Psychas v. Dist. Dep't of Transp.
| Decision Date | 24 September 2019 |
| Docket Number | Civil Action No. 18-0081 (ABJ) |
| Parties | ELLEN PSYCHAS, et al., Plaintiffs, v. DISTRICT DEPARTMENT OF TRANSPORTATION, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
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] ( ). Plaintiffs opposed the motion on July 23, Pls.' Opp. to Defs.' Mot. [Dkt. # 21] ( ), and defendants replied on August 3. Defs.' Reply to Pls.' Opp. [Dkt. # 23] ( ). 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] ( ).
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 housein 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 throughDDOT'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 calledPsychas 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...
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