The opinion of the court was delivered by: GERHARD A. GESELL
In November of 1990, the Commission on Budget and Financial Priorities of the District of Columbia issued a report, known as the "Rivlin Report," which made a number of recommendations on how to remedy the District of Columbia's fiscal crisis. As one of its chief conclusions, the Report called for a reduction in government staffing, especially at middle management levels.
Upon the Mayor's inauguration in January of 1991, she declared a fiscal emergency in the city and announced that the D.C. government would have to undergo a reduction in force ("RIF"). Rather than proceeding under existing RIF guidelines, however, the Mayor and the D.C. Council initiated emergency legislation to override existing provisions for workforce reductions. The resulting legislation, the District of Columbia Government Comprehensive Merit Personnel Act of 1978 Emergency Amendment Act of 1991, D.C. Act 9-65, 38 D.C. Reg. 4935 ("the Emergency Act"), was approved by the Mayor on July 24, 1991. Congress authorized the enactment of the Emergency Act by passing the District of Columbia Emergency Deficit Reduction Act of 1991, Pub. Law No. 102-106, 105 Stat. 539 (Aug. 17, 1991).
The employees affected by this legislation, many of whom are plaintiffs in these lawsuits, were non-union employees at salary grade level DS-11 and above. Approximately one hundred such employees were terminated. Although a much larger number of terminations had been projected, the RIF enacted was less drastic than anticipated. In addition, some employees who received RIF notices took advantage of early retirement incentives and others were retained or rehired, further reducing the actual number of terminations from the previously projected numbers.
The Emergency Act provided for the abolition of "excess positions." Each agency head was responsible for identifying these positions from among those jobs above the DS-11 level that were not part of existing collective bargaining agreements. Employees terminated under the Emergency Act were not eligible for reassignment and competition under preexisting RIF provisions. The Emergency Act provided instead for one round of competition for retention in a limited range of positions, excluding positions in collective bargaining units.
The plaintiffs in these lawsuits are among the approximately one hundred employees who lost their jobs in the RIF. The Mayfield plaintiffs filed a complaint on October 11, 1991, which included a request for a preliminary injunction enjoining the RIF (No. 91-2590). The Bridges plaintiffs filed a complaint, similar to Mayfield in the relief requested, on October 15, 1991 (No. 91-2620). The Keyes plaintiffs filed their complaint on November 1, 1991, also seeking an injunction (No. 91-2817).
Judge (now Chief Judge) Penn, to whom these cases were originally assigned, heard arguments on the preliminary injunction request in Mayfield. He denied the preliminary injunction for the reasons stated in his opinion, Mayfield v. Kelly, Mem. Order, No. 91-2590 (Nov. 8, 1991). Judge Penn found that the plaintiffs had demonstrated neither irreparable injury nor a strong likelihood of success on the merits of their Fifth Amendment claims. Judge Penn expressly limited his conclusions, however, for purposes of the preliminary injunction; he did not decide the merits of the dispute. See Mem. Order, supra, at 22.
Plaintiffs in each of these cases assert that the RIF violated the Fifth Amendment by denying plaintiffs' right to property without due process. In order to establish that defendants have violated their right to due process, plaintiffs must establish first, that they have a property right to their D.C. government employment; and second, that the RIF denied them this right without due process of law.
The Supreme Court has held that where civil servants are guaranteed employment by statute, subject only to the limited exception of for-cause dismissal, such a statute creates a property right protected by the due process clause. In Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985), the Court held that Loudermill, who could only be dismissed for cause under Ohio law, was entitled to due process protection from unfair dismissal. Id. at 538-39. Specifically, due process required that Loudermill be granted a pre-termination hearing to allow him to challenge the grounds for his dismissal. Id. at 542-43. Like the employee in Loudermill, the plaintiffs here had a statutory right to continued employment unless removed for cause. D.C. Code § 1-617.1(b).
The Plaintiffs in these cases are not entitled to the same protection afforded in Loudermill, however, because employees terminated as part of a RIF do not enjoy the same due process protection as employees terminated for cause. This principle follows from the Loudermill decision itself. In evaluating whether the employer's actions violated due process, the Loudermill court balanced "the private interests in retaining employment, the governmental interest in ...