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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided April 11, 2003
No. 02-7127
MELVIN YATES,
APPELLANT
v.
DISTRICT OF COLUMBIA, ET AL.,
APPELLEES
–————
Appeal from the United States District Court
for the District of Columbia
(00cv0208)
–————
On Motion for Summary Affirmance and
Motion for Summary Reversal
–————
Karl W. Carter, Jr. was on the motion for summary rever-
sal for appellant.
Arabella W. Teal, Interim Corporation Counsel, Charles L.
Reischel, Deputy Corporation Counsel, and James C. McKay,
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Jr., Senior Assistant Corporation Counsel, were on the mo-
tion for summary affirmance for appellees.
Before: RANDOLPH, TATEL, and GARLAND, Circuit Judges.
Opinion for the Court filed PER CURIAM.
PER CURIAM: This case is here on cross-motions for sum-
mary disposition. Melvin Yates brought this appeal pursuant
to 28 U.S.C. § 636(c)(3) from an order of a magistrate judge
dismissing his complaint against the District of Columbia, and
others. See Yates v. District of Columbia, 224 F. Supp. 2d 68
(D.D.C. 2002). The complaint alleged that Yates had been
employed as a guidance counselor in a public school, that his
performance was not properly rated, and that he was wrongly
terminated for incompetence. His termination, Yates
claimed, ‘‘violated his constitutional rights to due process and
was a taking of property without due process of law.’’ The
complaint invoked 42 U.S.C. § 1983, which, together with its
jurisdictional implementation (28 U.S.C. § 1343), treats the
District of Columbia as a State and gives the district courts
jurisdiction over civil actions to ‘‘redress the deprivation,
under color of any State law, TTT of any right, privilege or
immunity secured by the Constitution of the United
StatesTTTT’’ See Best v. Kelly, 39 F.3d 328, 330 (D.C. Cir.
1994).
The case presents a few procedural tangles. Although the
parties do not complain, the magistrate judge did not set
forth the judgment on a separate document as Federal Rule
of Civil Procedure 58 requires. Recent amendments to the
Federal Rules of Appellate Procedure, not in effect when this
appeal was taken, make clear that such a violation of Rule 58
will not affect the validity of an appeal from that judgment or
order. FED. R. APP. P. 4(a)(7)(B). This is essentially the
result the Supreme Court reached in Bankers Trust Co. v.
Mallis, 435 U.S. 381 (1978) (per curiam), for non-conforming
judgments, when–as here–the appellee does not object. See
Diamond v. McKenzie, 770 F.2d 225 (D.C. Cir. 1985) (per
curiam). We therefore have appellate jurisdiction. The next
problem arises from the magistrate judge’s ordering the
action dismissed with prejudice for lack of subject matter
3
jurisdiction, on the grounds that Yates had no property right
in continued employment and suffered no deprivation of
property without due process. 224 F. Supp. 2d at 70–71.
Despite the magistrate judge’s description, her ruling did not
rest on lack of jurisdiction. It was a decision on the merits.
Bell v. Hood, 327 U.S. 678 (1946), established that even
meritless claims are to be dismissed on the merits rather than
for lack of jurisdiction. There is yet another problem. The
defendants had moved to dismiss for failure to state a claim,
pursuant to Rule 12(b), FED. R. CIV. P. (or in the alternative,
for summary judgment). But Rule 12(b) was inapplicable:
the defendants had already answered the complaint. The
motion therefore should have been for judgment on the
pleadings under Rule 12(c). A further problem arose when
the parties submitted, and the magistrate judge considered,
matters outside the pleadings. This had the effect of convert-
ing the Rule 12 motion, whether it was under Rule 12(b)(6) or
Rule 12(c), into a motion for summary judgment. The result-
ing order therefore must be treated as a grant of summary
judgment under Rule 56, although the magistrate judge treat-
ed the motion for summary judgment as moot, 224 F. Supp.
2d at 72. See Mazaleski v. Treusdell, 562 F.2d 701, 708 (D.C.
Cir. 1977).
This brings us to the merits of the appeal. Yates maintains
that he had a property interest in continued employment
arising from the school board’s evaluation procedures. See
Bd. of Regents v. Roth, 408 U.S. 564, 576–79 (1972); Wash-
ington Teachers’ Union v. Bd. of Educ., 109 F.3d 774, 779–80
(D.C. Cir. 1997). But even if he did, he suffered no depriva-
tion of substantive due process. ‘‘[O]nly the most egregious
official conduct’’ rises to the level of a substantive due process
violation. County of Sacramento v. Lewis, 523 U.S. 833, 846
(1998); see City of Cuyahoga Falls v. Buckeye Community
Hope Found., No. 01–1269, 2003 WL 1477301, at *7 (U.S.
Mar. 25, 2003); Tri County Indus., Inc. v. District of Colum-
bia, 104 F.3d 455, 459 (D.C. Cir. 1997); Silverman v. Barry,
845 F.2d 1072, 1080 (D.C. Cir. 1988). Yates claims the school
board acted irrationally and arbitrarily in evaluating his job
performance, in disciplinary actions against him, and in termi-
4
nating his employment. But the record is to the contrary.
All that appears is a ‘‘rational connection’’ between the school
board’s actions and its legitimate interest in providing stu-
dents a competent educational staff. Harrah Indep. Sch.
Dist. v. Martin, 440 U.S. 194, 198–99 (1979); see Comm. of
U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929,
943–44 (D.C. Cir. 1988). We see nothing in the record that
amounts to abusive executive action of constitutional propor-
tions. See County of Sacramento, 523 U.S. at 847 n.8. Yates
pursued his claim through several steps of the grievance
procedure but when a hearing was scheduled, he did not show
up. The hearing went forward, his union presumably repre-
sented him nonetheless and lost. Yates reached the end of
the administrative line, although he was absent from the final
step. Our decision rejecting Yates’ substantive due process
claim will therefore be on the merits, compare Tri County,
104 F.3d at 460, as in actuality was the magistrate judge’s
decision.
In opposing summary disposition Yates may also have been
thinking that he suffered a lack of procedural due process.
But the collective bargaining agreement between the Board
of Education and the Washington teachers’ union contained
grievance procedures incorporating the basic elements of
constitutional due process: notice and the opportunity to be
heard. See Mathews v. Eldridge, 424 U.S. 319 (1976). Yates
simply failed to take advantage of all the process due him.
Furthermore, the complaint contains no allegation that the
grievance procedures were inadequate and Yates did not raise
such a claim before the magistrate judge. See Marymount
Hosp., Inc. v. Shalala, 19 F.3d 658, 663 (D.C. Cir. 1994).
We therefore affirm on the ground that there were no
genuine issues of material fact and that the defendants were
entitled to judgment as a matter of law. See Jenkins v.
Washington Convention Ctr., 236 F.3d 6, 8 n.3 (D.C. Cir.
2001).