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Chang v. Dist. of Columbia Dep't of Regulatory and Consumer Affairs

March 30, 2009

DEANNA CHANG, PLAINTIFF,
v.
DISTRICT OF COLUMBIA DEPARTMENT OF REGULATORY AND CONSUMER AFFAIRS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Paul L. Friedman United States District Judge

OPINION

This matter is before the Court on defendants' motion to dismiss or, in the alternative, for summary judgment. After careful consideration of the parties' papers and the entire record in the case, the Court will grant defendants' motion to dismiss as to all counts.*fn1

I. BACKGROUND

Plaintiff Deanna J. Change alleges violations of her procedural and substantive due process rights, as well as violations of Section 6-1405.01 of the District of Columbia Code, arising from the issuance of a stop work order on renovations done to her home. See Compl. ¶¶ 1-2. According to the allegations in the complaint, plaintiff received Building Permit No. B472074 from the District of Columbia Department of Consumer and Regulatory Affairs ("DCRA") to renovate her residence at 1315 Irving St., N.W. on April 28, 2005. See Compl. ¶ 10. The renovations were still ongoing on March 19, 2008 when the DCRA issued a stop work order. See Compl. ¶¶ 10-11. The Order alleged four separate violations of the District of Columbia's Construction Codes: (1) working without a building permit; (2) working without a demolition permit; (3) failure to post a building permit; (4) failure to post a demolition permit. See Compl. ¶ 15.

On March 21, 2008, plaintiff went to the DCRA to inquire about the stop work order. See Compl. ¶ 16. A DCRA employee, Tomeka Jones, informed plaintiff that the proper method for removing the stop work order was to file a Notice of Appeal with the Chief Building Inspector, Don Masoero, at DCRA. See Compl. ¶ 18. Plaintiff filed her appeal that same day. See Compl. ¶ 18. The issue was not resolved, and plaintiff subsequently filed a Notice of Appeal with defendant Linda Argo, the Director of DCRA. See Compl. ¶¶ 19, 21. On April 4, 2008, plaintiff met with Mr. Masoero, who agreed that three of the violations - failure to post a building permit, working without a demolition permit, and failure to post a demolition permit - were invalid. See Compl. ¶¶ 23, 24. At the same meeting, Mr. Masoero informed plaintiff that her building permit had expired, putting her in violation of the Construction Codes. See Compl. ¶ 25. Plaintiff believed that Mr. Masoero was incorrect in stating that her permit had expired. See Compl. ¶ 26. Plaintiff requested a hearing before the Office of Administrative Hearings on her challenge to Mr. Masoero's determination, and was waiting for that hearing to be scheduled when she filed a complaint and a motion for preliminary injunction in this Court. See Compl. ¶ 30. Plaintiff named as defendants the DCRA, Mayor Adrian Fenty in his official capacity, and Linda Argo and Don Masoero in their individual and official capacities. The Court heard argument on June 20, 2008, but in light of representations made in a joint report filed by the parties stating that the stop work order had been lifted, the Court denied the motion for preliminary injunction as moot. See July 21, 2008 Minute Order; see also Joint Report Concerning Preliminary Injunction.

II. DISCUSSION

Defendants move to dismiss the complaint for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure or, in the alternative, for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Defendants argue that plaintiff does not plead a cause of action for procedural or substantive due process, that Section 6-1405.01(a) of the District of Columbia Code does not confer a private right of action on plaintiff, and that in the absence of any viable federal claim the Court should decline to exercise supplemental jurisdiction and should dismiss the remaining claims. They also argue that defendants Linda K. Argo and Don Masoero enjoy qualified immunity for the claims asserted against them. The Court will grant defendants' motion to dismiss in its entirety.

A. Rule 12(b)(6)

Rule 12(b)(6) of the Federal Rules of Civil Procedure allows dismissal of a complaint if a plaintiff fails "to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court clarified the standard of pleading that a plaintiff must meet in order to survive a motion to dismiss under Rule 12(b)(6). The Court noted that "Federal Rule of Civil Procedure 8(a)(2) requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests[.]'" Bell Atlantic Corp. v. Twombly, 550 U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); see also Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007); Aktieselskabet AF 21 v. Fame Jeans Inc., 525 F.3d 8, 15 (D.C. Cir. 2008). Although "detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion, a plaintiff must furnish "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action" to provide the "grounds" of "entitle[ment] to relief." Bell Atlantic Corp. v. Twombly, 550 U.S. 555; see also Papasan v. Allain, 478 U.S. 265, 286 (1986). While there is no "probability requirement at the pleading stage," Bell Atlantic Corp. v. Twombly, 550 U.S. at 556, "something beyond . . . mere possibility . . . must be alleged[.]" Id. at 557-58. The facts alleged in the complaint "must be enough to raise a right to relief above the speculative level," id. at 555, or must be sufficient "to state a claim to relief that is plausible on its face." Id. at 570. The Court referred to this newly clarified standard as "the plausibility standard." Id. at 560 (abandoning the "no set of facts" language from Conley v. Gibson).

On a motion to dismiss under Rule 12(b)(6), the Court "must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 127 S.Ct. at 2200; see also Bell Atlantic Corp. v. Twombly, 550 U.S. at 555; Summit Health, Ltd. v. Pinhas, 500 U.S. 322, 325 (1991); Aktieselskabet AF 21 v. Fame Jeans Inc., 525 F.3d at 15. It must construe the complaint "liberally in the plaintiff['s] favor, and grant plaintiff[] the benefit of all inferences that can be derived from the facts alleged." Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994); see also Aktieselskabet AF 21 v. Fame Jeans Inc., 525 F.3d at 15. The Court, however, need not accept inferences drawn by a plaintiff if those inferences are unsupported by facts alleged in the complaint; nor must it accept plaintiff's legal conclusions. See Kowal v. MCI Communications Corp., 16 F.3d at 1276; Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).

B. Procedural Due Process Claim

For her procedural due process claim, plaintiff asserts that she had a constitutionally protected property right in her building permit and that defendants issued the stop work order without basis and without prior notice and the opportunity for a hearing. The Court will assume, for the purposes of this discussion, that plaintiff had a valid property interest in Building Permit B472074, a point defendants do not contest in their motion. See 3883 Connecticut LLC v. District of Columbia, 336 F.3d 1068, 1072 (D.C. Cir. 2003) (finding a property interest in the possession of a building permit). At issue is whether plaintiff received adequate process in conjunction with issuance of the stop work order.

The provisions of the D.C. Construction Codes in force at the time provided for the following appeals process:

112.1 Appeals within the Department. The owner of a building or structure or any person suffering a legal wrong, or adversely affected or aggrieved, may initiate an appeal, ...


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