Appeal from the Superior Court of the District of Columbia (CAB 1185-09) (Hon. Jeanette Clark, Trial Judge).
The opinion of the court was delivered by: Oberly, Associate Judge
Before KRAMER and OBERLY, Associate Judges, and BELSON, Senior Judge.
Opinion for the court by Associate Judge OBERLY.
Concurring statement by Senior Judge BELSON at page 14.
Local 36, International Association of Firefighters, AFL-CIO is a union that represents uniformed personnel of the District of Columbia Fire & Emergency Medical Services Department ("FEMS") through the rank of Captain. Dennis Rubin, the Chief of FEMS, has announced that all uniformed FEMS employees will be subject to criminal background checks. The Union sued Rubin and the District of Columbia in Superior Court, seeking an injunction preventing Rubin from implementing the background check policy and a declaration that the policy violates District and federal law. The Superior Court held a hearing to consider the Union's request for an injunction, consolidated that hearing with a trial on the merits, and entered judgment for Rubin and the District.
On the Union's appeal, we do not reach the merits, but conclude that the trial court erred by granting judgment to appellees because the case is not ripe for judicial review. Although the parties have not addressed the ripeness issue in their briefs, the lack of ripeness is plain on the record before us. The Union's complaint, the transcript of the hearing on the motion-for-a-preliminary-injunction-turned-trial, and the parties' briefs all make clear that the challenged policy has not been implemented. Moreover, the parties have not sought to supplement the briefs or the record to show that facts have changed since briefing was complete. We decline to issue an advisory opinion on the validity of a policy that, so far as the record reveals, has never been put into effect. Accordingly, we vacate the judgment of the Superior Court and remand the case with instructions to dismiss the Union's complaint.
This case involves two statutes, one passed by Congress and the other by the D.C. Council. The congressional statute is the National Child Protection Act of 1993, Pub. L. No. 103-209, 107 Stat. 2490 (1993), codified, as amended, at 42 U.S.C. § 5119 et seq. The local statute is the Criminal Background Checks for the Protection of Children Act of 2004, D.C. Code § 4-1501.01 (2008).
For our purposes, the key provisions of the national act read as follows. Section 5119a (a)(1) authorizes States to "have in effect procedures . . . that require qualified entities designated by the State to contact an authorized agency of the State to request a nationwide background check for the purpose of determining whether a provider has been convicted of a crime that bears upon the provider's fitness to have responsibility for the safety and well-being of children, the elderly, or individuals with disabilities." A "provider" is:
(i) is employed by or volunteers with a qualified entity (including an individual who is employed by a school in any capacity, including as a child care provider, a teacher, or another member of school personnel);
(ii) who owns or operates a qualified entity; or
(iii) who has or may have unsupervised access to a child to whom the qualified entity ...