BARRYMAN-TURNER v. DISTRICT OF COLUMBIA et al

Filing 15

OPINION for Order 14 . See document for details. Signed by Judge Randolph D. Moss on 2/3/2017. (lcrdm2, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
KAREN BERRYMAN-TURNER,1
Plaintiff,
v.

Civil Action No. 14-00035 (RDM)

DISTRICT OF COLUMBIA,
Defendant.

MEMORANDUM OPINION
Plaintiff Karen Berryman–Turner, a former employee of the D.C. Department of
Corrections, alleges that the D.C. Department of Employee Services terminated her disability
compensation benefits without adhering to the requirements of the Due Process Clause of the
Fifth Amendment and District of Columbia law. The Court granted in part the District’s motion
to dismiss the original complaint, see Barryman-Turner v. District of Columbia, 115 F. Supp. 3d
126 (D.D.C. 2015), and Berryman-Turner subsequently filed a seven-count amended complaint,
see Dkt. 10. The first five counts assert constitutional claims under 42 U.S.C. § 1983. Dkt. 10
¶¶ 28–44. The sixth alleges that the District violated subsections 1–623.24(b) and (d) of the D.C.
Code by requiring Berryman-Turner to seek reconsideration of the order terminating her benefits
before allowing her to request an administrative hearing. Dkt. 10 ¶ 46. And the seventh count

The complaints and caption in this case record Plaintiff’s name as “Karen Barryman-Turner.”
See Dkt. 1 at 1; Dkt. 10 at 1. But other documents in the record, including a letter from Plaintiff
to her representative in Congress, spell her name as “Berryman-Turner.” Dkt. 11-4 at 1, 2; see
also Dkt. 11-2 (Termination Notice); Dkt. 11-3 (ALJ Decision); Dkt. 11-5 (Final Compensation
Order). The Court will amend the caption accordingly.
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alleges that Berryman-Turner is or will be entitled to future damages “if a work related injury
worsens.” Dkt. 10 ¶¶ 47–49.
The matter is now before the Court on the District’s Motion to Dismiss and for Summary
Judgment. See Dkt. 11. That motion argues (1) that counts one, three, four, and five are barred
by res judicata; (2) that Berryman-Turner is barred from seeking damages for the violation of
D.C. law alleged in count six under the law-of-the-case doctrine; (3) that Berryman-Turner lacks
standing to assert the claims for injunctive and declaratory relief raised in count seven; and (4)
that Berryman-Turner was afforded all the process she was due in the revocation of her benefits.
Id. at 1. For the reasons set forth below, the Court will GRANT the District’s Motion to Dismiss
and for Summary Judgment.
I. BACKGROUND
The relevant factual background of this case is undisputed. Karen Berryman-Turner
worked as a correctional officer for the D.C. Department of Corrections. Dkt. 10 at 2, ¶¶ 4-5.
During the course of her employment, she suffered two injuries to her head. On March 3, 1996,
while she was lowering a bucket to a co-worker, a strong gust of wind caused a metal crank to
swing at her head, knocking her unconscious. Dkt. 11-4 at 1. Shortly after she returned to work
from that injury, her supervisor, who did not realize that Berryman-Turner was behind him,
slammed a door in her face, causing her to suffer a concussion. Id.; Dkt. 11-3 at 3.
Berryman-Turner received disability compensation benefits from the District for both
injuries. Dkt. 10 at 6–7, ¶¶ 25–26. On April 15, 2003, however, the District notified her of its
intent to terminate her medical benefits effective May 17, 2003. Id. at 7, ¶ 27. The District’s
decision was based on two independent medical reports—an independent medical examination
report dated December 9, 2002, in which Robert A. Smith M.D. opined that “Ms. Berryman-

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Turner could return to work on a full duty basis,” and a second IME report dated April 2, 2003,
in which A. Jerry Friedman, M.D. opined that “Ms. Berryman-Turner is able to return to work
without limitations or restrictions.” Dkt. 11-2 at 1. The District’s notice also informed
Berryman-Turner of her right either to request reconsideration or to appeal the decision to the
Department of Employment Services (“DOES”). Id. The notice provided for an extension of
benefits through the reconsideration process, should Berryman-Turner elect to pursue that
course, but informed her that her benefits would not continue through the appeals process if she
chose that option. Id. Berryman-Turner declined to seek the reconsideration and appealed the
District’s decision to a DOES Administrative Law Judge; as a result, her benefit payments
terminated on May 17, 2003. Dkt. 10 at 7, ¶ 27. The Administrative Law Judge upheld the
revocation of Berryman-Turner’s benefits on October 1, 2003. Id.
Before Berryman-Turner’s benefits were terminated, a class-action suit was brought
against the District challenging “the policies and procedures applied to terminate, suspend, and
modify [the] disability compensation benefits” on behalf of a class of former D.C. employees
whose disability benefits had been terminated. Lightfoot v. District of Columbia (Lightfoot I),
No. 01–1484, 2007 WL 148777, at *1 (D.D.C. Jan. 16, 2007). On January 14, 2004, the Court
certified a class that included “[a]ll persons who have received or will receive disability
compensation benefits” under the relevant provisions of the D.C. Code, and “whose benefits
have been terminated, suspended, or reduced since June 27, 1998 or whose benefits will be
terminated, suspended or reduced in the future.” Lightfoot, No. 01-1484, Dkt. 153 at 1 (D.D.C.
Jan. 14, 2004). The Court subsequently modified the class, limiting it to those “whose benefits
were terminated, suspended or reduced between June 27, 1998 and April 5, 2005.” Lightfoot,

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No. 01-1484, Dkt. 333 at 1 (Apr. 17, 2007). There is no dispute that Berryman-Turner was a
member of both iterations of the Lightfoot class.
Like the present action, the Lightfoot case alleged that the District’s procedures for
terminating or modifying disability benefits violated the Due Process Clause of the Fifth
Amendment and D.C. law, and it sought declaratory and injunctive relief. See Third Am.
Compl., Lightfoot, No. 01–1484, Dkt. 152 at 3, 32 (D.D.C. Sept. 7, 2003). After substantial
motions practice and a related appeal, the Lightfoot court ultimately dismissed all of the classwide claims, except for the as-applied due process challenge to the District’s alleged failure to
provide beneficiaries with an adequate opportunity to show that they were entitled to continue to
receive benefits. See Lightfoot I, 2007 WL 148777, at *1; Lightfoot v. District of Columbia
(Lightfoot II), No. 01-1484, 2007 WL 1087474, at *1 (D.D.C. Apr. 10, 2007). The court
dismissed the facial challenge to D.C. Code § 1623.24(d) because plaintiffs failed to establish
“that no set of circumstances exist under which the [law] would be valid.” Lightfoot II, 2007
WL 1087474, at *4 (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)). The court
dismissed the other constitutional claims on the merits for failure to state a claim. See Lightfoot
I, 2007 WL 148777, at *1. The court then declined to exercise supplemental jurisdiction over
the sole D.C. law claim, and dismissed it without prejudice. Id. Thus, after the Lightfoot court’s
order of April 10, 2007, the only surviving claim against the District was the as-applied
challenge to D.C. Code § 1–623.24(d). Lightfoot II, 2007 WL 1087474, at *6.
After the Lightfoot parties completed further discovery on the remaining claim, the court
concluded that the plaintiffs could “satisfy neither the ‘commonality’ requirement of Rule
23(a)(2) nor the ‘cohesiveness’ requirement of Rule 23(b)(2).” Lightfoot v. District of Columbia

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(Lightfoot III), 273 F.R.D. 314, 324 (D.D.C. 2011). As a result, the Lightfoot court decertified
the class on January 10, 2011. Id. at 339.
II. LEGAL STANDARD
To resolve a motion to dismiss for lack of jurisdiction brought under Federal Rule of
Civil Procedure 12(b)(1), the Court may consider the complaint standing alone or in tandem with
any “undisputed facts evidenced in the record,” and may also resolve any factual disputes
necessary to determine its jurisdiction. Herbert v. Nat’l Academy of Scis., 974 F.2d 192, 197
(D.C. Cir. 1992). The burden of establishing jurisdiction rests on the party asserting it.
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
A motion to dismiss under Rule 12(b)(6) “tests the legal sufficiency of a complaint,”
Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002), and in evaluating such a motion, the
Court “must first ‘tak[e] note of the elements a plaintiff must plead to state [the] claim’ to relief,
and then determine whether the plaintiff has pleaded those elements with adequate factual
support to ‘state a claim to relief that is plausible on its face,’” Blue v. District of Columbia, 811
F.3d 14, 20 (D.C. Cir. 2015) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675, 678 (2009))
(alterations in original) (internal citation omitted). Although “detailed factual allegations” are
not necessary to withstand a Rule 12(b)(6) motion, Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007), “a complaint must contain sufficient factual matter, [if] accepted as true, to ‘state a
claim to relief that is plausible on its face,’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S.
at 570). A plaintiff may survive a Rule 12(b)(6) motion even if “recovery is very remote and
unlikely,” but the facts alleged in the complaint “must be enough to raise a right to relief above
the speculative level.” Twombly, 550 U.S. at 555–56 (quotation marks omitted). In considering
a motion to dismiss for failure to state a claim, the Court “may consider only the facts alleged in

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the complaint, any documents either attached to or incorporated in the complaint and matters of
which [the Court] may take judicial notice.” Trudeau v. FTC, 456 F.3d 178, 183 (D.C. Cir.
2006). “Related proceedings in other courts” are among those matters of which the Court may
take judicial notice. Dupree v. Jefferson, 666 F.2d 606, 608 n.1 (D.C. Cir. 1981).
Finally, to establish entitlement to summary judgment, the moving party must show “that
there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48
(1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is
capable of affecting the outcome of the litigation. Liberty Lobby, 477 U.S. at 248; Holcomb, 433
F.3d at 895. A dispute is “genuine” if the evidence is such that a reasonable jury could return a
verdict for the non-moving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby,
477 U.S. at 248; Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is
genuinely disputed must support the assertion by . . . citing to particular parts of materials in the
record . . . .” Fed. R. Civ. P. 56(c)(1)(A). In considering a motion for summary judgment, “[t]he
evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his
favor.” Liberty Lobby, 477 U.S. at 255; see also Mastro v. Pepco, 447 F.3d 843, 850 (D.C. Cir.
2006). The non-movant’s opposition, however, must consist of more than allegations or denials
and must be supported by affidavits, declarations, or other competent evidence, setting forth
specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(c); Celotex Corp.
v. Catrett, 477 U.S. 317, 324 (1986). The non-movant must provide evidence that would permit
a reasonable jury to find in its favor. See Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C.
Cir. 1987). If her evidence is “merely colorable” or “not significantly probative,” the court may
grant summary judgment to the moving party. Liberty Lobby, 477 U.S. at 249–50.

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III. DISCUSSION
The District moves to dismiss Claims One, Three, Four, Five, Six, and Seven for failure
to state a claim, arguing that Lightfoot I precludes Claims One, Three, Four, and Five; that this
Court’s decision on July 24, 2015 already dismissed what is now Claim Six, see BarrymanTurner, 115 F. Supp. 3d at 137; and that Claim Seven is not ripe for adjudication. The District
moves for summary judgment on Claim Two, Berryman-Turner’s as-applied due process
challenge to the revocation of her benefits. The Court will consider each argument in turn.
A.

Motion to Dismiss: Preclusion
The District advance two variations of the preclusion argument. First, it argues that

Claims One, Three, Four, and Five are barred by the doctrine of res judicata in light of the
decision in Lightfoot I. Second, it argues that Claim Six is barred by the law-of-the-case doctrine
in light of the Court’s previous decision in this case, Barryman-Turner, 115 F. Supp. 3d 126
(D.D.C. 2015). See Dkt. 11 at 3. As explained below, the Court will grant the District’s motion
to dismiss as to all five claims.
1.

Res Judicata

The District argues that Plaintiff’s Claims One, Three, Four, and Five are barred by the
doctrine of res judicata, which “holds that a judgment on the merits in a prior suit bars a second
suit involving identical parties or their privies based on the same cause of action.” Apotex, Inc.
v. FDA, 393 F.3d 210, 217 (D.C. Cir. 2004). In the class-action context, the doctrine means that
“a judgment in a properly entertained class action is binding on class members in any subsequent
litigation.” Cooper v. Fed. Reserve Bank, 467 U.S. 867, 874 (1984). “Dismissal of a case for
failure to state a claim,” moreover, “is an adjudication on the merits with preclusive effect.”
Asemani v. Gov. of Islamic Rep. of Iran, 304 F. App’x 871, 871 (D.C. Cir. 2008) (per curiam)

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(citing Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 399 n.3 (1981)); accord Fed. R.
Civ. P. 41(b). Three elements are required to establish the preclusive effect of a prior
determination of a claim: (1) “the same issue now being raised must have been contested by the
parties and submitted for judicial determination in the prior case” (2) “the issue must have been
actually and necessarily decided by a court of competent jurisdiction in that prior case” and (3)
“preclusion in the second case must not work a basic unfairness to the party bound by the first
determination.” Yamaha Corp. of America v. United States, 961 F.2d 245, 254 (D.C. Cir. 1992).
As to the first requirement, Berryman-Turner admits that she was a member of the
Lightfoot class; indeed, she relied on her class membership to defeat the District’s statute-oflimitations defense at an earlier stage of this case. Dkt. 5 at 3 (“the statute of limitations was
tolled during the time when the Lightfoot case was proceedings and the Plaintiff was a member
of the potential class anticipated by the Lightfoot complaint”). And she admits that “[t]he
Lightfoot Complaint is substantially identical to the [original] Complaint as filed by the Plaintiff
in this matter.” Id. A cursory comparison of the third amended Lightfoot complaint and the
operative first amended complaint in this case reveals that the relevant claims are “substantially
identical”:
Berryman-Turner First Amended
Complaint

Lightfoot Third Amended Complaint

“D.C. Code § 1-624.24(d) on its face permits
the Defendant to modify, suspend or
terminate disability compensation benefits
upon “reason to believe a change of condition

“D.C. Code § 1-623.24(d)2 on its face permits
the Defendants to modify, suspend or
terminate disability compensation benefits
upon “reason to believe a change of

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D.C. Code § 1-623.24 is the current version of the statute governing modification of disability
benefit awards. The complaint in this case mistakenly cites D.C. Code § 1-624.24(d), which was
the identical provision in the 1999 version of the D.C. Code. The current version of § 1-624.24
has no subpart (d), is not relevant to this case, and reads, in its entirety, “[t]he Department of
Employment Services shall submit quarterly reports, until January 1, 1997, on the effectiveness
of outplacement services.” D.C. Code § 1-624.24.
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has occurred” without affording beneficiaries
adequate and timely notice and opportunity to
be heard in violation of the Due Process
Clause of the Fifth Amendment to the United
States Constitution.”

conditions has occurred” without affording
beneficiaries adequate and timely notice and
opportunity to demonstrate a continuing
entitlement to benefits in violation of the Due
Process Clause of the Fifth Amendment to the
United States Constitution.”

Claim One, Dkt. 10 at 7, ¶ 29.
Lightfoot, Third Amended Complaint Claim
One, No. 01-1484, Dkt. 152 at 28, ¶ 132.
“As a matter of standard agency practice, the
notices of termination, suspension, or
modification issued by Defendant violate the
Due Process Clause of the Fifth Amendment
to the United States Constitution in that they
inadequately and inaccurately advise
beneficiaries of their right to appeal adverse
decisions.”

“As a matter of standard agency practice, the
notices of termination, suspension or
modification issued by Defendants violate the
Due Process Clause of the Fifth Amendment
to the United States Constitution in that they
had inadequately and inaccurately advised
beneficiaries of their right to appeal adverse
decisions, failed to inform them of their right
to review their case file, failed to inform them
of the nature of reconsideration review and
failed to advise them of their right to retain a
legal representative.”

Claim Three, Dkt. 10 at 8, ¶ 35.

Lightfoot, Third Amended Complaint Claim
Three, No. 01-1484, Dkt. 152 at 29, ¶ 136.
“As a matter of standard agency practice, the
notices of termination, suspension or
reduction issued by Defendant violate the Due
Process Clause of the Fifth Amendment to the
United States Constitution in that they
provide an insufficient and inadequate
rationale for the decision made.”

“As a matter of standard agency practice, the
notices of termination, suspension or
modification issued by Defendants violate the
Due Process Clause of the Fifth Amendment
to the United States Constitution in that they
provide an insufficient and inadequate
rationale for the decision made, an
insufficient and inadequate statement of facts,
evidence and legal standard relied upon in
making the decision and an insufficient and
inadequate opportunity to appeal such
terminations, suspensions and modifications
timely and successfully.”

Claim Four, Dkt. 10 at 8, ¶ 38.

Lightfoot, Third Amended Complaint Claim
Four, No. 01-1484, Dkt. 152 at 29, ¶ 138.
“As a matter of standard agency practice, the
Defendant fails to engage in Reasoned

“As a matter of standard agency practice, the
Defendants fail to engage in reasoned
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decision making based upon review of a full
record of evidence when terminating,
suspending or reducing benefits in violation
of the Due Process Clause of the Fifth
Amendment to the United States
Constitution.”

decision making based upon review of a full
record of evidence when terminating,
suspending or modifying benefits in violation
of the Due Process Clause of the Fifth
Amendment to the United States
Constitution.”

Claim Five, Dkt. 10 at 9, ¶ 43.

Lightfoot, Third Amended Complaint Claim
Five, No. 01-1484, Dkt. 152 at 29–30, ¶ 140.

As to the second requirement, the court in Lightfoot I granted the District’s motion to
dismiss Claims Three, Four, and Five of the Third Amended Complaint. 2007 WL 148777, at
*1. And in Lightfoot II, the court granted the District’s motion to dismiss Claim One of the
Third Amended Complaint. 2007 WL 1087474, at *1. Berryman-Turner does not contest that
the Lightfoot court properly exercised jurisdiction in that case, and the Court can discern no
reason to doubt that it had jurisdiction to decide the case.
Finally, as to the third requirement, Berryman-Turner does not argue that this case in any
way “work[s] a basic unfairness to the party bound by the first determination,” such as may
occur “when the losing party clearly lacked any incentive to litigate the point in the first [case].”
Yamaha, 961 F.2d at 254.
The Court will, accordingly, grant the District’s motion to dismiss Claims One, Three,
Four, and Five as barred by res judicata.
2.

Law-of-the-Case Doctrine

The District contends that Claim Six fails under the “law of the case” doctrine. Dkt. 11 at
8. That doctrine is a prudential bar that “directs a court not to alter a previous judicial
determination unless unusual circumstances are present.” United States v. Eilberg, 553 F. Supp.
1, 3 (D.D.C. 1981). It rests on the sensible premise that “the same issue presented a second time
in the same case in the same court should lead to the same result.” LaShawn A. v. Barry, 87 F.3d
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1389, 1393 (D.C. Cir. 1996) (en banc). Although a district judge does have the power to
reconsider or revisit an earlier decision, that power should only be used in “extraordinary
circumstances,” Eilberg, 553 F. Supp. At 3, such as when there is an intervening change in the
law or when the previous decision was “clearly erroneous and would work a manifest injustice.”
Id. at 1393–94. Application of the law-of-the-case doctrine thus requires “a two-step process: A
court must first determine whether the threshold requirements are met and [must] then ask
whether there are prudential reasons to ignore the applicable law-of-the-case.” Kimberlin v.
Quinlan, 199 F.3d 496, 500 (D.C. Cir. 1999). Each step in this case is straightforward.
First, the threshold requirements are met because this Court previously dismissed Claim
Six on the ground that Berryman-Turner failed to comply with jurisdictional notice requirements
in D.C. law. Barryman-Turner, 115 F. Supp. 3d at 136–37. As the Court previously explained,
D.C. law requires a plaintiff seeking unliquidated money damages from the District to provide
notice in writing to the Mayor within six months of the injury giving rise to the claim, and the
plaintiff bears the burden of demonstrating compliance with that requirement. Id. BerrymanTurner did not meet that burden with respect to Claim Six in her original complaint, which
alleged in relevant part that “Defendants violate D.C. Code §§ 1-624.24(b) [and] (d) when they
require beneficiaries to seek reconsideration of orders of reduction, suspension or termination
prior to allowing them to request a hearing before a hearing officer.” Dkt. 1 at 9, ¶ 47. She now
alleges the substantively identical claim that “Defendant violate[s] D.C. Code §§ 1-624.24(b)
[and] (d) when [it] require[s] beneficiaries to seek reconsideration of orders of reduction,
suspension or termination prior to allowing them to request a hearing before two hearing
officers.” Dkt. 10 at 9, ¶ 46. Those are the same claim, and they require the same compliance
with the six-month notification requirement. Berryman-Turner’s amended complaint makes no

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mention of any effort to provide the necessary notice, see generally Dkt. 10, and her opposition
to the District’s motion to dismiss similarly ignores the issue, see generally Dkt. 12.
Second, Berryman-Turner has given the Court no reason to change course. She does not
identify any intervening change in the law, previously unconsidered facts, or injustice that would
result from adhering to the Court’s prior holding.
The Court will, accordingly, again dismiss her claim for damages under D.C. law.
B.

Motion to Dismiss: Ripeness
Claim Seven in Berryman-Turner’s amended complaint alleges that “Plaintiff is entitled

to benefits if a work related injury worsens (future damages) including disability benefits and
medical care”; that “Plaintiff continues to experience complications from the head injuries she
sustained while an employee of the D.C. Government in March 1996”; and that “[w]hen those
injuries would ripen into a compensable claim is unknown but the amended compensation
notification process is as defective in this process today as it was when Plaintiff’s injuries first
developed in 1996.” Dkt. 10 at 9, ¶¶ 47–49 (emphases added). It further alleges that “Plaintiff
continues to incur medical expenses related to the head injuries of 1996 and will have those
expenses indefinitely.” Id. at 10, ¶ 50.
This claim requires some parsing. It seems to include two distinct allegations: first, that
Berryman-Turner continues to experience medical problems of the same kind and degree as she
has experienced since 1996; and second, that her medical condition may deteriorate at some
unknown point in the future, entitling her to more or different benefits than she had previously
received. The first allegation raises a substantive (as distinct from procedural) challenge to the
revocation of Berryman-Turner’s benefits, but because she does not expressly make such a
claim, or provide any basis on which she could do so, the Court will not entertain that theory of

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liability here. The second strand of Claim Seven, however, raises a procedural challenge;
Berryman-Turner alleges that her medical condition will worsen sometime in the future and that
she will then need to make a separate application for benefits, which will be subject to the same
procedural hurdles she faced in 1996. The problem for this claim is that the risk of a possible
future procedural hurdle at some unknown date is not the kind of injury that satisfies Article III’s
requirement that federal courts decide only live “cases” and “controversies.” U.S. Const. art. III.
For Berryman-Turner to have standing—and for this Court to have jurisdiction—she must
demonstrate (1) that she suffered or will suffer an “injury in fact”—that is, “an invasion of a
legally protected interest which is (a) concrete and particularized, and (b) ‘actual or imminent,’
not ‘conjectural’ or ‘hypothetical’”; (2) a “causal connection between the injury and the conduct
complained of”; and (3) that it is “likely” that the injury would be “redressed by a favorable
decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). The injury requirement
in the standing inquiry “bears a close affinity to questions of ripeness—whether the harm
asserted has matured sufficiently to warrant judicial intervention.” Warth v. Seldin, 422 U.S.
490, 499 n.10 (1975); see also, e.g., La. Envt’l Action Network v. Browner, 87 F.3d 1379, 1384
(D.C. Cir. 1996) (“[t]hat ripeness considerations should influence our standing analysis . . . is
neither surprising nor troublesome.”). When a plaintiff “seek[s] to enforce procedural (rather
than substantive) rights, [she] must establish that ‘the procedures in question are designed to
protect some threatened concrete interest of [hers] that is the ultimate basis of [her] standing.’”
NB ex rel. Peacock v. District of Columbia, 682 F.3d 77, 81–82 (D.C. Cir. 2012) (emphasis
added). To be sure, the imminence requirement may be relaxed in cases asserting procedural
challenges, id. at 82, but it is not “wholly eliminate[ed].” Ctr. for Law and Educ. v. Dep’t of
Educ., 396 F.3d 1152, 1157 (D.C. Cir. 2005). Ultimately, “the ripeness doctrine . . . prevent[s]

13

courts, through avoidance of premature adjudication, from entangling themselves in abstract
disagreements . . . and also . . . protect[s] . . . agencies from judicial interference until an
administrative decision has been” made “and its effects felt in a concrete way by the challenging
part[y].” Abbott Labs. v. Gardner, 387 U.S. 136, 148–49 (1967), abrogated in part on other
grounds by Califano v. Sanders, 430 U.S. 99, 105 (1977)).
Berryman-Turner’s frank admission that she does not know “[w]hen [her] injuries would
ripen into a compensable claim,” Dkt. 10 at 9, ¶ 49, confirms what is apparent from the rest of
Claim Seven: The risk of injury from some future procedural obstacle to a potential claim for
benefits is too speculative and remote to sustain jurisdiction. It is uncertain whether her medical
condition will worsen; when it will worsen if it does; what procedures would govern a claim for
benefits at that time; or whether and on what basis her hypothetical benefits application would be
denied if and when she ever filed it. Simply put, Berryman-Turner has failed to identify a nonspeculative “concrete interest” that is ripe for adjudication.
C.

Summary Judgment Motion
The District moves for summary judgment on Berryman-Turner’s as-applied due process

challenge, which alleges that “[a]s D.C. Code § 1-624.24(d) is applied, Defendant modifies,
suspend[s] or terminate[s] disability compensation benefits upon ‘reason to believe a change of
condition has occurred’ without affording beneficiaries adequate and timely notice and
opportunity to be heard in violation of the Due Process Clause of the Fifth Amendment to the
United States Constitution.” Dkt 10 at 7–8, ¶ 32.
“The fundamental requirement of due process is the opportunity to be heard at a
meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976).
In practice, the determination of what counts as an opportunity to be heard, or what counts as a

14

meaningful time and a meaningful manner, calls on courts to apply a “flexible” test attuned to
what “the particular situation demands.” Id. at 334. To help guide this determination, courts
must weigh three factors: “First, the private interest that will be affected by the official action;
second, the risk of an erroneous deprivation of such interest through the procedures used, and the
probable value, if any, of additional or substitute procedural safeguards; and finally, the
Government’s interest, including the function involved and the fiscal and administrative burdens
that the additional or substitute procedural requirements would entail.” Id. at 335.
On its face, Claim Two of Berryman-Turner’s amended complaint is sweeping and might
implicate any of a number of different facets of the process that led to her losing her benefits.
But in her opposition to the District’s summary judgment motion, Berryman-Turner narrows the
issue before the Court to a single question: whether the District violated due process by
terminating her disability compensation benefits on May 17, 2003, based on the independent
medical examinations of two doctors, while failing to provide her with copies of the reports upon
which the District relied until July 1, 2003, the day of her administrative hearing. Dkt. 12 at 4–6.
As Berryman-Turner tells it, “her benefits [were] terminated with no more specificity as to the
basis . . . than the twenty five words contained in” the notice of termination. Id. at 5. She adds
that the District “could have cured th[is] defect in their termination process by supplying a copy
of the medical records upon which the decision was made” and that she was, as a result, “denied
meaningful evidence used to determine her disability by the” District. Id. Although far from
clear, her claim might be understood either (1) to challenge her loss of benefits for the six weeks
between May 17, 2003—when the termination took effect—and July 1, 2003—when she
received the medical reports—without sufficient explanation and support, or (2) to challenge the
fairness of her administrative hearing on the ground that she did not receive the reports

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sufficiently in advance of the hearing to allow for adequate preparation. Either way, however,
her claim fails.
Most significantly, to the extent that Berryman-Turner’s argument implies that the
District refused to make the medical records available to her, that is incorrect. The District
admits that it did not send her copies of the reports or tell her that they were available for her
inspection. See Dkt. 13 at 2. But the undisputed evidence shows that, as a matter of policy, the
District would have made those reports—and in fact, her entire file—available upon request.
Dkt. 13-2 at 5–6 (Patterson Decl.).3 A similar claim, in fact, was raised and rejected in Lightfoot
I. There, Judge Kollar-Kotelly concluded that, “while Plaintiffs allege that the notices provided
to claimants insufficiently advised them that they could access their case files it appears that
claimants were, as a matter of policy, afforded such access.” Lightfoot I, 2007 WL 148777, at
*11 n.6. As a member of the plaintiff class in that case, Berryman-Turner would be hard pressed
to explain why Judge Kollar-Kotelly’s decision does not bind her, see Yamaha, 961 F.3d at 254,
but, in any event, Berryman-Turner makes no effort to dispute the accuracy of the District’s
description of its policy on access to case files. Accordingly, the Court will accept the
uncontested evidence that Berryman-Turner had only to ask to be given access to her medical
reports at any time after the notice of termination. Moreover, because Berryman-Turner was
represented by counsel at her administrative hearing, see Dkt. 11-3 at 1, she was not left to
navigate the District’s bureaucracy unaided.
Berryman-Turner’s claim fails for other reasons as well.

3

The deposition of Alonzo Patterson, Associate Director of the Office of Benefits
Administration Disability Compensation Program within the Bureau of Labor Standards in the
D.C. Department of Employment Services, was part of the summary judgment record in
Lightfoot. See Lightfoot, No. 01-1484, Dkt. 429-24.
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To the extent her claim focuses on her loss of benefits between the notice of termination
and her administrative hearing, that injury is largely self-inflicted. Berryman-Turner had the
option of pursuing reconsideration, which would have kept her benefits in place for the duration
of that proceeding. Dkt. 11-2. In the course of seeking reconsideration, moreover, BerrymanTurner could have requested access to the medical reports and could have raised any deficiencies
with the reports before her benefits were terminated.
To the extent Berryman-Turner’s claim focuses instead on the allegation that she did not
receive the medical reports until the day of the administrative hearing, see Dkt. 12 at 5, that
claim also fails. Applying the three factors laid out in Mathews, the Court concludes that,
although the cost to Berryman-Turner of an erroneous deprivation would have been high, and the
costs to the District of providing copies of her medical reports or information on how to obtain
them would have been low, the incremental decrease in the risk of an erroneous deprivation that
Berryman-Turner’s preferred procedure would have afforded would have been negligible in this
case.
With respect to the first Mathews factor, Berryman-Turner’s private interest in avoiding a
wrongful deprivation was substantial. If she truly was unable to work at the time her benefits
were revoked, the decision would very likely have imposed a substantial hardship on her.
Similarly, the third Mathews factor supports her Due Process claim. It would have cost the
District little to make Berryman-Turner aware of the procedure for obtaining her medical records
in its notice of proposed termination, and it would have cost next to nothing to send copies of the
reports with that notice.
The problem for Berryman-Turner lies in the second Matthews factor—the risk of an
erroneous deprivation given the procedures used, as compared to the risk that would have existed

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had the District employed the additional procedures she proposes. Receiving copies of the
medical reports in advance of the hearing might have allowed Berryman-Turner to prepare and to
present an expert rebuttal of the conclusions in those reports. The Administrative Law Judge did
consider a report Berryman-Turner submitted from an independent neurologist, as well as the
reports of her treating physician. See Dkt. 11-3 at 6, 7 (Administrative Law Judge Decision).
Yet she fails to explain how those witnesses might have modified or supplemented their reports
if they had received the reports from the District’s experts in advance of the hearing, and, more
generally, she fails to identify any additional evidence she would have offered or argument she
would have made. The record in Berryman-Turner’s administrative proceeding, moreover, was
kept open for ten days after the hearing to allow the District to submit additional evidence on a
question relating to damages. See Dkt. 11-3 at 1. Had Berryman-Turner requested the same
courtesy, it would have allowed her ample time to submit any additional evidence or arguments
to rebut the medical records the District relied upon that was not available during the hearing, or
to request an extension of time to submit additional evidence.
As the Supreme Court explained in Mathews, “the decision whether to discontinue
disability benefits will turn, in most cases, upon ‘routine, standard, and unbiased medical reports
by physician specialists’ concerning a subject whom they have personally examined.” Mathews,
424 U.S. at 344 (quoting Richardson v. Perales, 402 U.S. 389, 404 (1971)). The Court stressed
the “reliability and probative worth of written medical reports,” and emphasized that “while there
may be ‘professional disagreement with the medical conclusions’ the ‘specter of questionable
credibility and veracity is not present.” Id. (quoting Richardson, 402 U.S. at 405). Even if such
concerns might “be a factor in the ultimate disability assessment in some cases,” the Court noted

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that “procedural due process rules are shaped by the risk of error inherent in the truthfinding
process as applied to the generality of cases, not the rare exceptions.” Id.
Because Berryman-Turner offers no argument that earlier receipt of the medical reports
would have made any difference in her case, the Court will grant summary judgment in favor of
the District on Claim Two.
CONCLUSION
For the reasons discussed above, the Court will GRANT the District’s motion to dismiss
Claims One, Three, Four, Five, and Six as precluded, and to dismiss Claim Seven for lack of
jurisdiction. It will also GRANT the District’s motion for summary judgment on Claim Two.
A separate order will issue.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge

Date: February 3, 2017

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