1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ASSOCIATION OF INDEPENDENT SCHOOLS OF GREATER WASHINGTON, et al. , Plaintiffs, v. Civil Action No. 16-1778 (JEB) DISTRICT OF COLUMBIA, et al. , Defendants.

MEMORANDUM OPINION In a Memorandum Opinion and separat e Order issued last April, t his Court granted summary judgment in favor of Pla intiffs – the Association of In dependent Schools of Greater Washington (AISGW), the River School, and two individual teache rs – on their claim that a D.C. drug- and alcohol-testing policy pe rtaining to employees of chi ldcare facilities violated the Fourth Amendment. See Ass'n of I ndep. Sch. of Greater Washingt on v. D.C., 2018 WL 1972459 (D.D.C. Apr. 26, 2018). The Court dete rmined that the random d rug-testing requirements imposed by the District’s Office of the State Superintendent ofEducation (OSSE) on nurseryschool teachers were unlawful, as they did “not fit within the closely guarded category of constitutionally permissible su spicionless sear ches.” Id. at * 12. The Court therefore granted Plaintiffs’ Motion for Summary J udgment and ordered that OSSE “ shall not enforce its random, suspicionless drug- and alcohol -testing policies against Plaint iffs.” ECF No. 29 (Order). Dissatisfied with thi s outcome and alleging t hat the Court fail ed to address certain of Plaintiffs’ original claims, the District now moves to alter the judgment. Finding the majority of2 Defendants’ assertions to be wit hout merit, the Court will larg ely preserve its prior Opinion and Order intact.
I. Background This suit was initiated in September 2016 as a response to the District’s policy requiring the random, suspicionless drug tes ting of employees of childcar e facilities. See AISGW, 2018 WL 1972459, at *3. Plaintiffs are an association that includes such entities; one of its member schools, the River School; and Kat herine Brebbia and Lauren Wal ence, two River School teachers. Collectively, Plai ntiffs opposed the imposition of t he testing requirement, which was enacted pursuant to a 2004 statue , the Child and Youth Safety a nd Health Omnibus Amendment Act, which introduced random drug and alcohol testing for those employees in “safety-sensitive positions.” Id. at *1. Almost a decade later, in 2013, OSSE u sed its implementing authority under the Act to categorize the personnel of child-development facilities as “safety-sensitive,” thus subjecting them to random, s uspicionless urinalysis. Id. at 2. After being informed by OSSE tha t it would be required to compl y with this new requirement, the River School i ssued a series of objections to the policy from April 2014 through June 2015, repeatedly inform ing the Office that it woul d not adopt random drug testing of its employees. Id. After much back and forth, River was ul timately informed that acceptance of the policy was a condition of its OSSE licensure, and, on Ja nuary 11, 2016, it received a Notice of Intent to Revoke its c hild-development-center license for failure to “establish mandatory drug and alcohol testing p olicies and procedures that are consistent with the requirements of District law fo r safety-sensitive employees.” Id. at *3. Faced with this penalty, the School “adopted a drug and alc ohol testing policy that incl uded random testing,” as did the3 other eight AISGW member schools that hold OSSE licenses as chi ld-development facilities. Id. Yet AISGW and River continue d to object to the random-search requirement, and, having failed to reach a resol ution with OSSE, they brought the instant suit. Plaintiffs’ Complaint alleged that requiri ng child-development facilities t o implement a random drug- and alcohol-testing policy was a violat ion of (1) the Fourth Amendm ent and (2) the District of Columbia’s Administrative Pro cedure Act (DCAPA). See ECF No. 1 (Complaint), ¶¶ 52-56. As relief for these alleged violat ions, Plaintiffs requested a dec laratory judgment that “the implementation and enforcement of OSSE’s random drug- and alcoh ol-testing requirement violates Plaintiffs’ Fourth Amend ment rights” and the DCAPA, an injunction “prohibiting OSSE from enforcing its drug and alcohol testing requirement against Plaintiffs,” and “[m]ake-whole relief, including but not limite d to damages.” Id. at 14. This past spring, the Court gran ted summary judgment on the bas is of Plaintiffs’ Fourth Amendment claim and enjoined Defendants from enforcing the rand om-testing requirement against them. See ECF No. 29 (Orde r). The Court’s Opinion con cluded that, although the District had a “sincere” intere st in protecting the welfare of young children, such governmental motivation did not “rise to the l evel of immediacy or concreten ess needed to justify the random, suspicionless testing of nursery -school teachers.” AISGW, 2018 WL 1972459, at *12. The Court therefore found that suc h personnel could not “be subject ed to random, suspicionless4 searches as a condition of their employment,” id., and that Pla intiffs were “entitled to judgment as a matter of law on [their] c onstitutional claim.” Id. at *7

. On May 24, the District filed a M otion to Alter the Court’s Ju dgment, see ECF No. 32 (Motion), which Plaintiffs subsequently opposed. See ECF No. 3 4 (Response). The Court now turns to Defendants’ arguments regarding various alleged errors in its prior Opinion and Order. II. Legal Standard Federal Rule of Civil Procedur e 59(e) permits the filing of a m otion to alter or amend a judgment when such motion is fi led within 28 days after the jud gment’s entry. The Court must apply a “stringent” standard whe n evaluating Rule 59(e) motions . See Ciralsky v. CIA, 355 F.3d 661, 673 (D.C. Cir. 2004). “A Rule 59(e) motion is discretiona ry and need not be granted unless the district court finds that th ere is an intervening change of controlling law, the availability of new evidence, or the need to corr ect a clear error or prevent m anifest injustic e.” Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C . Cir. 1996) (internal quotat ion marks and citation omitted); see also 11 C. Wright & A. Miller, Fed. Prac. & Proc. Civ. § 28 10.1 at 158-62 (3d ed. 2012) (stating that the “four basic grounds” for Rule 59(e) motion ar e “manifest errors of law or fact,” “newly discovered or previously un available evidence,” “prevent [ion of] manifest injustice,” and “intervening change in controlli ng law”). Criti cally, Rule 59( e) “is not a vehicle to present a new legal theory that was availabl e prior to judgment.” Patton Bog gs LLP v. Chevron Corp., 683 F.3d 397, 403 (D.C. Cir. 2012). III. Analysis In seeking alteration, Defendant s raise three points. First, they contend that the Court “did not address whether the Dist rict violated Plaintiffs’ Four th Amendment rights.” Mot. at 4. Second, they posit that the Court also did not “find municipal liability under [42 U.S.C. §]5 1983,” and third, they state that it did not “resolve the DCAPA claim.” Id. at 4-5. Taken together, Defendants argue that these alleged lacunae in the Co urt’s Opinion constituted error, as it “enter[ed] final judgment for Plaintiffs without resolving a ll claims in the lit igation.” Id. at 5. The Court takes each of the se assertions separately.
A. Fourth Amendment The District’s first basis for a lteration is perhaps its most p uzzling. Defendants posit that the Court erred in finding that the OSSE suspicionless-search p olicy violated the Fourth Amendment because Plaintiffs never established that they were, in fact, “searched.” Mot. at 8. Under the District’s theory of t he Fourth Amendment, the proscr iption against unreasonable searches and seizures is “only i mplicated when a ‘search’ has o ccurred.” Id. at 6. In this case, the city thus believes that, to pr evail, Plaintiffs themselves must have actually been tested under the OSSE policy. This is incorrect. It is well established that a drug- or alcohol-testing policy m ay run afoul of the Fourth Amendment even if the individua l or entity chall enging the prog ram was not physically tested. See, e.g., Lebron v. Sec'y of Fla. Dep't of Children & Families , 772 F.3d 1352, 1357, 1378 (11th Cir. 2014) (considering class-acti on challenge to Florida’s pub lic-benefits-drug-testing requirement brought by Plaintiff wh o “refused to take the test” and finding that such testing “offends the Fourth Amendment”); Hatley v. Dep't of Navy, 164 F .3d 602, 603 (Fed. Cir. 1998) (considering whether “drug testing program to which Petitioner was subject was [] an unreasonable search under the Fourth Amendment” when plaintiff refused to submit to random testing); Willis by Willis v. Anderson Cmty. Sch. Corp., 158 F. 3d 415, 417 (7th Cir. 1998) (analyzing Fourth Amendment challenge to school drug-testing po licy brought by student who refused to provide urine sample); Thomson v. Marsh, 884 F.2d 113, 114 (4th Cir. 1989)6 (considering Fourth Amendment challenge to Army drug-testing pr ogram brought by plaintiffs who refused to submit to test) ; Lewis v. Gov't of D.C., 282 F. Supp. 3d 169, 174-75 (D.D.C. 2017) (addressing Fourth Amendme nt challenge to D.C. drug- and alcohol-testing policy brought by Plaintiff who refused to submit to test). Nor is Skinner to the contrary, as that case addressed the propriety of a given testing pr ogram – not a specific searc h or intrusion conducted pursuant to the policy. See Skinner v. R y. Labor Executives' Ass'n, 489 U.S. 602, 633–34 (1989) (holding that because “testing procedures ” mandated by Federal Railroad Administration “effect searches of the person,” the regulations “must meet the Fourth Amendment ’s reasonableness requirement”) (emphasis added). Perhaps the most obvious examples of this premise are the numer ous cases analyzing the Fourth Amendment implications of drug- and alcohol-testing poli cies before they go into effect. See, e.g., Nat'l Treasury Empl oyees Union v. U.S. Customs Serv. , 27 F.3d 623, 623 (D.C. Cir. 1994) (addressing Fourth Amendment challenge to United States C ustoms Service’s proposed expansion of drug-testing progr am); Harmon v. Meese, 690 F. Sup p. 65, 65-66 (D.D.C. 1988) (considering Fourth Amendment c hallenge seeking to enjoin imple mentation of Department of Justice’s proposed drug-testi ng policy). While it would have b een impossible for those challenging such policies to have been subjected to testing, co urts have not hesitated to apply the Fourth Amendment. So, too, here. Although Plaintiffs may have not themselves been tested pursuant to the OSSE policy, the y were nonetheless subject to t he policy, and the Court did not err in finding that the testing regime itself was contrary to t he Constitution as applied to such individuals and entities. Additionally, the Court notes th at in opposing Plaintiffs’ Moti on for Summary Judgment, the District never relied on the argument that there was no exi sting “search.” Rat her, Defendants7 argued that the suspicionless- testing requirement did not viola te the Fourth Amendment because “the District’s interest in ra ndom testing outweighs caregivers ’ privacy interests and renders individualized suspicion imp ractical.” ECF No. 25 (Opp. to MSJ ) at 6. The District’s briefing before this Court in no way evin ced a conviction t hat the Fourt h Amendment did not apply to the testing policy; rather, it e xplained why, under governing Fourth Amendment precedent, Defendants believed such searches were permissible. Similarly, while the District now asserts that it “had no opportunity for discovery on whether Plaintiffs were, in fact, involuntarily ‘searched,’” the Court observes that such a justification for r equesting discovery is nowhere to be found in Defendants’ original opposition. See Mot. at 9; Opp. to MSJ at 23 (stating that discovery would allow for inquir y into Plaintiffs’ assertions “ regarding classroom environments at The River School, caregiver s’ daily practices and their priv acy interest, and the efficacy of random testing, all of which pertai n to plaintiffs’ Fourth Amen dment claim”). The city’s post hoc rationales are thus entirely una vailing: the Court could not po ssibly have erred in refusing to “afford[] the District discover y to test the ver acity” of an is sue Defendants never raised. See
Mot. at 9.
B. 42 U.S.C. § 1983 The District next asserts that “the Court did not determine municipal liability under Section 1983.” Mot. at 1. Accordin g to Defendants, “To prevai l on a Section 1983 claim, Plaintiffs must establish that a municipal custom, policy, or p ractice caused a violation of their constitutional rights,” and he re, “Plaintiffs did not discuss t he standard for municipal liability or demonstrate how they satisf y that standard.” Id. at 5, 7. The District contends that, in light of this alleged deficiency, the Court “could not issue an injuncti on under Section 1983,” and the injunctive relief it ordered must therefore have “presumably [b een] under the Court’s equitable8 powers.” Id. at 8. Under Defenda nts’ theory of the case, Plai ntiffs presented both a § 1983 claim alleging Fourth Amendment vi olations and a freestanding c onstitutional claim, and the Court addressed only the latter. As Plaintiffs correctly point out , the District ’s various conte ntions are not borne out by the record. The Court begins w ith Defendants’ “puzzling positi on that there is a distinction between Plaintiffs’ Fourth Amend ment claim and Plaintiffs’ Fourth Amendment claim under [] §1983.” Resp. at 2 (internal quotati on marks omitted). Having reviewed the Complaint once more, the Court remains confident that the schools and teachers sought to enjoin the city from enforcing its random, suspicion less-testing policy pursuant to § 1983. See Compl., ¶ 14 (“Plaintiffs’ constitutional c laims arise under the U.S. Consti tution and are brought pursuant to 42 U.S.C. § 1983”). This was how t he Court understood the Comp laint at the time of its ruling, and this is the reasonable manne r in which to interpret Plainti ffs’ Fourth Amendment claim, as § 1983 is the vehicle by which a lit igant may allege that the Dis trict has violated his or her constitutional rights. S ee Costello v. D.C., 826 F. Supp. 2d 2 21, 224 (D.D.C. 2011). Although Defendants are correct that Plaintiffs did not cite § 1983 in t he heading to their Fourth Amendment count, see Compl., ¶¶ 52-53, they did clearly state t hat the statute provided the basis for their constitutional allegations. The Court therefore reje cts the District ’s contention that Plaintiffs’ Complaint included s ome secondary, free-floating co nstitutional all egation – or that the injunctive relief ordered w as pursuant to the Court’s “equi table powers” rather than the wellpleaded, explicit ground for relief under § 1983. The Court finds similarly unavailing Defendants’ assertion that , in order to grant such an injunction, it was required to e xplicitly spell out a finding t hat “a municipal custom, policy, or practice” caused the Fourth Amend ment violation. See Doe ex re l. Doe v. Little Rock Sch. Dist.,9 380 F.3d 349, 351 (8th Cir. 2004) (analyzing § 1983 claim again st school-district policy implementing random, suspicionle ss searches of students under F ourth Amendment reasonableness inquiry without a ddressing municipal liability). While the District is of course accurate in identifying municipa l liability as a fundamental un derpinning of § 1983, it never argued that the OSSE policy at issu e in this case was somehow n ot attributable to the city. For Defendants to only now raise the i ssue is both improper under R ule 59(e) and puzzling in light of the facts of the case. See Res p. at 4 (“If Defendants are argu ing that the challenged drug testing policy was not a municipal polic y, such an argument was long ag o forfeited and in any event would be frivolous.”); see also Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998) (“Rule 59 is not a vehicle for relitigating old issues, present ing the case under new theories, [or] securing a reheari ng on the merits.”). Plaintiffs were challenging the random drug-testing requiremen ts imposed by OSSE, a state office that was given aut hority over such regulations by the District’s Child and Youth Safety and Health Omnibus Ame ndment Act of 2004. Even in its l atest Motion, the District does not substantively dispute that t he drug-testing po licy is there fore a “municipal custom, policy, or practice.” Nor could it, given t hat “chief among” the “ways in which a ‘policy’ can be set by a municipality to cause it to be liable unde r § 1983” is the “exp licit setting of a policy by the government that violates the Constitution.” Lewis v. D.C., 201 8 WL 2739919, at *6 (D.D.C. June 7, 2018) (quoting Baker v. Dist. of Columbia, 326 F.3d 130 2, 1306 (D.C. Cir. 2003)) (internal quotation marks omitte d). Here, the District’s own l aw gave OSSE oversight to regulate child-development faci lities such as Plaintiffs’ schoo ls, and Defendants never alleged that the suspicionless-testing pol icy established pursuant to t hat authority was somehow beyond the bounds of municipal action. To the extent, however, that t here remains any confusion over10 whether the prior Opinion addre ssed a District policy, the Cour t now finds that the OSSE regulation more than suffices as a source of municipal liabilit y under § 1983. Finally, Defendants seem to adva nce a version of their § 1983 a rgument premised on Plaintiffs’ request for damages – namely, that the Court erred in granting injunctive relief pursuant to § 1983 without addressi ng the prayer for damages un der the statute. See Mot. at 5-6. This issue is easily resolved he re, as Plaintiffs have now waiv ed any such request. See Resp. at 3. The Court therefore need not s peculate as to how it would h ave ruled with respect to the issue of damages, as it is now a moot point. As Defendants acknowled ge, the Order granted Plaintiffs full injunctive relief; with dama ges off the table, there is no thing left for the Court to consider with respect to remedies unde r § 1983. See Mot. at 10 (“Plaint iffs obtained the relief they sought.”).
C. DCAPA Finally, the Court tu rns to the District’ s argument regarding Plaintiffs’ DCAPA claim. The Opinion concluded that “[b]ecause Plaintiffs are entitled t o summary judgment on their constitutional count, the Cour t need not go on to analyze their DCAPA claim.” AISGW, 2018 WL 1972459, at *4. Defendants now a ssert that the “Court shoul d have dismissed Plaintiffs’ DCAPA claim for lack of jurisdi ction” – an argument they raised in their briefing – or “at a minimum . . . should have [] dismi ssed [the claim] as moot.” M ot. at 10. The Court notes that dismissing the count as moot coul d complicate any appellate rev iew of those alternative grounds11 for relief, but because Plaintiffs agree with Defendants’ propo sal, see Resp. at 5, the Order shall be amended to reflect such dismissal.
III. Conclusion As a closing note, the Court observes that although both sides include footnotes relating to the availability of attorne y fees (or lack thereof) based on the prior Opinion, such arguments are more appropriately made in f ee motions. It therefore will reserve any analysis of these issues until such briefing takes place. As to the substantive argumen ts made in Defendants’ Motion, the Court will issue a contempor aneous Order denying them excep t as relating to the DCAPA.

/s/ James E. Boasber g JAMES E. BOASBERG United States District Judge Date: July 11, 2018