# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 15, 2008 Decided April 4, 2008

No. 07-7072

C HRISTOPHER G RIFFITH ET AL
., A PPELLANTS

v.

C ATHY L. L ANIER
, A PPELLEE

Appeal from the United States District Court
for the District of Columbia (No. 06cv01223)

Matthew A. LeFande argued the cause and filed the briefs for appellants.

Holly M. Johnson , Assistant Attorney General, Office of the Attorney General for the Di strict of Colu mbia, argued the cause for appellee. With her on the brief were Linda J. Singer , Attorney General, Todd S. Kim , Solicitor General, and
Edward E. Schwab , Deputy Attorney General.

Before: H ENDERSON and R OGERS
, Circuit Judges , and
W ILLIAMS
, Senior Circuit Judge

.2

Opinion for the Court filed by Senior Circuit Judge
W ILLIAMS

.

W ILLIAMS
, Senior Circuit Judge : Christopher Griffith
and Daniel K. Kim are members of the District of Columbia’s Metropolitan Police Department Reserve Corps, a corps of unpaid volunteers who assist full-time officers of the Metropolitan Police Department (“MPD”) in the provision of law enforcement services. See D.C. Code § 5-129.51 (Supp. 2007). Griffith and Kim brought su it in the district court to enjoin the enforcement of the MPD’s General Order 101.03, issued in 2006 by then-Chief of Police Charles Ramsey, which brought the Reserve Corps into conformity with certain regulations issued under the Volunteer Services Act (“VSA”) of 1977, D.C. Code § 1-319.02 (2001). See D.C. Mun. Regs. tit. 6, § 4000.1-.26. Among other claims, the plaintiffs challenged the General Order’s li mitation of their “right to organize for collective bargai ning purposes” as a facial
violation of the First Amendmen t. They also protested the order’s provision for at-will dismissal as depriving them, without due process, of a st atutorily-conferred property
interest in continue d volunteer service.

Ramsey filed a motion to dismiss on all counts. The district court granted this moti on after Ramsey had left office, substituting as defendant the new police chief, Cathy L.
Lanier. Griffith v. Lanier , No. 06-01223, slip op. at 1 & n.1 (D.D.C. Mar. 28, 2007). The plaintiffs now appeal the
substitution of Lanier as well as the dismissal of their First Amendment and due process claims. For the reasons discussed below, we affirm the judgment of the district court. (We need not address the plaintiffs’ request for class-action certification.)3

* * *

First, a word on the parties. The complaint names Ramsey as the sole defendant, “ acting in his offi cial capacity
as the MPD Chief of Police.” Compl. 2. Such language “is
best understood as a reference to the capacity in which the state officer is sued, not the capacity in which the officer inflicts the alleged injury.” Hafer v. Melo , 502 U.S. 21, 26 (1991). Moreover, the plaintiffs seek injunctive relief as well as money damages, Compl. 11-12; the former is obviously available only from a currently serving official defendant. Thus, the district court correc tly construed the complaint as naming Ramsey in his official capacity. It follows that Lanier’s taking office triggered application of Fed. R. Civ. P. 25(d), which “automatically” substitutes the successor of a public officer named in his “offi cial capacity.” Accord Fed. R. App. P. 43(c)(2).

In a motion for reconsiderati on, the plaintiffs asked the
district court to withdraw the s ubstitution and to add Lanier as a separate official defendant, apparently wishing to proceed against Ramsey in his pers onal capacity (presumably for money damages only). The cour t denied the motion without comment. On appeal, the plainti ffs repeat their objections to the substitution, but do not explic itly request that Lanier be added as a separate defendant. See Griffith Br. 53 (stating that the plaintiffs “presently offer no allegation of misconduct” against Lanier). Since the di strict court’s reading of the complaint was correct and the plaintiffs’ wishes concerning Lanier are unclear, we affirm th e district court on this issue. We note that in the end nothing actually turns on the question (for we affirm the judgment in full on the merits), and also that, had the plaintiffs sought leave to amend their complaint to name Ramsey in his personal capacity, such leave would have been freely given if “justi ce so require[d].” Fed. R. Civ. P. 15(a)(2).4

* * *

The plaintiffs’ First Amendment claim concerns a declaration in the General Order that Reserve Corps members, as volunteers, “shall not be eligible for any benefits normally accruing to employees of the Di strict of Columbia, including health insurance, retirement, life insurance, leave, or the right to organize for collective bargaining purposes , unless such benefits are specifically provided by the laws of the District of
Columbia.” MPD General Or der 101.03 § IV.C.5 (emphasis added). The plaintiffs read this provision as a prior restraint of their First Amendment freedoms to speak and associate on matters related to collective bargaining.

The plaintiffs clearly have standing to raise their facial challenge, as the General Order would, on their reading, tend to discourage their expressi on of opinions on collective bargaining. Moreover, we assume arguendo that they have a sufficient interest in their volunteer positions to be protected against speech-related dism issal under such cases as Pickering v. Board of Education , 391 U.S. 563 (1968), as did the district

court.

But while the plaintiffs’ reading of the General Order may be a possible one, it is not the most likely reading. Even “[a] limiting construction that is ‘fairly’ possible can save a regulation from faci al invalidation,” Initiative & Referendum
Inst. v. U.S. Postal Serv. , 417 F.3d 1299, 1316 (D.C. Cir. 2005) (quoting Bd. of Airport Comm’rs v. Jews for Jesus, Inc.

, 482 U.S. 569, 575 (1987)), and here the more plausible reading is completely innocent of Firs t Amendment difficulties. Few would consider free speech as a “benefit” along the lines of health insurance or retirement pay. In this context, the restricted “right to organize for collective bargaining purposes” is more naturally under stood as the right to engage in collective bargaining —i.e., the right to force the District to5

negotiate with representatives of a collective bargaining unit composed of reserve officers. “[I]n the context of federal sector labor-relations, collective bargaining is a term of art
with a well-establishedstatutory meaning,” Nat’l Treas. Employees Union v. Chertoff , 452 F.3d 839, 857 (D.C. Cir. 2006), one that imposes an “ob ligation” on an employer to negotiate with “the exclusive representative of [its] employees,” id . (quoting 5 U.S.C. § 7103(a)(12)). Indeed,
defendant Lanier’s brief offers just this meaning, identifying the negated benefit as the right “normally accruing” to District employees to “engage in collecti ve bargaining concerning terms and conditions of employment” under the Comprehensive Merit Personnel Act, D.C. Code § 1-617.01(b)(2) (Supp. 2006). See Lanier Br. 10-11.

This narrower reading of th e General Order leaves the plaintiffs’ First Amendment rights intact (as they themselves concede, see Griffith Br. 26), for while “the Constitution guarantees workers the right in dividually or collectively to voice their views to their employe rs, . . . [it] does not afford such employees the right to comp el employers to engage in a dialogue or even to listen.” Babbitt v. United Farm Workers
Nat’l Union , 442 U.S. 289, 313 (1979) (citations omitted).
Thus the clause survives the plaintiffs’ facial challenge.

* * *

The plaintiffs also bring a due process claim concerning
their tenure in office. The General Order declares that Reserve Corps members “serve at the pleasure of the Chief of Police” and may be removed at will without any administrative review. MPD General Order 101.03 § IV.J. The plaintiffs contend that D.C. law prohibits their dismissal except for cause, and thereby esta blishes a property interest in continued volunteer service; the General Order, they say,6

threatens to deprive them of this interest unconstitutionally.
Cf. Bd. of Regents v. Roth , 408 U.S. 564, 576-77 (1972).

The plaintiffs correctly recogni ze that the success of their due process claim requires loca l legal protection of their
interests in continued service. To “have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it”; he mu st have “a legitimate claim of entitlement to it,” created “by ex isting rules or understandings that stem from an independent source such as state law.” Id

. at 577. Whether such local law protection is a sufficient condition for a “property intere st” is a matter we need not reach; there is some authority th at the continued service of an unpaid volunteer—even if guaranteed by statute—cannot qualify as a property interest under the Due Process Clause. Compare Versarge v. Twp. of Clinton , 984 F.2d 1359, 1370 (3d Cir. 1993) (finding no prop erty interest in volunteer
service absent some further form of compensation), with
Thornton v. Barnes , 890 F.2d 1380, 1388 & nn.11 -12 (7th Cir. 1989) (suggesting that such an interest may exist in the volunteer position itself). But because the plaintiffs’ interests are unprotected by D.C. law, the Due Process Clause offers them no help.

We construe D.C. law as it has been interpreted by the D.C. Court of Appeals, see Poole v. Kelly , 954 F.2d 760, 761 (D.C. Cir. 1992)—or, in the abse nce of such guidance, as we predict that court would interpret it, see, e.g., Friends for All Children, Inc. v. Lockheed Aircraft Corp. , 746 F.2d 816, 824 & n.13 (D.C. Cir. 1984). The D.C. Court of Appeals has twice held (albeit in unpublished decisions) that Reserve Corps members are “unpaid volun teers” under D.C. Code § 5- 129.51, and are therefore subject to the VSA, § 1-319.02 (governing “the use of volunteers by agencies . . . of the District of Columbia”), as well as the regulations promulgated thereunder, D.C. Mun. Regs . tit. 6, § 4000.1-.26. See Johnson7

v. Williams , No. 04-CV-441, slip op. at 1-2 (D.C. Nov. 30, 2005); LeFande v. District of Columbia , No. 04-CV-68, slip op. at 3 (D.C. May 25, 2005). Th ese regulations state that “[t]he acceptance and utilization of the services of any person on a voluntary basis shall be at the discretion of each agency, and . . . may be discontinued by the agency at any time for any reason,” without “giv[ing] rise to any right or process of appeal.” D.C. Mun. Regs. tit. 6, § 4000.12-.13. Because the VSA regulations carry the force of law, they bar any reserve
officer’s claim of entitlement to continued volunteer service arising from a previous MPD General Order or informal understanding, see Johnson , slip op. at 1, unless some other regulation or statute comp els a contrary conclusion.

The plaintiffs describe their property interest as indeed protected by another D.C. statut e, which provides in relevant part as follows:

[T]he Mayor of the District of Columbia . . . is hereby authorized and empowered to fine, suspend with or without pay, and dismiss any officer or member of [the] police force for [cause] . . . ; provided, that no person shall be removed from said police force except upon written charges preferred against him in the name of the Chief of Police of said police force to the trial board or boards hereinafter provided for and after an opportunity shall
have been afforded him of be ing heard in his defense; but no person so removed shall be reappointed to any office in said police force . . . .

D.C. Code § 5-127.01 (2001) (emphasis added). Because the plaintiffs are “persons” within the terms of the statute, they argue, they cannot be removed from their volunteer positions except for cause.8

Although the plaintiffs are surely persons, the only persons whom § 5-127.01 protects—as its language makes clear—are “officer[s] or membe r[s] of [the] police force,” who may conceivably be “removed from said police force” or “reappointed to any office in said police force.” The question
then becomes whether Reserve Corps members are “member[s] of [the] police force” within the meaning of this statute. This question has not yet arisen before the D.C. Court of Appeals,
for while Johnson found Reserve Corps members to lack a property interest in their conti nued service, it did not consider the possible application of § 5-127.01.

Lanier argues that volunteer officers are excluded from these protections by a 1906 amen dment to the statute, which provided that “special policemen and additional privates may be removed from office by the Mayor without cause and
without trial.” Act of June 8, 1906, § 4, ch. 3056, 34 Stat. 221, 222 (codified as amended at D.C. Code § 5-127.01). She contends that because these exempted groups were the only categories of volunteer police existing in 1906, the proviso currently applies to all existing categories of volunteer officers. Both in 1906 and today, however, “special policemen” were specifically defined as privatel y-employed security officers imbued with certain public power s. See Act of Mar. 3, 1899, ch. 422, 30 Stat. 1045, 1057 (codifi ed as amended at D.C. Code § 5-129.02). The term “additional privates” appears essentially synonymous: Rev. Stat . D.C. § 375, 18 Stat. pt. 2, at 44 (1875), had authorized appointment of an “additional number of privates” on the applic ation (and at the expense) of persons showing the “necessity” of such appointment. The other possible referent of “addi tional privates” is the category of “special privates,” who then and today were temporary unpaid police appointed during times of emergency. See id

. §§ 378-379 (codified as amended at D.C. Code § 5-129.03). At most, then, the 1906 amendment exempted specific groups of volunteer officers, rather th an referring to all volunteers9

through a general term of art, in the way the Constitution uses “Treason, Felony, or Breach of the Peace” as a term of art referring to all crimes. U.S. Const. art. I, § 6, cl. 1; see
Williamson v. United States , 207 U.S. 425, 438 (1908). Were this all, we would face th e common conflict between the expressio unius est exclusio alterius canon and its competing cousin, the contention that st atutory language “may fairly comprehend many different cases where some only are expressly mentioned by way of ex ample.” Karl N. Llewellyn, Remarks on the Theory of Appell ate Decision and the Rules or
Canons About How Statutes Are To Be Construed , 3 Vand. L. Rev. 395, 405 (1950).

But there are other reasons why § 5-127.01 is not properly read to confer any pr otected tenure on Reserve Corps members. D.C. statutes concerning the MPD frequently employ phrases similar to “member of [the] police force,” and we read a body of statutes addr essing the same subject matter in pari materia , “as if they were one law,” Wachovia Bank,
N.A. v. Schmidt , 546 U.S. 303, 315-16 (2006) (quoting Erlenbaugh v. United States , 409 U.S. 239, 243 (1972)), including later-enacted statutes as well, see Branch v. Smith

, 538 U.S. 254, 281 (2003) (citing United States v. Freeman , 44 U.S. (3 How.) 556, 564-65 (1845)). An examination of these
statutes shows that Reserve Co rps members are not generally treated as “member[s] of [the] police force” under D.C. law.

First, a District statute defines “[t]he Metropolitan Police
force” to “consist of not less th an 3,000 officers and members, in addition to the persons a ppointed as surgeons for the Metropolitan Police force, appo inted as police matrons, or appointed as special privates pu rsuant to § 5-129.03 . . . .” D.C. Code § 5-105.05 (2001). Neith er this definition nor any other provision of the “Personne l” subchapter of this title includes the Reserve Corps within the definition of the force,10

even though this section does in clude the “special privates”
mentioned above.

Second, the opening subsection of the statute governing the Reserve Corps defines its membership in contradistinction to “full-time, sworn police pe rsonnel.” § 5-129.51(a). MPD “personnel” are separately defined in Subchapter I II of Title 5, which assigns to the mayor the power to “appoint to office, assign to such . . . duties as he may prescribe, and promote all officers and members of [the] Metropolitan Police Force .” § 5-105.01 (2001) (emphasis adde d). Reserve Corps members, by contrast, have their “duties and responsibilities . . . determined by the Chief of the Metropolitan Police Department,” § 5-129.51(b); while the Mayor may issue regulations prescribing their dut ies and responsibilities, § 5- 129.51(d), this language implies that Reserve Corps members are not directly included within § 5-105.01’s terms. Moreover, the opening subsection of the Reserve Corps statute establishes the Corps as a separate and coordinate body “in the District of Columbia,” § 5-129.51(a), rather than creatin g it “in the Metropolitan Police Department ,” language used for components of the MPD such as the School Safety Division or the Police Band. §§ 5-131.01 (2 001), 5-132.02(a) (Supp. 2007) (emphasis added).

Third, the Reserve Corps is created as an organization of “unpaid volunteers.” § 5-129.51(b). This language not only makes Reserve Corps members subject to the VSA and its accompanying regulations; it also distinguishes them from the “officers and members of the Metropolitan Police force,” who
as such automatically receive salaries under § 5-541.01 (2001) as well as tuition reimbursements under § 5-1305 (2001). The plaintiffs describe § 5-127.01’s civil-service protections as intended to dismantle a spoils system of political patronage, see Griffith Br. 30-33, an intent that seems barely if at all applicable to unpaid positions; the absence of a salary further11

differentiates reserve officer s from those who may be “suspend[ed] with or without pay” only for cause. § 5-127.01. And at least one federal statute sets Reserve Corps members apart for monetary purposes, a llocating money “for salaries and expenses . . . of officers and members of the Metropolitan Police Department . . . (and supp lies, equipment, and protective
vests for reserve officers of the Metropolitan Police Department).” District of Columbia Police Authorization and Expansion Act of 1989, Pub. L. No. 101-223, sec. 2(a), § 502(c)(2), 103 Stat. 1901, 1901. Wh ile the statute evidently presupposes that “reserve offi cers” are “of the Metropolitan Police Department,” it plainly views them, at least for appropriations purposes, as di fferent from “officers and members” of the department, the key phrase from § 5-127.01.

Fourth and finally, under § 5-129.51(c), the “selection criteria required for and traini ng provided to members of the Reserve Corps shall be similar to [those of] full-time, sworn police personnel,” and are determined by the Chief of Police,
id . A different regime is created for the members of the department proper, whereby the Police Officers Standards and Training Board determines selec tion criteria and training for “[e]ach applicant selected for appointment as a sworn member of the Metropolitan Police Depa rtment.” D.C. Code § 5- 107.04(d) (Supp. 2007). Separate provisions allow the Board
to establish standards for the Housing Authority Police Department (an entirely separate force that does not report to the MPD), see §§ 5-107.04(f-1 )(3), 6-223 (Supp. 2007), and to “[r]eview the . . . Reserve Corps program’s training and standards,” § 5-107.04(f-1)(4). These provisions thereby treat Corps members as distinct from members of the department as a whole, and in particular from those “appoint[ed]” as members of the force under § 5-105.01.

Thus, the District’s statutes consistently distinguish between Reserve Corps members and the “member[s] of [the]12

police force.” None of this, of course, appears to limit the potential powers of a reserve o fficer to “fulfill police duties and responsibilities” as determined by the Mayor and Chief of Police under § 5-129.51(b), (d), including all the duties of full-time officers. But because D.C. law does not generally treat Reserve Corps members as “member[s] of [the] police force” in the sense necessary to protect their tenure under § 5- 127.01, these volunteers remain subj ect to at-will dismissal, and they lack the statutorily-protected property interest necessary to ground a du e process challenge.

* * *

The judgment of the district court is therefore

Affirmed

.