Lightfoot v. District of Columbia

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 10, 2006 Decided May 23, 2006

No. 05-7028

ELIZABETH LIGHTFOOT, ET AL.,
APPELLEES

v.

DISTRICT OF COLUMBIA, ET AL.,
APPELLANTS

Appeal from the United States District Court
for the District of Columbia
(No. 01cv01484)

James C. McKay, Jr. argued the cause for appellants. With
him on the briefs were Robert J. Spagnoletti, Attorney General,
Office of the Attorney General of the District of Columbia, and
Edward E. Schwab, Deputy Attorney General.

Duncan N. Stevens argued the cause for appellees. With
him on the brief were Charles F.B. McAleer, Alan I. Horowitz,
Jeffrey S. Gutman and Lynn E. Cunningham. Robert J. Harlan,
Jr. entered an appearance.

Before: GARLAND, Circuit Judge, and SILBERMAN and
WILLIAMS, Senior Circuit Judges.
 2

Opinion for the Court filed PER CURIAM.

Concurring opinion filed by Senior Circuit Judge
SILBERMAN.

PER CURIAM: The District of Columbia (and various D.C.
government officials) appeals from a decision of the district
court granting partial summary judgment to appellees, a class of
former D.C. government employees whose disability
compensation benefits have been terminated, suspended, or
reduced. The court concluded that the benefit program’s lack of
written guidelines and published rules caused a violation of the
Due Process Clause and the D.C. Administrative Procedure Act
(DCAPA). The court reinstated benefits for class members and
remanded to a D.C. agency to undertake rulemaking.
Immediately after oral argument we granted a stay of the district
court’s reinstatement order. We reverse the judgment on both
claims, vacate the reinstatement order, and direct a limited
remand.

I

Plaintiffs challenge the procedural adequacy of the District
of Columbia’s employee disability compensation program
(governed by Title 23 of the District of Columbia Government
Comprehensive Merit Personnel Act (CMPA) of 1978)1 –
specifically, the circumstances under which class members lose
benefits. Under the CMPA, District employees who are injured
in the performance of their duties are entitled to monetary
compensation, medical services and appliances, and vocational
rehabilitation. The compensation levels depend on whether an

1
See D.C. Code § 1-601.01 et seq. (2001). As explained below,
the CMPA was amended subsequent to the district court’s grant of
summary judgment.
 3

employee’s disability is partial or total, and is further based on
a statutory schedule. After an employee is determined to be
disabled, “[i]f the Mayor or his or designee has reason to believe
a change of condition has occurred, the Mayor or his or her
designee may modify the award of compensation.” (Emphasis
added). For purposes relevant to this suit, a “change of
condition” obviously means a reduction or elimination of the
condition that caused the disability, which of course is the
governing statutory standard. A beneficiary displeased with the
District’s determination has thirty days to request a hearing
before a Department of Employment Services disability
compensation administrative law judge, and at the hearing, the
ALJ must “receive such relevant evidence as the claimant
adduces.” The agency then must notify the beneficiary of the
decision in writing within thirty days of the hearing. The
beneficiary may file an application for review within thirty days
of receipt of that decision with the director of the Department of
Employment Services, who must notify the applicant of his or
her decision in writing. The beneficiary, within thirty days of
that decision, may then file an application for review with the
D.C. Court of Appeals.

In their initial complaint, plaintiffs alleged that despite the
CMPA’s rather elaborate procedures, the program provided
insufficient pre-deprivation process to beneficiaries whose
benefits had been reduced or terminated under the statute. They
alleged that the CMPA failed to provide pre-deprivation notice
and an opportunity to respond, even in writing, to a benefits
termination decision and also that the District’s termination
procedures were inadequate in their explanations of termination
decisions and beneficiaries’ appellate rights. Plaintiffs moved
the following month for a preliminary injunction reinstating
their benefits and enjoining the termination of those benefits
without a more thorough pre-termination process.
 4

In an October 2001 opinion, the district court recognized
that under Mathews v. Eldridge, 424 U.S. 319 (1976), appellees
had a property interest in their continued receipt of disability
benefits. The court went on to observe that the program’s
formal pre-termination procedures were less elaborate than
those sanctioned in Mathews. The CMPA itself provided for no
pre-termination “hearing,” nor time frame within which a
requested post-termination hearing had to be scheduled. The
District asserted that, as a matter of policy (although unwritten),
beneficiaries were given thirty days of continued benefits after
receiving an initial termination notice. According to the
District, during that period they could seek reconsideration by
written submission and receive a decision within two or three
weeks. Although the initial notice did not – at least initially –
give an extensive explanation of the District’s “reason to believe
a change of condition has occurred,” it did typically provide the
physician’s prognosis on which the District had relied. And
according to the District, the notices advised beneficiaries of the
thirty-day reconsideration period as well.

The district court expressed concern that the District’s pre-
termination procedure was not set forth in any formal general
regulation or handbook, as opposed to in the individual notices.
The court found the “looseness of the reconsideration process
and the lack of any enforceable grace period” problematic.
(Emphasis added). The district court thought it particularly
troubling that even if beneficiaries received the thirty-day grace
period during which they could request reconsideration, there
was no guarantee that either a beneficiary’s reconsideration
request would be resolved during that period or that the grace
period could be extended to allow for bureaucratic delay in
responding to the reconsideration request. This, coupled with
the District’s alleged exclusive reliance on the findings of
independent medical examiners (doctors retained by the
District), rather than on those of treating physicians, led the
 5

district court to conclude that appellees were substantially likely
to prevail on the merits. Nevertheless, the court denied the
motion for a preliminary injunction after finding that the
equitable factors weighed against such relief.

Plaintiffs amended their complaint to add the administrator
of the disability compensation program (an independent
contractor) as a defendant2 and to add a claim alleging the
District’s violation of the D.C. Administrative Procedure Act
(claim seven). Then, more than a year later, in January 2003,
plaintiffs filed a third amended complaint modifying the
DCAPA claim and substituting a new claim six alleging that the
District’s failure to set forth its procedures in written rules
violated due process.

Appellees moved for partial summary judgment on claims
six and seven. Like claims one through five, claim six is
premised on 42 U.S.C. § 1983. Specifically, it asserts that
“[d]efendants have failed to adopt written and consistently
applied standards, policies and procedures governing the
termination, suspension and modification of benefits in violation
of the Due Process Clause.” The DCAPA claim (claim seven)
alleges that defendants violated that act by adopting policies,
practices, and procedures regarding the termination, suspension,
or modification of disability benefits without engaging in notice-
and-comment rulemaking.

This time, in September 2004, the district court granted
plaintiffs’ motion, see Lightfoot v. District of Columbia, 339 F.
Supp. 2d 78 (D.D.C. 2004); and the court denied the District’s

2
CLW/Creative Disability Management is an independent
contractor to whom the District contractually delegated authority to
decide disability compensation claims and make award modification
decisions.
 6

motion for reconsideration in January 2005, see Lightfoot v.
District of Columbia, 355 F. Supp. 2d 414 (D.D.C. 2005).
Observing that the issue presented by claim six was “purely
legal” – “whether Due Process demands that notice and the
potential for arbitrary decision-making requires that written
policies and procedures exist to limit discretion and guide the
termination, suspension or modification process” – the court
concluded that “this largely unwritten system full of guesswork
and innuendo fails to meet the strictures of Due Process.” The
court purported to decide only claim six – that the absence of
more specific guidelines governing termination procedures
violated due process, and not that the procedures actually
employed did so. As to claim seven, the district court concluded
that “[d]efendants’ reliance on unwritten ‘best practices’ and
unpublished procedures to guide the Disability Compensation
Program constitute[d] rule-making under the DCAPA” and was
not authorized as an exception to notice-and-comment
rulemaking for internal agency procedures.3

As noted, the district court remanded the case to the District
for rulemaking and ordered that disability compensation benefits
of all members of the plaintiff class be reinstated until
individualized termination or modification determinations could
be made under validly promulgated rules. The remand order
further directed the District to “strongly consider” promulgating
rules on eleven procedural issues that the court implicitly
considered inadequately resolved.4 The court referred the

3
The District contends that the third-party claims administrator
employs “best practices,” which it describes as the unwritten, industry-
standard methods of weighing evidence and reaching an eligibility
determination.
4
The Court’s suggested topics for rulemaking were as follows:
 7

question of possible retroactive relief related to claims six and
seven to a magistrate judge for further proceedings.

Denying the District’s motion for reconsideration, the court
strongly objected to the District’s characterization of the ordered
relief as an injunction and insisted that “[t]he [c]ourt did not

•What regular opportunities do beneficiaries have to provide
medical or vocational information to a claims adjuster prior to a
decision to terminate, suspend or modify disability benefits?
•What are the protocols that govern the independent medical
evaluation – when, why, and where one is performed – and the
content of the resulting report?
•What weight is assigned to the independent medical evaluation
v. the opinion [of] the treating physician, and does the treating
physician have an opportunity to comment on the independent
medical evaluation before a decision is made?
•Does the beneficiary have the right to access his/her file before
the termination decision? What deadlines must the third party
administrator follow once file access is requested?
•May a terminated beneficiary retain counsel, and does their
attorney have the same right to review the beneficiary’s file in
order to prepare necessary argument?
•What standards are employed in making the termination
decision, and what weight is afforded each piece of information
before the adjuster?
•What standard of review is employed on reconsideration and
appeal?
•What is the specific timeline for reconsideration and appeal?
•Are there extensions of time for good cause if a personal or
other emergency prevents a beneficiary from responding to a
termination notice in the outlined time period?
•What kinds of information may beneficiaries submit in response
to a notice that their benefits will be terminated?
•Under what circumstances are benefits paid pending
reconsideration subject to recoupment, and what are the
procedures by which a beneficiary may seek a waiver?
 8

issue an injunction and did not analyze the case under the legal
standards for an injunction.” According to the district court, it
had merely “void[ed]” the system and remanded for rulemaking.

II

The District seeks reversal of the summary judgment as
well as vacation of the reinstatement order. Rather peculiarly,
the District explicitly does not seek vacation of the remand order
– presumably because the District responded with statutory
amendments and emergency regulations that largely met the
district judge’s “suggestions.”5 But if we agree with the District

5
Just before the district court issued its decision on
reconsideration, the D.C. Council enacted the Disability
Compensation Effective Administration Amendment Act of 2004,
D.C. Act 15-685, 52 D.C. Reg. 1449 (Jan. 4, 2005), which took effect
April 5, 2005. In relevant part, the Act formalizes the thirty-day
reconsideration period and prohibits any termination of benefits either
during that period or prior to resolution of a reconsideration request.

Since February 2005, the director of the District’s Office of Risk
Management has also complied with the remand order by issuing
emergency rules. See 52 D.C. Reg. 5481 (Jun. 10, 2005). The
emergency rules expire 120 days after issuance, and it appears that
identical emergency rules have been adopted on a rolling basis. See,
e.g., 52 D.C. Reg. 8964 (Oct. 7, 2005). These rules provide additional
guidelines for the District’s benefits modification and termination
procedures, including enumerating factors on which a modification or
termination decision can be based, reaffirming the thirty-day
reconsideration period, and providing reasons that would justify the
District’s reliance on a report of an independent medical examiner
over that of a treating physician. The rules also require the District to
provide beneficiaries “a narrative description of the rationale” for a
modification or termination decision.
 9

that the court should not have granted summary judgment on
either claim, the remand order will perforce lose any vitality.

Appellees respond by first challenging our appellate
jurisdiction, pointing out that the district court has not issued a
final judgment. The District concedes the point but contends
that the reinstatement order is an injunction appealable under 28
U.S.C. § 1292(a)(1). Although appellees reiterate the district
court’s contention that it did not grant an injunction, we rather
easily conclude that the district court’s reinstatement order was
just that. It ordered the payment of benefits to hundreds of
former employees. Indeed, up to the time of the district court’s
2004 opinion, both the court and appellees consistently
characterized reinstatement of benefits as injunctive relief. For
example, when the court denied the preliminary injunction in
2001, it stated that “[p]laintiffs seek a preliminary injunction
reinstating their benefits and enjoining [d]efendants from
terminating these benefits without a more thorough pre-
termination process.” That is exactly the relief the court
ordered, although in a different form. Appellees’ subsequent
third amended complaint likewise requested this relief and
phrased it in terms of an injunction.

The court seemed to be under the impression that it could
treat this case as if it were an administrative law review of
agency action and thus issue the reinstatement and remand
orders without implicating 28 U.S.C. § 1292(a)(1). But as the
Seventh Circuit has recognized, a § 1983 suit is not one to
review the actions of a state agency. “Federal courts have no
general appellate authority over state courts or state agencies.”
Hameetman v. City of Chicago, 776 F.2d 636, 640 (7th Cir.
1985). Thus, even when a district court purports to remand to
a state agency under § 1983 – as did the district court here – it
actually issues an injunction. See id. The reinstatement order is
a fortiori an injunction.
 10

III

The district court’s grant of summary judgment on claim six
was based on its view that the District was terminating disability
benefits without standards and that this constituted a violation of
due process. It may well be the case that an agency that
terminates such statutorily-entitled benefits without any reason
violates due process, because that would deprive a beneficiary
of the capacity to challenge the termination. More controversial,
see infra at 1-7 (Silberman, J., concurring), is the claim that the
Due Process Clause may impose a requirement of substantive
standards – independent of statutory standards – that may be
used to restrict an administrative agency’s decision to terminate
or modify a protected liberty or property interest. Assuming
arguendo that such a cause of action can be made out, we think
it is wholly without merit here because the CMPA and D.C.
court of appeals decisions themselves provide ample standards
that would satisfy any such due process claim. There is
certainly no conceivable due process claim that could be
predicated on the notion that an agency must proceed to
establish such standards through rulemaking rather than case-by-
case determinations. See NLRB v. Bell Aerospace Co., 416 U.S.
267, 294 (1974).

Appellees’ claims one through five raise issues regarding
the adequacy under due process of the specific procedures
employed by the District, an analysis of which the district court
ostensibly has not yet undertaken. We thus conclude only that
the district court’s grant of summary judgment on claim six was
error.

IV

The district court also granted summary judgment on claim
seven, which is premised on the D.C. Administrative Procedure
 11

Act. The court held that the District’s reliance on unwritten
“best practices” and unpublished procedures to guide the
administration of the disability benefits program constituted
rulemaking under the DCAPA and that because such rulemaking
was not pursuant to the DCAPA’s notice-and-comment
procedures, it was unlawful. The District argues that the
procedures were internal staff directives and thus within a
rulemaking exception and, in any event, that the district court
abused its discretion in exercising supplemental jurisdiction over
this “unsettled and complex issue of District law.”

In light of our reversal of summary judgment as to claim
six, we think it appropriate to remand claim seven back to the
district court for reconsideration of its decision to exercise
supplemental jurisdiction over that claim. See 28 U.S.C. §
1367(c). First, it may be that on remand there are no longer any
viable federal claims in this suit, in which case the district court
should dismiss the DCAPA claim. See United Mine Workers of
Am. v. Gibbs, 383 U.S. 715, 726 (1966). Second, while neither
party has briefed the issue, the DCAPA claim may very well be
moot. The District has not appealed the remand order, plaintiffs
have received substantial post-termination process, and the
District has gone on to adopt amendments to the CMPA and new
emergency rules. Moreover, money damages are not an
appropriate remedy under the DCAPA.

Third, and most importantly, the DCAPA’s judicial review
provision places exclusive jurisdiction in the D.C. Court of
Appeals to review District agency action. See Fair Care Found.
v. Dep’t of Ins. and Sec. Reg., 716 A.2d 987, 997 (D.C. 1998).
As we have already noted, a federal district court hearing a §
1983 due process suit does not have comparable authority; it
cannot, for instance, remand a case to a state agency, thereby
acting in something of a supervisory capacity.
Compare Hameetman, 776 F.2d at 640, with Webb v. Dep’t of
 12

Human Servs., 618 A.2d 148, 152 (D.C. 1992). For these
reasons, the district court might well conclude that it would be
unwise to exercise supplemental jurisdiction over this District
claim. We previously indicated as much in Robinson v. Palmer,
841 F.2d 1151, 1157 (D.C. Cir. 1988), where we agreed with the
district court’s refusal to decide a DCAPA claim that a District
agency had failed to comply with notice-and-comment
rulemaking requirements. To be sure, we have not been
consistent; our earlier cases were to the contrary. See Spivey v.
Barry, 665 F.2d 1222, 1234 (D.C. Cir. 1981); Milhouse v. Levi,
548 F.2d 357, 365 n.19 (D.C. Cir. 1976). But those earlier cases
did not consider the anomaly of a federal court reviewing a
District agency. Of course, that does not mean that a federal
court lacks authority to entertain a claim under § 1983 that
would also be cognizable as a DCAPA claim to the D.C. Court
of Appeals. See City of Chicago v. Int’l College of Surgeons,
522 U.S. 156, 164 (1997); District Props. Assoc. v. District of
Columbia, 743 F.2d 21, 26-27 (D.C. Cir. 1984).

Given these concerns and the parties’ minimal briefing on
these issues, we will remand claim seven to the district court to
allow it an opportunity to reconsider its exercise of supplemental
jurisdiction.

***

Based on the foregoing, we reverse summary judgment on
both claims, vacate the reinstatement order, and remand the case
to the district court for further proceedings consistent with this
opinion.
 SILBERMAN, Senior Circuit Judge, concurring:

I write separately to comment more fully on the district
court’s disposition of claim six – the due process claim.
Although the court purported to decide only that claim – that
due process required more specific written and published
guidelines governing termination procedures, and not that the
procedures actually employed were inadequate – the court’s
opinion clearly intermixed both contentions.

Mathews v. Eldridge, 424 U.S. 319 (1976), sets forth a
framework to be utilized in judging the adequacy of a
government’s procedures that deprive a person of life, liberty,
or property.1 Typically, the focus is on whether the government
– in the latter two categories – must provide a pre-deprivation
hearing and, if so, how formal. See, e.g., id. at 323; Wilkinson
v. Austin, 125 S. Ct. 2384, 2388 (2005). In Mathews itself, the
Supreme Court sanctioned a rather informal pre-deprivation
“hearing” for the discontinuation of Social Security disability
payments, one that involved only a claimant’s opportunity to
examine his or her file and respond in writing with additional
evidence supporting the continuation of benefits. See 424 U.S.
at 345-46.

The district court, despite its explicit application of
Mathews v. Eldridge in its first decision denying an injunction,
accepted appellees’ argument that in considering claim six,
Mathews was not relevant. Instead, as we noted, the court
proceeded essentially as if it were reviewing federal agency
action under the APA. Its analysis started with the proposition
that “[c]ourts should require administrative officers to articulate

1
A court considers three factors: the private interest at issue; the
risk of an erroneous deprivation through the actual procedures, and the
probable value of additional procedural safeguards; and the
government’s interest, including the burdens associated with
additional procedural requirements. Mathews, 424 U.S. at 335.
 2

the standards and principles that govern their discretionary
decisions in as much detail as possible,” quoting one of our old
administrative law cases, Environmental Defense Fund, Inc. v.
Ruckelshaus, 439 F.2d 584, 598 (D.C. Cir.1971). That may well
be an overly broad statement of judicial review, even under the
APA, and inconsistent with our more modest jurisprudence in
subsequent decades. See, e.g., PDK Labs. Inc. v. DEA, 438 F.3d
1184, 1194 (D.C. Cir. 2006) (rejecting the proposition that “an
unarticulated standard does not comport with . . . the APA” and
observing that an agency need only “pour some definitional
content into a vague statutory term by defining the criteria it is
applying”). But in any event, Ruckelshaus and the other case
the court cited for this general proposition, Matlovich v.
Secretary of the Air Force, 591 F.2d 852, 857 n.11 (D.C. Cir.
1978), were strictly APA cases; constitutional due process was
not even mentioned. Under the APA we, of course, have a
broad charge to ensure the reasonableness of agency action –
setting it aside when arbitrary and capricious, see 5 U.S.C. §
706(2)(A) – but this is not an APA case.

The district court thought to import the APA scope of
review into this § 1983 due process suit by relying on two rather
old circuit court cases: White v. Roughton, 530 F.2d 750 (7th
Cir. 1976), and Holmes v. New York City Housing Authority,
398 F.2d 262 (2d Cir. 1968). See also Peter L. Strauss et al.,
Gellhorn and Byse’s Administrative Law 833 (10th ed. 2003).
These cases do stand for the proposition that when a government
agency is given authority to dispense benefits (in White it was
general assistance grants, and in Holmes it was low-rent public
housing) to applicants – no one of which has a particular
statutory entitlement – the agency must do so in accordance with
ascertainable standards in accordance with due process. It
should be noted, however, that the Supreme Court has never
adopted the notion that an applicant for public benefits – even
one with a claim of entitlement under a statute – has a threshold
 3

property interest triggering due process analysis. See Walters v.
Nat’l Ass’n of Radiation Survivors, 473 U.S. 305, 321 n.8
(1985). Moreover, these cases did not apply the Mathews v.
Eldridge framework because Holmes preceded Mathews by
almost eight years and White issued only three days after
Mathews.

Appellees, therefore, are quite incorrect in asserting that
cases raising the sort of due process issue alleged in claim six
are somehow to be analyzed outside of Mathews v. Eldridge –
an assertion the district court seemed to accept. The Supreme
Court has repeatedly insisted that procedural due process claims
be measured in accordance with Mathews. See, e.g., Hamdi v.
Rumsfeld, 542 U.S. 507, 528 (2004) (plurality opinion)
(describing the Mathews test as the “ordinary mechanism” for
due process challenges); Parham v. J.R., 442 U.S. 584, 599
(1979) (describing the Mathews test as the “general approach”
for such cases).

It is quite understandable that appellees and the district
court would see the Holmes and White cases as somehow
outside the Mathews v. Eldridge framework because the truth is
that neither case is a proper interpretation of the Due Process
Clause. Their focus, as is that of appellees’ claim six, is not on
process but on substance. Yet the Supreme Court’s due process
jurisprudence carefully distinguishes process from substance.
The issue is always, in its due process cases, whether or not the
claimant has had a fair opportunity – sometimes rather informal
– to present his case and not whether the agency’s substantive
decision was reasonable. To be sure, as we today recognize, if
an agency refused to give any reason for an initial deprivation,
it would be impossible for the claimant to present an argument
that the agency’s decision was incorrect. So procedure is
implicated. But that assuredly does not mean that the Due
Process Clause can be used as a looming super-arbitrary-and-
 4

capricious standard governing the substantive decisions of an
administrative agency no matter how much discretion the
agency enjoys. The quality of an agency’s reasoning is
decidedly not a process issue. See Motor Vehicle Mfrs. Ass’n v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50-51 (1983).

Granted, some Supreme Court justices in dissenting
opinions have sought to expand due process analysis to include
challenges to government substantive decisions. See, e.g., Bd.
of Regents v. Roth, 408 U.S. 564, 588 (1972) (Marshall, J.,
dissenting); cf. Walters, 473 U.S. at 369 (Stevens, J., dissenting).
But the Court has never accepted that effort to transform the
Due Process Clause. In short, Holmes and White are not only
irrelevant to this case, they were also wrongly decided and
simply do not survive the Mathews v. Eldridge era.

The district court’s concern with the weight to be accorded
an independent medical examiner’s opinion, as opposed to that
of a beneficiary’s treating physician, is not a due process issue
either, but rather a substantive question of compliance with the
statute and perhaps the DCAPA.2 This is a quite common
substantive issue in the administration of disability and worker’s
compensation statutes. See, e.g., Nat’l Mining Ass’n v. Dep’t of
Labor, 292 F.3d 849, 861 (D.C. Cir. 2002) (discussing a
“treating physician rule” promulgated pursuant to the Black
Lung Benefits Act). If a claimant were not entitled to present

2
Indeed, the D.C. Court of Appeals has spoken on numerous
occasions of the preference for treating-physicians over independent
medical examiners. Most recently, in Kralick v. Department of
Employment Services, 842 A.2d 705, 711 (D.C. 2004), the court
addressed the exact program at issue in this case and reaffirmed the
treating physician preference. See also Canlas v. Dep’t of
Employment Servs., 723 A.2d 1210, 1211-12 (D.C. 1999); Stewart v.
Dep’t of Employment Servs., 606 A.2d 1350, 1353 (D.C. 1992).
 5

any evidence in support of his or her continuation of benefits
prior to their termination, that would implicate due process. But
if the Due Process Clause were to extend to an administrative
agency’s determination as to how much weight is to be afforded
to particular kinds of evidence, it would swallow much of
administrative law – both state and federal.

Similarly, so long as the District made available the medical
examiner’s report and identified the prognosis on which its
change-of-condition determination was based – so that a
claimant could adequately respond – that the District did not
provide a quasi-judicial opinion hardly implicates due process.
The Supreme Court has emphasized again and again that
adequate pre-termination process does not require formality.
See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 545
(1985); Mathews, 424 U.S. at 343; Boddie v. Connecticut, 401
U.S. 371, 378 (1971). As to the District’s alleged failure to
individually notify claimants of statutory procedural rights, I
think that claim borders on the frivolous. The statute itself is
quite adequate, if not the most desirable notice.

On the other hand, appellees’ claim that beneficiaries were
not given an adequate pre-deprivation opportunity to respond to
the initial adverse decision – at least in writing (presumably by
submitting alternative medical opinions, as in Mathews) – does
implicate due process. It must be kept in mind, however, that
episodic failures of process do not make out a constitutional
violation. The Supreme Court has repeatedly cautioned that in
determining whether a government’s process is adequate under
Mathews, we are to evaluate the run-of-the-mine cases and not
every application. See Walters, 473 U.S. at 321. In this regard,
the only surviving issue I see is whether, as a factual matter and
prior to the recent amendment of the D.C. Code, beneficiaries,
as a matter of policy and normal practice, were given an
opportunity to present their case – at least in writing – prior to
 6

actual termination of their benefits.3 That would, of course,
require that beneficiaries have access to their case files as well.4
The District insists that, pursuant to its then-unwritten policy,
benefits were not terminated until after beneficiaries’ requests
for reconsideration had been addressed and rejected and that any
deviations from this policy were isolated incidents. That factual
issue remains to be resolved by the district court on remand,
when it addresses claims one through five.

The district court’s broad preference for regulations
governing the behavior of officials – employees of an
independent contractor and government officials – has no basis
in due process jurisprudence or, for that matter, in administrative
law. See SEC v. Chenery Corp., 332 U.S. 194, 203 (1947). The
only real question remaining under the due process analysis is
that which I have identified.

***

The district court’s embrace of constitutional due process in
order to restrict the discretion employed by administrative
agencies is part and parcel of the disturbing judicial trend, which
we have seen for many years, of using the Due Process Clause

3
Even if the pre-termination procedures were deficient,
prospective relief appears out of the question in light of the post-
termination review procedures, the 2005 amendments to the CMPA,
and the reissued emergency rules.
4
Appellees contend that the District denied access to case files
and in support cite the declaration of David Colodny, an attorney
representing one beneficiary. That declaration merely identifies an
instance in which he met resistance attempting to gain access to a
client’s file, but where access was ultimately granted. This is quite
insufficient to cast doubt on the District’s assertion that case file
access was granted as a matter of policy.
 7

to pursue substantive outcomes. Much has been written of the
Supreme Court’s invention of substantive due process (an
oxymoron if there ever was one), and we have only recently
seen our own court expand its admittedly unstable boundaries.
See Abigail Alliance for Better Access to Developmental Drugs
v. Eschenbach, __ F.3d __ (D. C. Cir. 2006). Using the Due
Process Clause to restrict agency substantive decisionmaking,
rather than to protect a claimant’s process, might be thought
“substantive due process-lite.”5

5
It should be recognized that turning process into substance is an
all-too-human temptation on the part of judges who wish to ensure
certain outcomes rather than merely regulate procedure. And using
constitutional due process trumps legislative decisionmaking.