Beg Investments, LLC v. Alberti

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

BEG INVESTMENTS, LLC, :
:
Plaintiff, : Civil Action No.: 13-cv-182 (RC)
:
v. : Re Document No.: 4
:
NICHOLAS ALBERTI, et al., :
:
Defendants. :

MEMORANDUM OPINION

GRANTING DEFENDANTS’ MOTION TO DISMISS

I. INTRODUCTION

Plaintiff, BEG Investments, LLC, is a company that operates a restaurant located at 1123

H Street, NE, known as Twelve Restaurant and Lounge. The Defendants are members of the

Alcohol Beverage Control Board, established by D.C. Code §25-201. Pursuant to the Alcoholic

Beverage Statute, the ABC Board has the authority to “issue licenses to persons who meet the

requirements set forth” in the statute, and to impose “certain conditions” on those licenses if the

Board “determines that the inclusion of the conditions will be in the best interest of the locality . .

. where the licensed establishment is to be located.” D.C. Code §25-104(a), (e). Pursuant to this

authority, Defendants issued a license to the Plaintiff upon the condition that Plaintiff hire the

Metropolitan Police Department (“MPD”) to patrol the area surrounding Twelve Restaurant and

Lounge. Plaintiff asserts that the Defendants acted beyond their statutory authority in imposing

this condition upon Plaintiff’s license.

Plaintiff now brings suit against the Defendants in their individual capacity alleging: 1)

racketeering in violation of 18 U.S.C. §1962(c); 2) conspiracy to commit racketeering in
violation of 18 U.S.C. §1962(d); 3) deprivation of equal protection of the law; 4) deprivation of

property interests pursuant to the Takings Clause of the Fifth Amendment; 5) deprivation of

freedom of speech under the First Amendment; and 6) conspiracy to deprive Plaintiff of the

equal protection of the laws in violation of 42 U.S.C. §1985. Defendants move to dismiss under

Rule 12(b)(6) for a failure to exhaust judicial remedies, and failure to state a claim. For the

reasons set forth below, Defendants’ motion to dismiss is granted, but Plaintiff is granted leave

to amend his claims brought pursuant to the Equal Protection Clause and the First Amendment.

II. FACTUAL ALLEGATIONS

Plaintiff, BEG Investments, LLC, is a company that operates a restaurant located at 1123

H Street, NE, known as Twelve Restaurant and Lounge. Plaintiff has sued Defendants, Nicholas

Alberti, Donald Brooks, Herman Jones, Calvin Nophlin, Mike Silverstein, and Ruthanne Miller

in their individual capacities for a violation of its rights under several statutory and constitutional

provisions, detailed below. The Defendants are members of the Alcohol Beverage Control

Board (“ABC Board”), established by D.C. Code §25-201.

The ABC Board has oversight authority over the Alcoholic Beverage Regulation

Administration (“ABRA”), which advises the ABC Board and provides “professional, technical,

and administrative staff assistance to the Board in the performance of its functions.” D.C. Code

§25-202. Pursuant to the Alcoholic Beverage Statute, the ABC Board has the authority to “issue

licenses to persons who meet the requirements set forth” in the statute, and to impose “certain

conditions” on those licenses if the Board “determines that the inclusion of the conditions will be

in the best interest of the locality…where the licensed establishment is to be located.” D.C. Code

§25-104(a), (e).

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 In 2005, the District of Columbia City Council amended a bill relating to emergency

suspension of liquor licenses to include a provision permitting licensees to enter into

“Reimbursable Detail” agreements for “MPD officers to patrol the surrounding area of an

establishment for the purpose of maintaining public safety, including the remediation of traffic

congestion and the safety of public patrons, during their approach and departure from the

establishment.” D.C. Code § 25-798 (a)(3); Emergency Suspension of Liquor Licenses Act of

2005, D.C. Act 16-20. This new code section provided for “compensation of the MPD by the

licensee when reimbursable details are requested by the licensee.” D.C. Code § 25-798 (a)(1).

Plaintiff alleges that on June 22, 2011, Defendants issued an Order pursuant to their

authority as the Alcoholic Beverage Control Board, ordering Plaintiff to “hire the MPD

Reimbursable Detail whenever the establishment provides any entertainment permitted by the

establishment’s entertainment endorsement.” ABRA Order 2011-289 at 5, June 22, 2011;

Compl. ¶26, Feb. 11, 2013, ECF No. 1. Plaintiff moved for reconsideration of the Order. Compl.

¶29. After conducting a hearing, Defendants ordered Plaintiff to “hire the MPD Reimbursable

Detail whenever the establishment provides any DJs or live music as entertainment at the

establishment. The MPD Reimbursable Detail shall be hired for a minimum of four hours and

shall end no sooner than one hour after closing.” ABRA Order 2011-368 at 2, Aug. 10, 2011.

According to Plaintiff, this Order required it to retain MPD officers at a rate of over $55 per hour

per officer — more than double the basic daily wage rate of policemen. Compl. ¶32. On October

9, 2011, Plaintiff did not employ a Reimbursable Detail, and was subsequently fined $1,500 by

the Defendants. Compl. ¶33. Plaintiff asserts that it has paid thousands of dollars to the MPD as

a result of the Reimbursable Detail Order. Compl. ¶34.

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 In addition to the Plaintiff, several other companies’ licenses have been conditioned upon

a Reimbursable Detail. On July 27, 2011, the Defendants conducted a fact-finding hearing after

Police Commander Daniel Hickson requested that Night and Day Management, LLC pay for a

Reimbursable Detail at Fur Nightclub. Compl. ¶41. On August 17, 2011, Defendants ordered as

follows:

[Night and Day Management, LLC] must secure MPD Reimbursable Detail,
commencing September 1, 2011, for each night that the Licensee is open to the
public for business. For those nights that Reimbursable Detail is required; there
must be a minimum of four officers, it must be present for a minimum of four
hours and it must remain at the establishment for an additional 30 minutes after
closing.

ABRA Board Order 2011-356 at 14, Aug. 17, 2011. A similar order was issued against Inner

Circle 1420, LLC for a Reimbursable Detail at Lotus Lounge:

[Inner Circle 1420, LLC] must continue to secure MPD Reimbursable Detail for
each night that the Licensee is open to the public for business. For those nights
that Reimbursable Detail is required; there must be a minimum of four officers, it
must be present for a minimum of four hours and it must remain at the
establishment for an additional 30 minutes after closing.

ABRA Board Order 2011-407 at 14, Oct. 5, 2011. On March 31, 2012, John M. Hedgecock

wrote a memorandum recommending that the number of MPD officers assigned to Lotus

Lounge’s Reimbursable Detail be increased. Compl. ¶61. When Inner Circle failed to pay for the

Reimbursable Detail, enforcement action was brought against it, Inner Circle was fined, and

Lotus Lounge’s operations were suspended for six days. Compl. ¶69.

Plaintiff lists two other similar instances. Bar 9, LLC, a limited liability company

operating a nightclub known as DC9, was the subject of a “Summary Suspension Status

Hearing” conducted by the ABC Board on December 1, 2010. Compl. ¶72. Following the

hearing, the Board ordered Bar 9 to “contract with MPD to secure a Reimbursable Detail for no

fewer than two officers and no less than the hours of operation on any given night the club is

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open through January 19, 2011.” ABRA Board Order 2010-609 at 7, Dec. 1, 2010. The ABC

Board imposed a Reimbursable Detail on Non-party Guards, Inc., operating a restaurant known

as The Guards, in August 2008, requiring MPD officers to be present “Friday and Saturday

evenings between 11:00 p.m. and 3:00 a.m.” Compl. ¶78. This Order was appealed to the ABC

Board, and the appeal was denied. Compl. ¶79.

Plaintiff alleges that the Board’s imposition of a mandatory Reimbursable Detail is

outside the scope of its authority, and violates several provisions of the D.C. Code. Specifically,

Plaintiff brings suit against the Defendants in their individual capacity alleging: 1) racketeering

in violation of 18 U.S.C. §1962(c); 2) conspiracy to commit racketeering in violation of 18

U.S.C. §1962(d); 3) deprivation of equal protection of the law; 4) deprivation of property

interests pursuant to the Takings Clause of the Fifth Amendment; 5) deprivation of freedom of

speech under the First Amendment; and 6) conspiracy to deprive Plaintiff of the equal protection

of the laws in violation of 42 U.S.C. §1985. Defendants move to dismiss under Rule 12(b)(6) for

a failure to exhaust administrative remedies, and failure to state a claim.

III. LEGAL STANDARD

The Federal Rules of Civil Procedure require that a complaint contain “a short and plain

statement of the claim” in order to give the defendant fair notice of the claim and the grounds

upon which it rests. Fed. R. Civ. P. 8(a)(2); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007)

(per curiam). A motion to dismiss under Rule 12(b)(6) does not test a plaintiff’s ultimate

likelihood of success on the merits; rather, it tests whether a plaintiff has properly stated a claim.

See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A court considering such a motion presumes

that the complaint’s factual allegations are true and construes them liberally in the plaintiff’s

favor. See, e.g., United States v. Philip Morris, Inc., 116 F. Supp. 2d 131, 135 (D.D.C. 2000). It

5
is not necessary for the plaintiff to plead all elements of her prima facie case in the complaint.

See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511–14 (2002); Bryant v. Pepco, 730 F. Supp.

2d 25, 28–29 (D.D.C. 2010).

Nevertheless, “[t]o survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). This means that a plaintiff’s factual allegations “must be enough to raise a right to relief

above the speculative level, on the assumption that all the allegations in the complaint are true

(even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 (2007) (citations

omitted). “Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements,” are therefore insufficient to withstand a motion to dismiss. Iqbal, 556

U.S. at 678. A court need not accept a plaintiff’s legal conclusions as true, see id., nor must a

court presume the veracity of the legal conclusions that are couched as factual allegations. See

Twombly, 550 U.S. at 555.

IV. ANALYSIS

A. Exhaustion and Abstention

As a threshold matter, Defendants argue that Plaintiff’s claims for declaratory and

injunctive relief should be dismissed because: 1) the Plaintiff failed to exhaust available state

judicial remedies; 2) the claims should properly be heard in state court pursuant to the Burford

abstention doctrine; and, 3) the claims should properly be heard in state court pursuant to the

Pullman abstention doctrine. If the Court dismissed the Plaintiff’s complaint for any of these

reasons, Plaintiff would be required to seek relief in state court —the local D.C. Court system.

6
The Court considers each argument in turn, and ultimately finds that the case is properly in

Federal court, and that this Court can retain jurisdiction over the merits of Plaintiff’s complaint.

1. Failure to Exhaust State Judicial Remedies

Defendants argue that Plaintiff’s challenge to the ABC Board’s order in Federal court is

nothing more than a deliberate attempt to bypass the “orderly procedure of the state courts,”

where the Plaintiff has an accessible and available remedy “capable of awarding a full measure

of relief.” Fox v. Dist. of Colum., 851 F. Supp. 2d 20, 28 (D.D.C. 2012). Specifically, the

Defendants believe that the Plaintiff should have exhausted the judicial remedies available to the

Plaintiff under the D.C. Administrative Procedure Act (“D.C. APA”), which allows the Plaintiff

to petition the D.C. Court of Appeals for review of an agency’s orders or decisions. D.C. Code

§2-510. Plaintiff did not file a challenge to the Board’s action under the D.C. APA. Thus,

Defendants argue that the Plaintiff has failed to exhaust available state judicial remedies, and the

case should be dismissed.

“Federal relief may be withheld from persons who have deliberately bypassed the orderly

procedure of the state courts. ” Fox, 851 F. Supp. 2d at 28 (quoting Sullivan v. Murphy, 478 F.2d

938, 963 (D.C. Cir. 1973) (internal quotation marks omitted). However, exhaustion of state

judicial remedies “is appropriate, as a reason for denial of Federal relief, only when there has

been a failure to utilize state remedial channels that are both accessible and capable of affording

a full measure of relief.” Sullivan, 478 F.2d at 53 (emphasis added).

The Plaintiff first engaged in the administrative process provided in the Alcohol

Beverage Regulation. D.C. Code §25-431. After receiving an unfavorable order, Plaintiff filed

for reconsideration with the ABC Board. It was only after the reconsideration hearing, and other

petitions in front of the Board requesting an exemption, that Plaintiff brought suit in this Court.

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The only remedy remaining to Plaintiff at this stage, and indeed the only step that Defendants

argue Plaintiff should have taken prior to bringing suit in Federal court, is to appeal the Board’s

order to the D.C. Court of Appeals under the D.C. APA. Def.’s Mot. to Dismiss, 5, May 1, 2013,

ECF No. 4.

The D.C. APA provides, in relevant part, that “[u]pon filing of a petition for review, the

[D.C. Court of Appeals] shall have jurisdiction of the proceeding, and shall have power to

affirm, modify, or set aside the order or decision complained of, in whole or in part, and, if need

be, to remand the case for further proceedings.” D.C. Code §2-510(a). The D.C. Court of

Appeal’s review is limited to the issues and facts subject to review on appeal, and the power of

the Court is limited “[s]o far as necessary to… decide all relevant questions of law, to interpret

constitutional or statutory provisions, and to determine the meaning or applicability of the terms

of any action.” D.C. Code §2-510(a)(1). The D.C. Court of Appeals is not granted any right to

award damages. At best, it may compel an agency action that was “unlawfully withheld or

unconstitutionally delayed” or may “hold unlawful or set aside” an agency action that it finds to

be unlawful. D.C. Code §2-510(a)(2) – (3). Moreover, the D.C. APA only grants the D.C. Court

of Appeals jurisdiction to review agency action. D.C. Code §2-510(a) (“If the jurisdiction of…an

agency is challenged…the person challenging…shall be entitled to an immediate judicial review

of that [agency] action.”). By definition, this jurisdiction to review agency action does not

extend to suits against individuals in their non-official capacity, as those individuals have no

power to act as a state agent while also acting in their individual capacity. Thus, Plaintiff likely

could not bring claims under the D.C. APA against the Defendants in their individual capacity,

as it has done here.

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 Although the D.C. APA provided the Plaintiff with another avenue to challenge the

Board’s order, the Court finds that the D.C. Court of Appeals could not have granted the Plaintiff

the complete remedy it seeks here, and thus the Plaintiff is not precluded access to the Federal

courts. The mere fact that an action “is also maintainable in state courts, or in the local courts in

the District of Columbia” is not itself sufficient to “foreclose access to the Federal courts, or

require prior exhaustion of such State or local remedy.” Sullivan, 478 F. 2d at 963. Failure to

exhaust should only bar relief where the state remedial channels “are capable of affording a full

measure of relief.” Id. Where, as here, “a more complete remedy is required to vindicate [the

Plaintiff’s] Federal…rights, the exhaustion doctrine does not preclude access to the Federal

Court.” Id.

Although the D.C. APA can provide Plaintiff with an opportunity to review the Board’s

decision, the D.C. Court of Appeal’s review is severely limited in scope. First, the D.C. Court

can only grant declaratory or injunctive relief — it cannot grant Plaintiff any request for

damages. Moreover, the D.C. Court may, and has in the past, merely remanded the decision to

the Board for a review of its internal proceedings. Pl.’s Opp’n at 28. Such a remand could allow

the Board to reverse this singular order, without any decision on the legality of its mandate, and

without compensating the Plaintiff for any loss that occurred while it was required to comply

with the Board’s Order. Finally, D.C. APA review could only review the reasonableness of the

Board’s decision. It does not vindicate Plaintiff’s quasi-tortious claims of intentional fraudulent

or discriminatory conduct by the individual Defendants, which is outside of the scope of the D.C.

Court’s APA review.

Defendants rebut this argument by arguing that Plaintiff’s failure to first pursue its

remedy in the D.C. Courts was the ultimate cause of their injuries. Def.’s Reply, 3. Indeed,

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Defendants seem to believe that Plaintiff’s alleged injuries supporting its RICO and Hobbs Act

claim “would not exist” if it had merely appealed the ABC Board’s decision to the D.C. Court of

Appeals. In support of this proposition, Defendants cite to Heck, which barred a criminal

defendant from seeking damages under 42 U.S.C. §1983 “unless [he] can demonstrate that the

conviction or sentence has already been invalidated.” Def.’s Reply, 3, May 28, 2013, ECF No. 7

(quoting Heck, 512 U.S. at 486-87). Analogously, Defendants argue, the Plaintiff should not be

afforded Federal relief for “self-inflicted injures due to a failure to exhaust administrative

remedies.” Def.’s Reply, 3.

Defendants never clearly articulate how the Plaintiff’s failure to seek D.C. APA review is

akin to a “self-inflicted injur[y].” Moreover, the Court finds Defendants’ reliance on Heck to

miss the mark. Heck does not stand for the proposition that every individual seeking review of an

action must first obtain a court-ordered invalidation of the action prior to seeking damages. Heck

only finds that in the specific claim for malicious prosecution under 42 U.S.C. §1983, one

element that must be alleged and proved “is termination of the prior criminal proceeding in favor

of the accused.” Heck, 512 U.S. at 484. The Supreme Court did not extrapolate this finding to 42

U.S.C. §1983 claims generally, and reiterated that “[w]e do not engraft an exhaustion

requirement upon §1983, but rather deny the existence of a cause of action” for the claim

brought in Heck. Id. at 489.

For these reasons, this Court finds that Plaintiff’s rights could not have been fully

vindicated by D.C. APA review, and that the failure to first pursue a claim in the D.C. Court of

Appeals does not preclude access to Federal Court.

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 2. Burford and Pullman Abstention

Defendants argue, in a footnote, that “to the extent that any additional abstention doctrine

is necessary, the Burford and Pullman abstention doctrines are also applicable to this case” and

should thus preclude this Court’s review. Def.’s Reply at 2, n.1. The Defendants note that review

of the Board’s action would require this Court to decide a “difficult question[ ] of [local] law

bearing on policy problems of substantial public import,” id., and that review in the D.C. Court

of Appeals is thus more appropriate. The Court does not find that either the Burford or Pullman

abstention doctrines preclude federal review of this matter, and thus does not dismiss the case on

this basis.

The Burford abstention doctrine, first articulated in Burford v. Sun Oil Co., 319 U.S. 315

(1943), urged a federal court “sitting in equity” to decline jurisdiction where a case “presents

difficult questions of state law bearing on policy problems of substantial public import whose

importance transcends the case then at bar.” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 726

(1996) (quoting Colorado River Water Consv. Dist., v. United States, 424 U.S. 800, 814 (1976))

(internal quotation marks omitted). However, as the Supreme Court has repeatedly recognized,

whether a Federal court should dismiss a case under the Burford abstention doctrine is a question

of a balance of factors, and the “balance only rarely favors abstention.” Quackenbush, 517 U.S.

at 728. “The power to dismiss recognized in Burford represents an ‘extraordinary and narrow

exception to the duty of the District Court to adjudicate a controversy properly before it.’” Id.

quoting Colorado River, 424 U.S. at 813.

In Burford itself, the Supreme Court relied on three factors in abstaining from the case: 1)

“the difficulty of the regulatory issues presented,” 2) “the demonstrated need for uniform

regulation in the area,” and 3) “the detrimental impact of ongoing federal court review of the

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Commission’s orders, which . . . had already led to contradictory adjudications.” Id. at 725. In

Burford, the state Railroad Commission was granted exclusive regulatory authority in the area of

oil regulation, “[d]ue to the potentially overlapping claims of the many parties who might have

an interest in a common pool of oil and the need for uniform regulation of the oil industry.” Id. at

723.

No such factors are present here. Defendants have not sufficiently articulated a basis to

find that liquor licensing is an area in which complicated regulatory issues are presented, nor that

finite resource over which many parties may have a common claim need to be adjudicated.

Although the Board must consider and balance several interests when granting licenses, this

Court’s review of the Reimbursable Detail mandate will not disrupt the Board’s larger regulation

of liquor licenses. Although the ABC Board promulgates a regulatory scheme, Burford “does

not require abstention whenever there exists [a complex state administrative process], or even in

all cases where there is a ‘potential for conflict’ with state regulatory law or policy.” New

Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 362 (quoting Colorado

River, 424 U.S. at 815-16).

Moreover, as already discussed above, D.C. APA review of the agency action would not

afford the full relief requested by the Plaintiff. Because Defendants have failed to show that the

sort of complex state regulatory scheme discussed in Burford is at issue here, the Court does not

dismiss the case pursuant to Burford abstention doctrine.

The Court similarly will not dismiss the claims pursuant to the Pullman abstention

doctrine. The Supreme Court held, in Railroad Commission of Tex. v. Pullman Co., that when a

“federal court of equity is asked to decide an issue by making a tentative answer which may be

displaced tomorrow by a state adjudication,” it should refrain from deciding the issue and instead

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defer to the state courts. 312 U.S. 496, 500 (1941). This doctrine “avoid[s] the waste of a

tentative decision as well as the friction of a premature constitutional adjudication” on a

constitutional issue that would be mooted by resolution of the state law issue. Id.

However, Pullman abstention does not require the Court to dismiss the case at bar. First,

even if there were a state-law question that needed to be resolved in the first instance, Pullman

provides no basis for dismissing this case. Instead “abstention may serve only to postpone, rather

than to abdicate jurisdiction, since its purpose is to determine whether resolution of the federal

question is even necessary, or to obviate the risk of a federal court's erroneous construction of

state law.” Allen v. McCurry, 449 U.S. 90, 101-02 n.17 (1991). Because there is no concurrent

state court action to vindicate Plaintiff’s claims, postponement would serve no purpose. Second,

not all of Plaintiff’s Federal constitutional claims are dependent upon the authority of the Board

to impose a mandatory Reimbursable Detail. Plaintiff alternatively argues that even if the Board

had the statutory authority to issue such conditions on licenses, the mandatory Reimbursable

Detail was unconstitutionally applied. Compl. ¶91-104. For these reasons, the Court cannot, and

does not dismiss the case under the Pullman abstention doctrine.

B. Plaintiff’s Claims for Declaratory and Injunctive Relief

Plaintiff sues Defendants, members of the ABC Board, only in their individual capacities. In

addition to monetary damages, Plaintiff seeks declaratory and injunctive relief against

Defendants. Specifically, Plaintiff asks this Court to “declare the imposition of a Reimbursable

Detail upon its establishments without its consent to be unlawful” and to “enjoin the Defendants

from imposing such unlawful Reimbursable Details upon it.” Compl. ¶109-10. However,

Defendants can only impose these Reimbursable Details in their official capacity, as members of

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the ABC Board. See D.C. Code §25-104(e) (granting the ABC Board authority to place

conditions upon licenses, in the interest of the locality).

Courts have concluded that “there is no basis for suing a government official for

declaratory and injunctive relief in his or her individual or personal capacity.” Hatfill v.

Gonzales, 519 F. Supp. 2d 12, 19 (D.D.C. 2007). Accord Feit v. Ward, 886 F.2d 848, 858 (7th

Cir. 1989) (finding that a declaration that the challenged policy was unconstitutional and an

injunction barring the defendants from implementing the policy in the future can be obtained

only from the defendants in their official capacities and not as private individuals). See also,

Cmty. Mental Health Servs. of Belmont v. Mental Health and Recovery Bd. Serving Belmont,

Harrison & Monroe Counties, 150 Fed. Appx. 389 (6th Cir. 2005); Ameritech Corp. v. McCann,

297 F.3d 582, 587 (7th Cir. 2002); Frank v. Relin, 1 F.3d 1317, 1327 (2nd Cir. 1993); Del Raine

v. Carlson, 826 F.2d 698, 703 (7th Cir.1987). “[O]nly by acting as a government official (not as

an individual acting personally), can a public official’s compliance with a court decree remedy

the governmental action, policy or practice that is being challenged.” Hatfill, 519 F. Supp. 2d at

26. Because Plaintiffs only sue Defendants in their individual capacities, and not also in their

official capacities, this Court is unable to grant any injunctive or declarative relief for Plaintiff.

C. RICO and Hobbs Act Claims

Plaintiff brings claims under the Racketeer Influenced and Corrupt Influences Act

(“RICO”). 18 U.S.C. §1962(c)-(d). This statute states in relevant part:

(c) It shall be unlawful for any person employed by or associated with any
enterprise engaged in, or the activities of which affect, interstate or foreign
commerce, to conduct or participate, directly or indirectly, in the conduct of such
enterprise’s affairs through a pattern of racketeering activity or collection of
unlawful debt.

(d) It shall be unlawful for any person to conspire to violate any of the provisions
of subsection (a), (b), or (c) of this section.

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Defendants move to dismiss these claims under Fed. R. Civ. P. 12(b)(6), for failure to state a

claim. Specifically, Defendants argue that Plaintiff 1) has not adequately pleaded that the

reimbursable detail is an “enterprise which affects interstate commerce,” and 2) asserts a “pattern

of racketeering activity” by wrongly assuming that the Board’s action is unlawful. Moreover,

Defendants argue that they are entitled to qualified immunity. The Court concludes that

Defendants are entitled to qualified immunity on the RICO and Hobbs Act claims because

Plaintiff has failed to allege that Defendants’ imposition of a Reimbursable Detail violated

clearly established law. 1

The Plaintiff argues that Defendants violated its statutory rights under RICO by engaging

in a “pattern of racketeering activity.” Plaintiff’s complaint alleges that each defendant

participated in a racketeering activity by: “demanding payment to the Reimbursable Detail

program without lawful authority,” “employ[ing] wrongful fear of economic harm to obtain the

property of the Plaintiff,” and “employ[ing] wrongful actual economic harm to obtain the

property of the Plaintiff.” Compl. ¶86. As Defendants correctly note, Plaintiff’s allegations of

racketeering turn on whether the Defendants’ actions in imposing the Reimbursable Detail was

outside of their lawful authority. Because Plaintiff’s claim of “racketeering” rests wholly on

whether the Defendants were acting within their legal authority, and because Defendants claim

qualified immunity, this Court must determine whether it was clearly established, in June 2011,

1
The Court notes that the Plaintiff likely alleges sufficient facts with regards to the
interstate commerce element, and thus meets the pleading standard under the Federal Rules of
Civil Procedure. See e.g., United States v. Doherty, 867 F.2d 47, 68 (1st Cir. 1989) (“RICO
requires no more than a slight effect upon interstate commerce”( citing United States v.
Robinson, 763 F.2d 778, 781 (6th Cir. 1985) (RICO requires only a “minimal impact” on
commerce, e.g., that alcohol sold by defendants was made out of state)). However, the Court
need not decide this issue here, because the Court finds that the Defendants are nonetheless
entitled to qualified immunity on these claims.

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that the ABC Board lacked the authority under the Alcohol Beverage statute to impose

Reimbursable Details as a condition on licenses.

The doctrine of qualified immunity shields government officials, who are sued in their

individual capacity for money damages, for “conduct [that] does not violate clearly established

statutory or constitutional rights of which a reasonable person would have known.” Int’l Action

Ctr. v. United States, 365 F.3d 20, 24 (D.C. Cir. 2004) (quoting Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982)). In order to determine whether an individual is entitled to qualified immunity,

the Court must answer two questions: 1) whether “[t]aken in the light most favorable to the party

asserting the injury . . . the facts alleged show that the [state official’s] conduct violated a

constitutional [or statutory] right,” and 2) that “the [constitutional or statutory] right was clearly

established.” Saucier v. Katz, 533 U.S. 194, 201 (2001). Although this Circuit has not explicitly

decided whether state actors are entitled to qualified immunity on RICO claims, other circuits

have routinely allowed defendants to raise qualified immunity as a defense in suits involving

RICO. See e.g., Brown v. Nationsbank Corp., 188 F.3d 579, 587 (5th Cir. 1999); Cullinan v.

Abramson, 128 F.3d 301, 308 (6th Cir. 1997); See also Wilkie v. Robbins, 551 U.S. 537, 568

(2007) (recognizing defendant’s defense of qualified immunity to a RICO charge, but not

inquiring “into the merits of his claim”).

In this case, given that the D.C. Court of Appeals should likely interpret the Alcohol and

Beverage statute’s regulatory scheme in the first instance, the Court skips the first prong of the

qualified immunity analysis and turns directly to the second. As the Supreme Court has

recognized, “[t]here are cases in which it is plain that a constitutional right is not clearly

established but far from obvious whether in fact there is such a right.” Pearson v. Callahan, 555

U.S. 223, 237 (2009). That is certainly the case here.

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 The Court thus turns to the second prong of the qualified immunity analysis — whether it

was clearly established, in June 2011, that the ABC Board lacked the authority to impose

Reimbursable Details as a condition on licenses. In order for a law to be “clearly established” in

the context of qualified immunity, “[t]he contours of the right must be sufficiently clear that a

reasonable official would understand that what he is doing violates that right .…[I]n the light of

pre-existing law, the unlawfulness must be apparent.” Wilson v. Layne, 562 U.S. 603, 615 (1999)

(citing Anderson v. Creighton, 483 U.S. 635, 640 (1987)). This can be established through

evidence of “controlling authority in [the state] jurisdiction at the time of the incident which

clearly established the rule on which [the plaintiff] seeks to rely, [ ]or…a consensus of cases of

persuasive authority such that a reasonable [state actor] could not have believed his actions were

lawful.” Wilson, 562 U.S. at 617. It is precisely where state law is undeveloped on the issue in

question that state actors should be granted qualified immunity, as they “cannot be expected to

predict the future course” of the relevant statute’s interpretation. Id. Such is the case here.

D.C. Code §25-104(a) broadly grants the ABC Board the authority to “issue licenses to

persons who meet the requirements set forth in this title.” The statute further states:

The Board, in issuing licenses, may require that certain conditions be met if it
determines that the inclusion of the conditions will be in the best interest of the
locality, section, or portion of the District where the licensed establishment is to
be located. The Board, in setting the conditions, shall state, in writing, the
rationale for the determination.

D.C. Code §25-104(e) (emphasis added). The Defendants argue that this statute grants them

unparalleled latitude in issuing licenses and in imposing conditions upon those licenses, if they

determine it to be in the best interest of the locality, as they did here. Indeed, this provision

provides no limits on the Board’s authority to issue such conditions.

The Plaintiff cites to several other provisions in the regulation in order to show that the

Defendants’ interpretation of their grant of authority is inconsistent with the greater statutory

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scheme of the Alcohol and Beverage Regulation. However, Plaintiff cannot point to any

controlling authority, or even a single interpretation of D.C. Code §25-104(a), that limits the

ABC Board’s authority to impose a Reimbursable Detail. Nor are the relevant regulatory

provisions so clear, that a reasonable ABC Board official would understand that requiring a

licensee to maintain a Reimbursable Detail violates the law. Thus, although the statutory

provisions that Plaintiff cites contemplate some limits on the Board’s authority, the scope of

those limits or their applicability to the instant issue are neither explicit nor certain.

For example, Plaintiff points to the text of the Reimbursable Detail Subsidy Program, 23

DCMR §718, to argue that: 1) the regulation only contemplates voluntary agreements with the

MPD to provide for reimbursable detail, 23 DCMR §718.1 (“A licensee, a group of licensees, or

a Business Improvement District on behalf of licensees…may enter into an agreement with the

MPD to provide for reimbursable detail and are eligible for reimbursement under the subsidy

program.”) (emphasis added); and, 2) the regulation precludes ABRA, and by extension the ABC

Board, from “determining the number of MPD officers needed to work a reimbursable detail.” 23

DCMR § 718.5.

Nevertheless, this program does not specifically constrain the power of the ABC Board to

impose a Reimbursable Detail. First, as Defendants note, this provision only applies to ABRA,

not to the ABC Board as a whole. And ABRA, as a sub-entity of the ABC Board, does not have

all of the regulatory authority granted to the ABC Board. D.C. Code §25-202. In fact, the

purpose of ABRA is merely to provide assistance to the Board in performing its functions. Id. As

such, there may be limits placed on ABRA’s authority to act that simply do not apply to the ABC

Board. For example, ABRA’s authority does not extend to issuing licenses — only the ABC

Board is granted that authority. D.C. Code §25-104. This is not to say that 23 DCMR §718.5

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definitively does not limit the ABC Board’s authority, but if it does limit the Board’s authority, it

certainly was not clearly established as of June 2011.

Moreover, as indicated by its title, 23 DCMR §718 only appears to contemplate those

instances in which a Reimbursable Detail may or may not be subsidized by the District, and is

thus limited in its scope and applicability. For example, one plausible reading of the regulation

could find that 23 DCMR §718 only applies to a subset of reimbursable details — those entered

into voluntarily by the licensee. Under this reading, 23 DCMR §718.5 could restrict ABRA’s

authority to “determin[e] the number of MPD officers needed to work a reimbursable detail” in

order to prevent ABRA’s from mandating that fewer MPD officers work the reimbursable detail

than agreed upon by the parties. It would do so because ABRA’s limited funds may incentivize it

to require that fewer MPD officers work the detail, so that ABRA can pay lower reimbursement

costs. Moreover, it is entirely consistent under this reading that subsidies are only available for

voluntary Reimbursable Detail agreements, thus nullifying any argument that this provision’s

reference to voluntary agreements must be read to prohibit mandatorily imposed Reimbursable

Details. Accordingly, a “reasonable” member of the ABC Board could have believed that 23

DCMR §718 only regulates ABRA’s authority when authorizing subsidies for voluntary

agreements, and that it thus did not constrain the Board’s authority to require a Reimbursable

Detail as a condition upon licenses. At any rate, what this regulation means is not clearly

established.

Plaintiff next argues that D.C. Code §25-798, which discusses voluntary agreements

between licensees and the MPD to provide reimbursable detail services, highlights the

permissive nature of the reimbursable detail program and thus undermines the ABC Board’s

interpretation. D.C. Code §25-798, entitled “Reimbursable details,” states:

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 (b) A licensee or licensees, independently or in a group, may enter into an
agreement with the MPD to provide for reimbursable details.

(c) Subject to adequate staffing of the police service areas and an assessment by
the MPD of its staffing requirements, the MPD may staff reimbursable details as
requested by the licensee. The MPD shall only use officers for this purpose who
are overtime and would not otherwise be on duty at the time of the reimbursable
detail.

(emphasis added). As with 23 DCMR §718 however, this statute does not specifically restrict

the authority of the ABC Board. In fact, this provision does not even mention the ABC Board’s

authority to issue and place conditions upon licenses.

Finally, Plaintiff argues that D.C. Code §47-2820 circumscribes the Board’s authority to

impose Reimbursable Details at the rate of $55/hour — a rate much higher than the average

hourly rate of an MPD officer. The applicable sentence of D.C. Code §47-2820 provides that

“[p]olicemen and firemen [assigned to Reimbursable Detail] shall be charged for by the hour at

the basic daily wage rate of policemen and firemen so assigned in effect the first day of the

month for which the permit is sought.” D.C. Code § 47-2820(b). Plaintiff thus argues that even if

the Board has the authority to impose conditions upon licenses, D.C. Code §47-2820 clearly

constrains its authority to set a wage higher than the daily wage rate.

First, Defendants contest that the ABC Board sets the wage rate when imposing a

Reimbursable Detail condition. Def.’s Reply, 11; D.C. Code §25-798(b), (d) (noting that the

MPD establishes policies and procedures to implement the section of reimbursable details).

Moreover, even if the Defendants were setting the applicable rates, D.C. Code §47-2820 only

applies to “[o]wners or managers of buildings in which skating rinks, fairs, carnivals, balls,

dances, exhibitions, lectures or entertainments of any description including theatrical or dramatic

performances of any kind are conducted.” D.C. Code §47-2820(b). In fact, establishments that

hold licenses under the Alcohol Beverage Statute are exempted from this provision. D.C. Code

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§47-2820(b-2). Further, this provision again does not specifically address the Board’s authority

to issue licenses, the Board’s authority to impose Reimbursable Details as conditions on those

licenses, or the Board’s authority to set rates for the Reimbursable Details.

None of this is to say that another court, analyzing the merits of Plaintiff’s argument, and

the content of the provisions cited above, would find that the ABC Board did indeed have the

authority to impose Reimbursable Details. It is entirely plausible that these provisions, taken

together, create a statutory scheme which only permits fully voluntary Reimbursable Details.

However, the Plaintiff has not pointed to a single court ruling, or consensus of authority, that has

established such an interpretation. “Given such an undeveloped state of the law,” the Court finds

that the Defendants could reasonably have believed their actions to be lawful, and could not have

been “expected to predict the future course of statutory law.” Wilson, 526 U.S. at 617. For this

reason, the Court finds that Plaintiff’s proposed interpretation was not “clearly established,” and

that the Defendants thus have qualified immunity on the RICO and Hobbs Act claims.

D. Equal Protection Clause

Plaintiff next alleges that the “imposition of the Reimbursable Details upon the Plaintiff

but not all other similarly situated businesses” is a deprivation of the equal protection of the

laws. Pl.’s Compl. ¶93. Plaintiff further alleges, under 42 U.S.C. §1985, that the Defendants , “as

two or more people, conspired for the purpose of depriving the Plaintiff of equal protection of

the laws.” Because both counts require the Plaintiff to allege facts to state a claim for relief under

the Equal Protection clause, the Court deals with the two counts jointly. The Defendants argue

that Plaintiff fails to state a claim under the Equal Protection Clause because Plaintiff, a

corporate entity, is not a member of any identifiable suspect class and is thus only afforded

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rational basis review. Def.’s Mot. to Dismiss, at 12. And because the ABC Board imposes

conditions on liquor licenses based on “the best interest of the locality,” Defendants argue that

the Board can assert a plainly legitimate government interest that satisfies rational basis review.

Id.

Defendants’ statement of the law is correct — “a classification neither involving

fundamental rights nor proceeding along suspect lines…cannot run afoul of the Equal Protection

Clause if there is a rational relationship between the disparity of treatment and some legitimate

governmental purpose.” Heller v. Doe, 509 U.S. 312, 319-20 (1993). However, Defendants’

argument assumes that Plaintiff is not a member of a suspect class and that it is merely a

“corporate entity.” Plaintiff does not specify its classification in its Complaint. It merely states

that it was treated differently from “similarly situated businesses.” Compl. ¶ 93. However,

Plaintiff does assert, albeit in its brief in opposition, that the Defendants repeatedly inquired into

the kind of music playing at the establishment in order to determine whether the corporation

“attracted too much of the wrong crowd (e.g. young black males) for their liking.” Pl.’s Opp. at

23. Plaintiff further alleges that its establishment is “patronized almost entirely” by this suspect

class. Id. at n. 13.

Unfortunately for the Plaintiff, these facts were not alleged in its Complaint, and the

Court cannot consider facts alleged in the briefing when ruling on a Motion to Dismiss. “[I]t is

axiomatic that a complaint may not be amended by the briefs in opposition to a motion to

dismiss.” Coleman v. Pension Ben. Guar. Corp., 94 F. Supp. 2d 18, 24, n.8 (D.D.C. 2000)

(quoting Morgan Distributing Co., Inc. v. Unidynamic Corp., 868 F. 2d 992, 995 (8th Cir.1989).

As noted above, Plaintiff’s complaint does not identify whether it is arguing for equal protection

as a general corporate entity, or as an establishment patronized by a suspect class, upon which

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basis it was disparately treated. Nevertheless, because Plaintiff’s Equal Protection claim could

potentially move forward had the claim included in the briefing been included in the Complaint,

the Court allows the Plaintiff to amend its complaint as justice requires. However, even

generalized claims of discrimination cannot survive a motion to dismiss if not supported by

alleged facts. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (holding that allegations of

discriminatory treatment must include more than a “formulaic recitation of the elements” of a

constitutional claim, and must instead show, with more than conclusory facts, that the defendants

adopted and implemented a policy for the specific purpose of discriminating on the account of a

protected status).

E. First Amendment Free Speech Claim

Plaintiff next alleges that the Reimbursable Detail is a constraint placed upon the Plaintiff

in order to restrain content-based speech —playing certain types of music. Compl. ¶ 101-103.

As Plaintiff recognizes, this challenge to the Board’s order is an as-applied challenge. Pl.’s

Opp’n, 22 n. 12. Defendants argue that Plaintiff has failed to state a claim under the First

Amendment because the regulatory authority exercised by the ABC Board is content-neutral —

the Reimbursable Detail was imposed to “ensure that Plaintiff followed noise regulations,”

which is a valid “time, place, manner” restriction. Def.’s Mot. to Dismiss, at 16.

Under the First Amendment, the “government has no power to restrict expression

because of its message, its ideas, its subject matter, or its content.” Ashcroft v. ACLU, 535 U.S.

564, 573 (2002) (internal quotation marks omitted). “Content-based laws are thus ‘presumptively

invalid, and the government bears the burden to rebut that presumption.’” Act Now to Stop War

and End Racism Coalition v. Dist. of Colum., 798 F. Supp. 2d. 134, 145-46 (quoting United

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States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 817 (2000)). However, if a law “impacts only

the time, place or manner of expression,” it will be considered content-neutral. Id. As Plaintiff

correctly notes, music is protected as a First-Amendment speech right. Ward v. Rock Against

Racism, 491 U.S. 781, 790 (1981). Nevertheless, the government may still impose reasonable

restrictions on the time, place, and manner in which an individual or organization may exercise

this right. Ward, 491 U.S. at 791.

Here, the Defendants argue that the statute is content neutral because it “makes no

reference to music, either generally or of a specific kind. It concerns only the ‘best interest’ of

the surrounding community.” Def.’s Mot. to Dismiss at 16 (citation omitted). The Board justifies

the Reimbursable Detail order because “noise” and “violent incidents” both adversely affect the

local interest of the community. Because these are content-neutral justifications, and because

these are significant government interests, Defendants argue that there is no First Amendment

violation.

But this does not answer Plaintiff’s claim — that although the regulation is facially

content-neutral, Defendants’ enforcement of the regulation discriminates based on content. See

Pl.’s Opp’n, at 22-23. “Courts must be willing to entertain the possibility that content-neutral

enactments are enforced in a content-discriminatory manner. If they were not, the First

Amendment’s guarantees would risk becoming an empty formality.” Hoye v. City of Oakland,

653 F.3d 835, 854 (9th Cir. 2011). One kind of as-applied challenge is “based on the idea that the

law itself is neutral and constitutional…but that it has been enforced selectively in a viewpoint

discriminatory way.” McGuire v. Reilly, 386 F.3d 45, 62 (1st Cir. 2004). In essence, the Plaintiff

attacks the unwritten discriminatory policy, only manifested by the Board’s application of its

statutory authority. See e.g., Tipton v. Univ. of Hawaii, 15 F.3d 922, 927 (9th Cir. 1994); Yick

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Wo v. Hopkins, 118 U.S. 356 (1886). “Often the only way to establish whether such a policy

exists is to extrapolate from enforcement data.” Hoye, 633 F.3d at 855.

Unfortunately for the Plaintiff, it does not allege facts supporting this theory of selective

enforcement in its Complaint. Instead it alleges in its Brief in Opposition that Defendants

“repeatedly inquire[d] as to the kind of music playing at an establishment…to determine if such

entertainment attracted too much of the wrong crowd (e.g. young black males) for their liking.”

Pl.’s Opp’n. at 23. As already noted above, the Court will not look to the briefing as an

amendment of the Complaint. Nevertheless, because Plaintiff’s First Amendment challenge

could potentially move forward had such claim been included in the Complaint, the Court allows

the Plaintiff to amend its complaint as justice requires. But again, the Plaintiff is warned that,

when alleging discriminatory motivations, it must allege sufficient factual matter to survive a

motion to dismiss. Iqbal, 556 U.S. at 678 (holding that in an equal protection claim, plaintiff

must allege sufficient facts showing that defendants adopted and implemented a policy for the

specific purpose of discriminating on the account of a protected status).

F. Fifth Amendment Takings Claim

Plaintiff finally argues that Defendants’ imposition of police overtime details is an

unconstitutional regulatory taking. It asserts that while on Reimbursable Detail, MPD officers are

under no obligation to stay at the establishment they are being paid to patrol. If another

emergency arises, they are free to respond, as they are on-duty officers. Pl.’s Compl. ¶22.

Similarly, while on Reimbursable Detail, MPD officers cannot enter the paying establishment to

respond to a problem within the premises. Pl.’s Compl. ¶23. Plaintiff thus asserts that it is paying

twice for a general public service benefiting the public as a whole, resulting in an

unconstitutional taking.

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 Defendants move for dismissal, arguing that: 1) payment of money is not a taking within

the meaning of the Takings Clause; and, 2) that even if such payment could be considered a

taking, the Government did not act in an irrational or arbitrary way — it merely required the

establishment to share the costs of ameliorating the problems caused by the establishment. The

Court agrees and dismisses Plaintiff’s claim under the Takings Clause.

Defendants are correct in noting that five Justices of the Supreme Court have rejected the

theory that “an obligation to pay money constitutes a taking.” Commonwealth Edison Co v.

United States, 271 F.3d 1327, 1339 (Fed. Cir. 2001) (explaining the plurality holding in Eastern

Enterprises v. Apfel, 524 U.S. 498 (1998)). Since then, a majority of the federal appellate courts

have held that a mere payment of money, without more, is not a taking within the meaning of the

Takings Clause. As explained in Commonwealth Edison, these holdings take various forms:

Some courts have squarely held that money is not “property” within the meaning
of the Takings Clause. See, e.g., Unity Real Estate Co., 178 F.3d at 674–78
(rejecting the application of a takings analysis to the tax imposed by the Coal
Act); Atlas Corp. v. United States, 895 F.2d 745, 756 (Fed.Cir.1990) (“Requiring
money to be spent is not a taking of property.”). Other courts, taking a more
transactional approach, have concluded that government-imposed obligations to
pay money are not the sort of governmental actions subject to a takings analysis.
See Branch v. United States, 69 F.3d 1571, 1576–77 (Fed.Cir.1995) (“[T]he
principles of takings law that apply to real property do not apply in the same
manner to statutes imposing monetary liability.”); Meriden Trust & Safe Deposit
Co. v. FDIC, 62 F.3d 449, 455 & n. 2 (2d Cir.1995) (per se takings analysis is
inapplicable to congressional imposition of monetary liability); Commercial
Builders v. Sacramento, 941 F.2d 872, 876 (9th Cir.1991) (a purely financial
exaction does not constitute a taking). And still other courts have touched upon
this issue in holding, for example, that monetary obligations incidentally imposed
on a property holder as the result of the government's physical taking of real
property (i.e., the cost of moving a business from condemned property) are not
compensable. See, e.g., United States v. General Motors Corp., 323 U.S. 373,
379–80 (1945). Taken together, these cases lead this court to conclude that a
government-imposed payment of money cannot result in a compensable taking.
See Eastern, 524 U.S. at 554 (Breyer, J., dissenting) (“This case involves not an
interest in physical or intellectual property, but an ordinary liability to pay money
....”).

Commonwealth Edison Co. v. United States, 46 Fed. Cl. 29, 40-41 (Fed. Cl. 2000).

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 Moreover, as Commonwealth Edison recognizes, a theory under which simple monetary

payments are considered a taking cannot comport with the theoretical underpinnings of the Fifth

Amendment. After all, the “Takings Clause… is not prohibitory, but rather compensatory, in

nature.” Id. “[The Takings Clause] does not prohibit the taking of private property, but instead

places a condition on the exercise of that power. This basic understanding of the Amendment

makes clear that it is designed not to limit the governmental interference with property rights per

se, but rather to secure compensation in the event of otherwise proper interference amounting to

a taking.” First English Evangelical Lutheran Church of Glendale v. Cnty of Los Angeles, 482

U.S. 304, 314–15 (1987) (emphasis in original) (citations omitted). If money payments were

considered a taking, their “fair market value” would simply be the amount of money taken, and a

government would be allowed to impose monetary obligations as long as it paid the individual

the exact same amount in “fair compensation.” Branch v. United States, 69 F.3d 1571, 1575-61

(Fed. Cir. 1995). Such a result is circular and nonsensical.

Plaintiff has not asserted any allegations under its Takings claim other than one based on

an obligation to pay money. Nor has Plaintiff identified any case in which a mere obligation to

pay an assessment, even where the individual paying such an assessment is not reaping the full

benefit of the service paid for, is sufficient to establish a taking under the Fifth Amendment. For

these reasons, the Court finds that Plaintiff has failed to sufficiently state a claim for relief under

the Fifth Amendment Takings Clause and thus dismisses this claim.

G. Qualified Immunity for Plaintiff’s Constitutional Claims

Defendants finally ask the Court to dismiss Plaintiff’s constitutional claims under the

doctrine of qualified immunity, which, as set forth above, shields government officials being

sued for money damages, so long as their “conduct does not violate clearly established statutory

27
or constitutional rights of which a reasonable person would have known.” Int’l Action Ctr. v.

United States, 365 F.3d 20, 24 (D.C. Cir. 2004) (quoting Harlow v. Fitzgerald, 457 U.S. 800,

818 (1982)). In order to determine whether an individual is entitled to qualified immunity, the

Court must answer two questions: 1) whether “[t]aken in the light most favorable to the party

asserting the injury…the facts alleged show that the [state official’s] conduct violated a

constitutional right,” and 2) that the constitutional right was clearly established. Saucier v. Katz,

533 U.S. 194, 201 (2001).

The Court, however, cannot rule on the qualified immunity question with respect to the

constitutional claims at this time. Of the three constitutional claims raised by Plaintiff, the Court

has dismissed one outright, and has dismissed the other two but granted the Plaintiff leave to

amend his complaint on those claims. Because there currently remains no viable constitutional

claim remaining, the Court does not have sufficient information to determine the answer to either

of the two questions articulated in Saucier.

V. CONCLUSION

For the foregoing reasons, Defendants’ Motion to Dismiss is granted, but Plaintiff is

granted leave to amend its claims brought pursuant to the Equal Protection Clause and the First

Amendment. An order consistent with this Memorandum Opinion is separately and

contemporaneously issued.

Dated: March 31, 2014 RUDOLPH CONTRERAS
United States District Judge

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