Doe v. United States Department of Health and Human ServicesDoe v. United States Department of Health and Human Services
Michelle Renee Bennett, U.S. Department of Justice, Washington, DC, for Defendants.
MEMORANDUM OPINION
BERYL A. HOWELL, United States District Judge
The plaintiff in these two related cases, Jane Doe1, seeks mandamus and declaratory relief against the defendants, the U.S. Department of Health and Human Services (HHS) and the U.S. Department of Education (DOE), for alleged violations of Title IX of the Education Amendments of 1972 (Title IX),
The alleged sexual harassment and misconduct underlying the two complaints at issue are serious issues that are the subject of ongoing debate on college campuses, including UVA, and elsewhere. The plaintiff invites judicial involvement, but the United States’ system of jurisprudence requires that courts resolve only those Cases or Controversies brought against the right defendants on valid and legally cognizable claims, so that justice can be done for all parties to the lawsuit.
The plaintiff‘s suit is, for the most part, based on an erroneous interpretation of recent amendments to seven of the eighteen subsections of
The defendants have moved to dismiss the plaintiff‘s complaints on grounds that this Court lacks jurisdiction over the matters and that the complaints fail to state a claim upon which relief can be granted, pursuant to
I. BACKGROUND
To understand the plaintiff‘s claims, and why they are based on an erroneous interpretation of the law, the Court first reviews the Clery Act and the recent amendments made under VAWA‘s Section 304, before turning to the plaintiff‘s specific allegations.
A. The Clery Act Amendments In VAWA
The Clery Act requires institutions of higher learning that receive federal funding—which encompasses nearly every public and private university in the United States—to disclose crime statistics and campus security policies.
Section 304 of the VAWA amended seven subsections of the Clery Act. 127 Stat. at 89-92. Although most of the amendments modified definitions, Section 304 replaced three subsections entirely:
Due to the amendment made by VAWA‘s Section 304, the new
As noted, Section 304 of VAWA also replaced
Importantly for the resolution of the instant suit, section 304 did not amend eleven of the Clery Act‘s subsections, including
With this contextual background, the plaintiff‘s specific allegations are examined next.
B. The Petitioner‘s Claims
As previously noted, the plaintiff is a former undergraduate student at UVA and
Following UVA‘s dismissal of the plaintiff‘s complaint in June 2012, the plaintiff filed a complaint with DOE‘s Office for Civil Rights pursuant to Title IX and Title IV. 367 Pet. ¶ 2. The plaintiff filed a similar complaint with HHS’ Office for Civil Rights. 366 Pet. ¶ 2. Both complaints allege that UVA violated Title IX and Title IV by fail[ing] to provide prompt and equitable redress in connection with its investigation and resolution of a matter arising out of severe sexual harassment and misconduct perpetrated against [the plaintiff] in December 2011. 366 Pet. ¶ 2; 367 Pet. ¶ 2. The plaintiff alleged, inter alia, that UVA failed to promptly and equitably investigate and resolve the matter, destroyed and/or withheld evidence of the alleged assault, failed to gather evidence showing that the plaintiff was substantially incapacitated by rape drugs at the time of the incident, and unlawfully applied a burden of proof far stricter than the mandatory preponderance of the evidence standard. 366 Pet. ¶ 5; 367 Pet. ¶ 5.
On July 19, 2012, HHS confirmed receipt of the plaintiff‘s complaint and informed the plaintiff that she would be contacted after an initial review. 366 Pet. App‘x Doc. 2 at 41, ECF No. 3.3 In December 2012, HHS contacted the plaintiff requesting additional information. 366 Pet. App‘x Doc. 3 at 43, ECF No. 3. Specifically, HHS requested that the plaintiff: (1) restate [her] allegation(s); (2) notify HHS as to the status of her complaint pending before DOE; (3) identify who the plaintiff‘s allegations were against; (4) provide the names and contact information of any witnesses; and (5) provide any evidence that substantiates [her] allegations. Id. at 43-44. The petition and attachments do not indicate whether the plaintiff responded to this letter. The plaintiff alleges that HHS has taken no further action on her complaint. 366 Pet. ¶ 1.
On July 27, 2012, DOE dismissed the plaintiff‘s complaint but consolidated the plaintiff‘s allegations into an ongoing compliance review of UVA to assess whether the University‘s policies and procedures, and the University‘s implementation thereof, ensure the elimination of sexual harassment and sexual violence. 367 Pet. App‘x Doc. 2 at 63, ECF No. 3.
More than a year later, on March 6, 2014, the plaintiff filed the instant petitions for mandamus and equitable relief in this Court. See generally 366 Pet.; 367 Pet. Each petition seeks relief based on eight causes of action. 366 Pet. ¶¶ 51-91; 367 Pet. ¶¶ 51-93. The Counts are as follows: Count I, labeled Mandamus, is predicated on the defendants’ alleged failure to resolve her complaints promptly, 366 Pet. ¶¶ 51-61; 367 Pet. ¶¶ 51-63; Count II labeled Administrative Procedures [sic] Act alleges that the agencies’ failure to act constitutes ‘unreasonabl[e] delay’ within the meaning of
The plaintiff seeks three types of relief: (1) issuance of a writ of mandamus order-ing [the agencies] to investigate and resolve her Complaint and issue a decision thereon before March 7, 2014; (2) an order that the agencies shall not apply substantive provisions from [Section 304] to the resolution of [the plaintiff‘s] complaint ... if [the plaintiff‘s] complaint is not resolved until after March 7, 2014; and (3) a declaration that identified aspects of [Section 304 are] unconstitutional and an injunction against their future enforcement on behalf of [the plaintiff] and similarly situated others. 366 Pet. at 29; 367 Pet. at 29.
The defendants have moved to dismiss the actions for lack of subject matter jurisdiction and failure to state a claim, pursuant to
II. LEGAL STANDARD
A. Rule 12(b)(1)
Federal courts are courts of limited jurisdiction, possessing only that power authorized by Constitution and statute. Gunn v. Minton, — U.S. —, 133 S.Ct. 1059, 1064, 185 L.Ed.2d 72 (2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994)). Indeed, federal courts are forbidden ... from acting beyond our authority, NetworkIP, LLC v. FCC, 548 F.3d 116, 120 (D.C.Cir.2008), and, therefore, have an affirmative obligation to consider whether the constitutional and statutory authority exist for us to hear each dispute. James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1092 (D.C.Cir.1996) (quoting Herbert v. Nat‘l Acad. of Sciences, 974 F.2d 192, 196 (D.C.Cir.1992)). Absent subject matter jurisdiction over a case, the court must dismiss it. Arbaugh v. Y & H Corp., 546 U.S. 500, 506, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006);
When considering a motion to dismiss under
Moreover, in evaluating subject matter jurisdiction, the court, when necessary, may undertake an independent investigation to assure itself of its own subject matter jurisdiction, Settles, 429 F.3d at 1107 (quoting Haase, 835 F.2d at 908), and consider facts developed in the record beyond the complaint, id. See also Herbert, 974 F.2d at 197 (in disposing of motion to dismiss for lack of subject matter jurisdiction, where necessary, the court may consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court‘s resolution of disputed facts); Alliance for Democracy v. FEC, 362 F.Supp.2d 138, 142 (D.D.C.2005). The burden of establishing any jurisdictional facts to support the exercise of the subject matter jurisdiction rests on the plaintiff. See Hertz Corp. v. Friend, 559 U.S. 77, 96-97, 130 S.Ct. 1181, 175 L.Ed.2d 1029 (2010); Thomson v. Gaskill, 315 U.S. 442, 446, 62 S.Ct. 673, 86 L.Ed. 951 (1942); Moms Against Mercury v. FDA, 483 F.3d 824, 828 (D.C.Cir.2007).
B. Standing
Article III of the Constitution restricts the power of federal courts to hear only Cases and Controversies.
III. DISCUSSION
The plaintiff‘s claims in both of her pending complaints in this matter against HHS and DOE fit into three distinct categories: (1) mandamus, encompassing Count I; (2) violation of the APA, encompassing Count II; and (3) claims based on her interpretation of Section 304 and its interrelation with Title IX, encompassing Counts III through VIII. Each category is addressed in turn, since each category must be evaluated differently.
A. Count I: The Plaintiff Is Not Entitled To Mandamus
Mandamus is a drastic remedy, reserved for extraordinary situations. Thomas v. Holder, 750 F.3d 899, 903 (D.C.Cir.2014) (internal quotation marks omitted). To be eligible for mandamus relief, a plaintiff must prove that she has
The plaintiff alleges that DOE and HHS have a duty under applicable regulations to process her complaints promptly. See 366 Pet. ¶ 59; 367 Pet. ¶ 61. The word prompt in DOE‘s and HHS’ regulations is undefined. See
First, the plaintiff has submitted letters from DOE and HHS indicating that an investigation was commenced within weeks of the agencies receiving the plaintiff‘s complaints. See 366 Pet. App‘x Doc. 2 at 41 (stating plaintiff‘s complaint was being reviewed as of July 19, 2012); 367 Pet. App‘x Doc. 2 at 63 (stating plaintiff‘s complaint was dismissed and allegations were consolidated into larger compliance review). The plaintiff does not appear to claim that the defendants failed to initiate an investigation promptly, but instead that the agencies have not completed their in-vestigations and provided her with a resolution. See 366 Pet. ¶ 59; 367 Pet. ¶ 61.
For a court to exercise its mandamus power, the plaintiff must show a clear right to the relief she seeks. See Thomas, 750 F.3d at 903. While frustrating to the plaintiff, the regulations she cites do not show that she has a clear right to a prompt resolution of her claim. See
Second, if the agencies were required to resolve promptly the plaintiff‘s complaint, the plaintiff admits that the defendants are not subject to a specific mandatory timeframe within which such complaints must be resolved. 366 Pet. ¶ 7; 367 Pet. ¶ 7. Even if the regulations were construed to apply to resolution of complaints, the word prompt does not specify a timeframe as it is undefined. See
B. Count II: The Plaintiff‘s APA Claim Is Barred
The plaintiff‘s APA claim is foreclosed by directly applicable D.C. Circuit precedent. In Women‘s Equity Action League v. Cavazos (WEAL), 906 F.2d 742, 750-52 (D.C.Cir.1990), the plaintiffs’ APA action, which sought to redress the systemic lags and lapses by federal monitors in investigating complaints under Title IX by bringing suit against the Department of Health, Education, and Welfare (HEW) (the predecessor agency to HHS and DOE), was rejected. The D.C. Circuit held that since [p]laintiffs have implied rights of action against federally-funded institutions to redress discrimination proscribed by Titles VI and IX, that remedy precludes a default remedy under the APA. Id. at 750-51 (citing
The plaintiffs in WEAL raised nearly identical complaints to the plaintiff in this matter, that HEW failed to enforce civil rights laws by, inter alia, failing to do the job Congress entrusted to them by promptly processing complaints and compliance reviews. Id. at 750. The plaintiffs in WEAL sued HEW, rather than the allegedly discriminating institutions, to force compliance. Id. The WEAL Court found that since a private remedy existed for the plaintiffs to bring suit against the allegedly discriminating institutions, a suit under the APA against HEW was foreclosed. Id. at 751. Specifically, the Court found that where Congress had authorized private suits to end discrimination and found those suits adequate [and] in fact the proper means for individuals to enforce civil rights statutes, an APA suit is far more disruptive of HEW‘s efforts efficiently to allocate its enforcement resources. Id. (quoting Cannon v. Univ. of Chicago, 441 U.S. 677, 704, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979)). Even though suits against individual institutions may be more arduous, and less effective in providing systemic relief, than continuing judicial oversight of federal government enforcement, those private suits were the only court remedy Congress has authorized for private parties, thereby foreclosing APA review. Id.
The plaintiff‘s attempts to distinguish WEAL are unavailing. The plaintiff contends that she is seeking to challenge the agency‘s lack of a prompt response, not UVA‘s policy. Pl.‘s Opp‘n HHS Mot. (Pl.‘s HHS Opp‘n) at 8, ECF No. 9. Yet, this argument is disingenuous, since the plaintiff‘s suits essentially seek from the agencies relief from the UVA policies with which she is dissatisfied. See 366 Pet. ¶ 12; 367 Pet. ¶ 12 (noting complaints filed with HHS and DOE for which the plaintiff seeks prompt resolution allege[] that the University of Virginia failed to provide equitable redress). WEAL explicitly considered and rejected this argument, noting that even if a suit against a private institution was more arduous, and less effective, it was still the only right of action allowed the plaintiff. WEAL, 906 F.2d at 751.
The plaintiff further asserts, erroneously, that Section 304 overturned precedent allowing a private right of action to enforce Title IX because Section 304 regulates schools’ redress of violence against women, and amended portions of the Clery Act, which forbids private rights of action. Pl.‘s HHS Opp‘n at 9. The plaintiff‘s conclusion does not follow from her premise.
The Clery Act does prohibit private suits based on failure to comply with the Clery Act.
Under WEAL, the plaintiff has an adequate alternative remedy to relief under the APA, i.e., bringing suit against UVA. WEAL, 906 F.2d at 751. Consequently, any relief under the APA is foreclosed. Id. This is not to say that the plaintiff lacks any right to redress in the federal courts. Rather, as WEAL instructs, Congress determined that the most appropriate defendant for Title IX actions is the institution of higher learning accused of discriminatory practices, not the government agencies charged with enforcing Title IX. See id. This Court may not contradict Congress’ mechanism for enforcing the law. Consequently, under WEAL, this Court lacks subject matter jurisdiction over the plaintiff‘s APA claim and it must be dismissed under
C. Counts III-VIII: The Plaintiff‘s Remaining Claims Are Predicated On An Erroneous Interpretation Of Law
Finally, although the plaintiff‘s complaints go on at length about the supposed substantive changes wrought by Section 304, including the application of a higher standard of proof for allegations of sexual assault, VAWA‘s Section 304 is not the culprit for any such substantive change. Section 304 altered seven subsections of the Clery Act, which generally governs how an institution must report certain data to the government and what types of policies it must disclose publicly. See
To the contrary, by its very terms, the Clery Act affirmatively does not authorize DOE to require particular policies, procedures, or practices by institutions of higher education with respect to campus crimes.
Counts III, IV, and V allege violations of the Fourteenth Amendment‘s
Count VI, which alleges a violation of the plaintiff‘s First Amendment right to free speech and to petition for redress of grievances, fails for similar reasons. First, the plaintiff has not pleaded that her right to petition for redress of grievances and her right to freedom of speech were affected by VAWA‘s Section 304. Second, the plaintiff has no standing to pursue this claim since she has not demonstrated that her actions, or any imminent actions she intends to take, have been affected by VAWA‘s Section 304 or the actions of the defendants. Consequently, the plaintiff has failed to allege a concrete and particularized injury in fact that is imminent, see Lujan, 504 U.S. at 560, 112 S.Ct. 2130, meaning she has failed to allege a case or controversy sufficient to convey Article III standing, and this claim must be dismissed pursuant to
Finally, as previously noted, VAWA‘s Section 304 did not affect Title IX or Title IV and did not make substantive changes, or, indeed, any changes, to the way in which the government or institutions of higher learning process claims of sex discrimination. Since Counts VII and VIII are predicated on Section 304 creating a disparate impact on women, 366 Pet. ¶¶ 85, 90; 367 Pet. 87, 92, these counts must be dismissed for failure to state a claim upon which relief can be granted pursuant to
IV. CONCLUSION
For the foregoing reasons, the defendants’ motions are granted. Counts II and VI in both complaints are dismissed because the Court lacks subject matter jurisdiction over them, and Counts I, III, IV, V, VII, and VIII in both complaints are dismissed for failure to state a claim, pursuant to Rules
An Order consistent with this Memorandum Opinion will issue contemporaneously.
BERYL A. HOWELL
UNITED STATES DISTRICT JUDGE