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January 15, 1993


Appeals from the Superior Court of the District of Columbia; (Hon. Arthur L. Burnett, Sr., Trial Judge)

Before Ferren, Terry, and Schwelb, Associate Judges.

The opinion of the court was delivered by: Ferren

FERREN, Associate Judge: On October 22, 1992, at the behest of several government employees' unions, *fn1 the trial court preliminarily enjoined the District of Columbia from furloughing employees covered by certain collective bargaining agreements and from eliminating their within-grade pay increases and their accrual of time in grade for purposes of future increases, as otherwise required by the District of Columbia Appropriations Act, 1993, Pub. L. No. 102-382, Title I, 106 Stat. 1422 (1992) (1993 Appropriations Act). The trial court also denied the District appellants' *fn2 motion to dismiss the unions' complaints. The District and the School Board contend on appeal that the trial court erred in ruling, as the basis for its injunction, that the 1993 Appropriations Act violates the Contract Clause, Article I, Section 10, of the United States Constitution. They argue, more specifically, that the Appropriations Act is an act of Congress and that the Contract Clause does not apply to congressional action. Appellants also contend, in response to the unions' alternative argument, that the Appropriations Act does not violate due process. We agree with the District and the School Board; there are no Contract Clause or due process violations. We reverse and remand.


The District and School Board defendants-appellants, see supra note 2, and the union plaintiffs-appellees, see supra note 1, are parties to collective bargaining agreements authorized by statute. See D.C. Code §§ 1-618.16, -618.17 (1992 Repl.). The District's Fiscal Year 1993 Budget Request Act, D.C. Act 9-186, 39 D.C. Reg. 2674 (1992), effective April 7, 1992, provided for twelve furlough days for each full-time District employee (excluding court employees) during the fiscal year. That Act also froze within-grade increases and eliminated the accrual of time in grade for purposes of future increases. On May 26, 1992, the employee unions in 92-CV-1275 filed an action for declaratory and injunctive relief, claiming that the 1993 Budget Request Act impaired their collective bargaining agreements in violation of the Contract Clause, which applies through D.C. Code § 1-204 (1992 Repl.) to the District's exercise of "legislative power."

Thereafter, the Mayor submitted the District's 1993 Budget Request Act to the President for transmission to Congress, pursuant to D.C. Code § 47-304 (1990 Repl.), which empowers Congress -- not the District -- to appropriate all funds for the District. While the legislation based on the 1993 Budget Request Act was pending in Congress, the District moved to stay the proceedings in 92-CV-1275 on the ground that congressional action would moot the unions' claims against the District. On September 4, 1992, the trial court granted a stay until October 6. The unions did not attempt to appeal this order. See infra note 9.

On September 17, 1992, the school employees' unions in 92-CV-1276 filed a Superior Court complaint similar to the one in 92-CV-1275, claiming in addition that the 1993 Budget Request Act interfered with the authority granted to the Board of Education by D.C. Code § 31-104 (1988 Repl.). On October 5, 1992, President Bush signed the 1993 Appropriations Act, preserving unchanged the provisions regarding furloughs, within-grade increases, and time in grade submitted in the District's 1993 Budget Request Act. Soon thereafter, the unions in both cases filed motions for a preliminary injunction. On October 13, the trial court consolidated the actions. Three days later, the District and the School Board moved to dismiss the actions as moot. On October 20, the trial Judge held a hearing on the motions. Two days later, the Judge granted the motions for preliminary injunction and denied the motion to dismiss. The same day this court stayed the preliminary injunctions pending final determination of these consolidated appeals.


Although these appeals concern the grant of preliminary injunctions, this court may reach the merits of the cases.

Ordinarily appellate review of the grant or denial of injunctive relief is focused on an evaluation of whether the trial court abused its discretion. Stamenich v. Markovic, 462 A.2d 452, 456 (D.C. 1983). Where, however, the trial court's action "turns on a question of law or statutory interpretation, we may reach the merits of the controversy." Don't Tear It Down, Inc. v. District of Columbia, 395 A.2d 388, 391 (D.C. 1978) (citations omitted); District of Columbia Unemployment Compensation Board v. Security Storage Co. of Washington, 365 A.2d 785, 787 (D.C. 1976), cert. denied, 431 U.S. 939, 53 L. Ed. 2d 256, 97 S. Ct. 2651 (1977). Since this appeal involves a constitutional challenge . . . , we elect to review this case on the merits of the controversy.

Turner v. Fraternal Order of Police, 500 A.2d 1005, 1007 (D.C. 1985) (parallel citations omitted). Accordingly, because these appeals present a constitutional question, we shall review the merits of the controversy.



The trial Judge proceeded on the premise that an appropriations act for the District of Columbia is exclusively an act of Congress -- a proposition with which we agree. See infra Part IV. B. Based on that premise, then, the first question is whether Congress, in adopting the 1993 Appropriations Act for the District, effectively transmuted itself into a state legislature, subject to whatever constraints, constitutional or otherwise, apply to the states when they enact such legislation. The Judge answered yes. Quoting Brown v. United States, 239 U.S. App. D.C. 345, 349, 742 F.2d 1498, 1502 (1984) (en banc), cert. denied, 471 U.S. 1073, 85 L. Ed. 2d 509, 105 S. Ct. 2153 (1985), he concluded that whenever Congress "'act as the local legislature for the District of Columbia, . . . enact legislation applicable only to the District and tailored to meet local needs it is "acting as a State legislative body." Seeing the 1993 Appropriations Act as an example of such congressional action, the trial Judge relied further on Brown to the effect that, "'absent evidence of contrary congressional intent, such enactments should be treated as local law, interacting with federal law as would the laws of the several states.'" Id. On that basis, the Judge concluded that the Contract Clause of the United States Constitution (Art. I, § 10) -- "no State shall . . . pass any law impairing the Obligation of Contracts" -- applied to congressional enactment of the furlough, within-grade increase, and time in grade provisions in the 1993 Appropriations Act.

Brown, however, did not deal with the Contract Clause. The trial Judge also failed to observe that Brown, as a 1984 decision, is not binding on this court. See M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971) (court of appeals "not bound by the decisions of the United States Court of Appeals rendered after" February 1, 1971). In contrast, John McShain, Inc. v. District of Columbia, 92 U.S. App. D.C. 358, 205 F.2d 882, cert. denied, 346 U.S. 900, 98 L. Ed. 400, 74 S. Ct. 227 (1953), which the trial court rejected as wrongly decided, not only directly concerned the Contract Clause but also, as a pre-1971 case, is binding on us under M.A.P., 285 A.2d at 312. In McShain, the United States Court of Appeals for the District of Columbia Circuit held that a statute enacted by Congress as a local law for the District -- the District of Columbia Revenue Act of 1949 -- did not violate the Contract Clause precisely because that constitutional provision "is a limitation on state rather than federal action." 92 U.S. App. D.C. at 359, 205 F.2d at 883. An even earlier case that is also binding on us, District of Columbia v. Capital Traction Co., 41 App. D.C. 115 (1913), similarly sustained an act of Congress regulating streetcars in the District against a Contract Clause claim. The federal circuit court held that "the prohibition of laws impairing the obligations of contracts applies to the States, and not to the United States." Id. at 119. In short, the Contract Clause, applicable only to the fifty states, does not impose a limitation on congressional legislation for the District.

While an intervening Supreme Court decision could have altered the effect of these federal circuit court precedents, see, e.g., Kleinbart v. United States, 604 A.2d 861, 870 (D.C. 1992), no Supreme Court decision has done so. The trial Judge erred in relying on Palmore v. United States, 411 U.S. 389 (1973), for that purpose. Palmore presented the question whether a criminal defendant charged with a felony under the District of Columbia Code could "be tried by a Judge who does not have protection with respect to tenure and salary under Art. III of the Constitution." 411 U.S. at 390. The Supreme Court answered yes, holding that Congress, in exercising its "plenary" power to legislate for the District under Article I, Section 8, Clause 17 of the Constitution, has authority to provide for criminal trials by Judges in a local court system (created under Article I) that does not meet Article III requirements. The Court did say in Palmore that, in legislating for the District, "Congress may . . . exercise all the police and regulatory powers which a state legislature or municipal government would have in legislating for state or local purposes." Id. at 397. But the Court was referring only to the expansive scope of congressional power over the District, not to limitations on that power.

It is apparent that the power of Congress under [Article I, Section 8,] Clause 17 permits it to legislate for the District in a manner with respect to subjects that would exceed its powers, or at least would be very unusual, in the context of national legislation enacted under other powers delegated to it under Art. I, § 8.

Id. at 397-98 (emphasis added) (citing Gibbons v. District of Columbia, 116 U.S. 404, 408, 29 L. Ed. 680, 6 S. Ct. 427 (1886)). *fn3

The Court in Palmore also confirmed that whenever congress exercises for the District the "'legislative powers that the legislature of a State might exercise within the State,'" congress may "'not contravene any provision of the Constitution of the United States.'" Id. at 397 (quoting Capital Traction Co. v. Hof, 174 U.S. 1, 5, 43 L. Ed. 873, 19 S. Ct. 580 (1899). *fn4 This statement, however, cannot legitimately be construed to mean that Congress is limited by the Contract Clause -- which applies only to the fifty "states" *fn5 -- when Congress enacts a local law for the District. In context, the Court was referring only to constitutional limitations applicable to the Congress acting as Congress. Neither Palmore nor any of the cases cited there supports the proposition, announced by the trial Judge here, that a constitutional limitation on the states imposes a limitation on Congress when it acts as a legislature for the District. In addition to Gibbons, supra note 3, and Hof, supra note 4, Palmore cites five precedents for the Supreme Court's "characteristic view . . . of congressional powers with respect to the District. " 411 U.S. at 397 & n.7. All cited cases affirm the expansiveness of Congress's power to legislate for the District; none mentions any constitutional limitation on that power derived from constitutional limitations on actions by states. *fn6

In sum, nothing in the language of the Constitution, and no Supreme Court decision cited to us, *fn7 indicates that, when Congress exercises plenary authority over the District of Columbia in the role of a local legislature, Congress itself is subject to constitutional limitations on state legislatures. *fn8 The Supreme Court caselaw goes only far enough to suggest that Congress, when acting as a local legislature for the District, (1) may have greater powers than Congress can exercise over the nation as a whole, see Gibbons, supra, note 3, but (2) may not contravene constitutional limitations applicable to Congress acting as congress, see Hof supra note 4. Any argument that Congress, acting as the District's local legislature, is also subject to constitutional limitations on the states, such as the Contract clause, is therefore premised on the authority of analogy alone. Such a decision would be unprecedented; we have no authority to impose such a limitation on congressional power. Accordingly, if there is to be any contract Clause-type ...

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