                                 UNITED STATES DISTRICT COURT
                                 FOR THE DISTRICT OF COLUMBIA




JAMES WINDSTEAD, et al.,

          Plaintiffs,

          v.                                                        Civ. A. No. 04-887 (JMF)
THE DISTRICT OF COLUMBIA, et al.,

          Defendants.




                                       MEMORANDUM OPINION

           This case is before me for all purposes including trial. Currently pending before me and

ready for resolution is Plaintiffs’ (George Morgan, Juanita Irving, James Windstead, Louis

Beale, Patricia Newby, Shelia Owens and Mary Waley) Motion for Motion for [sic]

Reconsideration of the March 12, 2008, Order [#66] (“Plains. Mot. for Recon.”). For the reasons

stated below, as to those plaintiffs who moved for reconsideration, their motion will be denied.

As to the remaining plaintiffs, they will be ordered to show cause why their cases should not be

similarly dismissed.

           Plaintiffs are eleven current or former District of Columbia employees and the estates of

two former District of Columbia employees who have made claims for disability compensation

pursuant to the District of Columbia Comprehensive Merit Personnel System Act (“CMPA”).1

Windstead v. District of Columbia, 538 F. Supp. 2d 104, 107 (D.D.C. 2008). Defendants are 1)

the District of Columbia, 2) Mayor Anthony Williams, 2 3) James Jacobs, Director of the Office


1
    On May 21, 2007, the estates of two individual plaintiffs were substituted as plaintiffs.
2
    Mayor Adrian Fenty was elected in November, 2006, and therefore replaces Mayor Williams as a named
of Risk Management. 3 Id. Both Williams and Jacobs are sued in their official capacities. Id.

        On March 12, 2008, the District Court granted in part and denied in part the District of

Columbia Defendants’ Renewed Motion to Dismiss or, in the Alternative, for Summary

Judgment [#48]. Specifically, the Court 1) granted defendants’ motion to dismiss as to plaintiffs’

§ 1983 claim that the CMPA was facially unconstitutional, 2) granted defendants’ motion to

dismiss plaintiffs’ § 1985 claim that defendants conspired to deprive plaintiffs of due process, 3)

granted defendants’ motion for summary judgment as to Morgan, Irving, Windstead, Beale,

Newby, Owens and Waley, and 4) denied defendants’ motion for summary judgment as to Tara

Rogers, Patricia Hayden, and Denise Downing. Windstead, 538 F. Supp. 2d at 107-09, 129-30.

On March 13, 2008, the seven plaintiffs against whom summary judgment had been granted

moved the Court for reconsideration.

        On July 21, 2008, the District Court ordered plaintiffs to show cause why their entire case

should not now be dismissed as moot as a result of the May 23, 2006 decision by the Court of

Appeals in Lightfoot v. District of Columbia, 448 F.3d 392 (D.C. Cir. 2006). The Court also

directed plaintiffs to address the issue of whether the Court of Appeals’ decision in Lightfoot

also now barred an action for deprivation damages.

                                              DISCUSSION

I.      The Protections of the 14th Amendment

        The Fourteenth Amendment provides that no person shall be deprived of life, liberty or

property without due process of law. Most fundamentally, the amendment must be read to

protect a person from being deprived of her property without being afforded the requisite

modicum of procedures that a court finds are required. As interpreted by the Supreme Court in

defendant. See http://dc.gov/mayor/bios/fenty.shtm (last visited March 4, 2008).
3
  The case against defendant Computer Literacy World/Creative Disability Management was terminated on October
29, 2005. See Stipulation of Dismissal Without Prejudice at [#20].


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the seminal case of Matthews v. Eldridge, 424 U.S. 319 (1976), determining whether due process

has been met requires consideration of the following three factors:

                 First, the private interest that will be affected by the official action;
                 second, the risk of an erroneous deprivation of such interest
                 through the procedures used, and the probable value, if any, of
                 additional or substitute procedural safeguards; and finally, the
                 Government's interest, including the function involved and the
                 fiscal and administrative burdens that the additional or substitute
                 procedural requirement would entail.

Id. at 335.

        In the context of the delegation to an administrative agency of the power to grant or

withhold benefits, any deprivation of those benefits usually constitutes the deprivation of a

protected property interest. See Goldberg v. Kelly, 397 U.S. 254 (1970) (protected property

interest in the continued receipt of welfare benefits). Thus, at a minimum, the deprivation itself

requires prior notice and the opportunity to be heard. See Matthews, 424 U.S. at 249 (“The

essence of due process is the requirement that ‘a person in jeopardy of serious loss (be given)

notice of the case against him and opportunity to meet it.’”) (internal quotations omitted).

        In the case at bar, there is no dispute that the continuation of the benefits plaintiffs seek is

a property interest protected from deprivation by due process of law. Nor is there any challenge

by plaintiffs to the sufficiency of the procedures provided for by the District of Columbia statute

prior to the deprivation of the benefits at issue. The sole question therefore is whether the delay

plaintiffs encountered while attempting to avail themselves of those procedures is in itself a

violation of due process. 4 In light of the alternative state remedies that were available to


4
 Although plaintiffs make no distinction between procedural and substantive due process, and the Court frames its
analysis in terms of the Constitution’s procedural due process guarantees, courts have been reluctant to entertain
substantive due process challenges to state administrative agency action:

                 We have cautioned that “even the outright violation of state law by local
                 officials ‘is a matter primarily of concern to the state and does not implicate the
                 Constitution’-absent ‘fundamental procedural irregularity, racial animus, or the


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plaintiffs, however, that question need not be answered.

II.     Alternative State Remedies

        Prior to filing suit in this Court, plaintiffs could have availed themselves of two

alternative remedies in the District of Columbia Court of Appeals. First, plaintiffs could have

sought review of the agency’s actions under the District of Columbia Administrative Procedure

Act (“DCAPA”). Under the DCAPA, “[a]ny person suffering a legal wrong, or adversely

affected or aggrieved, by an order or decision of the Mayor or an agency in a contested case, is

entitled to a judicial review thereof in accordance with this subchapter upon filing in the District

of Columbia Court of Appeals a written petition for review.” D.C. Code § 2-510(a). The

DCAPA specifically provides that the Court of Appeals may “compel agency action unlawfully

withheld or unreasonably delayed.” D.C. Code § 2-510(a)(2). As interpreted by the District

Court for the District of Columbia, “[t]he Administrative Procedure Act was an effort not only to

expand rights of review of administrative action in the District of Columbia, but also to

centralize such review in one place and to eliminate the disorderliness and lack of uniformity of

decision inherent in multiple tribunals.” Cheek v. Washington, 333 F. Supp. 481, 484 (D.D.C.



                 like.’” Roy, 712 F.2d at 1523 (quoting Creative Environments, Inc. v.
                 Estabrook, 680 F.2d 822, 833 (1st Cir.), cert. denied, 459 U.S. 989, 103 S.Ct.
                 345, 74 L.Ed.2d 385 (1982)). A complaint pleads a substantive due process
                 violation by a local administrative agency only if the facts alleged are “shocking
                 or violative of universal standards of decency.” Amsden, 904 F.2d at 757
                 (quoting Furtado v. Bishop, 604 F.2d 80, 95 (1st Cir.1979), cert. denied, 444
                 U.S. 1035, 100 S.Ct. 710, 62 L.Ed.2d 672 (1980)). The complaint alleges that
                 the Board delayed a hearing from March 30 until August 20, “pending a
                 resolution of the City's appeal from the ruling of the Rhode Island Ethics
                 Commission.” We find these alleged facts insufficiently egregious to state a
                 substantive due process violation under Amsden and Furtado. See Chiplin, 712
                 F.2d at 1526 (five-year, “bad faith” delay in town's processing of building
                 permit insufficient to state substantive due process claim); Creative
                 Environments, 680 F.2d at 831 (complaint alleging that development proposal
                 was rejected through arbitrary misapplication of state law by local officials, held
                 insufficient to state constitutional violation).

Rumford Pharmacy, Inc. v. City of East Providence, 970 F.2d 996, 1000 n.8 (1st Cir. 1992).


                                                         4
1971).

         In addition, the D.C. Code also specifically references the District of Columbia Court of

Appeals’ jurisdiction “to review orders and decisions of the Commissioner [Mayor] of the

District of Columbia, the District of Columbia Council, any agency of the District of Columbia .

. . in accordance with the District of Columbia Administrative Procedure Act . . . ” D.C. Code §

11-722. See Medina v. District of Columbia, 517 F. Supp. 2d 272, 283 (D.D.C. 2007) (noting

the availability of review of agency actions by the District of Columbia Court of Appeals under

the DCAPA). Accord Douglass v. District of Columbia, No. 86-CV-427, 1987 WL 15696, at *2

(D.D.C. 1987); District of Columbia v. Greater Wash. Cent. Labor Council, 442 A.2d 110, 117

(D.C. 1982); Capitol Hill Restoration Soc’y, Inc. v. Moore, 410 A.2d 184, 186 (D.C. 1979).

         In addition to seeking review under the DCAPA, plaintiffs could also have sought a writ

of mandamus from the District of Columbia Court of Appeals. See District of Columbia Court

of Appeals Rule 21; Harris v. D. C. Comm’n on Human Rights, 562 A.2d 625, 633 (D.C. 1989)

(noting that if plaintiff was unhappy with the pace at which the District agency was proceeding,

she could have filed a petition for a writ of mandamus). Such judicial relief would have

remedied whatever delay plaintiffs encountered in that the court could have required that agency

action be completed within a certain period of time.

         Surely the adequacy of the procedures specified in the law combined with the power to

seek judicial relief if those procedures were delayed provided these plaintiffs with all the process

they were due. Any other conclusion radically transforms the relationship between this federal

court and the District of Columbia administrative agencies for it would permit an action,

premised on the Constitution under § 1983, whenever a plaintiff encountered a delay that this

Court deemed “unreasonable” even though the plaintiff can neither show any prejudice from that




                                                  5
delay nor that she sought relief from the District of Columbia courts to prevent the delay from

becoming unreasonable in the first place. In other words, whether due process has been provided

in a particular case is often a function of whether the remedy provided by the state, whether

before or after there has been a deprivation of property, is adequate. Unless there is a showing of

the inadequacy of the entire state system, both administrative and judicial, to remedy the claimed

deprivation, plaintiffs do not have a due process claim cognizable under the due process clause.

As the Seventh Circuit stated in Veterans Legal Defense Fund v. Schwartz, 330 F.3d 937 (7th

Cir. 2003):

               While a plaintiff is not required to exhaust state remedies to bring a
               ' 1983 claim, this does not change the fact that no due process
               violation has occurred when adequate state remedies exist. The
               whole idea of a procedural due process claim is that the plaintiff is
               suing because the state failed to provide adequate remedies.
               Therefore, we do not require a plaintiff to pursue those remedies in
               order to challenge their adequacy, but likewise we do not allow a
               plaintiff to claim that she was denied due process just because she
               chose not to pursue remedies that were adequate. Given the
               availability of state remedies that have not been shown to be
               inadequate, plaintiffs have no procedural due process claim.

Id. at 941.

        Here, the two procedures available to plaintiffs militate against any finding that they have

been deprived of their property without due process of law. Indeed, the contrary conclusion

would require the federal courts to entertain every action where it was contended that state

administrative action was delayed, no matter how likely it was that the plaintiffs would

ultimately prevail. Reductio ad absurdum—the people on line at the D.C. Department of Motor

Vehicles have a cause of action as soon as some judge somewhere decides they have waited an

“unreasonable” amount of time. Therefore, plaintiffs’ failure to avail themselves of the available

state remedies and to then show that those remedies are inadequate is fatal to their claims.



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       One final point must be made about the dictum in Cleveland Board of Education v,

Loudermill, 470 U.S. 532, 547 (1985), upon which plaintiffs place so much reliance. In the

passage referenced by plaintiffs, the Supreme Court suggested that a delay in the adjudication of

the legitimacy of a deprivation which has already occurred might constitute the taking of a

property interest if it continues for too long a period of time. That suggestion is perfectly

consistent with the cases that hold, for example, that a delay in the commencement of forfeiture

proceedings for property that has already been seized might constitute a taking without due

process if the party whose property was seized had to wait interminably for the commencement

of those proceedings. In those cases, the justification for the seizure came after the forfeiture.

Here, the decisions at issue were the product of a process which provided plaintiffs with notice

and an opportunity to be heard prior to the deprivation of plaintiffs’ benefits, the property interest

at stake. Plaintiffs therefore received all the process that was due before they lost whatever

property interest they could claim in the continuation of their benefits. The delay plaintiffs

experienced in attempting to overturn that result does not somehow render unconstitutional the

process that lead to that result, particularly when at all times, plaintiffs had both judicial and

statutory remedies available to them.

                                          CONCLUSION

       As to those plaintiffs who seek reconsideration of this Court’s decision to grant

defendants’ motion for summary judgment, their failure to avail themselves of the available

remedies, coupled with the lack of any genuine issues of material fact confirm the

appropriateness of this Court’s original decision. As to those plaintiffs who remain in the case,

in light of the above analysis, and before this Court proceeds any further, they will be ordered to

show cause why their cases should not similarly be dismissed for failure to allege and establish




                                                   7
that the combined administrative and judicial remedies provided them by District of Columbia

law are inadequate.

       An Order accompanies this Memorandum Opinion.




                                                /S/
                                           JOHN M. FACCIOLA
Dated: January 26, 2009                    UNITED STATES MAGISTRATE JUDGE




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