MEMORANDUM OPINION
ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE
Following
an earlier opinion in this matter that granted, in part, a
temporary restraining order and preliminary injunction sought
by Washington Metropolitan Area Transit Authority to
forestall the arbitration of four grievances filed by Local
689, Amalgamated Transit Union, see Washington Metro.
Area Transit Auth. v. Local 689, Amalgamated Transit
Union, 313 F.Supp.3d 207, 208-11 (D.D.C. 2018), the
Union moved to dismiss the case as moot. WMATA opposes
dismissal and argues that the case is not moot because it
seeks a permanent injunction to prevent future arbitration
demands concerning the same issues. The Court will grant in
part and deny in part the motion to dismiss.
I.
FACTS
This
case has some history.[1] Represented by the NAACP Legal Defense and
Educational Fund, Arnold & Porter LLP, and the Washington
Lawyers' Committee for Civil Rights, a class of WMATA
applicants and employees brought a lawsuit in 2014 to
challenge a criminal background check policy adopted by WMATA
in 2012 (2012 Policy). See Little v. Washington Metro.
Area Transit Auth., Civil Action No. 14-1289 (D.D.C.).
The 2012 Policy required all candidates for employment with
WMATA to pass a criminal background check, which the
Little plaintiffs alleged had a disparate impact on
African-American applicants.
Then,
in 2015, Local 689 jumped in and sought to arbitrate two 2014
grievances concerning the 2012 Policy on the same theory as
the Little case, i.e., that the 2012 Policy had a
disparate impact on African Americans. In July 2015, this
Court permanently enjoined arbitration of both 2014
Grievances; its opinion was affirmed on appeal. See
Washington Metro. Area Transit Auth. v. Local 689,
Amalgamated Transit Union, 113 F.Supp.3d 121 (D.D.C.
2015), aff'd 638 Fed. App'x 3 (D.C. Cir.
2016). Local 689 then attempted to open a 2016 Grievance
about the same allegedly discriminatory effect of the 2012
Policy and WMATA again sought an injunction. When, in 2016,
the parties appeared for oral argument on the arbitrability
of the 2016 Grievance, they instead entered into a written
agreement to postpone consideration of that grievance until
the Little litigation concluded. See Ex. 5,
Compl., 2016 Agreement [Dkt. 1-5] at 2-3. Since then, the
Little case settled and an appeal of this
Court's approval of the class action settlement agreement
has been dismissed by the D.C. Circuit. See Little v.
Washington Metro. Area Transit Auth., Case No. 18-7071,
Per Curium Order (D.C. Cir. Sept. 11, 2018). The mandate in
Little issued on October 23, 2018. See Little v.
Washington Metro. Area Transit Auth., Civil Action No.
14-1289, Mandate [Dkt. 260] (D.D.C.).
In the
meantime, in conjunction with the Little Settlement,
WMATA adopted a new policy on criminal background checks in
2017 (2017 Policy) that affords an applicant a second-
individual-review of his or her criminal history and whether
it should be disqualifying for a position with WMATA. The
Union brought a Question Grievance concerning the 2017 Policy
and WMATA responded with this lawsuit, filed on June 8, 2018.
Appearing before the Court, Local 689 initially argued that
WMATA was required to negotiate with the Union before
adopting the 2017 Policy; it then conceded that WMATA is
bound by the Court's order approving the Little
Settlement to keep the 2017 Policy in effect for at least a
year. The Union changed its position at the hearing and
demanded that WMATA engage in effects-bargaining over the
2017 Policy, i.e., bargaining as to how the 2017 Policy might
affect current employees in the bargaining unit represented
by the Union. As modified, the 2017 Grievance was the only
grievance the Union sought to arbitrate at that time. The
Court granted WMATA's motion to bar arbitration of the
2014 Grievances under res judicata, granted
WMATA's motion to bar arbitration of the 2016 Grievance
because Little had not concluded, and denied
WMATA's motion for a preliminary injunction as to the
2017 Grievance in its modified form. See Washington
Metro. Area Transit Auth. v. Local 689, 313 F.Supp.3d at
213. In their briefs, the parties indicate that arbitration
on the modified 2017 Grievance was scheduled for August 6,
2018.
The
original June 2018 Complaint in this matter sought to enjoin
the August 2018 arbitration concerning the 2017 Policy and
any future arbitrations in which employee grievants seek to
make disparate impact claims based on WMATA's 2012 or
2017 Policies on criminal background checks and procedures.
WMATA also sought a declaratory judgment that the claims
asserted by Local 689 in the 2016 and 2017 Grievances are not
arbitrable. Compl. [Dkt. 1] at 41-42. Local 689 moves to
dismiss the Complaint for mootness and WMATA opposes.
See Defs.' Mot. to Dismiss (Mot.) [Dkt. 13];
Local 689's Mem. in Supp. of Mot. to Dismiss (Mem.) [Dkt.
13-1]; Opp'n of Pl. WMATA to Def.'s Rule 12(b)(6)
Mot. to Dismiss Compl. (Opp'n) [Dkt. 16].[2]
II.
LEGAL STANDARDS
Federal
Rule of Civil Procedure 12(b)(6) requires a complaint to be
sufficient “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)
(internal citations omitted). Although a complaint does not
need to include detailed factual allegations, a
plaintiff's obligation to provide the grounds of his
entitlement to relief “requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Id. The facts
alleged “must be enough to raise a right to relief
above the speculative level.” Id. A complaint
must contain sufficient factual matter to state a claim for
relief that is “plausible on its face.”
Id. at 570. When a plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged, then the
claim has facial plausibility. See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). “The plausibility
standard is not akin to a probability requirement, but it
asks for more than a sheer possibility that a defendant has
acted unlawfully.” Id. A court must treat the
complaint's factual allegations as true, “even if
doubtful in fact.” Twombly, 550 U.S. at 555.
But a court need not accept as true legal conclusions set
forth in a complaint. Iqbal, 556 U.S. at 678.
In
deciding a motion under Rule 12(b)(6), a court may consider
the facts alleged in the complaint, documents attached to the
complaint as exhibits or incorporated by reference, and
matters about which the court may take judicial notice.
Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052,
1059 (D.C. Cir. 2007). Generally, when a court relies upon
matters outside the pleadings, a motion to dismiss must be
treated as one for summary judgment and disposed of pursuant
to Rule 56. See Fed.R.Civ.P. 12(d). “However,
where 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 one for summary judgment.”
Nat'l Shopmen Pension Fund v. Disa, 583
F.Supp.2d 95, 99 (D.D.C. 2008).
III.
ANALYSIS
Local
689 argues that the Complaint fails to state a cause of
action because its issue is mooted by the arbitration which
was scheduled to occur on August 6, 2018. WMATA responds that
its Complaint sought more than a temporary restraining order
and preliminary injunction to avoid the August arbitration
hearing; it also sought a permanent injunction and
declaratory judgment to prevent the Union from repeated and
continued attempts to arbitrate the same types of grievances.
“The
mootness doctrine . . . limits federal courts to deciding
actual, ongoing controversies.” Clarke v. United
States, 915 F.2d 699, 700-01 (D.C. Cir. 1990) (en banc)
(internal quotation marks omitted). “[A] case is moot
when the issues presented are no longer ‘live' or
the parties lack a legally cognizable interest in the
outcome.” Powell v. McCormack, 395 U.S. 486,
496 (1969). A case also becomes moot “[e]ven where
litigation poses a live controversy when filed . . . if
events have so transpired that the decision will neither
presently affect the parties' rights nor have a
more-than-speculative chance of affecting them in the
future.” Clarke, 915 F.2d at 701 (internal
quotation marks omitted).
Local
689 contends that the Court's order that allowed it to
proceed to arbitration on effects-bargaining, an issue the
Union identified at the hearing, has mooted the entire case
because the controversy is no longer ongoing. See
Mem. at 4. The contention is partially accurate, but
critically incomplete. To recall, in 2015, the Court
permanently enjoined the 2014 grievances regarding the 2012
Policy; therefore, any claims related to the 2014 grievances
are mooted and will be dismissed. Because the Court did not
enjoin arbitration on the effects of 2017 Policy on
WMATA's current employees and that arbitration was
scheduled for August, this issue is presumably moot. Claims
related to 2017 Grievance about the effects of the 2017
Policy on current WMATA employees will also be dismissed.
However, the Court granted a preliminary injunction to
prevent arbitration of the 2016 Grievance and the 2017
Grievance, except as the 2017 Grievance relates to effects,
if any, on current employees. WMATA correctly states that a
preliminary injunction is not a final decision on the merits.
See Opp'n at 5 (citing Univ. of Texas v.
Camenisch,451 U.S. 390, 394-95 (1981)). WMATA's
...