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Doe v. United States Department of Health & Human Services

United States District Court, D. Columbia.

March 24, 2015

JANE DOE, on behalf of herself and similarly situated others, Plaintiffs,
v.
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Defendants. JANE DOE, on behalf of herself and similarly situated others, Plaintiffs,
v.
UNITED STATES DEPARTMENT OF EDUCATION, et al., Defendants

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For JANE DOE, on behalf of herself and similarly situated others, Petitioner (1:14-cv-00366-BAH, 1:14-cv-00367-BAH): James Ryan Marsh, LEAD ATTORNEY, MARSH LAW FIRM PLLC, New York, NY.

For UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States United States Department of Health and Human Services, Respondents (1:14-cv-00366-BAH): Michelle Renee Bennett, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Civil Division, Washington, DC.

For UNITED STATES DEPARTMENT OF EDUCATION, ARNE DUNCAN, in his official capacity as Secretary of the United States Department of Education, Respondents (1:14-cv-00367-BAH): Michelle Renee Bennett, U.S. DEPARTMENT OF JUSTICE, Civil Division, Washington, DC.

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MEMORANDUM OPINION

BERYL A. HOWELL, United States District Judge.

The plaintiff in these two related cases, Jane Doe[1], seeks mandamus and declaratory relief against the defendants, the U.S. Department of Health and Human Services (" HHS" ) and the U.S. Department of Education (" DOE" ), for alleged violations of Title IX of the Education Amendments of 1972 (" Title IX" ), 20 U.S.C. § 1681 et seq., Title IV of the Civil Rights Act of 1964 (" Title IV" ), 42 U.S.C. § 2000c et seq., the Patient Protection and Affordable Care Act (" ACA" ), 42 U.S.C. § 18001, et seq., the Administrative Procedure Act (" APA" ), 5 U.S.C. § 500 et seq., and the U.S. Constitution. See generally Pet. Mandamus (" 366 Pet." ), Case No. 14-366, ECF No. 3; Pet. Mandamus (" 367 Pet." ), Case No. 14-367, ECF No. 3. The plaintiff, a former undergraduate student at the University of Virginia (" UVA" ), alleges that UVA " failed to provide prompt and equitable redress in connection with its investigation and resolution of a matter arising out of severe sexual harassment and misconduct perpetrated against [the plaintiff] in December 2011." 366 Pet. ¶ 2; 367 Pet. ¶ 2. The plaintiff subsequently filed complaints with the defendants alleging that UVA's response to her case violated Title IX and Title IV. 366 Pet. ¶ ¶ 2--3; 367 Pet. ¶ ¶ 2--3.

The alleged sexual harassment and misconduct underlying the two complaints at issue are serious issues that are the subject of ongoing debate on college campuses, including UVA, and elsewhere. The plaintiff invites judicial involvement, but the United States' system of jurisprudence requires that courts resolve only those " Cases" or " Controversies" brought against the right defendants on valid and legally cognizable claims, so that justice can be done for all parties to the lawsuit.

The plaintiff's suit is, for the most part, based on an erroneous interpretation of recent amendments to seven of the eighteen subsections of 20 U.S.C. § 1092(f), known as the " Clery Act." See generally 366 Pet.; 367 Pet. The plaintiff contends that these amendments also changed the standard under which sexual assault and harassment claims are evaluated by colleges and universities under Title IX, which is a separate and distinct statute from the Clery Act. See 366 Pet. ¶ 15; 367 Pet. ¶ 15. The Clery Act establishes certain reporting and notification requirements for higher learning institutions. 20 U.S.C. § 1092(f). By contrast, Title IX prohibits discrimination based on sex at those educational institutions, 20 U.S.C. § 1681, and provides mechanisms for Federal agencies to enforce those provisions through the withholding of grants or other federal funding, id. § 1682. The 2013 amendments to portions of the Clery Act, contained in Section 304 of the Violence Against Women Reauthorization Act of 2013

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(" VAWA" ), Pub. L. 113-4, 127 Stat. 54, 89--92 (2013), had no effect on Title IX.

The defendants have moved to dismiss the plaintiff's complaints on grounds that this Court lacks jurisdiction over the matters and that the complaints fail to state a claim upon which relief can be granted, pursuant to Federal Rules of Civil Procedure 12(b)(1) and (b)(6), respectively. Defs.' Mot. Dismiss (" HHS Mot." ) at 1, Case No. 14-366, ECF No. 7; Defs.' Mot. Dismiss (" DOE Mot." ) at 1, Case No. 14-37, ECF No. 7. For the reasons explained in more detail below, the defendants' motions are granted.

I. BACKGROUND

To understand the plaintiff's claims, and why they are based on an erroneous interpretation of the law, the Court first reviews the Clery Act and the recent amendments made under VAWA's Section 304, before turning to the plaintiff's specific allegations.

A. The Clery Act Amendments In VAWA

The Clery Act requires institutions of higher learning that receive federal funding--which encompasses nearly every public and private university in the United States--to disclose crime statistics and campus security policies. 20 U.S.C. § 1092(f)(1). The Act has eighteen subsections that delineate the information an institution must disclose both publicly and to the Department of Education, which is the agency responsible for enforcing the Clery Act. See id. Among other things, the Clery Act requires that institutions disclose: " policies concerning campus law enforcement," id. § 1092(f)(1)(C); " polic[ies] regarding the possession, use, and sale of alcoholic beverages," id. § 1092(f)(1)(H); crimes believed to be " a threat to other students . . . that are reported to campus security," id. § 1092(f)(3); and certain aspects of the institutions' " police or security department . . . daily log[s]," id. § 1092(f)(4)(A). The Clery Act also contains requirements for reporting information to the Federal government, id. § 1092(f)(5); id. § 1092(f)(12); definitions for terms used in the Act, including certain crimes, id. § 1092(f)(6); directions for compiling reportable statistics, id. § 1092(f)(7); and an enforcement provision, id. § 1092(f)(13).

Section 304 of the VAWA amended seven subsections of the Clery Act. 127 Stat. at 89--92. Although most of the amendments modified definitions, Section 304 replaced three subsections entirely: 20 U.S.C. § 1092(f)(8), § 1092(f)(16), and § 1092(f)(17). The new § 1092(f)(8) requires institutions to include in their public reports " a statement of policy regarding" the " institution's programs to prevent domestic violence, dating violence, sexual assault, and stalking" and " the procedures that such institution will follow once an incident . . . has been reported, including a statement of the standard of evidence that will be used during any institutional conduct proceeding arising from such a report." 127 Stat. 90 (codified at 20 U.S.C. § 1092(f)(8)(A)).

Due to the amendment made by VAWA's Section 304, the new § 1092(f)(8) requires the institution's statement of policy to address " education programs to promote the awareness" of sexual and domestic violence; the " possible sanctions or protective measures that such institution may impose following a final determination of an institutional disciplinary procedure; " " procedures victims should follow" if an offense occurs; " procedures for institutional disciplinary action; " procedures the institution will take to maintain confidentiality; notification about services available for those affected by sexual and domestic

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violence; and the options victims may exercise " regardless of whether the victim chooses to report the crime to campus police or local law enforcement." Id. at 90--91 (codified at 20 U.S.C. § 1092(f)(8)(B)). Section 304 further added a requirement to the new § 1092(f)(8) that the institution's policy " include a clear statement that . . . disciplinary action in cases of alleged domestic violence, dating violence, sexual assault, or stalking" involve proceedings that provide " prompt, fair, and impartial investigation and resolution" to the parties involved, as well as " be conducted by officials who receive annual training on the issues related to domestic violence, dating violence, sexual assault, and stalking and how to conduct an investigation and hearing process that protects the safety of victims and promotes accountability." Id. at 91 (codified at 20 U.S.C. § 1092(f)(8)(B)(iv)).

As noted, Section 304 of VAWA also replaced § 1092(f)(16) of the Clery Act to require the Secretary of Education to " seek the advice and counsel of the Attorney General of the United States and the Secretary of Health and Human Services concerning the development, and dissemination to institutions of higher education, of best practices information about preventing and responding to incidents of domestic violence, dating violence, sexual assault, and stalking, including elements of institutional policies that have proven successful based on evidence-based outcome measurements." Id. at 92 (codified at 20 U.S.C. § 1092(f)(16)). Finally, Section 304 of VAWA replaced § 1092(f)(17), which states that " no officer, employee, or agent of an institution . . . shall retaliate, intimidate, threaten, coerce, or otherwise discriminate against any individual for exercising their rights or responsibilities under any provision" of the Clery Act. Id. (codified at 20 U.S.C. § 1092(f)(17)).

Importantly for the resolution of the instant suit, section 304 did not amend eleven of the Clery Act's subsections, including 20 U.S.C. § 1092(f)(2), which subsection states that " [n]othing in this subsection shall be construed to authorize the Secretary to require particular policies, procedures, or practices by institutions of higher education with respect to campus crimes or campus security." See generally id. at 89--92. After Section 304 took effect in March 2014, DOE issued a statement that the changes to the Clery Act in the VAWA " did not affect in any way title IX of the Education Amendments of 1972 . . . its implementing regulations, or associated guidance issued by the Department's Office for Civil Rights." Violence Against Women Act, 79 Fed.Reg. 35,418, 35,422 (June 20, 2014). Indeed, DOE stated that " [w]hile the Clery Act and title IX overlap in some areas relating to requirements for an institution's response to reported incidents of sexual violence, the two statutes and their implementing regulations and interpretations are separate and distinct." Id.[2]

With this contextual background, the plaintiff's specific allegations are examined next.

B. The Petitioner's Claims

As previously noted, the plaintiff is a former undergraduate ...


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