                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
______________________________
                               )
JEFFREY MATTHEWS et al.,       )
                               )
          Plaintiffs,          )
                               )
          v.                   )    Civil Action No. 07-0031 (RWR)
                               )
THE DISTRICT OF COLUMBIA       )
et al.,                        )
                               )
          Defendants.          )
______________________________)


                       MEMORANDUM OPINION

     Plaintiffs Jeffrey Matthews, Frankie West, and Earline

Hickman sued under 42 U.S.C. § 1983 for compensatory and punitive

damages and equitable relief, alleging that the District of

Columbia and its Mayor deprived them of a constitutionally-

protected property interest without due process by terminating

their workers’ compensation benefits without providing them with

a post-deprivation hearing to challenge the termination.   The

defendants move to dismiss or in the alternative for summary

judgment, and the plaintiffs cross-move for summary judgment.

Because the plaintiffs have now received their due process, have

failed to plead or present any evidence that the delay they

experienced in receiving their benefits caused them actual

damages, and do not seek nominal damages in their complaint, the
                                -2-

claim for equitable relief will be dismissed as moot, and

judgment will be entered for the defendants on the claim for

damages.

                            BACKGROUND

     The plaintiffs allege that in 1998, they suffered work-

related injuries while they were employees of the District.

(Compl. ¶¶ 5-7.)   In 2004, Matthews’ workers’ compensation

benefits were suspended by the District’s Office of Risk

Management’s Disability Compensation Program (“DCP”).    On several

occasions, Matthews submitted written requests to the DCP for a

formal denial order.   Such an order was purportedly required

before Matthews could obtain an evidentiary hearing to challenge

the benefits suspension.   (Id. ¶¶ 12, 15.)   Similarly, in

June 2004, the DCP refused to pay a workers compensation invoice

submitted by Hickman’s treating physician because Hickman’s

“claim was closed.”1   (Id. ¶¶ 27-28.)   In October 2006, Hickman

filed an application for a formal hearing with the Office of

Hearings and Adjudications’ Administrative Hearings Division

(“AHD”), but the AHD informed Hickman that she had no right to a

hearing until she received a formal denial of award of

compensation benefits or a formal notice of loss of wage earning

capacity from the DCP.   In November 2006, Hickman made a written


     1
       DCP later informed Hickman that her causally-related
medical benefits were terminated effective December 12, 1999.
(See Pls.’ Opp’n Ex. 3 at 2.)
                                  -3-

request to DCP to issue a formal denial order.       (Id. ¶¶ 29-31.)

Further, in October 2006, the DCP informed West’s treating

physician that the DCP would no longer accept responsibility for

West’s medical treatment.2   (Id. ¶ 19.)     West attempted to file

an application for a formal hearing with the AHD, but the AHD

informed West that he had no right to a hearing until he received

a formal denial of award of compensation benefits or a formal

notice of loss of wage earning capacity from the DCP.       (Id.

¶ 22.)   In November 2006, West made a written request to the DCP

to issue a formal denial order.    (Id. ¶ 23.)     At the time the

complaint in this case was filed, the DCP had not yet issued any

of the plaintiffs a denial order.       (Id. ¶¶ 16, 24, 32.)

     On January 5, 2007, the three plaintiffs filed this action.

The complaint alleges one count against the defendants for

denying the plaintiffs’ constitutional rights under the color of

law in violation of 42 U.S.C. § 1983, by depriving them of their

property -- their workers’ compensation benefits -- without

notice or the opportunity to defend their interests.       (Compl.

¶¶ 35-38.)   The complaint sought “appropriate affirmative relief

. . . including but not limited to [ordering defendants to]

grant[] each [plaintiff] a hearing . . . [and] compensatory and

pecuniary damages.”   (Compl. ¶ 38.)      Shortly after filing the


     2
       DCP later informed West that his causally-related medical
benefits were terminated effective July 16, 2006. (See Pls.’
Opp’n Ex. 2 at 2.)
                                -4-

complaint, the plaintiffs received formal letters of denial from

the District.   West received his denial letter on February 16,

2007, and Matthews and Hickman received their letters on March 7,

2007.   (Pls.’ Opp’n to Defs.’ Mot. to Dismiss or for Summ. J. and

Cross Mot. for Summ. J. (“Pls.’ Cross Mot.”) at 3 n.3.)

     In June 2008, the AHD held evidentiary hearings for Matthews

and Hickman, after which it issued a final order regarding both

of those plaintiffs’ claims.   (Defs.’ Stmt. of Mat. Facts Not in

Dispute at ¶¶ 2, 6.)   In August 2008, West requested and received

an order from the Department of Employment Services’ Office of

Hearings and Adjudication dismissing her application for an

evidentiary hearing.   (Id. at ¶ 4.)

     The defendants have moved post-discovery to dismiss the

plaintiffs’ complaint, or in the alternative to enter summary

judgment for the defendants, arguing that the court lacks federal

question jurisdiction under 28 U.S.C. § 1331, the plaintiffs’

complaint fails to state a federal claim, the case is moot

because the plaintiffs have now received their procedural due

process, and the plaintiffs are not entitled to damages for the

purported deprivation of their property rights.   The plaintiffs

opposed the defendants’ motion and cross-moved for summary

judgment, arguing that there is no genuine dispute of material

fact and that they have established a compensable due process

violation.
                                -5-

                            DISCUSSION

I.   FEDERAL QUESTION JURISDICTION

     The defendants argue that the plaintiffs’ complaint should

be dismissed for lack of jurisdiction because the complaint fails

to allege a federal question.   According to the defendants, the

plaintiffs fail to identify any substantive federal or

constitutional right that supports their claims, and that the

remedy for claims arising out of the District’s conduct as an

employer lies exclusively the Comprehensive Merit Personnel Act

(“CMPA”), D.C. Code §§ 1-601.01-1-607.08.   (Defs.’ Mem. in Supp.

of Mot. to Dismiss or for Summ. J. (“Defs.’ Mem.”) at 6-9.)    The

plaintiffs counter that what they challenge here is the District

blocking their opportunity to be heard regarding their benefit

terminations by withholding formal denial letters.   They add that

the CMPA and the District of Columbia Administrative Procedure

Act, D.C. Code § 2-510(a)(2), provide inadequate remedies since

those provisions, unlike § 1983, would not enable them to recover

damages caused by their inability to have a prompt post-

deprivation hearing regarding the termination of their disability

benefits.   (Pls. Cross Mot. at 9-11.)

     Here, the complaint alleges a cause of action arising under

a federal statute, 42 U.S.C. § 1983, namely, that the defendants

violated the plaintiffs right under the Fifth Amendment not to be

deprived of property under color of District of Columbia law
                                -6-

without due process.   A district court has federal jurisdiction

over all “civil actions arising under the Constitution, laws, or

treaties of the United States[.]”     28 U.S.C. § 1331.   A

plaintiff’s claim under 42 U.S.C. § 1983 that a defendant

violated his constitutional rights is a claim arising under the

laws of the United States.   See Johnson v. Dist. of Columbia, 528

F.3d 969, 972 (D.C. Cir. 2008) (stating that “[t]he district

court had federal-question jurisdiction over [the plaintiff’s]

§ 1983 claim [under] 28 U.S.C. § 1331”).     In addition,

“[a]lthough ‘[t]he District of Columbia Court of Appeals has

consistently held that the CMPA provides the exclusive avenue for

aggrieved District employees to pursue work-related complaints,’

McManus [v. Dist. of Columbia], 530 F. Supp. 2d [46], 77 [(D.D.C.

2007)], that particular statutory remedy does not foreclose this

Court from entertaining the constitutional question over which it

has original jurisdiction under 28 U.S.C. § 1331.”     Deschamps v.

Dist. of Columbia, 582 F. Supp. 2d 14, 16 (D.D.C. 2008) (citing

Lightfoot v. Dist. of Columbia, 448 F.3d 392, 399 (D.C. Cir.

2006); see also McManus, 530 F. Supp. 2d at 72; Lightfoot v.

Dist. of Columbia, 339 F. Supp. 2d 78, 88 n.7 (D.D.C. 2004)

(recognizing “a property interest in [D.C. employees’s]

disability benefits” to which process is due).     “‘[M]inimum

[procedural] requirements [being] a matter of federal law, they

are not diminished by the fact that the State may have specified
                                 -7-

its own procedures that it may deem adequate for determining the

preconditions to adverse official action.’”    Cleveland Bd. of

Education v. Loudermill, 470 U.S. 532, 541 (1985) (quoting Vitek

v. Jones, 445 U.S. 480, 491 (1980)); see also Winstead v. Dist.

of Columbia, 620 F. Supp. 2d 119, 121-122 (D.D.C. 2009)

(rejecting the defendants’ proposition that the availability of

judicial relief with respect to delay in a state's administrative

process prevents a court from hearing a § 1983 action premised on

that delay).    Federal question jurisdiction exists over the

plaintiffs’ cause of action.

II.   ADEQUACY OF CLAIM PLED

      A party may move under Federal Rule of Civil Procedure

12(b)(6) to dismiss a complaint for failure to state a claim upon

which relief can be granted.    See Fed. R. Civ. P. 12(b)(6).   “To

survive a motion to dismiss, a complaint must contain sufficient

factual matter, acceptable as true, to ‘state a claim to relief

that is plausible on its face.’ . . .    [A plaintiff must plead]

factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct

alleged.”    Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)

(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556

(2007)).    “[A] court ‘must treat the complaint’s factual

allegations as true . . . and must grant plaintiff the benefit of

all inferences that can be derived from the facts alleged.’”
                                -8-

Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165

(D.C. Cir. 2003) (quoting Sparrow v. United Air Lines, Inc., 216

F.3d 1111, 1113 (D.C. Cir. 2000)).

     “Section 1 of the Civil Rights Act of 1871, now codified at

42 U.S.C. § 1983, provides a cause of action for monetary damages

and injunctive relief against ‘every person who, under color of

[law] . . . subjects or causes to be subjected, any person . . .

to the deprivation of any rights, privileges, or immunities

secured by the Constitution[.]’”   Daskalea v. Dist. of Columbia,

227 F.3d 433, 440 (D.C. Cir. 2000) (quoting 42 U.S.C. § 1983).

The Fifth Amendment of the Constitution prohibits the deprivation

of property without the due process of law.   U.S. Const. amend.

V.   In order to have a property interest in disability

compensation, the plaintiffs must have a “legitimate claim of

entitlement to it.”   Board of Regents of State Colleges v. Roth,

408 U.S. 564, 577 (1972).   The District’s CMPA creates such an

interest.   See Fonville v. Dist. of Columbia, 448 F. Supp. 2d 21,

26 (D.D.C. 2006); McManus, 530 F. Supp. 2d at 72-73.   “Procedural

due process imposes constraints on governmental decisions which

deprive individuals of ‘liberty’ or ‘property’ interests within

the meaning of the Due Process Clause of the Fifth or Fourteenth

Amendment.”   McManus, 530 F. Supp. 2d at 72 (quoting Mathews v.

Eldridge, 424 U.S. 319, 323 (1976)).   “Procedural due process

requires sufficient notice and ‘opportunity to be heard at a
                               -9-

meaningful time and in a meaningful manner.’”   Elkins v. Dist. of

Columbia, 527 F. Supp. 2d 36, 48 (D.D.C. 2007) (quoting UDC

Chairs Chapter, Am. Ass’n of Univ. Professors v. Bd. of Trustees

of the Univ. of the Dist. of Columbia, 56 F.3d 1469, 1472 (D.C.

Cir. 1995)).

     A plaintiff suing the District of Columbia under § 1983

“must allege not only a violation of his rights under the

Constitution or federal law, but also that the municipality’s

custom or policy caused the violation.”   Warren v. Dist. of

Columbia, 353 F.3d 36, 38 (D.C. Cir. 2004).   A municipality can

be held liable under section 1983 when the municipality’s “policy

or custom . . . inflicts the injury.”   Monell v. Department of

Social Services, 436 U.S. 658, 694 (1978).    “[A] city’s inaction,

including its failure to train or supervise its employees

adequately, constitutes a ‘policy or custom’ under Monell when it

can be said that the failure amounts to ‘deliberate indifference’

towards the constitutional rights of persons in its domain.”

Daskalea, 227 F.3d at 441 (quoting City of Canton v. Harris, 489

U.S. 378, 388-89 n.7 (1989); see also Triplett v. Dist. of

Columbia, 108 F.3d 1450, 1453 (D.C. Cir. 1997) (stating that

“inaction giving rise to or endorsing a custom” can be basis of

§ 1983 liability).
                               -10-

     Here, the plaintiffs allege that the defendants “have acted

under the color of state law and have maintained through habit,

custom, prior practices, rules and/or regulations, a policy and

practice of denying Plaintiffs due process of the law by

deprivation of [disability] benefits without notice or

opportunity to defend interest,” and that the defendants “have

intentionally, knowingly, willfully and with complete disregard

for Plaintiffs’ constitutional rights deprived them of property

without notice or opportunity to defend their interest.”    (Compl.

¶¶ 35-36.)   The complaint contains factual support for these

allegations by describing the history of the plaintiffs’ work

related injuries and the process by which these plaintiffs were

deprived of their disability benefits without receiving post-

deprivation hearings.   (Id. ¶¶ 10-34.)   Thus, the plaintiffs have

alleged that a custom or policy maintained by the district of

Columbia has subjected them to violations of their Fifth

Amendment rights to procedural due process, and they have

provided sufficient factual matter, acceptable as true, to state

a claim to relief that is plausible on its face.   The complaint

sufficiently states a claim to survive the defendants’ motion to

dismiss.

III. MOOTNESS AND DAMAGES

     The defendants argue that the complaint should be dismissed

as moot since the plaintiffs received formal denial letters and
                               -11-

evidentiary hearings to challenge the decision to terminate their

disability benefits –- “the relief they sought when they brought

this action” -- and thus are not “threatened with any actual

injury traceable to [d]efendants[.]”   (Defs.’ Mem. at 13-14.)

The defendants also argue that even if an action for damages

could be brought by these plaintiffs, they would be entitled to

only nominal damages because they have not demonstrated that the

alleged denial of their due process caused them actual damages.

(Id. at 16.)   The plaintiffs counter that despite the fact that

they received and prevailed in the hearings for which they

originally sued, the plaintiffs have not been made whole because

the delay in receiving benefits caused the defendants “actual

harm in the form of extended deprivation periods” for which they

were not compensated.   (Pls.’ Cross Mot. at 11.)

     “Federal courts lack jurisdiction to decide moot cases

because their constitutional authority extends only to actual

cases or controversies.”   Larsen v. United States Navy, 525 F.3d

1, 4 (D.C. Cir. 2008) (internal quotations omitted); see also

City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983) (“[T]hose

who seek to invoke the jurisdiction of the federal courts must

satisfy the threshold requirement imposed by Article III of the

Constitution by alleging an actual case or controversy.”).    “A

case is moot when ‘the challenged conduct ceases such that there

is no reasonable expectation that the wrong will be repeated' in
                               -12-

circumstances where ‘it becomes impossible for the court to grant

any effectual relief whatever to the prevailing party.’”    Del

Monte Fresh Produce Co. v. United States, 570 F.3d 316, 321 (D.C.

Cir. 2009) (quoting United States v. Philip Morris USA, Inc., 566

F.3d 1095, 1135 (D.C. Cir. 2009)).    To satisfy the Article III

case or controversy requirement, a “plaintiff must have suffered

an injury in fact –– an invasion of a legally protected interest

which is (a) concrete and particularized . . . and (b) actual or

imminent, not conjectural or hypothetical, . . . [that can be]

fairly trace[d] to the challenged action of the defendant, and

. . . [is] likely . . . [to] be redressed by a favorable

decision.”   Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61

(1992) (internal quotation marks and citations omitted).

     The plaintiffs concede that they have now been given the

process they were due and have had their benefits restored (Pls.’

Cross Mot. at 11), and they fail to make any argument that there

is a reasonable expectation that the wrong they complain of is

likely to occur again.   Instead, they rely on the argument that

their action for actual damages remains live.    The complaint

requests “compensatory and pecuniary damages” for the defendants’

purported deprivations of plaintiffs’ rights.    (Compl. ¶ 38.)

“The purpose of a damage award under § 1983 is ‘to compensate

persons for injuries that are caused by the deprivation of

constitutional rights.’"   Elkins v. Dist. of Columbia, 610 F.
                                -13-

Supp. 2d 52, 60 (D.D.C. 2009) (quoting Carey v. Piphus, 435 U.S.

247, 254 (1978)).   “‘[M]ental and emotional distress,’ are

‘compensable under § 1983,’ even in the absence of physical

injury.”   Daskalea, 227 F.3d at 443 (quoting Carey, 435 U.S. at

264).   While the defendants argue that the plaintiffs cannot

maintain a claim for damages based upon an allegedly unreasonable

delay between the termination of their disability benefits and

the eventual reinstatement of their benefits after their post-

deprivation hearings, an unreasonable delay in a state’s

administrative proceeding for a claim of benefits “may constitute

the deprivation of property without due process of law,” allowing

the party who was deprived to bring a claim for damages under

§ 1983.    See Winstead, 620 F. Supp. 2d at 121; see also Lowery v.

Dist. of Columbia Housing Authority, Civil Action No. 04-1868

(RMC), 2006 WL 666840, at *9-11 (denying motion to dismiss

plaintiff’s suit for damages under § 1983 for damages caused by

the wrongful termination of her housing voucher and the Housing

Authority’s failure to provide her with a “reasonably

expeditious” hearing after her housing voucher was terminated).

Therefore, the plaintiffs stated a viable claim for damages

caused by the delay in receiving their due process following the

termination of their disability benefits.

     However, as the defendants point out in their motion for

summary judgment, the plaintiffs have presented no evidence
                                -14-

establishing that they suffered actual damages as a result of the

purportedly unconstitutional delay in providing their post-

deprivation due process.    The plaintiffs have made several

assertions in their filings that they did suffer actual injury,

but have come forth with no declarations, affidavits, deposition

testimony, or other admissible evidence of such injury despite

the discovery that has been conducted.    Discovery has closed, the

factual record is complete, and the plaintiffs even agree that

the material factual issues are not disputed.    (See Pls.’ Reply

at 5.)    Indeed, in moving for summary judgment, the plaintiffs

implicitly concede that there are no disputed facts that need to

be resolved by a trial.    See Anderson v. Liberty Lobby, 477 U.S.

242, 249-250 (1986) (stating that the inquiry performed at the

summary judgment stage “is the threshold inquiry of determining

whether there is the need for a trial –- whether, in other words,

there are any genuine factual issues that properly can be

resolved only by a finder of fact”).    “The plain language of

[Federal] Rule [of Civil Procedure] 56(c) mandates the entry of

summary judgment, after adequate time for discovery and upon

motion, against a party who fails to make a showing sufficient to

establish the existence of an element essential to that party’s

case, and on which the party will bear the burden of proof at

trial.”    Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

With nothing more in the record beyond mere allegations of injury
                              -15-

in the plaintiffs’ briefs, the plaintiffs have failed to

demonstrate that the purported violation of their procedural due

process rights resulted in actual damages.   Although an alleged

“denial of procedural due process should be actionable for

nominal damages,” Carey, 435 U.S. at 266, the plaintiffs do not

even request nominal damages in their complaint.   See Davis v.

Dist. of Columbia, 158 F.3d 1342, 1349 (D.C. Cir. 1998)

(affirming district court’s sua sponte dismissal of the

plaintiff’s complaint for damages despite the possibility that

nominal damages could be awarded, because the complaint requested

only statutorily unavailable compensatory and punitive damages,

and lacked any specific request for nominal damages).

Accordingly, defendants are entitled to summary judgment on the

claim for damages, and the claim for equitable relief will be

dismissed as moot.

                           CONCLUSION

     Because the defendants have demonstrated that the

plaintiffs’ equitable claim is moot and the defendants are

entitled to judgment on the damages claim, the defendants’ motion

to dismiss or for summary judgment will be granted, and the

plaintiffs’ cross-motion for summary judgment will be denied.     An

appropriate order accompanies this Memorandum Opinion.
                         -16-

SIGNED this 30th day of December, 2009.


                                  /s/
                         RICHARD W. ROBERTS
                         United States District Judge
