United States District Court, District of Columbia
BERMAN JACKSON, United States District Judge.
Ellen Psychas and Bonding Yee, residents of the District of
Columbia, have brought this lawsuit against the District of
Columbia Department of Transportation (“DDOT”)
and two employees of DDOT, Matthew Marcou and John Stokes,
claiming violations of the Computer Fraud and Abuse Act
(“CFAA”), 18 U.S.C. § 1030, and the Due
Process Clause of the Fifth Amendment. Am. Compl. [Dkt. #
16]. This lawsuit arises out of plaintiffs’
construction of a tree house on their property for their two
daughters in 2015. Id. Plaintiffs claim that in the
course of obtaining the necessary permits from the District
of Columbia, plaintiffs were provided with incorrect
information, and they complain that they were issued a valid
permit only to have it constructively revoked later through
improper procedures. Plaintiffs seek injunctive relief
vacating the denial of their permit application and
prohibiting DDOT from levying any fines related to the tree
house. Id. at 51, Prayer for Relief. They also seek
declarations pursuant to the Declaratory Judgment Act, 28
U.S.C. § 2201, that the tree house is authorized by
permit and by D.C. regulations. Am. Compl. ¶¶
146–60. Finally, they request compensatory damages for
the emotional distress, reputational harm, and inconvenience
they allegedly suffered. Id.
15, 2018, defendants moved to dismiss the action pursuant to
Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6).
Defs.’ Mot. to Dismiss [Dkt. # 18] (“Defs.’
Mot.”). Plaintiffs opposed the motion on July 23,
Pls.’ Opp. to Defs.’ Mot. [Dkt. # 21]
(“Pls.’ Opp.”), and defendants replied on
August 3. Defs.’ Reply to Pls.’ Opp. [Dkt. # 23]
(“Defs.’ Reply”). On August 13, the Court
granted leave to allow plaintiffs to file a sur-reply.
Pls.’ Sur-Reply in Supp. of Pls.’ Opp. [Dkt. #
25] (“Pls.’ Sur-Reply”).
plaintiffs have failed to state a claim under the CFAA or the
Due Process Clause of the Fifth Amendment, the Court lacks
authority to award relief under 42 U.S.C. § 1983 or the
Declaratory Judgment Act. Therefore, defendants’ motion
to dismiss will be granted.
plaintiffs in this lawsuit are Ellen Psychas and her spouse
Bonding Yee. They own a home in Southeast, Washington, D.C.,
and in July 2015, they decided to build a tree house on the
elm tree located on their property for their two daughters.
Am. Compl. ¶ 25. Before commencing construction, Psychas
called the D.C. Department of Consumer & Regulatory
Affairs (“DCRA”) and DDOT to ask whether a permit
was necessary. Id. ¶ 28. The plan for the tree
house showed that it would hang over public space, an
alleyway, adjacent to the house. Id. ¶ 27. The
complaint alleges that in conversations with city employees,
either through the permitting hotline or in person, Psychas
was informed that she would not need a permit for the tree
house. Id. ¶¶ 29–30. DCRA officials
informed her that the tree house was smaller than projects
that typically require permits, and that her proposed work
did not violate the District’s “tree space
rules.” Id. DDOT employees also informed her
that there was no mechanism for DDOT to issue a permit to
cover a small tree house that hangs over public space.
Id. ¶ 31.
August 2015, plaintiffs commenced construction, and the tree
house was completed five weeks later in September. Am. Compl.
¶¶ 26, 33. To ensure that they constructed the tree
house in an environmentally friendly manner, the couple hired
a private arborist recommended by the DDOT Urban Forestry
Administration. Id. ¶ 26. Approximately
two-thirds of the tree house’s platform hangs over
plaintiffs’ private property, while the remaining third
hangs over the public space adjacent to their home.
Id. ¶ 27.
October 2015, a month after construction was completed, one
of plaintiffs’ neighbors complained about the tree
house to city officials and demanded to know why the proper
permits were not obtained. Am. Compl. ¶ 33. In
response to the complaint, DDOT conducted an inspection of
the structure on October 26, 2015, and the inspector issued a
Stop Work Order (“SWO”) that directed that the
structure be removed until the proper permits were obtained.
Id. ¶ 34. At a follow up inspection on November
4, 2015, two inspectors advised Psychas to apply for a public
space permit to cover the portion of the tree house that hung
over the public alleyway. Id. ¶ 36. One of the
inspectors, James Henry, informed Psychas that she may also
need a construction permit, id. ¶ 37, and that
she should contact John Stokes at the DDOT and Gary Englebert
at the DCRA to ensure that she received the correct
information regarding the permits required. Id.
¶¶ 38–39. In addition, he advised her to
submit the project’s documents to the Advisory
Neighborhood Commission (“ANC”), id.
¶ 40, a neighborhood body composed of locally elected
representatives that acts as a voice on matters affecting the
neighborhood. Psychas complied with all of these directives.
Id. ¶ 41.
November 6, 2015, Psychas visited the DDOT permitting center
and met with the city-wide permitting manager at DDOT, John
Stokes. Am. Compl. ¶ 42. Stokes reviewed the project
plan documents and informed Psychas that he thought the
appropriate construction category for the part of the tree
house that hung over public space was a “balcony
projection.” Id. ¶ 44. During the
meeting, he had Psychas submit a permit application online on
a public computer through DDOT’s Transportation Online
Permitting System (“TOPS”). Id. ¶
45. Stokes then informed Psychas that her permit would be
open for ten days “before closing.” Id.
¶ 46. Psychas asked Stokes why the permit would close
after only ten days, and Stokes responded that he had been
made aware of the complaints about the tree house, and
“[h]aving the permit close after just ten . . . days .
. . would ensure that the tree house permitting matter would
be put to rest quickly.” Id. Psychas also
asked Stokes whether she must take other steps to ensure that
the “permit would close correctly, ” but Stokes
told her no additional steps were necessary; she would only
need to display the permit on the tree house and in a
first-floor window of their house. Id. ¶ 47. He
also allegedly advised Psychas that “any additional
construction work on the children’s tree house that she
may undertake be completed during the ten . . . days before
the permit closed.” Id. Plaintiffs allege that
Stokes did not inform them that the permit was merely
temporary or that they would need approval by the Public
Space Committee (“PSC”), a body that is charged
with reviewing and deciding public space permit applications.
Id. ¶¶ 48–49. On November 9, DDOT
approved a permit with the effective dates of November 9
through November 20, 2015. Id. ¶¶
50–51; Ex. E to Compl. [Dkt. # 1-1] (“Nov. 2015
Permit”) at 15–18; Ex. D. to Compl. [Dkt. # 1-1]
(“Permit Description”) at
12–13. The permit indicated that PSC
consideration was unnecessary. See Nov. 2015 Permit.
mid-November, the same neighbor again complained about the
tree house and raised issues with the permit issued by DDOT,
Am. Compl. ¶ 53, and on December 9, 2015, Stokes called
Psychas to inform her that the ANC and PSC would need to
review plaintiffs’ project. Id. ¶ 54. The
ANC held meetings on January 7 and 12, 2016, and plaintiff
Yee attended both to offer written and oral testimony in
support of the tree house. Id. ¶ 56. At the
January 12 meeting, the ANC voted to oppose the permit
application. Id. The ANC’s decision is merely
advisory and does not bind the city. Id. ¶ 58.
At the ANC meetings, plaintiffs learned that the PSC had
scheduled a meeting on January 28, although they “never
received any official written notice from DDOT or the PSC
describing the scope and nature of the PSC’s
forthcoming review.” Id. ¶ 59.
allege that on January 15, 2016, the D.C. permitting manager
John Stokes “entered into his official TOPS
account” to access Psychas’s TOPS account to
submit a renewal application for the permit. Am. Compl.
¶¶ 61, 104. Stokes informed Psychas that he needed
to access her account “to create an active permit
application for the tree house prior to the 1/28 meeting so
that comments [on the application] could be uploaded prior to
the meeting.” Id. ¶¶ 61, 65. Instead
of resubmitting the permit application Psychas had prepared
in November 2015, Stokes created a new application and
submitted it on Psychas’s behalf. Id. ¶
62. He emailed her later that day explaining what he had
done. Id. ¶ 61. Psychas maintains that she did
not give Stokes permission to access her account or to submit
a new application in her name, and that she had only
“agreed to submit an application for the original
public space permit to serve as a post hoc
ratification of the already built structure.”
Id. ¶¶ 63–64.
January 28, 2016, the PSC denied the renewed permit
application. Am. Compl. ¶ 71. After the meeting,
plaintiffs asked Stokes to explain the status of the November
2015 permit, and he replied that he did not know.
Id. ¶ 72. He warned them that they would likely
receive a civil fine notice for the tree house’s
continued occupation of public space, as a result of the
PSC’s denial. Id.
February 2016, plaintiffs sought clarification of the status
of the November 2015 permit, but their inquiries went
unanswered. Am. Compl. ¶¶ 74–76. Therefore,
on February 23, 2016, plaintiffs filed two complaints with
the Office of Administrative Hearings (“OAH”)
concerning the Stop Work Order (“SWO”) issued in
October 2015 and the PSC’s denial of the renewed permit
application. Id. ¶ 76. During settlement
negotiations between city officials and plaintiffs, James
Henry, one of the original inspectors of the tree house,
indicated that he thought the November 2015 permit had not
been revoked, and city officials agreed that DDOT would not
take any enforcement action against the tree house until
November 2016. Id. ¶ 78. Settlement
negotiations continued through the end of April 2016, at
which time the OAH issued an Order to Show Cause why it had
jurisdiction to hear plaintiffs’ appeal of the PSC
decision. Id. ¶ 79. OAH then dismissed the case
on May 19, 2016 for lack of jurisdiction and mootness.
Id. ¶ 80. Plaintiffs filed for reconsideration
and appealed OAH’s decision to the D.C. Court of
Appeals. Id. On October 1, 2018, the Court of
Appeals found that the case was moot, because the city had
agreed that the SWO had no legal effect. See Order,
Yee v. Dist. of Columbia Dep’t of Transp., No.
16-AA-688 (D.C. Oct. 1, 2018) [Dkt. # 26-1] (“DCCA
November 2016 and July 2017, plaintiffs were issued a series
Notices of Violations (“NOVs”) regarding the tree
house, but none of them were received by plaintiffs because
they were addressed to Yee in the wrong name. Am. Compl.
¶ 85. When Yee finally received one of the NOVs, he
learned that DDOT was alleging a violation of 24 DCMR §
2001.2, which prohibits obstruction of travel in public
space. Id. Three additional NOVs were issued in
September and October 2017. Id. ¶ 86. Each NOV
sought a fine of $2, 000. Id. ¶ 95. Yee
contested the NOVs at the OAH, and he moved to dismiss them
based upon improper service. Id. ¶ 96. DDOT
also requested that the NOVs be dismissed. Id. By
January 23, 2018, OAH had dismissed all four NOVs.
January 12, 2018, plaintiffs filed suit in this court against
DDOT, the Associate Director of the Public Space Regulation
Division, Matthew Marcou, and the City-Wide Permitting
Manager, John Stokes. Compl. [Dkt. # 1]. On May 21, 2018,
plaintiffs amended the complaint alleging the following
claims against the three defendants:
• Count 1: A violation of the Computer Fraud and Abuse
Act (“CFAA”), 18 U.S.C. § 1030, based on
Stokes’s actions in accessing Psychas’s TOPS
account without permission, changing her password, and
submitting a renewal application on her behalf;
• Count 2: A violation of the Fifth Amendment’s
guarantee of procedural due process, based upon the
constructive revocation of the November 2015 permit;
• Count 3: A violation of the due process clause based
upon the vagueness of Titles 12A and 24 of the D.C. Municipal
Regulations (“DCMR”), and the Mayor’s Order
• Count 4: A violation of substantive due process;
• Count 5: Requesting a declaratory judgment affirming
the validity of the November 2015 permit;
• Count 6: Requesting a declaratory judgment affirming
the lawfulness of the tree house under 24 DCMR § 109.3
as it existed in 2015;
• Count 7: A violation of 42 U.S.C. § 1983 against
defendants Marcou and Stokes (Count 7); and
• Count 8: A violation of 42 U.S.C. § 1983 against
the District of Columbia.
Am. Compl. ¶¶ 99–180. Plaintiffs also request
injunctive relief vacating the January 28, 2016 PSC denial of
the renewed permit application and prohibiting DDOT from
levying any future fines on plaintiffs for their tree house.
Id. at 51, Prayer for Relief.
survive a [Rule 12(b)(6)] motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). In Iqbal, the Supreme Court reiterated the
two principles underlying its decision in Twombly:
“First, the tenet that a court must accept as true all
of the allegations contained in a complaint is inapplicable
to legal conclusions.” Iqbal, 556 U.S. at 678.
And “[s]econd, only a complaint that states a plausible
claim for relief survives a motion to dismiss.”
Id. at 679, citing Twombly, 550 U.S. at
is facially plausible when the pleaded factual content
“allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678. “The plausibility
standard is not akin to a ‘probability requirement,
’ but it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Id. A
pleading must offer more than “labels and
conclusions” or a “formulaic recitation of the
elements of a cause of action, ” id., quoting
Twombly, 550 U.S. at 555, and “[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
evaluating a motion to dismiss under Rule 12(b)(6), a court
must “treat the complaint’s factual allegations
as true and must grant plaintiff ‘the benefit of all
inferences that can be derived from the facts
alleged.’” Sparrow v. United Air Lines,
Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (internal
citation omitted), quoting Schuler v. United States,
617 F.2d 605, 608 (D.C. Cir. 1979); see also Am.
Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C.
Cir. 2011), quoting Thomas v. Principi, 394 F.3d
970, 972 (D.C. Cir. 2005). Therefore, when considering a
motion to dismiss, a court must construe a complaint
liberally in the plaintiff’s favor. Kowal v. MCI
Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir.
1994). Nevertheless, the court need not accept inferences
drawn by the plaintiff if those inferences are unsupported by
facts alleged in the complaint, nor must the court accept
plaintiff’s legal conclusions. Id.; see
also Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir.
2002). In ruling upon a motion to dismiss for failure to
state a claim, a court may ordinarily consider only
“the facts alleged in the complaint, documents attached
as exhibits or incorporated by reference in the complaint,
and matters about which the Court may take judicial
notice.” Gustave-Schmidt v. Chao, 226
F.Supp.2d 191, 196 (D.D.C. 2002), citing EEOC v. St.
Francis Xavier Parochial Sch., 117 F.3d 621,
624–25 (D.C. Cir. 1997).
Plaintiffs’ claims are ripe.
move to dismiss for lack of subject matter jurisdiction under
Federal Rule of Civil Procedure 12(b)(1). They argue that
plaintiffs’ claims are not ripe because they allege
harm contingent upon future DDOT actions. Defs.’ Mem.
Court agrees if a plaintiff’s claims are not ripe, it
may not exercise jurisdiction over the case. See Exxon
Mobil Corp. v. FERC, 501 F.3d 204, 208 (D.C. Cir. 2007)
(“[R]ipeness goes to subject matter
jurisdiction.”). Defendants are correct that “[a]
claim is not ripe for adjudication if it rests upon continent
future events that may not occur as anticipated, or indeed
may not occur at all.” Nevada v. DOE, 457 F.3d
78, 85 (D.C. Cir. 2006). But here, the claims do not rest
upon future events. Plaintiffs’ computer fraud claim
rests upon an alleged unauthorized use that occurred in 2016.
Am. Compl. ¶¶ 61–64. Plaintiffs’ due
process claims center around the constructive revocation of
the permit in 2015 and 2016. Id. ¶¶
116–45. Plaintiffs do not seek compensatory damages to
cover civil fines that have not been levied against them yet;
rather, they seek equitable relief regarding the status of
the permit and compensatory damages in the form emotional
distress, reputational harm, and inconvenience they have
already suffered. Id. at Prayer for Relief.
the Court has jurisdiction over the claims, and it will not
dismiss the case pursuant to Rule 12(b)(1).
Plaintiffs have failed to state a claim under the Computer
Fraud and Abuse Act.
Plaintiffs have sufficiently pled that Stokes exceeded his
allege that when defendant Stokes accessed Psychas’s
personal account within Transportation Online Permitting
System (“TOPS”), changed her password, and
submitted a renewal application for a public space permit on
her behalf, defendants violated the Computer Fraud and Abuse
Act (“CFAA”), 18 U.S.C. § 1030, in a number
of ways. Specifically, plaintiffs assert:
• “As of January 15, 2016, Plaintiff Psychas had
not authorized anyone else to have access to her TOPS
account.” Am. Compl. ¶ 102.
• “Defendant Stokes also had an account within
TOPS. The purpose of this account was solely to enable
Defendant Stokes to conduct official business, such as
reviewing applications for public space permits.”
Id. ¶ 103.
• “[O]n or shortly before January 15, 2016,
Defendant Stokes entered into his official TOPS account . . .
to obtain Plaintiff Psychas’[s] TOPS account
username.” Id. ¶ 104. Plaintiff claims
that this is a violation of 18 U.S.C. § 1030(a)(2)(C).
• “After Defendant Stokes learned the username of
Plaintiff Psychas’[s] TOPS account, he and/or his
colleagues caused the account’s password to be changed
to a default password (“Password1”). . . .
Defendants effectuated Plaintiff Psychas’[s] password
to be changed through Defendant Stokes’ official TOPS
account and/or a different computer associated with
TOPS.” Id. ¶ 105. Plaintiff claims that
this was a violation of § 1030(a)(5)(A).
• When he changed her password, “[d]efendants
impaired the availability of information in TOPS to Plaintiff
Psychas. . . . Accordingly, [d]efendants’ unauthorized
acts to change [her] . . . password recklessly and
intentionally caused damage without authorization to a
protected computer, in violation of 18 U.S.C. §
1030(a)(5)(A) & (B).” Id. ¶ 106.
Because plaintiffs allege they suffered loss from the
violation, they claim a violation of § 1030(a)(5)(C) as
well. Id. ¶ 107.
• “After gaining access, Defendant Stokes
submitted an application for a public space permit
‘renewal’ on her behalf without her
permission.” Id. ¶ 108.
• All of this was done “knowingly and with intent
to defraud” to “obtain a thing of value”
in violation of § 1030(a)(4). Id. ¶ 110.
claim that defendants violated five provisions of the CFAA:
§ 1030(a)(2)(C), § 1030(a)(4), and §
1030(a)(5)(A), (B), and (C). Section 1030(a)(2)(C) of the
Whoever . . . intentionally accesses a computer without
authorization or exceeds authorized access, and thereby
obtains information from any protected computer . . . shall be