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West v. Spellings

March 5, 2008

MICHAEL WEST, PLAINTIFF,
v.
MARGARET SPELLINGS, SECRETARY, U.S. DEPARTMENT OF EDUCATION, DEFENDANT.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MEMORANDUM OPINION

Michael West, proceeding pro se, sued Margaret Spellings, Secretary of the U.S. Department of Education ("DOEd"), in her official capacity. Counts 1 and 2 of the Complaint allege violations of the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, while Counts 3 through 12 seek to compel DOEd under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq., the All Writs Act, 28 U.S.C. § 1691, and Mandamus, 28 U.S.C. § 1361, to use its enforcement authority in a manner favorable to Mr. West under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("Section 504").*fn1 The factual basis for Mr. West's Complaint is his dissatisfaction with DOEd's investigation of his complaints of disability discrimination and retaliation allegedly committed by Webster University.

The Court previously granted summary judgment in favor of DOEd on Counts 3 though 12 and denied summary judgment without prejudice on Counts 1 and 2 based on the inadequacy of the agency's search for responsive records. See Mem. Op. (Mar. 29, 2007) [Dkt. #24]. Now, DOEd has moved to dismiss or for summary judgment on Counts 1 and 2. Def.'s Mot. to Dismiss or for Summ. J. [Dkt. #28]. Mr. West responded [Dkt. ##39 & 45] and moved for reconsideration of the Court's dismissal of Counts 3 through 12 [Dkt. ## 38, 41, 43, 44]. DOEd replied [Dkt. ##48 & 49] and thus the matter is ripe and ready for decision. As explained below, Mr. West's motion to reconsider will be denied, and DOEd's motion for summary judgment will be granted.

I. MOTION TO RECONSIDER

Plaintiff's motion for reconsideration of the Opinion and Order dated March 29, 2007, which dismissed Counts 3 through 12 of the Complaint, is without merit. "A Rule 59(e) motion is discretionary and need not be granted unless the district court finds that there is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." Fox v. Am. Airlines Inc., 389 F.3d 1291, 1296 (D.C. Cir. 2004) (quoting Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996)). A Rule 59(e) motion is not "simply an opportunity to reargue facts and theories upon which a court has already ruled." New York v. United States, 880 F. Supp. 37, 38 (D.D.C. 1995). Nor is it an avenue for a "losing party . . . to raise new issues that could have been raised previously." Kattan v. District of Columbia, 995 F.2d 274, 276 (D.C. Cir. 1993). Plaintiff's request for reconsideration of the Court's March 29, 2007 Opinion and Order fails to meet this standard. Plaintiff points to no intervening change in controlling law, no new evidence, and no need to correct a clear error or prevent manifest injustice. He merely reargues points that the Court already ruled upon. In fact, this is his second request for reconsideration. Mr. West filed a previous motion for reconsideration on April 13, 2007. See [Dkt. #27]. In an Opinion and Order dated July 18, 2007, the Court denied Mr. West's April 2007 motion for reconsideration. The Court similarly will deny Mr. West's latest motion for reconsideration.

II. MOTION TO DISMISS OR FOR SUMMARY JUDGMENT

A. Facts

On February 8, 2006, Plaintiff submitted a FOIA request by email to DOEd's Office for Civil Rights ("OCR") requesting the following records: (1) "all . . . retaliation and discrimination allegations made against Webster University [submitted or otherwise made known to the [DOEd]" and (2) a "list of those allegations . . . not investigated by [DOEd]." See Def.'s Mot. to Dismiss or for Summ. J., Ex. 1, Dittmeier Decl. ¶ 4.*fn2 On March 9, 2006, DOEd responded to the first request and provided Plaintiff with four pages of records: a two page list of all allegations against Webster University received by OCR since October 10, 1993, a one page document defining the resolution codes on the list of allegations, and a one page document explaining the numeric resolution/jurisdiction types included on the list of allegations. Id . ¶ 5. DOEd notified Mr. West that it does not maintain a list of discrimination allegations filed with OCR that were not investigated by OCR and thus it had located no records in response to the second request. Id . ¶ 6.

Mr. West appealed, and DOEd conducted a supplemental search for records. As a result, DOEd located 96 additional pages containing information from which a list of retaliation and discrimination allegations against Webster that had not been investigated could be extrapolated. Id . ¶ 9. These 96 pages consisted of complaints filed with OCR against Webster University and Mr. Dittmeier directed a manual search of the complaint records as follows:

Specifically, for each of the 25 complaints filed with OCR against Webster University . . . , I directed a manual search for: (a) the initial letter from OCR to the complainant and, where OCR determined it would not initiate an investigation into the allegations(s), a statement of the basis for such determination; and (b) for allegations investigated by OCR, the letter to Webster University memorializing OCR's resolution of the complaint and any agreement reached with Webster regarding corrective action to be taken.

Id . DOEd located the letters for 21 of the 25 complaints described above and forwarded them to Mr. West on April 20, 2007. Id . ¶ 10. DOEd was unable to locate four of these complaints, although it had the Federal Records Center in Kansas City look for them. Id . ¶ 11.

The year before Mr. West's February 2006 FOIA request, Mr. West had submitted a different FOIA request to DOEd. Namely, on November 25, 2005, Mr. West submitted a FOIA request by email seeking "[a]ll information and materials that are responsive or pertain to a letter provided to this specific branch of the U.S. Dept. of Education Office for 'Reconsideration for 07052031' dated October 3, 2005." Because OCR personnel could not decipher what documents Mr. West was seeking, on December 13, 2005, OCR sent an email to Mr. West seeking clarification:

The email OCR received on October 3 from you was about Sallie Mae. It was not a request for reconsideration. OCR subsequently wrote a letter to Sallie Mae asking them when they received the information concerning your financial aid from Webster University. Sallie Mae responded and stated the following: 'Sallie Mae received certification from Webster University on February 8, 2005, and approval from USA Funds on February 9, 2005. Sallie Mae disbursed the loan on the scheduled disbursement date of February 23, 2005.' We are unsure what specific documents you are requesting in your FOIA ...


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