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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:

NB V. DISTRICT OF COLUMBIA, 1:10-CV-1511

U.S. District Judge Richard Leon dismissed the NB case, a major challenge to the D.C. Medicaid Program, on March 31, 2014.  The putative class action alleged that Medicaid recipients in the District were being denied notice of their right to a fair hearing when they went to a pharmacy and were not immediately given an expected prescription drug.  Plaintiffs alleged a number of fact patterns surrounding this phenomenon, including the fact that sometimes Medicaid provided generic substitutes, sometimes the recipient’s doctor forgot to provide the required prior authorization, and sometimes the pharmacy itself made a mistake.  Judge Leon accepted the District’s argument that these instances of trouble getting prescriptions are neither a “denial” under Medicaid law, nor a “deprivation” under the 5th Amendment.  He also ruled that mistakes by pharmacists were not due to any state action by the District of Columbia, further dooming Plaintiffs’ claims.  The combination of these two lines of reasoning—that some issues were not denials, and that others were not the fault of the District—was enough to dismiss plaintiffs’ federal claims entirely.  Related state claims were also dismissed due to lack of  jurisdiction.

The case was handled by Assistant Attorneys General Keith Parsons and Matthew Blecher.

ZUKERBERG V. DISTRICT OF COLUMBIA BOARD OF ETHICS AND ELECTIONS, ET AL., 2013 CA 0008004 B

On February 26, 2014, D.C. Superior Court Judge Laura Cordero dismissed Paul Zukerberg’s  lawsuit alleging that a 2010 D.C. Charter Amendment required that the Attorney General be elected this year.  Zukerberg contended that because the Charter Amendment stated that the first election for the position “shall be after January 1, 2014,” the election must be held in that year. Last fall, the D.C. Council approved a bill saying that the election should not be held before 2018.  In her ruling, Judge Cordero said that the “plain and ordinary meaning” of the measure is that the 2018 date set by the Council is consistent with the referendum. She noted “that there is no ambiguity in the meaning of ‘after January 1, 2014,’ and the plain meaning of the word ‘after’ controls.”  Further, she held that Zukerberg’s interpretation of the Charter Amendment would inappropriately invalidate other portions of the same law.  Zukerberg’s motion for a preliminary injunction was previously denied by Judge Cordero, and his interlocutory appeal was dismissed by the Court of Appeals on February 25.  He also filed a previous suit on the same grounds in U.S. District Court that was dismissed on ripeness grounds.  The ruling, which Zukerberg is appealing, helps assure that the transition to an elected attorney general will go smoothly and with proper time for the Council to consider any remaining legal issues concerning that change.  

The case was handled by Assistant Attorneys General Matthew Blecher and Keith Parsons.

ROBINSON V. DISTRICT OF COLUMBIA, 13-CV-1297

Metropolitan Police Department Sgt. Mark Robinson sued the department pursuant to Title VII of the Civil Rights Act and the District of Columbia Whistleblower Protection Act alleging that he was removed from the department’s speed camera unit based on his race and in retaliation for reporting purported errors in the setup of the cameras.  On January 29, 2014, U.S. District Judge Ellen Segal Huvelle summarily dismissed all of plaintiff’s claims based on the doctrine of judicial estoppel.  The court found that because Sgt. Robinson failed to disclose the existence of his potential claims against the District during his bankruptcy proceedings, he could not raise them in a civil suit, as doing so would allow him to take inconsistent positions before the District Court and Bankruptcy Court.  Relying primarily on Moses v. Howard University Hospital, 606 F.3d 789 (D.C. Cir. 2010), the Court found that permitting plaintiff to proceed here would serve to undermine any debtor’s incentive to be truthful in bankruptcy proceedings.  Finally, because plaintiff was plainly aware of his claims and indeed had filed claims with the Equal Employment Opportunity Commission, the Court rejected his attempt to claim inadvertence in failing to disclose his claims in bankruptcy.

The case was handled by Assistant Attorney General Chad Copeland.

AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES LOCAL 2401, ET AL., V. DISTRICT OF COLUMBIA, 09-CV-1804

On September 21, 2009, thirty former employees of the District’s Department of Health Care Finance (DHCF) and their union filed a lawsuit against the District based on a 2009 realignment at DHCF that included both a reduction in force (RIF) and post-RIF hiring.  After amending their complaint three times, plaintiffs ultimately brought equal protection claims for race discrimination under § 1981 of the federal Civil Rights Act, age and race discrimination under § 1983, age and race discrimination under the District of Columbia Human Rights Act , and violations of the District’s own RIF regulations.  In 2011, the United States District Judge Barbara Rothstein partially granted the District’s motion to dismiss, disposing of the claim concerning violations of the District’s RIF regulations due to Plaintiffs’ failure to exhaust their administrative remedies under the Comprehensive Merit Protection Act.

Following Plaintiffs’ repeated failures to comply with their discovery obligations, the District successfully moved for sanctions.  Thirteen of the original thirty plaintiffs failed to comply with an order by Judge Rothstein and were dismissed from the case.   Judge Rothstein also ordered plaintiffs to pay $5,000 in attorneys’ fees to the District.

At the conclusion of discovery on the merits, the District filed a motion for summary judgment.  The District argued that there was ample evidence to support DHCF’s legitimate, nondiscriminatory reasons for conducting the RIF and  making its later hiring decisions as well as an utter lack of evidence of discriminatory intent. The motion emphasized both the transparent, objective approach to DHCF’s decision-making process and the statistical evidence showing that the age and race of the DHCF workforce did not change appreciably as a result of the realignment.  On March 26, 2014, Judge Rothstein granted the District’s motion in full and dismissed the case with prejudice.

The case was handled by Assistant Attorneys General Gary Feldon and Doug Rosenbloom.

UMC DEVELOPMENT, ET AL. V DC, ET AL., 2013CA3789

On January 14, 2014, D.C. Superior Court Judge Frederick H. Weisberg granted the District’s motion to dismiss the case.  In  2007, plaintiffs had entered in to an agreement  with SHA to develop the real estate surrounding United Medical Center. , They claimed that the District’s alleged wrongful foreclosure upon United Medical Center in 2010 harmed their ownership interest in this real estate.

First, Judge Weisberg found that the plaintiffs’ lacked standing to pursue their claims against the District.   

Second, Judge Weisberg found that, even if the plaintiffs had challenged the District’s refusal to consent to the conveyance of the development  land to them, any such claim would be barred by the District’s sovereign immunity.  

Judge Weisberg also found that DC Code 12-309 precluded two counts on which plaintiffs sought unspecified amounts of monetary compensation.

Plaintiffs still have two constitutional claims, a due process and a takings claim, pending before the U.S. District Court. But the lack of standing that prevents them from pursuing their claims predicated on the foreclosure in Superior Court also prevents them from pursuing their constitutional claims. And, importantly, having litigated these issues before the D.C. Superior Court, they cannot re-litigate these issues before the District Court.

The case was handled by Senior Assistant Attorney General Tom Koger, and Assistant Attorneys General Melissa Baker and Robert Rich.

CAPITAL BEHAVIORAL HEALTH, LLC V. DISTRICT OF COLUMBIA, ET AL., 2011 CA 009881 B

A judge ruled for the District in a suit brought by Capital Behavioral Health, LLC (CBH), which contended that the District’s foreclosure on United Medical Center (UMC) in 2010 interfered with CBH’s right to occupy space at UMC, the only full-service hospital in the District east of the Anacostia River. CBH argued that it had a lease with UMC’s former owners to operate a psychiatric unit within the hospital and had a memorandum of understanding that it could purchase UMC from the former owners.

On April 11, 2014 D.C. Superior Court Judge Frederick H. Weisberg granted summary judgment in favor of the District and a co-defendant, the Not-For-Profit Hospital Corporation (NFP).  After a detailed examination of the record in the 2011 lawsuit, the court found that CBH lacked legal standing to pursue all but one of its claims against the District and NFP and that the remaining claim lacked any merit.  CBH had sought more than $100 million in damages.
Because CBH lacked a valid and enforceable lease, Judge Weisberg found that the District’s foreclosure on UMC could not have harmed CBH’s leasehold interests. The court said that CBH could not buy UMC without prior written approval from the District or from the public/private partnership through which a large portion of the loans used for the purchase were made. The MOU expired on July 1, 2010, before the foreclosure on July 9, 2010.
CBH could not force the District to pay a judgment CBH had obtained against CMC LLC, a private, non-District entity that was formed to own and operate the hospital, the court found.

Senior Assistant Attorney General Tom Koger and Assistant Attorneys General  Melissa Baker  and Robert Rich handled the case.