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DOMINION COGEN, D.C., INC. v. DISTRICT OF COLUMBIA

February 28, 1995

DOMINION COGEN, D.C., INC., et al., Plaintiffs,
v.
DISTRICT OF COLUMBIA, et al., defendants.



The opinion of the court was delivered by: ROYCE C. LAMBERTH

 This lawsuit arises out of the lengthy and ultimately fruitless efforts of plaintiffs to secure the necessary permits, zoning approvals, and regulatory clearances from various agencies of the District of Columbia government in order to begin construction of a 56 megawatt cogeneration facility on the campus of Georgetown University. Plaintiffs allege that various representatives of the D.C. city government engaged in a concerted effort to improperly prevent plaintiffs from building and operating this facility. The case comes before the court on the joint motion of all defendants to dismiss either for failure to state a claim or pursuant to the court's discretionary authority under the Burford abstention doctrine. In addition, three D.C. City Council members, who are being sued in their official capacities, move to dismiss on the grounds of legislative immunity. Finally, the parties have filed several motions concerning plaintiffs' requested depositions and discovery of assertedly privileged documents from the defendants. For the reasons set forth below, the City Council members' motion to dismiss will be granted in part and denied in part as to defendants Ray and Evans, and granted as to defendant Nathanson. The joint motion of all defendants to dismiss for failure to state a claim or pursuant to the abstention doctrine will be denied. Defendants' motion for a protective order regarding certain deposition questions will also be denied, as will defendant's motion for a stay of discovery. Finally, plaintiffs' motion to compel will be denied without prejudice.

 I. Factual Background

 Plaintiffs are a group of companies which sought to construct and operate a steam and electric cogeneration plant *fn1" on the campus of Georgetown University, in Washington, D.C. After being selected by Georgetown University to construct the facility, plaintiffs began a lengthy regulatory approval process. Plaintiffs' complaint describes the numerous administrative hurdles which the proposed project was required to surmount in order to obtain permission from the D.C. city government to proceed with construction of the facility. Plaintiffs contend that they dutifully complied with these myriad requirements, *fn2" and that by the summer of 1993, the only thing left to be done was for the Department of Consumer and Regulatory Affairs ("DCRA") to issue building permits for the project. However, the director of the DCRA, Hampton Cross, refused to issue these permits, citing concerns over the possible health effects of electro-magnetic fields ("EMF") which would be generated by the power lines carrying plaintiffs' electricity. According to the plaintiffs, EMF issues had been fully investigated by several D.C. regulatory agencies, and these agencies had determined that projected EMF levels posed no public health risk. Thus, plaintiffs contend that the decision to withhold the building permits was not motivated by a good faith concern on Mr. Cross's part that the project might present a health threat, but rather was the result of a politically motivated and illegitimate scheme to kill the Dominion Cogen project. Plaintiffs have filed suit against the District of Columbia and various D.C. government officials including, among others, former Mayor Kelly and City Council members Ray, Nathanson, and Evans. Plaintiffs' suit alleges violation of due process, unconstitutional impairment of contracts, and tortious interference with contractual and economic relations.

 II. The Motions to Dismiss

 When assessing a motion to dismiss under Rule 12(b)(6), the plaintiff's factual allegations must be presumed true and should be liberally construed in favor of the plaintiff. Phillips v. Bureau of Prisons, 192 U.S. App. D.C. 357, 591 F.2d 966, 968 (D.C. Cir. 1979) (citing Miree v. Dekalb County, Georgia, 433 U.S. 25, 27 n.2, 53 L. Ed. 2d 557, 97 S. Ct. 2490 (1977)). In addition, the plaintiff must be given every favorable inference that may be drawn from his allegations of fact. Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). The complaint should be dismissed only if it appears beyond doubt that no set of facts proffered in support of plaintiff's claim would entitle him to relief. Haynesworth v. Miller, 261 U.S. App. D.C. 66, 820 F.2d 1245, 1254 (D.C. Cir. 1987); Phillips, 591 F.2d at 968. With respect to plaintiff's motion to dismiss pursuant to the Burford abstention doctrine, the court notes at the outset that "abstention from the exercise of federal jurisdiction is the exception, not the rule." Colorado River Water Cons. Dist. v. United States, 424 U.S. 800, 813, 47 L. Ed. 2d 483, 96 S. Ct. 1236 (1975).

 A. Legislative Immunity

 The City Council member defendants ("Council members"), who are being sued in their official capacities as legislators of the District of Columbia, move to dismiss plaintiffs' claims against them on the grounds that these claims are barred by the District's "Speech or Debate" statute. D.C. Code Ann. § 1-223 (1992). This statute provides that "for any speech or debate made in the course of their legislative duties, the members of the Council shall not be questioned in any other place." Id. The legislative history and the case law interpreting this statute make clear that it is modeled on the Speech or Debate Clause of the United States Constitution, and that the statute was intended to be interpreted liberally, so as to protect "'genuine legislative functions...which are exercised beyond the mere confines of the Council Chambers or a committee meeting place.'" Gross v. Winter, 277 U.S. App. D.C. 406, 876 F.2d 165, 174 (D.C. Cir. 1989) (quoting Report on Bill No. 1-34. "Legislative Privilege Act of 1975," Comm. on the Judiciary & Criminal Law Council of the District of Columbia 1 (Dec. 4, 1975)). However, the scope of this immunity only extends to conduct which is within the legislative sphere. Council members are not immune from liability for acts which are not taken in their "legislative capacity." Id. at 173. Because the Council member defendants may only be held liable for conduct which was outside the legislative sphere, the court must closely scrutinize the complaint in order to determine which, if any, of plaintiffs' allegations describe such conduct.

 Plaintiffs allege that Council members Ray, Nathanson, and Evans took a variety of steps to prevent the Dominion Cogen project from going forward. Allegations concerning the conduct of these Council members consist of the following: *fn3"

 
1. Ray, Nathanson, and Evans "improperly pressured relevant agencies to delay issuance of permits and to demand new, redundant regulatory reviews without any basis in law or fact." Compl. P 25.
 
2. On February 4, 1993, Ray "sent a letter to Defendant Mayor Kelly requesting delay of the project." Compl. P 31.
 
3. Ray "convened a D.C. Council public hearing on DCRA's budget and attacked the project. Defendant Ray improperly utilized the hearing to exert political pressure on DCRA to deny issuance of building permits to the Project.... During the hearing, Defendant Ray made material misstatements concerning the Project and specifically requested the DCRA to delay issuance of the Project's building permits." Compl. P 33.
 
4. Ray "noticed public 'oversight' hearings on DCRA in order to keep up pressure on DCRA and its officials to deny and delay necessary project permits." Compl. P 37.
 
5. Ray "introduced before the D.C. Council legislation specifically designed to 'declare an emergency' and retroactively terminate the Project." Compl. P 41.
 
6. Ray and Nathanson convened another public oversight hearing "ostensibly to review DCRA but in fact intended to provide a public forum for Defendants' continued false and misleading statements...[and] to exert political pressure for more regulatory delay. During the hearing, Defendant Ray chastised the DCRA for not holding up approvals to which the project was legally entitled and directed Defendant Cross to delay the project." Compl. P 42.
 
7. At a public hearing held by the DCRA, Evans "stated to representatives of the Project: 'let me make one thing clear--the project will be killed, it will not go forward.' After the hearing, Defendant Evans stated to a representative of the Project that 'the facts do not matter, it's politics, and we need votes.'" Compl. P 47.
 
8. Evans, Ray, and Nathanson introduced emergency legislation in the D.C. Council "specifically designed to prohibit the issuance of the building permits to which the Project was legally entitled." Compl. P 49.
 
9. Ray summoned the director of the DCRA, Hampton Cross, to his Council offices; the same day, the DCRA issued a decision signed by Cross suspending processing of plaintiffs' building permit application "indefinitely." Compl. P 50.

 Without necessarily admitting the truth of plaintiffs' allegations, the Council members contend that even if they did engage in the conduct alleged by the plaintiffs, all such conduct would be legislative in nature and therefore immune from suit.

 It is clear that the District's Speech or Debate statute clothes D.C. City Council members with immunity from lawsuits--including § 1983 claims--for conduct undertaken in their legislative capacities. Gross, 876 F.2d at 169. Furthermore, the case law interpreting the federal Speech or Debate Clause (which both the parties and the court agree is pertinent in construing the District's analogous statute) makes clear that it is not just actual speech or debate on the floor of the legislative chamber which is protected. See United States v. Johnson, 383 U.S. 169, 180, 15 L. Ed. 2d 681, 86 S. Ct. 749 (1965) (holding that "the legislative privilege will be read broadly to effectuate its purposes"). Rather, the protection extends to activity which is "an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters" within their jurisdiction. Gravel v. United States, 408 U.S. 606, 625, 33 L. Ed. 2d 583, 92 S. Ct. 2614 (U.S. 1971). Among these activities is the acquiring of information, an activity that is a "'necessary concomitant of legislative conduct and thus should be within the ambit of the privilege so that [legislators] are able to discharge their duties properly.'" McSurely v. McClellan, 180 ...


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