RICHARD J. LEON, United States District Judge
Nine Medicaid recipients ("plaintiffs") bring this suit against the District of Columbia,
This Court previously granted defendants' Motion to Dismiss ("Defs.' First Mot.") [Dkt. #10] on the ground that plaintiffs lacked standing, see NB v. District of Columbia, 800 F.Supp.2d 51 (D.D.C.2011), but plaintiffs successfully appealed that ruling, see NB ex rel. Peacock v. District of Columbia, 682 F.3d 77 (D.C.Cir.2012). Following remand from our Circuit Court, now pending before this Court are the remaining grounds in defendants' first Motion to Dismiss, as well as defendants' subsequent Motion to Dismiss, or, in the Alternative, for Summary Judgment ("Defs.' Second Mot.") [Dkt. #46] and Memorandum of Points and Authorities in Support ("Defs.' Second Mem.") [Dkt. #46-1]. Upon consideration of the pleadings and relevant law, defendants' Motions to Dismiss are GRANTED.
Congress established the Medicaid program under Title XIX of the Social Security Act ("Grants to States for Medical Assistance Programs"), 42 U.S.C. § 1396 et seq. Medicaid is a "cooperative federal-state program that provides federal funding for state medical services to the poor." Frew v. Hawkins, 540 U.S. 431, 433, 124 S.Ct. 899, 157 L.Ed.2d 855 (2004). Rather than directly providing health care services to eligible individuals or providing them with funds to purchase health care, Medicaid typically functions as a provider payment program, wherein the program reimburses approved providers for their services. See 42 U.S.C. § 1396a(a)(32); Am. Compl. ¶ 21.
Medicaid is financed by both the federal and state governments and is administered by state agencies that are responsible for deciding eligibility, services provided, and all related procedures. See 42 U.S.C. § 1396a(a)(2), (5); 42 C.F.R. § 430.0. In the District of Columbia, the Department of Health Care Finance ("DHCF") is the state agency responsible for administering D.C.'s Medicaid program. See 42 U.S.C. § 1396a(a)(5); 42 C.F.R. § 431.10; D.C.Code § 7-771.07(1).
States electing to participate in Medicaid must comply with requirements imposed by federal law, including procedural protections for Medicaid recipients. NB ex rel. Peacock, 682 F.3d at 80. As relevant in this case, the state must provide a Medicaid recipient with written notice of his right to a hearing "at the time" the state takes "any action affecting his ... claim." 42 C.F.R. § 431.206(b), (c)(2). Such notice must contain a statement of what action the state intends to take, the reasons for that action, the specific regulations supporting the action, the individual's
D.C.'s Medicaid program includes coverage for prescription drugs: DHCF provides reimbursement to licensed, participating pharmacies for covered out-patient drugs dispensed to eligible Medicaid recipients. Am Compl. ¶ 32. As encouraged by the Medicaid statute and regulations, D.C. uses an electronic claims management ("ECM") system in order to facilitate the processing of Medicaid claims for prescription drug coverage at the point of sale. See Am. Compl. ¶¶ 33-34; 42 U.S.C. § 1396r-8(h); 42 C.F.R. § 456.722. DHCF contracts with a third party company, Xerox,
Plaintiffs, who suffer from various ailments that necessitate treatment with prescription drugs, all receive Medicaid benefits in the District of Columbia. Am. Compl. ¶¶ 5-13. They allege that on various occasions their prescription drug coverage under Medicaid was "denied, terminated, reduced, or delayed," and that D.C. took such actions without providing them with legally-required timely and adequate written notice of the reasons for coverage denials or reductions, the right to request a hearing, and the circumstances under which coverage would be reinstated if a hearing was requested. Id. ¶¶ 48-174.
More specifically, in their complaint plaintiffs allege multiple instances in which they went to fill prescriptions at pharmacies, were told by the pharmacies that Medicaid would not cover the prescriptions, and were not given written notice of either the reasons for the rejections or their procedural rights. Id. As a result, plaintiffs allege that in some cases they had to pay out-of-pocket for medication. E.g., id. ¶¶ 50, 52 (plaintiff NB); id. ¶¶ 67-68, 77 (plaintiff Doe). In other cases, plaintiffs allege that they were able to obtain their prescriptions, covered by Medicaid, at a different pharmacy, e.g., id. ¶ 57 (plaintiff Wynn); id. ¶ 97 (plaintiff Anderson), or at the original pharmacy at a later time or date, e.g., id. ¶ 103 (plaintiff Rucker); id. ¶ 67 (plaintiff Doe); id. ¶ 163 (plaintiff Maldonado), or instead were able to obtain an emergency supply from D.C., id. ¶ 60 (plaintiff Wynn). In still other instances, the pharmacy, rather than refusing to fill a plaintiff's prescription altogether, instead filled a generic drug or other substitute formulation, id. ¶ 79 (plaintiff Doe); id. ¶ 161 (plaintiff Maldonado), or a dosage formulation different from the one actually prescribed, id. ¶¶ 59-60 (plaintiff Wynn).
Plaintiffs further allege that in many cases the pharmacy did not explain to them why a given prescription was not covered by Medicaid and thus would not be filled, e.g., id. ¶ 50 (plaintiff NB), but in some cases the pharmacy did give a reason,
Plaintiffs also allege that doctors and pharmacists committed errors or omissions that led to problems for plaintiffs in filling prescriptions. For instance, plaintiffs describe numerous occasions on which doctors failed to submit prior authorizations in a timely manner, e.g., id. ¶¶ 59-60 (plaintiff Wynn); id. ¶ 119-122 (plaintiff Robinson), or in a complete and adequate form, id. ¶¶ 107-108 (plaintiff Rucker), or failed to submit or renew them altogether, id. ¶¶ 77, 81-82 (plaintiff Doe). Moreover, plaintiffs allege that pharmacists made errors in several ways, such as filling an incorrect dosage formulation different from the one actually prescribed, id. ¶¶ 59-60 (plaintiff Wynn), unilaterally reducing the number of inhalers a plaintiff received by mistakenly claiming that Medicaid only covered one, id. ¶ 67 (plaintiff Doe), and submitting the wrong Medicaid identification number for a plaintiff, id. ¶ 102 (plaintiff Rucker). Plaintiffs also cite examples of pharmacies allegedly experiencing problems with their computer systems, including the computer inaccurately reflecting the patient as not covered by Medicaid, id. ¶¶ 102-103 (plaintiff Rucker), or as "inactive" for some unknown reason, id. ¶¶ 146, 150, 153 (plaintiff Tatum).
Five of the plaintiffs initiated this action on September 7, 2010. See Compl. [Dkt #3]. Defendants moved to dismiss the complaint for lack of standing under Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim under Rule 12(b)(6). See Defs.' First Mot. I granted defendants' motion on the ground that plaintiffs lacked Article III standing and dismissed the case. See NB v. District of Columbia, 800 F.Supp.2d 51 (D.D.C.2011). Plaintiffs appealed, and on June 8, 2012, our Circuit Court reversed, finding that plaintiffs had alleged facts sufficient to establish that at least one plaintiff, John Doe, had standing on a procedural injury theory. See NB ex rel. Peacock v. District of Columbia, 682 F.3d 77 (D.C.Cir.2012); see also Comcast Corp. v. FCC, 579 F.3d 1, 6 (D.C.Cir.2009) ("if one party has standing in an action, a court need not reach the issue of the standing of other parties when it makes no difference to the merits of the case" (internal quotation marks and citation omitted)). Accordingly, the remaining grounds for dismissal in defendants' first Motion to Dismiss are still pending.
Following remand from our Circuit Court, plaintiffs moved to amend their complaint to add four new plaintiffs and new facts. See Pls.' Consent Mot. for Leave to Amend and to Supplement their Compl. and to Add Pls. [Dkt. #42]. I granted the motion, and on June 21, 2013, plaintiffs filed their Amended Complaint [Dkt. #43], which made no changes to their legal causes of action.
A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests whether the plaintiff has pleaded facts sufficient to "raise a right to relief above the speculative level," assuming that the facts alleged are true. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "While a complaint should not be dismissed unless the court determines that the allegations do not support relief on any legal theory, the complaint nonetheless must set forth sufficient information to suggest that there is some recognized legal theory upon which relief may be granted." District of Columbia v. Air Fla., Inc., 750 F.2d 1077, 1078 (D.C.Cir. 1984). "[A] plaintiff's obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (alteration in original) (internal quotation marks and citation omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ("Nor does a complaint suffice if it tenders `naked assertion[s]' devoid of `further factual enhancement.'" (citing Twombly, 550 U.S. at 557, 127 S.Ct. 1955)). Indeed, "where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not `show[n]' — `that the pleader is entitled to relief.'" Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 (alteration in original) (quoting Fed.R.Civ.P. 8(a)(2)).
In considering a motion under Rule 12(b)(6), a court must construe the complaint in a light favorable to the plaintiff and must accept as true plaintiff's reasonable factual inferences. See Howard v. Fenty, 580 F.Supp.2d 86, 89-90 (D.D.C. 2008); Smith v. United States, 475 F.Supp.2d 1, 7 (D.D.C.2006) (citing EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.Cir.1997)). However, courts need not accept as true "a legal conclusion couched as a factual allegation," nor an inference "unsupported by the facts set out in the complaint." Trudeau v. Fed. Trade Comm'n, 456 F.3d 178, 193 (D.C.Cir.2006) (internal quotation marks and citations omitted). The court "may consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint[,] and matters of which [the court] may take judicial notice." EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d at 624.
Plaintiffs' complaint can be distilled to one basic claim: any time a Medicaid recipient presents a prescription at a pharmacy (which may occur hundreds or thousands of times per day in D.C., see Am. Compl. ¶¶ 44-45), is informed by the pharmacy that Medicaid will not cover the drug (for any number of reasons), and the pharmacy visit ends with the recipient being unable to obtain the medication or having to pay out-of-pocket, the recipient has suffered both a "denial" of his claim for the prescription drug, in violation of federal Medicaid law, and a "deprivation" of his property interest in receiving that drug, in violation of the Constitution. Therefore, according to plaintiffs, the recipient is entitled to individually-tailored written notice explaining the reasons for the rejection and an opportunity for a hearing. See, e.g., Am. Compl. ¶ 53; see Pls.' Opp'n to Defs.' Mot. to Dismiss, or, in the Alternative, for Summ. J. ("Pls.' Second Opp'n") [Dkt. #48] at 43.
Much ink has been spilled by the parties on the threshold issue of whether the various alleged instances in which plaintiffs were unable to fill prescriptions constitute "denials" or "deprivations" of covered
Under Title XIX of the Social Security Act, D.C. must provide an opportunity for a fair hearing to a Medicaid recipient "whose claim for medical assistance under the [state] plan is denied or is not acted upon with reasonable promptness." 42 U.S.C. § 1396a(a)(3). "Medical assistance" means "payment of part or all of the cost of" various "care and services," including "prescribed drugs." Id. § 1396d(a)(12). Although the statute does not define "denied," the implementing regulations restrict this term by delineating the specific circumstances in which a Medicaid recipient is entitled to written notice of his right to a hearing — that is, "at the time" the state takes "any action affecting his ... claim." 42 C.F.R. § 431.206(b), (c)(2). And "action," in turn, means "a termination, suspension, or reduction of Medicaid eligibility or covered services." Id. § 431.201. Accordingly, in order to state a claim under the federal Medicaid statute, plaintiffs must adequately allege that a state actor terminated, suspended, or reduced their Medicaid benefits for covered prescription drugs.
Not surprisingly, plaintiffs have cast their factual allegations in just such language. See, e.g., Am. Compl. ¶ 1 (alleging that defendants have a policy of failing to provide notice and an opportunity for a hearing "when [plaintiffs'] prescription drug coverage is denied terminated, reduced, or delayed"); id. ¶¶ 48-53 (alleging that "coverage of NB's prescription was being denied" when NB's mother presented a prescription at a pharmacy and was told that the pharmacy's computer showed NB as ineligible for Medicaid). In plaintiffs' telling, when a Medicaid recipient presents a prescription and the pharmacy, using the ECM system, submits an electronic claim to Xerox "to determine coverage," if the pharmacy receives a reply message indicating the prescription is not covered by Medicaid, the claim has been "denied." Am. Compl. ¶¶ 33-34.
But while this Court must construe the complaint in a light favorable to the plaintiffs
First, under the plain language of the federal Medicaid statute and applicable regulations, plaintiffs have failed to state a claim because they have not alleged, when a pharmacy refused to fill a certain subset of prescriptions, that defendants "denied," "terminated," "suspended," or "reduced" their "covered services" — i.e. covered prescription drugs. See 42 C.F.R. § 431.206(b), (c)(2); id. § 431.201; Defs.' Second Mot. at 1-2; Defs.' Second Mem. at 9-10. In short, if a prescription does not meet certain threshold criteria established by state law, it is not a "covered" drug, and therefore a pharmacy's refusal to fill it is not a legal "denial" of a covered benefit.
It is undisputed that federal law permits states to place restrictions on prescription drugs covered by Medicaid. See 42 U.S.C. § 1396r-8(d)(1), (5) (permitting prior authorization programs subject to certain requirements); 42 C.F.R. § 440.230(d) ("The agency may place appropriate limits on a service based on such criteria as medical necessity or on utilization control procedures."); D.C. Mun. Regs. Tit. 29, § 2706 ("Limitations and Requirements for Certain Services"); see also Pharm. Research and Mfrs. of Am. v. Walsh, 538 U.S. 644, 665, 123 S.Ct. 1855, 155 L.Ed.2d 889 (2003) ("the Medicaid Act gives the States substantial discretion to choose the proper mix of amount, scope, and duration limitations on coverage, as long as care and services are provided in the best interest of the recipients" (internal quotation marks and citation omitted)). Pursuant to that authority, D.C. has mandated certain coverage restrictions, including a "prior authorization" requirement for certain drugs — such as "nonpreferred" drugs listed on the Preferred Drug List ("PDL"),
Simply put, just because a Medicaid recipient is entitled to coverage of prescription drugs in general does not mean he is entitled to receive any drug under the sun. Nor, therefore, is he entitled to receive notice and a hearing when a pharmacy declines to fill just any prescription whatsoever. To the contrary, the term "covered services" means those drugs that are covered by Medicaid, which drugs are circumscribed by the limits D.C. has lawfully imposed.
Next, to the extent plaintiffs have adequately alleged in their other factual allegations that any covered drug was rejected by a pharmacy (or filled with a lower quantity or dosage), plaintiffs have still failed to state a statutory claim because they have failed to allege whether and how defendants took any state action that would render such rejections legal "denials" within the meaning of the statute and regulations. See Rosen v. Goetz, 410 F.3d 919, 926 (6th Cir.2005) ("These [Medicaid] provisions apply where ... a State takes an `action,' which the regulations define as `a termination, suspension, or reduction of Medicaid eligibility or covered services.'" (citing 42 C.F.R. § 431.201) (emphasis added)).
As defendants point out, plaintiffs' complaint is replete with detailed factual allegations concerning the actions of doctors and pharmacies that led to problems for plaintiffs in filling prescriptions. See Defs.' First Mot. at 20-21; Defs.' Second Mem. at 22. For instance, plaintiffs allege that doctors failed to submit or renew prior authorizations, pharmacies experienced computer problems, and pharmacists made errors, including individual decisions not to fill prescriptions or requested formularies. See supra Factual Background.
According to plaintiffs' own complaint, then, their inability to procure medications on certain occasions is attributable to a range of acts or omissions by private actors — including errors or oversights by doctors and pharmacists (and perhaps the patients themselves). But since D.C. did not perform any of those acts (or omissions), it follows that none of those circumstances involved state action in terminating, suspending, or reducing plaintiffs' Medicaid coverage for prescription drugs. See Rosen, 410 F.3d at 926. And, in comparison to these specific allegations regarding doctors and pharmacists, plaintiffs' allegations in their complaint against D.C. are merely conclusory. See, e.g., Am. Compl. ¶¶ 48-53 (alleging facts regarding plaintiff NB — including that NB's mother attempted to fill a prescription, was told by the pharmacist that NB was ineligible for Medicaid coverage, paid out-of-pocket for the medication, and then was reimbursed by the pharmacy one week later when the pharmacist informed her that the pharmacy computer now showed NB as eligible — and then alleging, in conclusion, that "[d]efendants' actions deprived NB of her due process notice and hearing rights" without any further mention of defendants). Put simply, plaintiffs set forth no facts, apart from conclusory statements, indicating that they were denied coverage by the defendants. See Twombly, 550 U.S. at
In sum, plaintiffs have failed to state a claim that they experienced any "termination, suspension, or reduction" of their Medicaid "covered services," by defendants, that would have triggered their right to notice and any further due process under federal Medicaid law.
In their complaint, plaintiffs also allege a constitutional procedural due process violation. Asserting that they have a protected property interest in receiving Medicaid benefits, plaintiffs contend that "Medicaid recipients are entitled to a pre-termination evidentiary hearing before Medicaid benefits are discontinued," Am. Compl. ¶ 183, and defendants deprived them of these benefits without providing such process, id. ¶ 184. For similar reasons as those discussed above regarding their claim under federal Medicaid law, however, plaintiffs also fail to state a claim under the Fifth Amendment. How so?
First, for a certain subset of prescriptions — those refused for lack of prior authorization or failure to meet other valid restrictions, or those for which patients received substitute drugs — plaintiffs have failed to adequately allege that they suffered a deprivation of a protected property interest. And second, to the extent they have alleged a deprivation for other alleged instances of prescription rejections, they have nonetheless failed to adequately allege any state action by defendants that caused such a deprivation. In either case, a necessary prerequisite for triggering constitutional due process protections is lacking.
To bring a constitutional procedural due process claim, a plaintiff must show (1) a deprivation by the government, (2) of a liberty or property interest, (3) without due process of law. See Lightfoot v. District of Columbia, 273 F.R.D. 314, 319 (D.D.C.2011) (citing Propert v. District of Columbia, 948 F.2d 1327, 1331 (D.C.Cir. 1991)). Accordingly, such a claim requires the Court first to determine whether plaintiffs have asserted a liberty or property interest protected by the due process clause, and, if they have, next to determine whether a state actor caused any deprivation of that interest (before deciding what, if any, process was due). See Simms v. District of Columbia, 699 F.Supp.2d 217, 224 (D.D.C.2010) ("In order to trigger the Due Process Clause ... there must be a `state action.'"); Propert, 948 F.2d at 1331. Similarly, in order to succeed on a constitutional
Here, defendants concede, as they must, that plaintiffs have a protected property interest in the receipt of Medicaid prescription drug benefits. See Defs.' Reply in Supp. of Mot. to Dismiss ("Defs.' First Reply") [Dkt. #24] at 15; Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 576, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) ("a person receiving welfare benefits under statutory and administrative standards defining eligibility for them has an interest in continued receipt of those benefits that is safeguarded by procedural due process" (citing Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970))). Defendants go on to qualify this concession, however, arguing that while plaintiffs may have a protected property interest in the receipt of Medicaid benefits as a general matter, they lack such an interest under the particular factual circumstances alleged in the complaint because, absent the prescriptions meeting certain threshold criteria, they have no "legitimate claim of entitlement" to those particular prescription benefits. See Defs.' Reply in Supp. of Mot. to Dismiss, or, in the Alternative, for Summ. J. ("Defs.' Second Reply") [Dkt. #51] at 3-5; Roth, 408 U.S. at 577, 92 S.Ct. 2701 (to have a property interest in a benefit, a person "must... have a legitimate claim of entitlement to it").
Property interests "are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law ..." Roth, 408 U.S. at 577, 92 S.Ct. 2701. Accordingly, "the welfare recipients in Goldberg v. Kelly had a claim of entitlement to welfare payments that was grounded in the statute defining eligibility for them." Id. So too here: Medicaid recipients have a property interest in prescription drug benefits insofar as the federal Medicaid statute and regulations, and D.C. law and regulations, define that interest. Accordingly, defendants argue here that Medicaid recipients' claim of entitlement to their prescription drug benefits is not "legitimate" without meeting some threshold criteria defined by federal and state law — including that the recipients must "1) be Medicaid recipients whose coverage has not lapsed due to their own error; 2) possess a complete prescription (i.e. including prior authorization, if necessary); 3) for a covered drug or service; and 4) submit that prescription accurately to DHCF." See Defs.' Second Reply at 4-5. I agree.
While I decline to define the precise contours of a Medicaid recipient's protected
Next, to the extent plaintiffs have adequately alleged that any covered drug to which they were legitimately entitled was rejected by a pharmacy — and thereby have adequately alleged a "deprivation" — they have nonetheless failed to allege facts showing that they suffered that deprivation at the hands of D.C. State action requires that "the party charged with the deprivation must be a person who may fairly be said to be a state actor," and a court's approach to this inquiry "begins by identifying the specific conduct of which the plaintiff complains." Am. Mfrs. Mut. Ins. Co., 526 U.S. at 50-51, 119 S.Ct. 977 (internal quotation marks and citations omitted). In this case, "careful attention to the gravamen of [plaintiffs'] complaint," Blum v. Yaretsky, 457 U.S. 991, 1003, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982), reveals that plaintiffs allege suffering deprivation of Medicaid prescription drug benefits as the result of the actions of doctors and pharmacies. As discussed above in greater detail, plaintiffs' complaint includes detailed factual allegations concerning the actions of doctors and pharmacies, whose individual acts or errors led to problems for plaintiffs in filling prescriptions, (and by comparison includes only conclusory allegations as to how the defendants fit in this factual picture). See Defs.' First Mot. at 20-21; Defs.' Second Mem. at 22.
But, generally, private actors, such as doctors and pharmacists, are not acting
There are exceptions to the state action doctrine, of course, under which the conduct of private actors may be deemed state action for purposes of a constitutional claim. See Brentwood Acad. v. Tennessee Secondary Sch. Athletic Assoc., 531 U.S. 288, 295, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001) ("state action may be found if, though only if, there is such a `close nexus between the State and the challenged action' that seemingly private behavior `may be fairly treated as that of the State itself'" (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974)); see also Blum, 457 U.S. at 1004, 102 S.Ct. 2777 ("The purpose of this [nexus] requirement is to assure that constitutional standards are invoked only when it can be said that the State is responsible for the specific conduct of which the plaintiff complains."). Nowhere, however, do plaintiffs allege, nor could they, that the acts of doctors and pharmacists should be deemed state action.
Plaintiffs do nonetheless argue that the rejections of prescriptions they experienced involved state action, but, curiously, they attempt to do so by focusing on defendants' alleged failure to provide notice. Relying on their conclusory factual inference that D.C.'s ECM system "decides" or "adjudicates" claims at the point of sale, and thus state action (by D.C. or its agent, Xerox) is necessarily involved when any claim is processed and any rejection code is returned, see Pls.' Opp'n to Defs.' Mot. to Dismiss ("Pls.' First Opp'n") [Dkt. #18] at 26-28; Pls.' Second Opp'n at 15-16 — an inference I reject as unreasonable, see Howard, 580 F.Supp.2d at 89-90 — plaintiffs argue that the fact that errors committed by doctors and pharmacies cause rejections is beside the point because what plaintiffs challenge as due process violations are not those errors themselves, but instead the failure of defendants to provide notice and the opportunity for a hearing when those errors occurred. See Pls.' First Opp'n at 26; Pls.' Second Opp'n at 20-23. But that argument puts the cart before the horse. Simply put, if no state action caused a deprivation of a protected property interest in the first place — as none did here — then a due process requirement for the state to provide notice and a hearing never arose.
Finally, because I have found that plaintiffs have failed to allege a substantial federal cause of action, I will dismiss plaintiffs' D.C. law claims for lack of pendent jurisdiction. See Clifton Terrace Assocs., Ltd. v. United Techs. Corp., 929 F.2d 714, 723 (D.C.Cir.1991).
Thus, for all of the foregoing reasons, the Court GRANTS defendants' Motions to Dismiss. A separate Order consistent with this decision accompanies this Memorandum Opinion.
