149 F. Supp. 3d 99
D.D.C.2015Background
- Plaintiff (Sai) has an episodic neurological disability and alleges mistreatment by TSA at BOS (Jan 21, 2013) and SFO (Mar 1, 2013) security checkpoints; he filed DHS administrative complaints for each.
- DHS failed to issue dispositions within the 180-day period required by DHS regulations; by the time of suit DHS later responded to the BOS complaint but has not responded to the SFO complaint (nearly three years elapsed).
- Sai sued DHS, TSA, and individual officials (official and personal capacities) asserting claims under the Rehabilitation Act, the APA (5 U.S.C. § 706), Bivens, FTCA, and various state tort theories, seeking mandamus-style relief to compel agency responses and money damages.
- Defendants moved to dismiss; DHS/TSA and official-capacity defendants argued no remedy for delay under Rehabilitation Act and preclusion of APA relief; individual-capacity defendants relied on Westfall Act substitution and other defenses.
- The court ruled: BOS-related claims for injunctive/declaratory relief are moot (DHS responded); no money damages available under Rehabilitation Act or APA; APA §706(1) relief is available and appropriate to compel DHS to respond to the SFO complaint because agency action was unreasonably delayed; Westfall substitution applies to most personal-capacity tort claims, FTCA claims dismissed without prejudice for failure to exhaust, and Bivens/statutory money-damage claims against individuals dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff can enforce DHS’s 180-day regulatory deadline via the Rehabilitation Act | Sai argues Rehabilitation Act/regulations require agency response within 180 days and he may enforce that duty | DHS contends the Rehabilitation Act does not create a private cause to enforce agency procedural deadlines | Court: Rehabilitation Act does not itself create that private cause; enforcement lies under the APA, not the Rehabilitation Act |
| Whether APA review (§706(1)) is available or precluded by Rehabilitation Act remedies | Sai: APA §706(1) can compel agency action unlawfully withheld (seek relief for SFO delay) | DHS: availability of Rehabilitation Act remedies for substantive discrimination precludes APA review of procedural delay (Section 704) | Court: APA review is available here because the cause of action to enforce Section 504 against federal agencies arises under the APA; no separate statutory remedial scheme precludes APA relief |
| Whether DHS’s failure to respond to SFO complaint for ~3 years is "unreasonably delayed" under APA/TRAC factors | Sai: almost three-year delay violates the 180-day regulation and is prima facie unreasonable | DHS: argued lack of a cause of action (not justification for delay) and offered no explanation for the delay | Court: Delay is unreasonable under TRAC; granted relief to compel DHS to respond to SFO complaint within a court-ordered reasonable period |
| Viability of personal-capacity claims (Bivens/statutory torts) and effect of Westfall/FTCA | Sai seeks damages against officials in personal capacity under Bivens/statutory and state tort theories | Defendants: Westfall Act requires substitution of United States for employee defendants; FTCA exhaustion required; Bivens remedy unavailable here | Court: Westfall substitution granted (except Bivens exception), FTCA tort counts dismissed without prejudice for failure to exhaust, and Bivens/statutory money-damage claims against individuals dismissed (no Bivens remedy for agency delay or statutory damages here) |
Key Cases Cited
- Alexander v. Sandoval, 532 U.S. 275 (2001) (private rights of action must be grounded in congressional intent; regulations cannot create rights Congress did not)
- Norton v. S. Utah Wilderness Alliance, 542 U.S. 55 (2004) (APA §706(1) can compel discrete agency actions required by law; courts may not direct how agency must act)
- Telecommunications Research & Action Ctr. v. FCC, 750 F.2d 70 (D.C. Cir. 1984) (TRAC factors guide review of unreasonable agency delay)
- Lane v. Pena, 518 U.S. 187 (1996) (Rehabilitation Act does not waive sovereign immunity for money damages against the United States; injunctive relief remains)
- Bowen v. Massachusetts, 487 U.S. 879 (1988) (Section 704 preclusion principle meant to avoid duplicative review where Congress provided special review schemes)
- Council of & for the Blind v. Regan, 709 F.2d 1521 (D.C. Cir. 1983) (statutory remedial schemes can preclude APA review when Congress provided adequate alternative)
- Cousins v. Secretary of Dep’t of Transp., 880 F.2d 603 (1st Cir. 1989) (claims against federal agencies enforcing Rehabilitation Act arise under the APA rather than as an implied Rehabilitation Act private cause)
- Garcia v. Vilsack, 563 F.3d 519 (D.C. Cir. 2009) (statutory remedial scheme can preclude APA suits; availability of direct action against agency can foreclose separate APA relief)
- Wuterich v. Murtha, 562 F.3d 375 (D.C. Cir. 2009) (Westfall Act confers absolute immunity to federal employees acting within scope of employment; narrow discovery to challenge certification)
- Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) (recognized implied damages remedy for certain constitutional violations; courts proceed cautiously when extending Bivens)