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American Federation of State, Local 2186 v. City of Philadelphia

United States District Court, Third Circuit

June 20, 2013

CITY OF PHILADELPHIA, et al., Defendants.


BERLE M. SCHILLER, District Judge.

The American Federation of State, County and Municipal Employees District Council 47, Local 2186 ("AFSCME") seeks a declaratory judgment against the City of Philadelphia ("City"), Mayor Michael A. Nutter, Director of Human Resources for the City of Philadelphia Albert L. D'Attilio, and the Civil Service Commission ("Commission"), deeming Philadelphia Civil Service Regulation 16.02 ("Regulation 16.02" or "the Regulation") unconstitutional on its face. Pending before the Court is Defendants' motion to dismiss AFSCME's Amended Complaint. For the reasons that follow, the Court grants the motion in part and denies it in part.


AFSCME is an unincorporated labor organization that represents a unit of first-level supervisors employed by the City, the members of which are civil servants. (Am. Compl. ¶¶ 1, 11.) The Commission "creat[es] and implement[s]" Civil Service Regulations that "effectuate the day-to-day operations of the City." ( Id. ¶ 6.) A Consolidated Memorandum of Agreement ("Agreement") between AFSCME and the City governs the employment of AFSCME members and incorporates by reference the Civil Service Regulations. ( Id. ¶¶ 17-18; see id. Ex. A [Agreement] § 6B.)

Philadelphia Civil Service Regulation 16.01 provides, "The appointing authority may lay off an employee in the Civil Service only when necessary because of a reorganization resulting in the abolition of his position, or because of a lack of either work or funds." ( Id. Ex. B [Regulation 16].) An employee has thirty days after receiving notice of the layoff to appeal to the Commission "on the ground that the required procedure has not been complied with or that the layoff has not been made in good faith or was otherwise improper." ( Id. ) In addition, Regulation 17.01 states, "Any dismissal or demotion after the completion of the required probationary period of service, or suspension of any employee in the Civil Service shall be for just cause only, " and 17.061 provides for appeals of dismissals, demotions, or suspensions of more than ten days. (Defs.' Mot. to Dismiss Ex. 1 [Regulation 17].)

In December 2012, the Commission approved Regulation 16.02, which permits the City to furlough AFSCME members. (Am. Compl. ¶¶ 21-22.) Specifically, a furlough-defined as "[p]lacing an employee temporarily in a non-pay, non-duty status because of lack of work or lack of funds or other economic reasons as determined by the Finance Director"-can be "for any specified period of time" under Regulation 16.023. (Regulation 16.) Regulation 16.022 requires that notice of the furlough be provided at least seven days in advance, "except where emergency considerations found and declared by the Finance Director require a shorter period of notice." ( Id. ) Regulation 16.024 describes the process for determining which employees are furloughed: "The appointing authority shall designate either the department or, with the approval of the Director, a recognized budget division as the organizational unit within which the furloughs are to be made. Within the organizational unit designated, the appointing authority, with the approval of the Director, shall also designate the classes to be furloughed." ( Id. ) Regulation 16.028 provides, "An employee may not appeal a furlough to the Civil Service Commission." ( Id. ) The Agreement establishes a multilevel grievance procedure to settle disputes "regarding the interpretation or application of the provisions" of the Agreement. (Agreement § 7A.) The grievance procedure provides for review by the employee's immediate supervisor and the Division Head, and for meetings between the grievant, union representatives, the Department Head or Commissioner, and the Personnel Director. ( Id. )

Though Regulation 16.02 is in effect, the City has not yet furloughed any AFSCME members. ( See Am. Compl. ¶ 48.) However, AFSCME alleges that the City included "its intentions regarding furloughing AFSCME members" in its Five Year Financial and Strategic Plan for Fiscal Years 2013-2017 ("Five Year Plan"). ( Id. ; Defs.' Mot. to Dismiss Ex. 5 [Five Year Plan].) In addition, the City sued AFSCME District Council 33, seeking a declaration that the City has the right to impose its final offer for a new collective bargaining agreement on the union. (Am. Compl. ¶ 48; Defs.' Mot. to Dismiss Ex. 6 [AFSCME District Council 33 Compl.].) The City's final offer includes the right to furlough District Council 33 members. (AFSCME District Council 33 Compl. ¶ 89)

AFSCME brings a facial challenge to Regulation 16.02, alleging that it violates the Due Process Clause of the U.S. Constitution and Article 1, Section 26 of the Pennsylvania Constitution because the furloughs deprive AFSCME members of their property interest in continued employment without due process.


In reviewing a motion to dismiss for failure to state a claim, a district court must accept as true all well-pleaded allegations and draw all reasonable inferences in favor of the non-moving party. See Bd. of Trs. of Bricklayers & Allied Craftsman Local 6 of N.J. Welfare Fund v. Wettlin Assocs., 237 F.3d 270, 272 (3d Cir. 2001). A court should accept the complaint's allegations as true, read those allegations in the light most favorable to the plaintiff, and determine whether a reasonable reading indicates that relief may be warranted. Umland v. PLANCO Fin. Servs., Inc., 542 F.3d 59, 64 (3d Cir. 2008). "But a court need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (citation omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

"Factual allegations [in a complaint] must be enough to raise a right to relief above the speculative level...." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To survive a motion to dismiss, a complaint must include "enough facts to state a claim to relief that is plausible on its face." Id. at 570. Although the federal rules impose no probability requirement at the pleading stage, a plaintiff must present "enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s]" of a cause of action. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (citation omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. Simply reciting the elements will not suffice. Id. ; see also Phillips, 515 F.3d at 231.

The Third Circuit Court of Appeals has directed district courts to conduct a two-part analysis when faced with a Rule 12(b)(6) motion. First, the legal elements and factual allegations of the claim should be separated, with the well-pleaded facts accepted as true but the legal conclusions disregarded. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). Second, the court must make a commonsense determination of whether the facts alleged in the complaint are sufficient to show a plausible claim for relief. Id. at 211. If the court can infer only the mere possibility of misconduct, the complaint must be dismissed because it has alleged-but has failed to show-that the pleader is entitled to relief. Id.

When faced with a motion to dismiss for failure to state a claim, courts may consider the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim. ...

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