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concluding that personal loyalty was not necessary to enable D.C. Department of Fire and Emergency Medical Services' "efficient[] and effective[]" delivery of emergency medical services, where there was "nothing in the record to suggest that the personal loyalty of the [plaintiff] Union members — paramedics and EMTs — or officers to the Chief [was] necessary to enable" adequate provision of those services
Summary of this case from Navab-Safavi v. Broadcasting Board of GovernorsOpinion
Civil Action No. 05-0472 (JDB).
May 2, 2005
MEMORANDUM OPINION
This matter comes before the Court on a motion for a temporary restraining order ("TRO") and preliminary injunction against defendant District of Columbia. Plaintiffs the American Federation of Government Employees, Local 3721 ("Local 3721") and its president, Kenneth Lyons, represent emergency medical technicians ("EMTs") and paramedics who are employed by and provide ambulance assistance for the District of Columbia. The dispute arises out of an alleged change to the administrative leave policy of the D.C. Department of Fire and Emergency Medical Services ("Department") on January 25, 2005, which allegedly makes the availability of administrative leave for Local 3721 officers to speak with public officials contingent on the viewpoints to be expressed at such meetings, in violation of plaintiffs' First Amendment rights. Plaintiffs seek an injunction prohibiting defendant from implementing the alleged new policy and directing defendant to return to the administrative leave policy in effect prior to January 25, 2005.
At a status hearing held on March 8, 2005, plaintiffs agreed to hold their motion for a TRO in abeyance and proceed with expedited briefing on their motion for a preliminary injunction, subject to a renewed request for action on the TRO should plaintiffs be faced with a denial of an administrative leave request on allegedly unlawful grounds. The Court subsequently held a hearing on the motion for a preliminary injunction on March 22, 2005. At that time, it became apparent that the Department had voluntarily ceased applying a viewpoint-based policy to requests for administrative leave to meet with public officials, to the extent one had been in effect. Thus, the Court encouraged the parties to reach a resolution of their differences, and the parties agreed to make such efforts. A few days after the hearing, the Department memorialized its administrative leave policy in a letter to Local 3721 and another affected union — a policy that appears to address plaintiffs' First Amendment concerns. See Def.'s Notice of Filing (Mar. 31, 2005). However, the parties have been unable to reach a resolution disposing of the motion for a preliminary injunction. Accordingly, the Court now proceeds to address whether the entry of a preliminary injunction is warranted based on the factual record as it presently exists. Although the events that allegedly transpired on January 25, 2005 raise serious First Amendment concerns, the Department's subsequent actions formally implementing an administrative leave policy that is content-neutral weigh heavily against the extraordinary relief of a preliminary injunction. As explained in more detail below, the Court therefore denies plaintiffs' motion for a preliminary injunction.
BACKGROUND
A. The Relationship Between the Parties
Local 3721 is the collective bargaining representative for civilian emergency medical services personnel who are employed by the District. The District agency charged with administering these services is the D.C. Department of Fire and Emergency Medical Services. Plaintiff Kenneth Lyons is a long-time civilian paramedic employed by the Department and the current president of Local 3721. A separate union, the International Association of Firefighters Local 36 ("Local 36") is the collective bargaining representative for uniformed fire fighters employed by the Department. In addition to fire rescue and control, the fire fighters also are occasionally assigned to provide basic emergency medical services.
Plaintiffs allege that the Chief of the Department, Adrian H. Thompson, has cut training, staffing, and other resources previously allocated to the Department's emergency medical services. Lyons and other Local 3721 officers have expressed their opposition to these changes within the Department, to the press, and to local and federal elected officials and agency administrators, on the ground that the changes have compromised the quality of the emergency medical services provided to the public. In 2004, and again this year, certain D.C. Council members introduced a bill referred to as the "Third Service Legislation" that proposes to remove emergency medical services from the Department, to be placed in another existing District agency or in a new independent agency. The bill is currently pending before the D.C. Council. Defendant admits that Chief Thompson and the fire fighters' union oppose the Third Service Legislation. Plaintiffs support the legislation and have organized and spoken out in support of it.
In the past, Local 3721 officers have been granted "administrative leave" to meet with public officials on issues of concern to the union, the Department, and the public. Administrative leave, also known as "official leave," excuses an employee from work without loss of pay or charge to his/her personal leave. Verified Am. Compl. ¶ 16; Answer ¶ 16. While on administrative leave, "an employee is actually on the payroll and doing the business of the employer." Decl. of Kenneth E. Jackson ("Jackson Decl.") ¶ 10 (Ex. 8 to Def.'s Opp. to Pls.' Mot. for Preliminary Injunction (filed Mar. 15, 2005) ("Def.'s Opp.")).
The terms of the collective bargaining agreement ("CBA") between Local 3721 and the Department address the circumstances under which administrative leave will be granted. Article 3, Section A.2, states:
The approving Management official may approve administrative leave for unit employees to attend activities of mutual benefit to the Union and the Employer as mutually agreed upon, provided it creates no conflict with staffing needs. The Union President or his/her designee and the Fire Chief or his/her designee will determine activities of mutual benefit.
Ex. 1 to Def.'s Opp. (emphasis added). Article 5, Section D.6, further provides that:
Union officers and stewards who are unit members will be permitted reasonable official time, in accordance with this Article to engage in the following Labor-Management business: . . .
. . .
6. The Union President may meet with public officials on issues of mutual benefit to both Labor and Management.Id. (emphasis added).
Plaintiffs allege that prior to January 25, 2005, the Department had a practice of routinely granting administrative leave to Local 3721 officers based only on (1) an officer's submission of the dates of the requested leave in advance of a meeting with a public official, and (2) noninterference of the leave with adequate staffing. During such meetings with public officials, plaintiffs have discussed their concerns about changes within the Department and the impact of these changes on the Department's ability to provide quality emergency medical services to the District. Plaintiffs allege that in or around January 2005, in the course of local media coverage over the proposed Third Service Legislation, Mayor Anthony Williams was "questioned aggressively" about the legislation on a radio show. Prior to that incident, from January 2003 to January 2005, neither Lyons nor any other employee represented by Local 3721 had been denied administrative leave because of inadequate staffing.
Union officers have depended on administrative or personal leave in order to attend meetings with public officials, because the meetings are generally scheduled at the convenience of the public official.
B. The Alleged Change in Policy on January 25, 2005
Plaintiffs allege that, on January 25, 2005, shortly after the Mayor's radio appearance, Kenneth E. Jackson, Executive Officer to the Fire Chief, denied Lyons' requests for administrative leave to attend meetings with public officials on January 26 and February 2, 2005, because Lyons had criticized the Chief and his policies. Verified Am. Compl. ¶ 20. Lyons' testimony is that
Jackson informed Lyons that Chief Thompson would no longer approve administrative leave for Local 3721 officers to attend meetings with public officials to criticize the Chief and his policies. Jackson stated that from that point forward, the Chief would be personally reviewing the Local's requests for administrative leave and that any future requests for administrative leave to attend meetings with public officials must state the subject matter of the proposed meeting and the substance of any statements the Local 3721 officer plans to make at the meeting.Id. Lyons further avers that Jackson stated that these new administrative leave requirements would not apply to the fire fighters' union, Local 36, which happened to support Chief Thompson in opposing the Third Service legislation. Id. ¶ 21. The policy expressed at the January 25, 2005, meeting did not exist in writing. Id. ¶ 29.
Lyons used his personal leave in order to attend the above-referenced meetings. Another officer of Local 3721, Steven Chasin, submitted a leave request on February 11, 2005, requesting administrative leave to meet with a public official on February 17, 2005, without specifying the subject matter of the meeting or the substance of his planned remarks. Jackson denied this administrative leave request, too.
Based on Jackson's statement and the denials of the administrative leave requests, plaintiffs brought this action pursuant to 42 U.S.C. § 1983 alleging that Jackson's actions constitute an impermissible prior restraint on speech in violation of plaintiffs' First Amendment rights. Preliminary injunctive relief to halt implementation of the January 25, 2005 policy and return to the prior procedure for administrative leave requests has been sought by plaintiffs.
C. The Policy Promulgated on March 25, 2005
At the preliminary injunction hearing, defense counsel denied that the Department had a policy of denying administrative leave based on the content of the requester's planned speech. Tr. Mot. Hr'g at 43-45 (Mar. 22, 2005). Counsel referred to a letter from Jackson to Lyons dated March 10, 2005, as evidencing this position, which explained the basis of the denial of Lyons' administrative leave request dated March 9, 2005 as follows: "While the agency is not interested in what you might say, it is concerned that you indicate in your request that your meeting is of mutual interest to your Union and the agency, per your bargaining agreement." Id. at 45 (quoting Ex. 7 to Def.'s Opp.).
Following the hearing, in an apparent attempt to address the concerns raised by plaintiffs and the Court and remove ambiguity over the administrative leave policy, Chief Thompson issued a letter to Local 3721 and Local 31 on March 25, 2005, stating that administrative leave would be granted under the following process and conditions:
1. it is submitted in writing to the Office of the Chief at least 48 hours (unless it states why this deadline could not reasonably be met) and no more than 60 days prior to the date of the requested leave;
2. it states a basis for the amount of leave sought;
• EXAMPLE: "I will attend an 8.0 hour meeting. Therefore, I request 10.0 hours' leave."
3. it states that all requirements of the CBA are met:• EXAMPLE: "The meeting is for union negotiations."
• EXAMPLE: "The meeting will be of mutual benefit to both parties."
4. where the CBA requires a "mutual benefit," the request shall identify the activity;• EXAMPLE: "I will meet with Congressman John Doe."
5. it ends with the statement: "The information herein is true and correct;" and
6. it is signed and dated by the official who is eligible to receive the leave.
. . .
Failure to meet the above requirements, and staffing needs, shall be the only grounds upon which a request for official or administrative leave may be denied.
Any existing policies or practices inconsistent with the terms herein are hereby rescinded.
Notice of Filing (filed March 31, 2005) (hereinafter "Thompson Letter"). The policy leaves no doubt that the "mutual benefit" standard applicable to administrative leave requests is deemed satisfied where the requester represents that "the meeting will be of mutual benefit to both parties" and identifies the activity. Thompson Letter ¶ 3. It imposes no requirement to identify the viewpoint to be expressed. Moreover, it rescinds any other policies or practices inconsistent with its terms. Thus, to the extent that a content-based standard for administrative leave was put into effect on January 25, that policy was formally rescinded through this March 25, 2005 letter.
STANDARD OF REVIEW
In order to prevail on a motion for a temporary restraining order or preliminary injunction, a plaintiff must demonstrate: (1) a substantial likelihood of success on the merits; (2) that he will suffer irreparable harm absent the relief requested; (3) that other parties will not be harmed if the requested relief is granted; and (4) that the public interest supports granting the requested relief. Mova Pharm. Corp. v. Shalala, 140 F.3d 1060, 1066 (D.C. Cir. 1998); accord Taylor v. Resolution Trust Corp., 56 F.3d 1497, 1505-06 (D.C. Cir. 1995); Washington Area Metro. Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977). No single factor is necessarily dispositive as to whether injunctive relief is warranted. CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 1995). "If the arguments for one factor are particularly strong, an injunction may issue even if the arguments in other areas are rather weak." Id.
At this early stage of the proceedings, the Court may rely on the sworn declarations in the record and other credible evidence in the record even though such evidence might not meet all of the formal requirements for admissibility at a trial. See University of Texas v. Camenisch, 451 U.S. 390, 395 (1981) (decision on a preliminary injunction may be made "on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits"); Cobell v. Norton, 391 F.3d 251, 261 (D.C. Cir. 2004) (same); see also Heideman v. South Salt Lake City, 348 F.3d 1182, 1188 (10th Cir. 2003) ("The Federal Rules of Evidence do not apply to preliminary injunction hearings."). Such materials include the verified amended complaint sworn to by Lyons, the Jackson declaration, the CBA, the plaintiffs' requests for administrative leave and the Department's responses, and the Thompson letter dated March 25, 2005.
DISCUSSION
A. Likelihood of Success on the Merits1. Jurisdiction
Defendant argues that plaintiff is not likely to succeed on the merits of this action because this Court lacks jurisdiction over the case. Defendant asserts that this is a straightforward labor-relations dispute over which the D.C. Public Employee Relations Board has exclusive jurisdiction pursuant to the Comprehensive Merit Personnel Act ("CMPA"), D.C. Code Ann. §§ 1-601.1 et seq. (1981), citing District of Columbia v. Thompson, 593 A.2d 621 (D.C. 1991), and Cooper v. AFSCME, Local 1033, 656 A.2d 1141 (D.C. 1995). Although it is true that the CMPA preempts D.C. common law claims, defendant cites no authority for the proposition that the CMPA preempts federal constitutional claims. In fact, the case law is clearly to the contrary: there is no requirement to exhaust state law remedies in order to pursue a claim under 42 U.S.C. § 1983. See District Properties Assocs. v. District of Columbia, 743 F.2d 21, 27 n. 3 (D.C. Cir. 1984) (citing Patsy v. Board of Regents of State of Florida, 457 U.S. 496 (1982)); Silverman v. Barry, 727 F.2d 1121, 1123 (D.C. Cir. 1984). This is so even where the employee's claim also could be covered by a collective bargaining agreement. See Narumanchi v. Bd. of Trustees of the Connecticut State Univ., 850 F.2d 70, 73 (2d Cir. 1988) ("Nor is it permissible in light of Patsy v. Board of Regents, supra, to require initial recourse to available state proceedings, including union grievance proceedings, for the enforcement of First Amendment rights protectable in federal court pursuant to section 1983."); Clark v. Yosemite Cmty. Coll. Dist., 785 F.2d 781, 790 (9th Cir. 1986) (rejecting claim that the state Public Employee Relations Board has exclusive jurisdiction where plaintiff-employee brought a claim alleging infringement of First Amendment right to freedom of association).
Defendant's reliance on San Diego Bldg. Trades Council, Millmen's Union, Local 2020 v. Garmon, 359 U.S. 236 (1959), is misplaced. Garmon focused on whether a comprehensive federal labor law, the National Labor Relations Act, 29 U.S.C. §§ 157 and 158, preempted state tort law regulating activities covered by those sections. Id. at 244 ("The governing consideration is that to allow the States to control activities that are potentially subject to federal regulation involves too great a danger of conflict with national labor policy."). There is nothing in the decision to suggest that local law should preempt federal (and indeed constitutional) law simply because the local law is intended to comprehensively address labor relations.
Although some federal labor laws do require exhaustion of administrative remedies before a plaintiff can pursue a claim under § 1983, exceptions to the exhaustion requirement exist even in those cases. See Steadman v. Governor, United States Soldiers' and Airmen's Home, 918 F.2d 963, 967 (D.C. Cir. 1990) (holding that a plaintiff must exhaust remedies under Civil Service Reform Act before pursuing claim under § 1983 where both claims were premised on the same facts, but excepting cases where the constitutional claim raises issues totally unrelated to CSRA procedures); Weaver v. United States Information Agency, 87 F.3d 1429, 1434 (D.C. Cir. 1996) (declining to impose exhaustion requirement where plaintiffs' First Amendment claim of prior restraint was more akin to a pre-enforcement review of a regulation restricting speech, and thus could stand independent from any personnel action).
Defendant's reliance on Council of Sch. Officers v. District of Columbia, 136 L.R.R.M. 2572 (D.D.C. 1991) (text of oral opinion) is also misplaced. Defendant correctly notes that the court in that case dismissed claims under the Racketeer Influenced and Corrupt Organizations Act ("RICO") brought by a union that had lost an election to a competing union, based on the comprehensive administrative scheme established by the CMPA to address allegations of unfair labor practices. Assuming without deciding that the CMPA can preempt federal RICO claims, that case is significantly different from the present one in two respects. First, the RICO violations were premised in large part on violations of the CMPA itself, in contrast to the present case which does not rest on allegations of violations of the CMPA. Second, the court acknowledged that, with respect to the constitutional claims, "it [is] well settled that constitutional claims need not be brought before administrative tribunals," citing a decision where the court considered § 1983 claims on the merits without requiring exhaustion of remedies under the CMPA. Id., slip op. at 9 (citing Hairston v. District of Columbia, 638 F. Supp. 198 (D.D.C. 1986)). While the court proceeded to dismiss the constitutional claims, this was based on both the plaintiff's "knowing decision not to pursue the available [CMPA] administrative remedies" and the lack of "any substantive appropriate allegations" under the civil rights statutes beyond "conclusory rhetoric." Id. at 9, 11. Thus, the decision does not support the broad proposition that the CMPA preempts federal jurisdiction over § 1983 claims simply because the claims are related to a labor dispute.
The court did express concerns over federalization of local labor law disputes and the gutting of the CMPA by such efforts, but those concerns were based in large part on the particular facts presented there — the District's decision to choose one labor organization as the exclusive bargaining representative over another organization, in alleged violation of CMPA provisions. Id., slip op. at 12.
2. First Amendment
a. Resolution of Disputed Facts Surrounding Jackson's Statements on January 25, 2005
The parties have somewhat differing versions of the events of January 25, 2005 surrounding Jackson's statements, but do not otherwise raise disputes over the facts set forth in the Background section. Jackson's statements of January 25 are significant because they form the crux of plaintiffs' First Amendment claim. Plaintiffs contend that Jackson's statements effected a change in policy on administrative leave requests in violation of the First Amendment, because the alleged policy change impermissibly burdens plaintiffs' speech with public officials regarding matters of public concern by providing administrative leave only for speech meeting defendant's approval, and constitutes an invalid prior restraint on speech lacking any objective standards to safeguard against the official's otherwise unbridled discretion to grant or deny leave. Defendant contends that the case does not present a First Amendment claim, but rather is a straightforward labor-relations dispute governed by the collective bargaining agreement ("CBA") between plaintiffs and the Department. Before addressing the events of January 25, the Court first looks at the policy in effect prior to that time to place the alleged events in context.
The CBA imposes a "mutual benefit" standard to determine when requests for administrative leave should be granted. See CBA, Article 3, Section A.2 Article 5, Section D.6. That is, as noted above, the activity for which leave is requested must be of "mutual benefit to the Union and the Employer." However, the meaning of "mutual benefit" is ambiguous and subject to interpretation. The Court looks to the parties' history of implementing this standard for guidance in giving meaning to it. In their verified complaint, plaintiffs assert — and the defendant does not dispute — that in the past Local 3721 officers were required only to submit the dates for the requested leave in advance of their meetings with public officials, and the Department routinely granted the requests without further question, absent problems with adequate staffing. Defendant also has submitted the declaration of Kenneth E. Jackson, the Executive Officer to the Fire Chief, stating that plaintiffs and their members will be granted administrative leave to attend meetings with public officials where the requests make a representation that the meetings will be of "mutual benefit" to the Union and the Department. See Jackson Decl. ¶¶ 16-18. Jackson states that the leave requests submitted by plaintiff Lyons and one other union member to attend meetings with public officials on January 26, February 2, and February 17, 2005, all were denied only because they did not represent that the meetings would be of "mutual benefit" to the Union and the Department. He unequivocally states: "Had the requests to attend the three meetings been made under the terms of Local 36's CBA, the requests would have been granted." Id. ¶ 16. He also states that plaintiff Lyons' request for administrative leave to attend a meeting with Congresswoman Eleanor Holmes Norton on March 14, 2005 was granted based upon Lyons' representation that the meeting was of "mutual benefit" to the Union and the Department. On the present record, then, the Court finds that the parties have understood the term "mutual benefit" to encompass meetings with public officials without inquiring into the viewpoints expressed at those meetings (or even the specific subject matter discussed). Prior to January 25, 2005, Local 3721 members were not required to make pro forma representations of "mutual benefit" because this was understood.
The Court next considers whether the Department has implemented that standard in a manner that gives rise to a First Amendment violation, and specifically, whether the alleged actions on January 25, 2005, present a First Amendment violation. On the present record, the Court concludes that defendant altered its interpretation and implementation of the "mutual benefit" requirement on January 25, 2005, to impose a content-based restriction on administrative leave requests. Plaintiffs' verified complaint states that, on that date, shortly after unfavorable press coverage on the Third Service Legislation, Jackson informed plaintiff Lyons that his requests for administrative leave to attend meetings with public officials on January 26 and February 2, 2005 would be denied, and that "Chief Thompson would no longer approve administrative leave for Local 3721 officers to attend meeting with public officials to criticize the Chief and his policies." Verified Am. Compl. ¶ 20. Plaintiffs allege that Jackson further stated that "from that point forward, . . . any future requests for administrative leave to attend meetings with public officials must state the subject matter of the proposed meeting and the substance of any statements the Local 3721 officer plans to make at the meeting."Id. Jackson's declaration does not deny these allegations. Instead, he discusses the applicability of the administrative leave provision of the CBA. Jackson Decl. ¶ 11 ("There was no policy change in January 2005 concerning the granting of official leave to union members — adherence to the terms of the CBA has been the policy while I have been in my position and, to my knowledge, previously as well.") To the extent that he discusses his January 25, 2005 conversation with Lyons, he states only that: "I told [Mr. Lyons] that he should submit a written request for leave explaining how the issues at the meeting would be of mutual benefit to both parties," which could be consistent with Lyons' description of the events. Id. ¶ 12. Thus, considering the declarations of Lyons and Jackson, the Court credits the statements in Lyons' declaration in light of the absence of a clear denial by Jackson, and finds on this record that Jackson articulated a change in the administrative leave policy to implement the "mutual benefit" standard so as to require a content-based review of plaintiffs' planned remarks to public officials.
Defendant's answer, filed on April 12, 2005, denies the allegations regarding Jackson's statements as pled in paragraph 20 of plaintiffs' Verified Amended Complaint. However, the Court places greater weight in the present setting on Jackson's sworn statement than on the general denial pled in an answer.
b. First Amendment Standards Governing Speech of Government Employees
It is well-accepted the individuals who accept government employment "retain First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest."See United States v. Nat'l Treasury Employees Union, 513 U.S. 454, 465 (1995) ("NTEU") (quoting Pickering v. Bd. of Ed. of Township High Sch. Dist., 391 U.S. 563, 568 (1968)). However, the Supreme Court has recognized that "Congress may impose restraints on the job-related speech of public employees that would be plainly unconstitutional if applied to the public at large." Id. To determine the validity of such a restraint, a balancing test is required, weighing "the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the [government] as an employer, in promoting the efficiency of the public services it performs through its employees." Id. at 465-66. The First Amendment interests to be weighed include those of both present and future employees, as well as the interest of "potential audiences" in a broad range of present and future expression.Id. at 468. The government bears the burden of justifying the restriction on speech where the speech involves a matter of public concern. Id. at 466.
Moreover, where a restraint is accomplished through a generally applicable regulation, as opposed to a particularized disciplinary action, the breadth of the regulation must be tailored to be no more than is "reasonably necessary to protect the efficiency of the public service." See Weaver, 87 F.3d at 1439 (quoting NTEU, 513 U.S. at 474). The involvement of a prior restraint does not alter the Pickering/NTEU analysis, however. Weaver, 87 F.3d at 1440. That analysis continues to apply, with the detriments of prior restraints simply included among the factors to be considered. Id. These detriments include chilling speech before it happens, leaving the approval or denial of speech to an officer's unbridled discretion and thus impermissible viewpoint discrimination, and the danger of self-censorship that may result from requiring employees to report their speech to the employer. See NTEU, 513 U.S. at 468; Sanjour v. EPA, 56 F.3d 85, 96-97 (D.C. Cir. 1995) (en banc); Harman v. City of New York, 140 F.3d 111, 120 (2d Cir. 1998).
Applying these standards here, the Court finds that plaintiffs have established that the speech at issue is on a matter of public concern. The Union seeks to contribute to the debate on the pending Third Service Legislation, which proposes to remove emergency medical services from the Department and place it in another existing District agency or in a new independent agency. Verified Am. Compl. ¶¶ 10-13. The legislation has developed in part due to a controversy over the adequacy of the emergency medical services in the District. Id. ¶ 9. The Union consists of employees who actually provide the District's emergency medical services and thus its officials offer an important perspective to the debate. Indeed, defendant does not appear to contest that the speech involves a matter of public concern. Because the speech is on a matter of public concern, the Pickering/NTEU balancing test applies.
The Court next considers defendant's interest in justifying an administrative leave policy that operates as a prior restraint on plaintiffs' speech. Defendant asserts two interests: (1) they are entitled to the benefit of the "mutual benefit" standard negotiated in the CBA with Local 3721 as a matter of contract law; and (2) their interest in "maintain[ing] a stable workforce with predictable budgetary and management requirements." The first interest is essentially an interest in the enforcement of the terms of the contract. However, the Court has already determined that the "mutual benefit" standard under the CBA, as understood by the parties, does not allow the Department to deny administrative leave requests based on the viewpoints to be expressed during such leave at meetings with public officials. Therefore, the contractual right claimed by defendant — to consider the substance of the speech in deciding whether to grant administrative leave — does not exist under the CBA.
Plaintiffs argued at the preliminary injunction hearing that a contractual provision that purported to waive the constitutional rights of union members would be unenforceable. The Court need not resolve that issue here because there is no evidence in the record indicating that the parties have interpreted the CBA in this manner.
As to the second interest — workforce, budget, and management concerns — defendant offers no explanation as to how granting administrative leave would interfere with these interests. All parties agree that the granting of administrative leave is conditioned on staffing needs being met. Defendant offers no evidence that the manner in which the leave provision was implemented prior to January 25, 2005 resulted in any disruption to the Department's service or mission. Likewise, defendant has come forward with no figures explaining how administrative leave interferes with budgetary requirements. Plaintiffs assert that, to the contrary, administrative leave has been granted over the last two years subject only to adequate staffing requirements, which suggests that administrative leave for meetings with public officials has not raised significant budgetary problems.
The "management" concerns referenced by defendant are set forth only in conclusory terms, making analysis of this employer interest difficult. The Court infers from the papers that defendant is concerned that employees are expressing views during official time that are "contrary to the publicly stated positions of the Department," and that such opposition interferes with the management of the Department's day-to-day business of providing emergency medical services. Def.'s Opp. at 11. This concern is analogous to an employer's interest in "harmony among coworkers" or preserving "close working relationships" where "personal loyalty and confidence are necessary to the proper functioning" of those relationships. See Pickering, 391 U.S. at 570 n. 3. Plaintiffs respond that the relationship between the Chief of the Department and Local 3721 officers is not the kind of close working relationship that requires personal loyalty or harmony in outlooks in order effectively to operate in a functional capacity: Local 3721 officers are able to perform their individual day-to-day emergency medical service duties regardless of their disagreement with the Chief's broad policies. Pls.' Mot. at 18. There is nothing in the record to suggest that the personal loyalty of the Union members — paramedics and EMTs — or officers to the Chief is necessary to enable the provision of adequate emergency medical services, and the Court concludes that personal loyalty — and in particular, agreement on the Third Service Legislation — is not necessary to enable the Department to function efficiently and effectively in rendering emergency medical services.
Based on this analysis, the Court finds that the balance of interests favors plaintiffs' interest in commenting on matters of public concern. Perhaps recognizing plaintiffs' strong interest in commenting on the Third Service Legislation and related matters, defendant's primary argument in response is that its administrative leave policy does not prevent plaintiffs from speaking — instead, defendant only declines to pay for speech activities that defendant characterizes as "patently non-work activity." It emphasizes that management invited plaintiffs to use other types of leave to engage in the meetings with public officials, which further demonstrates the absence of any restriction of expression.
To begin with, the Court finds that the record does not support defendant's characterization of Union meetings with public officials as "non-work activity." The administrative leave policy applicable to Local 36 — the firefighter's union — is instructive in this regard. That CBA expressly mandates that Local 36's authorized members are entitled to administrative leave for meetings with members of the D.C. and federal governments:
Section A — Application:
It is agreed that the principal officers of Local 36, the current elected members of the Board of Directors of Local 36, and others delegated by the President of Local 36, may be granted leave to attend meetings, seminars, or conferences which are of mutual interest, benefit, or concern to the Department and Local 36, and/or for the purpose of participating in bona fide labor relations activities. . . .Section B — Meetings Specified
The above-mentioned members shall be excused without charge to annual leave for the following purposes:
Meetings with officials of the District Government or Federal Government and/or the Congress of the United States — maximum two (2) members.
CBA between Local 36 and D.C. Fire and EMS Department, Article 15 (emphasis added). Although the Court rejects plaintiffs' contention that implementation of a more generous administrative leave policy for Local 36 suggests viewpoint based discrimination (because significantly different leave standards are set forth in the Local 36 CBA), certainly the Local 36 CBA does set forth a frame of reference for determining the type of contact with government officials that should fall under the category of official business, as opposed to "outside [non-work] political activity." By expressly authorizing paid leave for meetings with government officials, the Local 36 CBA strongly indicates that such meetings should be considered part of official business, rather than personal political activities.
The Court pauses to consider whether the Pickering/NTEU balancing test should be altered for expression that occurs during official hours — an implication of defendant's arguments.Pickering and NTEU arose in the context of speech activities that occurred during non-duty hours, but also recognized that the same balancing test applies during duty hours, although the potential for "immediate workplace disruption" would be greater in such situations. See NTEU, 573 U.S. at 470. Thus, cases addressing the permissibility of restrictions on speech when it occurs during duty hours recognize the heightened interest of the employer in applying the balancing test. See Connick v. Myers, 461 U.S. 138, 149-50 (1983) (finding no First Amendment violation where employee was terminated for, inter alia, distributing workplace satisfaction survey during duty hours); Myers v. Hasara, 51 F. Supp. 2d 919 (C.D. Ill. 1999) (finding no First Amendment violation where employee was suspended for contradicting employer's official statements on a public health and safety determination while on duty). In this case, even recognizing a heightened interest by the Department in the publicly stated opinions of its employees during duty hours, the Department's interest nonetheless does not outweigh plaintiffs' interest in commenting on the provision of emergency medical services in the District. There is no evidence to indicate that plaintiffs' comments on the Third Service Legislation interfered with the Department's ability to fulfill its mission of providing emergency medical services in the District. Moreover, the adequacy of emergency medical services in the District is a matter of significant public interest, and Local 3721 members are uniquely qualified to offer a valuable perspective on the pending legislation.
c. Anti-Lobbying Act
Defendant suggests in a footnote that the Anti-Lobbying Act, 18 U.S.C. § 1913, may render the CBA provision on administrative leave (and, by implication, use of such leave) unlawful to the extent it permits Local 3721 to attempt to influence the outcome of legislation on official time. See Ass'n of Civilian Technicians v. FLRA, 269 F.3d 1119, 1120 (D.C. Cir. 2001). That Act does not appear to affect this case, however, for two reasons. To begin with, although the first clause of Section 1913 contains broad prohibitory language, the subsequent clause indicates that the prohibition applies only to federal employees and agencies. See 18 U.S.C. § 1913 (stating that the prohibition on using federal funds for lobbying activities "shall not prevent officers or employees of the United States or its departments or agencies" from communicating with legislative officials under certain circumstances); see also Grassley v. Legal Servs. Corp., 535 F. Supp. 818, 826 n. 6 (S.D. Iowa 1982) ("Section 1913, although containing broad precatory language, applies only to federal departments or agencies and officers or employees thereof"); National Treasury Employees Union v. Campbell, 654 F.2d 784, 791 (D.C. Cir. 1981) (legislative history indicates statute was intended to prohibit the practice of executive agencies — "a bureau chief or the head of a department" — advocating for special interests in Congress). Moreover, assuming that § 1913 applies to D.C. employees and agencies, at least one of the enumerated exceptions would appear to apply here — the provision allowing communications where the public official makes a request for a meeting.
Section 1913 states, in relevant part: "No part of the money appropriated by any enactment of Congress shall, in the absence of express authorization by Congress, be used directly or indirectly to pay for any personal service, advertisement, telegram, telephone, letter, printed or written matter, or other device, intended or designed to influence in any manner a Member of Congress, a jurisdiction, or an official of any government, to favor, adopt, or oppose, by vote or otherwise, any legislation, law, ratification, policy or appropriation . . .; but this shall not prevent officers or employees of the United States or of its departments or agencies from communicating to any such Member or official, at his request, or to Congress or such official, through the proper official channels, requests for any legislation, law, ratification, policy or appropriations which they deem necessary for the efficient conduct of the public business. . . ."
It bears repeating that § 1913 applies only where a Congressional appropriation is used for the lobbying activity. The present record does not provide any information on whether such appropriations are used to fund the Department. However, as discussed above, there are other limitations on the face of the statute that indicate it is not applicable to this case.
B. Irreparable Harm
The above assessment supports the view that, prior to March 25, 2005, plaintiffs' claim of a First Amendment violation is viable and, indeed, likely to be successful. Demonstration of a substantial likelihood of success on the merits is not, alone, sufficient to warrant a preliminary injunction. Entry of the extraordinary remedy of preliminary injunctive relief also requires a plaintiff to demonstrate irreparable harm. In light of Chief Thompson's letter of March 25, 2005 concerning administrative leave, the Court finds that there is virtually no likelihood that future requests for administrative leave will be denied based on the content of plaintiffs' speech. The policy set forth in the letter makes it clear that the CBA's "mutual benefit" standard will be applied in a content-neutral manner. It states that a request for administrative leave will be granted when the requirements of the CBA are met and, more significantly, it specifies that the CBA's "mutual benefit" requirement can be met simply by stating: "The meeting will be of mutual benefit to both parties." Thompson Letter at 1. The request also must identify the activity for which leave is sought and lists as an example: "I will meet with Congressman John Doe." Id. In contrast to the Jackson statements on January 25, 2005, there is nothing in the policy that suggests that granting administrative leave requests is contingent on the content of the speech. Instead, the letter emphasizes that "[f]ailure to meet the above requirements, and staffing needs, shall be the only grounds upon which a request for official or administrative leave may be denied," id. (emphasis added), which necessarily means that a request cannot be denied based on non-listed grounds, such as the substance of the speech to be expressed. Thus, after issuance of the Thompson Letter on March 25, 2005, there is no concrete threat of irreparable injury, or even the likelihood of a future violation of plaintiffs' First Amendment rights.
The Thompson letter also lays out routine procedural requirements for the submission of leave requests, such as advance submission and certification, which have no relevance here.
"Without adequate proof of a threatened injury, plaintiff lacks . . . an adequate basis in equity for an injunction." Taylor, 56 F.3d at 1508. Indeed, the March 25, 2005 letter setting forth the administrative leave policy and rescinding all other policies and practices raises a substantial question as to whether plaintiffs now have standing to seek injunctive relief and also whether the motion for a preliminary injunction is moot. See id. at 1503 ("a defendant cannot moot the case for an injunction against it merely by ceasing its wrongful conduct unless it also shows that there is no reasonable expectation that it will repeat the wrong") (citing United States v. W.T. Grant Co., 345 U.S. 629 (1953)); id. at 1508 ("inquiry [regarding irreparable injury] overlaps with the standing issue somewhat"). The Court does not address questions of standing and mootness at this stage because, putting aside the failure of defendant to raise those questions, there may be unresolved factual issues as to whether, despite the existence of an official policy that appears to require evaluation of administrative leave requests in a content-neutral manner, those charged with implementing the policy might do so in a manner that raises First Amendment concerns. Thus, although the Court finds on this record that it is unlikely that defendant will commit any future violation, the Court cannot make that determination with sufficient certainty on the present record to deny the claim for injunctive relief on grounds of lack of standing or mootness.
Nonetheless, the March 25, 2005 letter is significant. "Cessation of the allegedly illegal conduct, though not rendering a claim moot, nevertheless may affect the ability to obtain injunctive relief, as by impacting the ability to show substantial and irreparable injury." Milwaukee Police Ass'n v. Jones, 192 F.3d 742, 748 (7th Cir. 1999). As the Supreme Court has explained:
[T]he court's power to grant injunctive relief survives discontinuance of the illegal conduct . . . but the moving party must satisfy the court that relief is needed. The necessary determination is that there exists some cognizable danger of recurrent violation, something more than the mere possibility which serves to keep the case alive.W.T. Grant, 345 U.S. at 633 (cited in Milwaukee Police Ass'n, 192 F.3d at 748). Defendant, through Chief Thompson, has not merely ceased the alleged unlawful conduct — it has gone significantly further by "rescind[ing]" any existing policies or practices inconsistent with the stated policy, including that articulated by his deputy, Jackson, on January 25, 2005. Thus, this situation is unlike other cases where courts found injunctive relief appropriate despite voluntary cessation because the cessations in those cases consisted only of a "temporary" withdrawal of an alleged policy, or "suspension of enforcement" of the policies at issue. Milwaukee Police Ass'n, 192 F.3d at 748 (remanding consideration of preliminary injunction to district court to evaluate validity of policies that were "temporar[ily] withdraw[n]" but still remained in effect); Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d 1221, 1231 (10th Cir. 1997) (holding injunction was warranted where defendant only "voluntarily suspended" enforcement of an allegedly unlawful policy and showed "defiant hostility to amending" its provisions). Considering Chief Thompson's unequivocal rescission of the policy represented in the January 25, 2005 Jackson statements, and the promulgation of a content-neutral administrative leave policy, the Court finds there is no likelihood of irreparable injury and, indeed, no likelihood of a future violation.
C. Harm to Others and Public Interest If An Injunction Is Entered
Plaintiffs argue that defendant will not be harmed by the entry of an injunction because it would return the parties to the long-standing prior practice under which requests for administrative leave were handled without requiring plaintiffs to disclose the content of their planned discussions. However, this is the very policy in effect under the recently issued Thompson Letter. Entry of an injunction could unnecessarily cause disruption of the labor-management resolution that the letter represents — a letter which involves the interests of Local 36 as well as Local 3721 — and interfere with implementation of the CBA. The Court is not inclined to take this path without the concrete threat of some future harm warranting an injunction.
The Court also must consider whether the public interest supports the grant of injunctive relief. Plaintiffs argue that the public has a strong interest in allowing free and unhindered debate on matters of public importance — here, the provision of quality emergency medical services to those who work and reside in the District. Although the Court previously has acknowledged the importance of this public interest in its First Amendment analysis, the entry of the injunction requested by plaintiffs would not significantly further this interest. Again, the Thompson letter already has put in place a content-neutral administrative leave policy and rescinded any prior inconsistent policy or practice. Thus, an injunction would not advance the public interest in debate on matters of public importance because such debate can occur under the policy presently in effect.
CONCLUSION
For the foregoing reasons, the Court concludes that plaintiffs have failed to meet their burden of establishing that the extraordinary remedy of preliminary injunctive relief is warranted under the present circumstances. The motion for a temporary restraining order and preliminary injunction is therefore denied. A separate Order will be issued.