UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


BARWOOD INC

v.

DC


99-7027a

D.C. Cir. 2000


*	*	*


Williams, Circuit Judge: On June 12, 1998 the District of  Columbia
Taxicab Commission promulgated 31 D.C.M.R.  s 828, restricting the
circumstances under which suburban  taxicabs may pick up passengers in
the District and subject- ing violators to criminal sanctions.
Plaintiffs, various subur- ban taxicab companies and some of their
drivers, sought a  temporary restraining order ("TRO") against the
Commission  and various individual defendants, to prevent them from 
enforcing s 828. They argued that the Commission lacked  the authority
to alter the existing reciprocity arrangements,  and that reciprocity
infractions are subject only to civil sanc- tions. On July 31, 1998
the district court entered a TRO,  which was later expanded in
response to allegations that it  had been violated. On February 16,
1999 the district court  entered a preliminary injunction prohibiting
the Commission  from enforcing s 828, from imposing any criminal
sanctions  for reciprocity violations, or from otherwise altering the
pre- existing reciprocity arrangements. Barwood, Inc. v. District  of
Columbia, No. 98-1901 (D.D.C. Feb. 16, 1999). The Dis- trict


Plaintiffs pursued this injunction--and so far as appears  the entire
lawsuit--almost exclusively on the basis of viola- tions of District
of Columbia law. The original complaint  asserted diversity
jurisdiction. See 28 U.S.C. s 1332(a). La- ter that same day,
presumably upon realizing that the Dis- trict of Columbia, like a
state, is not a citizen of a state (or of  itself) for diversity
purposes, see Long v. District of Colum- bia, 820 F.2d 409, 414 (D.C.
Cir. 1987), plaintiffs filed an  amended complaint attempting to
establish federal question  jurisdiction. To this end they added
claims that defendants'  conduct had violated "the Fourth, Fifth, and
Fourteenth  Amendments to the United States Constitution and 42 U.S.C.


Because there are no allegations of federal constitutional  violations
independent of the purported violations of District  of Columbia law
(or at any rate no such allegations for which  plaintiffs have
standing), there is no subject matter jurisdic- tion. Accordingly, we
vacate the preliminary injunction and  remand for the district court
to dismiss the complaint.


* * *


The District law claims around which this suit has revolved  are
somewhat complex but can be generalized as assertions  that various
agencies and individuals of the District's execu- tive branch acted
ultra vires. In the District of Columbia  Taxicab Commission
Establishment Act of 1985 (the "Taxicab  Act" or the "Act"), D.C. Code
s 40-1701 et seq., the District  created the District of Columbia
Taxicab Commission  ("D.C.T.C." or the "Commission"), and gave it
"exclusive  authority for intrastate regulation of the taxicab
industry."  Id. s 40-1704. The Act did not address the issue of
taxicab  reciprocity (i.e., the arrangements under which suburban 
taxicabs may operate within the District, and vice versa), but 
provided the Commission with the authority to "[a]dvise the  Mayor
regarding the entering, modifying, and terminating of  reciprocal
agreements respecting taxicabs with governmental  bodies in the
Washington metropolitan area." Id.  s 40-1707(b)(1)(L). On August 13,
1987 the Commission's  chairman issued "Administrative Order No. 4,"
which pur- ported to govern the provision of taxicab service in the 


On June 12, 1998 the District of Columbia Taxicab Commis- sion
promulgated a new provision to the District of Columbia  Municipal
Regulations, 31 D.C.M.R. s 828, limiting the scope  of taxicab
reciprocity with neighboring jurisdictions. The  regulation provided
penalties in the form of fines of up to  $300 and imprisonment of up


Plaintiffs, suburban taxicab drivers and their companies,  filed a
complaint in the district court. They named as  defendants the
District, the District Chief of Police, and the  Taxicab
Commissioners. The complaint--and all successive 


amended complaints--specified that the various individual  defendants
were sued "in their official capacities." The com- plaint alleged that
only the Mayor, not the Commission,  possessed the exclusive authority
"to change, modify or alter  applicable reciprocity arrangements in
the District of Colum- bia," Joint Appendix 186, and that the
provision of civil  penalties by the Taxicab Act, D.C. Code s
40-1719(a), was  exclusive, negating the purported penalties under s


In response to a TRO issued by the district court, the  chairman of the
D.C.T.C. issued an order rescinding Adminis- trative Order No. 4--the
1987 internal agency memorandum  setting forth the District's policy
of reciprocity. Further, the  Mayor delegated to the Commission his
authority to alter  reciprocity agreements. Soon thereafter the
Commission  rescinded existing s 828 and, under the Mayor's
delegation,  approved an identical rule as an "emergency" s 828.


Plaintiffs filed a contempt motion, arguing that the Com- mission's
action violated the TRO. They also alleged that  Harry Silverman, a
Commissioner of the D.C.T.C., should be  found in criminal contempt
for deliberately running his car  into a taxicab owned by one of the
plaintiffs in an attempt to  arrest the driver pursuant to s 828.
Plaintiffs filed a Second  Amended Complaint, expanding their claims
to encompass  the alleged infractions by the Commission and by
Silverman.  The district court followed up with TROs broader than the 
initial one, and on February 16, 1999 issued the preliminary 
injunction now on appeal. It enjoined the defendants from:  "(1)
enforcing 31 D.C.M.R. s 828, or any portion thereof; and  (2) taking
any action to effectuate any arrests or other  criminal penal actions
against taxicab drivers in connection  with alleged reciprocity
violations." In addition, the D.C.T.C.  was enjoined from: "(1) taking
any action ... in reliance  upon any purported mayoral delegation
regarding reciprocity;  and (2) seeking to enact, modify, or repeal
any regulations,  administrative orders, or other administrative
actions that  have the effect of limiting, modifying, repealing, or


* * *


We may dispense rapidly with jurisdictional theories ad- vanced in or
before oral argument. Plaintiffs say that if their  District law
theory is correct, the District lacks the authority  to arrest taxicab
drivers for reciprocity violations; thus any  arrest is illegal and in
violation of the Fourth Amendment.  The argument has an initial
plausibility: if an arrest without  probable cause violates the Fourth
Amendment, then surely  one for which no cause could possibly exist
must do so. If  correct, of course, the argument would transform a
wide class  of state law claims into federal ones. Every arrest
claimed to  violate state law would entail an ancillary federal claim,
even  though the state law attack rested (as here) on state law 
theories having no connection whatever with the policies  underlying


Cases such as Dombrowski v. Pfister, 380 U.S. 479 (1965),  and Steffel
v. Thompson, 415 U.S. 452 (1974), both cited by  plaintiffs, allow
anticipatory relief against threatened state  law enforcement; but
these cases turned on that enforce- ment's deterrent threat to
plaintiffs' constitutional, in particu- lar First Amendment, rights.
(In Dombrowski, moreover,  enforcement was alleged to be in bad faith,
"only to discour- age appellants' civil rights activities." 380 U.S.
at 490.)  Here plaintiffs make no parallel allegation that the
District's  arguably ultra vires taxicab regulations burden or chill
any  independent federal constitutional rights. Mere inconsistency 
with state, or even federal, law will not suffice to create a  Fourth
Amendment cause of action (unless, of course, the  inconsistency is
with the Fourth Amendment itself).


Plaintiffs also argue that any arrest under the disputed  provisions
will be a violation of the Fifth and Fourteenth  Amendments,
apparently asserting a due process theory.  Again this is a state law
claim in federal garb. But "the fact  of a state law violation does
not resolve whether a plaintiff  has been deprived of due process."
Committee of U.S. Citi- zens Living in Nicaragua v. Reagan, 859 F.2d
929, 944 (D.C.  Cir. 1988); see also Archie v. City of Racine, 847


1217 (7th Cir. 1988) (en banc) ("A state ought to follow its  law, but
to treat a violation of state law as a violation of the  Constitution
is to make the federal government the enforcer  of state law. State
rather than federal courts are the appro- priate institutions to
enforce state rules."). A due process  claim rests on "the manner in
which the violation occurs as  well as its consequences." Committee of
U.S. Citizens, 859  F.2d at 944; see also Wolff v. McDonnell, 418 U.S.
539, 558  (1974) ("The touchstone of due process is protection of the 
individual against arbitrary action of government."); United  States
ex rel. Hoover v. Franzen, 669 F.2d 433, 446 n.28 (7th  Cir. 1982)
("In order for the violation of state law to rise to  the level of a
federal constitutional violation, it must be  alleged that the
violation was the result of arbitrary state  action."). But plaintiffs
point to nothing in the record that  would support a claim that the
Commission acted arbitrarily  or in a manner otherwise violative of
due process, except to  argue that the regulation violates state law.
That is not  enough.


Similarly, it is not enough that in their amended complaints 
plaintiffs ask that the Commission should be held in civil  contempt
for violating the district court's TRO. To secure  jurisdiction by
this means would be a remarkable feat of  bootstrapping. But just as a
court without jurisdiction over  an underlying case has no
jurisdiction to issue a subpoena  (unless issued in aid of determining
jurisdiction), or to enforce  it by civil contempt, United States
Catholic Conference v.  Abortion Rights Mobilization, Inc., 487 U.S.
72, 76 (1988); cf.  Barry v. United States, 865 F.2d 1317, 1322 (D.C.
Cir. 1989)  (finding that there is no such thing as a cause of action
for  civil contempt, a device used simply to secure compliance with  a
court order), so too a court without jurisdiction over an  underlying
case cannot issue a TRO, or enforce it by civil  contempt.


The possibility that the U.S. Attorney may pursue a crimi- nal contempt
claim against Silverman or other defendants,  see United States
Catholic Conference, 487 U.S. at 78-79, of  course, neither provides
plaintiffs with a cause of action nor  supplies jurisdiction for their
civil suit.


In a supplemental brief filed after oral argument, the  plaintiffs have
sought to turn their allegations against Com- missioner Silverman into
an independent federal claim, and  then, in a marvelous twist, to
suggest that jurisdiction over  the other claims might survive as
supplementary claims un- der 28 U.S.C. s 1367. This will not work.


Plaintiffs say that Silverman's conduct independently creat- ed a
federal cause of action. The Second Amended Com- plaint alleges that
he "intentionally collided his vehicle into a  taxicab" of one of the
plaintiff companies, that the intentional  collision represented a
battery, that Silverman acted under  color of state law, and thereby
violated the court's TRO, and  that therefore he should be held in
criminal contempt. Sec- ond Amended Complaint, pp 31-35. The complaint
goes on to  say that Silverman's conduct placed the plaintiff cab
company  "in jeopardy of unreasonable government action, ... in viola-
tion of the Fourth, Fifth, and Fourteenth Amendments ...  and 42
U.S.C. s 1983." Id. p 47.


We will assume for these purposes that Silverman was  acting under
color of state law,1 and that absent unusual  circumstances the
deliberate use of a car to ram another, to  enforce a cab regulation,
violates the federal constitution as  an unreasonable use of force.
But recall that the plaintiffs'  suit is only against the District,
the individuals being named  only in their official capacity. Indeed,
when the plaintiffs  sought contempt proceedings against Silverman,
the district  court noted "that Defendants do not represent Mr.
Silverman,  and that Mr. Silverman has never appeared in any of these 
proceedings." Memorandum Opinion, Oct. 30, 1998, at 6 n.3.


Insofar as plaintiffs seek injunctive relief against further  use of
cars as battering rams by the District, they have failed  even
remotely to allege facts essential for standing; there is  no
assertion of any fact giving reason to believe that Silver- man or any
other District officer or employee will again use  this innovative law
enforcement technique against any of the 




__________

n 1 The District, however, cites D.C. Code Ann. s 40-1722 (1998)  for
the proposition that the D.C. Council has transferred all taxicab 
enforcement responsibilities to the Metropolitan Police Department.


plaintiffs' cabs. City of Los Angeles v. Lyons, 461 U.S. 95,  110
(1983) (finding that plaintiff who did not "face[ ] a real  and
immediate threat of again being illegally choked" pursu- ant to the
city's policy with respect to the use of chokeholds  did not have
standing to bring a claim for injunctive relief  against the city).


Although plaintiffs also seek damages, they have never  alleged that
the District has adopted a "policy or custom" of  enforcing its taxi
regulations by means of crashing autos into  each other, as would be
required for municipal liability under  s 1983. Monell v. New York
City Dept. of Social Servs., 436  U.S. 658, 694 (1978). While of
course an omission in substan- tive allegations is not inherently a
jurisdictional defect, here  the question is whether plaintiffs'
references to the alleged  Silverman episode ever purported to invoke
federal question  jurisdiction. In fact those references are most
naturally  understood exclusively as the bases for plaintiffs'
requests for  criminal contempt remedies, see Second Amended Complaint
 at WW 31-35, and for their jurisdictionally defective request for 
injunctive relief (id. p 47). Under the most reasonable read- ing, the
allegation against Commissioner Silverman does not  form a basis for
plaintiffs' claim for damages, and accordingly  the successive
complaints altogether fail to allege a federal  claim.


Of course the alleged ramming may in fact afford the  specific cab
company and driver a good s 1983 claim against  Silverman. They are at
liberty to try such a suit. If,  however, they should seek to combine
that claim with ones  dependent on the District law issues which have
hitherto  consumed the time of the district court, invoking as they
have  here at the last minute the "supplemental jurisdiction" provi-
sion of 28 U.S.C. s 1367, allowance of such supplemental  jurisdiction
would either be improper for want of a "common  nucleus of operative
fact," United Mine Workers v. Gibbs, 383  U.S. 715, 725 (1966); see
also Doe by Fein v. District of  Columbia, 93 F.3d 861, 871 (D.C. Cir.
1996), or be an abuse of  discretion given that the District law
issues so clearly "sub- stantially predominate[ ] over the claim or
claims over which 


the district court has original jurisdiction," 28 U.S.C.  s
1367(c)(2).


The preliminary injunction is vacated and the case remand- ed for the
district court to dismiss the complaint.


So ordered.