United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 2, 2007 Decided February 27, 2007
No. 05-7099
DECATUR LIQUORS, INC., AND
CHEKOLE TESHOME,
APPELLEES/CROSS-APPELLANTS
V.
DISTRICT OF COLUMBIA AND
ALCOHOLIC BEVERAGE REGULATION ADMINISTRATION,
APPELLANTS/CROSS-APPELLEES
Consolidated with
05-7100
Appeal from the United States District Court
for the District of Columbia
(No. 04cv01971)
Donna M. Murasky, Senior Assistant Attorney General,
Office of the Attorney General for the District of Columbia,
argued the cause for appellants/cross-appellees. With her on
the briefs were Todd S. Kim, Solicitor General, and Edward E.
Schwab, Deputy Solicitor General.
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Paul R. Q. Wolfson was on the brief for amici curiae
South Columbia Heights Neighborhood Association and
North Columbia Heights Neighborhood Association. With
him on the brief was David F. Olsky.
Craig C. Reilly argued the cause for appellees/cross-
appellants. With him on the briefs were Paul Pascal and
Hanoi Veras.
Scott M. Hammack argued the cause for amicus curiae
American Civil Liberties Union of the National Capital Area
in support of appellees/cross-appellants. With him on the
brief were Arthur B. Spitzer, Jonathan D. Hacker, and Jason
A. Abel.
Before: GINSBURG, Chief Judge, and GRIFFITH, Circuit
Judge, and WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
WILLIAMS, Senior Circuit Judge: When the District of
Columbia Council was considering revisions to the District’s
alcoholic beverage laws, then-Council Member (now Mayor)
Adrian Fenty, who represented Ward 4, proposed a ward-wide
four-year moratorium on the sale of single containers of
beer—specifically, a rule barring retailers from breaking
manufacturers’ packages of multiple containers of beer and
selling a single container of 70 ounces or less. The underlying
idea was that such sales were especially likely to lead to
public drunkenness and other antisocial behavior.
On the first reading, April 20, 2004, the Council
considered and rejected the proposed amendment. At the
“second reading,” on May 18, Member Fenty proposed a more
“targeted” version of the moratorium, banning singles sales in
what one might call a gerrymandered zone within Ward 4—a
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zone that in fact encompassed all existing Ward 4 Class A and
Class B liquor licensees. Singles sales would remain
permissible outside the moratorium zone, and licensees could
transfer their licenses to areas outside the zone.
At the May 18 hearing a Council member objected that
Fenty’s revision constituted a substantial change in his earlier
amendment, so that immediate passage would run afoul of the
Home Rule Act’s requirement that “[e]ach proposed act . . .
shall be read twice in substantially the same form, with at
least 13 days intervening between each reading.” See D.C.
Code § 1-204.12(a). The Council chair overruled the
objection, and the Council approved the revised amendment
by a vote of 11-2. The Council passed the entire bill on May
19 and, after considering and approving further amendments,
did so again on June 1. Following expiration of the
Congressional review period, the Omnibus Alcoholic
Beverage Amendment Act of 2004, D.C. Law 15-187, 51
D.C. Reg. 6525-55 (July 2, 2004), including the targeted
Ward 4 moratorium, codified as amended at D.C. Code § 25-
341 (2004), went into effect.
Plaintiffs, who hold liquor licenses in Ward 4, sued in
district court claiming that the ban violated the Home Rule
Act’s “two readings” requirement, plus several provisions of
the federal Constitution. The district court granted plaintiffs’
motion for a temporary restraining order on the day they filed
suit, November 12, 2004, and issued a preliminary injunction
on December 22. On June 16, 2005, the district court granted
plaintiffs’ motion for summary judgment with respect to the
alleged violation of the Home Rule Act; in light of that ruling
it dismissed the federal claims as moot.
A federal court has jurisdiction over substantial federal
claims, together with local law claims that are part of a
common nucleus of operative fact. But a federal court lacks
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jurisdiction altogether if the federal claims are insubstantial.
Finding that to be the case here, we vacate the district court’s
judgment and order the district court to dismiss the local law
claim without prejudice.
* * *
The defendants did not argue to the district court that
plaintiffs’ federal claims were insubstantial. They do raise
that argument here, however, and as the question is essential
for our and the district court’s subject-matter jurisdiction,
there is no waiver; indeed, we would have to address it on our
own motion if they had failed to do so. Citizens for the
Abatement of Aircraft Noise, Inc. v. Metropolitan Washington
Airports Authority, 917 F.2d 48, 53 (D.C. Cir. 1990), aff’d,
501 U.S. 252 (1991).
When federal and local claims all derive from a common
nucleus of operative fact, the claims constitute a single case or
controversy within the constitutional and statutory jurisdiction
of the federal courts. See Exxon Mobil Corp. v. Allapattah
Services, Inc., 545 U.S. 546, 552–53 (2005); United Mine
Workers v. Gibbs, 383 U.S. 715, 725 (1966); 28 U.S.C.
§ 1367. Laws passed by Congress that are applicable
exclusively to the District of Columbia are not federal law for
jurisdictional purposes, see 28 U.S.C. §§ 1331, 1366, so any
claims based on such laws are necessarily local. Although the
Home Rule Act contained elements of federal law, see
Thomas v. Barry, 729 F.2d 1469 (D.C. Cir. 1984), neither
party suggests that the two readings requirement is anything
other than local law. Thus the district court could not have
entertained plaintiffs’ claim under the Home Rule Act unless
the court had supplemental jurisdiction over the claim.
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A necessary condition for the exercise of supplemental
jurisdiction is the substantiality of the federal claims. Gibbs,
383 U.S. at 725. If the federal claims are “obviously
frivolous” or “so attenuated and unsubstantial as to be
absolutely devoid of merit,” Hagans v. Lavine, 415 U.S. 528,
536–37 (1974) (internal quotation marks and citations
omitted), a federal court lacks subject-matter jurisdiction over
those claims and, consequently, any local law claims. So it is
here.
At oral argument we asked plaintiffs’ counsel what they
viewed as their most substantial claim, and he pointed to the
argument that the District violated the Fifth Amendment’s
Due Process Clause by denying the affected licensees
individualized notice and an opportunity to be heard. The
Supreme Court’s decision in Bi-Metallic Investment Co. v.
State Board of Equalization, 239 U.S. 441 (1915), clearly
forecloses the argument. “Where a rule of conduct applies to
more than a few people it is impracticable that every one
should have a direct voice in its adoption. The Constitution
does not require all public acts to be done in town meeting or
an assembly of the whole.” Id. at 445. Here, the moratorium
zone covered all 73 liquor stores in Ward 4. This is the
classic Bi-Metallic scenario—the statute prohibits the same
conduct by all 73 licensees. Not only would individualized
hearings be impractical, they would be unnecessary, as the
only disputable issue would be the link between the forbidden
sales and the District’s legislative goal. Although there might
be situations where the Due Process Clause entitled a party to
a hearing on whether the relevant legislative purposes called
for inclusion of the party’s property within a special
geographic zone, see, e.g., Chicago, Milwaukee, St. Paul &
Pacific Railraod Co. v. Risty, 276 U.S. 567, 574–75 (1928),
this is not such a case; the purpose of the moratorium zone
was clear, and there is no dispute that encompassing all Ward
4 licensees matched the legislative goal.
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Plaintiffs also allege a violation of the substantive
component of the Fifth Amendment’s Due Process Clause.
We have recently held that “substantive due process
constrains only egregious government misconduct.” George
Washington University v. District of Columbia, 318 F.3d 203,
209 (D.C. Cir. 2003). An effort to stem public drunkenness
by regulating the sale of alcohol doesn’t remotely qualify.
Next is plaintiffs’ theory that the moratorium violates the
equal protection component of the Fifth Amendment’s Due
Process Clause because the moratorium covers only Ward 4
liquor stores—and none elsewhere in the District. See Bolling
v. Sharpe, 347 U.S. 497, 499 (1954). But it is inherent in the
nature of regulation that some people and businesses will be
treated differently from others. As plaintiffs acknowledge,
geographic classifications need be supported only by a
rational basis, as such classifications are not inherently
suspect and don’t implicate a fundamental right. See City of
Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439–
40 (1974). Council Member Fenty identified reasons why
public drunkenness and other concerns were particularly acute
in Ward 4, and, again, there can be no doubt that a link exists
between the sale of alcohol and public drunkenness. Thus,
plaintiffs’ equal protection claim is insubstantial.
Fourth, plaintiffs allege that the moratorium effects an
unconstitutional taking under the Fifth Amendment. But in
Mugler v. Kansas, 123 U.S. 623 (1887), the Supreme Court
rejected a taking claim by a brewery owner whose brewery
lost 75% of its value as a result of a state ban on the making of
intoxicating liquors other than “for medical, scientific, and
mechanical purposes.” Id. at 633, 655, 657. The evolution of
takings law since 1887 has offered nothing to help plaintiffs.
Compare Keystone Bituminous Coal Ass’n v. DeBenedictis,
480 U.S. 470, 495 (1987) (limiting takings claims on
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preenforcement review to ones where the statute deprives
plaintiffs of all “economically viable use” of their property).
Finally, plaintiffs assert that the statute is void for
vagueness. Outside of the First Amendment context, a
plaintiff must show that the law in question “is impermissibly
vague in all of its applications.” Village of Hoffman Estates v.
Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494–95 (1982).
Even assuming that the moratorium language may be vague in
some applications, plaintiffs’ claim plainly fails this stringent
test.
In light of the insubstantiality of plaintiffs’ federal claims,
we conclude that the district court lacked federal-question
jurisdiction over those claims and thus supplemental
jurisdiction over the Home Rule Act claim. Therefore, we
reverse the judgment of the court and remand with
instructions to dismiss plaintiffs’ local law claim without
prejudice.
So ordered.