MEMORANDUM OPINION AND ORDER
TIMOTHY J. KELLY, United States District Judge.
Plaintiffs
Francel Bellinger and Iola Anyan (the “Individual
Plaintiffs”), and Plaintiffs SE-NE Friends of the
Capitol View Library and Marshall Heights Civic Association
(the “Associational Plaintiffs”), have filed the
instant action against various District of Columbia
(“District”) public officials for their alleged
failure to provide Capitol View Library, a public library
located in a predominately African-American neighborhood,
with the same renovation funding and services provided to
other public libraries in predominately white neighborhoods.
Defendants Muriel Bowser, Gregory McCarthy, and Richard
Reyes-Gavilan (the “City Defendants”) have filed
a motion to dismiss or, in the alternative, for summary
judgment. ECF No. 45 (“City Defs.' MTD”) at
1-2. The remaining Defendants, Vincent Gray, David Grosso,
and Yvette Alexander (the “Council Defendants”),
have filed a separate motion to dismiss. ECF No. 23. In
response, Plaintiffs have moved to file a proposed second
amended complaint and to conduct discovery. ECF Nos. 47, 66;
see also ECF No. 47-2 (“PSAC”). The
Court will grant Defendants' motions and dismiss the
operative complaint for failure to state a claim. It will
also deny Plaintiffs' motion to amend on the ground that
the proposed amendments are futile, deny Plaintiffs'
discovery motion as moot, and also deny Plaintiffs'
request to file an untimely opposition, ECF No. 56, as moot.
The reasons for doing so are set forth below.
L
Procedural
and Factual Background
Plaintiffs filed the instant action on November 6, 2017. ECF
No. 1. That same day, they filed a motion for preliminary
injunctive relief, ECF No. 4, which they later amended, ECF
No. 19-1. The Council Defendants filed a motion to dismiss on
November 29, 2017. ECF No. 23. On December 14, 2017, the
Court held a hearing on the amended preliminary-injunction
motion. The next day, the Court denied the motion. ECF No.
40; Bellinger v. Bowser, 288 F.Supp.3d 71 (D.D.C.
2017). On January 12, 2018, the City Defendants filed a
motion to dismiss or, in the alternative, for summary
judgment. City Defs.' MTD. On February 9, 2018,
Plaintiffs filed a motion to amend their complaint, ECF No.
47, and a motion to conduct discovery under Rule 56(d), ECF
No. 66.
The
Court discussed the factual background of this case in detail
in its previous memorandum opinion and order denying
Plaintiffs' motion for preliminary injunctive relief.
See Bellinger, 288 F.Supp.3d 71. The Court assumes
the reader's familiarity with the background set forth in
that opinion. The Court will discuss the particular factual
allegations relevant to the instant motions below, keeping in
mind that on a motion to dismiss under Rule 12(b)(6)-unlike
the previous motion for injunctive relief-the Court
“may consider only the facts alleged in the complaint,
any documents either attached to or incorporated in the
complaint and matters of which [it] may take judicial
notice.” EEOC v. St. Francis Xavier Parochial
Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).
II.
Legal Standards
A.
Rule 12(b)(1)
On a
motion to dismiss for lack of subject matter jurisdiction
under Rule 12(b)(1), “plaintiffs bear the burden of
establishing jurisdiction.” Knapp Med. Ctr. v.
Hargan, 875 F.3d 1125, 1128 (D.C. Cir. 2017). District
courts “may in appropriate cases dispose of a motion to
dismiss for lack of subject matter jurisdiction under [Rule]
12(b)(1) on the complaint standing alone.” Herbert
v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C.
Cir. 1992). In such cases courts must, as when reviewing a
Rule 12(b)(6) motion, “accept[] as true all of the
factual allegations contained in the complaint.”
KiSKA Constr. Corp. v. WMATA, 321 F.3d 1151, 1157
(D.C. Cir. 2003). The Court may also rely, “where
necessary, ” on “undisputed facts evidenced in
the record.” Id. at 1157 n.7.
B.
Rule 12(b)(6)
“A
Rule 12(b)(6) motion to dismiss tests the legal sufficiency
of a plaintiff's complaint; it does not require a court
to ‘assess the truth of what is asserted or determine
whether a plaintiff has any evidence to back up what is in
the complaint.'” Herron v. Fannie Mae, 861
F.3d 160, 173 (D.C. Cir. 2017) (quoting Browning v.
Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002)). “In
evaluating a Rule 12(b)(6) motion, the Court must construe
the complaint ‘in favor of the plaintiff, who must be
granted the benefit of all inferences that can be derived
from the facts alleged.'” Hettinga v. United
States, 677 F.3d 471, 476 (D.C. Cir. 2012) (quoting
Schuler v. United States, 617 F.2d 605, 608 (D.C.
Cir. 1979)). “But the Court need not accept inferences
drawn by plaintiff if those inferences are not supported by
the facts set out in the complaint, nor must the court accept
legal conclusions cast as factual allegations.”
Id. “To survive a motion to dismiss, a
complaint must have ‘facial plausibility,' meaning
it must ‘plead[] factual content that allows the court
to draw the reasonable inference that the defendant is liable
for the misconduct alleged.'” Id.
(alteration in original) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)).
C.
Rule 15(a)(2)
Under
Federal Rule of Civil Procedure 15(a)(2), if a party may no
longer amend his pleading as of right, then he “may
amend [his] pleading only with the opposing party's
written consent or the court's leave, ” and
“[t]he court should freely give leave when justice so
requires.” Fed.R.Civ.P. 15(a)(2). However,
“[c]ourts may deny a motion to amend a complaint as
futile . . . if the proposed claim would not survive a motion
to dismiss.” Williams v. Lew, 819 F.3d 466,
471 (D.C. Cir. 2016) (second alteration in original) (quoting
James Madison Ltd. ex rel. Hecht v. Ludwig, 82 F.3d
1085, 1099 (D.C. Cir. 1996)).
III.
Analysis
For the
reasons set forth below, Defendants' motions will be
granted, and Plaintiffs' motions will be denied.
A.
Plaintiffs' Supplemental Opposition
As an
initial matter, the Court will consider Plaintiffs'
request that it accept an untimely opposition to the City
Defendants' motion to dismiss. Plaintiffs initially filed
an opposition that largely failed to address the substantive
issues the City Defendants had raised. See ECF No.
48 (opposition); ECF No. 65-1 (“corrected”
opposition). The City Defendants argued that the Court should
treat their arguments for dismissal as conceded. ECF No. 53.
Plaintiffs then sought leave to file a new opposition
responsive to the City Defendants' arguments. ECF No. 56
(motion); ECF No. 57 (“Pls.' Supp. Opp.”).
The City Defendants oppose granting leave to file the
supplemental opposition. ECF No. 61.
The
Court will assume, for purposes of its analysis, that
Plaintiffs' supplemental opposition was timely filed, and
will consider the arguments included in it. Ultimately,
however, these arguments do not save Plaintiffs' claims,
rendering the motion for leave to file irrelevant. Therefore,
the Court need not decide the merits of Plaintiffs'
motion for leave to file a supplemental opposition, and will
deny the motion as moot.
B.
The City Defendants' Motion to Dismiss for Lack of
Subject Matter Jurisdiction under Rule 12(b)(1)
The
City Defendants have raised three challenges to the
Court's subject matter jurisdiction under Rule 12(b)(1):
that (1) the Associational Plaintiffs lack standing; (2) the
political question doctrine bars Plaintiffs' claims; and
(3) Count I of the Amended Complaint is not ripe.
See City Defs.' MTD at 13-16. The Court will
discuss each in turn.
First,
the Court concludes that it need not resolve the City
Defendants' challenge to the Associational
Plaintiffs' standing. See Id. at 13. Courts are
generally required to address jurisdictional issues (such as
standing) before reaching the merits. But that rule is
relaxed where a challenge to standing takes aim at some, but
not all, plaintiffs. “If constitutional standing
‘can be shown for at least one plaintiff, [courts] need
not consider the standing of the other plaintiffs to raise
that claim.'” Carpenters Indus. Council v.
Zinke, 854 F.3d 1, 9 (D.C. Cir. 2017) (quoting
Mountain States Legal Found. v. Glickman, 92 F.3d
1228, 1232 (D.C. Cir. 1996)). The City Defendants do not
challenge the Individual Plaintiffs' standing. And as
will be explained below, none of the Plaintiffs states a
claim, so the Court need not consider an argument that some
Plaintiffs lack standing.
Second,
the political question doctrine is inapplicable because
Plaintiffs' claims are levied against District of
Columbia-as opposed to federal-officials. The City Defendants
argue that funding appropriations are “the product of
the District's annual budget process” and are thus
an inherently political issue. See City Defs.'
MTD at 13-15. But the political question doctrine limits
federal courts' ability to decide issues committed to
other branches of the federal government: it applies
to “those controversies which revolve around policy
choices and value determinations constitutionally committed
for resolution to the halls of Congress or the
confines of the Executive Branch.” Bin Ali
Jaber v. United States, 861 F.3d 241, 245 (D.C. Cir.)
(emphases added) (quoting Japan Whaling Ass'n v. Am.
Cetacean Soc'y, 478 U.S. 221, 230 (1986)), cert.
denied, 138 S.Ct. 480 (2017). That is, “it is the
relationship between the judiciary and the coordinate
branches of the Federal Government, and not the federal
judiciary's relationship to the States, which gives rise
to the ‘political question.'” Baker v.
Carr, 369 U.S. 186, 210 (1962). The District government
is not a “coordinate branch[] of the Federal
Government.” Id. In fact, while the District
of Columbia is in a strict sense a creature of the federal
government, and is not a state, it is treated for most
purposes as “‘an independent political
entity,' not a part of the federal government.”
Amiri v. United States, 360 Fed.Appx. 166, 167 (D.C.
Cir. 2010) (quoting Cannon v. United States, 645
F.2d 1128, 1137 n.35 (D.C. Cir. 1981)). Plaintiffs bring
their claims against only District officials, not federal
officials. Thus, the City Defendants' “political
question” argument does not affect this Court's
subject matter jurisdiction.
Third,
the City Defendants argue that Count I, brought under D.C.
Code § 1-204.46, is not ripe. See City
Defs.' MTD at 15-16. The ripeness doctrine “has
both constitutional and prudential facets.” Perry
Capital LLC v. Mnuchin, 864 F.3d 591, 632 (D.C. Cir.
2017), cert. denied, 138 S.Ct. 978 (2018).
“Ripeness ‘shares the constitutional requirement
of standing that an injury in fact be certainly
impending.'” Id. (quoting Nat'l
Treasury Emps. Union v. United States, 101 F.3d 1423,
1427 (D.C. Cir. 1996)). In addition, courts “decide
whether to defer resolving a case for prudential reasons by
‘evaluat[ing] (1) the fitness of the issues for
judicial decision and (2) the hardship to the parties of
withholding court consideration.'” Id.
(alteration in original) (quoting Nat'l Park Hosp.
Ass'n v. Dep't of Interior, 538 U.S. 803, 808
(2003)). Ripeness goes to whether the Court both can and
should exercise jurisdiction. See Id. at 633 n.27.
Here,
Count I is predicated on Plaintiffs' factual allegation
that the District government did not spend $700, 000
allocated by the City Council for interim services at Capitol
View Library. See ECF No. 20 (“Am.
Compl.”) ¶¶ 32-34. The City Defendants
explain that this allocation was made for the 2018 fiscal
year, which does not end until September 30, 2018. City
Defs.' MTD at 16. Thus, at least as of the filing of the
City Defendants' motion, it was possible that the money
would be spent as allocated. And the City Defendants
represent that the District was, in fact, planning to spend
the money on interim services in the spring of 2018.
Id. Therefore, they argue, this claim is not ripe.
The
Court concludes that Plaintiffs have conceded the ripeness
issue as it pertains to Count I in their operative complaint.
While parties cannot waive arguments challenging subject
matter jurisdiction, “arguments in favor of
subject matter jurisdiction can be waived by
inattention or deliberate choice.” NetworkIP, LLC
v. FCC, 548 F.3d 116, 120 (D.C. Cir. 2008) (emphases
added). Here, Plaintiffs' supplemental opposition rests
solely on the argument that their proposed second amended
complaint cures any issues related to ripeness. They argue
that their “amendments to the complaint seek to clarify
that the complained of violations of District law are of such
a character that [they] result in a constitutional
violation.” Pls.' Supp. Opp. at 6. The arguments
that follow are devoted to the theory that the existence of a
constitutional violation eliminates any potential concern
about ripeness. See Id. at 6-7. Count I of the
proposed second amended complaint does, in fact, advance the
theory that the violations of Section 1-204.46 amount to a
due process violation. PSAC at 38. But the Amended
Complaint-which is the operative complaint unless and until
the Court accepts the proposed amendments-pleads Count I only
under Section 1-204.46, without once mentioning the
Constitution. See Am. Compl. ¶¶ 30-36.
Therefore, Count I as pleaded in the Amended Complaint will
be dismissed for lack of subject matter jurisdiction as
unripe.
C.
Defendants' Motions to Dismiss for Failure to State a
Claim under Rule 12(b)(6)
The
City Defendants have moved to dismiss or, alternatively, for
summary judgment. City Defs.' MTD. The Court concludes
that summary judgment would be inappropriate at this
juncture, because Plaintiffs have not yet had an opportunity
for discovery. See Convertino v. DOJ, 684 F.3d 93,
99 (D.C. Cir. 2012). Therefore, the City Defendants'
arguments on the merits will be examined under the standard
for a motion to dismiss under Rule 12(b)(6). The Court will
limit its review to “the facts alleged in the
complaint, any documents either attached to or incorporated
in the complaint and matters of which [the Court] may take
judicial notice.” EEOC v. St. Francis Xavier
Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).
Thus, the Court will not consider the various declarations
and other exhibits that the parties have filed in this case
(except for any incorporated in the complaint).
The
City Defendants' arguments, if correct, would warrant
dismissal as to all Defendants. See City Defs.'
MTD. The Council Defendants have also moved to dismiss on
grounds largely particular to them. See ECF No.
23-1. Because the Court concludes that the City Defendants
have identified grounds to dismiss the entire Amended
Complaint, the Court need not consider the Council
Defendants' arguments.
1.
D.C. Code § 1-204.46 (Count I)
As
explained above, Count I of the Amended Complaint will be
dismissed on ripeness grounds. But the Court notes that, even
if it had jurisdiction over Count I, it would dismiss the
claim under Rule 12(b)(6) for two reasons. First, there is no
private right of action to enforce D.C. Code § 1-204.46,
the statute that Defendants allegedly violated. Certainly,
the statute does not contain an express private right of
action. And the “burden is on the plaintiff to
demonstrate that the D.C. Council intended to imply a right
of action.” Baumann v. District of Columbia,
744 F.Supp.2d 216, 226 (D.D.C. 2010). In its prior opinion,
the Court concluded that Plaintiffs were not likely to meet
this burden. See Bellinger, 288 F.Supp.3d at 79-80.
The Court now confirms that they have not. Indeed, Plaintiffs
do not even attempt to meet this standard in their filings.
See Pls.' Supp. Opp. at 6-7.[1]
Second,
even if there were a private right of action, Plaintiffs have
not alleged any violation of the “reprogramming”
provision of Section 1-204.46(d). The operative complaint
alleges that $700, 000 was set aside for interim services in
the FY 2018 budget, and that the District has not yet used
those funds for that purpose. Am. Compl. ¶¶ 32-33.
But that is not “reprogramming” as meant in the
statute. While Section 1-204.46 does not itself define the
term “reprogramming, ” another provision of
District law does: it means “a budget modification of
$500, 000 or more for purposes other than those originally
authorized that results in an offsetting reallocation of
budget authority from one budget category to another budget
category.” D.C. Code § 47-361(14). That is,
“reprogramming” does not mean a failure to spend
funds, but a “reallocation” of funds from one
part of the budget to another. As the City Defendants point
out, there is no allegation that the $700, 000 at issue was
spent elsewhere or was otherwise improperly
“reprogrammed.” See City Defs.' MTD
at 17.
Therefore,
even if it had jurisdiction, the Court would dismiss Count I
for failure to state a claim.
2.
Equal Protection Clause (Count II)
Count
II alleges that Defendants violated the Equal Protection
Clause of the Constitution[2]by failing to provide Capitol View Library
with renovations and related services of comparable quality
and funding to those afforded public libraries serving
predominantly white neighborhoods. See Am. Compl.
¶¶ 37-45. Plaintiffs claim this failure amounted to
intentional racial discrimination: that Defendants
“knowingly and intentionally create[d] the funding
disparities in the renovation and operation” between
Capitol View Library and other branch libraries serving white
neighborhoods because the “racial makeup of the area
served by Capitol View Library” is predominantly
African-American. See Id. ¶¶ 38, 43-44.
The question before the Court is whether Plaintiffs'
factual allegations are sufficient to carry this claim past
the pleading stage.
Pursuant
to longstanding Supreme Court precedent, intentional
discrimination based on race, as opposed to a racially
disparate impact, is required to make out an equal protection
claim. That is, a plaintiff bringing an equal protection
claim based on race must ultimately prove more than that a
government policy had a greater impact on one racial group
than it did on another. “[O]fficial action will not be
held unconstitutional solely because it results in a racially
disproportionate impact. . . . Proof of racially
discriminatory intent or purpose is required to show a
violation of the Equal Protection Clause.”
Arlington Heights v. Metro. Hous. Dev. Corp., 429
U.S. 252, 264-65 (1977). Discriminatory intent “implies
more than intent as volition or intent as awareness of
consequences. It implies that the decisionmaker . . .
selected or reaffirmed a particular course of action at least
in part ‘because of,' not merely ‘in spite
of,' its adverse effects upon an identifiable
group.” Pers. Adm'r of Mass. v. Feeney,
442 U.S. 256, 279 (1979) (citation omitted).
Of
course, there often will not be direct evidence of
intentional discrimination. Common sense suggests that
government officials acting based on race may be reluctant to
admit that they are doing so. As a result, plaintiffs
bringing discrimination claims must often rely on
circumstantial evidence of intent. And such circumstantial
evidence can include the fact that a government action had a
racially disparate impact. “Determining whether
invidious discriminatory purpose was a motivating factor
demands a sensitive inquiry into such circumstantial and
direct evidence of intent as may be available.”
Arlington Heights, 429 U.S. at 266. As part of this
inquiry, the Court considers, among other things, (1) whether
the impact of the action “bears more heavily on one
race than another”; (2) the “historical
background” of the decision, particularly if it
demonstrates other actions taken for an invidious purpose;
(3) any departures from normal procedures; (4) any
“[s]ubstantive departures” from factors normally
considered in reaching a decision; and (5) the legislative or
administrative history of the decision. Id. at
266-68; Kingman Park Civic Ass'n v. Gray, 27
F.Supp.3d 171, 184 (D.D.C. 2014), aff'd on other
grounds sub nom. Kingman Park Civic Ass'n v. Bowser,
815 F.3d 36 (D.C. Cir. 2016).
On its
own, however, evidence of disparate impact will seldom
support an inference of intentional discrimination.
“Sometimes a clear pattern, unexplainable on grounds
other than race, emerges from the effect of [a] state action,
” but the Supreme Court has held that “such cases
are rare.” Arlington Heights, 429 U.S. at 266.
The Supreme Court has identified Gomillion v.
Lightfoot, 364 U.S. 339 (1960), and Yick Wo v.
Hopkins, 118 U.S. 356 (1886), as archetypal examples of
clear patterns demonstrating invidious discrimination.
See Arlington Heights, 429 U.S. at 266. In
Gomillion, “a local statute altered the shape
of a city from a square to a 28-sided figure, which had the
effect of removing from the city all but four of its 400
African American voters, and not a single white voter.”
In re Navy Chaplaincy, 928 F.Supp.2d 26, 34
(D.D.C.), aff'd, 738 F.3d 425 (D.C. Cir. 2013).
And in Yick Wo, “a city board of supervisors
denied building ordinance waivers to over 200 Chinese
applicants, but granted waivers to all but one non-Chinese
applicant.” Id. “Absent a pattern as
stark as that in Gomillion or Yick Wo,
impact alone is not determinative . . . .”
Arlington Heights, 429 U.S. at 266.
In this
case, Plaintiffs assert a circumstantial case of intentional
discrimination. They have not yet had the benefit of
discovery that might allow them to flesh out their
circumstantial case. Nonetheless, Plaintiffs are not entitled
to discovery as of right. In order to proceed to discovery,
Plaintiffs must allege facts that could plausibly support an
inference of intentional discrimination.
The
Supreme Court famously provided guidance on how to evaluate a
claim of intentional discrimination at the pleading stage in
Ashcroft v. Iqbal, 556 U.S. 662 (2009). The Court
began by elucidating the general principles for determining
whether plaintiffs have adequately stated a claim. It
explained that “a sheer possibility that a defendant
has acted unlawfully” is not enough. Id. at
678. The court must be able to infer from the concrete facts
in the complaint that it is not merely possible, but
“plausible” that the defendant is liable.
Id. at 679. Of course, plausibility is not
probability. The court's role is not to evaluate the
truth of the plaintiff's factual allegations or to
determine which party is likely to prevail. See Id.
at 678. Rather, the court must accept the plaintiff's
“well-pleaded facts” as true, while setting aside
“legal conclusions.” Id. at 678-79. The
court's role is to determine, based on “its
judicial experience and common sense, ” whether the
concrete facts alleged can support a “reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. That is, there must be facts
that “nudge[]” the plaintiff's claim
“across the line from conceivable to plausible.”
Id. at 680 (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).
The
Iqbal Court applied these principles to the
government's detention of Muslims after the terrorist
attacks of September 11, 2001. The plaintiff alleged that
“Arab Muslim men” had been singled out for
lengthy and harsh detention on immigration charges based on
their race, religion, and national origin. Id. at
667-69, 682. The Court concluded that the plaintiff had not
plausibly alleged that these individuals were arrested or
held based on their race or religion, because there was an
“obvious alternative explanation”: that the
arrests and subsequent detention were part of a legitimate
investigation into the attacks. Id. at 682 (quoting
Twombly, 550 U.S. at 567). The attacks had been
perpetrated by “Arab Muslim hijackers” belonging
to an “Islamic fundamentalist group.”
Id. Thus, it was “no surprise” that a
lawful investigation into individuals with “suspected
links to the attacks would produce a disparate, incidental
impact on Arab Muslims.” Id. Plaintiffs had
not alleged any facts that, in the face of this obvious and
legitimate explanation, plausibly suggested
“purposeful, invidious discrimination.”
Id.
Smith
v. Henderson, 982 F.Supp.2d 32 (D.D.C. 2013), offers a
helpful counterpoint. That case concerned the closure of 15
District of Columbia public schools, all of them in
“majority-minority neighborhoods east of Rock Creek
Park, ” a part of the District where “residents
are generally poorer and overwhelmingly black and
Hispanic.” Id. at 39. The government's
stated reason for closing the schools was that they were
“underenrolled, ” mostly operating at less than
50% (and in some cases 25%) capacity. Id.
Significantly, no schools in majority-white parts of the city
were closed. See Id. The plaintiffs also pointed to
the historical fact that, in the 1970s, underenrolled white
schools were allowed to stay open and be
“rehabilitated” “by busing in students from
schools east of the Park.” Id. at 40. The
Court determined that these allegations, while admittedly
“slender, ” could nonetheless support a claim of
intentional racial discrimination at the motion-to-dismiss
stage. Id. at 50. And they could ultimately ...