The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge
This case is before me for all purposes including trial. A bench trial was held on July 26, 27, and 28, 2010. Below are my conclusions of law. My findings of fact are made in a separate document.
Plaintiffs are eleven current or former District of Columbia employees and the estates of two former District of Columbia employees who have made claims for disability compensation pursuant to the District of Columbia Comprehensive Merit Personnel System Act ("CMPA").*fn1
Defendants are 1) the District of Columbia, 2) Mayor Vincent C. Gray,*fn2 and 3) James Jacobs, Director of the Office of Risk Management.*fn3 Both Gray and Jacobs are sued in their official capacities.
A. Plaintiffs' § 1983 Claim
The Fifth Amendment to the United States Constitution provides that no person shall be deprived of life, liberty or property without due process of law. U.S. Const. amend. V. Section 1 of the Civil Rights Act, codified at 42 U.S.C. § 1983*fn4 provides a cause of action for "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory of the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983. In other words, Section 1983 provides an individual with a cause of action based on a claim that his Fifth Amendment due process rights were violated.
In order for a person to claim a Fifth Amendment property interest in disability compensation, he must have a "legitimate claim of entitlement to it." Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972). Additionally, when suing under Section 1983, a person must prove that it was the municipality's policy or custom that caused the violation. Monell v. Dep't of Social Services, 436 U.S. 658, 694 (1978).
The Supreme Court recently stated:
A municipality or other local government may be liable under this section if the governmental body itself "subjects" a person to a deprivation of rights or "causes" a person "to be subject" to such deprivation . . . But, under § 1983, local governments are responsible only for "their own illegal acts." . . . They are not vicariously liable under § 1983 for their employees' actions . . . Plaintiffs who seek to impose liability on local governments under § 1983 must prove that "action pursuant to official municipal policy" caused their injury . . . Official municipal policy includes the decisions of a government's lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law.
Connick v. Thompson, 131 S.Ct. 1350, 1359 (2011) (internal quotations and citations omitted) (emphasis in original).
Inaction may constitute the adoption of a municipal policy when the failure to prevent the violation of constitutional rights is premised on proof of the deliberate indifference to the violation of those rights. Daskalea v. District of Columbia, 227 F.3d 433, 441 (D.C. Cir. 2000) (quoting City of Canton v. Harris, 489 U.S. 378, 388-89 & n.7 (1989) ("[A] city's inaction, including its failure to train or supervise its employees adequately, constitutes a 'policy or custom' under Monell when it can be said that the failure amounts to 'deliberate indifference' towards the constitutional rights of persons in its domain.")).
Recently, the Supreme Court emphasized how demanding this "indifference standard" is, stating: "[D]eliberate indifference is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action." Connick, 131 S.Ct. at 1360 (internal quotation omitted). Therefore, "[i]nadvertent errors, honest mistakes, agency confusion, even negligence in the performance of official duties, do not warrant redress under this statute." Silverman v. Barry, 845 F.2d 1072, 1080 (D.C. Cir. 1988). Accord Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1277 (3d Cir. 1994) (noting that "a negligent deprivation of due process will not sustain a § 1983 claim"). In order to prove that a municipality acted with deliberate indifference, a plaintiff must prove that "the municipality knew or should have known of the risk of constitutional violations, an objective standard." Baker v. District of Columbia, 326 F.3d 1302, 1307 (D.C. Cir. 2003) (citing Farmer v. Brennan, 511 U.S. 825, 841 (1994)). In other words, a municipality's acts "are discretionary to the point before they become a deprivation of due process." Id. (internal citation omitted).
In the case at bar, there is no dispute that the disability benefits plaintiffs seek under the CMPA are protected property interests. See Matthews v. Dist. of Columbia, 675 F. Supp. 2d 180, 186 (D.D.C. 2009); Fonville v. Dist. of Columbia, 448 F. Supp. 2d 21, 26 (D.D.C. 2006). It is further undisputed that an unreasonable delay in the state's administrative processing of plaintiffs' claims may constitute an action cognizable under 42 U.S. C. § 1983. Kraebel v. N.Y. City Dep't of Hous. Pres. and Dev., 959 F.2d 395, 405 (2d Cir.) ("due process requires that eligibility for a variety of benefits be processed within a reasonable time") cert. denied, 506 U.S. 917 (1992); Schroeder v. Chicago, 927 F.2d 957, 960 (7th Cir. 1991) ("The cases on unreasonable delay are best understood as holding that implicit in the conferral of an entitlement is a further entitlement, to receive the entitlement within a reasonable time."); Kelly v. R.R. Ret. Bd., 625 F.2d 486, 489 (3d Cir. 1980) (delay in processing of disability payments can violate due process); Machado v. Leavitt, 542 F. Supp. 2d 185, 194 (D. Mass. 2008) (Sufficiently egregious delay in process entitlement may constitute a remediable constitutional violation, even if the relevant statutory framework does not specify a time for agency action). See Matthews v. Eldridge, 424 U.S. 319, 330 (1976) (interest of claimant in prompt resolution of eligibility permitted him to bypass the full exhaustion route).
To that end, the Court previously "permitted the parties discovery to explore the due process factors pertaining to delay in the administrative process of adjudicating claims, as defined by the Second Circuit"*fn5
Keeping in mind these two unusual aspects of Kraebel's due process claim, the district court on remand bearing in mind the deference appropriately accorded by courts to executive agencies regarding practicalities encountered by those agencies in administering legislative programs, cf. Eldridge, 424 U.S. at 347-48, 96 S.Ct. at 908-09, should engage in a factual inquiry to determine whether the burdens and delays imposed by the city were reasonable. It may consider a variety of additional factors in making this determination: the procedures actually used by the city to determine whether a landlord is entitled to the claimed excess SCRIE payments, the factors the city considers, the level of difficulty in making the determination, the amount of work required, the amount of decision-making discretion given to the employees, the need for and availability of administrative appellate review, the necessity for the paperwork and supporting documentation required, the amount of time required to process similar claims, and any other factors that may bear on whether "due process" is provided. If, given the steps reasonably necessary to restore to Kraebel the rents kept from her by this program, the court finds that the city has taken an unduly long time to process her applications, the court should not hesitate to award damages, which may include interest, calculated at a market rate, from the time that the delay became unreasonable.
Kraebel, 959 F.2d at 406. Accord Metsopulos v. Mascali, No. 86-CV-1826, 1986 WL 15343, at *12 (D.N.J. Dec. 29, 1986) (following Kraebel in defining the nature of the factual inquiry to be conducted). Ultimately, however, the Court was forced to reject "the discovery plaintiffs attempted on the grounds that it was not directed to the remaining issues as [the Court] had defined them." [#155] at 3.
The delay, about which plaintiffs complain of was great, in some cases lasting up to 8 years. In no case, however, did plaintiffs provide any proof that the District knew or should have known of the risk of constitutional violations. That proof could, if plaintiffs had conducted the discovery permitted by the Court, have taken various forms. For example, plaintiffs could have addressed the following aspects of the District's handling of plaintiffs' claims, whether it be the review of a request for benefits or the review of a request for reconsideration of a previous decision: 1) the difficulty of the task itself, 2) the amount of discretion given the employee performing the task, 3) the extent to which the employee was permitted to request additional information, whether from the claimant or from another agency/office within the District of Columbia government, 4) the amount of time required to process similar requests, 5) the size of the employee's workload, 6) the size of the employee's staff, 7) the training and supervision given the employee, 8) the extent to which the District was aware of complaints similar to plaintiffs.
Plaintiffs could also have tried to establish by a valid statistical sampling or otherwise that the delays they encountered were typical of the delays encountered by similar applicants to the point that a reasonable person would have to conclude that the District must or should have known of them and did nothing and was therefore deliberately indifferent to a highly prevalent practice.
Because plaintiffs failed to explore any of those or other factors suggested by the Kraebel court, or the prevalence of the delay about which some of them may justifiably complain, plaintiffs' argument is solely that the period of time between the request for action and that action took too long, thereby violating plaintiffs' constitutional rights. That is certainly not the law, for it would render the District liable automatically upon a showing of delay even though (a) the delay was justified by countervailing factors and (b) occurred in isolated instances. That, in turn, would be doing what cannot be done, subjecting a municipality to liability upon a showing of at most negligent behavior by a few of its employees that could not possibly have given the District notice of a prevalent violation of constitutional rights which the District disregarded. See Brooks v. Celeste, 39 F.3d 125, 129 (6th Cir. 1994) (repeated acts of negligence do not in themselves establish deliberate indifference: "Lack of objective reasonableness, i.e., a failure to act as a reasonable person would have acted, does not by itself equal deliberate indifference.")
As will be shown below, and as detailed in the accompanying Findings of Fact, plaintiffs' cases fail. Some of the plaintiffs did not, in fact, encounter a delay which could possibly be described as unreasonable, even without consideration of any countervailing factors. Indeed, some plaintiffs fail to even show an entitlement to anything more than what they promptly received. Finally, while some plaintiffs did encounter lengthy delays, they advanced no proof whatsoever that the delays encountered were not justified or that the delays were so prevalent that there was in effect a municipal policy and practice of delaying action unconscionably-the result of the District's deliberate indifference to an obvious reality that unreasonable delays in processing petitions for rehearing was standard behavior.
According to Rogers, she suffered an unreasonable delay of either approximately 2 years and 2 months or approximately 3 years, depending upon when the Court determines is the appropriate start of the relevant claim period. Plaintiffs' Proposed Findings of Fact and Conclusions of Law [#156] at 44. With respect to the alleged 2 years and 2 months delay, Rogers cites the time between her April 9, 2004, request for reconsideration of the D.C. Disability Compensation Program's ("the DCP") Compensation Determination by Examiner reducing her benefits and the ORM's June 16, 2006, Final Decision on Reconsideration. Id. at 43-44. With respect to the alleged 3 year delay, Rogers cites the time between her September 15, 2003 claim for permanent partial disability and the ORM's June 16, 2006 final decision.*fn6 Id.
On April 2, 2004, the DCP issued a compensation determination regarding Rogers' January 1, 1998 injury. PEX 225 at 3-4. According to the determination, Rogers was found to have a 27% permanent impairment on her right upper extremity and was awarded bi-weekly permanent partial disability payments of $544.66 until the total value of the award, $22,941.08, was paid. Id. at 3. On April 9, 2004, Rogers sent DCP a letter 1) requesting reconsideration of the April 2, 2004 decision, 2) indicating that she did not wish to accept the permanent partial disability benefits, and 3) indicating that she wished to remain on temporary total disability. PEX 225 at 1. On April 12, 2004, Rogers sent the DCP a second letter reiterating the requests in her April 9, 2004 letter and indicating further that she wanted a lump sum payment of accrued permanent partial disability benefits. PEX 226 at 1-2. On July 23, 2004, the D.C. Office of Personnel ("OP") sent Rogers a letter asking for documentation of her current medical status and asking also if she intended to return to her position. PEX 228 at 2. Two years ...