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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 16, 2004 Decided July 20, 2004
No. 03-7076
FRATERNAL ORDER OF POLICE DEPARTMENT OF
CORRECTIONS LABOR COMMITTEE, ET AL.,
APPELLANTS
v.
ANTHONY A. WILLIAMS, MAYOR,
DISTRICT OF COLUMBIA, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 02cv00461)
Joshua D. McInerney argued the cause for the appellants.
James F. Wallington was on brief.
William J. Earl, Assistant Attorney General, District of
Columbia argued the cause for the appellees. Robert J.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Spagnoletti, Attorney General, District of Columba, and Ed-
ward E. Schwab, Assistant Attorney General, were on brief.
Before: HENDERSON, ROGERS and GARLAND, Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: The Fraternal
Order of Police/Department of Corrections Labor Committee,
its chairman and two member correctional officers (collective-
ly the Union) appeal the district court’s dismissal of their
complaint brought under 42 U.S.C. § 1983 against the Dis-
trict of Columbia (District) and two District officials, Mayor
Anthony J. Williams (Mayor) and District of Columbia Di-
rector of Corrections Odie Washington (DOC Director). The
Union claims that the two officials acted with deliberate
indifference to the safety of District correctional officers
when they laid off several hundred of them at the same time
they added to the number of inmates housed at the District’s
Central Detention Facility (D.C. Jail or Jail). The Union
contends that its claim arises under the ‘‘State endangerment
concept’’ recognized by this court in Butera v. District of
Columbia, 235 F.3d 637, 651 (D.C. Cir. 2001). We disagree
and affirm the district court’s judgment albeit in a different
procedural form.
I.
In 1997, the Congress passed the National Capital Revitali-
zation and Self–Government Improvement Act, which called
for, among other things, closure of the District’s Lorton
Correction Complex by December 31, 2001. Pub. L. No. 105–
33, § 11201(b), 111 Stat. 251, 734; see D.C. Code Ann. § 24–
101(b). Pursuant to that statute, District officials in late 2001
notified the Union that it intended to transfer a significant
number of inmates from Lorton to the D.C. Jail. At roughly
the same time, in December 2001 and February 2002, and in
response to both fiscal year 2002 congressional appropriations
for the DOC and the ‘‘surplus’’ of correctional officers follow-
ing Lorton’s closing, the Mayor approved a series of reduc-
3
tions-in-force (RIFs) decreasing the total number of correc-
tional officers in the District’s employ.
The Union opposed the RIFs and also claimed that the
District, by transferring Lorton prisoners to the D.C. Jail,
was violating a court-ordered ceiling on the number of in-
mates who could be housed at the Jail, see Campbell v.
McGruder, 416 F. Supp. 111, 117 (D.D.C. 1976), aff’d, 580
F.2d 521 (D.C. Cir. 1978) – an order that was lifted by the
time of the district court’s decision here, see Campbell v.
McGruder, 86 Fed. Appx. 426, 2004 WL 180423 (D.C. Cir.
Jan. 23, 2004). – and adding to ongoing unhealthy and danger-
ous working conditions at the Jail. It filed an administrative
complaint with the District’s Public Employee Relations
Board and in March 2002 filed suit in federal court pursuant
to 42 U.S.C. § 1983. It claimed that the Mayor and the DOC
Director, by increasing the number of inmates at the Jail
while decreasing the number of correctional officers there,
affirmatively subjected correctional officers to an increased
likelihood of inmate assaults in violation of their Fifth Amend-
ment right to Due Process and their entitlement to a safe and
sanitary work environment as recognized in D.C. Code Ann.
§ 32–1103(a).1 The Union sought injunctive relief: namely
an order prohibiting the RIFs and requiring the District to
improve the showers and ventilation system at the Jail.
In connection with the Union’s requests for a temporary
restraining order (granted) and a preliminary injunction (de-
nied), the parties submitted numerous affidavits, declarations
and exhibits. The District then moved to dismiss the com-
plaint in its entirety pursuant to Fed. R. Civ. P. 12(b)(1) on
the ground that the district court lacked subject matter
1 Section 32–1103(a) provides that an ‘‘employer shall: (1) furnish
employees with a place and conditions of employment that are free
from recognized hazards that may cause or are likely to cause death
or serious physical harm or illness to the employees; and (2) comply
with all occupational safety and health rules.’’ D.C. Code Ann.
§ 32–1103(a). Section 32–1101(6) provides that ‘‘[t]he term ‘em-
ployer’ shall include a District government or quasi-governmental
agency.’’ D.C. Code § 32–1101(6).
4
jurisdiction. Joint Appendix (JA) 142. The Union countered
with additional evidence of the allegedly dangerous conditions
at the Jail, relying on Butera and the right to be provided
with a safe workplace and conditions of employment. The
District responded that, even under Butera, the Union failed
to assert an injury in fact or a constitutional claim because its
member correctional officers had voluntarily exposed them-
selves to any alleged endangerment by accepting employment
with the District.
In May 2003, the district court granted the District’s
motion. Fraternal Order of Police, Dep’t of Corrections
Labor Comm. v. Williams, 263 F. Supp. 2d 45 (D.D.C. 2003).2
Assuming that District officials could be held liable either for
staffing policies in response to shortfalls in congressional
appropriations or for the Congress’s decision to close Lorton,
the court found that ‘‘[n]othing presented by the [Union] is so
egregious that, as a matter of law, it shocks the conscience.’’
Id. at 47. The court further noted that the United States
Supreme Court in Collins v. City of Harker Heights, 503 U.S.
115, 128–29 (1992), expressly rejected the notion that the Due
Process Clause protects a municipal employee’s interest in a
safe work environment and that this court in Washington v.
District of Columbia, 802 F.2d 1478, 1482 (D.C. Cir. 1986),
rejected a prison guard’s similar claim. See Fraternal Order
of Police, 263 F. Supp. 2d at 48. The court then declined to
exercise supplemental jurisdiction under 28 U.S.C. § 1367
over the Union’s remaining state law claims. Id. The Union
appeals the dismissal.
2The district court order does not make explicit the basis of the
dismissal. See Fraternal Order of Police, 263 F. Supp. 2d at 46–48.
Nonetheless, it alludes to the District’s argument that it ‘‘lack[ed]
subject matter jurisdiction over [the Union’s] alleged federal claim
because there is no government duty protected by substantive due
process to provide its employees minimal levels of safety and
security in the workplace.’’ Id., at 47. Moreover, as noted, the
District moved to dismiss ‘‘pursuant to Federal Rule of Civil
Procedure 12(b)(1).’’ JA 142. We therefore view the district
court’s judgment as a dismissal pursuant to Rule 12(b)(1).
5
II.
The District moved to dismiss the Union’s complaint for
lack of subject matter jurisdiction pursuant to Federal Rule
of Civil Procedure 12(b)(1) and the district court granted the
motion. In so concluding, the court erred. The district court
had jurisdiction to hear the Union’s complaint brought pursu-
ant to 42 U.S.C. § 1983 because, as the Supreme Court
explained in Bell v. Hood, 327 U.S. 678, 681 (1946), the
complaint sought ‘‘recovery directly under the Constitution or
laws of the United States.’’ See 28 U.S.C. § 1343; Yates v.
Dist. of Columbia, 324 F.3d 724, 725 (D.C. Cir. 2003) (per
curiam); Best v. Kelly, 39 F.3d 328, 330 (D.C. Cir. 1994).
Having sought such recovery, the Union’s complaint could be
dismissed under Rule 12(b)(1) only if it was ‘‘wholly insub-
stantial and frivolous’’ or ‘‘so patently without merit as to
justify TTT the court’s dismissal for want of jurisdiction.’’
Bell, 327 U.S. at 682-83; see Best, 39 F.3d at 330. We do not
believe the Union’s claim can be so viewed. Instead, the
complaint was subject to dismissal for failure to state a claim
upon which relief can be granted pursuant to Federal Rule of
Civil Procedure 12(b)(6). See Bell, 327 U.S. at 682; Yates,
324 F.3d at 725. The substance of the District’s motion was
that the Union had failed to state a claim actionable under
section 1983.3 Because both parties submitted materials out-
side the pleadings and the court relied on those materials in
concluding that the Union had failed to state a claim, the
motion to dismiss should have been converted to a summary
judgment motion under Federal Rule of Civil Procedure 56.
See Fed. R. Civ. P. 12(b) (‘‘If TTT matters outside the pleading
are presented to and not excluded by the court, the motion
3 Indeed, District counsel at one point so characterized the motion
before the district court: ‘‘[T]he case is before the [c]ourt on
basically a 12(b)(6) motion.’’ JA at 236; see also Reply to Plain-
tiffs’ Supplemental Response to Defendants’ Motion to Dismiss, JA
at 193 (‘‘The thrust of [the District’s] motion to dismiss is that the
[Union] and its members do not have a substantive due process
right that would compel the District TTT to hire additional employ-
ees to staff the [D.C.] Jail in order to address what, they assert, is
an unreasonably dangerous workplace.’’)
6
shall be treated as one for summary judgment.’’); Yates, 324
F.3d at 725 (parties’ submissions and court’s consideration of
matters outside pleadings ‘‘had the effect of converting the
Rule 12 motion TTT into a motion for summary judgment’’).
We may, however, ‘‘characterize[ ]’’ the district court’s dis-
missal as a grant of summary judgment under Rule 56(c) and
affirm. Mazaleski v. Treusdell, 562 F.2d 701, 708 (D.C. Cir.
1977) (treating district court’s dismissal ‘‘for failure to state a
claim over which it had jurisdiction’’ as ‘‘a summary judgment
[when] both parties had presented affidavits and other mate-
rials ‘outside the pleading’, these were expressly considered
by the court, and it is clear from the [court’s decision] that an
intended, albeit unarticulated, ground for dismissal was Rule
12(b)(6)’’ (quoting Fed. R. Civ. P. 12(b))); see Yates, 324 F.3d
at 726 (‘‘resulting order’’ from motion to dismiss ‘‘must be
treated [on appeal] as a grant of summary judgment under
Rule 56’’ because ‘‘parties submitted, and [court] considered,
matters outside the pleadings’’). We may do so, however,
only if the ‘‘pleadings and record ‘show that there is no
genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.’ ’’ Kingman
Park Civic Ass’n v. Williams, 348 F.3d 1033, 1041 (D.C. Cir.
2003) (quoting Fed. R. Civ. P. 56(c)). We conclude that there
is no genuine issue of material fact and that the District
defendants are entitled to judgment as a matter of law.
On appeal the Union focuses on Butera’s ‘‘State endanger-
ment concept.’’ 235 F.3d at 651. In Butera we declared that
‘‘an individual can assert a substantive due process right to
protection by the District of Columbia from third-party vio-
lence when District of Columbia officials affirmatively act to
increase the danger that ultimately results in the individual’s
harm.’’ Id. But Butera cautioned that ‘‘[t]o assert a sub-
stantive due process violation, the plaintiff must also show
that the District of Columbia’s conduct was ‘so egregious, so
outrageous, that it may fairly be said to shock the contempo-
rary conscience.’ ’’ Id. (quoting County of Sacramento v.
Lewis, 523 U.S. 833, 847 n.8 (1998)). The Union contends
that it demonstrated sufficiently conscience-shocking action
7
by District officials in alleging that the Mayor and the DOC
Director failed to heed not only the now-vacated, court-
ordered inmate population ceiling but also a November 2001
internal DOC staffing memorandum allegedly indicating a
need for more correctional officers, a September 2000 Nation-
al Institute of Occupational Safety and Health report identify-
ing health hazards at the Jail, and an alleged rise in the
number of inmate assaults on correctional officers. We dis-
agree and decline to extend Butera – a case involving the
death of a police informant turned undercover operative – to
the Union’s challenge to the inmate/guard ratio at the D.C.
Jail. 235 F.3d at 641-43.
The challenged acts of the Mayor and the DOC Director –
implementing RIFs and relocating prisoners to another de-
tention facility in response to congressional appropriations
and mandates – in no way approach the ‘‘cognizable level of
executive abuse of power as that which shocks the con-
science.’’ Lewis, 523 U.S. at 846. The conscience-shock
inquiry is a ‘‘threshold question’’ ‘‘in a due process challenge
to executive action.’’ Id. at 847 n.8; see id. at 846 (‘‘[O]nly the
most egregious official conduct can be said to be ‘arbitrary in
the constitutional sense.’ ’’ (quoting Collins, 503 U.S. at 129)).
It is a ‘‘stringent requirement’’ that ‘‘exists to differentiate
substantive due process TTT from local tort law,’’ Butera, 235
F.3d at 651; see Uhlrig v. Harder, 64 F.3d 567, 572 (10th Cir.
1995) (noting that ‘‘many state activities have the potential for
creating some danger–as is true of most human endeavors –
but not all such activities constitute a ‘special’ danger giving
rise to § 1983 liability’’); see also Pinder v. Johnson, 54 F.3d
1169, 1178 (4th Cir. 1995) (declining to recognize ‘‘broad’’
substantive due process claim ‘‘to affirmative protection from
the state’’ because it ‘‘would be first step down the slippery
slope of liability’’); and recognizes the ‘‘presumption that the
administration of government programs’’ and ‘‘[d]ecisions con-
cerning the allocation of resources’’ are ‘‘based on a rational
decisionmaking process that takes account of competing so-
cial, political, and economic forces.’’ Collins, 503 U.S. at 128.
It is ‘‘conduct intended to injure in some way unjustifiable by
any government interest’’ – and not such large-scale person-
8
nel and program decisions as relocation of inmates and reallo-
cation of correctional officers resulting therefrom, made by
officials at the highest level of the District government in
response to congressional directives and appropriations – that
‘‘is the sort of official action most likely to rise to the
conscience-shocking level.’’ Lewis, 523 U.S. at 849 (citing
Daniels v. Williams, 474 U.S. 327, 331 (1986)); see Collins,
503 U.S. at 129 (‘‘The Due Process Clause ‘is not a guarantee
against incorrect or ill-advised personnel decisions.’ ’’ (quoting
Bishop v. Wood, 426 U.S. 341, 350 (1976))); id. (‘‘The United
States Constitution cannot feasibly be construed to require
federal judicial review for every TTT error’’ involving ‘‘the
multitude of personnel decisions that are made daily by public
agencies.’’).
The Union contends that it meets the ‘‘shocks the con-
science’’ test because it alleges that the Mayor and the DOC
Director ‘‘had the luxury to make unhurried judgments con-
cerning the ratio of [c]orrectional [o]fficer staffing to inmate
population’’ and instead acted with ‘‘deliberate indifference’’
to the safety and security of the correctional officers. Appel-
lants’ Br. at 24. As we explained in Butera, however, the
‘‘lower threshold’’ for meeting the shock the conscience test
by showing deliberately indifferent as opposed to intentional
conduct applies only in ‘‘circumstances where the State has a
heightened obligation toward the individual.’’ 235 F.3d at
651; see Lewis, 523 U.S. at 850 (‘‘Deliberate indifference that
shocks in one environment may not be so patently egregious
in another, and our concern with preserving the constitutional
proportions of substantive due process demands an exact
analysis of circumstances before any abuse of power is con-
demned as conscience shocking.’’); Daniels, 474 U.S. at 331
(‘‘Historically, this guarantee of due process has been applied
to deliberate decisions of government officials to deprive a
person of life, liberty or property.’’ (emphasis in original)
(citations omitted)). Such a circumstance occurs, for exam-
ple, ‘‘when the State takes a person into its custody and holds
him there against his will’’ – ‘‘the Constitution imposes TTT a
corresponding duty [on the State] to assume some responsi-
bility for his safety and general well-being’’ because ‘‘it ren-
9
ders him unable to care for himself.’’ DeShaney v. Winneba-
go County Dep’t of Soc. Servs., 489 U.S. 189, 199-200 (1989).
The opportunity for deliberation alone is not sufficient to
apply the lower threshold to substantive due process claims.
Instead, it is ‘‘[b]ecause of TTT special circumstances’’ like
custody that ‘‘a State official’s deliberate indifference TTT can
be ‘truly shocking.’ ’’ Butera, 235 F.3d at 652; see Lewis, 523
U.S. at 853 (‘‘[L]iability for deliberate indifference to inmate
welfare rests upon the luxury enjoyed by prison officials of
having time to make unhurried judgments, upon the chance
for repeated reflection, largely uncomplicated by the pulls of
competing obligations.’’).
The Union does not argue that similar special circum-
stances exist with regard to correctional officers and our
precedent holds otherwise. As the district court observed,
Fraternal Order of Police, 263 F. Supp. 2d at 48, we have
previously rejected a prison guard’s substantive due process
claim based on the alleged danger resulting from overcrowd-
ing and a shortage of guards.4 See Washington, 802 F.2d at
1480-81. In doing so, we noted the difference in circum-
stances between a prison inmate and a prison guard:
Prison guards, unlike the prisoners in their charge, are
not held in state custody. Their decision to work as
guards is voluntary. If they deem the terms of their
employment unsatisfactory, e.g., if salary, promotion
prospects, or safety are inadequate, they may seek em-
ployment elsewhere. The state did not force [the plain-
4 In Washington, the plaintiff guard had in fact been injured by
an inmate. 802 F.2d at 1479. Here the District argued that none
of the plaintiffs had suffered an injury in fact, see Reply to
Plaintiffs’ Opposition to Defendants’ Motion to Dismiss at JA 171,
but the court did not reach the issue. In Butera, we stated only
that ‘‘an individual can assert a substantive due process right to
protection by the District of Columbia from third-party violence
when District of Columbia officials affirmatively act to increase or
create the danger that ultimately results in the individual’s harm.’’
235 F.3d at 651 (emphasis added); see City of Los Angeles v. Lyons,
461 U.S. 95, 105, 111 (1983).
10
tiff] to become a guard, and the state has no constitution-
al obligation to protect him from the hazards inherent in
that occupation.
Id. at 1482; see Randolph v. Cervantes, 130 F.3d 727, 730-31
(5th Cir. 1997) (rejecting substantive due process claim
brought by mother of injured resident of state mental health
center where state officials ‘‘allowed and encouraged [the
resident] to voluntarily reside at [the center] TTT having the
right to come and go from the premises at any time’’); see
also Butera, 235 F.3d at 651 n.16 (noting but not deciding
‘‘whether the possibly voluntary nature of [undercover police
operative’s] conduct would relieve or mitigate [sic] the Dis-
trict of Columbia of constitutional liability’’). Furthermore,
the Union has not demonstrated that an assault by an inmate
is an unforeseeable risk of its members’ employment. See
Uhlrig, 64 F.3d at 575 & n.13 (rejecting substantive due
process claim brought by widow of municipal therapist killed
by mental patient because therapist was aware of ‘‘potential
risk inherent in [her] job’’ and declining ‘‘on a more general
level’’ to hold ‘‘public employers liable under § 1983 for
dangers arising from [such] risk’’); see also Collins, 503 U.S.
at 128 (rejecting claim that municipal liability based on ‘‘al-
leged failure to train [municipal] employees, or to warn them
about known risks of harm’’ could ‘‘properly be characterized
as arbitrary, or conscience shocking, in a constitutional sense’’
(emphasis added)).
Instead, the Union contends that the rationale of our
Washington decision has been limited by the Supreme
Court’s decision in Collins. To be sure, Collins recognized
that the Constitution ‘‘afford[s] protection to employees who
serve the government as well as to those who are served by
them, and [section] 1983 provides a cause of action for all
citizens injured by an abridgement of those protections.’’ 503
U.S. at 120. It also noted that the ‘‘employment relationship
TTT is not of controlling significance’’ in a municipal employ-
ee’s substantive due process claim. Id. at 119. But Collins
rejected the claim, made by the widow of a city sanitation
worker killed in the performance of his duties, that the Due
Process Clause required the city to ‘‘provide its employees
11
with certain minimal levels of safety and security’’ ‘‘when it
made, and [the worker] voluntarily accepted, an offer of
employment.’’ Id. at 127-28. Moreover, Collins expressly
cautioned against allowing a substantive due process claim
under section 1983 to ‘‘ ‘supplant traditional state-law tort’ ’’
and ‘‘employment’’ claims because, as noted above, ‘‘[d]eci-
sions concerning the allocation of resources to individual
programs TTT and to particular aspects of those programs,
TTT involve a host of policy choices that must be made by
locally elected representatives, rather than by federal judges
interpreting the basic charter of Government for the entire
country.’’ Id. at 128-29 (quoting Daniels, 474 U.S. at 332);
see Uhlrig, 64 F.3d at 576 (rejecting substantive due process
claim against officials who ‘‘faced difficult allocational deci-
sions precipitated by budgetary constraints, and even if their
decisions created certain risks, TTT view[ing] them as within
the province of policymakers who must balance competing
concerns’’). For the same reasons, we decline to interfere
with the District’s decisionmaking here.5
III.
For the foregoing reasons, the judgment of the district
court is affirmed and summary judgment is granted to the
defendants pursuant to Federal Rule of Civil Procedure 56.
So ordered.
5 To the extent the Union asserts a substantive due process right
to a safe work environment, a claim it disavowed at oral argument
but pressed below and in its reply brief, such a claim was rejected
by the Supreme Court in Collins, 503 U.S. at 130 (‘‘In sum, we
conclude that the Due Process Clause does not impose an indepen-
dent federal obligation upon municipalities to provide certain mini-
mal levels of safety and security in the workplace.’’), and by our
court in Washington, 802 F.2d at 1482 (‘‘Whatever [a prison
guard]’s rights may be under state law, he has no constitutional
right to a safe working environment.’’).