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Psychas v. District Department of Transportation

United States District Court, District of Columbia

September 24, 2019

ELLEN PSYCHAS, et al., Plaintiffs,


          AMY BERMAN JACKSON, United States District Judge.

         Plaintiffs, 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.

         On June 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”).

         Because 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.


         The 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.

         In 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.

         In 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.

         On 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.[1] The permit indicated that PSC consideration was unnecessary. See Nov. 2015 Permit.

         In 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.

         Plaintiffs 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.

         On 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.

         During 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 Order”).

         Between 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. Id.

         On 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 2009-114;
• 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.


         “To 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 556.

         A claim 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.” Id.

         In 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).


         I. Plaintiffs’ claims are ripe.

         Defendants 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. at 8.

         The 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.

         Thus, the Court has jurisdiction over the claims, and it will not dismiss the case pursuant to Rule 12(b)(1).

         II. Plaintiffs have failed to state a claim under the Computer Fraud and Abuse Act.

         A. Plaintiffs have sufficiently pled that Stokes exceeded his authorized access.

         Plaintiffs 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.

         Plaintiffs 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 CFAA states:

Whoever . . . intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains information from any protected computer[2] . . . shall be ...

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