Sai v. Department of Homeland Security , 149 F. Supp. 3d 99 ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SAI,
Plaintiff,
v. Civil Action 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
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
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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, 403 U.S. 388 (1971), and
that, because Plaintiff concededly failed to exhaust his administrative remedies before filing suit,
these claims must then be dismissed. The Court also concludes that Plaintiff has failed to state a
claim under Bivens or any similar cause of action against the individual-capacity defendants.
Accordingly, Individual Defendants’ motion to dismiss is GRANTED, and Plaintiff’s claims
against them are dismissed.
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).
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I. BACKGROUND
A. Facts
Plaintiff, whose full legal name is Sai, has a “permanent, episodic motor disability” that
can cause painful muscle spasms, speech 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.
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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, 403 U.S. 388; the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346; and a number
of common-law torts, including negligent infliction of emotional distress, intentional infliction of
emotional distress, and conspiracy. 1 Id. at 9–14. Plaintiff seeks declaratory and injunctive relief,
including an order compelling DHS to produce responses to his administrative complaints, and
money damages, as well as costs. Id. at 14–15.
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
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Defendants dispute whether 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. See Sai v. TSA, No. 14-cv-703 (D.D.C. Mar. 13,
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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 dozen 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, 99 F. Supp. 3d at 56–69. Both Plaintiff’s motion for partial
summary judgment and Defendants’ motions to dismiss are now fully briefed.
In the meantime, on March 4, 2015, DHS responded to Plaintiff’s first administrative
complaint, which concerned his treatment at Boston Logan International Airport. See 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.
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775 F.3d 61, 79 (1st Cir. 2014)). Finally, the TSA explained, Plaintiff’s failure fully to inform
TSA agents about his disability limited “the government’s ability to offer a reasonable
accommodation.” Id. at 6. Plaintiff appealed the TSA’s decision within the agency, but his
appeal was denied on August 25, 2015. See Dkt. 78-1 at 1. He filed suit to challenge that
decision in the District of Massachusetts on September 4, 2015. See Sai v. TSA, No. 15-cv-
13308 (D. Mass. Sept. 4, 2015).
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, 393 F.3d 155, 170 (D.C. Cir. 2004) (quoting Tuck v. Pan
Am. Health Org., 668 F.2d 547, 549 (D.C. Cir. 1981)). This principle, moreover, extends to each
distinct claim asserted in a case—absent subject-matter jurisdiction, federal courts are without
power to consider or to adjudicate any claim, see Loughlin, 393 F.3d at 171—and the principle
cannot be lessened or avoided by combining multiple claims in a single count.
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, 415 U.S. 452, 459 n.10 (1974). Thus, where “events have so transpired that
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the decision will neither presently affect the parties’ rights nor have a more-than-speculative
chance of affecting them in the future,” the relevant case or claim becomes moot, Transwestern
Pipeline Co. v. FERC, 897 F.2d 570, 575 (D.C. Cir. 1990), and, absent unusual circumstances,
the Court is deprived of jurisdiction. See also Loughlin, 393 F.3d at 170 (“[M]ootness doctrine
encompasses the circumstances that destroy the justiciability of a suit previously suitable for
determination.’” (quoting 13A Charles A. Wright et al., Federal Practice & Procedure § 3533
(2d ed. 1984))).
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.” See 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, 455 U.S. 478, 482 (1982) (quoting Weinstein v. Bradford, 423 U.S.
147, 149 (1975) (per curiam)); see also United Bhd. of Carpenters & Joiners of Am., AFL-CIO v.
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Operative Plasterers’ & Cement Masons’ Int’l Ass’n of U.S. & Canada, AFL-CIO, 721 F.3d 678,
687–88 (D.C. Cir. 2013). Plaintiff is incorrect, however, that the exception applies here.
Whether defendants acted unlawfully in failing timely to respond to Plaintiff’s BOS complaint is
not an issue that “evades review”: indeed, Plaintiff has raised the same legal issue with respect to
his SFO complaint, which the Court’s Opinion resolves. And because DHS has yet to act on that
administrative complaint, making it ripe for adjudication here, Plaintiff has no basis to invoke the
capable-of-repetition-yet-evading-review exception to the mootness doctrine with respect to the
BOS complaint.
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, 542 U.S. 55, 64 (2004)
(emphases in original). Because Plaintiff did not seek this relief in the complaint—and because
any effort to amend the complaint to include such a claim would be futile—this argument cannot
salvage Plaintiff’s claim for injunctive and declaratory relief stemming from the BOS events.
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.
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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., 551 U.S. 308, 322 (2007) (describing “documents incorporated into the complaint
by reference” and “matters of which a court may take judicial notice” as “sources courts
ordinarily examine when ruling on Rule 12(b)(6) motions”). The undisputed existence of a DHS
response to the BOS complaint does not turn the mootness inquiry into one in which additional
evidence is necessary, nor does Plaintiff identify any evidence he believes he might obtain in
discovery that would be relevant to the inquiry.
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 below, to the extent that Plaintiff challenges the government’s
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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, 562 F.3d 375, 386 (D.C. Cir. 2009). Plaintiff’s conclusory assertion that he “cannot
present facts essential to justify [his] opposition” because they are “unavailable” to him, Dkt. 72
at 38 (quoting Fed. R. Civ. P. 56(d)), does not satisfy this standard. As the Court of Appeals has
cautioned, opening the door to discovery based on “intuition” or the hope of finding some basis
to challenge a Westfall certification “simply has no place in a Westfall Act absolute immunity
case.” Wuterich, 562 F.3d at 386.
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 States seeking relief
11
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.” See 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
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of Delaware County Valley v. Regan, 709 F.2d 1521, 1531–32 (D.C. Cir. 1983) (en banc), the
Court of Appeals held that the availability of an alternative substantive remedy set out in an
independent statute precluded APA review of the agency’s failure to meet a statutory deadline
for administrative resolution of a discrimination claim. The Court disagrees, however, that this
is such a case.
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, 914 F.2d 1330, 1338 (9th Cir. 1990), “to ensure that
members of the disabled community could live independently and fully participate in society,”
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American Council of the Blind v. Paulson, 525 F.3d 1256, 1259 (D.C. Cir. 2008). Under Section
504 of the Act,
[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 federal 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.
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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, 532 U.S. 275, 286 (2001). As a result, “[t]he judicial task is to interpret
the statute Congress has passed to determine whether it displays an intent to create not just a
private right but also a private remedy.” Id. Section 504 requires agencies to adopt procedures
to implement Congress’s antidiscrimination mandate, but it lacks the “‘rights-creating’
language” that the Supreme Court demanded in Sandoval. See id. at 288; see also Cannon v.
Univ. of Chicago, 441 U.S. 677, 690 n.13 (1979). To the contrary, the part of Section 504 that
requires agencies to adopt these regulations operates much like the statutory text found
insufficient in Sandoval: its focus is not “on the individuals protected” but on the federal
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agencies that it instructs to implement the substantive provisions of the Act. Sandoval, 532 U.S.
at 289. The fact that those implementing regulations require that DHS respond to complaints
within 180 days, moreover, does not create a cause of action where Congress has failed to do so.
As Sandoval also explains, “[l]anguage in a regulation may invoke a private right of action that
Congress through statutory text created, but it may not create a right that Congress has not.” Id.
at 291.
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
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Transportation for failing to design and issue forms of paper currency that would be recognizable
to the blind. See Am. Council of the Blind v. Paulson, 463 F. Supp. 2d 51, 52 (D.D.C. 2006),
aff’d, 525 F.3d 1256. Before the district court, the United States argued that Lane foreclosed the
availability of nonmonetary relief against federal agencies that had violated Section 504. See
463 F. Supp. 2d at 57–58. The district court rejected that argument, concluding that Lane had
done no more than foreclose a suit for damages against a federal agency, id. at 58, and the
government abandoned the argument on appeal, see 525 F.3d at 1266. Although the Court of
Appeals did not discuss the source of the relevant cause of action, it affirmed the district court’s
interlocutory decision granting a declaratory judgment against the Treasury Department for
failing “to design and issue paper currency that is readily distinguishable to the visually
impaired,” id. at 1259, and remanded the case to the district court “to address the Council’s
request for injunctive relief,” id. at 1274.
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. See Brief for the Respondents,
Lane, 518 U.S. 187 (No. 95-365), 1996 WL 115795, at *27 n.17. For the following reasons, the
Court concludes that the cause of action arises under the APA. First, the Supreme Court has
repeatedly cautioned courts not to imply causes of action in the absence of evidence that
Congress intended “to create not just a private right but also a private remedy.” Sandoval, 532
U.S. at 286. Here, Congress unambiguously intended to create a right to be free from disability
17
discrimination in federal programs and activities. See 29 U.S.C. § 794(a). But there is relatively
little evidence that Congress intended to create a private cause of action under the Rehabilitation
Act to enforce that right. As the Supreme Court observed in Lane, the Act expressly specifies
the remedies available to “any person aggrieved by any act or failure to act by any recipient of
Federal assistance or Federal provider of such assistance,” id. § 794a(a)(2), but it says nothing
about the remedies available to a person aggrieved by discrimination in a “program or activity
conducted by an[] Executive agency,” id. § 794(a); see Lane, 518 U.S. at 192.
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, 387 U.S. 136, 140 (1967)
(quoting 5 U.S.C. § 702). As then-Judge Breyer wrote almost three decades ago, “federal action
is nearly always reviewable for conformity with statutory obligations without any such ‘private
right of action.’” NAACP v. Sec’y of Hous. & Urban Dev., 817 F.2d 149, 152 (1st Cir. 1987).
Although Congress might provide for a cause of action against an agency (as well as a waiver of
sovereign immunity) when it intends to permit an aggrieved person to recover damages from the
United States, when it intends to permit only declaratory and injunctive relief, there will often be
no need to provide for a cause of action that is independent of the APA. Cf. J.L. v. Soc. Sec.
Admin., 971 F.2d 260, 268 (9th Cir. 1992) (“Whether this suit is characterized as review of
agency action under the APA or a private suit directly under the Rehabilitation Act should not
make a significant difference to [plaintiffs’] chances for success on the merits.” (internal
quotation marks omitted))), overruled on other grounds by Lane, 518 U.S. 187.
18
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, 880 F.2d 603 (1st Cir. 1989) (en banc). In that case, the plaintiff, a hearing-
impaired truck driver, claimed that a Department of Transportation regulation prevented him
from working in violation of his rights under the Rehabilitation Act. Although a panel of the
court initially held that the plaintiff properly brought his action as an implied claim under the
Rehabilitation Act, the en banc court disagreed and held that the claim should have been brought
under the APA. Id. at 605–08. The First Circuit explained that, although the Rehabilitation Act
expressly provides a cause of action against the government in its role as provider of federal
funds, “the Act is silent about whether and how a person injured by the government as regulator
is to enforce the Act against the government.” Id. at 605 (emphasis in original). In that court’s
view, this “omission simply reflects the fact that such a person already has a right to judicial
review, as set forth in the APA.” Id. This conclusion, the court explained, furthers the purposes
of the APA to provide a “single uniform method for review of agency action,” id., and it avoids
the oddity of implying a cause of action where another statute already provides a means for the
plaintiff “to challenge [the] agency action,” id. at 606.
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. 937 F.2d 123, 125–26 (4th Cir. 1991).
Like the First Circuit, the Fourth Circuit held that such an action may be maintained, if at all,
under the APA, and that “the Rehabilitation Act does not afford [plaintiff] a private cause of
19
action against the Secretary of Transportation.” Id. at 126. As the Fourth Circuit explained, the
“proper avenue of appeal” for such an aggrieved party “is from a final administrative decision”
pursuant to the APA. 3 Id.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, 941 F.2d 780, 793 (9th Cir. 1991) (“The APA’s purpose is
to provide an administrative forum for those challenging administrative and regulatory agency
action, not to provide a forum for adjudicating government tort liability.”), overruled on other
grounds by Lane, 518 U.S. 187. The Court is not persuaded, however, that this distinction holds.
Whether a suit to enforce Section 504 is treated as arising under the Rehabilitation Act or the
APA, Lane makes clear that the remedies available are the same: the plaintiff may only obtain
declaratory or injunctive relief, not money damages. See Lane, 518 U.S. at 197; 5 U.S.C. § 702.
Any person whose discrimination claim can be alleviated by forward-looking relief of that
nature, moreover, may well have the kind of claim that is suited to APA review. At least as a
general matter, those acts of discrimination that can be remedied by forward-looking relief (for
instance, by a change in the agency’s policies or practices) are likely to involve either demands
for relief that have been formally rejected or established rules or procedures that fail to comply
3
District courts in other circuits have reached conflicting results. Compare, e.g., Wilson v.
Seattle Hous. Auth., No. 09-226, 2010 WL 1633323, at *5–6 (W.D. Wash. Apr. 22, 2010)
(agreeing with the First and Fourth Circuits that plaintiffs must proceed under the APA), with
Am. Council of the Blind v. Astrue, No. 05-4696, 2008 WL 1858928, at *7 (N.D. Cal. Apr. 23,
2008) (finding “jurisdiction under the Rehabilitation Act”), with Cooke v. Bureau of Prisons, 926
F. Supp. 2d 720, 731–32 (E.D.N.C. 2013) (declining to reach the issue).
20
with the Act. See 5 U.S.C. § 551(4)–(11), (13). There is nothing discordant about applying the
APA to claims of that type.
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
21
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, 709 F.2d 1521, the Court of Appeals considered whether plaintiffs could sue the Treasury
Department’s Office of Revenue Sharing (“ORS”) for failing to comply with a statutory
timetable for resolving claims of discrimination by recipients of federal funding and for failing to
enforce the relevant restrictions on discrimination by those recipients. Congress had provided a
private right of action that permitted private citizens to file an administrative complaint with the
ORS and then to sue the grant recipient if the ORS either (a) failed to issue a determination
within 90 days or (b) determined that the grant recipient had complied with the
antidiscrimination provision. See id. at 1527. Against that backdrop, the Court of Appeals
declined to imply a cause of action against the ORS under the relevant statute, and instead held
that Congress intended to permit private enforcement only by way of actions against those
recipients allegedly engaged in discriminatory conduct. Id. at 1531. Of more relevance here, the
Court then held that the statute also precluded relief under Section 704 of the APA, because the
private remedy in the statute—that is, the provision permitting plaintiffs to sue the recipients of
federal funds—was sufficient to remedy the recipients’ discriminatory conduct. Id. at 1531–32.
In so holding, the Court expressly rejected the plaintiffs’ contention that the private right of
action was inadequate because it did not provide a means of redressing the ORS’s own failure to
enforce “the statute’s nondiscrimination commend.” Id. at 1532. As the Court explained, “even
if . . . a nationwide suit would be more effective than several [suits against funding recipients],
22
we hold that the remedy provided by Congress is adequate to redress the discrimination
allegedly encountered by appellants.” Id at 1533 (emphases in original).
The second case followed a similar path. There, a group of civil-rights organizations
filed suit to challenge what they saw as the federal government’s failure to enforce a number of
civil-rights statutes, including Title VI and the Rehabilitation Act. See Women’s Equity Action
League v. Cavazos (“WEAL”), 906 F.2d 742, 750 (D.C. Cir. 1990) (R.B. Ginsburg, J.). 4 They,
too, alleged that the recipients of federal funds had acted in a discriminatory manner and that the
agencies had failed to respond to administrative complaints about the underlying discrimination.
The Court held, relying on Council of and for the Blind, that neither Title VI nor the other
statutes afforded the plaintiffs a right of action against the government in its role as a monitor of
the recipients’ compliance. Id. at 749–50. The Court also addressed, and rejected, the plaintiffs’
alternative argument that the APA permitted them to sue the government even if Title VI (and
the other statutes) did not. Id. at 750–51. It held—again following Council of and for the
Blind—that Title VI and the Rehabilitation Act precluded reliance on the APA, even though the
statute did not provide a mechanism by which the plaintiffs could obtain review of the
government’s failure to respond to their complaints and commence investigations in a timely
manner. See id. As the Court of Appeals explained,
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
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).
23
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 relief 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, 396 F.3d 1265, 1270–71 (D.C. Cir. 2005)
(describing these cases as holding that “APA review is unavailable where there is a private cause
of action against a third party otherwise subject to agency regulation”). That unresolved issue,
however, was addressed and resolved in Garcia v. Vilsack, 563 F.3d 519 (D.C. Cir. 2009).
There, in response to allegations that the Department of Agriculture had for years ignored
complaints regarding its own discriminatory conduct, Congress passed a statute permitting
eligible complainants either to file suit in federal court or to renew their administrative
complaints. See 563 F.3d at 521–22. Those who chose to renew their administrative complaints
“could seek de novo review in federal court” after the agency had adjudicated those complaints.
Id. at 522. The plaintiffs in Garcia “chose the first option,” but also brought APA claims against
the agency arising out of its failure to investigate their prior complaints. Id.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
24
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, 487 U.S. 879 (1988).
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, 487 U.S. at 903 (emphasis added). That same statutory purpose is
25
identified in the authoritative Attorney General’s Manual on the Administrative Procedure Act
95 (1947), which explained: “The net effect, clearly intended by the Congress, is to provide for a
dovetailing of the general provisions of the Administrative Procedure Act with the particular
statutory provisions which the Congress has moulded for special situations.” The preclusion
provision, moreover, should “not be construed to defeat the central purpose of providing a broad
spectrum of judicial review of agency action,” at least not in a case in which Congress has not
established “special statutory procedures” to channel review of an agency’s decisionmaking.
Bowen, 487 U.S. at 903. That is what has happened here: while Congress has specified exactly
what remedies a plaintiff has to vindicate his or her rights under the Rehabilitation Act against a
recipient of federal funding, or even an agency providing such funding, it has said nothing about
what remedies a plaintiff has against an agency that discriminates on the basis of disability in a
federal program or activity. See Lane, 518 U.S. at 192–93. In such a circumstance, Bowen
directs that Section 704’s preclusion provision is inapplicable.
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, 520 U.S. 154 (1997). The Court need not, and does not, decide what
would constitute “final agency action” in the context of an alleged violation of Section 504 or,
indeed, precisely what agency “rule, order, license, sanction, relief or the equivalent thereof, or
failure to act,” see 5 U.S.C. § 551(13), Plaintiff might seek to challenge under the APA. Cf. J.L.,
26
971 F.2d at 265 (“If a court’s intervention is required in the form of an APA suit, a
Rehabilitation Act suit or both, its decision should be informed by a considerable body of
information about the administration of the SSI program and SSA’s internal organization and
operations.”). For present purposes, the Court merely concludes that the final agency action
requirement under the APA implicates many of the same purposes as an exhaustion requirement
and, as a result, Defendants’ delay in responding to Plaintiff’s complaint could well pose a
barrier to any substantive claim that Plaintiff might ultimately seek to pursue—particularly to the
extent that any such claim might rely on an asserted failure of DHS to redress a grievance
expressed in that complaint.
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 a plaintiff asserts that an agency failed to take a discrete agency action that it is required
to take.” Norton, 542 U.S. at 64 (emphasis in original). Here, Plaintiff alleges that Defendants
have failed to respond to his SFO complaint in the 180-day timeframe set out in the governing
regulations. See 6 C.F.R. § 15.70(g)(1). The Agency Defendants do not deny that they have
failed to respond to the complaint. Nor do they dispute that the response Plaintiff seeks is a
“discrete agency action” that they are “required to take.” Indeed, the Agency Defendants mount
no defense of their failure to respond to Plaintiff’s SFO complaint whatsoever, except to assert
27
that Plaintiff has no cause of action by which to hold them accountable. Because the Court
disagrees with that premise, it will proceed to the merits of Plaintiff’s motion for partial
summary judgment.
First, the Agency Defendants’ failure to act is the kind of discrete and mandatory action
that the Supreme Court described in Norton. See 542 U.S. at 64. There, the Supreme Court
illustrated the governing law with an example analogous to the present case, explaining that a
statutory provision that required an agency “‘to establish regulations to implement’
interconnection requirements ‘[w]ithin 6 months’ of the date of the enactment of the [statute]
would . . . support[] a judicial decree under the APA requiring the prompt issuance of
regulations.” Id. at 64–65 (quoting 47 U.S.C. § 251(d)(1)). The fact that the deadline Plaintiff
seeks to enforce in this case is set out in a regulation, not a statute, is immaterial; the Norton
Court explained that an agency could be compelled to follow “agency regulations that have the
force of law.” Id. at 65. Defendants’ failure to respond to Plaintiff’s complaint is, therefore, the
appropriate subject of a suit under Section 706(1).
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, 372 F.3d 413, 419 (D.C. Cir. 2004) (internal
quotation marks omitted), the Court of Appeals has, in a series of cases beginning with
Telecommunications Research & Action Center v. FCC (“TRAC”), 750 F.2d 70, 79 (D.C. Cir.
1984), outlined six factors to guide courts in determining whether relief under Section 706(1) is
warranted. “The first and most important factor is that ‘the time agencies take to make decisions
must be governed by a rule of reason.’” In re Core Commc’ns, Inc., 531 F.3d 849, 855 (D.C.
Cir. 2008) (quoting TRAC, 740 F.2d at 80). The remaining five factors are:
28
(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, 190 F.3d 545, 549 (D.C. Cir. 1999)).
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, 154 F.3d 455, 476 (D.C. Cir. 1998) (no
remedy under Section 706(1) where Congress required agency to promulgate regulations within
120 days and regulations were not issued for ten years), and granted relief under Section 706(1)
in cases of delay roughly analogous to the case before the Court, see MCI Telecomm. Corp. v.
FCC, 627 F.2d 322, 340 (D.C. Cir. 1980) (explaining that the Telecommunications Act “assumes
that rates will be finally decided within a reasonable time encompassing months, occasionally a
year or two, but not several years or a decade”). The key question, under the APA and TRAC, is
whether the delay is “reasonable” in light of the evidence in the record.
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
29
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 record 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. See 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, 750 F.2d at 80. He alleges in his
complaint that he has suffered mistreatment “at multiple airports over multiple years, including
in the nearly two years since the SFO incident happened.” Dkt. 1 at 48 n.2 (emphasis in
original). To the extent that Plaintiff has a right to be free of discrimination in the airport and has
asked the agency to remedy such discrimination, the agency’s delay in responding to his
complaint has the effect of perpetuating the alleged wrong.
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
30
a regulation or a policy. See Action on Smoking & Health v. Dep’t of Labor, 100 F.3d 991, 993
(D.C. Cir. 1996); see also Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094,
1102 (D.C. Cir. 2003) (observing that the Section 706(1) determination “will depend in large
part . . . upon the complexity of the task at hand”); In re United Mine Workers, 190 F.3d at 555(“It is difficult for us to second-guess this projection in light of the host of complex scientific and
technical issues involved . . . .” (internal quotation marks omitted)). All Plaintiff seeks is a
response to a complaint—a response that might be eight pages (the length of DHS’s response to
his BOS complaint) or less. Second, while TRAC instructs reviewing courts to “consider the
effect of expediting delayed action on agency activities of a higher or competing priority,” 750
F.2d at 80, there is no basis to conclude that DHS’s delay in responding to Plaintiff’s
administrative complaint is the product of “higher or competing priorit[ies].” After all, DHS
responded to Plaintiff’s BOS complaint in March 2015—over nine months ago—but has still not
responded to Plaintiff’s SFO complaint, which was filed only two months later. This is thus not
a case in which a plaintiff is seeking to upend a “first-in, first-out” procedure by attempting to
“automatically go to the head of the line at the agency.” See Open Am. v. Watergate Special
Prosecution Force, 547 F.2d 605, 614–15 (D.C. Cir. 1976). Thus, on the current record, “the
agency [has] not show[n] due diligence in processing plaintiff’s individual request.” Id. at 615.
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 administrative 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
31
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., 825 F. Supp. 2d 35, 42 (D.D.C. 2011) (“[T]he bar for the
imposition of fees and costs under § 1927 is extremely high.”). The Court therefore construes
Count IV as a motion for sanctions and DENIES it.
32
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, 403 U.S. 388, for violating Plaintiff’s “civil rights”—seemingly his rights under
the Rehabilitation Act and DHS regulations. Count III appears to allege claims for intentional
and negligent infliction of emotional distress against all of the Individual Defendants. Count V
alleges that several Individual Defendants—Zachary Bromer, Jeremy Buzzell, Erika Lucas, and
several unnamed defendants—“obstructed the investigation of [Plaintiff’s] Rehabilitation Act
complaints.” Dkt. 1 at 13. Count VI alleges standalone claims of civil conspiracy against all of
the Individual Defendants who were involved in handling Plaintiff’s administrative complaints.
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 Defendants under
the Federal Employees Liability Reform and Tort Compensation Act of 1988, commonly known
as the Westfall Act. See 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
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official duties.” Osborn v. Haley, 549 U.S. 225, 229 (2007); see Wuterich, 562 F.3d at 380. In
pertinent part, the Act provides:
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, 562 F.3d at 380.
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, 515 U.S. 417, 420 (1995), Plaintiff has not done so. Instead, he argues
only that the Westfall Act permits substitution only to the extent the Individual Defendants were
sued in their official (rather than their personal) capacities. Dkt. 74 at 36. But, as the Court has
previously noted, “an official-capacity suit is, in all respects other than name, to be treated as a
suit against the [agency]” rather than the named defendant. See Kentucky v. Graham, 473 U.S.
159, 166 (1985). Plaintiff’s claims against the Individual Defendants in their personal capacities,
by contrast, are labeled as such because they would (if successful) impose personal liability on
them. The substitution mechanism in the Westfall Act seeks to shield government employees
from such a prospect, at least when they act within the scope of their employment. See Osborn,
549 U.S. at 229. Here, Plaintiff has provided no evidence that the Individual Defendants were
not acting within the scope of their employment at the time they processed his complaints, and
he cannot evade the Westfall Act in any other way.
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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, 549 U.S. at 159. The Court agrees. Congress intended to preserve Bivens suits as a
procedural mechanism for plaintiffs alleging constitutional torts by federal officers, and did not
intend to replace all preexisting statutory remedies with the FTCA. See United States v. Smith,
499 U.S. 160, 166–67 (1991) (“[T]he FTCA is not the exclusive remedy for torts committed by
Government employees in the scope of their employment when an injured plaintiff brings . . . a
Bivens action . . . or . . . an action under a federal statute that authorizes recovery against a
Government employee.”); Simpkins v. District of Columbia, 108 F.3d 366, 371–72 (D.C. Cir.
1997). Defendants argue that Plaintiff does not fall within this exception because he cannot
maintain a damages action for their failure to process his administrative complaint, Dkt. 78 at
10–11, but this argument goes to the merits of Plaintiff’s claims, not the propriety of Westfall
Act substitution.
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
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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, 99 F. Supp. 3d at 62–63 (quoting Edwards v. District of Columbia, 616
F. Supp. 2d 112, 116 (D.D.C. 2009)). The Court has no need to resolve the question, however,
as Plaintiff now concedes that his FTCA claims should be dismissed. See Dkt. 72 at 35. The
Court of Appeals has made clear that, under such a circumstance, a dismissal should be without
prejudice, so that an FTCA plaintiff can exhaust his administrative remedies and then proceed.
See Simpkins, 108 F.3d at 371 (“[F]orcing these cases through the administrative process helps
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sort out not only worthless claims, but also worthy ones, which may be settled at that stage.”).
The Court will, accordingly, dismiss Counts III, V, and VI without prejudice.
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, 403 U.S. 388, against the Individual
Defendants, should be dismissed with prejudice because there is no Bivens remedy available to
Plaintiff. The Court notes, as a threshold matter, that Count II is styled as a claim against
Defendants arising out of their violation of Plaintiff’s statutory rights—that is, his rights under
“the Rehabilitation Act, and DHS’ implementing regulations.” Dkt. 1 at 11. But no matter how
Count II is styled, the Court agrees with Defendants that it must be dismissed for failure to allege
a cause of action.
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, 804 F.3d 417, 421 (D.C. Cir. 2015). The
Individual Defendants argue vigorously that the Court should decline to infer a Bivens remedy
arising out of agency delay, see Dkt. 63 at 18–19, 21–25, and the Court agrees that there is no
basis for a Bivens claim here. It is established that a Bivens remedy exists, if at all, to “remedy . .
. constitutional violations.” Wilson v. Libby, 535 F.3d 697, 704 (D.C. Cir. 2008) (emphasis
added). But the Court of Appeals has made clear that there is no violation of the Due Process
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.
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Clause arising out of an agency’s failure to process discrimination complaints in a timely
manner. See Council of and for the Blind, 709 F.2d at 1533. Because Plaintiff can point to no
constitutional violation that allegedly occurred during DHS’s processing of his administrative
complaints, he cannot invoke Bivens against any of the officers who processed them.
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, 535 F.3d at 704. And to the extent that Plaintiff seeks
money damages from the federal officers who processed his complaint, he is without a remedy,
as neither the APA nor the Rehabilitation Act establishes a damages remedy against federal
officers. As Plaintiff concedes, moreover, to the extent that his complaint can be read as stating
claims arising under 42 U.S.C. § 1983 for statutory violations, such claims also would not be
viable, as § 1983 only extends to state and local officers. See District of Columbia v. Carter, 409
U.S. 418, 424 (1973); see also Dkt. 72 at 36. In sum, Plaintiff has stated no viable statutory
claim for damages against the Individual Defendants.
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 remedies, 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
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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, 283 F.3d 380,
385 (D.C. Cir. 2002), and has no bearing on this case, because both motions for leave to amend
and motions to supplement should be denied where amendment (or supplementation) would be
futile. Wildearth Guardians v. Kempthorne, 592 F. Supp. 2d 18, 23 (D.D.C. 2008). Plaintiff’s
proposed amended complaint purports to “drop[] [his] FTCA claims” (although it retains all tort
claims against Individual Defendants); to “add[] a claim” under the Rehabilitation Act and the
APA for Defendants’ alleged failure to timely respond to Plaintiff’s appeal of DHS’s denial of
his administrative complaints; and to “clarif[y] [his] APA claims” by making clear that Count I
is pled under the APA as well as the Rehabilitation Act (and under § 706(2) as well as § 706(1)).
See Dkt. 73 at 1; Dkt. 73-1 at 8–13. Defendants oppose Plaintiff’s motion on various grounds.
They argue that it is unnecessary for Plaintiff to amend his complaint to drop his FTCA claims,
because he has already consented to their dismissal, and that it would be futile to add any claim
arising out of DHS’s processing of Plaintiff’s appeal of his administrative complaint, whether
under the APA or the Rehabilitation Act, because neither statute permits Plaintiff to challenge
agency delay. See Dkt. 78 at 17–20.
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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, 371 U.S. 178, 182 (1962); Willoughby v.
Potomac Elec. Power Co., 100 F.3d 999, 1003 (D.C. Cir. 1996). Plaintiff’s principal reason for
seeking leave to amend his complaint is to add a claim arising out of DHS’s alleged failure to
timely process his appeal of the denial of his BOS complaint. But DHS has now processed his
appeal, see Dkt. 78-1, and so the claim Plaintiff seeks to add is moot for the same reasons that his
original claims relating to his BOS complaint are moot. Nor is there any need for Plaintiff to
amend his complaint to “drop” his FTCA claims or to “clarify” his APA claims, given the
Court’s conclusions that his FTCA claims must be dismissed and that his APA claims were pled
with sufficient clarity in the original complaint.
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 a “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
40
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, 135 S. Ct. 1915 (2015). At that point, Plaintiff once again filed a motion with this
Court, renewing his prior IFP application or, in the alternative, seeking reconsideration of the
Court’s prior ruling. Dkt. 65. At the same time, Plaintiff requested that the Court certify the
issue for interlocutory appeal. Id. Defendants oppose Plaintiff’s motion on the grounds that
Plaintiff’s application fails to comply with 28 U.S.C. § 1915, which requires that a person
seeking IFP status submit an affidavit setting forth the person’s assets and demonstrating an
inability to pay the filing fee; Plaintiff previously litigated and lost this issue in the Court of
Appeals; Plaintiff has failed to specify any specific reasons justifying his request to file under
seal and ex parte; and, in any event, the interest in public access outweighs any interest in
nondisclosure. Dkt. 67. Defendants also oppose interlocutory review. Id.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
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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., 321 F.3d 174 (1st Cir. 2003); United
States v. El-Sayegh, 131 F.3d 158, 163 (D.C. Cir. 1997). Section 1915 requires the submission
of a detailed affidavit, and, under the Court’s practice these submissions, like other filings, are a
matter of public record. It is incumbent upon Plaintiff to demonstrate why this usual rule should
not apply in his case, and the unsupported assertion of an unqualified interest in privacy is not
sufficient. Cf. Johnson v. Greater Se. Cmty. Hosp. Corp., 951 F.2d 1268, 1277 (D.C. Cir. 1991)
(“The decision as to access to judicial records is one best left to the sound discretion of the trial
court, a discretion to be exercised in light of the relevant facts and circumstances of the particular
case.” (quoting United States v. Hubbard, 650 F.2d 293, 316–17 (D.C. Cir. 1980)). As Plaintiff
points out, the issue he raises “affects tens of thousands of similarly situated litigants.” Dkt. 65
at 17. If every one of those litigants was entitled to file an IFP application under seal and ex
parte, with no showing of particularized need, the public would be denied important
transparency in the working of the judiciary, opposing parties would be deprived of the
opportunity to raise objections, and the courts would lose a corresponding check on potential
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misstatements or omissions in IFP affidavits. Plaintiff’s insistence that he is “absolutely”
unwilling to share the required information with opposing counsel, moreover, is particularly
difficult to justify. Parties often exchange extraordinarily sensitive information in litigation
subject to protective orders. Yet, here, Plaintiff refuses to disclose his finances to Defendants
without any explanation of how he might be harmed or reason to believe that Defendants’
counsel would not maintain the confidentiality of that information.
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
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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
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