578 F.Supp.3d 7
D.D.C.2021Background
- The District of Columbia amended its First Source Employment Agreement Act in 2011 (effective Feb. 24, 2012) to require that contracting beneficiaries give hiring preference to DC residents via a First Source Register and, for projects between $300,000 and $5,000,000, mandate that at least 51% of new hires be DC residents; larger projects carry trade‑by‑trade resident-hour percentage requirements. The amended Act authorizes fines/penalties but the District has not imposed them.
- Plaintiffs are ABC Metro‑Washington (an association), Miller & Long (a member contractor), and two non‑resident Miller & Long employees (Morris and Upshur). They challenge the Act as discriminating against nonresidents in violation of substantive due process under the Fifth Amendment, arguing the Privileges and Immunities Clause rights are incorporated into the Fifth Amendment.
- The District justified the amendment based on high local unemployment, a large share of DC jobs held by nonresidents, and DC’s inability to tax commuter income; the Workforce Committee reported enforcement problems under the pre‑2011 law.
- At summary judgment the District moved to dismiss; court found at the summary stage the individual plaintiffs lacked evidence of injury in fact (they are employed and thus not on the First Source Register) and dismissed them for lack of standing. The Association retained standing because Miller & Long (a member) has standing.
- The central legal question decided was whether the Privileges and Immunities Clause’s protections can be incorporated into the Fifth Amendment’s Due Process Clause so as to apply to the District of Columbia; the court held there is no basis for such incorporation and therefore the claim failed without reaching the Act’s constitutionality on the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing of individual plaintiffs (Morris, Upshur) | Nonresidents are harmed by exclusion from First Source Register and by reduced opportunities | Act governs new hires only; both individuals are long‑term employed and produced no evidence of concrete injury | Dismissed for lack of Article III standing (no injury in fact) |
| Association (ABC Metro‑Washington) standing | Association and its members are harmed by Act; association may sue to vindicate members' interests | Most members not harmed; but Miller & Long has standing | Association has standing because a member (Miller & Long) has standing |
| Whether Privileges and Immunities rights incorporate into Fifth Amendment substantive due process | Rights to pursue a common calling and other P&I protections are fundamental and thus available under Fifth Amendment | Privileges and Immunities Clause limits state power and does not directly bind federal/territorial government; incorporation lacks doctrinal basis | No basis to incorporate Privileges and Immunities Clause into Fifth Amendment; claim fails on that ground |
| Whether the Act violates incorporated P&I protections (merits / scrutiny) | If incorporated, Act would discriminate against nonresidents and trigger heightened review | Act serves substantial local interests (employment, revenue protection, enforcement) | Court did not reach merits because incorporation fails |
Key Cases Cited
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (standing requires concrete injury, causation, redressability)
- United Bldg. & Const. Trades Council v. Mayor & Council, 465 U.S. 208 (Privileges and Immunities protects pursuit of common calling)
- Bolling v. Sharpe, 347 U.S. 497 (Fifth Amendment can embody equal‑protection principles; not a vehicle to incorporate all P&I rights)
- Truax v. Corrigan, 257 U.S. 312 (Due process protects access to general laws and courts; not authority to import P&I wholesale)
- Toomer v. Witsell, 334 U.S. 385 (purpose of Privileges and Immunities Clause explained—protects out‑of‑state citizens visiting other states)
- Washington v. Glucksberg, 521 U.S. 702 (substantive due process analysis and approach to fundamental rights)
- Chamber of Commerce v. EPA, 642 F.3d 192 (association standing: member standing, germane interests, no individual participation required)
- Duehay v. Acacia Mutual Life Insurance Co., 105 F.2d 768 (D.C. Circuit: Privileges and Immunities Clause inapplicable to District of Columbia as a federal jurisdiction)