Notice: This opinion is subject to formal revision before publication in the
Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify
the Clerk of any formal errors in order that corrections may be made
before the bound volumes go to press.
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 22, 2003 Decided July 25, 2003
No. 02-7032
3883 CONNECTICUT LLC,
APPELLANT
v.
DISTRICT OF COLUMBIA, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 00cv02453)
Roger J. Marzulla argued the cause for the appellant.
Nancie G. Marzulla was on the brief.
Donna M. Murasky, Assistant Corporation Counsel, Dis-
trict of Columbia, argued the cause for the appellee. Charles
L. Reischel, Deputy Corporation Counsel, District of Colum-
bia, was on the brief.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: GINSBURG, Chief Judge, and SENTELLE and
HENDERSON, Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: 3883 Connecti-
cut LLC, a limited liability corporation wholly owned by
Clark Tilden LLC and CEI, Inc. (Clark), brought suit against
the District of Columbia (District) claiming that the District’s
issuance of a stop work order (SWO) that halted Clark’s
construction of a 168–unit apartment building violated its
procedural due process and equal protection rights. The
district court dismissed the suit, holding that Clark lacked a
constitutionally protected property interest in the building
permits the District had issued and that its equal protection
claim was unripe. 3883 Conn. LLC v. District of Columbia,
191 F. Supp. 2d 90, 95 (D.D.C. 2002) (mem.). We affirm the
district court but on different grounds, concluding that, al-
though Clark had a property interest in the permits, the
process afforded Clark was adequate; on Clark’s equal pro-
tection claim, we affirm the grant of summary judgment to
the District because the claim fails as a matter of law on two
of its elements.
I.
A.
The District of Columbia Construction Codes, D.C. MUN.
REGS. tit. 12A, §§ 101.0 et seq. (Construction Codes), authorize
the issuance of preliminary permits to a builder to begin
limited activities on a building site while approval of construc-
tion plans for the complete project pends before the District
Building and Land Regulation Administration (BLRA). Id.
§ 108.1–.2. Pursuant to these provisions, Clark sought and
obtained five separate permits to begin the sheeting, shoring,
excavation, foundation construction and underpinning of exist-
ing structures in preparation for its construction of the nine-
story apartment building at 3883 Connecticut Avenue, North-
west. In order to obtain the five preliminary permits, Clark
submitted inter alia an Environmental Impact Screening
3
Form (EISF), describing the nature of the site and the
proposed project, to District authorities—in particular, to the
District Department of Health, Environmental Administra-
tion (DOH)—which determines whether a comprehensive,
detailed Environmental Impact Statement (EIS) is required
by the Environmental Protection Act (DCEPA), D.C. CODE
§§ 8–109.01 et seq., before a building project can proceed.
D.C. MUN. REGS. tit. 20, § 7204.1–.4. Based on Clark’s EISF,
DOH determined that an EIS was not required.1 With its
five preliminary permits in hand (although full project ap-
proval was still pending), on July 31, 2000,2 Clark began work
at the 3883 Connecticut Avenue site. The next day, oppo-
nents of the project calling themselves Friends of Tilden Park
filed suit in Superior Court seeking to enjoin construction.
They alleged that the EISF Clark had submitted contained
material errors and omissions. The court found that there
were discrepancies in Clark’s initial EISF and issued a
temporary restraining order (TRO). The TRO lasted only
two days and immediately upon its dissolution on August 3,
BLRA issued a SWO halting work on the project ‘‘until
compliance with all applicable District of Columbia law and
regulations TTT can be confirmed.’’ Notice of Stop Work
Order, Aug. 3, 2000, JA 44–46.
On August 9, Clark appealed the SWO to the BLRA
Administrator, arguing, among other things, that it was inval-
id under District law and should be rescinded because the
errors on the EISF were immaterial. Two days later, the
Administrator responded, denying Clark’s appeal and uphold-
ing the SWO because he questioned whether the preliminary
permits were based on inaccurate site information contained
in Clark’s EISF. Clark submitted a revised EISF on August
16, disclosing for the first time that mature trees were located
1 Clark in fact obtained the five permits before DOH made its
determination. Once it obtained them, Clark was allowed to begin
the preliminary work while the EIS determination was pending,
although Clark did no work at the site until DOH decided no EIS
was necessary.
2 All events occurred in 2000 unless otherwise noted.
4
on the property, a stream ran near the property and an
adjacent building was listed on the National Register of
Historic Places. Clark then appealed the BLRA Administra-
tor’s decision to the Director of the Department of Consumer
and Regulatory Affairs (DCRA), BLRA’s supervising agency.
Although the Director did not act on Clark’s appeal, on
September 7, DCRA did order Clark to submit more detailed
environmental information regarding several potential im-
pacts of its proposed project—including on traffic, vegetation
and trees, storm water, soil erosion and groundwater control
so that it could reconsider whether an EIS was required
Clark submitted the requested information and, on October 3,
renewed its request that the Director review the SWO.
Again the Director failed to respond. On October 13, Clark
filed the instant suit, initially seeking injunctive relief only.
Meanwhile DCRA requested DOH and other District agen-
cies to review Clark’s revised EISF. DOH officials reviewed
Clark’s revised EISF and the supplemental materials Clark
had submitted and visited the 3883 Connecticut Avenue site.
DOH was concerned with surface water problems and recom-
mended to DCRA that it require Clark to prepare a mitiga-
tion plan. Clark met with DOH and developed a plan that
resolved the issue; on November 22, BLRA rescinded the
SWO and, four days later, issued a building permit for Clark’s
entire project. Clark then amended its complaint to seek
compensatory and punitive damages for the four-month inter-
ruption of its project.
B.
The District moved for summary judgment and the district
court dismissed both of Clark’s claims. It dismissed Clark’s
due process claim because, it concluded, Clark lacked a
property interest in the five preliminary permits suspended
by the District’s SWO. 3883 Conn., 191 F. Supp. 2d at 93–95.
The court read our statement in Tri-County Industries, Inc.
v. District of Columbia, 104 F.3d 455, 458 (D.C. Cir. 1997),
rejecting the notion ‘‘ ‘that an agency deprives an applicant of
property whenever it backtracks on a prior favorable finding
on one of [the approvals preliminary to issuance of a building
5
permit] independently of withdrawal of the permit itself,’ ’’ to
mean that the District’s approval of the five preliminary
permits issued to Clark did not confer any property rights on
Clark. 3883 Conn., 191 F. Supp. 2d at 93 (quoting Tri-
County, 104 F.3d at 458) (internal quotations omitted). Ac-
cording to the district court, Clark’s only property interest
lay in ‘‘the real building permit,’’ i.e., the one ultimately
granted on November 27. 3883 Conn., 191 F. Supp. 2d at 93.
Permits for preliminary work, the court said, were merely
‘‘ ‘steps toward the issuance of a building permit’ ’’and there-
fore, under Tri-County, not property. Id. at 93.
As other courts have done, the district court applied the
property interest test set forth in Board of Regents v. Roth,
408 U.S. 564, 569 (1972), to land-use regulation, concluding
that Clark lacked ‘‘ ‘a legitimate claim of entitlement,’ ’’ 3883
Conn., 191 F. Supp. 2d at 93–94 (quoting Roth, 408 U.S. at
577), and therefore had no property interest in the prelimi-
nary permits because ‘‘ ‘significant discretion [is] conferred
upon the local agency’ ’’ under District law. 3883 Conn., 191
F. Supp. 2d at 94 (quoting Gardner v. City of Baltimore, 969
F.2d 63, 68 (4th Cir. 1992)). The court characterized the
permits at issue as ‘‘partial permits’’ under the Construction
Codes, in particular, D.C. MUN. REGS. tit. 12A, § 108.2, which
provides:
the code official is authorized to issue a partial
permit for the construction of foundations or any
other part of a building or structure before the
entire plans and specifications for the whole building
or structure have been submitted, provided adequate
information and detailed statements have been filed
complying with all pertinent requirements of the
Construction Codes.
3883 Conn., 191 F. Supp. 2d at 94 (quoting D.C. MUN. REGS.
tit. 12A, § 108.2) (emphasis added). Because ‘‘[t]he language
of this section is discretionary,’’ the court said, it created no
property interest in the permits. 3883 Conn., 191 F. Supp.
2d at 94.
6
The district court also dismissed Clark’s equal protection
claim, explaining that Clark’s assertion that its rights were
violated because ‘‘the District applied the requirements of the
DCEPA to this project alone’’ boiled down to a complaint that
the District had required Clark to prepare an EIS. 3883
Conn., F. Supp. 2d at 95. But because the District had not in
fact required Clark to submit an EIS, it concluded, Clark’s
claim was premature. Id. Clark then filed this appeal.
II.
We review the district court’s grant of summary judgment
de novo. Wash. Legal Clinic for the Homeless v. Barry, 107
F.3d 32, 35 (D.C. Cir. 1997). Summary judgment is appropri-
ate if ‘‘ ‘there is no genuine issue as to any material fact and
TTT the moving party is entitled to a judgment as a matter of
law.’ ’’ Morgan v. Fed. Home Loan Mortgage Corp., 328
F.3d 647, 650 (D.C. Cir. 2003) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247 (1986)). A dispute is ‘‘genuine’’
only ‘‘if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party,’’ Morgan, 328 F.3d
at 650 (internal quotations omitted), and a moving party is
‘‘ ‘entitled to a judgment as a matter of law’ ’’ if the nonmov-
ing party ‘‘ ‘fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.’ ’’ Id.
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
A.
We determine whether the interest at issue here consti-
tutes property protected by the Fifth Amendment under
Roth, 408 U.S. at 577, which declared that ‘‘[p]roperty inter-
ests TTT are not created by the Constitution[,] [but] are
created and their dimensions are defined by existing rules or
understandings that stem from an independent source such as
state law.’’ See also Gardner, 969 F.2d at 68; George Wash.
Univ. v. District of Columbia, 318 F.3d 203, 205–08 (D.C. Cir.
2003) (considering, but finding it unnecessary to decide
whether to adopt Roth approach); Bituminous Materials v.
7
Rice County, 126 F.3d 1068, 1070 (8th Cir. 1997); RRI Realty
Corp. v. Village of Southampton, 870 F.2d 911, 917 (2d Cir.),
cert. denied, 493 U.S. 893 (1989); cf. George Wash. Univ., 318
F.3d at 212–13 (Henderson, J., concurring). In adopting the
analytical approach of Gardner and similar cases, however,
the district court overlooked a critical distinction between
those cases and this one—namely, in those cases the question
was whether an applicant for a permit had a property
interest therein whereas, here, we must decide whether the
holder of a permit has a property interest therein. Gardner
and George Washington University focus on an official’s
discretion to approve an application in determining whether
the applicant has ‘‘more than a unilateral expectation’’ in the
permit it seeks while we must determine whether the permit
holder has ‘‘more than a unilateral expectation’’ in the per-
mit’s continued effect. Therefore our inquiry focuses on the
official’s discretion to revoke or suspend the permit. Lopez v.
FAA, 318 F.3d 242, 249 (D.C. Cir. 2003). In Lopez, the court
considered whether the plaintiff had a property interest in his
continued designation by the Federal Aviation Administration
(FAA) as a ‘‘Designated Engineering Representative’’ (DER).
Id. at 245. To answer the question, the court did not examine
the FAA’s discretion to make the designation in the first
place, but rather its discretion to revoke it. Because the
FAA had the authority to ‘‘rescind [this] delegation TTT at
any time for any reason’’ under the applicable regulation, we
held that the plaintiff had no constitutionally protected prop-
erty interest in his status as a DER. Id. at 249; see Barry v.
Barchi, 443 U.S. 55, 64 n.11 (1979) (plaintiff had property
interest in horse trainer’s license because under state law
license could ‘‘not be revoked or suspended at the discretion
of the racing authorities’’); see also Fried v. Hinson, 78 F.3d
688, 692 (D.C. Cir. 1996) (no property interest in continued
designation as pilot examiner where status could be freely
rescinded); Doran v. Houle, 721 F.2d 1182, 1184–86 (9th Cir.
1983) (no property interest in permit issued to veterinarian to
conduct brucellosis tests on cattle ‘‘held at the sufferance and
will of the officials charged with administering the permit
program’’), cert. denied, 466 U.S. 950 (1984).
8
Sections 108.9 and 117.1 of the Construction Codes, respec-
tively, define District authorities’ discretion to revoke and
suspend permits through a stop work order.3 D.C. MUN.
REGS. tit. 12A, §§ 108.9, 117.1. An examination of these two
sections reveals that discretion to terminate or suspend work
already allowed by the permits is substantially limited. Un-
der section 108.9, a ‘‘code official is authorized to revoke a
permit or approval issued under the Construction Codes, for
any of the following [5] conditions:’’ (1) ‘‘a false statement or
misrepresentation of fact in the application TTT that substan-
tively affected the approval’’; (2) the proposed construction
does not comply with the Construction Codes, the permit, or
the approved plans; (3) issuance of a citation for violation(s)
of the Construction Codes threatening health and safety; (4)
at least two SWOs have been ‘‘posted’’ and not complied with;
and (5) the contractor’s license has terminated. D.C. MUN.
REGS. tit. 12A, § 108.9. Section 117.1 authorizes the issuance
of a SWO suspending a permit if ‘‘work on any building or
structure is being performed contrary to the provisions of the
Construction Codes or in an unsafe and dangerous manner.’’
Id. § 117.1.
We believe both of these provisions indicate that Clark has
a property interest in the continued effect of the five permits.
Revocation is limited to the five circumstances listed and
3 In their briefs the parties follow the district court’s analysis
and thus focus only on the provisions that authorize the issuance of
building permits under the Construction Codes. Clark argues that
the permits were issued under section 108.1, which governs ‘‘per-
mits,’’ and, according to Clark, limits the issuing official’s discretion
sufficiently to create a property interest. The District contends the
permits were issued under section 108.2, which governs ‘‘partial
permits,’’ and, the District says, vests sufficient discretion in the
official to create no property interest. The district court deter-
mined that Clark’s permits were ‘‘partial permits’’ issued pursuant
to section 108.2. 3883 Conn., 191 F. Supp. 2d at 94. We need not
decide which provision applies, however, because the revocation and
suspension provisions of the Construction Codes do not distinguish
between ‘‘permits’’ under section 108.1 and ‘‘partial permits’’ under
section 108.2. D.C. MUN. REGS. tit. 12A, §§ 108.9, 117.1.
9
issuance of a SWO depends on whether work is performed
contrary to the provisions of the Construction Codes or
unsafely. Id. §§ 108.9, 117.1. Discretion is not unfettered as
in Lopez, where the FAA could ‘‘rescind [this] delegation [as a
DER] TTT at any time for any reason,’’ Lopez, 318 F.3d at
249, but instead is constrained sufficiently to give Clark an
expectation in the continued effect of the permits—and there-
fore a property interest in them. Cf. George Wash. Univ.,
318 F.3d at 208–09 (property interest where official’s discre-
tion to issue ‘‘special exception’’ was based on finding that use
was ‘‘not likely to become objectionable to neighboring prop-
erty.’’).
Tri-County, on which the district court relied, does not
compel a different conclusion. Our holding there that a
permit applicant had no property interest in the District’s
waiver of the EIS requirement because the waiver was ‘‘a
mere step toward issuance of a building permit’’ does not fit
the permits issued here. 3883 Conn., 191 F. Supp. 2d at 93
(quoting Tri-County, 104 F.3d at 458). The Tri-County
waiver, unlike the permits, did not affirmatively authorize the
holder to do anything. Tri-County, 104 F.3d at 458 (‘‘The
waiver was simply an administrative finding that no more was
required by way of satisfying [the environmental review]
requirement for issuance of the building permit.’’). The five
preliminary permits are, on their own, authorizations to act—
authorizations with which the District could not interfere
without affording Clark adequate process.
B.
Our finding of a property interest, however, does not alter
the disposition of Clark’s due process claim because the
procedures available to Clark to challenge the SWO afforded
it due process. Under the Construction Codes, Clark was
entitled to challenge the SWO pursuant to an expeditious
appeal process with three levels of review. D.C. MUN. REGS.
tit. 12A, § 122.1.2. Specifically, Clark was entitled to first
seek review of the SWO by a District ‘‘reviewing official,’’
here, the BLRA Administrator, who was required to, and did,
10
render a decision within three working days. Id. If dissatis-
fied, Clark could, and did, seek a second review from the
Director of the DCRA, who also must render a decision
within three working days. Id. Finally, if the Director
denied the request or failed to act timely, Clark could appeal
to the District Board of Appeals and Review (BAR). Id.4
We decide whether these provisions adequately protected
Clark’s interest in the permits under Mathews v. Eldridge,
424 U.S. 319 (1976), which requires the court to consider:
first, the private interests that will be affected by
the official action; second, the risk of an erroneous
deprivation of such interest through the procedures
used, and the probable value, if any, of additional or
substitute procedural safeguards; and finally, the
Government’s interest, including the function in-
volved and the fiscal and administrative burdens
that the additional or substitute procedural require-
ments would entail.
Mathews, 424 U.S. at 335. Clark maintains that under
Mathews the procedure to challenge a SWO is constitutionally
infirm because it does not guarantee a hearing before the
SWO can issue. Clark urges that it has a substantial interest
in the continued effect of its permits—it incurred construction
delay costs caused by the SWO—and therefore the risk of
deprivation must be minimized. Therefore, according to
Clark, due process mandates an adversarial hearing to test
the validity of a SWO before it issues.
We agree with Clark that the permit holder has a substan-
tial interest in the continued effect of the permit and in
proceeding with a project without delay. See Tri-County, 104
F.3d at 462.5 At the same time, we recognize the District’s
4 Clark sought review at the first two levels. Although the
Director twice failed to render a decision, Clark did not seek BAR
review.
5 Tri-County, in addition to discussing whether the plaintiff had
a property interest in the waiver of an EIS requirement, considered
whether a district official’s ‘‘oral order of suspension’’ of a building
11
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. See
D.C. MUN. REGS. tit. 12A, § 117.1. Moreover, the regulations
provide for expedited post-deprivation review before two Dis-
trict officials and then immediate appeal to the District Board
of Appeals and Review—a procedure that reduces the risk of
protracted harm from a wrongly-issued order. D.C. MUN.
REGS. tit. 12A, § 122.1.2. We therefore conclude that these
protections meet the requirements of due process. Cokinos
v. District of Columbia, 728 F.2d 502, 503 (D.C. Cir. 1983)
(car towing without pre-deprivation hearing valid in light of
prompt post-deprivation hearing); cf. Dixon v. Love, 431 U.S.
105 (1977) (driver’s license may be summarily suspended
before hearing where record showed driver had extraordi-
narily poor driving record).
C.
Finally, we consider Clark’s assertion that the district court
erred in dismissing its equal protection claim. Clark main-
tains the district court mistakenly characterized its claim to
be that it was required to submit an EIS when, in fact,
Clark’s claim is that the District based the SWO on the
expectation that an EIS would be necessary.
Even if the district court mistook the thrust of Clark’s
claim and therefore concluded Clark’s claim was unripe be-
cause no EIS had been required, we agree with the district
permit violated procedural due process. Tri-County, 104 F.3d at
460. In that case, the acting DCRA Director announced during a
public meeting the summary suspension of a building permit based
on another official’s inaccurate representation. Id. at 457. We
analogized that action to the issuance of a SWO because the two
have similar effects, and held that the ‘‘oral order of suspension’’
violated due process because it was not based on ‘‘formal evidence,’’
id., and the only review was by the Board of Appeals and Review—
a single-step appeal process that did not guarantee prompt resolu-
tion. Id. at 460–62.
12
court’s decision. Summary judgment against Clark was ap-
propriate because Clark failed to make a sufficient showing
regarding two essential elements of its ‘‘class of one’’ equal
protection claim: (1) disparate treatment of similarly situated
parties (2) on no rational basis. Village of Willowbrook v.
Olech, 528 U.S. 562, 564 (2000) (‘‘Our cases have recognized
successful equal protection claims brought by a ‘class of one,’
where the plaintiff alleges that she has been intentionally
treated differently from others similarly situated and that
there is no rational basis for the difference in treatment.’’);
see Morgan, 328 F.3d at 650. Clark showed only that the
District had never before required an EIS for an apartment
building project. Second Declaration of Francis J. Coen, Oct.
30, 2000 at ¶ 5, JA 120. That showing said nothing about
what requirements the District had imposed upon other pro-
jects before ultimately determining no EIS was required,
which was Clark’s situation. Nor does that showing suggest
that the District targeted Clark without a legitimate reason.
Clark’s claim all along has been that the District subjected
the project to a more probing analysis than others because of
local opposition; but there is nothing unusual or untoward in
local government officials’ responsiveness to public opinion.
Cf. Bryan v. City of Madison, 213 F.3d 267, 276 (5th Cir.
2000) (‘‘[I]n a democratic republic, responding to the voice of
the public is expected and is not, standing alone, a malevolent
motive for selective enforcement purposes.’’) (mayor’s leader-
ship in opposition to plaintiff’s construction of apartment
complex in response to community opposition not improper).
Therefore, Clark’s equal protection claim was properly dis-
missed.
For the foregoing reasons, we affirm the judgment of the
district court.
So ordered.