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February 28, 1991


Appeal from the Superior Court of the District of Columbia; Hon. Henry H. Kennedy, Jr., Trial Judge

Rogers, Chief Judge, and Steadman, Associate Judge, and Newman,* Associate Judge, Retired.

The opinion of the court was delivered by: Steadman

In an action brought under 42 U.S.C. § 1983, plaintiff-appellant Green Miller, Jr. sought damages from the District for the demolition of two buildings owned by him. The trial court granted summary judgment in favor of the District on the ground that Miller had failed to exhaust his administrative remedies. It has been established, however, that this requirement does not apply in § 1983 actions; and, even if it did, summary judgment was improper here. Accordingly, we reverse and remand for further proceedings.


In September of 1982, plaintiff-appellant Miller received an order to show cause from the District of Columbia Board of Condemnation of Insanitary Buildings (the "Board") why two buildings owned by him, 1330 and 1332 Belmont Street, Northwest, should not be condemned due to insanitary and unsafe conditions. *fn1 The Board decided to condemn both buildings in March 1983, after a hearing pursuant to D.C. Code § 5-703 (1981) and 29 DCRR § 4 (1972). *fn2 Appellant received notice of the issuance of the condemnation order but did not appeal the Board's action to a higher tribunal. *fn3 Instead, for the next 18 months, appellant and the Board engaged in intermittent correspondence and negotiations concerning the properties to the effect that, as the statute contemplates, see note 2 (supra) , appellant's buildings would not be demolished if appellant could sanitize or rehabilitate them. These Discussions included a June 1984 letter to appellant from the Chief of the Board evidencing the continuing course of dealing between the parties. *fn4 However, in October 1984, without any further notice to appellant, the buildings were in fact razed at a cost of $10,000 per building assessable to appellant.

Appellant filed his complaint in the instant action against the District on October 7, 1985, alleging that the demolitions violated his Fifth Amendment due process rights, the Civil Rights Act of 1871, 42 U.S.C. § 1983 ("§ 1983"), *fn5 and the District of Columbia Administrative Procedure Act, D.C. Code §§ 1-1501 to -1511. Although the District did not initially file an answer and a default judgment was issued against it, it thereafter filed a verified answer and a motion to set aside the default judgment was granted on December 1, 1988. *fn6 The District then moved for summary judgment, which the trial Judge granted.


The trial court granted summary judgment on the ground that "the plaintiff failed to exhaust administrative remedies pursuant to the statutory procedures enacted by Congress prior to seeking relief from the court [and thus, a] fortiori, this court is not empowered to grant the relief plaintiff is seeking." *fn7 However, neither party cited to the trial court the controlling Supreme Court decisions concerning exhaustion of administrative remedies in § 1983 litigation, Patsy v. Board of Regents of Florida, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982), and Felder v. Casey, 487 U.S. 131, 108 S.Ct. 2302, 101 L.Ed.2d 123 (1988), and the court thus failed to consider their effect. Appellant now argues that the trial court's "Conclusion . . . was and remains squarely, materially and irretrievably inconsistent with the explicit Disposition of the issue by the Supreme Court." We agree. The exhaustion of District administrative remedies is not a prerequisite to bringing an action pursuant to § 1983 in the local courts of the District. *fn8


The doctrine of exhaustion of administrative remedies, well established in administrative law jurisprudence, provides "that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted." McKart v. United States, 395 U.S. 185, 193, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969) (citation omitted). See generally B. SCHWARTZ, ADMINISTRATIVE LAW, at 682-684 (2d ed. 1983). In Patsy, a federal court race and sex discrimination case brought against a Florida university under § 1983, the District Court granted a motion to dismiss for failure to exhaust state administrative remedies. After the United States Court of Appeals for the Fifth Circuit, sitting en banc, remanded the case for a determination whether exhaustion would be appropriate, the Supreme Court reversed, holding that "exhaustion of state administrative remedies should not be required as a prerequisite to bringing an action pursuant to § 1983. We decline to overturn our prior decisions holding that such exhaustion is not required." 457 U.S. at 516. *fn9

In Felder, the Court extended the no-exhaustion rule of Patsy to § 1983 actions maintained in state courts. Justice Brennan, for the Court, concluded that "there is simply no reason to suppose that Congress . . . contemplated that those who sought to vindicate their federal rights in state courts could be required to seek redress in the first instance from the very state officials whose hostility to those rights precipitated their injuries." Id. at 147. The basis for the Felder holding was that "the dominant characteristic" of § 1983 actions is that "they belong in court" and that such causes of action "'exist independent of any other legal or administrative relief that may be available as a matter of federal or state law. They are judicially enforceable in the first instance.'" Id. at 148 (citation omitted; emphasis in original). Against the background of the lengthy history, both legislative and judicial, of a § 1983 no-exhaustion policy, the Felder Court held that the imposition of an exhaustion policy in state court would be a "judgment the current Congress must make." Id. at 149. *fn10 We hold, likewise, that unless Congress acts to impose exhaustion requirements, the no-exhaustion rule at work both in federal and state court § 1983 litigation applies in the local courts of the District as well.


The District does not take serious issue with this proposition as a general matter, but argues that it is inapplicable here. It asserts that the existence of a congressionally enacted "comprehensive enforcement mechanism," Smith v. Robinson, 468 U.S. 992, 1003, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984), encompassed in the condemnation statute, precludes an action under § 1983 by Miller. In Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 110 S. Ct. 444, 448, 107 L.Ed.2d 420 (1989) (citations omitted), the Supreme Court held that where a plaintiff has alleged the violation of a federal right under § 1983, the defendant may show that "Congress 'specifically foreclosed a remedy under § 1983' by providing a 'comprehensive enforcement mechanism for protection of a federal right,'" but that the "availability of administrative mechanisms to protect plaintiff's interests is not necessarily sufficient to demonstrate that Congress intended to foreclose a § 1983 remedy." Rather, the Court held, the statutory scheme must be such that if plaintiff were permitted to bring a § 1983 action, it "'would be inconsistent with Congress' carefully tailored scheme.'" Id. at 449 (quoting Smith v. Robinson, supra, 468 U.S. at 1012). Finally, the Court put the burden on defendant to "demonstrate that Congress has expressly withdrawn the remedy," id., of a § 1983 action, reasoning that

"we do not tightly conclude that Congress intended to preclude reliance on § 1983 as a remedy" for the deprivation of a federally secured right. Wright [v. Roanoke Redevelopment and Housing Authority, 479 U.S. 418, 423-424, 107 S.Ct. 766, 93 L.Ed.2d 781 (1987) (quoting Smith, supra, 468 U.S. at 1012)].

The District asserts that "the remedial scheme that Congress crafted in 1954 [condemnation act] is . . . comprehensive, and it specifically and directly addresses the constitutional and other rights of owners in the condemnation of buildings alleged to be insanitary in the nation's capital." However, while the statutory scheme may provide some procedural safeguards and methods for contesting Board action, the District is stretching the Supreme Court's jurisprudence in this area in contending that the act provides mechanisms to remedy all federal rights violations, or is comprehensive or exclusive. The act provides no more than the perfectly standard and routine administrative process of a form of notice and a particularized hearing, followed by judicial review of the outcome of the hearing. It is a general administrative scheme not specifically intended to remedy all federal rights violations, nor by its own terms or by its history intended to supplant other congressionally provided forms of redress, and not enforced by an agency with peculiar expertise in fashioning all remedies which a Judge in a courtroom setting could not be expected to have.

Thus, the District's reliance on Smith v. Robinson, supra, and Middlesex County Sewerage Authority v. National Sea Clammers Ass'n, 453 U.S. 1, 19-20, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981), is misplaced. There, "the statutes at issue themselves provided for private judicial remedies, thereby evidencing congressional intent to supplant the § 1983 remedy." Wright, supra, 479 U.S. at 427. In National Sea Clammers, the Court held that the statutory schemes at issue contained "so many specific statutory remedies including . . . two citizen-suit provisions . . . that Congress intended to foreclose implied private actions . . . but also . . . intended to supplant any remedy that otherwise would be available under § 1983." 453 U.S. at 20-21. The statutes authorized "unusually elaborate enforcement provisions" and remedies for the dumping of materials into ocean waters near the United States coastline and for other types of water pollution, including compliance orders and civil and criminal penalties, supplemented by citizen suit provisions which permitted "private persons to sue for injunctions to enforce these statutes." Id. at 13, 14. In Smith v. Robinson, similarly the statutory scheme "itself allowed private parties to seek remedies for violati[ons of] federal law." Wright, supra, 479 U.S. at 423. The Education of the Handicapped Act ("EHA"), at issue there, "was an attempt to relieve the fiscal burden placed on States and localities by their responsibility to provide education for all handicapped children." Smith v. Robinson, supra, 468 U.S. at 1010. The Court concluded that in light of the comprehensiveness of the "procedures and guarantees set out in the EHA," Congress could not have meant

to leave undisturbed the ability of a handicapped child to go directly to court with an equal protection claim to a free appropriate public education. Not only would such a result render superfluous most of the detailed procedural protections outlined in the statute, but, more important, it would also run counter to Congress' view that the needs of handicapped children are best accommodated by having the parents and the local education agency work together to formulate an individualized plan for each handicapped child's education. No federal district court presented with a constitutional claim to a public education can duplicate that process.

Id. at 1011-12 (footnote omitted).

The Court's later jurisprudence has confirmed the singularity of Sea Clammers and Smith v. Robinson. See Wilder v. Virginia Hosp. Ass'n, 110 L. Ed. 2d 455, 110 S. Ct. 2510, 2523 (1990) ("On only two occasions have we found a remedial scheme established by Congress sufficient to displace the remedy provided in § 1983"). In Wright, supra, a case involving an administrative scheme similar to that at issue in this case, the Court concluded that the statutory scheme evidenced no intent by Congress to preclude a § 1983 action. There, plaintiffs were tenants attempting to sue as a class a local housing authority that had allegedly violated their rights under federal statutes imposing ceilings on rents. The tenants alleged that the housing authority had overcharged them for their utilities by failing to comply with Department of Housing and Urban Development (HUD) regulations, in violation of the Brooke Amendment to the United States Housing Act of 1937, 42 U.S.C. § 1401 et seq. The statute provided for administrative remedies through formal and informal grievance hearings by local public housing authorities, in which tenants were entitled to notice of proposed adverse housing agency action, an impartial hearing officer, an opportunity to examine all pertinent documents, representation at the hearing, and a written decision, but did not provide judicial-type alternatives to access to the courts such as were present in Sea Clammers and Smith v. Robinson. The Court held that respondent had not "overcome its burden of showing that 'the remedial devices provided in [the Housing Act] are sufficiently comprehensive . . . to demonstrate congressional intent to preclude the remedy of suits under § 1983.'" Wright, supra, 479 U.S. at 424 (quoting Sea Clammers, supra, 453 U.S. at 20). *fn11

As a state appellate court has recently said in construing Smith v. Robinson and the EHA to permit the use of a § 1983 action to redress federal rights claims of a class of handicapped children for whom there was no remedy provided in the EHA itself: "As Wright itself holds, we cannot infer that Congress intended to make citizens resort to an administrative procedure -- to the exclusion of § 1983 -- where the administrative procedure fails to supply a remedy." White v. State, 195 Cal. App. 3d 452, 464, 240 Cal. Rptr. 732, 738 (Cal. App. 1987). See also CHEMERINSKY, FEDERAL JURISDICTION, § 8.8, at 424 (1989) ("a statutory enforcement scheme will be deemed comprehensive only when it provides for both administrative and judicial remedies"); Samuels v. District of Columbia, 248 U.S. App. D.C. 128, 137-40, 770 F.2d 184, 193-96 (1985) (holding in the District of Columbia that Housing Act procedures and remedies were not sufficiently comprehensive to foreclose § 1983 remedy; District procedures under the act, which tenants claimed were not applied in practice, required an informal settlement conference, a hearing before an impartial officer if no settlement occurs, review by a District administrator, and, for tenants, a right to trial de novo in the local courts); Gonzalez v. Pingree, 821 F.2d 1526, 1529 (11th Cir. 1987) (§ 1983 action available to remedy violations of Food Stamp Act; "As the Supreme Court reasoned in Wright, the generalized avenues of enforcement open to a federal agency are insufficient evidence of a congressional intent to prohibit a private judicial action under § 1983"). In Golden State, supra, similarly, the Court broadly held that § 1983 claims are available wherever the plaintiff asserts the violation of a federal right (statutory or constitutional) *fn12 and where the defendant cannot show that Congress specifically foreclosed such a remedy within an act with comprehensive enforcement mechanisms.

These cases establish that appellant's § 1983 action is not foreclosed by the provisions of the District's condemnation statute. *fn13 The condemnation statute, even if it could be seen to provide a remedy for the substantive due process violation of improper razing of Miller's buildings, provides no remedy for procedural due process violations such as the lack of notice and further hearing alleged here. See Part III (infra). Such claims are not encompassed by the procedures of the condemnation statute, as was the case in Smith v. Robinson. *fn14

Furthermore, Robinson's overarching rationale was, in accord with Golden State, supra, simply that "§ 1983 is a statutory remedy and Congress retains the authority to repeal it or replace it with an alternative remedy." 468 U.S. at 1012. The District has offered us neither legislative history nor statutory language in the condemnation statute suggesting that Congress had intended to "repeal" the § 1983 remedy sought by Miller, or "to replace it with an alternative remedy." Thus, we are not persuaded that it has met its burden to show that Congress has "expressly withdrawn" the § 1983 remedy.


This Supreme Court jurisprudence also demonstrates the difficulty with any reliance on Urciolo v. Washington, 305 A.2d 252, 254 (D.C. 1973), to control the outcome here. In Urciolo, the plaintiff-appellants applied to the Superior Court for a restraining order after the Board gave them notice that their building was about to be demolished and, after a hearing, refused to stay the demolition. Appellants had previously been validly served with both an order to show cause, to which appellants had failed to respond, and a condemnation order, which appellants had failed to appeal. The Superior Court refused to stay the demolition and we affirmed.

On the appeal, we reviewed on the merits the sufficiency of the service of the notice to show cause and the condemnation order, and the fairness of the Board hearing on appellants' request for a stay. We further rejected appellants' arguments that their property was being taken without just compensation and due process of law. We did note appellants' failure to appeal the original condemnation order, and then stated:

Thus the question of whether or not the property was in fact in an insanitary condition when condemned is now precluded and D.C. Code 1972 Supp. § 5-629 [now § 5-714, providing for Superior Court review of condemnation orders] cannot confer jurisdiction in the trial court over appellants' present cause of action as is alleged in the complaint. The statutory procedures established by Congress are exclusive.

Urciolo, supra, 305 A.2d at 254. The District claims that this language is the broad equivalent of an exhaustion requirement which precludes any action in the courts and that under that rationale, a § 1983 action is similarly precluded here. We disagree. First, in Urciolo, we in fact reviewed on the merits almost all of appellants' claims. Second, jurisdiction in that case was not based on § 1983. Third, we were dealing with a temporary restraining order and not relief for an already occasioned violation. Finally, to the extent that a broad reading of the decision conflicts with the more recent Supreme Court jurisprudence discussed above, the latter must of course control.


Even if the no-exhaustion rule of Patsy and Felder did not provide a basis for reversal, Miller argues that the District had not succeeded in satisfying "the burden at summary judgment of making a prima facie showing that there was no genuine issue of fact in dispute and that it was entitled to judgment as a matter of law." Vessels v. District of Columbia, 531 A.2d 1016, 1017 (D.C. 1987). In particular, he argues that there are disputed facts concerning whether the District violated his due process rights by failing to issue a new notice of condemnation after its 18-month course of negotiations with him following the issuance of its initial notice of condemnation. *fn15 While the record is far from clear, there is support for appellant's asserted confusion about when, and, indeed, whether the Board actually intended to demolish his buildings before October, 1984. *fn16

Moreover, there is no order to show cause, condemnation order, or any other official notice of the Board's intention to raze the properties in the record, nor could the District provide any of them at oral argument before us. See note 2 (supra) . Appellant therefore likens his case to Miles v. District of Columbia, 166 U.S. App. D.C. 235, 510 F.2d 188 (1975), where the U.S. Court of Appeals for the District of Columbia Circuit affirmed a judgment against the District, holding that to comport with due process, a six-year hiatus between the issuance of a condemnation order and the actual razing of buildings compelled the issuance of a new notice to condemn.

In Miles, plaintiff-appellee similarly received a notice to show cause why her buildings should not be condemned due to insanitary conditions, and, after a hearing and issuance of an order of condemnation pursuant to D.C. Code § 5-618 (1973) (condemnation procedure precursor to § 5-703), she failed to appeal to the Review Board. The order itself directed her to "abate the insanitary conditions or demolish and remove the buildings" and "a condemnation sign was placed upon the building." 166 U.S. App. D.C. at 237, 510 F.2d at 190. During the six-year period following the order, Miles attempted to restore the buildings after obtaining substantial financing and several extensions of time from the Board. As work on the buildings progressed, the Board took down the condemnation sign and, according to Miles, represented that the conversion work had gone too far for the building to come down. However, after inspections revealed incomplete work and evidence of debris and vandalism, the Board began sending a series of letters threatening action against the buildings unless Miles fully restored them. The Board waited until three years after the last extension expired before making an ex parte decision to demolish, and, with allegedly deficient notice to Miles, ultimately razed the property.

Miles filed suit in federal district court, alleging a taking of her property without just compensation and a denial of due process of law. The District Court held that "the demolition of appellee's property violated due process in that the District failed to grant a hearing at a meaningful time and in a meaningful manner and to provide for adequate notice." Miles, supra, 166 U.S. App. D.C. at 237, 510 F.2d at 190 (citing Miles v. District of Columbia, 354 F. Supp. 577 (D.D.C. 1973)). On appeal, the circuit court determined that such later "meaningful" notice would have constituted a new final and appealable decision; "in fact, only after the decision to process the buildings for demolition was final action truly 'pendent'." 166 U.S. App. D.C. at 239, 510 F.2d at 192. The court ultimately concluded that because "the owner was not placed on . . . jeopardy notice and had in fact through a course of dealing with the government received every indication that no demolition was imminent," 166 U.S. App. D.C. at 240, 510 F.2d at 193, the "inescapable Conclusion is that under the circumstances of this case due process required that the Board convey to Mrs. Miles notice of its decision to finally have the buildings destroyed." 166 U.S. App. D.C. at 239, 510 F.2d at 192.

The reasoning and possible similarity of Miles would preclude summary judgment in the case before us. *fn17 Appellant here alleges that he did not believe the destruction of his buildings was imminent because a similar "course of dealing" with the Board "memorialized an agreement" between the Board and himself that rehabilitation of the properties would defeat the need for their demolition. *fn18 While the letter of the Board Chief, see note 4 (supra) , does appear to create burdens that appellant had to surmount to avoid the condemnation order's mandate, it also may amount to the sort of abridgement or modification of Board intent to raze that occurred in Miles. Moreover, since Miller claims that the letter was the last word he received from the Board before the demolition, his argument may be more compelling than Miles' since Miles received a series of threatening letters. Finally, the Board in Miles made a new determination to demolish the buildings, even if ex parte, and attempted to provide notice by certified mail, non-registered letter, and publication. Here, the record does not reveal similar redetermination of the merits or subsequent attempts to notify appellant. If, on the facts as finally determined, a new notice was required in order to trigger appellant's right to appeal, no question of failure to exhaust administrative remedies could arise as a basis for summary judgment. See Miles, supra, 166 U.S. App. D.C. at 240 n.4, 510 F.2d at 193 n.4.

Reversed and remanded.

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