United States District Court, District of Columbia
C. LAMBERTH, UNITED STATES DISTRICT JUDGE
August 2, 2017, the Court granted in part and denied in part
the defendants' motion to dismiss. See ECF Nos.
11 and 12. Now before the Court is the defendant's motion
for reconsideration, ECF No, 13, moving the Court to revise
its finding that plaintiffs 42 U.S.C. § claim against
the District of Columbia survived dismissal. Upon
consideration of defendant's motion, the opposition and
reply thereto, the relevant law, and the record in this case,
the Court will GRANT defendant's motion
and dismiss plaintiffs remaining claim.
Henry Lopez filed suit under 42 U.S.C. § 1983 against
the District of Columbia ("District") and Mayor
Muriel Bowser. He alleged that pursuant to an "unwritten
policy" the defendants delayed recalculating his
disability benefits and that as a result he was unable to
seek review before an administrative law judge. The Court
dismissed as redundant the suit against Mayor Muriel Bowser
in her official capacity because the District of Columbia was
already a named defendant in the suit. However, the Court
denied the motion to dismiss the claim as against the
District of Columbia. The Court ruled that Mr. Lopez pleaded
a plausible Section 1983 claim under the theory that a
District of Columbia "unwritten policy" violated
his constitutional right of access to courts. See
ECF No. 12 at 5 ("Denial of access to the courts is
recognized as a constitutional violation under §
1983.") (citing Christopher v. Harbury, 536
U.S. 403, 415 (2002).
Rule of Civil Procedure 54(b) governs a court's
reconsideration of non-final, or interlocutory orders. The
rule provides that an interlocutory order "may be
revised at any time before the entry of a judgment
adjudicating all the claims and all the parties' rights
and liabilities." Fed.R.Civ.P. 54(b). An order granting
a motion to dismiss, in part, is considered an interlocutory
order. Patzy v. Hochberg, 266 F.Supp.3d 221, 223
(D.D.C. 2017). Courts may permit revision of an interlocutory
order "as justice requires." Cobell v.
Norton, 224 F.R.D. 266, 272 (D.D.C. 2004).
Reconsideration "may be warranted when a court has
'patently misunderstood the parties, made a decision
beyond the adversarial issues presented, made an error in
failing to consider controlling decisions or data, or where a
controlling or significant change in the law has
occurred.'" Ali v. Carnegie Institution of
Washington, 309 F.R.D. 77, 80 (D.D.C. 2015) (quoting
U.S. ex rel Westrick v. Second Chance Body Armor, Inc.,
893 F.Supp.2d 258, 268 (D.D.C. 2012)).
Court has learned two material facts since its Memorandum
Opinion and Order issued on August 2, 2017, militating in
favor of dismissal of plaintiff s claim. First, the
defendant, in its motion for reconsideration, highlighted for
the Court that on July 7, 2017, the District of Columbia
repealed Chapter 1 of Title 7 of the District of Columbia
Municipal Regulations ("DCMR") in its entirety and
adopted new regulations implementing Title 23 of the CMPA
(the "Public Sector Workers' Compensation"
Program). Rule 153 of these new regulations provides that a
"claimant who believes that the Program has incorrectly
calculated his or her indemnity benefit may request an audit
of the Program's calculation ...." See 7
DCMR § 153.1. After considering an audit request, the
Chief Risk Officer must provide the claimant notice of a
decision within thirty days. Id. at § 153.3. If
the Chief Risk Officer fails to provide notice within thirty
days "the calculation which forms the basis of the
claimant's request for an audit shall be deemed the final
decision of the agency ... and the claimant may seek review
of the calculations before the Superior Court of the District
of Columbia." Id. at § 153.3.
District of Columbia contends that Mr. Lopez can now obtain
full relief through the administrative process-he can request
an audit and seek review before the Superior Court of the
District of Columbia even if the Chief Risk officer fails to
make a determination within thirty days. D.C. argues
therefore that the plaintiff no longer has a viable
constitutional-right-of-access-to-the-courts claim because he
must first exhaust his administrative remedy providing a path
to court. See ECF No. 13 at 7 (citing Washington
v. District of Columbia, 538 F.Supp.2d 269, 278 (D.D.C.
2008) ("Couching the claim in constitutional terms will
not immunize it from dismissal pursuant to the exhaustion
requirement.")). The Court finds this argument
compelling. To make out a "forward-looking"
constitutional-right-of-access claim, the plaintiff
"must be presently denied an opportunity to
litigate." Broudy v. Mather, 460 F.3d 106, 121
(D.C. Cir. 2006) (quotations and citations omitted). A
plaintiffs ability to pursue a claim must be "completely
foreclosed." Id. Here with the passage of
D.C.'s new regulations, the plaintiffs path to court is
not "completely foreclosed"-he can request an audit
and file suit after thirty days in D.C. Superior Court.
opposition brief, Mr. Lopez first contends that since Rule
153 was adopted prior to this Court's ruling on August 2,
2017 (the regulations were adopted on July 7, 2017), it
cannot constitute an "intervening change of law"
permitting reconsideration. This argument is without merit,
because whether or not Rule 153 constitutes an
"intervening change of law, " the Court was not
aware of it at the time the Memorandum Opinion and Order were
issued. Since the Court was unware of the new regulations, it
failed to consider them, and reconsideration is appropriate
under those circumstances. See Ali, 309 F.R.D. 77,
80 (D.D.C. 2015) (reconsideration appropriate if court fails
to "consider controlling decisions or data.").
Mr. Lopez argues that the case should not be reconsidered on
exhaustion grounds because he has already exhausted his
administrative remedies. He notes that his benefits were
already recalculated on March 31, 2016-a fact that the Court
was unaware of at the time it issued its Memorandum Opinion
and Order and which further supports dismissal of the claim.
See ECF No. 15, ¶ 7. The Court construed Mr.
Lopez's claim as a "forward-looking"
constitutional-right-of-access claim. In his complaint, Mr.
Lopez alleged that "he has been unsuccessful in
obtaining a Final Decision on the requests for
calculation." Complaint, ECF No. 1, ¶ 16. That fact
was instrumental in sustaining his claim since he argued that
without a final decision he was unable to access review by an
administrative law judge. Since he now concedes that his
disability benefits were in fact recalculated, the
"frustrating condition" that prevented access to
courts did not exist when he filed suit in this Court.
See Christopher v. Harbury, 536 U.S. 403, 414
(2002). Accordingly, this provides a second reason for the
Court to reconsider its earlier decision and dismiss the
now appears to be alleging "due process violations of
[his] civil rights" based on his being "denied
access to his earned financial benefits[.]" ECF No. 15,
¶¶ 9, 10. But the Court construed the plaintiffs
claim as a "forward-looking" denial of access
claim, not as a due process claim based on a property
interest. See ECF 12 at 5-10. Plaintiff cannot argue
that a claim should not be reconsidered and dismissed on the
basis that he has a different viable claim. Moreover even if
Mr. Lopez's complaint did include reference to such a due
process claim, he did not adequately plead the claim. He does
not allege why he has a cognizable property interest
protected by state law-which is a necessary condition to
attain constitutional due process protections. Rails
Corp. v. Comm. On Foreign Inv. in U.S., 758 F.3d 296,
315 (D.C. Cir. 2014) ("property interests
'attain ... constitutional status by virtue of the fact
that they have been recognized and protected by state
law.'") (quoting Paul v. Davis,
424 U.S. 693, 710 (1976)). A "benefit is not a protected
entitlement if government officials may grant or deny it in
their discretion." Town of Castle Rock v.
Gonzales, 545 U.S. 748, 756 (2005). And here the
defendant highlights that D.C. law confers discretion on the
Mayor to "modify an award of compensation if the Mayor
or his or her designee has reason to believe a change of
condition has occurred." See D.C. Code §
1-623.24(d)(1). The plaintiff provides no argument as to why
his interest in recalculated benefits amounts to a cognizable
property interest requiring constitutional due process
protections. Nor does he make out a claim that the
protections he does have (which includes his ability to
appeal the recalculation in D.C. Superior Court) are
insufficient. Plaintiff is understandably upset that it took
many years for his benefits to be recalculated. But that
alone is not enough to establish that the District of
Columbia committed a constitutional violation necessary to
support a Section 1983 claim.
reasons stated herein, the Court GRANTS the defendant's
motion for reconsideration, ECF No. 13, and
DISMISSES plaintiffs remaining claim against
the District of ...