United States District Court, District of Columbia
A. HOWELL CHIEF JUDGE.
pro se plaintiff, Adem Albra, is a Florida resident,
who was a nursing student at Miami Dade College
(“MDC”) until June 12, 2015, when he “was
permanently expelled[.]” Compl. ¶ 27. The
plaintiff has sued MDC's Board of Trustees and the United
States Department of Education (“DOE”) under the
Administrative Procedure Act (“APA”), 5 U.S.C.
§ 706.Pending are MDC's Motion to Dismiss,
pursuant to Federal Rules of Civil Procedure 12(b)(1),
12(b)(2), 12(b)(3) and 12(b)(6), and Local Civil Rule 7, ECF
No. 23; the Federal Defendants' Motion to Dismiss,
pursuant to Rules 12(b)(1) and 12(b)(6), ECF No. 41; and the
Plaintiff's Motion to Supplement the Complaint against
MDC, ECF No. 27. For the reasons explained below, both
motions to dismiss are granted and, the plaintiff's
motion to supplement is denied, and this case dismissed.
Notice Regarding Local Civil Rule 7(n), ECF No. 42, the
federal defendants state that they were unable to file a
certified list of the contents of an administrative record,
as required in APA cases, because “the Complaint fails
to identify an agency decision subject to review” under
5 U.S.C. § 706(2). The agency action forming the basis
of this action consists of a January 13, 2016 Letter of
Resolution prepared by DOE's Office for Civil Rights
(“OCR”), ECF No. 47, and an accompanying
Resolution Agreement between OCR and MDC, ECF No. 47-1.
See Compl. ¶¶ 8, 28-31. The OCR's
actions underlying the plaintiff's claims are set out
below, followed by a summary of the plaintiff's claims.
Letter of Resolution (“Res. Ltr.”) establishes
that the plaintiff was charged in June 2015 with multiple
violations of MDC's code of conduct based on complaints
by six female students. The alleged conduct occurred two days
into a course, in which the Plaintiff was enrolled along with
his accusers. The plaintiff was placed on temporary
suspension pending a disciplinary hearing. Following the
hearing held on June 22, 2015, the Campus Discipline
Committee unanimously found the plaintiff guilty of three of
four charges - Defamation, Threats, Extortion; Disruption;
and Academic and Speech Freedom - and recommended the
plaintiff's expulsion. The plaintiff appealed the
decision to the Campus President, who on July 1, 2015,
affirmed the Committee's decision and proposed sanction.
plaintiff filed an administrative complaint with OCR,
alleging that MDC (1) discriminated against him on the basis
of his disability when he was expelled, and (2) retaliated
against him because of his prior complaints to OCR when it
failed to investigate his complaint of discrimination based
on sexual orientation.
an investigation, OCR determined with regard to the
discrimination claim that MDC had violated Section 504 of the
Rehabilitation Act and Title II of the Americans with
Disabilities Act by failing to conduct an individualized
threat assessment before expelling the plaintiff for
threatening conduct. OCR further determined that MDC's
direct threat procedures were not in compliance with Section
504 and Title II, and also raised concerns about the handling
of the plaintiff's retaliation claim. See Res.
Ltr. at 6-9.
of the Resolution Agreement, MDC agreed “to review and
revise its policies and procedures . . . for direct threat
assessment, as they relate to students with
disabilities” by March 7, 2016, and to provide a copy
of the revised policy to OCR for review and approval by April
11, 2016. Agreement at 1. In addition, MDC agreed (1) to
notify the plaintiff by March 7, 2016, of its decision to
rescind his expulsion and suspension “pending a review
under the approved direct threat policies and procedures to
make a determination as to whether [the plaintiff] poses a
direct threat that cannot be mitigated with reasonable
accommodations, ” and (2) to provide OCR documentation
of its completed threat assessment by May 1, 2016.
Id. at 3. Finally, MDC agreed to send by February 1,
2016, “a certified written letter referring [the
plaintiff] to the OEOP and offering to investigate his
complaint of gay discrimination in June 2015 upon his
completion of the Complaint Discrimination Form, ” and
to provide a copy of the letter to the plaintiff by March 1,
2016. Id. The Agreement included an acknowledgment
by MDC that OCR could initiate “administrative
enforcement or judicial proceedings to enforce the specific
terms and obligations[.]” Id.
September 11, 2017, the federal defendants informed this
Court that OCR completed its review of MDC's direct
threat assessment of the plaintiff and notified MDC on
September 6, 2017, that it had “complied with that
aspect of the Resolution Agreement.” Not. of Suggestion
of Mootness in Part at 1, ECF No. 53. “OCR continues to
monitor the College's compliance with other
aspects” of the agreement. Id. n.2. The
plaintiff responded incredulously, noting: “Just
because the Defendants claim that the College is in
compliance does not it [sic] so, even as it pertains to their
manuals, policies or procedures.” Pl.'s Resp. at 1,
ECF No. 54.
The Plaintiff's Claims
four-count Complaint filed in March 2017, the plaintiff
states: “Approaching two years, and Plaintiff has not
yet returned to College due to action unlawfully withheld
and/or unreasonabl[y] delayed by the OCR.” Compl.
¶ 51. In Count I, the plaintiff seeks to “[c]ompel
unlawfully withheld or unreasonably delayed” action,
citing 5 U.S.C. § 706(1). Count II alleges that OCR's
actions were “[a]rbitrary, capricious, an abuse of
discretion, not in accordance with law” and its
“own Case Processing Manual, ” citing 5 U.S.C.
§ 706(2)(A); Count III alleges that OCR's actions
were “[c]ontrary to constitutional right, power,
privilege, or immunity, citing 5 U.S.C. § 706(2)(B); and
Count IV alleges that OCR acted “[w]ithout observance
of procedure required by law, ” citing 5 U.S.C. §
706(2)(D). Compl. at 14, 15, 16. In his Prayer for Relief,
the plaintiff seeks declaratory and injunctive relief. Compl.
APPLICABLE LEGAL STANDARDS
Federal Rule of Civil ...