderly, or individuals with disabilities.” 42 U.S.C. § 5119c(5).

The local act, passed by the D.C. Council in 2005, provides that the “following individuals shall apply for criminal background checks”:

(1) An applicant who is under consideration for paid employment by a covered child or youth services provider;

(2) An applicant who is under consideration for voluntary service in an unsupervised position by a covered child or youth services provider;

(3) An employee of a covered child or youth services provider; and

(4) A volunteer who serves a covered child or youth services provider in an unsupervised position.

D.C.Code § 4-1501.03(a). The act defines “[c]overed child or youth services provider” as “any District government agency providing direct services to children or youth and any private entity that contracts with the District to provide direct services to children or youth, or for the benefit of children or youth, that affect the health, safety, and welfare of children or youth, including individual and group counseling, therapy, case management, supervision, or mentoring.” D.C.Code § 4-1501.02(3).

Since the local act was passed, the District's views regarding the applicability of the act to FEMS have changed. In the first rule implementing the act-an emergency rule that became effective on March 18, 2005-the District designated all of FEMS as a “covered child or youth services provider.” 52 D.C.Reg. 4067, 4069. And in emergency and proposed rules that superseded the earlier rules and were promulgated on May 5, 2005, the District again designated FEMS in its entirety as a covered entity. 52 D.C.Reg. 8102, 8104. No comments having been received on the May 5 rules, those rules became final on June 28, 2005. 52 D.C.Reg. 6646.

On July 25, 2006, the District adopted emergency rules that modified the coverage of the local act with respect to FEMS. Specifically, the July 25 rules provided that only “the Fire Prevention Bureau (FPB)” within FEMS would be covered by the local act, “provided that the primary duties of any position designated as subject to the Act within the FPB shall require direct contact with children or youth, and the incumbent of the position would not otherwise be subject to a criminal background check or traffic record check in accordance with existing policies and practices for [FEMS].” 53 D.C.Reg. 7276, 7282.

On May 5, 2008, the District reverted to its original understanding, and promulgated emergency rules that “delete[d] the language limiting agency coverage pursuant to the [local] Act for [FEMS] to specific organizational units within [FEMS].” 55 D.C.Reg. 7145. Again, the District received no comments in response to the emergency rules, and the rules became final on July 28, 2008. 55 D.C.Reg. 8870.

On February 26, 2009, the Union filed a complaint in Superior Court, taking aim at two documents issued by FEMS Chief Rubin. The first document was Special Order 2007-102, which was effective on November 26, 2007. The order stated that “in the very near future” FEMS would “expand” its background checks “to include the rank and file emergency response capable employees”; the ultimate goal was to “have all uniform employees” of FEMS undergo a “new, mandatory, criminal background check.” The second target of the Union's complaint was a memorandum from Rubin with an effective date of January 6, 2009. The January 2009 memorandum stated that in March, FEMS would “begin the implementation of ... random drug/alcohol testing on all operational personnel.” In addition, the memorandum said that, also beginning in March, FEMS would begin to conduct “background checks on every operational employee.”

As relevant here, in its complaint the Union requested a temporary restraining order, preliminary injunction, and permanent injunction directing the District and Rubin “to halt implementation of their criminal background check policy” as set forth in the November 2007 order and the January 2009 memorandum. The Union alleged (1) that the announced programs violated the local and federal acts, and (2) that the result of any background check had to be provided only to the Department of Human Resources, not to FEMS directly, as the Union feared it would.

There is no indication in the record that either Rubin's November 2007 order or his January 2009 memorandum has been implemented. In its complaint, filed at the end of February 2009, the Union warned of the consequences that would happen “[i]f Defendants [were] allowed to implement their criminal background check policy.” At the trial on April 10, 2009, the Union conceded that although the District had announced in January that the program would begin in March, “[t]hat [ i.e., implementation of the program] obviously hasn't happened yet.” The Union nonetheless contended that the case was ripe for review because “defendants have stated that they [were] about to implement a very specifically described background check program.” (Emphasis added.) But in its briefs in this court filed on August 21, 2009, and November 25, 2009, the Union did not advise of any developments that have taken place since the complaint was filed or the trial was held. Rather, the Union continues to challenge the November 2007 order and the January 2009 memorandum, not any acts taken pursuant to those documents.

At trial, the court ruled that the Union's claim that the results of any background checks were required to go to the Department of Human Resources, not to FEMS, was not ripe for review because whether FEMS would request those records was “hypothetical.” Without addressing ripeness, however, the court reached the merits of the Union's principal argument and concluded that the announced programs were not contrary to either the...