UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
METROPOLITAN WASHINGTON
CHAPTER, ASSOCIATED BUILDERS
AND CONTRACTORS, INC., et al.,
No. 12-cv-853 (EGS)
Plaintiffs,
v.
DISTRICT OF COLUMBIA, et al.,
Defendants.
MEMORANDUM OPINION
I. Introduction
Plaintiffs Metropolitan Washington Chapter, Associated
Builders and Contractors, Inc. (“Association”); Miller & Long
Concrete Construction, Inc. (“Miller & Long”); Emmett Morris,
Jr.; and Dairon Upshur (collectively “Plaintiffs”) bring this
action against Defendants District of Columbia and Mayor Muriel
Bowser (collectively “Defendants” or the “District”) alleging
that the District’s First Source Employment Agreement Act of
1984, as amended by the Workforce Intermediary Establishment and
Reform of First Source Amendment Act of 2011, D.C. Code § 2-
219.01 et. seq., (hereinafter “First Source Act” or “Act”)
discriminates against nonresidents of the District of Columbia
in violation of Plaintiffs’ Substantive Due Process rights under
the U.S. Constitution’s Fifth Amendment incorporation of the
protections of the Privileges and Immunities Clause. Pending
before the Court are the parties’ cross motions for summary
judgment. See Defs.’ Mot., ECF No. 63; 1 Pls.’ Mot., ECF No. 65.
The Court has carefully considered the motions, oppositions,
replies thereto, the supplement and response thereto, the
applicable law, and the entire record herein. For the reasons
explained below, the Court GRANTS Defendants’ Motion for Summary
Judgment, ECF No. 63; and DENIES Plaintiffs’ Cross Motion for
Summary Judgment, ECF No. 65.
II. Background
Much of the relevant background concerning the District of
Columbia’s unique position as the “only jurisdiction in the
country that is legally barred from imposing a commuter tax on
non-residents who come into the city to work” was described in
this Court’s Memorandum Opinion responding to the District’s
Motion to Dismiss. See Metro. Washington Chapter v. D.C. (“MTD
Mem. Op.”), 57 F. Supp. 3d 1, 7 (D.D.C. 2014). The Court will
briefly summarize the facts relevant to the pending motions, and
then set forth the procedural background.
1 Whenciting electronic filings throughout this Opinion, the
Court cites to the ECF page number, not the page number of the
filed document.
2
A. Factual Background
Except where indicated, the following facts are not in
dispute. The First Source Act traces its roots to the District
of Columbia Mayor’s Order 83-265, signed by Mayor Marion Barry
in 1983. See Pls.’ Statement of Material Facts (“SOMF”), ECF No.
65-1 at 7-8 ¶¶ 12-14; Defs.’ Resp. to Pls.’ SOMF, ECF No. 67-2
at 4 ¶¶ 12-14; Employment Agreement Goals and Objectives for All
District of Columbia Projects, District of Columbia Mayor’s
Order, No. 83-265 (Nov. 9, 1983) (“Mayor’s Order”), ECF No. 65-
4. Under the Mayor’s Order “any project funded . . . [by]
District of Columbia funds . . . [had to] reflect the goal of .
. . enhanc[ing] business and economic development by increasing
jobs for District residents and broadening the District of
Columbia's tax base.” Id. To reflect this goal, agreements with
the District were required to contain the following:
[G]oals and objectives for utilization of bona
fide residents of the District of Columbia in
each project's labor force:
(a) At least fifty-one percent of all jobs
created are to be performed by employees who
are residents of the District of Columbia.
(b) At least fifty-one percent of apprentices
and trainees employed shall be residents of
the District of Columbia registered in
programs approved by the D.C. Apprenticeship
Council.
Id. The Mayor’s Order was a precursor to the District’s First
Source Employment Agreement Act of 1984, formerly codified as
3
D.C. Law 5-93. See Testimony of Drew Hubbard, Former Associate
Director at the District’s Department of Employment Services
(“DOES”) and Former Legislative Aide with the District of
Columbia City Council (“Hubbard Test.”), ECF No. 73-4 at 7 at
21:1-22:19. In the ensuing years, prior to the adoption of the
Amended Act, there were no penalties imposed for violations of
the original, 1984 Act. See Pls.’ SOMF, ECF No. 65-1 at 8 ¶ 16;
Hubbard Test., ECF No. 73-4 at 21 at 77:20-78:5.
In 2011, Bill 19-50, entitled the Workforce Intermediary
Establishment and Reform of First Source Amendment Act of 2011
was introduced. See Michael Brown, Chair Council of The D.C.
Comm. on Housing and Workforce Dev. (“Workforce Committee”),
Comm. Rep. (2011) (“DCHW Report”), ECF No. 65-3 at 2. The
Workforce Committee studied the “issues related [to] the reform
of the District's First Source law for over a year.” Id. at 3.
Throughout this period, the Workforce Committee took in “witness
testimony” and “stakeholder feedback”, which led the Workforce
Committee to conclude that new legislation was needed because,
inter alia,
1. High levels of unemployment have persisted
citywide for multiple years . . . ;
2. Sustained high levels of unemployment
typically lead to severe financial
hardships for those affected;
3. In the District . . . the Food Stamp program
has increased by 54% . . .; the TANF
4
caseload has increased by 18% . . .; the
combined Medicaid and Healthcare Alliance
caseload increased by 16% . . .; the number
of homeless residents accessing services
from [the District’s] continuum of care has
increased by 20% . . .; and the number of
residents living in deep poverty (incomes
less than half of the federal poverty rate
or $11,000 a year for a family of 4) has
increased by 37% . . . ;
4. [T]here are over 700,000 jobs in the
District and yet approximately 72% of those
jobs are held by people living outside of
the city's borders;
5. The District's Congressionally-imposed ban
on taxing any of the income that leaves the
city means that the District is subsidizing
surrounding jurisdictions to the tune of $1
billion to $2 billion a year in lost
revenue; and
6. [E]nforcement and applying proscribed
penalties [of the 1984 Act] is nearly
impossible because showing evidence of
noncompliance with the statute's ‘best
efforts’ to meet the 51% new hire
requirement is a very low legal standard.
Id. at 4-5 (internal quotation marks omitted). In addition, the
Workforce Committee found that with “more than 70% of [the
District’s] jobs . . . filled by nonresidents . . . coupled with
city's inability to tax the income of nonresidents, along with
several other related negative indicators, support[ed] the
argument” that its law was constitutionally valid. Id. at 10.
The D.C. City Council eventually passed the Amended Act,
which became effective on February 24, 2012. Pls.’ SOMF, ECF No.
65-1 at 8 ¶ 17; Defs.’ Resp. to Pls.’ SOMF, ECF No. 67-2 at 4 ¶
5
17. After the Act became effective, it was “transmitted to
Congress for review” on March 23, 2012. Defs.’ Mot., ECF No. 63
at 10. In its current form, the Mayor is required to maintain
the “First Source Register,” which “is the Department of
Employment Services Automated Applicant File, which consists of
the names of unemployed District residents registered with the
Department of Employment Services.” D.C. Code § 2-219.02(a).
Under the law,
(a) The Mayor shall include for every
government-assisted project or contract a
requirement that the beneficiary enter into an
employment agreement with the District of
Columbia government which states that:
(1) The first source for finding
employees to fill all jobs created by the
government-assisted project or contract
will be the First Source Register; and
(2) The first source for finding
employees to fill any vacancy occurring
in all jobs covered by an employment
agreement will be the First Source
Register.
(b) In selecting unemployed District residents
from the First Source Register for interviews
for all jobs covered by each employment
agreement, the Mayor shall:
(1) Give first preference to unemployed
District residents pursuant to § 2-
219.01(6)(A); and
(2) Give second preference to unemployed
District residents pursuant to § 2-
219.01(6)(B).
D.C. Code § 2-219.03(a). In addition, for any project totaling
6
between $300,000 and $5,000,000, the Mayor must also include a
“provision that at least 51% of the new employees hired to work
on the project or contract shall be District residents,” see
D.C. Code § 2-219.03(e); and for projects totaling $5 million or
more, the Mayor must include a provision requiring that at least
“20% of journey worker hours by trade”, “60% of apprentice hours
by trade”, “51% of the skilled laborer hours by trade”, and “70%
of common laborer hours” shall be performed by District
residents. D.C. Code § 2-219.03(e)(1A)(A).
If a beneficiary is unsuccessful in meeting its First
Source Law requirements, it can request a waiver if, inter alia,
DOES certifies that (1) the beneficiary made a “good-faith
effort to comply” or (2) “there are insufficient eligible
applicants from the First Source Register that possess the
skills required by the position.” D.C. Code § 2-219.03(e)(3)(A).
On the other hand, if the beneficiary fails “to meet the
required hiring requirements” and fails “to receive a good-faith
waiver” the District may impose “a penalty equal to ⅛ of 1% of
the total amount of the direct and indirect labor costs of the
project or contract for each percentage by which the beneficiary
fails to meet the hiring requirements.” D.C. Code § 2-
219.03(e)(4)(A). Further, if the beneficiary is found to be in
“willful breach of the employment agreement,” fails “to submit
the required hiring compliance report”, or deliberately submits
7
“falsified data,” the District can impose a “monetary fine of 5%
of the total amount of the direct and indirect labor costs of
the project or contract, in addition to other penalties provided
by law.” Id. Similar to the 20 years prior to the Amended Act,
the District has not imposed any penalties or fines. See Pls.’
Mot., ECF No. 65 at 23; see also Pls.’ Suppl., ECF No. 71 at 1
(noting the District has “sought to enforce” the First Source
Act, but has not actually enforced any fines or penalties).
B. Procedural History
Plaintiffs filed their initial complaint on May 25, 2012.
See Compl., ECF No. 1. After a full round of briefing at the
motion to dismiss stage, the Court dismissed all but the claims
arising under the Privileges and Immunities Clause, on July 14,
2014. See MTD Mem. Op., 57 F. Supp. 3d at 26. Thereafter, the
District filed a motion for judgment on the pleadings on July
28, 2014. See Defs.’ Mot. for J. on Pleadings, ECF No. 26. After
yet another round of briefing, including an Amicus Brief, see
Amicus Br., ECF No. 35, and Supplemental Brief, see Suppl. Br.,
ECF No. 41, filed by Dean Erwin Chemerinsky; 2 and a hearing on
the motion on December 4, 2015, see Min. Entry, Dec. 4, 2015;
the Court ordered Plaintiffs to file an amended complaint to
clarify the remaining claim. See Min. Order, Dec. 4, 2015.
2 The Court expresses its sincere appreciation to Amicus.
8
Plaintiffs filed their Amended Complaint on December 14, 2015
clarifying that the sole remaining claim is that the First
Source Act deprives nonresidents of their fundamental right to
pursue a common calling in any jurisdiction, in violation of the
“Fifth Amendment of the United States Constitution [which]
incorporates the protections of the [Privileges and Immunities]
Clause.” See Am. Compl., ECF No. 46 at 36. The District filed
its Motion for Summary Judgment on December 5, 2016, see Defs.’
Mot., ECF No. 63; and Plaintiffs filed their Cross-Motion for
Summary Judgment on that same day. See Pls.’ Mot., ECF No. 65.
Both Plaintiffs and the District filed their Oppositions on
December 21, 2016. See Pls.’ Opp’n, ECF No. 66; Defs.’ Opp’n,
ECF No. 67. On January 24, 2017, both the District and
Plaintiffs filed their Replies. See Defs.’ Reply, ECF No. 69;
Pls.’ Reply, ECF No. 70. On July 17, 2017, Plaintiffs filed a
Supplemental Brief, see Pls.’ Suppl., ECF No. 71; and the
District filed its Response on July 21, 2017, see Defs.’ Resp.,
ECF No. 72. The cross motions are ripe for the Court’s
consideration.
III. Legal Standard
Pursuant to Federal Rule of Civil Procedure 56, summary
judgment should be granted “if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P.
9
56(a); Waterhouse v. District of Columbia, 298 F.3d 989, 991
(D.C. Cir. 2002). “A fact is material if it ‘might affect the
outcome of the suit under the governing law,’ and a dispute
about a material fact is genuine ‘if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.’” Steele v. Schafer, 535 F.3d 689, 692 (D.C.Cir.2008)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)).
In ruling on cross-motions for summary judgment, the Court
shall grant summary judgment only if one of the moving parties
is entitled to judgment as a matter of law upon material facts
that are not genuinely disputed. See Citizens for Responsibility
& Ethics in Wash. v. U.S. Dep't of Justice, 658 F.Supp.2d 217,
224 (D.D.C. 2009) (Sullivan, J.). Summary judgment will be
granted, therefore, if the plaintiff fails to submit evidence
that creates a genuine factual dispute or entitlement to
judgment as a matter of law. Adair v. Solis, 742 F. Supp. 2d 40,
50 (D.D.C. 2010) (Sullivan, J.), aff’d, 473 F. App’x 1 (D.C.
Cir. 2012).
IV. Analysis
A. Standing
Article III limits the judicial power of the United States
to the resolution of cases or controversies. See Gettman v. Drug
Enf't Admin., 290 F.3d 430, 432 (D.C. Cir. 2002). To meet the
10
“irreducible constitutional minimum of standing,” see Lujan v.
Defs. of Wildlife, 504 U.S. 555, 560 (1992); “a plaintiff must
show (1) an ‘injury in fact,’ (2) a sufficient ‘causal
connection between the injury and the conduct complained of,’
and (3) a ‘likel[ihood]’ that the injury ‘will be redressed by a
favorable decision.’” Susan B. Anthony List v. Driehaus, 134 S.
Ct. 2334, 2341 (2014) (quoting Lujan, 504 U.S. at 560-61 (1992)).
“The party invoking federal jurisdiction bears the burden of
establishing these elements.” Lujan, 504 U.S. at 561 (citations
omitted). “Since they are not mere pleading requirements but
rather an indispensable part of the plaintiff's case, each
element must be supported in the same way as any other matter on
which the plaintiff bears the burden of proof, i.e., with the
manner and degree of evidence required at the successive stages
of the litigation.” Id.
a. Individual Plaintiffs
The District argues that the individual plaintiffs, Mr.
Morris and Mr. Upshur, should be dismissed because they have
provided no evidence of an injury in fact. See Defs.’ Mot., ECF
No. 63 at 22. Specially, the District contends that since the
“First Source Act imposes its limitations on new hires, not
existing employees . . . the individual plaintiffs lack standing
because they are already employed by Miller & Long (and have
been so for years).” Id. at 22-23. Furthermore, while “the
11
individual plaintiffs assert that they are ‘treated differently
than their peers’ and are at a ‘significant disadvantage’
because of where they live, and ‘are more susceptible to being
laid off or let go . . . discovery revealed that neither
individual plaintiff suffered any injury as a result of the
operation of the First Source Act.” Id. (quoting Defs.’ Ex. 3 at
5). Plaintiffs fail to respond to the District’s arguments,
asserting merely that the individual Plaintiffs have standing
because “individuals as well as the companies that might employ
them are adversely impacted by the First Source Act” and observe
that “[j]ust as other laws targeting nonresidents are filled by
those nonresidents and not by residents who do not meet other
criteria under the act, so too here the law is properly
challengeable by nonresidents whose opportunities for employment
are impinged by the reach of the law.” Pls.’ Opp’n, ECF No. 66
at 9.
In the Court’s MTD Mem. Op., the Court found that the
“individual plaintiffs had alleged a sufficient injury in fact
for the purposes of Article III standing” because “as non-
District residents, they [could] not register for the First
Source Register and that their ability to compete for
construction jobs therefore has been and will continue to be
adversely impacted by the Act.” 57 F. Supp. 3d at 16. However,
at the summary judgment stage a plaintiff can no longer rest on
12
“mere allegations,” but “must set forth by affidavit or other
evidence the specific facts which will be taken as true.” Lujan,
504 U.S. at 561 (internal quotation marks and citations
omitted).
Here, the individual Plaintiffs have failed to provide
evidence of injury in fact. The individual Plaintiffs claim
injury as a result of being excluded from the First Source
Register. Defs.’ Ex. 3 at 4. The First Source Act requires that
the “First Source Register . . . consists of the names of
unemployed District residents registered with the Department of
Employment Services.” D.C. Code § 2-219.02(a). The individual
Plaintiffs cannot be included on that list for two reasons.
First, neither is a resident of the District of Columbia. See
Am. Compl., ECF No. 46 ¶ 7 (“Emmett Morris Jr. is a resident of
the Commonwealth of Virginia and . . . Dairon Upshur is a
resident of the State of Maryland … .”). Second, even if they
were District of Columbia residents, they could not be included
on the list because they are already employed by Miller & Long,
and have been for years. See Morris Dep., ECF No. 73-1 at 10-11
at 10:21–11:1, 15:12-16, 14:8-19 (Mr. Morris testifying that he
had worked as a carpenter for Miller & Long for 35 years, has
not been unemployed or laid off, and has worked as much as he
likes); See Upshur Dep., ECF No. 73-5 at 11 at 11:2-3 (Mr.
Upshur testifying that he had worked for Miller & Long for more
13
than 5 years except for a single incident when Miller & Long
erroneously sent him to the Marriot Marquis construction site,
and so he was sent away and then assigned to another project
within a day or two.).
Furthermore, the individual plaintiffs claim that they “are
at a significant disadvantage,” Am. Compl., ECF No. 46 ¶ 14;
because “[t]hey are [] not eligible to be included by Miller &
Long in its bids or proposals for projects covered by the First
Source Act for which certain quotas are required. They are
treated differently from their peers for purposes of being
included on such projects, which places them at a significant
disadvantage based not on their skills or talents but based
solely on where they live,” Pls.’ Responses and Objections to
Defs.’ First Set of Interrogatories, ECF No. 64-4 at 6. However,
the individual Plaintiffs have provided no evidence to support
these claims. Mr. Morris testified that he has “never” “felt
that it’s ever harder for [him] to get work,” Defs.’ Ex. 4 at
16:2-5; he has never been “treated differently from [his] peers
because of the First Source Act,” id. at 15:17-20; and has never
“been sent away from a job site because [he] lived in Virginia,”
id. at 19:9. Mr. Upshur’s sole evidence of alleged
discrimination occurred when Miller and Long erroneously sent
him to the wrong construction site, which it corrected within a
14
day or two. Defs.’ Ex. 5 at 15:12-15. 3 However, any injury Mr.
Upshur may have suffered was not suffered directly by him,
rather by Miller & Long, as it is his employer, not he, is
subject to the local business preference. This indirect injury
is insufficient to establish standing. See Lojo v. Paulos, 1997
U.S. App. LEXIS 3174, 1997 WL 68544 (D.C. Cir. Jan. 16, 1997
(per curiam) (employees lack standing where their injury “was
incidental to corporation’s injury”).
For these reasons, neither individual Plaintiff has
standing to maintain this action and they are HEREBY DISMISSED
from this action.
b. Association Plaintiff
The District also challenges the standing of the
Association, contending that neither it nor, with the exception
of Miller & Long, any of its members suffered an injury. See
Defs.’ Mot., ECF No. 63 at 27. The District states that out of
the Association’s 550 member companies, it could “not name a
single project on which a member had declined to bid because of
the First Source Act” or “a single company that competes for
First Source Act jobs that does not try to comply with the Act.”
Id. However, an Association may establish that it has standing
by demonstrating that “(1) at least one of its members would
3 This site was not covered by the First Source Act. ECF No. 46 ¶
78.
15
have standing to sue in his own right, (2) the interests the
association seeks to protect are germane to its purpose, and (3)
neither the claim asserted nor the relief requested requires
that an individual member of the association participate in the
lawsuit.” Chamber of Commerce v. EPA, 642 F.3d 192, 200 (D.C.
Cir. 2011). Here, the District does not challenge Miller &
Long’s 4 standing to maintain this lawsuit. See generally Defs.’
Mot., ECF No. 63. According, because one of its members has
standing to sue, the Association has standing to use.
B. There Is No Basis for Incorporating the Rights
Protected by the Privileges and Immunities Clause into
the Fifth Amendment’s Due Process Clause
It has long been recognized in this Circuit that the
Privileges and Immunities Clause does not apply to the District
of Columbia, which as a federal territory, sits under the
exclusive authority of Congress. 5 See Duehay v. Acacia Mut. Life
Ins. Co., 105 F.2d 768, 775 (D.C. Cir. 1939) (stating that the
Privileges and Immunities Clause is “inapplicable to the
District of Columbia [because] it is a limitation upon the
powers of the states and in no way affects the powers of
4 Miller & Long is a member of ABC Metro-Washington. Am. Compl.,
ECF No. 46 ¶ 5.
5 Plaintiffs observe that this Court has determined that pursuant
to this precedent, the Privileges and Immunities Clause does not
apply to actions of the District of Columbia government and
treats this ruling as law of the case. Pls.’ Mot., ECF No. 65 at
17.
16
Congress over the territories and the District of Columbia.”);
see also e.g., Pollack v. Duff, 958 F. Supp. 2d 280, 288 (D.D.C.
2013), aff'd, 793 F.3d 34 (D.C. Cir. 2015) (“The case law in
this Circuit confirms that the Privileges and Immunities Clause
does not apply to the federal government.”).
Accordingly, Plaintiffs argue that the First Source Act
“can [] be challenged under the Fifth Amendment which applies to
the District of Columbia” because “[t]he rights protected by the
Privileges and Immunities Clause are the rights of individuals
to be free from discrimination based on where they live in the
United States.” Pls.’ Mot., ECF No. 65 at 17. Conceding that
they could find ‘no decision “discussing the ‘incorporation’ of
the rights protected by the Privileges and Immunities Clause
into the Fifth Amendment”; Plaintiffs assert that “because the
rights protected are fundamental rights, their protection must
also be available through the Fifth Amendment.” Id. at 18.
Plaintiffs observe that “[t]he Supreme Court has recognized the
Privileges and Immunities Clause protects individual rights,”
id. (citing cases); arguing that “the individual right in this
case—the right to pursue a common calling in another part of the
United States—has been repeatedly recognized as a fundamental
right,” id. (citing United Bldg. & Const. Trades Council, 465
U.S. at 219.
17
The “Due Process Clause protects individual liberty against
certain government actions regardless of the fairness of the
procedures used to implement them.” Washington v. Glucksberg,
521 U.S. 702, 719–20 (1997) (quoting Collins v. Harker Heights,
503 U.S. 115, 125 (1992)) (internal quotation marks omitted).
The Due Process “Clause also provides heightened protection
against government interference with certain fundamental rights
and liberty interests.” Id. at 720; see, e.g., Loving v.
Virginia, 388 U.S. 1, 12 (1967) (finding a state law against
interracial marriage in violation of the Due Process Clause);
Griswold v. Connecticut, 381 U.S. 479, 485 (1965) (finding a
state law forbidding the use of contraceptives in violation of
the Due Process Clause).
Courts are “reluctant to expand the concept of substantive
due process because guideposts for responsible decisionmaking in
this unchartered area are scarce and open-ended.” Washington,
521 U.S. at 720. “Our established method of substantive-due-
process analysis has two primary features: First, we have
regularly observed that the Due Process Clause specially
protects those fundamental rights and liberties which are,
objectively,” id. at 721; “so rooted in the traditions and
conscience of our people as to be ranked as fundamental.” Snyder
v. Massachusetts, 291 U.S. 97, 105, (1934). Furthermore, they
are “implicit in the concept of ordered liberty,” “such that
18
neither liberty nor justice would exist if they were
sacrificed.” Palko v. Connecticut, 302 U.S. 319, 325 (1937).
Second, Courts require (1) a “careful description of the
asserted fundamental liberty interest.” Glucksberg, 521 U.S. at
721.
Neither party has cited authority that persuades the Court
that there is a basis for incorporating the rights protected by
the Privileges and Immunities Clause into the Fifth Amendment’s
Due Process protections. The Court is unpersuaded by the
assertion that Truax v. Corrigan, 257 U.S. 313 (1921) provides
such a basis. Truax concerned a labor dispute where state law
limited the state court’s authority to grant plaintiff, the
owners of a restaurant, from obtaining injunctive relief against
their picketing employees. In noting that the restaurant owners
could have sued other restaurant owners who interfered with
their business, but not their own employees, the Supreme Court
stated, “The due process clause requires that every man shall
have the protection of his day in court, and the benefit of the
general law, a law which hears before it condemns, which
proceeds not arbitrarily or capriciously, but upon inquiry, and
renders judgment only after trial, so that every citizen shall
hold his life, liberty, property and immunities under the
protection of the general rules which govern society.” Id. at
332. The primary purpose of the Privileges and Immunities Clause
19
“was to help fuse into one Nation a collection of independent,
sovereign States. It was designed to insure to a citizen of
State A who ventures into State B the same privileges which the
citizens of State B enjoy. For protection of such equality the
citizen of State A was not to be restricted to the uncertain
remedies afforded by diplomatic processes and official
retaliation.” Toomer v. Witsell, 334 U.S. 385, 395 (1948).
Accordingly, the purpose of the Clause is specific to the
American experiment; it does not amount to the “immunities under
the protection of the general rules which govern society.”
Truax, 257 U.S. at 332.
Nor does Bolling v. Sharpe, 347 U.S. 497 (1954) provide a
basis. In Bolling, a companion case to Brown v. Board of
Education, 347 U.S. 483 (1954), which prohibited segregation
based on race in District of Columbia schools, the Supreme Court
held that the Due Process Clause of the Fifth Amendment can
incorporate equal-protection principles. Bolling, 347 U.S. at
500. But as Defendants persuasively argue, it does not follow
from this holding that all of the individual rights encompassed
by the Privileges and Immunities Clause are incorporated into
the Fifth Amendment.
Furthermore, the Privileges and Immunities Clause does not
bar all discrimination against non-residents; rather the inquiry
would be whether there is a “substantial reason” for treating
20
citizens of different states differently. United Bldg. & Const.
Trades Council of Camden County and Vicinity v. Mayor and
Council of the City of Camden, 465 U.S. 208, 221 (1984). Were
the Court to incorporate the protections of the Privileges and
Immunities Clause into the Fifth Amendment, this could result in
greater protection than the explicit text of the Constitution.
See Bolling, 347 U.S. at 694-95 (unjustifiable discrimination is
a denial of the due process of law guaranteed by the Fifth
Amendment).
Plaintiffs overstate Supreme Court precedent when they
assert that “the right to pursue a common calling in another
part of the United States—has been repeatedly recognized as a
fundamental right.” In United Bldg. & Const. Trades Council, the
Supreme Court’s “[a]pplication of the Privileges and Immunities
Clause to a particular instance of discrimination against out-
of-state residents” entailed an inquiry into whether: (1) the
ordinance in question burdens a privilege and immunity protected
by the Clause; and (2) whether there is a “substantial reason”
for treating citizens of different states differently. 465 U.S.
at 221. In determining the answer to the first question, the
Supreme Court stated that “the pursuit of a common calling is
one of the most fundamental of those privileges protected by the
Clause.” Id. at 219. This fundamental “privilege” was
specifically tied to the purpose of the Clause; it is not akin
21
to the fundamental rights and liberties protected by the Due
Process Clause. See Snyder, 291 U.S. at 105 (the right or
liberty must be “so rooted in the traditions and conscience of
our people as to be ranked as fundamental”); Palko, 302 U.S. at
325 (“implicit in the concept of ordered liberty,” “such that
neither liberty nor justice would exist if they were
sacrificed”).
Because the Court has determined that there is no basis
upon which to incorporate the Privileges and Immunities Clause
into the Fifth Amendment, the Court need not reach the questions
of whether the Act passes constitutional muster, nor the
appropriate level of scrutiny to apply to that inquiry.
V. Conclusion
For the reasons set forth above, the Court GRANTS
Defendants’ Motion for Summary Judgment, ECF No. 63, and DENIES
Plaintiffs’ Cross Motion for Summary Judgment, ECF No. 65. An
appropriate Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
12/30/2021
22