Ostrander v. City of Manchester CV-95-559-JD 08/09/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Bruce Ostrander

v. Civil No. 95-559-JD

City of Manchester, et al.

O R D E R

The plaintiff, Bruce Ostrander, filed the instant action

under

alleging that his employer, the City of

Manchester, New Hampshire, its chief of police, Peter Favreau,

and its assistant chief of police, Mark Driscoll, suspended him

from his position as a patrolman in violation of his constitu­

tional right to procedural due process. Before the court is the

defendants' motion to dismiss (document no. 12).

Background1

The plaintiff has been employed as a patrolman with the

Manchester, New Hampshire police department since 1981.

1The court's recitation of the facts relevant to the instant motion is drawn in large part from the opinion of the arbitrator who resolved the underlying dispute between the parties. See City of Manchester & Manchester Police Patrolmen's Assoc. (Bruce Ostrander Termination), AAA No. 11 390 00344 96, opinion and decision ("Arbitration Decision") at 1-3 (Zack, A.) (April 30, 1996). In all other instances the facts are recited as alleged by the plaintiff and are cited accordingly. On or about September 16, 1995, a handgun usually stored on

a shelf in the police armory was reported missing. Two days

later police officials located the missing handgun and a semi­

automatic weapon on the top of a nine-foot-high component of the

armory's ventilation system. An internal affairs investigation

followed during which investigating officials learned that, inter

alia, the plaintiff had on a previous occasion placed the same

semi-automatic weapon in a special location to prevent others

from tampering with it.

On October 3, 1995, the plaintiff was instructed to meet at

some time that day with investigating officials. Soon thereafter

the plaintiff told defendant Favreau and other investigators that

he had placed the semi-automatic weapon on the ventilation

eguipment. The plaintiff initially denied involvement with the

handgun originally reported missing but, following consultation

with a union representative, later admitted to having improperly

moved this weapon as well. During discussions with the internal

investigators the plaintiff acknowledged that he initially had

lied about the handgun. The plaintiff also told investigators

that he moved the weapons for safekeeping and that he never

intended to remove police property from the armory.

2 On October 11 , 1995, the plaintiff underwent a mandatory

polygraph test and, on October 31, 1995, the plaintiff was

suspended without pay. Complaint at 5 20.

At the time he was suspended, the plaintiff was served with

written notice that the department had charged him with a

violation of rule and regulation number 6, which reguires police

employees to be truthful, and rule and regulation number 2, which

proscribes conduct unbecoming an officer. The plaintiff

acknowledged in writing his receipt of the charges and reguested

a hearing before the department's disciplinary board. See

Complaint at 5 23. The plaintiff was neither asked nor permitted

to respond to the two charges at the time he was suspended. See

i d . at 5 23.

The plaintiff filed the instant action on November 17, 1995.

The disciplinary board, which consisted of police

commissioner Thomas Noonan and patrolman Philip LeBlanc and was

chaired by deputy police chief Mark Fielding, conducted a hearing

in December 1995, and concluded that the plaintiff had committed

the charge of untruthfulness but that the charge of conduct

unbecoming an officer was unfounded. The board recommended a

six-month suspension without pay.

Defendant Favreau, as the chief of police, adopted the

board's findings with respect to the violations but rejected the

3 recommended suspension. Instead, Favreau elected to terminate

the plaintiff and did so by termination letter dated December 27,

1995. Favreau's decision was upheld by the entire police

commission on appeal. The matter next was submitted to binding

arbitration as provided by the collective bargaining agreement.

On April 17, 1996, the arbitrator conducted a hearing to

resolve a guestion agreed upon by the parties: "Did the City

terminate Bruce Ostrander without just cause? If so, what shall

be the remedy?" Arbitration Decision at 1. By written opinion

and decision of April 30, 1996, the arbitrator essentially agreed

with the decision of the police department's disciplinary board

and reinstated its recommended sanction:

The termination of Ostrander was for unjust cause. He shall be reinstated with full seniority and other rights and entitlement, and his termination be converted to a six month suspension without pay as recommended by the Disciplinary Hearing Board.

I d . at 5 .

According to the defendants, the police department

reinstated the plaintiff with pay retroactive to May 1, 1996, six

months from the date he was suspended. Defendants' Memorandum in

Support of Motion to Dismiss ("Defendants' Memorandum") at 3-4

(citing Affidavit of Mark Driscoll, assistant chief of police).

The plaintiff returned to work at some point after May 2, 1996.

See i d .

4 Discussion

In their motion, the defendants assert that the arbitration

decision and the plaintiff's reinstatement to the police force

have mooted the sole issue presented by his lawsuit, i.e.,

whether the disciplinary process was constitutionally inadequate.

See Defendants' Memorandum at 4-5. The plaintiff responds that

this action raises a constitutional question distinct from those

resolved throuqh arbitration and "capable of repetition, yet

evadinq review." Plaintiff's Amended Memorandum of Law in

Opposition to Defendants' Cross-Motion for Summary Judqment

("Plaintiff's Memorandum") at 19-21.

Article III of the Constitution limits the court's

jurisdiction to the resolution of actual cases or controversies.

U.S. Const, art. Ill, § 2, cl. 1; Lewis v. Continental Bank

Corp.,

(1990); Oakville Dev. Corp. v. EPIC,

(1st Cir. 1993). The court lacks the authority "to

issue advisory opinions . . . [or] to decide questions that

cannot affect the riqhts of litiqants in the case before [it]."

North Carolina v. Rice,

(1971) (per curiam)

(citations omitted). Althouqh an action may present a live

controversy at the time of filinq, subsequent events may render

the action moot. See, e.g., Kremens v. Bartley,

(1977) (constitutional challenqe to statute rendered moot by

5 enactment of superseding statute); Board of License Comm'rs v.

Pastore,

(1985) (per curiam) (lawsuit

challenging restrictions placed on business rendered moot by

closure of business); RESTORE: The North Woods v. United States,

No. 95-37-JD, slip op. at 7-8 (D.N.H. Aug. 4, 1995) (lawsuit

challenging government's admitted violation of Endangered Species

Act rendered moot by government's subseguent compliance with

act). When no case or controversy exists, a claim is moot

because its resolution would not affect the parties' legal

interests. Air Line Pilots Ass'n v. UAL Corp.,

(7th Cir. 1990); see Oakville Dev. Corp.,

;

New Bank of New England, N.A. v. Tritek Communications, Inc.,

, 17 n.l (D. Mass. 1992). The court must dismiss moot

claims. Oakville Dev. Corp.,

.

An exception to the mootness doctrine attaches where the

conduct being challenged is "capable of repetition, yet evading

review." Weinstein v. Bradford,

(1975) (per

curiam). In order to invoke the exception, the plaintiff "must

show that '(1) the challenged action was in its duration too

short to be fully litigated prior to its cessation or expiration,

and (2) there was a reasonable expectation that the same

complaining party would be subjected to the same action again.'"

Boston Teachers Union, Local 66 v. Edgar,

(1st

6 Cir. 1986) (quoting Murphy v. Hunt,

(1982) (per

curiam)). See, e.g., Nebraska Press Ass'n v. Stuart,

(1976) (short-lived restrictive orders on press

coverage of criminal trials capable of repetition, but evading

review); Roe v. Wade,

(1973) (length of

gestation period sufficiently short so as to preclude appellate

review of claims concerning a woman's right to terminate

pregnancy). Finally, contentions that other parties could be

subject to future violations are insufficient to trigger the

exception. Oakville Dev. Corp.,

("the

possibility -- or even the probability -- that others may be

called upon to litigate similar claims does not save a particular

plaintiff's case from mootness").

The plaintiff's lawsuit is moot.2 The arbitrator has

determined the nature and extent of his wrongdoing and, in turn,

ordered a sanction which coincided with that originally handed

down by police officials on October 31, 1995, i.e., a suspension

without pay. Even assuming that the plaintiff initially was

suspended without due process, see Complaint at 2 (citing

Cleveland Bd. of Educ. v. Loudermill,

(1985)), the

2Parenthetically, the plaintiff tacitly acknowledges that his lawsuit is not justiciable by arguing that the issue presented is capable of repetition but evading review -- a judicial exception which permits courts to consider moot cases under certain circumstances.

7 arbitrator found that the suspension was the appropriate remedy

and, as a result, the plaintiff has not suffered the harm he

claims resulted from the alleged deprivation of process.3

The court also finds that the capable of repetition but

evading review exception cannot as a matter of law attach in this

case. The record contains no factual averments which, liberally

construed, "would demonstrate a reasonable expectation that the

same [plaintiff] would be subjected to the same action again.'"

Boston Teachers Union, Local 66,

(emphasis

supplied) (guoting Murphy,

(1982) (per curiam)).

Instead, the plaintiff attempts to invoke the exception by

suggesting that other police department employees may face

similar deprivations in the future:

The issue before this Court is whether or not the MPD can suspend an officer without pay and without due process . . . . Plaintiffs have no guestion that this Court's dismissal of this action on mootness will be viewed by Defendants as a victory and will lead the Defendants to suspend yet more MPD officers without pay and without due process. Plaintiffs can assure this Court that if this guestion is not resolved by this case, it is an issue which will be before the Court again.

Plaintiff's Memorandum at 19-20. The capable of repetition

exception is litigant-specific and, as such, the plaintiff cannot

31he plaintiff has not in his complaint challenged the constitutionality of the administrative process and arbitration proceedings which followed the October 31, 1995, suspension without pay. proceed with a moot case simply because one or more of his

colleagues may face similar circumstances in the future. To the

extent the plaintiff wishes to litigate on behalf of similarly

situated officers, he still would need to individually satisfy

the standing reguirements as well as the criteria set forth in

Rule 23. See, e.g., Weisburqh v. NH Savs. Bk. Corp., No. 90-227-

B, slip op. at 6-7 (D.N.H. Sept. 30, 1993). Finally, the

plaintiff cannot evade Article Ill's case and controversy

reguirement by casting his claim as if he were seeking a

declaratory judgment, i.e., " [p]laintiff reguests this Court that

the City of Manchester can not suspend a police officer without

pay prior to complying [sic] the Loudermill reguirements."

Complaint at 2 (emphasis in original). See generally Native

Village of Noatak v. Blatchford,

(9th Cir.

1994) (declaratory relief available only "when there is an actual

case or controversy; a declaratory judgment may not be used to

secure judicial determination of moot guestions" (citations

omitted)).4

4The court's jurisdictional inability to adjudicate this lawsuit does not, as the plaintiff suggests, forever immunize the defendants' allegedly unconstitutional practice of immediately suspending officers without pay. The court notes that on November 17, 1995, the plaintiff had been terminated from his job in an allegedly unconstitutional manner but had not yet gone before either the disciplinary board or the arbitrator. Thus, on the day he filed the lawsuit the plaintiff could have reguested immediate relief from what he alleges was an unconstitutional Conclusion

The plaintiff's case is moot and, as a result, the court

lacks jurisdiction over this action.

The defendants' motion to dismiss (document no. 12) is

granted. In light of this ruling, all other pending motions are

denied as moot. The clerk shall close the case.

SO ORDERED.

Joseph A. DiClerico, Jr, Chief Judge August 9, 1996

cc: Kenneth J. Gould, Esguire Donald E. Gardner, Esguire

deprivation of his employment. For example, the plaintiff could have sought a preliminary injunction barring suspension of his salary and benefits until the defendants provided whatever process was then due. Such an approach presumably would satisfy Article Ill's reguirement that litigants challenge an unlawful practice only at a time in which they can state a cognizable injury from that practice.

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