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AMERICAN FED. OF GOV. EMPLOYEES v. DC FIN. RESPONSIBILITY

February 15, 2001

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, ET AL., PLAINTIFFS
v.
DISTRICT OF COLUMBIA FINANCIAL RESPONSIBILITY AND MANAGEMENT ASSISTANCE AUTHORITY, ET AL., DEFENDANTS



The opinion of the court was delivered by: John Garrett Penn, District Judge.

MEMORANDUM

Currently before the Court is defendants' Motion to Dismiss the First Amended Complaint [#51], which was filed on November 27, 2000. For the reasons stated in this memorandum, defendants' Motion to Dismiss the First Amended Complaint is granted.

BACKGROUND

This dispute arises from a challenge to an order of the District of Columbia Financial Responsibility and Management Authority ("Authority" or "Control Board"), dated December 27, 1996, which mandated a change to the way in which the Chief Financial Officer of the District of Columbia ("CFO" or "District") calculates overtime pay for all District employees. Various unions challenged the order as being beyond the scope of the Control Board's authority since it abrogated certain provisions of existing collective bargaining agreements between the District and the unions which already specified how overtime pay was to be calculated.

In its Memorandum dated and filed on September 22, 2000 ("September 22 Memorandum"), the Court granted summary judgment in favor of the union-plaintiffs on the ultra vires issue, dismissed the individual employee-plaintiffs for lack of standing, and denied as moot defendants' motion to dismiss the amended complaint. See generally September 22 Memorandum. In the accompanying order, the Court adjudged and declared that the Control Board had exceeded its statutory authority in ordering the District to repudiate provisions of collective bargaining agreements between the District and the plaintiffs that govern the conditions for payment of over-time pay for covered employees, and further declared, as such, the Control Board's order was without legal effect. Furthermore, the Court adjudged and declared that to the extent the District had implemented the Control Board's order, it was in breach of the relevant collective bargaining agreements existing between the District and the plaintiffs. The Court further ordered the District of Columbia Chief Financial Officer to effect full compliance by the District of Columbia with the terms of the collective bargaining agreements. Finally, the Court ordered that any determination of damages owed to employees covered by the collective bargaining agreements, such as lost leave or overtime pay, was to be made in a manner consistent with the grievance and arbitration procedures found in the applicable collective bargaining agreements.

On November 14, 2000, Congress enacted the District of Columbia Appropriations Act for fiscal year 2001, which was signed into law by the President on November 22, 2000. The relevant portion of this legislation is as follows:

§ 156. (a) Notwithstanding the provisions of the District of Columbia Government Comprehensive Merit Personnel Act of 1978 (D.C. Law 2-139; D.C.Code 1-601.1 et seq.), or any other District of Columbia law, statute, regulation, the provisions of the District of Columbia Personnel Manual, or the provisions of any collective bargaining agreement, employees of the District of Columbia government will only receive compensation for overtime work in excess of 40 hours per week (or other applicable tour of duty) of work actually performed, in accordance with the provisions of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq.
(b) Subsection (a) of this section shall be effective December 27, 1996. The Resolution and Order of the District of Columbia Financial Responsibility and Management Assistance Authority, dated December 27, 1996, is hereby ratified and approved and shall be given full force and effect.

H.R. 5633, § 156, 106th Cong. (2d. Sess. 2000) (hereinafter "§ 156").

Based on this new legislation, on November 27, 1999, defendants moved to dismiss the first amended complaint based on Congress's subsequent ratification of the order in question. As defendants theorize, § 156 is the explicit grant of Congressional authority to the Control Board that this Court found lacking in its previous grant of summary judgment to the plaintiffs. Plaintiffs have filed their opposition. Defendants have filed a reply. The Court is ready to rule on this new motion to dismiss.*fn1

DISCUSSION

The Court's analysis of the effect of the subsequent congressional legislation is governed by the D.C. Circuit's recent opinion in Thomas v. Network Solutions, Inc., 336 U.S.App.D.C. 74, 176 F.3d 500 (1999), cert. den. 528 U.S. 1115, 120 S.Ct. 934, 145 L.Ed.2d 813 (2000). In Thomas, internet domain name registrants brought suit against the National Science Foundation ("NSF") challenging, inter alia, the assessment of domain name registration fees as an illegal tax. The district court dismissed the complaint, but held that the domain name fee was a tax not authorized by Congress and thus unconstitutional. Within weeks, Congress passed legislation which granted NSF retroactive authority to collect the domain fees in question. Thomas, 336 U.S.App.D.C at 79, 176 F.3d at 505. Holding that the new law ratified the domain name fees assessed by NSF, the district court then dismissed the sole surviving claim. Id. The district court also denied a motion for reconsideration filed by the plaintiffs. Id.

The court of appeals affirmed the district court's decision. In considering whether the legislation passed by Congress effectively ratified the domain name fee scheme, the court began with the proposition that a lack of congressional authorization "is not necessarily fatal because legislation may confirm and render lawful otherwise unlawful federal agency actions[.]" Thomas, 336 U.S.App.D.C. at 80, 176 F.3d at 506. The court of appeals then articulated the standard for determining the effectiveness of the congressional ratification. As the court stated,

[an] old Supreme Court case — rarely cited but never overruled — stands for the proposition that Congress "has the power to ratify the acts which it might have authorized" in the first place, so long as the ratification "does not interfere with intervening rights."

Id. (citing United States v. Heinszen, 206 U.S. 370, 384, 27 S.Ct. 742, 51 L.Ed. 1098 (1907)).

Pursuant to Thomas, the Court's inquiry into Congress's ratification of the Control Board's order focuses on three issues — 1) whether Congress intended to ratify the Control Board's order when it passed § 156; 2) whether Congress had the authority to authorize the Control Board's action in the first place; and 3) whether that ...


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