United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 15, 2008 Decided April 4, 2008 

No. 07-7072 

CHRISTOPHER GRIFFITH ET AL., 

APPELLANTS

v. 

CATHY L. LANIER, 

APPELLEE

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 District of Columbia, 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: HENDERSON and ROGERS, Circuit Judges, and 

WILLIAMS, Senior Circuit Judge. 
2

Opinion for the Court filed by Senior Circuit Judge

WILLIAMS. 

WILLIAMS, 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 suit 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 limitation of their “right to 

organize for collective bargaining purposes” as a facial 

violation of the First Amendment. They also protested the 

order’s provision for at-will dismissal as depriving them, 

without due process, of a statutorily-conferred property 

interest in continued volunteer service. 

Ramsey filed a motion to dismiss on all counts. The 

district court granted this motion 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 official 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 correctly 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 “official capacity.” Accord Fed. 

R. App. P. 43(c)(2). 

In a motion for reconsideration, the plaintiffs asked the 

district court to withdraw the substitution and to add Lanier as 

a separate official defendant, apparently wishing to proceed 

against Ramsey in his personal capacity (presumably for 

money damages only). The court denied the motion without 

comment. On appeal, the plaintiffs repeat their objections to 

the substitution, but do not explicitly 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 district court’s reading of the 

complaint was correct and the plaintiffs’ wishes concerning 

Lanier are unclear, we affirm the 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 “justice 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 District 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 Order 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 expression 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 dismissal 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 facial 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 First 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 understood as the right to engage in 

collective bargaining—i.e., the right to force the District to 
5

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-established statutory meaning,” Nat’l Treas. 

Employees Union v. Chertoff, 452 F.3d 839, 857 (D.C. Cir. 

2006), one that imposes an “obligation” 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 collective 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 the 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 individually or collectively to 

voice their views to their employers, . . . [it] does not afford 

such employees the right to compel 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 establishes 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 recognize that the success of their 

due process claim requires local 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 must have “a legitimate claim of 

entitlement to it,” created “by existing 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 interest” is a matter we need not 

reach; there is some authority that 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 property 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 absence 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 volunteers” 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 Johnson 
7

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). These 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 compels a contrary conclusion. 

The plaintiffs describe their property interest as indeed 

protected by another D.C. statute, 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 being 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 member[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 continued 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 amendment 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 privately-employed security officers 

imbued with certain public powers. See Act of Mar. 3, 1899, 

ch. 422, 30 Stat. 1045, 1057 (codified 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 application (and at the expense) of 

persons showing the “necessity” of such appointment. The 

other possible referent of “additional 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 than referring to all volunteers 
9

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 the common conflict between the 

expressio unius est exclusio alterius canon and its competing 

cousin, the contention that statutory language “may fairly 

comprehend many different cases where some only are 

expressly mentioned by way of example.” Karl N. Llewellyn, 

Remarks on the Theory of Appellate 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 protected 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 addressing 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 Corps 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 than 3,000 officers and members, 

in addition to the persons appointed as surgeons for the 

Metropolitan Police force, appointed as police matrons, or 

appointed as special privates pursuant to § 5-129.03 . . . .” 

D.C. Code § 5-105.05 (2001). Neither this definition nor any 

other provision of the “Personnel” subchapter of this title 

includes the Reserve Corps within the definition of the force, 
10

even though this section does include 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 personnel.” § 5-129.51(a). MPD 

“personnel” are separately defined in Subchapter III 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 added). 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 duties 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 creating 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 (2001), 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 further 
11

differentiates reserve officers 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, allocating money “for salaries 

and expenses . . . of officers and members of the Metropolitan 

Police Department . . . (and supplies, 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. While the statute evidently 

presupposes that “reserve officers” are “of the Metropolitan 

Police Department,” it plainly views them, at least for 

appropriations purposes, as different 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 training 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 selection criteria and training for 

“[e]ach applicant selected for appointment as a sworn member 

of the Metropolitan Police Department.” 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 officer 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 subject to at-will dismissal, 

and they lack the statutorily-protected property interest 

necessary to ground a due process challenge. 

* * * 

The judgment of the district court is therefore 

Affirmed.