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American Federation of Government Employees, Local 2741 v. District of Columbia

October 26, 2009


The opinion of the court was delivered by: Thomas F. Hogan U.S. District Judge


Before the Court are Plaintiffs' motion for a preliminary injunction and Defendant's motion to dismiss.*fn1 After hearing oral argument on the matter, for the reasons stated below, the Court will grant the motion to dismiss Counts I and IV of the amended complaint, and will decline to exercise supplemental jurisdiction over plaintiff's remaining state law claims (Counts II and III).


A complaint submitted to a federal court need only set forth "a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the... claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation and quotation marks omitted). In assessing a complaint challenged pursuant to Federal Rule of Civil Procedure 12(b)(6), a court must presume the plaintiffs' factual allegations to be true and construe all reasonable factual inferences in their favor. Leatherman v. Tarrant County Narcotics & Coordination Unit, 507 U.S. 163, 164 (1993); Phillips v. Bureau of Prisons, 591 F.2d 966, 968, (D.C. Cir. 1979); see also Pearson v. District of Columbia, No. 08-0758, 2009 U.S. Dist. LEXIS 63556, at *2 (D.D.C. July 23, 2009).However, "the court need not accept inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in the complaint." Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Nor should the court accept "a legal conclusion couched as a factual allegation," or "naked assertions [of unlawful conduct] devoid of further factual enhancement." Iqbal, ___ U.S. ___, 129 S.Ct. at 1949-50 (internal quotation marks omitted); see also Aktieselskabet AF 21. November 21 v. Fame Jeans Inc., 525 F.3d 8, 17 n.4 (D.C. Cir. 2008) (explaining that the court has "never accepted legal conclusions cast in the form of factual allegations"); cf. Herbage v. Meese, 747 F. Supp. 60, 65 (D.D.C. 1990) ("A plaintiff's bare conclusions of law, or sweeping and unwarranted averments of fact, will not be deemed admitted for purposes of a motion to dismiss.") (internal quotation marks omitted).

"The Court must determine whether the complaint states enough facts, as opposed to legal conclusions, to 'nudge [] [the] claims across the line from conceivable to plausible.'" Tustin v. Jayaraj, No. 08-01034, 2009 U.S. Dist. LEXIS 46448, *3-4 (D. Conn. June 2, 2009) (quoting Twombly, 550 U.S. at 570); Ashcroft v. Iqbal,129 S.Ct. 1937, 1949 (2009) ("To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face'") (quoting Twombly, 550 U.S. at 570); Atherton v. District of Columbia Office of the Mayor (D.C. Cir. 2009). A complaint is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949. When considering a motion to dismiss, a court first identifies the factual allegations entitled to an assumption of truth and then determines "whether they plausibly give rise to an entitlement to relief." Id. at 1950-51; Ferguson v. Local 689, Amalgamated Transit Union, 626 F. Supp. 2d 55, 59 (D.D.C. 2009). The Court may consider "the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint," Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002), or documents "upon which the plaintiff's complaint necessarily relies" even if the document is not produced by the plaintiff. Pearson, 2009 U.S. Dist. LEXIS 63556, at *3 (citingHinton v. Corrections Corp. of Am., No. 08-778, 2009 U.S. Dist. LEXIS 49149, at *2 (D.D.C. 2009); see also Marshall v. Honeywell Tech. Solutions, Inc., 536 F.Supp.2d 59, 65 (D.D.C. 2008) ("[W]here a document is referred to in the complaint and is central to the plaintiff's claim, such a document attached to the motion papers may be considered without converting the motion [to dismiss] to one for summary judgment.") (internal quotation marks and citation omitted).


The District of Columbia Department of Parks and Recreation (DPR) Office of Education Services (OES) has provided daycare and child-development services for some twenty-five years. The District has announced and implemented plans to close at least one dozen daycare centers operated by OES. Current or former OES employees, along with their union, the American Federation of Government Employees, Local 2741 ("AFGE" or "Local 2741") and its bargaining unit members brought this lawsuit seeking, inter alia, to enjoin the District from terminating some 165 positions. Plaintiffs' claims arise under 42 U.S.C. § 1983 as well as under D.C. law.



The Court first addresses Plaintiffs' Fifth Amendment claims, brought under 42 U.S.C. § 1983. Count I alleges that District officials deprived Plaintiffs' of their Fifth Amendment rights by failing to provide employees with the process they were due when implementing a "formally adopted policy... to destabilize and eliminate daycare programs operated by DPR/OES and the jobs associated with said programs in violation of laws of the District...."Am. Compl. ¶ ¶ 14, 19, 37. The policy was allegedly implemented in three parts, beginning in 2008 after "the Office of the State Superintendent for Education (OSSE) changed its funding system for subsidized childcare programs to a reimbursement system based on daily attendance, instead of enrollment...." Pls.' TRO Mot. Ex. 1 (Dkt. No. 3-2); Am. Compl. ¶ 7. "The first prong of Defendant's offensive was to manipulate enrollment in DPR's daycare program so it would appear that participation by affected families and children in the program was declining." Am. Compl. ¶ 7. District officials allegedly suppressed enrollment figures by ordering Plaintiffs to cease accepting applications for daycare services, Pls.' Reply Br. Ex. 2 (Dkt. No. 9-2, 15-2), and by "excluding economically disadvantaged families and individuals known to have been waitlisted for the program." Am. Compl. ¶¶ 7, 10; Pls.' Mot. for Prelim. Inj. Ex. 3 (Dkt. No. 15-4). Next, District officials intentionally failed to apply for federal childcare block grants for fiscal year 2010 (FY2010). Am. Compl. ¶ 12; Reply Br. Ex. 3 (Dkt. No. 9-3) ("Ferguson Decl."). Finally, District officials, without consulting the D.C. Council, "reprogrammed" funds appropriated for DPR, such that OES now lacks adequate funding.*fn2 Am. Compl. ¶ 30; Pls.' Reply Br. Ex. 11. According to Plaintiffs, this funding shortfall was the pretext these officials needed to eliminate OES. Pls.' Reply Br. 7 (Dkt. No 9); Pls.' Reply Br. 6 (Dkt. No. 22).

In April 2009, the District informed AFGE Local 2741, in general terms, of plans for a Reduction in Force, Am. Compl. ¶ 16; Def.'s Opp'n. Mem. Ex. 2 (Dkt. No. 8-2), and began soliciting proposals from prospective childcare service providers, Pls.' Reply Br. Ex. 12 (Dkt. No. 10-3). The reduction in force has come to pass, and the individual plaintiffs are now former employees of OES whose positions were eliminated as of September 25, 2009. Plaintiffs claim a constitutionally protected property interest in those positions, "subject to an appropriate process for the removal and elimination of said jobs." Am. Compl. ¶ 38; Dkt.#13 at 11; see Pls.' TRO Mot. Ex. 1, ¶ 7 ("Butler Aff.") ("Incumbent DPR employees will be allowed to compete for similar positions in DC Public Schools but there is no guarantee of continued employment").

Plaintiffs contend that a failure to comply with outsourcing provisions of the Collective Bargaining Agreement (CBA),*fn3 as well as applicable provisions of D.C. law, constitute a deprivation of their due process rights.*fn4 Am. Compl. ¶ 36. The due process clause provides that "no person shall be deprived of life, liberty, or property, without due process of law." U.S. Const. amend. V. While certain property interests are protected by the Constitution, they are not created by it. Board of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972). Such interests "are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law - rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Id. at 577.

This constitutional claim depends on DPR employees having held a property interest in their continued employment. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985) (referring to Ohio civil service statute). Plaintiffs argue that many employees, including some individual plaintiffs, held such an interest partly by virtue of statutory protections set forth in the D.C. Code. Plaintiffs point in particular to D.C. Code § 2-301.05b, which sets forth various requirements applicable where the District seeks to procure goods or services from private entities.*fn5 Plaintiffs further argue that the employees' positions are protected by D.C. Code §§ 47-363, 365 (concerning reprogramming requests).*fn6 While these statutes may indirectly afford some protection to District employees, they do not prescribe procedures for dismissing tenured employees as do those statutes that have been held to create a legitimate expectation of continued employment. See, e.g. Loudermill, 470 U.S. at 539. Thus, the Court declines to rely on these statutes as the source of a constitutional property interest. Certain District employees do enjoy statutory "career service" protections, however. See D.C. Code ยง 1-608.01 (Creation of a Career Service). Although Plaintiffs do not identify this statute as the source of a property interest, they do state that some individual Plaintiffs are "permanent District employees." Pls. Opp'n. Br. at 6 ...

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