Griffith v. Lanier

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 15, 2008 Decided April 4, 2008

No. 07-7072

CHRISTOPHER GRIFFITH ET AL.,

APPELLANTS

v.

CATHY L. LANIER,

APPELLEE

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.

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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, 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. Melo, 502 U.S. 21, 26

(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 court 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.

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 (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 (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

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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 (1979) (citations omitted).

Thus the clause survives the plaintiffs’ facial challenge.

* * *

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,

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threatens to deprive them of this interest unconstitutionally.

Cf. Bd. of Regents v. Roth, 408 U.S. 564, 576-77 (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. 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 therefore subject to the VSA, § 1-319.02

(governing “the use of volunteers by agencies . . . of the District

of Columbia”), as well as the regulations promulgated

thereunder, D.C. Mun. Regs. tit. 6, § 4000.1-.26. See Johnson

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v. Williams, No. 04-CV-441, slip op. at 1-2 (D.C. Nov. 30,

2005); LeFande v. District of Columbia, No. 04-CV-68, slip

op. at 3 (D.C. May 25, 2005). These regulations state that

“[t]he acceptance and utilization of the services of any person

on a voluntary basis shall be at the discretion of each agency,

and . . . may be discontinued by the agency at any time for any

reason,” without “giv[ing] rise to any right or process of

appeal.” D.C. Mun. Regs. tit. 6, § 4000.12-.13. Because the

VSA regulations carry the force of law, they bar any reserve

officer’s claim of entitlement to continued volunteer service

arising from a previous MPD General Order or informal

understanding, see Johnson, slip op. at 1, unless some other

regulation or statute compels a contrary conclusion.

The plaintiffs describe their property interest as indeed

protected by another D.C. statute, which provides in relevant

part as follows:

[T]he Mayor of the District of Columbia . . . is hereby

authorized and empowered to fine, suspend with or

without pay, and dismiss any officer or member of [the]

police force for [cause] . . . ; provided, that no person shall

be removed from said police force except upon written

charges preferred against him in the name of the Chief of

Police of said police force to the trial board or boards

hereinafter provided for and after an opportunity shall

have been afforded him of being heard in his defense; but

no person so removed shall be reappointed to any office

in said police force . . . .

D.C. Code § 5-127.01 (2001) (emphasis added). Because the

plaintiffs are “persons” within the terms of the statute, they

argue, they cannot be removed from their volunteer positions

except for cause.

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Although the plaintiffs are surely persons, the only

persons whom § 5-127.01 protects—as its language makes

clear—are “officer[s] or member[s] of [the] police force,”

who may conceivably be “removed from said police force” or

“reappointed to any office in said police force.” The question

then becomes whether Reserve Corps members are “member[s]

of [the] police force” within the meaning of this statute. This

question has not yet arisen before the D.C. Court of Appeals,

for while Johnson found Reserve Corps members to lack a

property interest in their continued service, it did not consider

the possible application of § 5-127.01.

Lanier argues that volunteer officers are excluded from

these protections by a 1906 amendment to the statute, which

provided that “special policemen and additional privates may

be removed from office by the Mayor without cause and

without trial.” Act of June 8, 1906, § 4, ch. 3056, 34 Stat.

221, 222 (codified as amended at D.C. Code § 5-127.01). She

contends that because these exempted groups were the only

categories of volunteer police existing in 1906, the proviso

currently applies to all existing categories of volunteer officers.

Both in 1906 and today, however, “special policemen” were

specifically defined as privately-employed security officers

imbued with certain public powers. See Act of Mar. 3, 1899,

ch. 422, 30 Stat. 1045, 1057 (codified as amended at D.C.

Code § 5-129.02). The term “additional privates” appears

essentially synonymous: Rev. Stat. D.C. § 375, 18 Stat. pt. 2,

at 44 (1875), had authorized appointment of an “additional

number of privates” on the application (and at the expense) of

persons showing the “necessity” of such appointment. The

other possible referent of “additional privates” is the category

of “special privates,” who then and today were temporary

unpaid police appointed during times of emergency. See id.

§§ 378-379 (codified as amended at D.C. Code § 5-129.03).

At most, then, the 1906 amendment exempted specific groups

of volunteer officers, rather than referring to all volunteers

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through a general term of art, in the way the Constitution uses

“Treason, Felony, or Breach of the Peace” as a term of art

referring to all crimes. U.S. Const. art. I, § 6, cl. 1; see

Williamson v. United States, 207 U.S. 425, 438 (1908). Were

this all, we would face the common conflict between the

expressio unius est exclusio alterius canon and its competing

cousin, the contention that statutory language “may fairly

comprehend many different cases where some only are

expressly mentioned by way of example.” Karl N. Llewellyn,

Remarks on the Theory of Appellate Decision and the Rules or

Canons About How Statutes Are To Be Construed, 3 Vand. L.

Rev. 395, 405 (1950).

But there are other reasons why § 5-127.01 is not

properly read to confer any protected tenure on Reserve Corps

members. D.C. statutes concerning the MPD frequently

employ phrases similar to “member of [the] police force,” and

we read a body of statutes addressing the same subject matter

in pari materia, “as if they were one law,” Wachovia Bank,

N.A. v. Schmidt, 546 U.S. 303, 315-16 (2006) (quoting

Erlenbaugh v. United States, 409 U.S. 239, 243 (1972)),

including later-enacted statutes as well, see Branch v. Smith,

538 U.S. 254, 281 (2003) (citing United States v. Freeman, 44

U.S. (3 How.) 556, 564-65 (1845)). An examination of these

statutes shows that Reserve Corps members are not generally

treated as “member[s] of [the] police force” under D.C. law.

First, a District statute defines “[t]he Metropolitan Police

force” to “consist of not less than 3,000 officers and members,

in addition to the persons appointed as surgeons for the

Metropolitan Police force, appointed as police matrons, or

appointed as special privates pursuant to § 5-129.03 . . . .”

D.C. Code § 5-105.05 (2001). Neither this definition nor any

other provision of the “Personnel” subchapter of this title

includes the Reserve Corps within the definition of the force,

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even though this section does include the “special privates”

mentioned above.

Second, the opening subsection of the statute governing

the Reserve Corps defines its membership in contradistinction

to “full-time, sworn police personnel.” § 5-129.51(a). MPD

“personnel” are separately defined in Subchapter III of Title 5,

which assigns to the mayor the power to “appoint to office,

assign to such . . . duties as he may prescribe, and promote all

officers and members of [the] Metropolitan Police Force.”

§ 5-105.01 (2001) (emphasis added). Reserve Corps members,

by contrast, have their “duties and responsibilities . . .

determined by the Chief of the Metropolitan Police

Department,” § 5-129.51(b); while the Mayor may issue

regulations prescribing their duties and responsibilities, § 5-

129.51(d), this language implies that Reserve Corps members

are not directly included within § 5-105.01’s terms. Moreover,

the opening subsection of the Reserve Corps statute establishes

the Corps as a separate and coordinate body “in the District of

Columbia,” § 5-129.51(a), rather than creating it “in the

Metropolitan Police Department,” language used for

components of the MPD such as the School Safety Division or

the Police Band. §§ 5-131.01 (2001), 5-132.02(a) (Supp.

2007) (emphasis added).

Third, the Reserve Corps is created as an organization of

“unpaid volunteers.” § 5-129.51(b). This language not only

makes Reserve Corps members subject to the VSA and its

accompanying regulations; it also distinguishes them from the

“officers and members of the Metropolitan Police force,” who

as such automatically receive salaries under § 5-541.01 (2001)

as well as tuition reimbursements under § 5-1305 (2001). The

plaintiffs describe § 5-127.01’s civil-service protections as

intended to dismantle a spoils system of political patronage,

see Griffith Br. 30-33, an intent that seems barely if at all

applicable to unpaid positions; the absence of a salary further

11

differentiates reserve officers from those who may be

“suspend[ed] with or without pay” only for cause. § 5-127.01.

And at least one federal statute sets Reserve Corps members

apart for monetary purposes, allocating money “for salaries

and expenses . . . of officers and members of the Metropolitan

Police Department . . . (and supplies, equipment, and protective

vests for reserve officers of the Metropolitan Police

Department).” District of Columbia Police Authorization and

Expansion Act of 1989, Pub. L. No. 101-223, sec. 2(a),

§ 502(c)(2), 103 Stat. 1901, 1901. While the statute evidently

presupposes that “reserve officers” are “of the Metropolitan

Police Department,” it plainly views them, at least for

appropriations purposes, as different from “officers and

members” of the department, the key phrase from § 5-127.01.

Fourth and finally, under § 5-129.51(c), the “selection

criteria required for and training provided to members of the

Reserve Corps shall be similar to [those of] full-time, sworn

police personnel,” and are determined by the Chief of Police,

id. A different regime is created for the members of the

department proper, whereby the Police Officers Standards and

Training Board determines selection criteria and training for

“[e]ach applicant selected for appointment as a sworn member

of the Metropolitan Police Department.” D.C. Code § 5-

107.04(d) (Supp. 2007). Separate provisions allow the Board

to establish standards for the Housing Authority Police

Department (an entirely separate force that does not report to

the MPD), see §§ 5-107.04(f-1)(3), 6-223 (Supp. 2007), and

to “[r]eview the . . . Reserve Corps program’s training and

standards,” § 5-107.04(f-1)(4). These provisions thereby treat

Corps members as distinct from members of the department as

a whole, and in particular from those “appoint[ed]” as

members of the force under § 5-105.01.

Thus, the District’s statutes consistently distinguish

between Reserve Corps members and the “member[s] of [the]

12

police force.” None of this, of course, appears to limit the

potential powers of a reserve officer to “fulfill police duties

and responsibilities” as determined by the Mayor and Chief of

Police under § 5-129.51(b), (d), including all the duties of

full-time officers. But because D.C. law does not generally

treat Reserve Corps members as “member[s] of [the] police

force” in the sense necessary to protect their tenure under § 5-

127.01, these volunteers remain subject to at-will dismissal,

and they lack the statutorily-protected property interest

necessary to ground a due process challenge.

* * *

The judgment of the district court is therefore

Affirmed.