were not violated by the District's action. The 500 tons of contaminated soil found at the construction site led to the issuance of a civil citation to Tri-County on September 7. That violation alone, under D.C. law, triggered Director Cross's discretionary authority to revoke plaintiff's building permit summarily, if he determined that the infraction posed a threat to the health and safety of the District's citizens and had not been remedied in the time allotted. See D.C. Construction Code § 112.9(3) (1992 Supp.). Even if Director Cross incorrectly assessed the danger to area residents or miscalculated the time within which Tri-County should remove the soil, the temporary suspension of the building permit -- which was not a revocation -- was at most negligent. Director Cross's conduct was not the substantial and malicious infringement of District law that is the stuff of a due process violation.
DCRA's subsequent rescission of Tri-County's environmental approval on December 6 was justified by Tri-County's failure to deal with the civil citation or to address the September 22 stop work order and its further refusal to respond to DCRA's October 15 request for information. See D.C. Environmental Policy Act of 1989, D.C. Code § 6-981 et seq. (1995 repl.). Again, even if this decision was in error, it was at most negligent and did not amount to a denial of Tri-County substantive due process rights.
b. Procedural due process
Tri-County also complains that the guarantee of procedural due process was denied by Director Cross's impromptu suspension of its building permit without notice and a pre-suspension hearing.
The contours of procedural due process are flexible and depend upon the circumstances of a given case. Zinermon v. Burch, 494 U.S. 113, 127, 108 L. Ed. 2d 100, 110 S. Ct. 975 (1990). At bottom, due process requires some kind of notice and a hearing before the final deprivation of a property interest. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 433, 71 L. Ed. 2d 265, 102 S. Ct. 1148 (1982); Propert v. District of Columbia, 292 U.S. App. D.C. 219, 948 F.2d 1327, 1331 (D.C. Cir. 1991). Interim suspensions of licenses and temporary seizures of property may be undertaken without a pre-deprivation hearing, provided that there is a sufficient factual basis for the action and that prompt administrative or judicial review of the merits of the decision is available. See Barry v. Barchi, 443 U.S. 55, 64, 61 L. Ed. 2d 365, 99 S. Ct. 2642 (1979); Cokinos v. District of Columbia, 234 U.S. App. D.C. 221, 728 F.2d 502 (D.C. Cir. 1983).
The suspension announced by Director Cross at the September 20, community meeting was not a "final deprivation" of Tri-County's asserted property interest in the building permit. Rather, it was akin to the "interim suspension" reviewed in Barry v. Barch, supra. What Director Cross said on September 30 was that he would suspend the permit pending further study of the project's potential environmental impact. Formal action to revoke the permit did not begin until December 6, after Tri County failed to respond to DCRA's request for information.
I find on the basis of the undisputed facts both (1) that Director Cross had sufficient grounds upon which to impose an interim suspension for the purpose of gathering further information about the project's environmental impact on the surrounding community, and (2) that Tri-County had adequate post-deprivation remedies at its disposal with which to fight the permit suspension.
It is undisputed that Tri-County was cited for storing some 500 tons of contaminated soil at the Bryant Street facility two weeks prior to the suspension and that Tri-County neither removed the soil nor otherwise responded to the citation prior to the issuance of the stop work order on September 22. Tri-County's history of noncompliance with District environmental, building and zoning laws, the illegal presence of contaminated soil at the site, and the concerns about life safety raised by DCHD were enough for Director Cross, after consultation with his staff, to decide that more information was needed. "At the interim suspension stage, an expert's affirmance, although untested and not beyond error, would appear sufficiently reliable to satisfy constitutional requirements." Barchi, 443 U.S. at 65.
Tri-County could have sought, but did not seek, an expedited administrative hearing within 72 hours of the suspension. At such a hearing, the burden of justifying the suspension would have been the Director's. D.C. Code § 6-2706 (1995 repl.); D.C. Construction Code § 112.13 (1992 Supp.). If the result of the expedited hearing had been adverse to Tri-County, Tri-County had the right to a review before the D.C. Board of Appeals and Review. D.C. Construction Code § 112.14. Tri-County also could have sought, but did not seek, direct review of the suspension in the D.C. Court of Appeals pursuant to D.C. Code § 1-1510. And Tri-County could have sued, but did not sue, for injunctive relief in D.C. Superior Court or petition for a writ of mandamus in the D.C. Court of Appeals.
Tri-County's failure to pursue any of the post-suspension remedies available to it give a hollow ring to its allegations of injury. Even if Director Cross's decision to suspend the permit was not adequately grounded, Tri-County offers no evidence that the passage of a few days -- the amount of time needed for the first level of administrative review -- resulted in any of the losses alleged in the complaint. Tri-County's alleged injury from the September 20 suspension was de minimis if not ephemeral.
III. The Remaining Claims
Tri-County has not developed or argued the claim for unconstitutional impairment of contract that was set forth in its amended complaint, and in that complaint Tri-County did not allege the existence of any contractual relationship with which the District interfered. Rather, the impairment claim as stated relates only to prospective contractual relations -- and interference with prospective business advantage is not a constitutional tort. Accordingly, Count II must be dismissed for failure to state a claim upon which relief can be granted. F.R.Civ.P. 12(b)(6).
Having decided to dismiss all the claims over which I have original jurisdiction, I decline to exercise supplemental jurisdiction over plaintiff's common law claims of tortious interference with contract and interference with prospective business advantage. 28 U.S.C. § 1367(c).
An appropriate order is issued with this memorandum.
United States District Judge
Dated: January 16, 1996
For the reasons set in a memorandum issued today, it is this 16th day of January, 1996 ORDERED that:
1. Plaintiff's motion for partial summary judgement [# 29] is denied. F.R.Civ.P. 56.
2. Defendant's motion for summary judgment [# 32] is granted with respect to Count I of the amended complaint. F.R.Civ.P. 56.
3. Count II of the amended complaint is dismissed for failure to state a claim upon which relief can be granted. F.R.Civ.P. 12(b)(6).
4. The Court declines to exercise supplemental jurisdiction over Counts III and IV of the amended complaint. 28 U.S.C. § 1367(c).
5. The case is dismissed with prejudice.
United States District Judge