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Bellinger v. Bowser

United States District Court, District of Columbia

September 30, 2018

FRANCEL BELLINGER et al., Plaintiffs,
v.
MURIEL BOWSER et al., Defendants.

          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 ...


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