JAMES WINSTE AD, et al. ,

P laintif fs,
v. THE DIS TRICT OF COLUM BIA, et al. , Defendan ts. UNITED STAT ES DIS TRICT COURT

F OR THE DIS TRICT OF COLUM BIA

Civ. A. No. 04-887 ( JMF )

MEMORAN DUM OP INION This case was re fer

red to me f

or all purpose s including tria l. Currently pendingbefor e me is Plainti ffs [sic] (Georg e Morg an, Juanita Irving , J ames Winstead, L ouis Bea le, Patricia Newby , Sheila Owens a

nd Mary Waley ) Motion for Motion for [sic] R econside ration of the J anuar y 26, 2009 Orde r (“ Plains. Mot.”) [#81] . For the re asons stated he rein, the motion will be g rante d. As noted in previous opinions, plaintiffs are eleve n curr ent or for mer District of Columbi a employees a

nd the estate s of two forme r District of Columbia employ ees who have made c laims for disability compensation pursuant to the District of Columbia Comprehensive Merit Personnel Sy stem Act (“ CMPA”). Wins tead v. District of Columbi a, 538 F . Supp. 2d 104, 1 107 (D.D.C. 2008). D efe ndants are 1) the District of Columbia, 2) Ma yor Adria n Fe nty , 3)

2

On May 21, 2007, the estate s of two individual plaintiffs were substitut ed as pla intiffs. 1 Mayor Adria

n Fe nty was e lected in Nove mber, 2006, a nd there fore repla ces Ma

yor 2 Wil liams as a name d defe ndant.J ames Jacobs, Direc tor of the Of fice of Risk Manag ement. I d. Both F enty and Jacobs are sued 3 in their offic ial capa cities. I d. On Marc h 12, 2008, this Court 1) gr anted de fenda nts’ motion to dismiss as to plaintiffs’ § 1983 c laim that the CMPA was fac ially unconstitutional, 2) gr anted defe ndants’ motion to dism iss plaintiffs’ § 1985 claim that def endants c onspired to depr ive plaintiffs of due pr ocess, 3) g rante d defe ndants’ motion for summary judgme nt as to Morg an, Irving , Wins tead, B eale , Newby , Owens a nd Waley , and 4) de nied def endants’ motion for summary judgme nt as to Roge rs, Hayden, and D owning . Wins tead, 538 F . Supp. 2d at 107-09, 129-30. On January

26, 2009, this Court denied plaintiffs Morg an, Irving , Wins tead, B eale , Newby , Owens a

nd Waley ’s motion for re consideration of the Court’s Marc h 12, 2008 Orde r, 4 which in turn g rante d defe ndants’ motion for summary judgme nt as to these seve n plaintiffs. 5 These se ven plaintiffs now move for r econside ration of the Court’ s 2009 Order
. In this Court’s J anuar

y 26, 2009 Memorandum Opinion, the Court held that the se ven plaintiffs could have either 1) soug ht reviewof the a g ency ’s ac tions under the District of Columbi a Administrative Proce dure A ct, D.C. Code § 2-510 (2001) (“D CAPA”) or 2) soug ht a writ of mandamus from the District of Columbia Court of Appea ls pursuant to Rule 21 of the District of Columbia Court of Appea ls Rules. S ince they did not, the Court gr anted de fenda nt’s motion for summary

judgme nt and dismissed plaintiffs’ claims on the grounds that they failed to avail themselve s of alter

native judicial re medies. The Court then or dere d that the re maining plaintiffs, Roge rs, Hayden, and D owning , show ca use why their ca ses should not also be

The c ase a g ainst defe ndant Computer L iterac y World/C reative Disability Manag ement 3 was ter minated on Octobe r 29, 2005. See Stipulation of Dismissal W ithout P rejudice at [#20]
. Wins tead v. District of

Columbi a, 596 F . Supp. 2d 50 (D.D.C. 2009). 4 Wins tead v. District of

Columbi a, 538 F . Supp. 2d 104 (D.D.C. 2008). 5 2dismiss ed for the same r eason. I

nstead of r ece iving a

filing f rom the re maining pla intiffs, howeve r, the seve n plaintiffs who we re dismissed filed a nother motion for re consideration. Havingconsidere d the motion and the opposition, Ihave now conclude d that my

ear lier conclusion that the availability of alter native for ms of judicial relief

prec luded plaintiffs’
asser tion that the delay

they encounte red violate d their right not be to deprived of their prope rty without due proce ss of law wa s wrong . Acc ording ly , plaintiffs’ cur rent motion will be g rante d and the Court’s January

26, 2009 opinion, reported a t Wi nstead v. District of Columbia, 596 F
. Supp. 2d 50 (D.D.C. 2009), will be vac ated. Ibeg in with the acknowle dg ment that the fe dera l courts have uniformly conclude d that an
unrea sonable de lay

in the state’s a dminist rative pr ocessingof a c laim to benefits may constitute the depr ivation of proper

ty without due proce ss of law, c og nizable under 42 U.S. C. § 1983. 6 Kra ebel v. N.Y . City

Dep’ t of Hous. Pres. and D ev., 959 F .2d 395, 405 (2d Cir.)(“ due proc ess require s that elig ibilit y

for a varie ty of bene fits be proc essed within a r easona ble time”) c ert. denied, 506 U.S. 917 (1992) ; Schroede r v. Chicag o, 927 F.2d 957, 960 ( 7th Cir. 1991) (“The
case s on unrea sonable de lay are best understood a s holding that implicit in the confer ral of a n entitlement is a furthe r entitlement, to rec eive the e ntitlement within a reasona ble time.”); Ke lly v. R.R. R et. B d., 625 F.2d 486, 489 ( 3d Cir. 1980) (dela y in proce ssing of

disability pay ments can violate due proc ess); Mac hado v. L eavitt, 542 F. Supp. 2d 185, 194 (D . Mass 2008) (Sufficie ntly

egreg ious delay

in proce ss entitlement may constitute a re mediable c onstitut ional violation, even if the r eleva nt statutory

framework doe s not specify a time for a g ency

action).

All refe renc es to the United States Code a nd other statutes a

re to the e lectronic versions 6 in Westl aw or

L exis
. 3See Matthew s v. Eldridg e, 424 U.S. 319, 330 (1976) ( interest of c laimant in prompt resolution of

elig ibilit y permitted him to by

pass the full exhaustion route). Moreove r, I

have now

discovere d two well re asoned opinions that, while not binding in this Ci rcuit, spec ifically

reje ct my earlier conc lusion that the availability of judicial re lief with respe ct to delay

in a state’s a dminist rative pr ocess pr eclude s enterta ining a § 1983 action premised on that de lay
. In Kra ebel, the c ourt of appe als reje cted the a rgument that plaintiff had a ll the proce ss that was due beca

use she c ould have a ddresse d her c laim of unrea sonable de lay in the administrative proc essingof her claim in a judicial proc eeding . 959 F.2d at 405. I t held that the
mere availability

of re dress in state c ourt did not satisfy her r ight to be f

ree of unre asonable delay . As the Supreme Court made clea r in Cleveland B d. of Education v. L oudermill, 470 U.S. 532, 541 (1985): “‘ [M] inimum [ proce dural] require ments [are] a matter of f eder al law, they

are not dimini shed by

the fa ct that the State may have spe cified its own proc edure s that it may deem adequate for de terminingthe pre conditions to adverse officia l action.’” ) (quotingVitek v. J ones, 445 U.S. 480, 491 (1980)). In other wor ds, the sufficie ncy of the a dministrative pr ocess pr ovided by state law ma

y be cha lleng ed in an a ction in fede ral c ourt irre spective of any available alternative state judicial re medies to cha lleng e dela y in that administrative proce ss. Buildingon Kra ebel, the Colora do Court of Appea ls reac hed the same conc lusion in Walter v. City

and County

of De nver, 983 P.2d 88 (Colo. App. 1998), c ert. de nied, 1999 Colo. L EXI S 802 (Colo. Aug. 24, 1999) . I t too rejec ted the conte ntion that plaintiff experience d any deprivation of due proc ess bec ause pla intiff had judicial re medies ava ilable to redr ess the City ’s alleg ed dela

y s in processinga cla im for bene fits. The cour t stated: “The City , howeve r, ca nnot
4rely

on the mere exis tence of a sy stem of judicial enf orce ment to compensate for its alleg edly intentional effor

ts to delay

the pay ment of bene fits to which plaintiff was due .” I d. at 91. My conclusion to the pre cise c ontrary was in er ror. I now believe that deter

mining whether the delay s plaintiffs have e ncounter ed violate due proce ss require s the nuanc ed, fa ctually based a naly sis sugg ested by

the Second Circuit in Kra ebel: Kee ping in mind these two unusua l aspec ts of Kra ebel' s due proce ss claim, the district court on re mand bea ringin mind the defe renc e appr opriately

acc orded by

courts to executive ag encie s reg ardingprac ticalities encounte red by those ag encie s in administeringleg islative prog rams, cf . Eldridg e, 424 U.S. at 347-48, 96 S.Ct. at 908-09, should eng ag e in a f actua l inquiry

to deter mine whether

the burde ns and dela

y s imposed by

the city wer e re asonable . I t may

consider a

varie ty of additional fa ctors in makingthis determination: the proce dures a ctually used by the city to determine whether

a landlord is entitled to the cla imed excess SCR I E pay

ments, the fac tors the city considers, the level of difficulty in making the deter

mination, the amount of work require d, the amount of de cision-makingdiscretion g iven to the employ ees, the need f

or and a vailability

of administrative a

ppellate revie w, the nec essity

for the pa

perw ork and suppor

ting documentation re quired, the a mount of time require d to proce ss simil ar c laims, and any

other fa ctors that may

bear on whether

“due proce ss” is provided. I f, g iven the steps re asonably nece ssary

to restore to Krae bel the re nts kept from her by this progr am, the court finds that the c ity

has take n an unduly

long time to proc ess her a pplications, the court should not hesitate to aw ard da mag es, which may

include intere st, calculated at a ma rket ra te, from the time that the delay

beca me unre asonable
. Kra ebel, 959 F .2d at 406. Acc ord Metsopulos v. Masca li, No. 86-CV-1826, 1986 WL15343, at *12 (D.N.J. Dec. 29, 1986) (followingKra ebel in def ining the na

ture of the fac tual inquiry to be done). Since such a

n inquiry is now nece ssary , Iwill permit the parties 120 da y s of discover

y in which to flesh out the f

acts be aringon the inquiry that must be made. F or the e dification of their
5counsel a

nd to advanc e the inter est in eff icient and e ffe ctive discove ry , Inote two additional issues that strike me as most signif icant: 1. Whether entitlement to relief under § 1983 is a f

unction of ea ch plaintiff’ s succe ss or lac k of it in the administrative proce ss? In other wor ds, are plaintiffs who have now pre vailed in that proc ess to be tre ated diff ere ntly from those who did not? In addition, are those plaintiffs who cla im to st ill await action (Irving , Rasheed, Downing , and Ne wby

) entitled to any

relief in the form of da

mag es? 2. What proof of a ctual injury is nece ssary

to prec lude an a

war d of nominal damag es to plaintiffs for the de lay

encounte red? See Care y v. Piphus, 435 U.S . 247 (1978). In the meanwhile, my

decision of January

26, 2009 will be vaca

ted. Additionally , Ihave now also conc luded that my decision of Ma

rch 12, 2008, r eporte d at Winst ead v. D istrict of Columbi a, 538 F . Supp. 2d at 104 (D.D.C. 2008), wa s simil arly influence d by

my incorre ct conclusion as to the sig nificanc e of the availability of alter native for ms of judicial relief

and must be vac ated a s well. By

the same toke n, the par

ties have no qua

rre l with my

Statement of Undisputed Mater ial Fa cts in the Marc h 12, 2008 opinion and those fac ts will be deemed admitted by

both sides, unless an objection is filed within ten day s of this Opinion. Finally , Iwill deem a uthentic and pr oof of the f acts stated he rein the state ments in the Order s that are attache d to plaintiffs’ three Notices Reg ardingSupplemental Authority , i.e. Docke t numbers 74. 75, and 76, insofar a s they

descr ibe eve nts that have oc curr ed and or ders issued in the c ourse of the administrative proc eeding s aff ectingthe plaintiffs name d there in. An Orde r ac companies this Memora ndum Opinion.

6/S/ J OHN M. F ACCI OLA U.S. Mag istrate Judge
Dated: J une 3, 2009

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