202 F.3d 290 (D.C. Cir. 2000)
Barwood, Inc., et al.,Appelleesv.District of Columbia, et al.,Appellants
No. 99-7027
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 5, 1999Decided February 4, 2000

[Copyrighted Material Omitted]
Appeal from the United States District Court for the District of Columbia(No. 98cv01901)
Donna M. Murasky, Assistant Corporation Counsel, Office  of the Corporation Counsel, argued the cause for appellants. With her on the briefs were Robert R. Rigsby, Interim  Corporation Counsel, and Charles L. Reischel, Deputy Corporation Counsel.
Stephen W. Grafman argued the cause for appellees. With  him on the brief was A. Thomas Morris.  John Marshall  entered an appearance.
Before:  Williams, Ginsburg and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Williams.
Williams, Circuit Judge:


1
On June 12, 1998 the District of  Columbia Taxicab Commission promulgated 31 D.C.M.R.  § 828, restricting the circumstances under which suburban  taxicabs may pick up passengers in the District and subjecting violators to criminal sanctions.  Plaintiffs, various suburban 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 § 828.  They argued that the Commission lacked  the authority to alter the existing reciprocity arrangements,  and that reciprocity infractions are subject only to civil sanctions.  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 § 828, from imposing any criminal sanctions  for reciprocity violations, or from otherwise altering the preexisting reciprocity arrangements.  Barwood, Inc. v. District  of Columbia, No. 98-1901 (D.D.C. Feb. 16, 1999).  The District appealed.


2
Plaintiffs pursued this injunction--and so far as appears  the entire lawsuit--almost exclusively on the basis of violations of District of Columbia law.  The original complaint  asserted diversity jurisdiction.  See 28 U.S.C. § 1332(a).  Later that same day, presumably upon realizing that the District of Columbia, like a state, is not a citizen of a state (or of  itself) for diversity purposes, see Long v. District of Columbia, 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.  § 1983."


3
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 jurisdiction.  Accordingly, we vacate the preliminary injunction and  remand for the district court to dismiss the complaint.


4
*  *  *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 executive branch acted ultra vires.  In the District of Columbia  Taxicab Commission Establishment Act of 1985 (the "Taxicab  Act" or the "Act"), D.C. Code § 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. § 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.  § 40-1707(b)(1)(L).  On August 13, 1987 the Commission's  chairman issued "Administrative Order No. 4," which purported to govern the provision of taxicab service in the  District by cabs licensed only in other jurisdictions.


5
On June 12, 1998 the District of Columbia Taxicab Commission promulgated a new provision to the District of Columbia  Municipal Regulations, 31 D.C.M.R. § 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 to 90 days.


6
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 complaint alleged that only the Mayor, not the Commission,  possessed the exclusive authority "to change, modify or alter  applicable reciprocity arrangements in the District of Columbia," Joint Appendix 186, and that the provision of civil  penalties by the Taxicab Act, D.C. Code § 40-1719(a), was  exclusive, negating the purported penalties under § 828.


7
In response to a TRO issued by the district court, the  chairman of the D.C.T.C. issued an order rescinding Administrative 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 § 828 and, under the Mayor's delegation,  approved an identical rule as an "emergency" § 828.


8
Plaintiffs filed a contempt motion, arguing that the Commission'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 § 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. § 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 otherwise  altering reciprocity."


9
*  *  *We may dispense rapidly with jurisdictional theories advanced 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 the Fourth Amendment.


10
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 enforcement's deterrent threat to plaintiffs' constitutional, in particular First Amendment, rights.  (In Dombrowski, moreover,  enforcement was alleged to be in bad faith, "only to discourage 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).


11
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. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 944 (D.C.  Cir. 1988);  see also Archie v. City of Racine, 847 F.2d 1211, 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 appropriate 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.


12
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 acourt without jurisdiction over an  underlying case cannot issue a TRO, or enforce it by civil  contempt.


13
The possibility that the U.S. Attorney may pursue a criminal 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.


14
In a supplemental brief filed after oral argument, the  plaintiffs have sought to turn their allegations against Commissioner 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 under 28 U.S.C. § 1367.  This will not work.


15
Plaintiffs say that Silverman's conduct independently created a federal cause of action.  The Second Amended Complaint 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.  Second 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 violation of the Fourth, Fifth, and Fourteenth Amendments ...  and 42 U.S.C. § 1983."  Id. ¶ 47.


16
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.


17
In so far 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 Silverman or any other District officer or employee will again use  this innovative law enforcement technique against any of the 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" pursuant to the city's policy with respect to the use of choke holds  did not have standing to bring a claim for injunctive relief  against the city).


18
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  § 1983.  Monell v. New York City Dept. of Social Servs., 436  U.S. 658, 694 (1978).  While of course an omission in substantive 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 ¶ ¶ 31-35, andfor their jurisdictionally defective request for  injunctive relief (id. ¶ 47).  Under the most reasonable reading, 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.


19
Of course the alleged ramming may in fact afford the  specific cab company and driver a good § 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" provision of 28 U.S.C. § 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 "substantially predominate[ ] over the claim or claims over which the district court has original jurisdiction," 28 U.S.C.  § 1367(c)(2).


20
The preliminary injunction is vacated and the case remanded for the district court to dismiss the complaint.


21
So ordered.



Notes:


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


