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Recent Cases from the Public Interest Division

These are among cases handled in recent months by the Office of the Attorney General’s Public Interest Division:

KINGMAN PARK CIVIC ASSOCIATION v. GRAY  13-990
 
Plaintiff Kingman Park Civic Association (KPCA) brought this case, together with motions for a temporary restraining order and a preliminary injunction, seeking to enjoin the District from moving forward with aspects of the planned DC Streetcar line along H Street and Benning Road in Northeast, Washington, DC.  Specifically, Plaintiff seeks to enjoin the District from building overhead streetcar wires along H Street/Benning Road, and from building a Car Barn Training Facility (CBTC) on the campus of the Joel Spingarn Senior High School in Northeast, DC, which has been designated as a District landmark.

Plaintiff’s complaint asserts that the D.C. Council lacks authority under the Home Rule Act to repeal a nineteenth century ban on the construction of overhead wires in the District, and that the Council-passed law authorizing construction of such overhead wires violates the Constitution’s equal protection clause because it allegedly targets predominantly low-income, African-American neighborhoods.  Plaintiff also asserts nine separate counts for violation of the D.C. Environmental Policy Act, the D.C. Human Rights Act, the National Historic Preservation Act, the Federal Aid Highway Act, the D.C. Historic Landmark and Historic District Protection Act, the D.C. Comprehensive Plan, D.C. Zoning Law, the ANC Act, and section 1983 of the federal Civil Rights Act.  KPCA asserts that it will be injured by the planned construction because the planned overhead wires will generate “electric fields” that will adversely impact the health of Kingman Park residents, and that the planned CBTC will “alter the views” of historic properties such as Spingarn High School.  After successfully opposing plaintiff’s motions for a temporary restraining order and preliminary injunction, the District moved to dismiss the complaint in its entirety, or in the alternative, for summary judgment.

In December 2013, plaintiff moved the Court for leave to amend its complaint to add a claim for violation of the Clean Air Act (CAA), which the District opposed.

On May 14, U.S. District Judge Colleen Kollar-Kotelly granted the District’s motion to dismiss in part and held it in abeyance in part.  First, the Court denied plaintiff’s motion for leave to amend its complaint, finding that plaintiff had failed to comply with the pre-suit notice requirements of the CAA.  Second, the Court held that plaintiff lacks standing to challenge the installation of overhead streetcar wires along H Street/Benning Road, and thus the only conduct it can permissibly challenge is the planned construction on the Spingarn campus.  Third, the Court dismissed plaintiff’s claims under the D.C. Human Rights Act, the National Historic Preservation Act, the Federal Aid Highway Act, the D.C. Historic Landmark and Historic District Protection Act, the D.C. Comprehensive Plan, D.C. Zoning Law, the ANC Act, and § 1983 for failure to state a claim.  

The Court held in abeyance the District’s motion to dismiss plaintiff’s claims under the equal protection clause and the DC Environmental Policy Act pending the District’s production of the Environmental Intake Screening Form materials and agency recommendations associated with the project.  The District submitted those in May, and the parties completed supplemental briefing with respect to the District’s motion to dismiss in July. The parties are now awaiting a decision with respect to the District’s motion to dismiss plaintiff’s claims under the equal protection clause and the DC Environmental Policy Act.
 
Assistant Attorney General Chad Naso handled the case.

ABA, et al. v. DC.  2014 cv 550

On May 9, U.S. District Court Judge Rosemary Collyer issued an order denying plaintiff’s request for a preliminary injunction, lifting a temporary restraining order put in place on April 9 and dismissing the lawsuit to allow plaintiffs to exhaust their administrative remedies. She also denied various pending motions as moot.

Plaintiffs were several companies that provided Personal Care Aid (PCA) services to District residents under Medicaid. The Department of HealthCare Finance (DHCF), the District’s Medicaid agency, suspended Medicaid payments to plaintiffs after it found credible allegations of fraud against them. Based on this action by DHCF, the District’s Department of Health (DOH) also made plaintiffs’ business licenses “provisional.” Plaintiffs asked the court to enjoin both agency actions.

In denying the request for a preliminary injunction, Judge Collyer acknowledged that it is “of course, highly appropriate and necessary for DHCF to investigate and eliminate fraud.” She explained, however, that she granted the TRO because she viewed DHCF as intending to terminate plaintiffs’ contracts and to substitute itself and other providers in their place, not merely to suspend payments temporarily. However, in her final ruling she conceded that “the suspension of Medicaid payments is temporary and due process is satisfied by a post-suspension hearing.”

She held that the right to due process is not implicated when a contractor is not completely cut off from doing business with the government, and there is no constitutional right to received Medicaid payments. She also acknowledged that all federal circuits that have addressed the issue have determined that providers to not have a property interest in continued Medicaid payments pending an investigation of fraud. These temporary suspensions do not implicate due process.

Judge Collyer further relied on the fact that the evidence showed that plaintiffs were not obligated to continue providing PCA services without payment indefinitely to determine there likely was no due process violation. Capacity existed within the system to transfer the beneficiaries served by plaintiffs to other PCA providers, or the plaintiffs could continue to provide and bill for services, which would be paid if and when the suspension was lifted. She also held that there is no authority for the proposition that DOH converting a license from full to provisional status gives rise to a due process claim.

In addition, Judge Collyer held that plaintiffs were not likely to succeed on their state law claims. She found that, while the Medicaid provider agreements plaintiffs signed with DHCF require 30 days’ notice for termination, this requirement does not apply to suspensions of payment. Also, the provider agreements incorporate federal regulations by reference, resulting in the likely inability of the plaintiffs to establish a claim for unjust enrichment

Finally, she ruled that, although plaintiffs allege that the administrative remedies available to thema re inadequate and futile, there is no evidence to support these claims (noting that the D.C. Office of Administrative Hearings recently reversed payment suspension and ordered back payment in a similar case filed by another provider that was not a plaintiff here.)

Assistant Attorneys General Keith Parsons and Melissa Baker handled the case.