United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 15, 2008 Decided April 4, 2008
No. 07-7072
CHRISTOPHER GRIFFITH ET AL.,
APPELLANTS
v.
CATHY L. LANIER,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 06cv01223)
Matthew A. LeFande argued the cause and filed the briefs
for appellants.
Holly M. Johnson, Assistant Attorney General, Office of
the Attorney General for the District of Columbia, argued the
cause for appellee. With her on the brief were Linda J.
Singer, Attorney General, Todd S. Kim, Solicitor General, and
Edward E. Schwab, Deputy Attorney General.
Before: HENDERSON and ROGERS, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
2
Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
WILLIAMS, Senior Circuit Judge: Christopher Griffith
and Daniel K. Kim are members of the District of Columbia’s
Metropolitan Police Department Reserve Corps, a corps of
unpaid volunteers who assist full-time officers of the
Metropolitan Police Department (“MPD”) in the provision of
law enforcement services. See D.C. Code § 5-129.51 (Supp.
2007). Griffith and Kim brought suit in the district court to
enjoin the enforcement of the MPD’s General Order 101.03,
issued in 2006 by then-Chief of Police Charles Ramsey,
which brought the Reserve Corps into conformity with certain
regulations issued under the Volunteer Services Act (“VSA”)
of 1977, D.C. Code § 1-319.02 (2001). See D.C. Mun. Regs.
tit. 6, § 4000.1-.26. Among other claims, the plaintiffs
challenged the General Order’s limitation of their “right to
organize for collective bargaining purposes” as a facial
violation of the First Amendment. They also protested the
order’s provision for at-will dismissal as depriving them,
without due process, of a statutorily-conferred property
interest in continued volunteer service.
Ramsey filed a motion to dismiss on all counts. The
district court granted this motion after Ramsey had left office,
substituting as defendant the new police chief, Cathy L.
Lanier. Griffith v. Lanier, No. 06-01223, slip op. at 1 & n.1
(D.D.C. Mar. 28, 2007). The plaintiffs now appeal the
substitution of Lanier as well as the dismissal of their First
Amendment and due process claims. For the reasons discussed
below, we affirm the judgment of the district court. (We need
not address the plaintiffs’ request for class-action certification.)
3
* * *
First, a word on the parties. The complaint names
Ramsey as the sole defendant, “acting in his official capacity
as the MPD Chief of Police.” Compl. 2. Such language “is
best understood as a reference to the capacity in which the
state officer is sued, not the capacity in which the officer
inflicts the alleged injury.” Hafer v. Melo, 502 U.S. 21, 26
(1991). Moreover, the plaintiffs seek injunctive relief as well
as money damages, Compl. 11-12; the former is obviously
available only from a currently serving official defendant.
Thus, the district court correctly construed the complaint as
naming Ramsey in his official capacity. It follows that
Lanier’s taking office triggered application of Fed. R. Civ. P.
25(d), which “automatically” substitutes the successor of a
public officer named in his “official capacity.” Accord Fed.
R. App. P. 43(c)(2).
In a motion for reconsideration, the plaintiffs asked the
district court to withdraw the substitution and to add Lanier as
a separate official defendant, apparently wishing to proceed
against Ramsey in his personal capacity (presumably for
money damages only). The court denied the motion without
comment. On appeal, the plaintiffs repeat their objections to
the substitution, but do not explicitly request that Lanier be
added as a separate defendant. See Griffith Br. 53 (stating
that the plaintiffs “presently offer no allegation of misconduct”
against Lanier). Since the district court’s reading of the
complaint was correct and the plaintiffs’ wishes concerning
Lanier are unclear, we affirm the district court on this issue.
We note that in the end nothing actually turns on the question
(for we affirm the judgment in full on the merits), and also
that, had the plaintiffs sought leave to amend their complaint
to name Ramsey in his personal capacity, such leave would
have been freely given if “justice so require[d].” Fed. R. Civ.
P. 15(a)(2).
4
* * *
The plaintiffs’ First Amendment claim concerns a
declaration in the General Order that Reserve Corps members,
as volunteers, “shall not be eligible for any benefits normally
accruing to employees of the District of Columbia, including
health insurance, retirement, life insurance, leave, or the right
to organize for collective bargaining purposes, unless such
benefits are specifically provided by the laws of the District of
Columbia.” MPD General Order 101.03 § IV.C.5 (emphasis
added). The plaintiffs read this provision as a prior restraint
of their First Amendment freedoms to speak and associate on
matters related to collective bargaining.
The plaintiffs clearly have standing to raise their facial
challenge, as the General Order would, on their reading, tend
to discourage their expression of opinions on collective
bargaining. Moreover, we assume arguendo that they have a
sufficient interest in their volunteer positions to be protected
against speech-related dismissal under such cases as Pickering
v. Board of Education, 391 U.S. 563 (1968), as did the district
court.
But while the plaintiffs’ reading of the General Order
may be a possible one, it is not the most likely reading. Even
“[a] limiting construction that is ‘fairly’ possible can save a
regulation from facial invalidation,” Initiative & Referendum
Inst. v. U.S. Postal Serv., 417 F.3d 1299, 1316 (D.C. Cir.
2005) (quoting Bd. of Airport Comm’rs v. Jews for Jesus, Inc.,
482 U.S. 569, 575 (1987)), and here the more plausible reading
is completely innocent of First Amendment difficulties. Few
would consider free speech as a “benefit” along the lines of
health insurance or retirement pay. In this context, the
restricted “right to organize for collective bargaining purposes”
is more naturally understood as the right to engage in
collective bargaining—i.e., the right to force the District to
5
negotiate with representatives of a collective bargaining unit
composed of reserve officers. “[I]n the context of federal
sector labor-relations, collective bargaining is a term of art
with a well-established statutory meaning,” Nat’l Treas.
Employees Union v. Chertoff, 452 F.3d 839, 857 (D.C. Cir.
2006), one that imposes an “obligation” on an employer to
negotiate with “the exclusive representative of [its]
employees,” id. (quoting 5 U.S.C. § 7103(a)(12)). Indeed,
defendant Lanier’s brief offers just this meaning, identifying
the negated benefit as the right “normally accruing” to District
employees to “engage in collective bargaining concerning terms
and conditions of employment” under the Comprehensive
Merit Personnel Act, D.C. Code § 1-617.01(b)(2) (Supp.
2006). See Lanier Br. 10-11.
This narrower reading of the General Order leaves the
plaintiffs’ First Amendment rights intact (as they themselves
concede, see Griffith Br. 26), for while “the Constitution
guarantees workers the right individually or collectively to
voice their views to their employers, . . . [it] does not afford
such employees the right to compel employers to engage in a
dialogue or even to listen.” Babbitt v. United Farm Workers
Nat’l Union, 442 U.S. 289, 313 (1979) (citations omitted).
Thus the clause survives the plaintiffs’ facial challenge.
* * *
The plaintiffs also bring a due process claim concerning
their tenure in office. The General Order declares that
Reserve Corps members “serve at the pleasure of the Chief of
Police” and may be removed at will without any
administrative review. MPD General Order 101.03 § IV.J.
The plaintiffs contend that D.C. law prohibits their dismissal
except for cause, and thereby establishes a property interest in
continued volunteer service; the General Order, they say,
6
threatens to deprive them of this interest unconstitutionally.
Cf. Bd. of Regents v. Roth, 408 U.S. 564, 576-77 (1972).
The plaintiffs correctly recognize that the success of their
due process claim requires local legal protection of their
interests in continued service. To “have a property interest in
a benefit, a person clearly must have more than an abstract
need or desire for it”; he must have “a legitimate claim of
entitlement to it,” created “by existing rules or understandings
that stem from an independent source such as state law.” Id.
at 577. Whether such local law protection is a sufficient
condition for a “property interest” is a matter we need not
reach; there is some authority that the continued service of an
unpaid volunteer—even if guaranteed by statute—cannot
qualify as a property interest under the Due Process Clause.
Compare Versarge v. Twp. of Clinton, 984 F.2d 1359, 1370
(3d Cir. 1993) (finding no property interest in volunteer
service absent some further form of compensation), with
Thornton v. Barnes, 890 F.2d 1380, 1388 & nn.11-12 (7th Cir.
1989) (suggesting that such an interest may exist in the
volunteer position itself). But because the plaintiffs’ interests
are unprotected by D.C. law, the Due Process Clause offers
them no help.
We construe D.C. law as it has been interpreted by the
D.C. Court of Appeals, see Poole v. Kelly, 954 F.2d 760, 761
(D.C. Cir. 1992)—or, in the absence of such guidance, as we
predict that court would interpret it, see, e.g., Friends for All
Children, Inc. v. Lockheed Aircraft Corp., 746 F.2d 816, 824
& n.13 (D.C. Cir. 1984). The D.C. Court of Appeals has
twice held (albeit in unpublished decisions) that Reserve
Corps members are “unpaid volunteers” under D.C. Code § 5-
129.51, and are therefore subject to the VSA, § 1-319.02
(governing “the use of volunteers by agencies . . . of the District
of Columbia”), as well as the regulations promulgated
thereunder, D.C. Mun. Regs. tit. 6, § 4000.1-.26. See Johnson
7
v. Williams, No. 04-CV-441, slip op. at 1-2 (D.C. Nov. 30,
2005); LeFande v. District of Columbia, No. 04-CV-68, slip
op. at 3 (D.C. May 25, 2005). These regulations state that
“[t]he acceptance and utilization of the services of any person
on a voluntary basis shall be at the discretion of each agency,
and . . . may be discontinued by the agency at any time for any
reason,” without “giv[ing] rise to any right or process of
appeal.” D.C. Mun. Regs. tit. 6, § 4000.12-.13. Because the
VSA regulations carry the force of law, they bar any reserve
officer’s claim of entitlement to continued volunteer service
arising from a previous MPD General Order or informal
understanding, see Johnson, slip op. at 1, unless some other
regulation or statute compels a contrary conclusion.
The plaintiffs describe their property interest as indeed
protected by another D.C. statute, which provides in relevant
part as follows:
[T]he Mayor of the District of Columbia . . . is hereby
authorized and empowered to fine, suspend with or
without pay, and dismiss any officer or member of [the]
police force for [cause] . . . ; provided, that no person shall
be removed from said police force except upon written
charges preferred against him in the name of the Chief of
Police of said police force to the trial board or boards
hereinafter provided for and after an opportunity shall
have been afforded him of being heard in his defense; but
no person so removed shall be reappointed to any office
in said police force . . . .
D.C. Code § 5-127.01 (2001) (emphasis added). Because the
plaintiffs are “persons” within the terms of the statute, they
argue, they cannot be removed from their volunteer positions
except for cause.
8
Although the plaintiffs are surely persons, the only
persons whom § 5-127.01 protects—as its language makes
clear—are “officer[s] or member[s] of [the] police force,”
who may conceivably be “removed from said police force” or
“reappointed to any office in said police force.” The question
then becomes whether Reserve Corps members are “member[s]
of [the] police force” within the meaning of this statute. This
question has not yet arisen before the D.C. Court of Appeals,
for while Johnson found Reserve Corps members to lack a
property interest in their continued service, it did not consider
the possible application of § 5-127.01.
Lanier argues that volunteer officers are excluded from
these protections by a 1906 amendment to the statute, which
provided that “special policemen and additional privates may
be removed from office by the Mayor without cause and
without trial.” Act of June 8, 1906, § 4, ch. 3056, 34 Stat.
221, 222 (codified as amended at D.C. Code § 5-127.01). She
contends that because these exempted groups were the only
categories of volunteer police existing in 1906, the proviso
currently applies to all existing categories of volunteer officers.
Both in 1906 and today, however, “special policemen” were
specifically defined as privately-employed security officers
imbued with certain public powers. See Act of Mar. 3, 1899,
ch. 422, 30 Stat. 1045, 1057 (codified as amended at D.C.
Code § 5-129.02). The term “additional privates” appears
essentially synonymous: Rev. Stat. D.C. § 375, 18 Stat. pt. 2,
at 44 (1875), had authorized appointment of an “additional
number of privates” on the application (and at the expense) of
persons showing the “necessity” of such appointment. The
other possible referent of “additional privates” is the category
of “special privates,” who then and today were temporary
unpaid police appointed during times of emergency. See id.
§§ 378-379 (codified as amended at D.C. Code § 5-129.03).
At most, then, the 1906 amendment exempted specific groups
of volunteer officers, rather than referring to all volunteers
9
through a general term of art, in the way the Constitution uses
“Treason, Felony, or Breach of the Peace” as a term of art
referring to all crimes. U.S. Const. art. I, § 6, cl. 1; see
Williamson v. United States, 207 U.S. 425, 438 (1908). Were
this all, we would face the common conflict between the
expressio unius est exclusio alterius canon and its competing
cousin, the contention that statutory language “may fairly
comprehend many different cases where some only are
expressly mentioned by way of example.” Karl N. Llewellyn,
Remarks on the Theory of Appellate Decision and the Rules or
Canons About How Statutes Are To Be Construed, 3 Vand. L.
Rev. 395, 405 (1950).
But there are other reasons why § 5-127.01 is not
properly read to confer any protected tenure on Reserve Corps
members. D.C. statutes concerning the MPD frequently
employ phrases similar to “member of [the] police force,” and
we read a body of statutes addressing the same subject matter
in pari materia, “as if they were one law,” Wachovia Bank,
N.A. v. Schmidt, 546 U.S. 303, 315-16 (2006) (quoting
Erlenbaugh v. United States, 409 U.S. 239, 243 (1972)),
including later-enacted statutes as well, see Branch v. Smith,
538 U.S. 254, 281 (2003) (citing United States v. Freeman, 44
U.S. (3 How.) 556, 564-65 (1845)). An examination of these
statutes shows that Reserve Corps members are not generally
treated as “member[s] of [the] police force” under D.C. law.
First, a District statute defines “[t]he Metropolitan Police
force” to “consist of not less than 3,000 officers and members,
in addition to the persons appointed as surgeons for the
Metropolitan Police force, appointed as police matrons, or
appointed as special privates pursuant to § 5-129.03 . . . .”
D.C. Code § 5-105.05 (2001). Neither this definition nor any
other provision of the “Personnel” subchapter of this title
includes the Reserve Corps within the definition of the force,
10
even though this section does include the “special privates”
mentioned above.
Second, the opening subsection of the statute governing
the Reserve Corps defines its membership in contradistinction
to “full-time, sworn police personnel.” § 5-129.51(a). MPD
“personnel” are separately defined in Subchapter III of Title 5,
which assigns to the mayor the power to “appoint to office,
assign to such . . . duties as he may prescribe, and promote all
officers and members of [the] Metropolitan Police Force.”
§ 5-105.01 (2001) (emphasis added). Reserve Corps members,
by contrast, have their “duties and responsibilities . . .
determined by the Chief of the Metropolitan Police
Department,” § 5-129.51(b); while the Mayor may issue
regulations prescribing their duties and responsibilities, § 5-
129.51(d), this language implies that Reserve Corps members
are not directly included within § 5-105.01’s terms. Moreover,
the opening subsection of the Reserve Corps statute establishes
the Corps as a separate and coordinate body “in the District of
Columbia,” § 5-129.51(a), rather than creating it “in the
Metropolitan Police Department,” language used for
components of the MPD such as the School Safety Division or
the Police Band. §§ 5-131.01 (2001), 5-132.02(a) (Supp.
2007) (emphasis added).
Third, the Reserve Corps is created as an organization of
“unpaid volunteers.” § 5-129.51(b). This language not only
makes Reserve Corps members subject to the VSA and its
accompanying regulations; it also distinguishes them from the
“officers and members of the Metropolitan Police force,” who
as such automatically receive salaries under § 5-541.01 (2001)
as well as tuition reimbursements under § 5-1305 (2001). The
plaintiffs describe § 5-127.01’s civil-service protections as
intended to dismantle a spoils system of political patronage,
see Griffith Br. 30-33, an intent that seems barely if at all
applicable to unpaid positions; the absence of a salary further
11
differentiates reserve officers from those who may be
“suspend[ed] with or without pay” only for cause. § 5-127.01.
And at least one federal statute sets Reserve Corps members
apart for monetary purposes, allocating money “for salaries
and expenses . . . of officers and members of the Metropolitan
Police Department . . . (and supplies, equipment, and protective
vests for reserve officers of the Metropolitan Police
Department).” District of Columbia Police Authorization and
Expansion Act of 1989, Pub. L. No. 101-223, sec. 2(a),
§ 502(c)(2), 103 Stat. 1901, 1901. While the statute evidently
presupposes that “reserve officers” are “of the Metropolitan
Police Department,” it plainly views them, at least for
appropriations purposes, as different from “officers and
members” of the department, the key phrase from § 5-127.01.
Fourth and finally, under § 5-129.51(c), the “selection
criteria required for and training provided to members of the
Reserve Corps shall be similar to [those of] full-time, sworn
police personnel,” and are determined by the Chief of Police,
id. A different regime is created for the members of the
department proper, whereby the Police Officers Standards and
Training Board determines selection criteria and training for
“[e]ach applicant selected for appointment as a sworn member
of the Metropolitan Police Department.” D.C. Code § 5-
107.04(d) (Supp. 2007). Separate provisions allow the Board
to establish standards for the Housing Authority Police
Department (an entirely separate force that does not report to
the MPD), see §§ 5-107.04(f-1)(3), 6-223 (Supp. 2007), and
to “[r]eview the . . . Reserve Corps program’s training and
standards,” § 5-107.04(f-1)(4). These provisions thereby treat
Corps members as distinct from members of the department as
a whole, and in particular from those “appoint[ed]” as
members of the force under § 5-105.01.
Thus, the District’s statutes consistently distinguish
between Reserve Corps members and the “member[s] of [the]
12
police force.” None of this, of course, appears to limit the
potential powers of a reserve officer to “fulfill police duties
and responsibilities” as determined by the Mayor and Chief of
Police under § 5-129.51(b), (d), including all the duties of
full-time officers. But because D.C. law does not generally
treat Reserve Corps members as “member[s] of [the] police
force” in the sense necessary to protect their tenure under § 5-
127.01, these volunteers remain subject to at-will dismissal,
and they lack the statutorily-protected property interest
necessary to ground a due process challenge.
* * *
The judgment of the district court is therefore
Affirmed.