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UNIVERSITY OF THE DIST. OF COLUMBIA FACULTY ASSOCI

February 3, 1998

UNIVERSITY OF THE DISTRICT OF COLUMBIA FACULTY ASSOCIATION/NEA, et al., Plaintiffs,
v.
BOARD OF TRUSTEES OF THE UNIVERSITY OF THE DISTRICT OF COLUMBIA, et al., Defendants.



The opinion of the court was delivered by: KENNEDY

 I. BACKGROUND

 The instrumentality popularly known as the Control Board was created by Congress in 1995 in response to Congress' determination that the District of Columbia is in the midst of a fiscal and management crisis. District of Columbia Financial Responsibility and Management Assistance Act of 1995, Pub.L.No. 104-8, 109 Stat.97 ("FRMAA"). The Control Board was given wide-ranging oversight and powers over the District government's operations. Purporting to act pursuant to the powers provided by the FRMAA and the District of Columbia Appropriations Act of 1997, Pub.L.No.104-194, 110 Stat. 2356, the Control Board promulgated the Order that is the subject of this suit.

 The pertinent circumstances preceding the issuance of the Control Board's Order are as follows. In July, 1996, Congress enacted Public Law 104-194, the District of Columbia Appropriations Act, 1997 ("Appropriations Act"), for the fiscal year beginning October 1, 1996. In § 141(a)(1) of the Appropriations Act, Congress imposed a $ 74 million ceiling on both expenditures and the allowable deficit for the District of Columbia. As fiscal year 1997 unfolded, it became apparent that compliance with the deficit ceiling mandated by Congress was in jeopardy and that UDC was a major contributor to the rising deficit On December 3, 1996, the Council of the District of Columbia reported, "the University of the District of Columbia ("UDC") is projecting a current fiscal year deficit of at least $ 16.2 million. UDC was warned by its accrediting body that institutional accrediation [sic] is in jeopardy, and UDC will, in all likelihood, cease to operate in March 1997 if a gap closing plan is not finalized and implemented as soon as possible." D.C. Council Resolution 11-658, § 2(a).

 On December 27, 1996, the Control Board acted to assure that the deficit ceiling was met, including making a $ 16.2 million "adjustment" to UDC's spending so that the University could operate within its budget. Notwithstanding this adjustment, UDC's deficit continued to mount. Concerned with UDC's continuing financial problems, Julius F. Nimmons, Jr., UDC's Acting President, apparently at the suggestion of the Control Board's chairman, by letter dated January 13, 1997, sought the Control Board's assistance, 'with the crucial issues related to legal authority on [provisions of the collective bargaining agreement]' in connection with a budget plan that called for a reduction in UDC's faculty. *fn3"

 Accordingly, the Control Board stated that UDC should conduct a RIF in a manner allowing it to achieve its planned budget savings notwithstanding the provisions of the collective bargaining agreement, including taking into consideration a faculty member's degrees or lack thereof in determining the order of separation and that contributions to retirement plans should be no more than seven percent (7%) commencing March 1, 1997. The Control Board also directed the Board of Trustees to develop and approve, and submit to the Control Board, a RIF plan providing for reasonable notice and other terms of separation.

 Acting pursuant to and in accordance with the directives of the Control Board's January 22 Order, the Trustees, on February 4, 1997, approved Resolution 97-3, which adopted a "Procedure [for] Reduction-in-Force for Faculty" ("Trustees' RIF Procedures"), and directed President Nimmons to submit the RIF Procedures to the Control Board. *fn5" On February 14, 1997, acting pursuant to and in accordance with the Control Board's Order, Resolution 97-3, and the Trustees' RIF Procedures, UDC implemented a RIF, initiated by sending notices to 125 members of the faculty. Moreover, on March 1, 1997, LDC reduced its contributions to the faculty's pension plan on behalf of faculty members still employed by UDC. This suit followed.

 II. THE CONTENTIONS OF THE PARTIES

 The Faculty's complaint challenges the Control Board's January 22 Order on several grounds, including its contention that implementation of the Order violates several of the Faculty's constitutional rights. However, the Faculty's motion for summary judgment and opposition to the defendants' motion to dismiss are based on the straight-forward assertion that in ordering the Trustees to repudiate the collective bargaining agreement's RIF provisions and its provisions governing UDC's contributions to the faculty retirement plan, the Control Board acted ultra vires, the law's designation of acts that are taken by an entity which are beyond its authority as defined by its charter.

 The Faculty argues that the Control Board's powers, while considerable, are limited to those set forth in its enabling act, the FRMAA. The Faculty points out that nowhere in the FRMAA's studiously detailed specification of the Control Board's powers is there any mention of a power to unilaterally repudiate unwanted provisions in collective bargaining agreements previously entered into by the District of Columbia or its agencies.

 The Control Board mounts a vigorous response to the challenge to its January 22 Order, maintaining that both the FRMAA and the Appropriations Act, independently, and certainly when read together, provide authority for its actions. *fn6" The Control Board relies most heavily on the United States District Court's opinion in Shook v. District of Columbia Financial Responsibility and Management Assistance Authority (Shook I), 964 F. Supp. 416, (D.D.C. 1997), aff'd in part & rev'd in part, 328 U.S. App. D.C. 74, 132 F.3d 775, 1998 WL 1796 (D.C. Cir. 1998), and urges this court to follow Shook I's "approach" *fn7" in determining the validity of its Order in this case. In Shook I (Kessler, J), the court held, inter alia, that Congress had delegated its plenary power to run the D.C. public schools to the Control Board and upheld a Control Board Order that transferred most of the powers and duties of the District's elected Board of Education to a body created by the Control Board, the Emergency Transitional Education Board of Trustees. The Control Board suggests that the Shook I court found the FRMAA's statement of findings and purposes *fn8" to be imbued with particular significance and supportive of its authority because "when the [Control Board] acted to deal with an out-of-control budgetary situation at UDC, it was acting within the central core of the responsibilities confided to it by Congress." (Defs.' Mot. to Dismiss at 16). Consequently, the Control Board asserts that this court should follow the approach it ascribes to Shook I and view the Congressional findings and statement of purposes and the Control Board's findings in support of its order as "key elements in determining the [Control Board's] actions under its governing statutes." Id.

 In addition to the authority found in the text of the FRMAA as originally enacted, the Control Board claims that Congress' 1996 amendment to the FRMAA adding § 207(d) also must be read to uphold its January 22 Order. *fn9" The Control Board points out that § 207(d) essentially means that it is authorized to stand in the shoes of the highest District of Columbia government officials, including agency heads, whenever it is necessary to do so to accomplish its mission. In this instance, the Board of Trustees is the relevant agency head and the University is the pertinent District Government agency. The Control Board asserts that because Article X of the collective bargaining agreement grants certain management rights to the University in the event of an emergency, including the right to take whatever actions may be necessary to carry out the mission of the University in emergency situations, the University had an independent right to take the actions it took and, a fortiori, the Control Board did as well.

 Finally, while vigorously advancing the position that the FRMAA independently provides authority for its January 22 Order, the Control Board states "when there is added the Congressional mandate of § 141(a) of the 1997 D.C. Appropriations Act, the case for the validity of the [Control Board's] actions is overwhelming." Id. In addition to Congress' mandate that the District government stay under the deficit ceiling, the Control Board emphasizes that it was instructed to "take such steps as are necessary" to ensure that the District did not exceed the deficit ceiling and to employ "every means possible" to reduce the costs of operating the District government and to avoid deficit spending. Pub. L. No.104-194, § 141(a)(2); H. R. Conf. Rep. No.104-740 at 17 (1996).

 III. ANALYSIS

 Resolution of the dispositive issue of this case requires the court to answer the question, "Did the Congress of the United States intend to give the Control Board the authority to empower a District of Columbia agency to be able to abrogate a contract, in this case a collective bargaining agreement, to which the District of Columbia or its agency is a party?" As should be apparent, the answer to the question turns upon a sound interpretation of the Congressional legislation that created the Control Board and specified its powers, the FRMAA. While the Control Board argues that the Appropriations Act also should be read to provide the answer to the question, as will be discussed later, there is simply no support for the proposition that Congress intended to or did speak to the issue of the Control Board's authority in the Appropriations Act.

 Because "the meaning of statutory language, plain or not, depends on context," Bailey v. United States, 516 U.S. 137, 116 S. Ct. 501, 506, 133 L. Ed. 2d 472 (1995), the plain meaning of language employed in Congressional legislation does not always provide conclusive proof of Congress intent. Still, it must be remembered that "the primary and general rule of statutory construction is that the intent of the lawmaker is to be found in the language that [he or she] has used." United States v. Goldenberg, 168 U.S. 95, 18 S. Ct. 3, 42 L. Ed. 394 (1897); Halverson v. Slater, 327 U.S. App. D.C. 97, 129 F.3d 180 (D.C. Cir. 1997). Not surprisingly, given the well known concerns about how an unelected ...


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