Tate v. District of Columbia

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 14, 2010 Decided December 17, 2010

No. 09-7034

CHRISTINE A. TATE,
APPELLANT

v.

DISTRICT OF COLUMBIA,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 1:02-cv-02216)

Jeffrey M. Hahn, appointed by the court, argued the cause
as amicus curiae in support of the appellant. Matthew T.
Reinhard, appointed by the court, was on brief.
Christine A. Tate, pro se, filed a brief.
Sonia Ignatova, Special Assistant Attorney General, Office
of the Attorney General for the District of Columbia, argued the
cause for the appellee. Peter J. Nickles, Attorney General,
District of Columbia, Todd S. Kim, Solicitor General, and Donna
M. Murasky, Deputy Solicitor General, District of Columbia,
were on brief. Mary L. Wilson, Senior Assistant Attorney
General, District of Columbia, entered an appearance.
 2

Before: SENTELLE, Chief Judge, HENDERSON and ROGERS,
Circuit Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Christine A.
Tate appeals the district court’s summary judgment on each of
her four constitutional and five common-law tort claims arising
from the 2002 impoundment and sale of her automobile by the
District of Columbia (District or D.C.) resulting from her unpaid
traffic fines and related fees. Tate v. District of Columbia, 601
F. Supp. 2d 132 (D.D.C. 2009). For the reasons set out below,
we affirm the judgment on her constitutional claims and remand
her D.C. common law claims, which the district court
mistakenly dismissed as “conceded.”
I.
On March 12, 2002, the D.C. Department of Public Works
(DPW) “booted”1 Tate’s automobile pursuant to D.C. Code
§ 50-2201.03(k)(1), which then provided that “[a]ny unattended
motor vehicle found parked at any time upon any public
highway of the District of Columbia against which there are 2 or
more outstanding or otherwise unsettled traffic violation notices
or notices of infraction . . . may . . . be . . . immobilized in such
manner as to prevent its operation . . . by the use of a device or
other mechanism which will cause no damage to such vehicle
unless it is moved while such device or mechanism is in place,”
i.e., by a boot. See also D.C. Code § 50-2302.05(d)(1) (“A
person to whom a notice of infraction has been issued must
answer within 30 calendar days of date the notice was issued

1
The “Denver boot” is a large clamp which, when applied to a
wheel, renders a vehicle immobile. It is used by municipalities,
including the District, to make drivers “pay attention to parking
tickets.” Saukstelis v. City of Chicago, 932 F.2d 1171, 1172 (7th Cir.
1991).
 3

. . . .”).2 Tate does not dispute that as of the booting date she had
outstanding at least three unpaid tickets issued in January 2002,
one on January 10 and two on January 29. See Appellant’s Br.
5.3 At a March 15, 2002 hearing, a hearing examiner waived the
late penalty for the January 10, 2002 violation, finding
“credible” Tate’s explanation she was not aware of the ticket.
The hearing examiner nonetheless held Tate liable on the
underlying citation and upheld the booting because “[m]ore than
2 tickets relating to the boot remain[ed].” Claytor Decl. Ex. H
(Hr’g R. dated March 2002). DPW towed Tate’s vehicle to its
Addison Road Impound Lot in Maryland on March 26, 2002.
On April 9, 2002, DPW moved the vehicle to its Blue Plains
Storage Facility for abandoned and junk vehicles (Blue Plains)
in Southwest D.C. because the vehicle had remained unclaimed
for 15 days.
DPW mailed Tate a written notice on April 12, 2002
advising her that failure to claim her vehicle within 45 days
would constitute a “waiver of all right title, and interest” in the
vehicle and “consent to the sale of the vehicle at public auction.”
D.C. Opp’n to Pl’s Mot. for Prelim. Inj., Attach. E, Tate, C.A.

2
The statute has since been amended to require that two or more
tickets be “deemed . . . admitted or . . . sustained after a hearing” in
order to trigger the booting. D.C. Code § 50-2201.03(k)(1) (2010).
A ticket “shall be deemed admitted” “[i]f a person fails to answer
within 60 days.” D.C. Code § 50-2303.05(d)(2) (2010).
3
As of March 14, 2002 the D.C. Department of Motor Vehicles
(DMV) records showed Tate had two additional tickets issued in
December 2001. Decl. of DMV Chief Hearing Examiner Cassandra
Claytor (Claytor Decl.) ¶ 8, Tate v. District of Columbia, C.A. No. 02-
2216 (filed Apr. 17, 2008). Tate asserts one of these was “not fully
adjudicated” because she was appealing it at the time of the boot and
the other suffered from “issues with regard to the application and
timeliness of application of payment.” Appellant’s Br. 5.
 4

No. 02-2216 (filed Jan. 23, 2003). Because Tate’s address had
been misentered into the DPW computer records, however, the
notice was mailed to an incorrect address and was returned
undelivered. Id. Attach. I.
On April 19, 2002, Tate went to Blue Plains and retrieved
a suitcase from her vehicle. According to DPW, Tate “would
have been informed of th[e] date [of the auction] when she
visited the Lot,” Decl. of DPW Parking Services
Administration’s Abandoned Vehicle Operations Program
Manager Cynthia Jones ¶ 9, but Tate claimed she did not learn
of the impending auction until “[s]ometime in May 2002” when
she “visited DMV to inquire about the status of the application
of payments for the outstanding tickets and storage fees.” First
Amended Complaint ¶ 14, Tate, C.A. No. 02-2216 (filed July
13, 2004) (Complaint). She then requested an administrative
hearing to stop the sale of her vehicle.
At the hearing on May 29, 2002, the hearing examiner
dismissed a contested ticket Tate received on November 19,
2001 because it had been tardily entered into the DMV computer
system but, according to the hearing record, upheld “the boot,
tow and storage fees” because Tate still had “two delinquent
remaining” tickets. Claytor Decl. Ex. I, J (Hr’g R. dated May
29, 2002). According to Tate, however, “a stay of the auction
was granted” at the hearing, the hearing examiner waived “some
of the Blue Plains storage fees and other fees levied on [her]
car” and, “[f]ollowing the May 29, 2002 hearing, agents or
employees of the District notified [Tate] that she had until June
7, 2002 to reclaim her vehicle.” Complaint ¶¶ 14-15 (filed July
13, 2004); Pl’s Opp’n to Def.’s Mot. for Summ. J., at 10, Tate
v. District of Columbia, C.A. No. 02-2216 (filed June 30, 2008)
(Second Opposition); Pl’s Opp’n to Def.’s Mot. for Summ. J.,
Attach. 1, Ex. K (filed May 19, 2008) (First Opposition)
(9/23/2002 computer screen printout stating: “All Tow &
Storage Fees Release Per HR 778/5/29/02”). She further
 5

asserted that when she again visited Blue Plains on June 7, 2002,
she was informed her vehicle had been sold at public auction on
June 4, 2002. District records confirm Tate’s vehicle was sold
at auction on that date for $4,000.
On November 12, 2002, Tate filed this action in district
court. Her complaint alleges causes of action under 42 U.S.C.
§ 1983 for depriving her of rights guaranteed by the Fourth and
Fifth Amendments to the United States Constitution (Counts I-
IV) and under D.C. law for various common law torts (Counts
VI-X).4 On February 27, 2009, the district court granted D.C.’s
summary judgment motion on all 9 counts. Tate filed a timely
notice of appeal.
II.
We review a grant of summary judgment de novo. Porter
v. Shah, 606 F.3d 809, 813 (D.C. Cir. 2010). Summary
judgment is appropriate “ ‘if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there
is no genuine issue as to any material fact and that the movant
is entitled to judgment as a matter of law.’ ” Id. (quoting Fed.
R. Civ. P. 56(c)) (other internal quotation omitted). “In assessing
whether a genuine issue exists, we view the evidence in the light
most favorable to the nonmoving party.” Id. (internal quotations
omitted). Applying this standard to each of Tate’s claims, we
conclude the District was entitled to summary judgment on each
of the four section 1983 counts. The five pendent counts under
D.C. law should be remanded for further consideration.
A. Section 1983 Claims
Tate contends that the District’s actions in booting,
impounding and selling her vehicle deprived her of her rights
under the Fifth Amendment’s Due Process Clause, Takings

4
The complaint contains no Count V.
 6

Clause and Equal Protection guarantee and the Fourth
Amendment’s prohibition against unreasonable seizure. We
address each in turn.
We first consider Tate’s due process claim. See U.S. Const.
amend. V (“[N]or [shall any person ]be deprived of life, liberty,
or property, without due process of law . . . .”). Tate asserts the
District deprived her of property—her vehicle—without due
process of law because, viewing the facts in the light most
favorable to her, the District told her it would auction the vehicle
on June 7, 2002 but in fact did so on June 4, 2002 and, further,
the District auctioned the vehicle without the requisite 45-day
notice to her of the sale. See D.C. Code § 50-2623(a) (2001)
(“If an abandoned vehicle has not been reclaimed, the
Abandoned and Junk Vehicle Division shall sell the vehicle at
public auction.”); id. § 50-2602(6)(E) (2001) (“[T]he term
‘[a]bandoned vehicle’ means any motor vehicle . . . [t]hat has
remained unclaimed for 45 days after proper notice.”). That the
District may have misstated the auction date or violated its own
statutory notice requirement does not mean that it deprived Tate
of the process due under the Fifth Amendment. “[T]he fact of
a state law violation does not resolve whether a plaintiff has
been deprived of due process.” Barwood, Inc. v. District of
Columbia, 202 F.3d 290, 294 (D.C. Cir. 2000) (quoting Comm.
of U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929,
944 (D.C. Cir. 1988)). “The fundamental requirement of due
process is the opportunity to be heard ‘at a meaningful time and
in a meaningful manner.’ ” Mathews v. Eldridge, 424 U.S. 319,
333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552
(1965)). Tate had meaningful notice of her infractions and a
series of hearings to contest them, culminating in the hearing on
May 29, 2002, which she requested for the specific purpose of
challenging the sale of her vehicle at auction. If the District
subsequently sold it prematurely, that fact may well give rise to
a common law tort under D.C. law but it did not deprive her of
the only process due—namely, timely notice and a hearing.
 7

Tate does not challenge the adequacy of the administrative
hearings themselves. Moreover, she offers no competent
evidence that the hearing officer or any other District employee
told her the June 4, 2002 sale was stayed but relies solely on the
allegations of her complaint. See Fed. R. Civ. P. 56(e)(2) (2008)
(“When a motion for summary judgment is properly made and
supported, an opposing party may not rely merely on allegations
or denials in its own pleading; rather, its response must—by
affidavits or as otherwise provided in this rule—set out specific
facts showing a genuine issue for trial. If the opposing party
does not so respond, summary judgment should, if appropriate,
be entered against that party.”); Bush v. District of Columbia,
595 F.3d 384, 386 (D.C. Cir. 2010) (“In opposing the District’s
motion, plaintiffs relied upon several paragraphs in their second
amended complaint. This of course did not satisfy their burden.
Rule 56(e) of the Federal Rules of Civil Procedure barred them
from resting upon ‘mere allegations.’ ”) (quoting pre-2007
amendments version of rule).5
Nor did the impoundment and subsequent sale of Tate’s
booted vehicle constitute a taking for a public use for which she
was entitled to compensation under the Fifth Amendment’s
Takings Clause. See U.S. Const. amend. V (“[N]or shall private
property be taken for public use, without just compensation.”).
In Bennis v. Michigan, 516 U.S. 442, 453 (1996), the United
States Supreme Court rejected a similar Takings Clause
argument advanced by a spouse whose interest in a jointly
owned automobile was forfeited pursuant to a state indecency
statute after her husband engaged in sexual activity with a
prostitute inside the vehicle. After first determining the
forfeiture did not violate the wife’s Fourteenth Amendment due
process right, the Court explained:

5
The district court expressly advised Tate of her evidentiary
burden. See Order, Tate, C.A. No. 02-2216 (filed Apr. 25, 2008).
 8

[I]f the forfeiture proceeding here in question did not
violate the Fourteenth Amendment, the property in the
automobile was transferred by virtue of that proceeding
from petitioner to the State. The government may not
be required to compensate an owner for property which
it has already lawfully acquired under the exercise of
governmental authority other than the power of
eminent domain.
Bennis, 516 U.S. at 452. The Court concluded that cases
authorizing such forfeitures were “ ‘too firmly fixed in the
punitive and remedial jurisprudence of the country to be now
displaced.’ ” Bennis, 516 U.S. at 453 (quoting J.W. Goldsmith,
Jr.-Grant Co. v. United States, 254 U.S. 505, 511 (1921)). Here
too, if the District’s impoundment of Tate’s vehicle did not
deprive her of due process—and we have already concluded it
did not—then there was no unlawful taking and no
compensation is due for the lawful taking that did occur, which,
as in Bennis, was effected through “the exercise of governmental
authority other than the power of eminent domain.” The
District’s practice of auctioning a vehicle when tickets go
unpaid is the culmination of a sort of graduated forfeiture
process. Under the statutory process as in effect in 2001-02
when Tate received the tickets at issue, a car is first ticketed for
a parking or traffic infraction, then if the ticket goes unpaid for
30 days, the vehicle may be booted or towed to an impound lot,
and, if unclaimed after 45 days, it may be declared abandoned
and sold at auction. D.C. Code § 50-2201.03(k)(1) (2001); id.
§ 50-2302.05(d)(1) (2001); id. § 50-2623(a) (2001); id.
§ 50-2602(6)(E) (2001). This procedure—which both deters
drivers from committing traffic and parking infractions in the
first instance and induces delinquents to pay penalties once
incurred—is, like the Bennis forfeiture process, “firmly fixed in
the punitive and remedial jurisprudence of the country.” We
therefore conclude the practice does not constitute a taking
without compensation violative of the Fifth Amendment.
 9

Third, we consider and reject Tate’s Fifth Amendment
equal protection argument. See Bolling v. Sharpe, 347 U.S.
497, 499-500 (1954) (finding equal protection component to
Fifth Amendment’s Due Process Clause notwithstanding
absence of express equal protection guarantee). Tate contends
the District violated the Fifth Amendment’s Equal Protection
guarantee in two respects. She first claims she was singled out
for harsh treatment because of her complaints to and about the
D.C. Metropolitan Police Department. But she has not
identified any similarly situated person (with a comparable
ticket record) who was treated differently. See Village of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (recognizing
that “successful equal protection claims [may be] brought by a
‘class of one’ ” but only “where the plaintiff alleges that she has
been intentionally treated differently from others similarly
situated and that there is no rational basis for the difference in
treatment”).
Tate also claims she was treated differently from other
offenders who benefitted from a ticket amnesty program
enacted by the D.C. City Council in 2002 for tickets issued
before January 1, 1997. See Motor Vehicle Registration and
Operator’s Permit Issuance Enhancement Emergency
Amendment Act of 2002 (amending D.C. Code § 50-1501.02
to forgive pre-January 1, 1997 tickets and allow offenders to
obtain registration certificate or license tag notwithstanding
outstanding ticket fines). Because the date-based classification
in the statute “neither involv[es] fundamental rights nor
proceed[s] along suspect lines,” rational basis review applies.
Steffan v. Perry, 41 F.3d 677, 684 (D.C. Cir. 1994) (en banc)
(quoting Heller v. Doe, 509 U.S. 312, 319 (1993)). “The
government, ‘moreover, has no obligation to produce evidence
to sustain the rationality of a [regulatory] classification’ ”;
instead, the classification “ ‘is accorded a strong presumption of
validity,’ ” and “ ‘[t]he burden is on the one attacking the
[governmental] arrangement to negative every conceivable basis
 10

which might support it,’ whether or not the basis has a
foundation in the record.’ ” Id. (quoting Heller, 509 U.S. at 319-
21) (internal citations omitted). Tate has not carried her heavy
burden. We upheld a similar date-based classification in Luck
v. D.C. Parole Bd., 996 F.2d 372, 374 (D.C. Cir. 1993). There,
we found no equal protection violation in D.C. legislation that
allowed time on parole to be credited as time served but only for
parole time occurring after the legislation’s effective date.
Observing that “[i]n its efforts to reduce prison overcrowding,
the District of Columbia could properly draw a line at some
point in the process,” we concluded that “the fact the line might
have been drawn differently at some points is a matter for
legislative, rather than judicial, consideration.” Id. 375; see also
U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179 (1980) (“The task
of classifying persons for . . . benefits . . . inevitably requires
that some persons who have an almost equally strong claim to
favored treatment be placed on different sides of the line, and
the fact the line might have been drawn differently at some
points is a matter for legislative, rather than judicial,
consideration.”) (internal quotation omitted). So too, in
reducing the ticket backlog and the number of unregistered or
unlicensed vehicles on its streets, the District was entitled to
draw the eligibility line somewhere or incur a substantial loss of
revenue. Tate has not offered any reason to believe that the line
drawn (at five years) was “irrational.” See Luck, 996 F.2d at
374.
Finally, Tate argues the booting, towing and sale of her
vehicle constituted an unreasonable seizure in violation of the
Fourth Amendment. See U.S. Const. amend. IV (“The right of
the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be
 11

violated . . . .”). We reject her Fourth Amendment challenge for
the following reasons.6
First, Tate asserts there are genuine issues of disputed fact
precluding the district court’s determination that the warrantless
seizure of Tate’s vehicle was reasonable.7 We disagree. As we
have explained, the District’s statutory impoundment provisions
constitute the equivalent of a graduated forfeiture procedure.
See supra p. 8. Like other forefeiture statutes, the District’s
booting and towing provisions can be effected by the
warrantless seizure of a vehicle subject to impoundment
thereunder.
In Florida v. White, 526 U.S. 559 (1999), the Supreme Court
upheld the warrantless seizure of an automobile because the
police had probable cause to believe the vehicle was contraband
subject to forfeiture under the Florida Contraband Forfeiture

6
For our analysis, we assume, without deciding, that booting
constitutes a Fourth Amendment seizure. But see Grant v. City of
Chicago, 594 F. Supp.1441, 1451 (E.D. Ill. 1984) (concluding
otherwise).
7
Tate objects in particular to the district court’s reliance on the
“community caretaking doctrine,” see 601 F. Supp. 2d at 136 (citing
South Dakota v. Opperman, 428 U.S. 364, 369 (1976), because when
it was booted and towed, her vehicle “was LEGALLY parked and
NOT impeding traffic or a threat to public safety or convenience.”
Appellant’s Br. 25 (quoting South Dakota v. Opperman, 428 U.S. 364,
369 (1976)) (upper case by Appellant). Tate is correct that booting is
not about caretaking: it “does not promote the flow of traffic.”
Saukstelis v. City of Chicago, 932 F.2d 1171, 1173 (7th Cir. 1991).
Rather, as noted earlier, booting and subsequent impoundment, like
other ticketing measures, have a deterrent and remedial purpose—they
deter and punish delinquent payment of fines. See supra p. 8; Bennis,
516 U.S. at 451-52.
 12

Act.8 The Court based its holding on two principles: (1) the
historically rooted “[r]ecognition of the need to seize readily
movable contraband”—a need that is “equally weighty when the
automobile, as opposed to its contents, is the contraband that the
police seek to secure”—and (2) the “greater latitude” that
“Fourth Amendment jurisprudence has consistently accorded law
enforcement officials . . . in exercising their duties in public
places.” 526 U.S. at 565. Other circuits have applied these
principles to uphold the warrantless seizures of contraband
vehicles. See United States v. Gaskins, 364 F.3d. 438, 458-59
(2d Cir. 2004) (upholding warrantless search of vehicle
forfeitable under 21 U.S.C. § 881 because used to carry
contraband); United States v. Smith, 510 F.3d 641, 650-51 (6th
Cir. 2007) (same); United States v. Alvarez-Tejeda, 491 F.3d
1013, 1016-18 (9th Cir. 2007) (same). We do so here as well. On
March 12, 2002, when it booted Tate’s vehicle, DPW had
probable cause to believe that Tate’s vehicle was subject to
booting and/or towing under D.C. Code §§ 50-2201.03(k)(1) and
50-2302.05(d)(1) (2001) because there were then at least two
tickets (issued January 29, 2002) that had been outstanding for
more than 30 days and remained unpaid or otherwise resolved.
Although these cases involved a criminal prosecution following

8
When White was decided, the Florida Act’s forfeiture provision
stated: “Any contraband article, vessel, motor vehicle, aircraft, other
personal property, or real property used in violation of any provision
of the Florida Contraband Forfeiture Act, or in, upon, or by means of
which any violation of the Florida Contraband Forfeiture Act has
taken or is taking place, may be seized and shall be forfeited.” Fla.
Stat. § 932.703(1)(a) (1997). The Act defined “contraband” to include
any “vehicle of any kind, . . . which was used . . . as an instrumentality
in the commission of, or in aiding or abetting in the commission of,
any felony.” Id. § 932.701(2)(a)(5). Before White’s vehicle was
seized, police observed him using it to deliver cocaine on three
occasions, giving the police probable cause to believe it was
contraband under the Act. White, 526 U.S. at 561-62.
 13

the arrest of the owner or occupant of the vehicle, their reasoning
applies to the District’s progressive forefeiture regime. Although
a parking violation is a civil infraction, D.C. Code § 50-2301.01,
the auction sale for delayed payment is comparable to a
forfeiture that occurs as a result of a criminal and to a forfeiture
under the Internal Revenue Code. See C.I.R. v. Shapiro, 424
U.S. 614, 616-17 (1976); c.f. United States v. James Daniel
Good Real Property, 510 U.S. 43, 60-61 (1993 (citing cases).
Next, Tate makes both a “facial” and an “as applied”
argument that auctioning a vehicle is a disproportionate response
to two outstanding tickets. Appellant’s Br. 28-29. This
challenge does not make out a claim under the Fourth
Amendment which by its plain terms applies to “unreasonable
. . . seizures.” The sale itself was not a “seizure” of Tate’s
vehicle which was already in the District’s lawful possession and
control. See California v. Hodari D., 499 U.S. 621, 624 (1991)
(“From the time of the founding to the present, the word
‘seizure’ has meant a ‘taking possession.’ ” (citing 2 N. Webster,
An American Dictionary of the English Language 67 (1828); 2
J. Bouvier, A Law Dictionary 510 (6th ed. 1856); Webster's
Third New International Dictionary 2057 (1981)). The sale of
the vehicle is properly subject to constitutional challenge, if at
all, under the Fifth Amendment as an unlawful taking or a
violation of due process and we have already rejected Tate’s
challenges on these grounds.
B. Common Law Claims
Tate’s complaint also alleges causes of action under D.C.
law for conversion, promissory estoppel, negligent
misrepresentation, unjust enrichment and intentional and reckless
infliction of emotional distress. Tate contends the district court
erred when it dismissed these claims as “conceded” on the
ground Tate had “not addressed in her opposition brief the
defendant’s valid arguments against her common law claims.”
601 F. Supp. 2d at 138 (citing Local Civil Rule (LCvR) 7(b) (if
 14

party fails to file timely “memorandum of points and authorities
in opposition to [a] motion,” “Court may treat the motion as
conceded”). We agree.
Tate filed two pleadings opposing the District’s summary
judgment motion, the First Opposition on May 19, 2008 and the
Second Opposition on June 30, 2008. Our review of pleadings
drafted by a pro se plaintiff like Tate is “subject to ‘less stringent
standards than formal pleadings drafted by lawyers.’ ” Gray v.
Poole, 275 F.3d 1113, 1115 (D.C. Cir. 2002) (quoting Haines v.
Kerner, 404 U.S. 519, 520 (1972)). Under this standard, we find
Tate’s First Opposition did indeed “address” the District’s
arguments on the common law claims, albeit without specifically
mentioning the claims. In her First Opposition, Tate asserted
that, at the May 29, 2002 hearing, the Blue Plains towing and
storage fees were waived and she was led to believe “the sale of
her car had been stopped,” First Opposition at 5, 6, 8, and she
argued in particular that the District sold her vehicle “for
thousands of dollars and . . . kept all of the proceeds from the
sale,” id. at 8. These factual allegations, if proved, contradict the
District’s defense that the June 4, 2002 sale complied with
District law and that Tate had notice of the sale date, thereby
bolstering her common law claims for conversion, promissory
estoppel, misrepresentation, unjust enrichment and infliction of
emotional distress. Moreover, in her Second Opposition, Tate
made it clear she opposed the District’s arguments on the
common law, as well as the federal, claims. See Second
Opposition at 1 (“The District of Columbia . . . violated
Plaintiff’s rights under the Fourth and Fifth Amendments,
common law and District of Columbia Code.”). We therefore
conclude that the district court erroneously failed to consider the
merits of Tate’s arguments regarding her common law claims.
See Malik v. District of Columbia, 574 F.3d 781, 786 (D.C. Cir.
2009). Accordingly, we remand Tate’s five state law causes of
action to the district court. On remand, the court is free to
decline to exercise supplemental jurisdiction over the common
 15

law claims inasmuch as we have upheld its summary judgment
grant on all of the claims over which it had original jurisdiction.
28 U.S.C. § 1367(c)(3); see Shekoyan v. Sibley Int’l., 409 F.3d
414, 423 (D.C. Cir. 2005).
For the foregoing reasons, we affirm the district court’s
summary judgment grant to the District on Counts I-IV of the
First Amended Complaint and remand Counts VI-X for the
district court to determine in its discretion whether to decide
their merits or to dismiss them without prejudice pursuant to 28
U.S.C. § 1367(c)(3).
So ordered.