Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA SAI,
Plaintiff , v. Civil Aсtion No. 14-1876 (RDM) DEPARTMENT OF HOMELAND
SECURITY, et al. ,
Defendants . MEMORANDUM OPINION
Plaintiff, who suffers from a neurological disorder that causes intermittent muteness and muscle spasms, alleges that he was harassed and mistreated on the basis of his disability during two incidents at airport security checkpoints in early 2013—one at Boston Logan International Airport (“BOS”) and the other at San Francisco International Airport (“SFO”). He filed administrative complaints with the Department of Homeland Security (“DHS”) under procedures promulgated pursuant to the Rehabilitation Act, 29 U.S.C. § 794 et seq . When DHS failed to respond to his complaints, he brought this suit, alleging causes of action under the Rehabilitation Act and the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. Notably, the present suit does not directly seek redress for Plaintiff’s alleged mistreatment at the security checkpoints. Rather, Plaintiff alleges that DHS, the Transportation Security Administration (“TSA”), and the individuals who were responsible for processing his administrative complaints violated his rights by failing to respond to his those complaints within the time period prescribed by the governing regulation. To the extent the Rehabilitation Act provides a remedy relating to any discrimination *2 that Plaintiff may have suffered at the two checkpoints, he has elected to pursue those claims in other litigation. See, e.g. , Sai v. TSA , No. 15-cv-13308 (D. Mass. Sept. 4, 2015).
The case is before the Court on three dispositive motions: (1) a motion to dismiss filed by DHS, the TSA and several individual defendants sued in their official capacities, Dkt. 23; (2) a separate motion to dismiss filed by the individual defendants, who were also sued in their personal capacities, Dkt. 63; and (3) Plaintiff’s motion for partial summary judgment, Dkt. 7. Plaintiff has also filed three non-dispositive motions: (4) a motion for leave to take discovery, Dkt. 72 at 38; (5) a motion for leave to amend his complaint, Dkt. 73; and (6) a renewed motion for leave to proceed in forma pauperis , Dkts. 65, 66. This Memorandum Opinion and the Order that accompanies it resolve these six motions before the Court.
With respect to Plaintiff’s claims against DHS, the TSA, and the individual defendants sued in their official capacities (“Agency Defendants”), the Court will grant in part and deny in part the Agency Defendants’ motion to dismiss, and will grant in part and deny in part Plaintiff’s motion for partial summary judgment. First, to the extent Plaintiff seeks to compel the Agency Defendants to respond to his BOS complaint, his claim is moot, because DHS responded to the BOS complaint after he filed this action. Second, to the extent Plaintiff seeks damages as a result of the Agency Defendants’ failure to process his complaints, neither the Rehabilitation Act nor the APA affords him such a remedy. Finally, to the extent that Plaintiff seeks to compel the Agency Defendants to respond to his SFO complaint on the theory that they have unlawfully delayed such a response, the Court agrees that such relief is available. Because the Court concludes that Plaintiff’s underlying cause of action against these defendants arises under the APA, not the Rehabilitation Act, there is no evidence that Congress intended to preclude relief under Section 706(1) of the APA, which instructs courts to “compel agency action unlawfully *3 withheld or unreasonably delayed.” 5 U.S.C. § 706(1). Further, because it is uncontroverted that the Agency Defendants have failed to respond to Plaintiff’s SFO complaint for almost three years, and because Defendants have failed to justify the delay, the Court agrees with Plaintiff that relief under Section 706(1) is not only available but appropriate. Accordingly, the Agency Defendants’ motion to dismiss is GRANTED with respect to Plaintiff’s claims for monetary and nonmonetary relief arising out of the BOS complaint and for monetary relief arising out of the SFO complaint and DENIED with respect to Plaintiff’s claim for nonmonetary relief arising out of his SFO complaint. Correspondingly, Plaintiff’s motion for partial summary judgment is GRANTED with respect to his claim for nonmonetary relief arising out of his SFO complaint and DENIED with respect to his BOS complaint.
With respect to Plaintiff’s claims against the individual defendants sued in their personal
capacities (“Individual Defendants”), the Court concludes that the Westfall Act, 28 U.S.C.
§ 2679, requires the substitution of the United States for Individual Defendants for every claim
except the claim asserted under
Bivens v. Six Unknown Named Agents
,
Finally, for the reasons stated below, the Court DENIES Plaintiff’s motion for additional discovery (Dkt. 72 at 38), DENIES Plaintiff’s motion for leave to amend his complaint (Dkt. 73), and DENIES Plaintiff’s renewed motion for leave to proceed in forma pauperis or, in the alternative, to file an application ex parte and under seal (Dkt. 65).
I. BACKGROUND
A. Facts
Plaintiff, whose full legal name is Sai, has a “permanent, episodic motor disability” that can cause painful muscle spasms, sрeech impairment, and even paralysis. Dkt. 1 at 47. Episodes of high stress can trigger or exacerbate these symptoms. Id. As a result, Plaintiff has on multiple occasions experienced acute symptoms while going through airport security checkpoints. This action arises out of two such incidents: one at Boston Logan International Airport on January 21, 2013, and another at San Francisco International Airport on March 1, 2013. Id. at 37. During each incident, Plaintiff alleges that TSA agents failed to accommodate his disability by denying him access to medication and writing implements for use when he was unable to speak, among other things. See id. ; see also Dkt. 31-1 at 1–3.
In response to these incidents, Plaintiff filed two administrative complaints with DHS— the first on January 26, 2013, and the second on March 15, 2013. Dkt. 1 at 30–31. In the complaints, he alleged that the agency had violated the Rehabilitation Act, 29 U.S.C. § 794, by discriminating against him on the basis of his disability. Id. DHS acknowledged that it had received Plaintiff’s complaints, id. , but did not respond to the substance of the complaints within the 180-day period specified in the DHS regulations. Plaintiff made repeated efforts to obtain a response to his complaints, see id. at 33–43, but to no avail. As of November 5, 2014, when he filed this lawsuit, Plaintiff had received no substantive response from DHS to either complaint. Id. at 1, 43. Although Plaintiff eventually received a response to his BOS complaint (on March 4, 2015, over two years after it was filed), see Dkt. 31 at 1, he has received no response to his SFO complaint.
Attempting to remedy what he views as unlawful delay, Plaintiff filed this suit against a
variety of defendants—including DHS, the TSA, and ten named individual defendants ranging
from the Administrator of the TSA to the individual DHS officers who handled his complaints,
in both their official and their personal capacities. Dkt. 1 at 5–6. Construing the
pro se
complaint liberally, as the Court is required to do, Plaintiff alleged causes of action under the
Rehabilitation Act, 29 U.S.C. § 794; the APA, 5 U.S.C. § 706;
Bivens v. Six Unknown Named
Agents
,
The present action does not seek relief for the allegedly discriminatory acts at the security checkpoints. Instead, Plaintiff maintains that “[t]his suit is brought strictly for matters relating to defendants’ handling of [his] complaints.” Id. at 5. Plaintiff has brought another suit, in the District of Massachusetts, to challenge the TSA’s actions at the BOS checkpoint. See Sai v. TSA , No. 15-cv-13308 (D. Mass. Sept. 4, 2015). [2] The present action, in contrast, is premised on a *6 regulation that requires DHS to respond to an administrative complaint brought under the Rehabilitation Act within 180 days. See 6 C.F.R. § 15.70(g)(1). Defendants do not dispute that DHS failed to act on Plaintiff’s complaints within the 180-day period. They dispute only the legal consequences of their inaction.
B. Procedural History
The Court has previously outlined the extensive procedural history of this case and will
only repeat the portions of that history relevant to the pending motions.
See Sai v. DHS
, 99 F.
Supp. 3d 50 (D.D.C. 2015). In particular, Plaintiff moved for partial summary judgment almost
immediately after filing the action.
See
Dkt. 7. Amid a flurry of more than a dоzen procedural
motions filed by Plaintiff, Defendants filed a motion to dismiss under Rule 12.
See
Dkt. 23. On
April 16, 2015, the Court entered an order resolving the pending procedural motions, setting a
schedule for the resolution of the dispositive cross-motions, and imposing rules governing
subsequent motions practice.
Sai
,
In the meantime, on March 4, 2015, DHS responded to Plaintiff’s first administrative complaint, which concerned his treatment at Boston Logan International Airport. Dkt. 31. In its response, the TSA denied that any violation of the Rehabilitation Act had occurred. See id. at 8. In the TSA’s view, the actions that TSA agents took at the airport were based not on Plaintiff’s disability but on his “continued failure to cooperate with the screening process.” Id. Further, the TSA reasoned, nothing the TSA agents did at the airport deprived Plaintiff of “full and complete access to TSA’s security screening program.” Id. at 9 (quoting Ruskai v. Pistole , 2014). The merits of that action are not before the Court in this Opinion or in the accompanying Order.
II. DISCUSSION
A. Threshold Issues
1. Mootness
As an initial matter, the Court must consider how DHS’s denial of Plaintiff’s complaint
arising out of the BOS incident affects the scope of the case and the Court’s jurisdiction. As the
Court of Appeals has observed, “subject matter jurisdiction ‘is, of necessity, the first issue for an
Article III court,’ for ‘[t]he federal courts are courts of limited jurisdiction, and they lack the
power to presume the existence of jurisdiction in order to dispose of any case on any other
grounds.’”
Loughlin v. United States
,
A federal court’s duty to ensure that it is acting within the confines of its jurisdiction
continues throughout the course of the litigation. The parties must maintain a live dispute, with
concrete consequences, “at all stages of review, not merely at the time the complaint is filed.”
Steffel v. Thompson
,
Here, there is no dispute that the Court had Article III jurisdiction over Plaintiff’s claims at the time he filed them. But it is equally clear that “events have transpired” that have limited the scope of the live controversy between the parties. As relevant here, Plaintiff filed the instant suit to compel DHS and other defendants to respond to the two administrative complaints that Plaintiff filed. Since then, DHS has rendered its final decision with respect to the BOS complaint. As a result, at least with respect to that aspect of the dispute, there is nothing left for the Court to do, and that portion of the case is therefore moot.
Despite having received a response to his BOS complaint, Plaintiff contends that the
Court still has jurisdiction to consider the merits of his claim for injunctive and declaratory relief
because the alleged misconduct is “capable of repetition, yet evading review.” Dkt. 80 at 7.
Plaintiff is correct that the courts recognize an exception to the mootness doctrine for claims that
“evad[e] review” because “the challenged action was in its duration too short to be fully litigated
prior to its cessation or expiration,” and that are “capable of repetition” because there is “a
reasonable expectation that the same complaining party would be subject to the same action
again.”
Murphy v. Hunt
,
Plaintiff also contends that he has not received the type of response to the BOS complaint
to which he is entitled. Pointing to his motion to expedite, Plaintiff argues that what he has
sought are responses to the administrative complaints “without litigation-induced omissions.”
Dkt. 70 at 21 (quoting Dkt. 7 at 3). That, however, is a different claim from the one asserted in
the complaint, and at any rate it is facially untenable. It is one thing to seek to compel an agency
to respond to an administrative complaint within a reasonable time. It is entirely another to seek
to control what that response says. Under Section 706(1) of the APA, a court may at times
compel an agency “to take a
discrete
agency action that is it is
required to take
,” but may not
direct “
how
it shall act.”
Norton v. S. Utah Wilderness Alliance
,
Plaintiff’s claims for injunctive and declaratory relief relating to the BOS complaint are, accordingly, DISMISSED as moot. To the extent Plaintiff seeks damages or other relief with respect to the handling of the BOS complaint, those issues are separately addressed below.
2.
Summary Judgment and Rule 56(d)
Plaintiff argues, as a preliminary matter, that the defendants’ motions to dismiss should
be treated as motions for summary judgment and that the Court should then defer or deny the
motions in order to permit Plaintiff an opportunity to obtain discovery pursuant to Federal Rule
of Civil Procedure 56(d). Dkt. 72 at 7, 38;
see
Fed. R. Civ. P. 12(d), 56(d). The Court disagrees.
Rule 12(d) requires a court to treat a Rule 12(b)(6) motion to dismiss as a motion for summary
judgment if it relies on “matters outside the pleadings.” Fed. R. Civ. P. 12(d). But Plaintiff
points to only two documents that he believes satisfy this standard. He first notes that DHS
relies on its response to his BOS administrative complaint to argue that the case is moot. But
that document was the subject of Plaintiff’s own motion to take judicial notice,
see
Dkt. 31,
which the Court now
GRANTS
, and, in any event, neither the fact that DHS has now responded
nor the substance of that response is in any way disputed.
Cf. Tellabs, Inc. v. Makor Issues &
Rights, Ltd.
,
The only other “factual” material Plaintiff identifies is Defendants’ Westfall certification,
see
Dkt. 23-1, but the Westfall Act contemplates the introduction of such a certification at the
motion-to-dismiss stage,
see
28 U.S.C. § 2679(d), and the Court knows of no authority for the
proposition that its introduction converts a motion to dismiss into a motion for summary
judgment. Moreover, as discussed bеlow, to the extent that Plaintiff challenges the government’s
*11
Westfall certification, Plaintiff has not identified any disputed question of fact with sufficient
specificity to open the door even to “limited discovery” regarding the absolute immunity
afforded government employees acting within the scope of their employment.
See Wuterich v.
Murtha
,
The Court, therefore, DENIES Plaintiff’s request to convert Defendants’ motions to dismiss into motions for summary judgment, Dkt. 72 at 7, and DENIES Plaintiff’s motion for discovery under Rule 56(d), id. at 38–39.
B. Count I
Count I of Plaintiff’s complaint alleges that the Agency Defendants violated Section 504 of the Rehabilitation Act and the APA by failing to respond to Plaintiff’s administrative complaints in a timely manner. As a preliminary matter, the Court observes that Plaintiff cannot plausibly claim relief under Count I other than nonmonetary relief relating to the Agency Defendants’ delay in processing the SFO complaint. The Rehabilitation Act does not waive the sovereign immunity of the United States for monetary claims arising from alleged discrimination “under any program or activity conducted by any Executive agency,” see Lane v. Peña , 518 U.S. 187, 191, 197 (1996), nor does the APA waive sovereign immunity for claims seeking monetary relief, see 5 U.S.C. § 702 (authorizing “[a]n action in a court of the United Stаtes seeking relief *12 other than money damages”). And, for the reasons explained above, Plaintiff’s claims for declaratory and injunctive relief relating to his BOS administrative complaint are moot.
To the extent that Plaintiff seeks injunctive or declaratory relief requiring DHS to provide a response to his SFO complaint, however, he is on stronger ground. Plaintiff seeks summary judgment on Count I based on two straightforward propositions: (1) DHS’s Rehabilitation Act regulations require the agency to respond to an administrative complaint within 180 days, 6 C.F.R. § 15.70(g)(1); and (2) almost three years have passed since Plaintiff filed the SFO complaint with DHS. Defendants do not dispute either premise, but they maintain that neither the Rehabilitation Act nor the APA provides an applicable cause of action. In their view, the Rehabilitation Act “implies a private right of action to sue for injunctive relief in federal court” for violations of the substantive rights protected by Section 504, but the Act does not create a private right of action for violations of the administrative rules at issue here. Dkt. 60 at 4–5. They further argue that the APA does not fill this gap, since catch-all review is available under the APA only “for final agency action [including a ‘failure to act’] for which there is no other adequate remedy in a court.” 5 U.S.C. §§ 551(13), 704. According to Defendants, the availability of a cause of action under the Rehabilitation Act for violations of the substantive rights established by Section 504 constitutes an alternative “adequate remedy in a court” and thus precludes APA review of any shortcomings in the administrative process. Dkt. 23 at 10–12.
As explained below, the Court agrees that Plaintiff does not have a cause of action under
the Rehabilitation Act for the agency’s failure to respond to the SFO complaint in a timely
manner. Defendants are also correct that, at times, the existence of an alternative remedy for a
substantive
right precludes APA review of an agency’s asserted failure to resolve an
administrative
complaint in a timely fashion. Thus, for example, in
Council of and for the Blind
*13
of Delaware County Valley v. Regan
,
Defendants’ preclusion argument turns on the premise that Plaintiff has a cause of action under the Rehabilitation Act, and that this cause of action is an adequate alternative remedy that precludes APA review. As explained below, however, that premise is incorrect. Any claim that Plaintiff may have to enforce Section 504 does not arise implicitly under the Rehabilitation Act; it arises under the APA itself. As a result, unlike in Council of and for the Blind , there is no basis to conclude that Congress has provided Plaintiff with an independent statutory remedy that would preclude APA review of Plaintiff’s related administrative claim. Because DHS has manifestly failed to comply with its obligation to render a decision on the SFO complaint in a timely manner, and has offered no justification for its delay, the Court agrees that Plaintiff is entitled to relief for “agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1).
1. Source of Plaintiff’s Cause of Action
Because Defendants’ arguments turn on the remedies afforded Plaintiff by the
Rehabilitation Act and the APA, the Court begins by identifying the source of Plaintiff’s cause of
action to enforce the Rehabilitation Act. Congress enacted the Rehabilitation Act, the “first
major federal statute designed to protect the rights of and provide assistance to the handicapped
people of this country,”
Smith v. Barton
,
[n]o otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency . . . .
29 U.S.C. § 794(a). Section 504 further provides that “[t]he head of each [Executive] agency shall promulgate such regulations as may be necessary to carry out” the 1978 amendments to the Act, which extended its protections to “program[s] or activit[ies]” conducted by federal agencies. Id.
Section 504 unambiguously imposes a duty on federal agencies not to discriminate on the basis of disability in “any program or activity” they conduct. It is this duty that Plaintiff initially sought to enforce—first by filing an administrative complaint with the agency, and then by filing suit in Massachusetts to challenge the agency’s response to that complaint. But Section 504 also requires fеderal agencies to adopt implementing regulations to “carry out” their obligations under the Act. Count I of the complaint in this lawsuit implicates this duty; it asserts that the Agency Defendants have violated the Rehabilitation Act by failing to comply with the regulations they have promulgated to enforce it. The Agency Defendants, as noted above, do not contest that they have failed to comply with the governing regulations. They simply argue that Plaintiff lacks a cause of action to enforce those regulations, because (1) the Rehabilitation Act does not permit a suit to challenge an agency’s delay in responding to an administrative complaint brought under procedures promulgated pursuant to the Act, and (2) Plaintiff cannot resort to Section 706(1) of the APA, because the existence of a substantive Rehabilitation Act cause of action precludes APA review, including review of an alleged administrative failing.
a. Rehabilitation Act The Court agrees with Defendants that Plaintiff does not have a cause of action under the Rehabilitation Act to remedy DHS’s failure to respond to the SFO complaint in a timely manner. The Rehabilitation Act says nothing about the processing or consideration of administrative complaints. Rather, it merely requires that federal agencies “promulgate such regulations as may be necessary to carry out” the 1978 amendments to the Act. 29 U.S.C. § 794(a). There is no question that DHS has adopted those regulations, see 6 C.F.R. § 15.70, and Plaintiff does not seek to compel the adoption or modification of the statutorily-required regulation. Likewise, the remedial provision of the Rehabilitation Act says nothing about claims to enforce the Act’s implementing regulations. As discussed in greater detail below, in relevant respects, that section of the Act merely authorizes claims relating to discrimination by recipients or providers of federal assistance. See 29 U.S.C. § 794a(a).
Nor is there any basis to imply a cause of action under the Rehabilitation Act for an
agency’s failure to comply with its implementing regulations. As the Supreme Court has
admonished, “private rights of action to enforce federal law must be created by Congress.”
Alexander v. Sandoval
,
b. Administrative Procedure Act As a result, the question comes down to whether the APA creates a cause of action for Defendants’ alleged failure to respond to the SFO complaint in a timely manner. Defendants argue that the APA is unavailable to remedy any shortcomings in DHS’s administrative process because the Rehabilitation Act provides an adequate alternative remedy in the form of an implied cause of action to vindicate substantive rights under Section 504. That contention, in turn, requires that the Court consider the statutory basis for whatever cause of action Plaintiff may have to assert those substantive rights.
Although the law is unsettled regarding the exact source of the cause of action, no court
has questioned that claims for nonmonetary relief seeking to enforce Section 504’s ban on
discrimination in federal programs are actionable. In
Lane v. Peña
, the Supreme Court held that
Congress, in amending the Rehabilitation Act to cover federal programs and activities, did not
intend to waive the United States’s sovereign immunity for suits for money damages.
See
518
U.S. at 189, 200. The United States did not contest the availability of injunctive relief, however,
id.
at 196, and the Supreme Court was careful to limit its discussion and holding to “awards of
monetary damages,”
id.
at 189, 192–93, 196, 200. Subsequently, in
American Council of the
Blind v. Paulson
, an advocacy group and several blind individuals sued the Department of
*17
Transportation for failing to design and issue forms of paper currency that would be rеcognizable
to the blind.
See Am. Council of the Blind v. Paulson
,
This, however, leaves the question whether the cause of action for a substantive claim of
disability discrimination in a federal program or activity arises under the Rehabilitation Act itself
or under the APA. This question was not addressed in
Lane
, because, as the Solicitor General
noted in his brief, “resolution of the source of the cause of action, be it under Section 504(a)
directly or the APA, would . . . not alter the outcome of this case” as long as Section 504(a) was
not read to waive sovereign immunity for monetary damages. Brief for the Respondents,
Lane
,
Second, it is easy to imagine why Congress would not have created a private cause of
action to enforce Section 504 against federal agencies: it knew that review would be available
under the APA. The APA “embodies the basic presumption of judicial review to one ‘suffering
legal wrong because of agency action.’”
Abbott Labs. v. Gardner
,
Finally, although the caselaw on this question from other circuits is sparse, it supports the
conclusion that Plaintiff’s cause of action arises under the APA. The most thorough treatment of
the issue can be found in the First Circuit’s decision in
Cousins v. Secretary of the Department of
Transportation
,
The Fourth Circuit reached a similar conclusion, relying largely on
Cousins
, in
Clark v.
Skinner
, where a truck driver whose left arm was amputated above the elbow challenged a
different Department of Transportation regulation, which required commercial drivers to
demonstrate proficiency with the use of both upper limbs.
One might argue that the First and Fourth Circuits’ decisions are distinguishable on the
ground that they concerned actions undertaken by “the government
as regulator
,”
Cousins
, 880
F.2d at 605, as opposed to alleged discriminatory misconduct by government employees.
Cf.
Doe v. Att’y Gen. of the United States
,
The question whether any particular alleged violation of Section 504—including the violation alleged in Plaintiff’s SFO complaint—will be subject to review under the APA is not one the Court needs to address today. It is sufficient for present purposes to conclude that the Rehabilitation Act does not provide an implied cause of action for discrimination in federal programs and activities (or for failure to comply with administrative procedures), but that the APA provides a cause of action to challenge final agency action that is not in accordance with the Rehabilitation Act. In this action, Plaintiff merely challenges the failure of Defendants to respond to his administrative complaint in a timely manner. If Plaintiff subsequently brings an action under the APA relating to allegedly discriminatory conduct during the SFO incident and/or the substance of the agency’s response, a court can at that time determine whether he has identified a final agency action subject to review under the APA, whether the alleged final agency action is contrary to the Rehabilitation Act, and whether any other defense is available.
2. The Agency Defendants’ Preclusion Defense
Having concluded that any cause of action that Plaintiff may have for an alleged violation of Section 504’s prohibition against discrimination in federal programs or activities arises under the APA, the Court must next consider the Agency Defendants’ contention that Section 704 of the APA, which precludes review of any agency action for which there is another “adequate remedy in a court,” 5 U.S.C. § 704, bars review of Defendants’ delay in responding to Plaintiff’s SFO complaint. In support of this argument, Defendants rely on a line of decisions holding that statutes similar to the Rehabilitation Act preclude APA review. See Dkt. 72 at 22–23. Those decisions, however, are inapposite. In each case, the Court of Appeals held that an independent *22 statutory scheme with a unique remedial structure precluded separate resort to the APA. Here, because Plaintiff’s cause of action arises under the APA itself, there is no independent statutory scheme that implicitly or expressly precludes APA review.
In the first of these cases,
Council of and for the Blind of Delaware County Valley, Inc. v.
Regan
,
The second case followed a similar path. There, a group of civil-rights organizations
filed suit to challеnge what they saw as the federal government’s failure to enforce a number of
civil-rights statutes, including Title VI and the Rehabilitation Act.
Women’s Equity Action
League v. Cavazos
(“
WEAL
”),
Suits directly against the discriminating entities may be more arduous, and less effective in providing systemic relief, than continuing judicial oversight of federal government enforcement. But under our precedent, situation-specific litigation affords an adequate, even if imperfect, remedy. So far as we can tell, the suit *24 targeting specific discriminatory acts of fund recipients is the only court remedy Congress has authorized for private parties, situated as plaintiffs currently are.
Id. at 751.
Neither
Council of and for the Blind
nor
WEAL
considered whether the availability of a
suit for declaratory and injunctive reliеf
against a federal agency
precludes reliance on the APA
to challenge
that agency’s
failure to respond to an administrative complaint.
Cf. El Rio Santa
Cruz Neighborhood Health Ctr., Inc. v. HHS
,
The Court of Appeals held, following WEAL , that the federal statute precluded review of the agency’s failure to investigate under the APA by affording the plaintiffs a cause of action to challenge the discrimination itself. Id. at 523. The fact that the plaintiffs “fault [the agency’s] regulation of itself and not its regulation of a third party,” the Court of Appeals explained, did not render WEAL inapplicable to the remedial scheme. Id. at 525. “If anything,” it explained, “a[] . . . discrimination claim filed directly against the [agency] affords a better remedy than those available” against the third parties in prior suits. Id. “If successful, a plaintiff can obtain *25 declaratory and injunctive relief against the agency itself,” which “would presumably deter the agency to the same extent as a successful APA claim.” Id. The Court of Appeals also rejected the plaintiffs’ efforts to identify an independent purpose for their APA suit, explaining that “[t]he suggestion that [substantive] relief would not vindicate appellants’ interest insuring that the [agency] adheres to its duty-to-investigate regulations”—that is, the plaintiffs’ administrative aim—“was rejected in Council [ of and for the Blind ]. . . and WEAL .” Id.
The government argues that
Garcia
,
Council of and for the Blind
, and
WEAL
control this
case. It contends that the availability of nonmonetary relief under the Rehabilitation Act to
remedy a substantive violation of Section 504 precludes the use of the APA to remedy an
administrative violation. But, as the Court has explained, the government’s argument proceeds
from a mistaken premise: that Plaintiff’s cause of action arises under the Rehabilitation Act, not
the APA itself. The distinction is critical. The government cites no authority for the proposition
that the APA can preclude itself—that is, that the availability of a
substantive
remedy under the
APA may in some circumstances preclude an
administrative
remedy under the APA. Such an
argument is at odds with a commonsense reading of the preclusion provision, which asks
whether there is some “other” alternative remedy available in court.
See
5 U.S.C. § 704. It also
runs counter to the Supreme Court’s decision in
Bowen v. Massachusetts
,
In
Bowen
, the Supreme Court traced the history of the preclusion rule found in Section
704 of the APA.
See
5 U.S.C. § 704. The Court explained that the primary purpose of this
statutory provision was to make clear “that Congress did not intend the general grant of review in
the APA to duplicate
existing
procedures for review of agency action,” such as those that
permitted review of Federal Trade Commission and National Labor Relations Board orders in
the courts of appeals.
Bowen
,
Moreover, to the extent that
Garcia
,
Council of and for the Blind
, and
WEAL
turned on
the fact that the statutory schemes considered in those cases did not require plaintiffs to exhaust
their administrative remedies—and therefore the plaintiffs did not require an agency decision
before proceeding to court—there is at least a question whether such a rationale would extend
here. Although there is no exhaustion requirement in the APA,
see Darby v. Cisneros
, 590 U.S.
137, 146–47 (1993), a plaintiff is entitled to review only of “final agency action.” 5 U.S.C. §
704;
see Bennett v. Spear
,
The Court therefore concludes that the Agency Defendants’ preclusion defense fails, and DENIES their motion to dismiss to the extent that Plaintiff seeks declaratory and injunctive relief arising out of their failure to timely process his SFO administrative complaint.
3. 180-Day Requirement
With respect to Count I of the complaint, the only remaining question is whether the
Court should “compel agency action unlawfully withheld or unreasonably delayed” under
Section 706 of the APA.
See
5 U.S.C. § 706(1). “[A] claim under § 706(1) can proceed only
where а plaintiff asserts that an agency failed to take a
discrete
agency action that it is
required
to take
.”
Norton
,
First, the Agency Defendants’ failure to act is the kind of discrete and mandatory action
that the Supreme Court described in
Norton
.
The question, then, is whether the Agency Defendants’ delay is “unreasonable” under the
APA. Although “[t]here is no per se rule as to how long is too long to wait for agency action,”
In re American Rivers & Idaho Rivers United
,
(2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason; (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority; (5) the court should also take into account the nature and extent of the interests prejudiced by delay; and (6) the court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is “unreasonably delayed.”
Id.
(quoting
In re United Mine Works of Am. Int’l Union
,
Plaintiff argues that Defendants’ delay (now verging on three years) is “
prima facie
unreasonable” in light of the 180-day deadline. Dkt. 7 at 1. But the question is not that simple.
As one commentator has observed, the cases that address agencies’ failure to comply with
statutory deadlines “fall along the spectrum of judicial responses,” with some requiring strict
compliance and others permitting dramatic deviation. 2 Richard J. Pierce,
Administrative Law
Treatise
§ 12.3 (5th ed. 2010). The Court of Appeals has both denied claims of undue delay
under Section 706(1) when agencies have missed the mark by much more time than Defendants
have here,
see Grand Canyon Air Tour Coal. v. FAA
,
The problem before the Court is that there is no evidence in the record regarding the reasons behind the Agency Defendants’ failure to respond to Plaintiff’s SFO complaint. In both *30 their initial opposition to Plaintiff’s motion for partial summary judgment, Dkt. 24, and in a supplemental opposition that the Court permitted them to file, Dkt. 60, the Agency Defendants do no more than reiterate their arguments as to why Plaintiff lacks a cause of action to compel them to respond to his complaint. As a result, the reсord is devoid of evidence or arguments that would justify Defendants’ failure to respond to Plaintiff’s complaint.
Although the question is not as simple as Plaintiff represents, the Court ultimately agrees
that Defendants’ 2.75-year delay in responding to his SFO complaint is “unreasonable” under
TRAC
. As a basic matter, and as the Agency Defendants concede, they have failed for almost
three years to process an administrative complaint that, by regulation, they were required to have
processed in 180 days. 6 C.F.R. § 15.70(g)(1). It is difficult to envision the “rule of reason”
that would permit an agency routinely to delay the processing of administrative complaints by a
factor of five times the timetable set out in the agency’s governing regulations—and Defendants
have offered no justification or explanation here. Moreover, Plaintiff’s interest in the timely
processing of the complaint is not insubstantial.
See TRAC
,
Moreover, it is plain even from the record before the Court that many of the factors that
ordinarily militate against Section 706(1) relief are not present here. First, the relief Plaintiff
seeks does not—as many cases do—seem to present the kind of “complex scientific,
technological, and policy questions” that may arise when the relief sought is the promulgation of
*31
a regulation or a policy.
See Action on Smoking & Health v. Dep’t of Labor
,
The Court is sympathetic to the difficulties that agencies encounter when they are tasked with meeting the kinds of timetables that the regulation on which Plaintiff relies impose. And it has no desire to micromanage DHS’s efforts to process administrativе complaints, here or in the future. But this is an unusual case: Plaintiff has demonstrated that the agency has exceeded the deadline it has set for itself five times over, and the agency has provided no reason why it should be excused from complying with the deadline. Therefore, the Court GRANTS Plaintiff’s motion *32 for partial summary judgment in part (with respect to the SFO complaint) and DENIES it in part (with respect to the BOS complaint). In an accompanying Order, the Court will direct the Agency Defendants to produce a response to the SFO complaint within a reasonable time, and no later than January 22, 2016.
B. The Remaining Counts
The Court next considers the motions to dismiss filed by both the Agency Defendants (Dkt. 23) and the individual defendants in their personal capacities (collectively, the “Individual Defendants”) (Dkt. 63). In these motions, Defendants assert a number of defenses to the array of tort claims that Plaintiff has pled arising out of their failure to timely process his administrative complaint. In particular, Defendants argue that (1) the Westfall Act requires that the United States be substituted for the Individual Defendants as to the majority of Plaintiff’s claims; (2) the FTCA requires the dismissal of all of the tort claims against the United States, as Plaintiff has failed to exhaust them; and (3) the remaining claims against Individual Defendants sound neither in Bivens nor in any other cause of action. The Court agrees.
As a threshold matter, Count IV of Plaintiff’s Complaint alleges that defense counsel has
“multipl[ied] proceedings unreasonably and vexatiously” in this case and requests sanctions
under 28 U.S.C. § 1927. Dkt. 1 at 12. But Plaintiff provides no relevant support for his claim of
unreasonable conduct “in any case” brought “in any court of the United States,”
see
28 U.S.C.
§ 1927, and the Court sees no basis whatsoever for the imposition of sanctions.
See Patton
Boggs, LLP v. Chevron Corp.
,
The remaining counts in Plaintiff’s complaint allege an array of tort claims against ten
named and additional unnamed defendants, ranging from John Pistole, the former administrator
of the TSA, to the DHS officials who handled his administrative complaints.
See
Dkt. 1 at 5–6.
Count II alleges that all of the Individual Defendants are liable under
Bivens v. Six Unknown
Named Agents
,
Plaintiff thus brings two kinds of claims against the Individual Defendants: tort claims premised upon violations of state law (Counts III, V, and VI), and tort claims premised on violations of statutory or constitutional law (Count II). The problem for Plaintiff, as Defendants observe, is that the FTCA provides the exclusive remedy for the first set of claims, and Plaintiff has no remedy for the second. Accordingly, the Court will also grant Defendants’ motions to dismiss Counts II, III, V, and VI.
1 . Westfall Act Substitution
Defendants first move to substitute the United States for the Individual Defеndants under
the Federal Employees Liability Reform and Tort Compensation Act of 1988, commonly known
as the Westfall Act. Dkt. 78 at 9. The Westfall Act “accords federal employees absolute
immunity from common-law tort claims arising out of acts they undertake in the course of their
*34
official duties.”
Osborn v. Haley
,
Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant.
28 U.S.C. § 2679(d)(1). The effect of a certification under the Act, in short, is to “convert[] [a]
tort suit into a[n] FTCA action,” subject to all of the exceptions and procedural requirements that
accompany that statute.
Wuterich
,
Here, the Attorney General’s delegate has attested that the Individual Defendants “were
acting in their scope of their employment at the time of the allegations stated in the Complaint.”
Dkt. 23-1. Although a plaintiff may contest a scope-of-employment certification,
see Gutierrez
de Martinez v. Lamagno
,
Plaintiff also appears to argue, Dkt. 74 at 36–37, that Count II of his Complaint, which
purports to bring a
Bivens
claim, falls within the Westfall Act’s exceptions for claims “brought
for a violation of the Constitution of the United States” or “a statute of the United States under
which such action against an individual is otherwise authorized.” 28 U.S.C. § 2679(b)(2);
see
also Osborn
,
Accordingly, the Court GRANTS Defendants’ motion to substitute the United States for the Individual Defendants with respect to Counts III, V, and VI, and DENIES it with respect to Count II. The Court will discuss these counts further below.
2 . FTCA Claims (Counts III, V, and VI)
Defendants argue that the Court, having substituted the United States for the Individual Defendants and “convert[ed] [Plaintiff’s] tort suit into a[n] FTCA action,” Wuterich , 562 F.3d at 380, must now dismiss Plaintiff’s tort claims against the United States. They argue that all three tort counts should be dismissed without prejudice on the basis of Plaintiff’s failure to exhaust his *36 administrative remedies. Dkt. 62 at 10. They also suggest that, for various reasons, the Court could dismiss each count with prejudice. See Dkt. 62 at 10 n.6 (arguing that, to the extent that Count III sounds in “abuse of process,” the FTCA explicitly does not waive the United States’s sovereign immunity against such a claim); Dkt. 63 at 16–18 (arguing that Counts V and VI do not make out plausible claims). The Court agrees with Defendants that Plaintiff’s claims should be dismissed on the basis of his failure to exhaust his administrative remedies, and therefore declines to reach Defendants’ additional arguments.
The FTCA precludes a claim for damages arising out of “the negligent or wrongful act or
omission of any employee of the Government . . . unless the claimant shall have first presented
the claim to the appropriate Federal agency and his claim shall have been finally denied by the
agency in writing.” 28 U.S.C. § 2675(a). Plaintiff did not file an FTCA claim with DHS before
filing suit.
See
Dkt. 26. At an earlier stage in the proceedings, Plaintiff moved the Court to stay
proceedings on his FTCA claims while he exhausted his remedies.
Id.
As the Court explained in
its earlier opinion, there is considerable authority for the proposition that “[t]he plain language of
the FTCA . . . unambiguously ‘bars a plaintiff from
filing suit
before he or she has exhausted . . .
administrative remedies,’” a failure that “cannot be remedied by . . . attempting to exhaust while
the suit is pending.”
Sai
,
3 . Statutory / Bivens Claims (Count II)
Defendants finally argue that Count II of Plaintiff’s complaint, which purports to bring a
claim under
Bivens v. Six Unknown Named Agents
,
The Supreme Court’s decision in
Bivens
“recognized an implied private cause of action
for damages against federal officials who violate the Fourth Amendment.”
Klay v. Panetta
, 758
F.3d 369, 372 (D.C. Cir. 2014).
[5]
But in the decades since
Bivens
, both the Supreme Court and
the lower courts have “proceeded cautiously in implying additional federal causes of action for
money damages.”
Meshal v. Higgenbotham
,
Nor, to the extent Plaintiff’s complaint can be construed as stating claims against any of
the Individual Defendants arising under a statute, could such a claim be viable.
Bivens
does not
extend to statutory violations.
See Wilson
,
Having concluded that (1) Plaintiff’s tort claims against the Individual Defendants must proceed, if at all, against the United States under the FTCA and after Plaintiff exhausts his administrative remediеs, and (2) Plaintiff cannot pursue Bivens claims against the Individual Defendants arising out of the agency’s delay in processing his administrative complaints, the Court GRANTS Individual Defendants’ motion to dismiss.
C. Plaintiff’s Motions
The Court now turns to the two remaining motions filed by Plaintiff: his motion for leave to file an amended complaint, Dkt. 73, and his renewed motion to proceed in forma pauperis , Dkt. 66. (The Court has previously discussed, and denied, Plaintiff’s pending motion for partial *39 summary judgment, Dkt. 7, and his pending motion for discovery under Rule 56(d), Dkt. 72 at 38.) For the following reasons, the Court will deny Plaintiff’s motions.
1. Plaintiff’s Motion for Leave to File an Amended Complaint Plaintiff has moved for leave to file an amended complaint. See Dkt. 73. To the extent
Plaintiff seeks to add claims relating to events that occurred after the filing of his original
complaint—such as DHS’s failure to respond to Plaintiff’s appeal of the denial of his
administrative complaint—the Court notes that his motion is better construed as a motion to file
a supplemental pleading under Federal Rule of Civil Procedure 15(d).
See
Fed. R. Civ. P. 15(d).
But “the distinction is in most instances of little moment,”
United States v. Hicks
,
The Court agrees that it would be unnecessary or futile to permit Plaintiff to amend or
supplement his complaint. Although “the court should freely give leave when justice so
requires,” Fed. R. Civ. P. 15(a)(2), it is well established that leave to amend should be denied
when amendment would be futile.
See Foman v. Davis
,
The Court therefore DENIES Plaintiff’s motion for leave to amend his complaint on the ground that the proposed amendments would be futile or unnecessary.
3 . Plaintiff’s Renewed Motion to Proceed In Forma Pauperis At the commencement of the litigation, Plaintiff sought in forma pauperis (“IFP”) status. Dkt. 3. At that time, he swore “under penalty of perjury” that he could not afford a lawyer and that he was а “beneficiary of a state-based system for low income persons,” but he refused, “as a matter of principle and to preserve [his] standing in a forthcoming Supreme Court certiorari petition,” to submit an affidavit containing “any details of [his] personal finances, state benefits, or similarly private matters on the public record merely because [he was seeking] IFP status.” Id. at 1. Finally, Plaintiff stated that he was willing to file the required affidavit under seal and ex parte . Id. Recognizing, however, that the Court of Appeals had recently rejected a similar *41 application by Plaintiff in a different case, Sai v. U.S. Postal Service , No. 14-1005 (D.C. Cir. filed Jan. 7, 2014), and that, as a result, any appeal would be unlikely to prevail, Plaintiff also submitted a check for the required filing fee “in case this Court” were to deny Plaintiff’s application for lack of sufficient support. Id. at 2. The Court denied Plaintiff’s IFP motion “without prejudice for failure to meet the statutory requirements of 28 U.S.C. § 1915.” Jan. 30, 2015 Minute Order.
Following this Court’s denial of Plaintiff’s motion, the Supreme Court denied Plaintiff’s
petition for a writ of
certiorari
, which sought review of the Court of Appeals’s decision to deny
his IFP application under similar, although not identical, circumstances.
Sai v. U.S. Postal
Service
,
Plaintiff’s brief is over ten pages long, and it touches on issues including whether IFP affidavits are “ministerial” or “judicial” documents, whether the First Amendment right of access applies, and whether Defendants have standing to oppose the motion. But neither Plaintiff’s brief nor the accompanying affidavit provides any explanation of why or how disclosure of the *42 required information would cause Plaintiff any unique or identifiable harm. Rather, Plaintiff’s position is apparently premised on a matter of principle—he simply he asserts that his right to access to the courts “will be chilled” if he is required to disclose the required information and that he “ absolutely refuse [ s ] to waive [his] privacy rights or [to] subject [himself] to the risks from public disclosure of [his] affidavit.” Dkt. 65 at 17 (emphasis in original). He further states that he also “absolutely refuse[s] to provide such information to the defendants in this case,” unless subject “to a subpoena with opportunity for a motion to quash.” Dkt. 65-1 ¶ 12.
Against this backdrop, the Court need not decide whether an IFP affidavit is a “judicial
record” or how the rights of public access derived from the First Amendment and the common
law would apply to it.
See, e.g.
,
In re Boston Herald, Inc.
,
Although Plaintiff fails to identify any basis for distinguishing his case from the many thousands of other cases in which a party seeks IFP status, he alludes to a number of generally applicable risks. He notes, for example, that disclosure of financial affidavits might pose a risk of identity theft. That, of course, does not explain why Plaintiff insists on ex parte treatment. But, even more fundamentally, it does not explain the basis for Plaintiff’s concern. Plaintiff is not required to provide account numbers, his Social Security number, or any similar information. It seems implausible, moreover, that identity thieves are likely to peruse IFP applications in search of their victims. Nor does Plaintiff’s general assertion that the affidavits might “disclose embarrassing and potentially harmful information, such as an affiant’s family situation, disabilities, [or] dependents,” id. at 17, further his argument. If Plaintiff has particular reasons why particular information should not be disclosed on the public docket, he is free to raise that issue with the Court. What he cannot do, however, is seek the benefit of IFP status while refusing to comply with the relevant rules and procedures and declining to offer any individualized rationale short of his personal conviction that the information at issue should not be disclosed.
Accordingly, the Court DENIES Plaintiff’s motion to proceed in forma pauperis , or, in the alternative, for leave to file an affidavit in support of his application ex parte . Because this *44 Opinion and the accompanying Order disposes of all claims in this case, Plaintiff has no need for an order certifying the question under 28 U.S.C. § 1292(b). The Court therefore DENIES his request for certification as moot.
III. CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants’ motions to dismiss in part and DENIES them in part, and GRANTS Plaintiff’s motion for partial summary judgment in part and DENIES it in part. The Court DENIES Plaintiff’s remaining motions. A separate Order will accompany this Memorandum Opinion.
/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge Date: December 15, 2015
Notes
[1] Defendants dispute whеther Plaintiff’s complaint properly pleads a claim under the APA. See Dkt. 23 at 12–13; Dkt. 62 at 3–4. But Count 1 of Plaintiff’s complaint explicitly states that “5 [U.S.C.] § 706(1) requires that defendants be compelled [to] issue the two responses unlawfully withheld and unreasonably delayed.” Dkt. 1 at 10 (emphasis in original). Especially considered in light of Plaintiff’s pro se status, the complaint’s pleadings are sufficient to state an APA claim.
[2] The Massachusetts action also repeats many of the allegations raised here relating to the handling of Plaintiff’s administrative complaints. See Complaint at 7, Sai , No. 15-cv-13308 (D. Mass. Sept. 4, 2015) (describing the TSA’s “deliberate[] and unlawful[] refus[al] to respond to Sai’s grievance”). In addition, Plaintiff has filed suit under the Freedom of Information Act and the Privacy Act in this district seeking the disclosure of material relating to the incidents and to the handling of the administrative complaints. Sai v. TSA , No. 14-cv-703 (D.D.C. Mar. 13,
[3] District courts in other circuits have reached conflicting results.
Compare, e.g.
,
Wilson v.
Seattle Hous. Auth.
, No. 09-226,
[4] The plaintiffs in WEAL sued school districts across the country as “recipient[s] of Federal assistance,” and the Department of Health, Education and Welfare in its role as the “Federal provider of such assistance.” 29 U.S.C. § 794a(a)(2). Accordingly, although WEAL ’s holding applies to the Rehabilitation Act, it applies only to the remedial scheme governing violations of the Act by the recipients of federal funding and by agencies in their roles as the providers of such funding. See Lane ,518 U.S. at 192–93 (making this distinction).
[5] A private party cannot bring a Bivens action against a federal agency. FDIC v. Meyer , 510 U.S. 471, 486 (1994). Thus to the extent Count II could be construed to plead a Bivens claim against the Agency Defendants, it is dismissed with prejudice on that ground.