Barryman-Turner v. District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

__________________________________________
)
KAREN BARRYMAN-TURNER, )
)
Plaintiff, )
)
v. ) Civil Action No. 14-00035 (RDM)
)
DISTRICT OF COLUMBIA, ET AL., )
)
Defendants. )
_________________________________________ )

MEMORANDUM OPINION

Plaintiff Karen Barryman-Turner, a former employee of the District of Columbia (“the

District” or “D.C.”) Department of Corrections, alleges that the D.C. Department of Employee

Services (the “Agency”) terminated her disability compensation benefits without adhering to the

requirements of the Due Process clause of the Fifth Amendment and District of Columbia law.

The first five counts of the complaint assert constitutional claims under 42 U.S.C. § 1983. The

sixth count alleges that Defendants violated Subsections 1-624.24(b) and (d) of the D.C. Code by

requiring Plaintiff to seek reconsideration of the order terminating her benefits before allowing

her to request a hearing before a hearing officer. Dkt. 1 ¶ 47.

The matter is now before the Court on the Defendants’ Motion to Dismiss (Dkt. 4). That

motion (1) raises a statute of limitations defense; (2) challenges Plaintiff’s standing to seeking

injunctive or declaratory relief; (3) argues that Plaintiff is barred from seeking damages for the

alleged violation of D.C. law for failure to comply with the District’s six-month notice

requirement; and (4) maintains that the official capacity claims brought against the named

officials should be dismissed as duplicative of the claims against the District. For the reasons set

1
forth below, the Court rejects Defendants’ statute of limitations defense, agrees that Plaintiff has

not established standing to obtain prospective relief, agrees that Plaintiff is not entitled to seek

damages for the alleged violation of D.C. law, and agrees that the claims against the named

officials should be dismissed as duplicative. Defendants’ Motion to Dismiss is, accordingly,

GRANTED in part and DENIED in part.

I. BACKGROUND

The complaint, the factual allegations of which are taken as true for purposes of this

motion, see Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), alleges that Plaintiff was

injured on March 3, 1996, when she was struck on the head in the course of her employment

with the D.C. Department of Corrections. Dkt. 1 ¶ 26. As a result of that injury, Plaintiff was

ultimately awarded benefits under the District’s Comprehensive Merit Personnel Act (“CMPA”),

D.C. Code §§ 1-601.01, et seq., and received those benefits from March 3, 1996 until May 16,

1998. Dkt. 1 ¶ 26-27. On May 31, 1998, Plaintiff was re-injured. She was subsequently

awarded benefits beginning on the date of the re-injury. Id. ¶ 28. Her benefits were terminated,

however, effective May 17, 2003. Id. ¶ 29.

Even before Plaintiff’s benefits were terminated, a class-action suit was brought against

the District challenging “the policies and procedures applied to terminate, suspend, and modify

[the] disability compensation benefits” of a class of former D.C. employees. See Elizabeth

Lightfoot v. District of Columbia, Civ. No. 01-1484 (D.D.C. January 16, 2007). Like the present

action, that case alleged that these procedures violated the Due Process clause of the Fifth

Amendment and (albeit for reasons different from those alleged here) D.C. law, and it sought

2
declaratory and injunctive relief. 1 See Complaint, Lightfoot, Civ. No. 01-1484, Dkt. 152 at 3

(D.D.C. January 16, 2007). The constitutional claims asserted in Lightfoot, like those asserted

here, included both facial and as-applied challenges to D.C. Code § 1-623.24(d) and alleged that

beneficiaries were not provided an adequate opportunity to demonstrate their continuing

entitlement to benefits. Id. at 28. Other claims challenged a number of the Agency’s alleged

practices, including, among other things, its failure to provide adequate notice of a beneficiary’s

right to appeal an adverse decision and to retain counsel, its failure to provide adequate rationales

for its decisions, and its failure to engage in reasoned decision-making when terminating,

suspending or modifying benefits. Id. at 29-30. Finally, in the only claim based on D.C. law, the

Lightfoot complaint alleged that the defendants violated D.C. Code § 2-505 by adopting policies

governing changes to benefits without publishing the required notice in the District of Columbia

Register. Id. at 30.

On January 14, 2004, the Lightfoot court certified the following class:

All persons who received disability compensation benefits pursuant to D.C. Code
§ 1-623.1, et seq. and whose benefits were terminated, suspended or reduced
between June 27, 1998 and April 5, 2005, the date on which the Disability
Compensation Effective Administration Amendment Act of 2004, D.C. Act 15-
685, 52 D.C. Reg. 1449 (Jan. 4, 2005), took effect. “Disability compensation
benefits” is defined to exclude a scheduled award provided in D.C. Code § 1-
623.7 expiring at the end of the statutory term, continuation of pay provided in
D.C. Code § 1-623.18(a) expiring at the end of the statutory term, funeral
expenses provided in D.C. Code § 1-623.34, a fully paid lump sum settlement
provided in D.C. Code § 1-623.35, and credited compensation leave provided in
D.C. Code § 1-623.43.

Lightfoot, Civ. No. 01-1484, Dkt. 541 at 5.

1
The Lightfoot plaintiffs also brought a claim against a different defendant, CLW/Creative
Disability Management, which is not relevant here. See Lightfoot, No. 01-cv-1484, Dkt. 152 at
30-31.
3
 After substantial motions practice in the district court and a related appeal, the Lightfoot

court ultimately dismissed all of the class-wide claims, except for the as-applied due process

challenge to D.C.’s alleged failure to provide beneficiaries an adequate opportunity to show that

they were entitled to continue to receive benefits. The facial challenge to D.C. Code § 1-

623.24(d) was dismissed because Plaintiffs had failed to establish “that no set of circumstances

exist under which the [law] would be valid.” Lightfoot, Civ. No. 01-1484, Dkt. 330 at 11

(internal quotations omitted). The remaining constitutional claims were dismissed on the merits

for failure to state a claim. 2 The Lightfoot court then declined to exercise supplemental

jurisdiction over the sole D.C. law claim, and dismissed it without prejudice. Lightfoot, Civ. No.

01-1484, Dkt. 316 at 23. Thus, after the Lightfoot court’s order of April 10, 2007, the only

surviving claim against the District was the as-applied challenge to D.C. Code § 1-623.24(d).

Lightfoot, Civ. No. 01-1484, Dkt. 330.

Then, after the parties completed further discovery on the sole remaining claim, the

Lightfoot court decided to “revisit the certification question” in light of the “markedly different”

procedural posture and the “significantly more developed” evidentiary record. Lightfoot, Civ.

No. 01-1484, Dkt. 541 at 5 (Jan. 10, 2011). The court concluded that plaintiffs could “satisfy

neither the commonality requirement of Rule 23(a)(2) nor the cohesiveness requirement of Rule

2
Specifically, Claim Three was dismissed because the Court found that the notice provided to
beneficiaries was, as a matter of law, adequate to advise them of their statutory rights; Claim
Four was dismissed because the explanations of the grounds upon which their terminations were
based satisfied the requirements of due process; and Claim Five was dismissed because the Court
concluded that the claim essentially challenged the substance of the Agency’s decisions and a
such was “decidedly not a process issue.” Lightfoot, Civ. No. 01-1484, Dkt. 316 at 2 (internal
quotation omitted). Claim Six was dismissed because, as the Court of Appeals held on
interlocutory review, an agency is not required to establish standards through rule-making rather
than case-by-case determinations in order to comply with due process. Lightfoot v. District of
Columbia, 448 F.3d 392, 398 (D.C. Cir. 2006).
4
23(b)(2).” Id. at 18. The court emphasized that the plaintiffs failed to identify a policy or

custom that was common to the class and noted that there were significant, potentially

dispositive variations of fact between different plaintiffs. Id. at 19-20, 28. As a result, the

Lightfoot court decertified the class on January 10, 2011. Lightfoot, Civ. No. 01-1484, Dkt. 541.

Plaintiff commenced this lawsuit on January 9, 2014, just one day short of three years

from the day the Lightfoot class was decertified. On March 18, 2014, Defendants filed the

pending motion to dismiss. Dkt. 4.

II. DISCUSSION

Defendants move to dismiss on a variety of grounds. The Court will address each

argument in turn.

A. Statute of Limitations And American Pipe Tolling

Defendants first contend that all of Plaintiff’s claims are time-barred. They assert, and

Plaintiff does not dispute, that Plaintiff’s claims are subject to the District of Columbia’s three-

year residual statute of limitations, which applies to Section 1983 claims, see Earle v. District of

Columbia, 707 F.3d 299, 305 (D.C. Cir. 2012); and “presumably” to Plaintiff’s claim under D.C.

law, see D.C. Code § 12-301(1)-(11). Dkt. 4 at 5. Because Plaintiff did not file suit until more

than ten years after the last event giving rise to her claims for relief, according to the Defendants,

all six claims miss the statute of limitations by a wide margin. Id. at 4.

Plaintiff does not take issue with Defendants’ version of the timeline, but, rather, invokes

the Supreme Court’s decision in American Pipe & Const. Co. v. Utah, 414 U.S. 538, 554 (1974),

which held “that the commencement of a class action suspends the applicable statute of

limitations as to all asserted members of the class who would have been parties had the suit been

permitted to continue as a class action.” Because the Lightfoot class action was filed before the

5
events giving rise to Plaintiff’s lawsuit and was not decertified until January 10, 2011, Plaintiff

maintains that the statute of limitations did not expire until January 10, 2014—precisely three

years after the decertification order and one day after Plaintiff commenced this action.

Defendants, for their part, do not dispute that Plaintiff was a member of the Lightfoot

class or that American Pipe tolling applies here. Dkt. 6 at 2 n.2. They argue, instead, that

American Pipe tolling is a species of equitable tolling and that equitable tolling does not create

“an automatic extension of the statute of limitations by the length of the tolling period.” Phillips

v. Heine, 984 F.2d 489, 492 (D.C. Cir. 1993) (citing Cada v. Baxter Healthcare Corp., 920 F.2d

446, 452 (7th Cir. 1990). Rather, according to Defendants, American Pipe only extends the

statute of limitations for a “reasonable period” following the rejection or dismissal of a putative

class action. Dkt. 6 at 2. “Reasonableness,” in turn, requires that the court consider whether the

proponent of tolling pursued his or her claims diligently. Dkt. 6 at 3. Here, Defendants argue,

waiting a full three years after the Lightfoot class was decertified—and nearly eleven years after

the last of the events giving rise to Plaintiff’s claims—was not reasonable. Dkt. 6 at 4.

The question whether American Pipe tolling is properly understood as a form of

“equitable” tolling or, in contrast, as a form of “legal” tolling implicit in Rule 23 is unsettled. On

one hand, much of the Supreme Court’s analysis in American Pipe focuses on Rule 23 and the

representative nature of class actions. The Court explained, for instance, that a class actions is “a

truly representative suit,” such that “the filing of a timely class action complaint commences the

action for all members of the class as subsequently determined.” American Pipe, 414 U.S. at

550. Class members are “parties to the suit unless and until” they choose not to participate in the

suit. Id. at 550-551. The commencement of a class action thus satisfies the purpose of statutes

of limitations “as to all those who might subsequently participate in the suit” because class

6
members are effectively pursuing relief under Rule 23. Id. at 551. If the statute of limitations

were not tolled, moreover, then each class member would have to file individual actions to

preserve their right to relief—which is precisely what class action suits are designed to avoid.

Id.; see also Stone Container Corp. v. United States, 229 F.3d 1345, 1354 (Fed. Cir. 2000).

On the other hand, the Supreme Court itself has cited American Pipe in discussing

equitable tolling, albeit with little discussion. For instance, in Irwin v. Department of Veterans

Affairs, 498 U.S. 89, 96 n.3 (1990), the Court cited American Pipe, along with other cases, for

the not-entirely-apposite proposition that it had previously “allowed equitable tolling in

situations where the claimant has actively pursued his judicial remedies by filing a defective

pleading during the statutory period.” See also Young v. United States, 535 U.S. 43, 49 (2002)

(citing American Pipe, along with other cases, in support of proposition that “[i]t is hornbook

law that limitations periods are ‘customarily subject to equitable tolling,’. . . unless tolling would

be ‘inconsistent with the text of the relevant statute’”); Greyhound Corp. v. Mt. Hood Stages,

Inc., 437 U.S. 322, 338 n. (1978) (Burger, C.J., concurring) (citing American Pipe for the

proposition that “[t]he authority of federal courts, sitting as a chancellor, to toll a statute of

limitations on equitable grounds is a well-established part of our jurisprudence”).

The courts that have considered the issue, moreover, have reached conflicting

conclusions. 3 The Courts of Appeals for the Federal Circuit and the Tenth Circuit have rejected

the contention that American Pipe recognizes a form of equitable tolling, see Stone Container

3
The question whether American Pipe tolling is an equitable or legal concept often, although not
exclusively, arises when courts consider whether it applies to statutes of repose. Because statutes
of repose—unlike statutes of limitation—are not subject to equitable tolling, see Lampf, Pleva,
Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350 (1991), courts generally agree that
American Pipe tolling may apply to statutes of repose only if it is a legal concept implicit in Rule
23, as opposed to an exercise of a court’s equitable power.
7
Corp. v. United States, 229 F.3d 1345 (Fed. Cir. 2000) and Joseph v. Wiles, 223 F.3d 1155,

1166-1168 (10th Cir. 2000), and district courts in the First, Third, and Ninth Circuits have

arrived at the same conclusion, see Arivella v. Lucent Techs., Inc., 623 F. Supp. 2d 164 (D. Mass.

2009); In re Merck & Co., Inc. Sec., Derivative & Erisa Litig., Civ. No. 05-1151, 2012 WL

6840532, *4-5 (D.N.J. Dec. 20, 2012); and Maine State Retirement System v. Countrywide

Financial Corp., 722 F. Supp. 2d 1157, 1166 (C.D. Cal. 2010).

On the other side of the split, district courts in the Fourth, Fifth, Seventh, and Eleventh

Circuits have treated American Pipe as an equitable tolling doctrine. See Wade v. Danek

Medical, Inc., 182 F.3d 281 (4th Cir. 1999); Vaught v. Showa Denko K.K., 107 F.3d 1137, 1146

(5th Cir. 1997); Ottaviano v. Home Depot, Inc., USA, 701 F. Supp. 2d 1005, 1012 (N.D. Ill.

2010); Sacred Heart Health Sys., Inc. v. Humana Military Healthcare Servs., Inc., Civ. No. 3:07-

62, 2008 WL 2385506, *2 (N.D. Fla. June 9, 2008). District courts in the Second Circuit have

reached conflicting conclusions. Compare Footbridge Ltd. Trust v. Countrywide Financial

Corp., 770 F. Supp. 2d 618 (S.D.N.Y. 2011) (concluding that American Pipe is an equitable

tolling doctrine); with Int'l. Fund Mgmt. S.A. v. Citigroup Inc., 822 F.Supp.2d 368, 381-82

(S.D.N.Y. 2011) (concluding that American Pipe is a legal tolling doctrine).

Although cases on both ends of this divide provide helpful guidance, the Court need not

choose sides for purposes of resolving the present motion. However labeled, American Pipe

tolling does not require that the Court consider on a case-by-case basis whether the plaintiff has

pursued his or her claims with requisite diligence. Rather, the rule announced in American Pipe

was a categorical one: the Supreme Court held that “the commencement of a class action

suspends the applicable statute of limitations as to all asserted members of the class who would

have been parties had the suit been permitted to continue as a class action.” American Pipe, 414

8
U.S. at 554. The Court, moreover, applied the tolling rule in the same manner that Plaintiff

contends that it should apply here. There, because “the class suit brought by Utah was filed with

11 days yet to run in the period as tolled,” the statute of limitations for would-be intervenors

continued to run for “11 days after the entry of the order” establishing that the plaintiffs could

not proceed as members of the class. Id. at 561. Although the three-year delay in bringing the

present action is very different than an eleven-day delay, the Supreme Court simply counted the

days that remained on the statute of limitations and did not hint at the possibility that a further

equitable inquiry might be necessary. The Court’s decision in Crown, Cork & Seal was equally

categorical and mechanical, concluding that “[o]nce the statute of limitations has been tolled, it

remains tolled for all members of the putative class until class certification is denied,” and that

the plaintiff was entitled to the “full” 90-day statute of limitations to bring his suit. Crown, Cork

& Seal Co. v. Parker, 462 U.S. 345, 354 (1983).

American Pipe, moreover, expressly declined to incorporate the type of case-by-case

equitable considerations that Defendants propose. To the contrary, the Court held that tolling

applies even where plaintiffs were unaware of the existence of the class action, American Pipe,

414 U.S. at 551; see also Tosti v. Los Angeles, 754 F.2d 1485, 1488-89 (9th Cir. 1985), and thus

could not have relied on its pendency to justify their delay in filing. As the Ninth Circuit

explained, a “different rule would require onerous factual disputes about a particular individual’s

motive for not bringing her own lawsuit.” Tosti, 754 F.2d at 1489. Rather than rely on

individual equities, the Supreme Court focused on the nature of Rule 23 and the fact that

“potential class members are” treated as “passive beneficiaries of the action brought in their

behalf” until the court “order[s] that the suit shall or shall not proceed as a class action,”

American Pipe, 414 U.S. at 552. “[T]he filing of a timely class action complaint,” moreover,

9
“commences the action for all members of the class as subsequently determined,” id. at 550, and

thus serves the purpose of statutes of limitations by placing the defendants on notice “not only of

the substantive claims being brought against them, but also of the number and generic identities

of the potential plaintiffs who may participate in the judgment.” Id. at 555. None of this

suggests that the Supreme Court intended that application of the American Pipe rule vary based

on the individual equities invoked by each former, putative class member. To the contrary, as

the Court of Appeals for the Fourth Circuit has explained, the American Pipe court was “highly

sensitive to the need for certainty of a bright-line rule.” Bridges v. Department of Maryland

State Police, 441 F.3d 197, 212 (4th Cir. 2006).

Two recent decisions in this district have taken this same approach. See Mouzon v.

Radiancy, Inc., Civ. No.14-722, 2015 WL 3823978, at *4 (D.D.C. June 19, 2015) (holding “on

April 1, 2015, the day after the Court dismissed this action, all unnamed putative class members

were in the same position with respect to the statute of limitations as they were on April 25,

2014” because of American Pipe tolling); Scott v. District of Columbia, Civ. No. 14-817, 2015

WL 1623847, at *3 (D.D.C. Apr. 9, 2015) (“Plaintiffs had 112 days remaining in their three year

statute of limitations period. Therefore, once tolling ceased, they had 112 days in which to file

their claims.”); but see Vine v. Republic of Iraq, 459 F. Supp. 2d 10, (D.D.C. 2006) (treating

American Pipe tolling as subject to reasonableness requirements of equitable tolling), rev’d on

other grounds, Simon v. Republic of Iraq, 529 F.3d 1187, 1194-1196 (D.C. Cir. 2008), rev’d,

Republic of Iraq v. Beaty, 556 U.S. 848 (2009). Other courts have also described the mechanics

of American Pipe tolling in a similar manner. See, e.g., Bridges, 441 F.3d at 212 (explaining that

“[t]he American Pipe rule provides a narrow exception to the fixed statutes of limitations,

suspending their running from the date a class action is filed until the date it is denied” and that

10
the “statute of limitations resumed running” when court decertified class); Yang v. Odom, 392

F.3d 97 (3d Cir. 2004) (holding that because “only two days [of a one-year statute of limitations

period] had elapsed between the start of the limitations period and the filing” of a class action

complaint, individual plaintiffs’ complaints filed six months after the denial of class certification

were timely); Sawyer v. Atlas Heating and Sheet Metal Works, Inc., 642 F.3d 560, 561 (noting

that district court’s determination that American Pipe tolling applied “meant that more than six

months remained in the limitations period when [the plaintiff] filed suit.”). As one commentator

has observed, after a district court issues an order denying class certification, plaintiffs “must

timely prosecute their claims upon issuance of the order within whatever time remains under the

limitations period.” 1 McLaughlin on Class Actions § 3:15 (11th ed.).

Under American Pipe, the filing of a class action thus functions as a pause button for the

claims of all purported class members. The statute of limitations ceases to run for the entire

period from the day a class action is filed until the class is decertified or the court declines to

certify the class, after which it runs for the full number of days that were remaining on the statute

when the class action was commenced. Because Plaintiff’s claims were covered by a class

action that was filed before those claims accrued, and because Plaintiff’s claims were filed

within three years of the decertification of the class, the claims are not barred by the three-year

statute of limitations. The facts of this case test the limits of American Pipe tolling, but the Court

concludes that Defendants’ statute of limitation defense fails. The Motion to Dismiss Plaintiff’s

claims as time-barred is, therefore, DENIED.

B. Standing And The 2005 Amendments To The CMPA

Defendants next argue that even if Plaintiff’s claims are not time-barred, to the extent

Plaintiff seeks prospective equitable or declaratory relief, her claims should be dismissed

11
because Plaintiff has not demonstrated any real or immediate threat of future harm and,

accordingly, lacks standing to pursue those claims. See Dkt. 4 at 5 (citing Los Angeles v. Lyons,

461 U.S. 95, 111 (1983), Haase v. Sessions, 835 F.2d 902, 911 (D.C. Cir. 1987) (extending

Lyons standard to request for prospective declaratory relief)).

The crux of Defendants’ argument is that the CMPA was substantially amended on April

5, 2005, and that the 2005 amendments resolved the issues that are the subject of Plaintiff’s

complaint. The relevant amendments to the CMPA require that the District provide written

notice of proposed modifications to disability benefits awards, including documentation

supporting the decision, see D.C. Code § 1-623.24(d)(1)(A); allow beneficiaries 30 days to

contest any proposed modification, id. § 1-623.24(d)(1)(B); and prohibit the District from

terminating or reducing benefits during that 30 day period or while any objections are reviewed,

id. §1-623.24(d)(3). Defendants argues that Plaintiff challenges only the pre-2005 CMPA, see

Dkt. 1 ¶ 2, and that she “does not allege any injury caused by the post-2005 statutory framework

or any threat whatsoever that she may be injured in the future by existing law.” Dkt. 4 at 7.

In opposition, Plaintiff maintains that the modifications to the CMPA did not address all

of her concerns and that the District’s procedures remain inadequate because the CMPA “allows

the employer the right to make a decision on disability without taking any testimony or allowing

the employee access to the decision maker.” Dkt. 5 at 4. Plaintiff does not cite any cases in

support of her argument, nor does she explain how she is likely to suffer future harm from the

CMPA, as amended. Instead, she merely expresses the “belie[f] that the changes were not

sufficient and prays her day in Court to make this argument.” Dkt. 5 at 4.

Plaintiff, as the “party invoking federal jurisdiction,” “bears the burden of establishing”

that the requirements of constitutional standing have been met. Lujan v. Defenders of Wildlife,

12
504 U.S. 555, 561 (1992). To meet that burden, Plaintiff must demonstrate that she (1) suffered

an “injury in fact”—that is, “an invasion of a legally protected interest which is (a) concrete and

particularized, and (b) ‘actual or imminent,’ not ‘conjectural’ or ‘hypothetical’”; (2) a “causal

connection between the injury and the conduct complained of”; and (3) that it is “likely” that the

injury would be “redressed by a favorable decision.” Id. at 560-61. “Where, as here, [the]

plaintiff[ ] seek[s] to enforce procedural (rather than substantive) rights, [she] must establish that

‘the procedures in question are designed to protect some threatened concrete interest of [hers]

that is the ultimate basis of [her] standing.’” NB v. District of Columbia, 682 F.3d 77, 81-82

(D.C. Cir. 2012). If the plaintiff can establish that the law creates a procedural right that protects

her “concrete interests,” the imminence and redressability requirements are relaxed, id. at 82, but

not “wholly eliminate[ed].” Center for Law and Educ. v. Dep’t of Educ, 396 F.3d 1152, 1157

(D.C. Cir. 2005).

In order to meet her burden of establishing standing to seek prospective relief, Plaintiff

must show that she is “‘suffer[ing] an ongoing injury’” or that she “‘face[s] an immediate threat

of injury.’” Id. at 82 (quoting Dearth v. Holder, 641 F.3d 499, 501 (D.C. Cir. 2011)). Because

the parties have not submitted any evidentiary material relating to standing, the Court must

assess whether the complaint contains factual allegations that—if accepted as true and drawing

all inferences in Plaintiff’s favor—would establish a sufficient threat of injury. Id. As explained

below, the Court concludes that, even liberally construed, the complaint as currently drafted fails

this test.

Although the CMPA was amended almost nine years before Plaintiff brought this action,

the complaint contains no mention of the amended version of the CMPA that now governs.

Indeed, the complaint appears to go out of its way to limit the facial and as-applied challenges to

13
the CMPA to the pre-2005 version of the law. The first time it references the CMPA, the

complaint clarifies that “all references to the District of Columbia Code Citation[s] are for the

time frame relevant to this complaint,” Dkt. 1 ¶ 2—presumably between October 1988 and May

2003, which are the dates included in the factual allegations of the complaint, id. ¶¶ 25-29.

Moreover, unlike in NB v. District of Columbia, 682 F.3d at 82, the complaint contains no

allegation of any ongoing or future injury. At most, it alleges that Plaintiff’s benefits were

improperly terminated in May 2003, almost 11 years before the complaint was brought. It does

not allege that Plaintiff continued to suffer from any disability that time or that she is likely to

seek disability benefits at any time in the future.

Giving Plaintiff the benefit of the doubt, one might argue that the future application of the

CMPA is necessarily implicated in this case, since she alleges that she was denied due process in

2003 and, if she were to prevail on that claim, she might be entitled to further administrative

review of whether her benefits should have been terminated in 2003. A question might then

arise regarding what process she is due for purposes of that further review. At this point,

however, the Court cannot assess whether Plaintiff is seeking what would, in essence, be a

remand to the Agency for further consideration of whether she was entitled to continued benefits

in 2003. Moreover, to the extent Plaintiff might seek to premise her standing to seek prospective

relief on that theory, it appears too remote and speculative to support standing at this point in the

process. Indeed, the issue would only arise if the Court were to agree that Plaintiff was denied

due process in 2003; the Court were to further conclude that the proper remedy was not an award

of damages, but a remand to the Agency; the Agency were to apply constitutionally-deficient

procedures following a determination by the Court that the procedures applied in 2003 failed to

satisfy due process; and the Agency were to deny Plaintiff’s claim for benefits. Although the

14
problem is perhaps better cast as one of ripeness, the Court concludes that it would be premature

to adjudicate such a speculative dispute.

Thus, as currently cast, the Court cannot conclude that the complaint—even as liberally

construed—alleges facts that would demonstrate that Plaintiff has standing to seek prospective

relief. This does not call into question the Court’s jurisdiction to resolve Plaintiff’s challenge to

the revocation of her benefits in May 2003 and, if Plaintiff is successful, to provide appropriate

relief for that violation. Moreover, if Plaintiff is able to allege facts demonstrating that she faces

a prospective, concrete injury, she may file an amended complaint within 14 days of this

decision.

Defendant’s motion to dismiss Plaintiff’s claims for prospective relief and to challenge

the amended version of the CMPA is, accordingly, GRANTED without prejudice.

C. D.C. Code § 12-309’s Notice Provision

Defendants also argue that to the extent Plaintiff seeks unliquidated damages based on

the District’s alleged violation of the pre-2005 version of the CMPA, that claim must be

dismissed for failure to comply with the notice requirement of D.C. Code § 12-309. Section 12-

309 provides:

an action may not be maintained against the District of Columbia for
unliquidated damages to person or property unless, within six months after the
injury or damage was sustained, the claimant, his agent, or attorney has given
notice in writing to the Mayor of the District of Columbia of the approximate
time, place, cause, and circumstances of the injury or damage.

D.C. Code § 12-309. 4

4
Section 12-309 applies only to claims arising under District of Columbia law, and accordingly
does not apply to Plaintiff’s constitutional claims. See Brown v. United States, 742 F.2d 1498,
1509-10 (D.C. Cir. 1984).
15
 In response, Plaintiff argues—with little elaboration—that her claims for damages under

D.C. law should not be dismissed for failure to comply with the six-month notice provision for

the same reason that her claims should not be dismissed as untimely. She asserts that “[t]he

same arguments concerning full knowledge of the Defendant as to the claims of the Plaintiff are

no differen[t] for the statute of limitations defense,” and that she “could not and did not have to

give the government any notice beyond that required for the prosecution of the Lightfoot case.”

Dkt. 5 at 4. Plaintiff cites no case law in support of this contention and does not specify whether

or how class counsel in the Lightfoot action complied with D.C. Code § 12-309.

The Plaintiff bears the burden of proving compliance with Section 12-309. See Sheikh v.

D.C., __F. Supp. 3d __, 2015 WL 58830 at *12 (D.D.C. Jan. 5, 2015). Moreover, because the

Section 12-309 notice requirement is a condition on a waiver of sovereign immunity, it must be

strictly construed in favor of the District. See Washington Gas Light Co. v. Pub. Serv. Comm’n,

61 A.3d 662, 676 (D.C. 2013); see also, e.g., Snowder v. District of Columbia, 949 A.2d 590,

600 (D.C. 2008); Day v. District of Columbia Dep’t of Consumer & Regulatory Affairs, 191 F.

Supp. 2d 154, 158 (D.D.C. 2002).

As the Court of Appeals has held, notice by class counsel is at times sufficient to satisfy

Section 12-309, not only for named plaintiffs, but for all class members. Dellums v. Powell, 566

F.2d 216, 230 (D.C. Cir. 1977). Here, however, Plaintiff does not contend that class counsel (or

anyone else) filed a notice under Section 12-309 purporting to identify the circumstances relating

to the violation of the CMPA alleged in her complaint or any corresponding injury or damage.

Plaintiff’s D.C. law claim, moreover, is not substantively the same as any claim brought in the

Lightfoot class action; instead, it raises an entirely new challenge to the procedure, based on a

statutory provision that was not at issue in the Lightfoot litigation. Compare Dkt. 1 ¶ 9 (claim

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arising under D.C. Code §§ l-624.24(b)) with Lightfoot, Civ. No. 01-1484, 2007 WL 148777 at *1

(describing Lightfoot class action claims). And, although the Lightfoot class action did involve

one claim under D.C. law, there is no indication that the Lightfoot plaintiffs sought unliquidated

damages, which is the trigger for application of Section 12-309, for even that unrelated claim.

See, e.g., Lightfoot, 448 F.3d at 399 (discussing potential mootness of D.C. law claim and noting

that money damages would not be available for that claim). Because Plaintiff has not met her

burden of demonstrating compliance with Section 12-309, her claim for damages for the alleged

violation of D.C. law is DISMISSED.

D. Claims Against Individual Defendants

Finally, Defendants argue that the named officials “should be fully-excused, as any claim

against them in their official capacities is duplicative of claims against the District.” Dkt. 4 at 4.

Defendants contend that “[s]ummary dismissal of redundant official capacity actions is ‘the

overwhelming approach that has been taken by members of this Court, as well as the position

taken by other courts.’” Dkt. 4 at 8. In response, Plaintiff notes that she “believes that her

Complaint should be sustained as to these Defendants,” Dkt. 5 at 4, but provides no argument or

explanation why the Court should reach that result. She states, moreover, that she “stands ready,

willing and able to have [the claims against the officials] dismissed” if the Court concludes that

the officials’ inclusion is “unnecessary and inefficient to the prosecution” of this matter. Dkt. 5

at 5. Because Plaintiff provides no authority or argument in opposition to Defendants’ motion to

dismiss the individual defendants, the Court will treat the motion as conceded. See Hopkins v.

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Women’s Div., General Bd. of Global Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003).

Accordingly, Plaintiffs’ claims against the individual defendants are DISMISSED.5

III. CONCLUSION

For the foregoing reasons, it is hereby ORDERED that Defendants’ Motion to Dismiss,

Dkt. 7, is GRANTED in part and DENIED in part. Plaintiff’s claims for damages for violations

of D.C. law are DISMISSED. To the extent that Plaintiff seeks prospective relief or seek to

challenge the amended version of the CMPA, Plaintiff’s claims are DISMISSED without

prejudice. If Plaintiff is able to allege facts demonstrating that she faces a prospective, concrete

injury, she may file an amended complaint within 14 days of this decision. Plaintiff’s claims

against the individual defendants are DISMISSED.

It is SO ORDERED.

/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge

Date: July 24, 2015

5
In a footnote in Defendants’ reply brief, Dkt. 6 at 5, they assert that Plaintiffs’ claims are
barred by res judicata because Plaintiff was part of the certified class in the Lightfoot action
when Claim One was dismissed. Because this argument was raised only in a footnote in reply,
the Court will not address it at this time. Defendants, however, are free to raise it in an
appropriate motion.
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