English v. District of Columbia , 717 F.3d 968 ( 2013 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 22, 2013 Decided May 21, 2013
No. 11-7131
GREGORY ENGLISH,
APPELLANT
v.
DISTRICT OF COLUMBIA, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cv-01512)
Charles A. Patrizia argued the cause and filed the briefs
for appellant.
Stacy L. Anderson, Assistant Attorney General, Office of
the Attorney General for the District of Columbia, argued the
cause for appellees. With her on the brief were Irvin B.
Nathan, Attorney General, Todd S. Kim, Solicitor General,
and Donna M. Murasky, Deputy Solicitor General.
Before: BROWN, Circuit Judge, and EDWARDS and
SILBERMAN, Senior Circuit Judges.
Opinion for the court filed by Senior Circuit Judge
EDWARDS.
2
EDWARDS, Senior Circuit Judge: This appeal arises from
an action filed by Appellant, Gregory English, against the
District of Columbia Department of Mental Health (“DMH”).
Appellant has been confined at St. Elizabeths Hospital (“St.
Elizabeths” or the “Hospital”) since 1982. During his
confinement, Appellant has earned money at the Hospital
working as part of his treatment program, and his earnings
have been deposited in a patient account. In September 2010,
Appellant filed suit in District Court, asserting a cause of
action under, inter alia, 42 U.S.C. § 1983, and alleging that
DMH had violated his rights by seizing money from the
patient account without affording him procedural due process.
DMH responded that the Hospital had lawfully transferred
Appellant’s money to cover the cost of his care. DMH moved
to dismiss the complaint for failure to state a claim, and the
District Court granted the motion. We affirm.
It is clear from the record that Appellant received proper
notice before his funds were taken. We also find that
Appellant’s claim that he was denied due process lacks merit
because he failed to invoke the remedies available to him
under the D.C. Administrative Procedure Act (the
“DCAPA”). Appellant was not denied due process; rather, he
failed to pursue the process available to him to challenge the
Hospital’s action.
I. BACKGROUND
A. Facts
Appellant was involuntarily committed to St. Elizabeths
by court order in 1982 after he was found not guilty of an
assault charge by reason of insanity. During his
hospitalization, Appellant has participated in an occupational
therapy program in which he has earned wages that have been
3
deposited into a bank account maintained by DMH. By July
2009, Appellant had accumulated $2,250 in his account.
In July 2009, Appellant signed a form entitled
“Administrative Consent,” pursuant to which he
acknowledged that he was “personally responsible to the
Hospital and all treating physicians for all charges not paid in
full by insurance coverage or in the absence of insurance
coverage, the full balance.” Administrative Consent (July 14,
2009), reprinted in Joint Appendix (“J.A.”) 66. Later that
month, DMH sent Appellant a bill for $2,150 for services
rendered between July 1, 2008 (when his Medicaid insurance
lapsed) and January 31, 2009, for 215 days of care at $10 per
day. See Letter from Jerome Austin, Accountant, St.
Elizabeths Hospital, to Gregory English (“Invoice”) (July 28,
2009), reprinted in J.A. 63; see also D.C. CODE § 24-
501(f)(1) (requiring hospitals for the mentally ill to charge
patients involuntarily committed by reason of insanity for the
cost of their support). DMH notified Appellant that it
suspended additional charges to ensure that English retained a
$100 balance. The Invoice provided Appellant with directions
for filing a written dispute. Appellant asserts that, within the
prescribed time limits, he sent a letter to the Hospital
challenging the bill. The Hospital maintains it never received
any such letter from Appellant. In August 2009, DMH
removed $2,150 of Appellant’s funds from the patient
account.
B. DMH Grievance
In September 2009, Appellant commenced a grievance
proceeding pursuant to DMH regulations. See D.C. CODE § 7-
1231.12(a) (authorizing grievance regulations); D.C. MUN.
REGS. tit. 22-A, § 300.1 et seq. These regulations establish a
multi-tiered, non-exclusive post-deprivation review process.
Under applicable local law, an aggrieved party “may pursue
other legal, administrative, or informal relief in lieu of or
4
concurrently with filing a grievance.” D.C. MUN. REGS. tit.
22-A, § 304.3; accord D.C. CODE § 7-1231.12(c). Appellant
initially pursued his grievance before the Chief
Administrative Officer of the Hospital. After his grievance
was denied, Appellant appealed to an external reviewer, who
rendered a non-binding advisory opinion. See D.C. MUN.
REGS. tit. 22-A, § 308; accord D.C. CODE § 7-1231.12(b). In
an opinion dated November 27, 2009, the external reviewer
found that Appellant’s “grievance [had] merit” and
recommended judicial review. Advisory Opinion of the
External Review for Mr. Gregory English, Fair Case No. 09-
STEH-479, 10 (Nov. 27, 2009), reprinted in J.A. 89.
DMH regulations require that, within ten days, the
Director either ratify or reject the recommendations of the
external reviewer in whole or in part. D.C. MUN. REGS. tit.
22-A, § 308.6. The Director failed to meet this regulatory
deadline.
C. District Court Litigation
In September 2010, Appellant still had not received a
final decision from the Director of DMH. It was then that
Appellant filed suit in the United States District Court for the
District of Columbia. Before the District Court, Appellant
brought (1) a claim under 42 U.S.C. § 1983 alleging that he
had been deprived of property without due process of law in
violation of the Fifth and Fourteenth Amendments, (2) seven
claims under D.C. law, including one for an alleged violation
of the DCAPA, and (3) a claim for declaratory relief against
DMH. Compl. ¶¶ 54-116, reprinted in J.A. 49-59. In relevant
part, Appellant alleged that DMH had deprived him of his
money, in which he had a property interest, without affording
him adequate notice or an adequate opportunity to respond.
He further alleged that he had “no available administrative
remedies” because the Director of DMH had not yet
5
responded to the external reviewer’s Advisory Opinion.
Compl. ¶ 50, reprinted in J.A. 48.
DMH moved to dismiss the constitutional claims on the
grounds that, inter alia, Appellant’s proper avenue of relief
was review by the District of Columbia Court of Appeals
pursuant to the DCAPA. See Defs.’ Reply to Pl.’s Opp’n to
the Defs.’ Mot. to Dismiss 10, reprinted in J.A. 193. On
September 30, 2011, the District Court granted Appellees’
motion to dismiss, declined to take jurisdiction over
Appellant’s supplemental local law claims, and declined to
issue a declaratory judgment in Appellant’s favor. See English
v. District of Columbia, 815 F. Supp. 2d 254 (D.D.C. 2011).
This appeal followed.
D. D.C. Court of Appeals Decision
In September 2010, while this case was pending before
the District Court, DMH issued its decision denying
Appellant’s grievance. See Director’s Decision, No. 09-
STEH-479 (Sept. 23, 2010), reprinted in J.A. 103-05. On the
assumption that the Director’s decision was final and
appealable, Appellant filed a Petition for Review of DMH’s
decision with the D.C. Court of Appeals.
On January 26, 2012, the D.C. Court of Appeals
dismissed Appellant’s Petition for Review for lack of
jurisdiction because there had not yet been a contested case
proceeding as required by D.C. Code §§ 2-509 & 510. Order,
English v. District of Columbia, No. 11-AA-1377 (D.C. Jan.
26, 2012). The court noted that its “dismissal [was] without
prejudice to seeking review upon entry of a final order by the
Office of Administrative Hearings.” Id.
6
II. ANALYSIS
A. Standard of Review
“We review a dismissal for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6) de novo.” Atherton
v. D.C. Office of the Mayor, 567 F.3d 672, 681 (D.C. Cir.
2009). “[W]hen ruling on a defendant’s motion to dismiss, a
judge must accept as true all of the factual allegations
contained in the complaint.” Id. We may consider attachments
to the complaint as well as the allegations contained in the
complaint itself. See E.E.O.C. v. St. Francis Xavier Parochial
Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).
We review the District Court’s decision not to exercise
supplemental jurisdiction for abuse of discretion. Diven v.
Amalgamated Transit Union Int’l & Local 689, 38 F.3d 598,
601 (D.C. Cir. 1994).
B. Appellant’s Contentions Regarding the Requirements
of Due Process
A procedural due process violation under the Fifth
Amendment occurs when a government official deprives a
person of his property without appropriate procedural
protections. See Atherton, 567 F.3d at 689. The procedural
due process protections under the Fifth and Fourteenth
Amendments are the same; however, only the Fifth
Amendment applies to the District of Columbia. Propert v.
District of Columbia, 948 F.2d 1327, 1330 n.5 (D.C. Cir.
1991). Beyond the basic requirements of notice and an
opportunity to be heard, the precise requirements of
procedural due process are flexible. See, e.g., id. at 1332.
Appellant advances two principal claims. He first
contends that the Hospital did not provide him with sufficient
notice before removing funds from his patient account.
Compl. ¶ 57, reprinted in J.A. 49. He also contends that the
7
process that he received did not satisfy the requirements of the
Fifth Amendment. The parties sharply disagree over whether
the DMH external review procedure afforded Appellant
procedural protections sufficient to satisfy the commands of
Mathews v. Eldridge, 424 U.S. 319, 335 (1976) (explaining
that, in assessing the requirements of procedural due process
in any case, a court must weigh (1) the importance of the
private interest at stake, (2) the risk of an erroneous
deprivation of the interest because of the procedures used and
the probable value of additional procedural safeguards, and
(3) the government’s interests, including the cost of additional
procedures). Appellant has conceded, however, that a
contested case proceeding under the DCAPA would have
provided him with procedural protections sufficient to satisfy
the requirements of the Fifth Amendment. Oral Arg. at 5:13-
5:25; 10:58-11:16. Given this concession, the principal issue
regarding the procedural protections afforded Appellant is
whether he knew or reasonably should have known that a
contested case proceeding under the DCAPA was available to
him to challenge the disputed action taken by DMH.
We now turn to the issues of notice and the sufficiency of
the review process available pursuant to the DCAPA.
C. Sufficiency of Notice
Appellant asserts that he never received notice that the
Hospital intended to remove money from his patient account
and that he never consented to the withdrawal of his funds.
The record does not support these contentions. By law, the
Hospital was obliged to charge Appellant for the cost of his
care, and Appellant had notice of the law. On July 14, 2009,
Appellant signed a form acknowledging that he was
“personally responsible to the Hospital and all treating
physicians for all charges not paid in full by insurance
coverage or in the absence of insurance coverage, the full
balance.” See Administrative Consent (July 14, 2009),
8
reprinted in J.A. at 66. On July 28, 2009, DMH provided
Appellant with an invoice for services rendered between
July 1, 2008, and January 31, 2009, and not covered by any
insurance. Invoice, reprinted in J.A. 63. The bill made it clear
that if no payment was received within seven days, the
Hospital reserved the right to transfer Appellant’s funds from
the patient account to cover the amount due. In light of these
undisputed facts, Appellant clearly had notice that, pursuant
to the consent that he signed, he would be charged for his
hospital care not paid for in full by insurance. He was entitled
to nothing more.
Notice under the Due Process Clause need only be
“reasonably calculated . . . to apprise interested parties of the
pendency of the action and afford them an opportunity to
present their objections.” Mullane v. Cent. Hanover Bank &
Trust Co., 339 U.S. 306, 314 (1950). The consent form that
Appellant signed and the subsequent invoice from the
Hospital easily satisfied this standard. Appellant suggests that
notice was deficient because the Hospital never responded to
his written challenge to the invoice. See Compl. ¶ 33,
reprinted in J.A. 44 (alleging that Appellant attempted to
challenge the Invoice). However, Appellant’s alleged inability
to contest the bill concerns the adequacy of the process
afforded him, not the absence of notice. Indeed, Appellant
could not have contested the Invoice without first having
received notice from the Hospital.
D. Sufficiency of the Review Process Available Pursuant
to the DCAPA
Under applicable District of Columbia law,
administrative decisions are subject to direct review in the
D.C. Court of Appeals only if they arise out of “contested
cases.” D.C. CODE § 2-510(a) (“Any person suffering a legal
wrong, or adversely affected or aggrieved by an order or
decision of the Mayor or an agency in a contested case, is
9
entitled to a judicial review thereof in accordance with this
subchapter upon filing in the District of Columbia Court of
Appeals . . . .”); see D.C. CODE § 2-502(8) (defining
“contested case”). Under governing DMH regulations, “[a]ny
party to a [DMH] grievance dissatisfied with the grievance’s
final determination by DMH may request a fair hearing,
pursuant to the [DCAPA].” D.C. MUN. REGS. tit. 22-A,
§ 308.9. A fair hearing “shall meet the requirements of a
contested case proceeding.” D.C. CODE § 7-1231.12(b)(4).
Shortly after Appellant filed his suit in District Court, the
DMH Director issued a decision rejecting Appellant’s
grievance. Appellant did not then seek a contested-case fair
hearing as contemplated by DMH regulations. See D.C. MUN.
REGS. tit. 22-A, § 308.9. To initiate a contested case
proceeding, Appellant should have followed the procedures
outlined in the D.C. Office of Administrative Hearings
regulation, specifically the regulation governing “Beginning a
Case by Requesting a Hearing.” See D.C. MUN. REGS. tit. 1,
§ 2808. This regulation requires an exceptionally brief filing –
far less comprehensive than Appellant’s Complaint –
including, inter alia, “[a] short description of your dispute,”
“[a] description of what you want the judge to do,” and
attaching “[a] copy of any ruling or decision that you are
disputing or appealing.” Id. § 2808.2(a), (b), & (d). Once this
pro forma paperwork was on file, the Office of
Administrative Hearings would have alerted DMH to the
pending action and would have overseen a hearing in
compliance with the DCAPA’s contested case fair hearing
requirements. See D.C. MUN. REGS. tit. 22-A, § 308.9.
On October 31, 2011, instead of initiating a contested
case proceeding, Appellant petitioned the D.C. Court of
Appeals for review of the Director’s Decision. The D.C.
Court of Appeals dismissed Appellant’s petition for review
for want of jurisdiction, finding that “there [had] not yet been
10
a contested case proceeding.” Order, English v. District of
Columbia, No. 11-AA-1377 (D.C. Jan. 26, 2012). The court
did not foreclose the possibility of review. It simply
confirmed that it could not take review until Appellant had
properly pursued a contested case. Id.; see also Capitol Hill
Restoration Soc’y, Inc. v. Moore, 410 A.2d 184, 186-88 (D.C.
1979) (dismissing for want of a contested case and discussing
contested case requirements).
As noted above, Appellant has conceded that a contested
case proceeding under the DCAPA would have provided him
with procedural protections sufficient to satisfy the
requirements of the Fifth Amendment. He argues, however,
that it was not clear to him what the DCAPA offered and
required. This argument is meritless, as Appellant was
represented by counsel for the duration of his grievance
proceeding and appeal. All of the applicable requirements
regarding the DCAPA are published in local statutes and
regulations that are readily available to counsel and to the
general public. See, e.g., Krentz v. Robertson Fire Prot. Dist.,
228 F.3d 897, 904-05 (8th Cir. 2000) (holding that appellant
“could have . . . ascertained the applicability of the [state
APA’s] contested case provisions from a reading of the
statutes and pertinent cases”). Therefore, Appellant had
reason to know that he could not seek review before the D.C.
Court of Appeals without first pursing a contested case
proceeding.
Appellant further claims that he was misled when DMH
“expressly told the district court” that the Director’s decision
was a “final decision” and thus “appealable” to the D.C. Court
of Appeals. Reply Br. for Appellant at 10. During oral
argument before this court, counsel for the District of
Columbia acknowledged the possibility that Appellant might
have been “lulled” into this perception by DMH’s
representations before the District Court. See Oral Arg. at
11
24:45-25:00. It is unfortunate if Appellant was misled by
DMH’s representations that the Director’s decision was final
and appealable. However, the disposition of this case cannot
turn on this consideration. Appellant was clearly notified by
the D.C. Court of Appeals of the availability and necessity of
a contested case proceeding as a prerequisite to review by that
court. Order, English v. District of Columbia, No. 11-AA-
1377 (D.C. Jan. 26, 2012). Yet, even with this notice,
Appellant still failed to initiate a contested case proceeding.
Appellant argues in vain that because “the regulations do
not provide for a procedure to request such a ‘fair hearing’ or
to otherwise continue proceedings beyond the review process
already utilized,” he was unable to avail himself of the
DCAPA procedures. Br. for Appellant at 23. This is simply
not true. As noted above, all of the applicable procedures are
published and readily available to counsel and the general
public. See D.C. MUN. REGS. tit. 1, § 2808. Appellant’s
failure to initiate the required proceeding is his alone.
Finally, DMH points out that Appellant might have had
two other viable options to pursue his case. First, rather than
filing a grievance, Appellant might have been able to file an
immediate petition for review in the Superior Court to
challenge DMH’s decision to take his funds, followed by an
appeal to the D.C. Court of Appeals. See, e.g., Capitol Hill
Restoration, 410 A.2d at 186-88. Second, Appellant might
have been able to petition the Superior Court for a writ of
mandamus when the DMH Director failed to issue a timely
decision on his grievance. See, e.g., Harris v. D.C. Comm’n
on Human Rights, 562 A.2d 625, 633 (D.C. 1989); Dankman
v. D.C. Bd. of Elections & Ethics, 443 A.2d 507, 510 n.5
(D.C. 1981). We need not decide whether these were indeed
viable alternatives for Appellant because he was clearly
notified by the D.C. Court of Appeals of the availability and
necessity of a contested case proceeding as a prerequisite to
12
review by that court. He was not denied procedural due
process. See Logan v. Zimmerman Brush Co., 455 U.S. 422,
437 (1982) (noting that “the State certainly accords due
process when it terminates a claim for failure to comply with
a reasonable procedural or evidentiary rule”).
Because we find that the District Court properly
dismissed Appellant’s complaint, we also find that the District
Court did not abuse its discretion in declining to exercise
supplemental jurisdiction over Appellant’s local law claims.
See Diven, 38 F.3d at 601.
III. Conclusion
For the reasons discussed above, we affirm the judgment
of the District Court.