Chang v. District of Columbia Department of Consumer and Regulatory Affairs

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

________________________________________________
)
DEANNA CHANG, )
)
Plaintiff, )
)
v. ) Civil Action No. 08-0871 (PLF)
)
DISTRICT OF COLUMBIA DEPARTMENT OF )
REGULATORY AND CONSUMER AFFAIRS, et al., )
)
Defendants. )
________________________________________________)

OPINION

This matter is before the Court on defendants’ motion to dismiss or, in the

alternative, for summary judgment. After careful consideration of the parties’ papers and the

entire record in the case, the Court will grant defendants’ motion to dismiss as to all counts.1

I. BACKGROUND

Plaintiff Deanna J. Change alleges violations of her procedural and substantive

due process rights, as well as violations of Section 6-1405.01 of the District of Columbia Code,

arising from the issuance of a stop work order on renovations done to her home. See Compl.

¶¶ 1-2. According to the allegations in the complaint, plaintiff received Building Permit No.

B472074 from the District of Columbia Department of Consumer and Regulatory Affairs

1
The Court considered the following papers: the Complaint (“Compl.”);
Defendants’ Motion to Dismiss or in the Alternative for Summary Judgment (“Mot.”); Plaintiff’s
Opposition to Defendants’ Motion to Dismiss or in the Alternative for Summary Judgment
(“Opp.”); and Defendants’ Reply in Support of their Motion to Dismiss or in the Alternative for
Summary Judgment (“Rep.”).
(“DCRA”) to renovate her residence at 1315 Irving St., N.W. on April 28, 2005. See Compl.

¶ 10. The renovations were still ongoing on March 19, 2008 when the DCRA issued a stop work

order. See Compl. ¶¶ 10-11. The Order alleged four separate violations of the District of

Columbia’s Construction Codes: (1) working without a building permit; (2) working without a

demolition permit; (3) failure to post a building permit; (4) failure to post a demolition permit.

See Compl. ¶ 15.

On March 21, 2008, plaintiff went to the DCRA to inquire about the stop work

order. See Compl. ¶ 16. A DCRA employee, Tomeka Jones, informed plaintiff that the proper

method for removing the stop work order was to file a Notice of Appeal with the Chief Building

Inspector, Don Masoero, at DCRA. See Compl. ¶ 18. Plaintiff filed her appeal that same day.

See Compl. ¶ 18. The issue was not resolved, and plaintiff subsequently filed a Notice of Appeal

with defendant Linda Argo, the Director of DCRA. See Compl. ¶¶ 19, 21. On April 4, 2008,

plaintiff met with Mr. Masoero, who agreed that three of the violations — failure to post a

building permit, working without a demolition permit, and failure to post a demolition permit —

were invalid. See Compl. ¶¶ 23, 24. At the same meeting, Mr. Masoero informed plaintiff that

her building permit had expired, putting her in violation of the Construction Codes. See Compl.

¶ 25. Plaintiff believed that Mr. Masoero was incorrect in stating that her permit had expired.

See Compl. ¶ 26. Plaintiff requested a hearing before the Office of Administrative Hearings on

her challenge to Mr. Masoero’s determination, and was waiting for that hearing to be scheduled

when she filed a complaint and a motion for preliminary injunction in this Court. See Compl.

¶ 30. Plaintiff named as defendants the DCRA, Mayor Adrian Fenty in his official capacity, and

Linda Argo and Don Masoero in their individual and official capacities. The Court heard

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argument on June 20, 2008, but in light of representations made in a joint report filed by the

parties stating that the stop work order had been lifted, the Court denied the motion for

preliminary injunction as moot. See July 21, 2008 Minute Order; see also Joint Report

Concerning Preliminary Injunction.

II. DISCUSSION

Defendants move to dismiss the complaint for failure to state a claim pursuant to

Rule 12(b)(6) of the Federal Rules of Civil Procedure or, in the alternative, for summary

judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Defendants argue that

plaintiff does not plead a cause of action for procedural or substantive due process, that Section

6-1405.01(a) of the District of Columbia Code does not confer a private right of action on

plaintiff, and that in the absence of any viable federal claim the Court should decline to exercise

supplemental jurisdiction and should dismiss the remaining claims. They also argue that

defendants Linda K. Argo and Don Masoero enjoy qualified immunity for the claims asserted

against them. The Court will grant defendants’ motion to dismiss in its entirety.

A. Rule 12(b)(6)

Rule 12(b)(6) of the Federal Rules of Civil Procedure allows dismissal of a

complaint if a plaintiff fails “to state a claim upon which relief can be granted.” FED . R. CIV . P.

12(b)(6). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court clarified

the standard of pleading that a plaintiff must meet in order to survive a motion to dismiss under

Rule 12(b)(6). The Court noted that “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a

short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to

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‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests[.]’”

Bell Atlantic Corp. v. Twombly, 550 U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47

(1957)); see also Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007); Aktieselskabet AF 21 v.

Fame Jeans Inc., 525 F.3d 8, 15 (D.C. Cir. 2008). Although “detailed factual allegations” are not

necessary to withstand a Rule 12(b)(6) motion, a plaintiff must furnish “more than labels and

conclusions” or “a formulaic recitation of the elements of a cause of action” to provide the

“grounds” of “entitle[ment] to relief.” Bell Atlantic Corp. v. Twombly, 550 U.S. 555; see also

Papasan v. Allain, 478 U.S. 265, 286 (1986). While there is no “probability requirement at the

pleading stage,” Bell Atlantic Corp. v. Twombly, 550 U.S. at 556, “something beyond . . . mere

possibility . . . must be alleged[.]” Id. at 557-58. The facts alleged in the complaint “must be

enough to raise a right to relief above the speculative level,” id. at 555, or must be sufficient “to

state a claim to relief that is plausible on its face.” Id. at 570. The Court referred to this newly

clarified standard as “the plausibility standard.” Id. at 560 (abandoning the “no set of facts”

language from Conley v. Gibson).

On a motion to dismiss under Rule 12(b)(6), the Court “must accept as true all of

the factual allegations contained in the complaint.” Erickson v. Pardus, 127 S. Ct. at 2200; see

also Bell Atlantic Corp. v. Twombly, 550 U.S. at 555; Summit Health, Ltd. v. Pinhas, 500 U.S.

322, 325 (1991); Aktieselskabet AF 21 v. Fame Jeans Inc., 525 F.3d at 15. It must construe the

complaint “liberally in the plaintiff[’s] favor, and grant plaintiff[] the benefit of all inferences that

can be derived from the facts alleged.” Kowal v. MCI Communications Corp., 16 F.3d 1271,

1276 (D.C. Cir. 1994); see also Aktieselskabet AF 21 v. Fame Jeans Inc., 525 F.3d at 15. The

Court, however, need not accept inferences drawn by a plaintiff if those inferences are

4
unsupported by facts alleged in the complaint; nor must it accept plaintiff’s legal conclusions.

See Kowal v. MCI Communications Corp., 16 F.3d at 1276; Browning v. Clinton, 292 F.3d 235,

242 (D.C. Cir. 2002).

B. Procedural Due Process Claim

For her procedural due process claim, plaintiff asserts that she had a

constitutionally protected property right in her building permit and that defendants issued the

stop work order without basis and without prior notice and the opportunity for a hearing. The

Court will assume, for the purposes of this discussion, that plaintiff had a valid property interest

in Building Permit B472074, a point defendants do not contest in their motion. See 3883

Connecticut LLC v. District of Columbia, 336 F.3d 1068, 1072 (D.C. Cir. 2003) (finding a

property interest in the possession of a building permit). At issue is whether plaintiff received

adequate process in conjunction with issuance of the stop work order.

The provisions of the D.C. Construction Codes in force at the time provided for

the following appeals process:

112.1 Appeals within the Department. The owner of a building or
structure or any person suffering a legal wrong, or adversely
affected or aggrieved, may initiate an appeal, within the
Department from a stop work order . . . .

112.1.1 Official Notice of Action. The official inspector, or other
person whose action or decision is being appealed shall provide the
claimant written notice of the action or decision, which shall state
as a minimum the name of the claimant, address of the property in
question, nature of violation or non-compliance, section of the
construction codes providing the basis for the action or decision
taken, and the reviewing official within the Department to whom
the appeal should be taken.

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 112.1.2 Action on Appeal. Within three (3) working days of receipt
of the appeals form, the reviewing official shall affirm, modify, or
reverse the previous action or decision. If the reviewing official
affirms or modifies the previous action or decision, the claimant
may request a review of the matter by the Director. Further, if the
reviewing official does not act upon the appeal within the three
working day period, the decision will be deemed affirmed and the
claimant may proceed to request review by the Director. The
Director will act on the request within an additional three (3)
working days. The decision of the Director shall be the final
decision of the Department. If the Director does not act within the
three working day period, or denies the appeal, the claimant may
appeal the matter directly to the Board of Appeals and Review.

112.2 Appeal to Board of Appeals and Review. The owner of a
building or structure any person suffering a legal wrong or
adversely affected or aggrieved by a final decision of the code
official, as set forth above in § 112.1 may appeal to the D.C. Board
of Appeals and Review.

D.C. MUN . REGS. tit. 12A § 112 (2008).2

In 3883 Connecticut LLC v. District of Columbia, 336 F.3d at 1073, the D.C.

Circuit considered an earlier iteration of these same appeal provisions under the standard

established by the Supreme Court in Mathews v. Eldridge, 424 U.S. 319 (1976). It concluded

that these procedures afford a permit holder adequate process to challenge a stop work order,

explaining:

[T]he permit holder has a substantial interest in the continued
effect of the permit and in proceeding with a project without delay.
. . . At the same time, we recognize the District’s significant
interest in maintaining its capability to act swiftly to bring an
immediate halt to construction work that poses a threat to public
health and safety or to the environment. . . . Moreover, the
regulations provide for expedited post-deprivation review before
two District officials and then immediate appeal to the District

2
The Construction Codes have since been amended slightly. See D.C. MUN . REGS.
tit. 12A §§ 112A-114A (2009).

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 Board of Appeals and Review — a procedure that reduces the risk
of protracted harm from a wrongly issued permit. . . . We therefore
conclude that these protections meet the requirements of due
process.

3883 Connecticut LLC v. District of Columbia, 336 F.3d at 1074 (citations omitted). This Court

finds that the D.C. Circuit’s decision in 3883 Connecticut is controlling here; plaintiff has

alleged no basis for distinguishing the process that she received from that found adequate in 3883

Connecticut.

More specifically, plaintiff alleges that the stop work order was issued by Michael

Pearson, acting on behalf of DCRA, and that it alleged four violations of the Construction Codes.

See Compl. ¶ 15, Ex. 3 (Stop Work Order).3 The stop work order met the requirements of

Section 112.1.1: It provided written notice of the action (issuance of a stop work order); and it

stated the address of the property in question, the nature of the violation (failure to obtain a

permit), the specific sections of the Construction Codes at issue, and the process for review,

including the name of the reviewing official (Don Masoero). See D.C. MUN . REGS. tit. 12A

§ 112.1.1 (2008). Although the notice did not state plaintiff’s name, as required, plaintiff’s

allegations that she acted immediately following receipt of the stop work order, see Compl. ¶ 16,

make plain that she was in no way hampered in the appeals process by the failure to include her

name on the notice.

3
In assessing the legal sufficiency of the complaint, the Court may consider the
facts as alleged in the complaint, as well as documents incorporated into the complaint by
reference. See Wagener v. SBC Pension Benefit Plan, 407 F.3d 395, 397 (D.C. Cir. 2005) (noting
that in reviewing district court’s grant of motion to dismiss for failure to state a claim, the court
could refer to “exhibits attached to, and the documents incorporated by reference in, the
complaint.”)

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 Plaintiff then filed a Notice of Appeal of the stop work order with Mr. Masoero,

the first step in the appeals process conceived of by the Construction Codes. See Compl. ¶ 18;

D.C. MUN . REGS. tit. 12A § 112.1 (2008). At that point, Mr. Masoero was obliged to affirm,

modify, or reverse the action within three working days. See D.C. MUN . REGS. tit. 12A § 112.1.2

(2008). Plaintiff alleges that Mr. Masoero’s office called her within three days, but that the

office representative stated that they did not have a record of the stop work order and could not

proceed until they located it. See Compl. ¶ 20. On the fourth working day after plaintiff filed her

Notice of Appeal, Mr. Masoero’s office still had not resolved the matter. See id. ¶ 21. If the

reviewing official does not act upon an appeal within three working days, it “will be deemed

affirmed and the claimant may proceed to request review by the Director.” D.C. MUN . REGS. tit.

12A § 112.1.2 (2008). Plaintiff proceeded to this next step by filing her Notice of Appeal with

Ms. Argo (the Director of DCRA). See Compl. ¶ 21.

The regulations next provide that the Director must act upon the request within

three additional working days, but “[i]f the Director does not act within the three working day

period, or denies the appeal, the claimant may appeal the matter directly to the Board of Appeals

and Review [now the Office of Administrative Hearings].” D.C. MUN . REGS. tit. 12A § 112.1.2

(2008). Ms. Argo did not act on the appeal within the three day window, see Compl. ¶ 22, but

plaintiff did not immediately follow the next step provided for by the regulations and appeal the

matter directly to the Office of Administrative Hearings. See Compl. ¶ 23 (alleging that the next

event was a meeting scheduled with Mr. Masoero’s office). Plaintiff did appeal the Notice of

Infraction that Mr. Masoero issued on April 2, 2008 (which she received on or before the April 8,

2008 meeting with him) to the Office of Administrative Hearings. She had been waiting for the

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hearing to be scheduled when she filed suit approximately six weeks later. See Compl. ¶¶ 23, 24,

30, Ex. 6 (Notice of Infraction).

The allegations in plaintiff’s complaint show that she received notice of the

infraction and the opportunity to be heard through a multi-level appeals process. She received

notice of the available procedures for appeal, because the Stop Work Order Appeal Form

identifies the provision of the Construction Codes that provides for the appeals process and

summarizes the process for appeal. See Compl., Ex. 4. Plaintiff complains of the initial inaction

by Mr. Masoero and Ms. Argo, but the Construction Codes provide that in the event of inaction,

after three working days an appealing party can bypass the inactive official and proceed to the

next step in the review process. See 3883 Connecticut LLC v. District of Columbia, 336 F.3d at

1074 (concluding that the District’s procedures provided adequate due process in part because

they provided for “post-deprivation review before two District officials and then immediate

appeal to the District Board of Appeals and Review”). The Construction Codes do not provide a

time frame within which the Office of Administrative Hearings must act, but the D.C. Circuit in

3883 Connecticut considered the appeals process in its entirety and concluded that the procedures

were adequate, even though they lacked such a deadline. See id.; see also Eastern Trans-Waste

of Maryland v. District of Columbia, Civil Action No. 05-0032, 2007 U.S. Dist. LEXIS 21790 at

*12 (D.D.C. March 27, 2007) (“[N]owhere did the court of appeals in 3883 Connecticut base its

decision or reasoning on the expeditiousness of the review process.”). The claim for procedural

due process violations will be dismissed.4

4
Plaintiff also complains that Mr. Masoero’s decision in the Notice of Infraction
was incorrect, but this allegation does not state a claim for a procedural due process violation. If
an individual receives adequate notice and the opportunity to be heard in a meaningful manner,

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 C. Substantive Due Process

Plaintiff alleges that defendants violated her substantive due process rights

through issuance of the stop work order, which deprived her of the use and value of a substantial

portion of her home. In order to maintain an action for a substantive due process violation a

plaintiff must allege (1) the existence of a legally cognizable property interest, and (2) egregious

governmental misconduct in depriving plaintiff of that interest. See George Wash. Univ. v.

District of Columbia, 318 F.3d 203, 206-09 (D.C. Cir. 2003).

“[I]n a due process challenge to executive action, the threshold
question is whether the behavior of the governmental officer is so
egregious, so outrageous, that it may fairly be said to shock the
contemporary conscience.” County of Sacramento v. Lewis, 523
U.S. 833, 847 n. 8 (1998). Most likely to rise to that level is
“conduct intended to injure in some way unjustifiable by any
government interest.” Id. at 849.

Feirson v. District of Columbia, 506 F.3d 1063, 1066-67 (D.C. Cir. 2007). Nothing in the

allegations in plaintiff’s complaint amount to this level of violation, and it is established that

“[i]nadvertent errors, honest mistakes, agency confusion, even negligence in the performance of

official duties, do not warrant redress.” Eastern Trans-Waste of Md., Inc. v. District of

Columbia, 2007 U.S. Dist. LEXIS 21790 at *14 (quoting Silverman v. Barry, 845 F.2d 1072,

1080 (D.C. Cir. 1988)).

While Mr. Masoero may have been incorrect in his interpretation of the

Construction Codes, plaintiff has not alleged any motivation on the part of defendants that would

make such an allegation amount to stating a claim for a substantive due process violation. In

her procedural due process rights have not been violated, even though she believes the decision
that results from that opportunity to be heard to be incorrect. See American Towers, Inc. v.
Williams, 146 F. Supp. 2d 27, 33 (D.D.C. 2001).

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Eastern Trans-Waste, for example, the plaintiff asserted a substantive due process claim against

the District of Columbia for delay in issuing a building permit. Id. at *7. Judge Oberdorfer

granted judgment in favor of the defendants in that case because the plaintiff had not presented

any evidence that the District had deliberately delayed the permitting process in order “to

artificially depress the value of [plaintiff’s] property,” or “to hamper [plaintiff] from competing

with the District in the solid waste business;” rather, the delays were caused by the District’s

concern about the scope and extent of the plaintiff’s planned construction. Id. at *15, 20-21.

Similarly, plaintiff in this case has alleged no motive on the part of any of the defendants that

would make their alleged behavior amount to a substantive due process violation. This claim

also will be dismissed.

D. Violation of District of Columbia Code § 6-1405.01

Defendants seek dismissal of plaintiff’s claim under District of Columbia Code

§ 6-1405.01 on the ground that the statute does not create a private right of action. The relevant

statutory language is as follows:

The Director shall seek to administer all building permits,
certificates of occupancy and other provisions of this chapter, and
all regulations issued hereunder, in a manner that is fair, efficient,
predictable, readily adaptable to new technologies,
consumer-oriented, devoid of unnecessary time delays and other
administrative burdens, cost-effective, and directed at enhancing
the protection of the public health, welfare, safety and quality of
life.

D.C. Code § 6-1405.01(a). Nothing in the statute explicitly creates a private right of action, nor,

based upon the Court’s research, has the statute ever been interpreted to provide for one. While

it is sometimes possible to imply a private right of action when a statute does not expressly

11
provide for it, “in recent decades the Supreme Court has ‘retreated from [its] previous

willingness to imply a cause of action where Congress has not provided one.’” Prunte v.

Universal Music Group, 484 F. Supp. 2d 32, 42 (D.D.C. 2007) (quoting Corr. Serv. Corp. v.

Malesko, 534 U.S. 61, 67 n.3 (2001)); see also National Trust for Historic Preservation v.

Blanck, 938 F. Supp. 908, 914 (D.D.C. 1996) (“[i]n order to establish an implied private right of

action under a federal statute, a plaintiff bears a relatively heavy burden”).

The District of Columbia Court of Appeals uses a three part test to determine

whether District of Columbia statutes create an implied private right of action:

First, is the plaintiff ‘one of the class for whose especial benefit the
statute was enacted’ . . . ? Second, is there any indication of
legislative intent, explicit or implicit, either to create such a remedy
or to deny one? . . . Third, is it consistent with the underlying
purposes of the legislative scheme to imply such a remedy for the
plaintiff?

Coates v. Elzie, 768 A.2d 997, 1001 (D.C. 2001) (quoting In re D.G., 583 A.2d 160, 166 (D.C.

1990)). As to the first factor, plaintiff was a permit holder, and therefore is likely part of the

class for whose benefit the statute was created. Second, as already noted, there is no indication

of any legislative intent to create a private right of action. The statute does not, for example,

provide any sanctions for noncompliance by the Director. Rather, through the language “shall

seek,” the statute creates general standards for the method by which the Director administers

building permits rather than a binding, enforceable duty. These standards are described in broad

language — “fair, efficient, predictable” — which does not lend itself to adjudication by the

courts. See D.C. Code § 6-1405.01(a).

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 Neither does the third factor in the test suggest that the statute provides — or was

intended to provide — for a private right of action. The statute is part of the D.C. Construction

Codes, which

shall be construed to secure their expressed intent, which is to
ensure public safety, health, and welfare by building construction,
through structured strength, energy and water conservation,
accessibility to persons with disabilities, adequate egress facilities,
sanitary equipment, light, ventilation, and fire safety; and, in
general, to secure safety to life and property from all hazards
incident to the design, erection, repair, removal, demolition, or use
and occupancy of buildings, structures, or premises.

D.C. Code § 6-1404. The underlying purpose of the legislative scheme is to ensure that the

construction occur in a manner than promotes the “public safety, health, and welfare,” not to

ensure that individuals involved in construction projects be afforded particular substantive rights.

Id.

The Court will not imply a private right of action where, as here, it is doubtful that

such a remedy was intended to accompany the statute or conceived of as part of the legislative

scheme. See Prunte v. Universal Music Group, 484 F. Supp. 2d at 42 (“The Supreme Court has

‘responded cautiously to suggestions that [implied private rights of action] be extended into new

contexts,’ even when declining to do so means that injuries would go unredressed.”) (quoting

Schweiker v. Chilicky, 487 U.S. 412, 425 (1988)). Because D.C. Code § 6-1405.01 does not

provide plaintiff with a private right of action, plaintiff’s claim under the statute will be

dismissed.

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 III. CONCLUSION

For the foregoing reasons, the Court will grant defendants’ motion to dismiss in

its entirety.5 The case will be dismissed. An Order consistent with this Opinion will be issued

this same day.

/s/________________________
PAUL L. FRIEDMAN
United States District Judge
DATE: March 30, 2009

5
Since the Court is dismissing all claims, it need not reach the arguments that
defendants raise about qualified immunity or whether it should decline to exercise supplemental
jurisdiction over plaintiff’s state law claim.

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