Metro. Wash. Chapter v. Dist. of Columbia
Decision Date | 30 December 2021 |
Docket Number | 12-cv-853 (EGS) |
Court | U.S. District Court — District of Columbia |
Parties | METROPOLITAN WASHINGTON CHAPTER, ASSOCIATED BUILDERS AND CONTRACTORS, INC., et al. Plaintiffs, v. DISTRICT OF COLUMBIA, et al., Defendants. |
Plaintiffs Metropolitan Washington Chapter, Associated Builders and Contractors, Inc. (“Association”); Miller & Long Concrete Construction, Inc. (“Miller & Long”); Emmett Morris, Jr.; and Dairon Upshur (collectively “Plaintiffs”) bring this action against Defendants District of Columbia and Mayor Muriel Bowser (collectively “Defendants” or the “District”) alleging that the District's First Source Employment Agreement Act of 1984, as amended by the Workforce Intermediary Establishment and Reform of First Source Amendment Act of 2011, D.C. Code § 2-219.01 et. seq., (hereinafter “First Source Act” or “Act”) discriminates against nonresidents of the District of Columbia in violation of Plaintiffs' Substantive Due Process rights under the U.S. Constitution's Fifth Amendment incorporation of the protections of the Privileges and Immunities Clause. Pending before the Court are the parties' cross motions for summary judgment. See Defs.' Mot., ECF No. 63;[1] Pls.' Mot., ECF No. 65. The Court has carefully considered the motions, oppositions, replies thereto, the supplement and response thereto, the applicable law, and the entire record herein. For the reasons explained below, the Court GRANTS Defendants' Motion for Summary Judgment, ECF No. 63; and DENIES Plaintiffs' Cross Motion for Summary Judgment, ECF No. 65.
Much of the relevant background concerning the District of Columbia's unique position as the “only jurisdiction in the country that is legally barred from imposing a commuter tax on non-residents who come into the city to work” was described in this Court's Memorandum Opinion responding to the District's Motion to Dismiss. See Metro. Washington Chapter v. D.C. (“MTD Mem. Op.”), 57 F.Supp.3d 1, 7 (D.D.C. 2014). The Court will briefly summarize the facts relevant to the pending motions, and then set forth the procedural background.
Except where indicated, the following facts are not in dispute. The First Source Act traces its roots to the District of Columbia Mayor's Order 83-265, signed by Mayor Marion Barry in 1983. See Pls.' Statement of Material Facts (“SOMF”), ECF No. 65-1 at 7-8 ¶¶ 12-14; Defs.' Resp. to Pls.' SOMF, ECF No. 67-2 at 4 ¶¶ 12-14; Employment Agreement Goals and Objectives for All District of Columbia Projects, District of Columbia Mayor's Order, No. 83-265 (Nov. 9, 1983) (“Mayor's Order”), ECF No. 65-4. Under the Mayor's Order “any project funded . . . [by] District of Columbia funds . . . [had to] reflect the goal of . . . enhanc[ing] business and economic development by increasing jobs for District residents and broadening the District of Columbia's tax base.” Id. To reflect this goal, agreements with the District were required to contain the following:
Id. The Mayor's Order was a precursor to the District's First Source Employment Agreement Act of 1984, formerly codified as D.C. Law 5-93. See Testimony of Drew Hubbard, Former Associate Director at the District's Department of Employment Services (“DOES”) and Former Legislative Aide with the District of Columbia City Council (“Hubbard Test.”), ECF No. 73-4 at 7 at 21:1-22:19. In the ensuing years, prior to the adoption of the Amended Act, there were no penalties imposed for violations of the original, 1984 Act. See Pls.' SOMF, ECF No. 65-1 at 8 ¶ 16; Hubbard Test., ECF No. 73-4 at 21 at 77:20-78:5.
Id. at 4-5 (internal quotation marks omitted). In addition, the Workforce Committee found that with “more than 70% of [the District's] jobs . . . filled by nonresidents . . . coupled with city's inability to tax the income of nonresidents, along with several other related negative indicators, support[ed] the argument” that its law was constitutionally valid. Id. at 10.
The D.C. City Council eventually passed the Amended Act, which became effective on February 24, 2012. Pls.' SOMF, ECF No. 65-1 at 8 ¶ 17; Defs.' Resp. to Pls.' SOMF, ECF No. 67-2 at 4 ¶ 17. After the Act became effective, it was “transmitted to Congress for review” on March 23, 2012. Defs.' Mot., ECF No. 63 at 10. In its current form, the Mayor is required to maintain the “First Source Register, ” which “is the Department of Employment Services Automated Applicant File, which consists of the names of unemployed District residents registered with the Department of Employment Services.” D.C. Code § 2-219.02(a). Under the law, (a) The Mayor shall include for every government-assisted project or contract a requirement that the beneficiary enter into an employment agreement with the District of Columbia government which states that:
(b) In selecting unemployed District residents from the First Source Register for interviews for all jobs covered by each employment agreement, the Mayor shall:
D.C. Code § 2-219.03(a). In addition, for any project totaling between $300, 000 and $5, 000, 000, the Mayor must also include a “provision that at least 51% of the new employees hired to work on the project or contract shall be District residents, ” see D.C. Code § 2-219.03(e); and for projects totaling $5 million or more, the Mayor must include a provision requiring that at least “20% of journey worker hours by trade”, “60% of apprentice hours by trade”, “51% of the skilled laborer hours by trade”, and “70% of common laborer hours” shall be performed by District residents. D.C. Code § 2-219.03(e)(1A)(A).
If a beneficiary is unsuccessful in meeting its First Source Law requirements, it can request a waiver if, inter alia, DOES certifies that (1) the beneficiary made a “good-faith effort to comply” or (2) “there are insufficient eligible applicants from the First Source Register that possess the skills required by the position.” D.C. Code § 2-219.03(e)(3)(A).
On the other hand, if the beneficiary fails “to meet the required hiring requirements” and fails “to receive a good-faith waiver” the District may impose “a penalty equal to ⅛ of 1% of the total amount of the direct and indirect labor costs of the project or contract for each percentage by which the beneficiary fails to meet the hiring requirements.” D.C. Code § 2-219.03(e)(4)(A). Further, if the beneficiary is found to be in “willful breach of the employment agreement, ” fails “to submit the required hiring compliance report”, or deliberately submits “falsified data, ” the District can impose a “monetary fine of 5% of the total amount of the direct and indirect labor costs of the project or contract, in addition to other penalties provided by law.” Id. Similar to the 20 years prior to the Amended Act, the District has not imposed any penalties or fines. See Pls.' Mot., ECF No. 65 at 23; ...
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