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

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.

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
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 pretermination 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

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.

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 noticeand-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
6

3

The District contends that the third-party claims administrator

employs “best practices,” which it describes as the unwritten, industrystandard methods of weighing evidence and reaching an eligibility

determination. 

4

The Court’s suggested topics for rulemaking were as follows:

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
7

•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?

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
8

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.

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
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 pretermination 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-bycase 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.
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.

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
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

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). 

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
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

3

Even if the pre-termination procedures were deficient,

prospective relief appears out of the question in light of the posttermination 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.

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
7

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. 

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