United States District Court, District of Columbia
E. BOASBERG UNITED STATES DISTRICT JUDGE.
se Plaintiff Sami Albra, who describes himself as
disabled, believes that the State of Nevada's Office of
Vocational Rehabilitation Services and Pima Medical College
have discriminated against him on the basis of such
unspecified disability. Instead of suing those entities,
however, he has brought this action under the Administrative
Procedure Act against the U.S. Department of Education, its
Office of Civil Rights, and an OCR regional director for
failing to sufficiently investigate the discriminatory
conduct. Now moving to dismiss, Defendants point out that no
APA suit can succeed where Albra could obtain relief by suing
the Nevada entities directly. Agreeing, the Court will
dismiss the case.
the Court must assume at this stage that the facts set forth
in the Complaint are true, parsing such facts is no easy
matter. While the context is opaque, Albra alleges that the
State of Nevada's Vocational Rehabilitation (VR) Services
discriminated against him concerning disability benefits.
See Compl. at 3-4. In addition, Pima Medical College
also engaged in disability discrimination when it denied him
admission. Id. at 4-5. At some point, Albra filed a
complaint with the Seattle OCR against Nevada's Office of
VR Services. Id. at 2. “OCR Seattle rejected
this complaint . . . stating that OCR does not handle
disability discrimination charges against a State's
Vocational Rehabilitation Services.” Id.
Plaintiff believes that this is not actually the policy.
Id. In fact, after he appealed, OCR Seattle informed
Albra that it “does handle discrimination cases against
State VR agencies” and would investigate. Id.
at 3. Albra also “submitted a different and unrelated
complaint for disability discrimination to OCR Seattle
against Pima.” Id. at 4. The Court infers from
his causes of action set out below that the Department of
Education did not satisfactorily resolve his complaints.
explaining that both the Rehabilitation Act and the Americans
with Disabilities Act prohibit discrimination by state
entities and private colleges that receive federal funding,
id. at 10-11, Plaintiff sets out his four counts,
all under the APA. The first asserts that OCR
“unlawfully withheld action against the State of
Nevada” and Pima. Id. at 11-12. The second
alleges that OCR acted arbitrarily and capriciously in not
investigating those entities. Id. at 12. The third
makes out a due-process claim against the Education
Department for the same reason, id. at 13, and the
fourth decries OCR's failure to follow its Case
Processing Manual in pursuing the discriminating bodies.
Id. at 13-14. Defendants now move to dismiss.
Rule of Civil Procedure 12(b)(6) provides for the dismissal
of an action where a complaint fails “to state a claim
upon which relief can be granted.” When the sufficiency
of a complaint is challenged under Rule 12(b)(6), the factual
allegations presented in it must be presumed true and should
be liberally construed in plaintiff's favor. See
Leatherman v. Tarrant Cty. Narcotics Intelligence &
Coordination Unit, 507 U.S. 163, 164 (1993). Although
“detailed factual allegations” are not necessary
to withstand a Rule 12(b)(6) motion, Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007), “a complaint
must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotation omitted). A plaintiff must put forth
“factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. Though a plaintiff
may survive a 12(b)(6) motion even if “recovery is very
remote and unlikely, ” Twombly, 550 U.S. at
556 (citing Scheuer, 416 U.S. at 236), the facts
alleged in the complaint “must be enough to raise a
right to relief above the speculative level.”
Id. at 555. Where the action is brought by a pro
se plaintiff, the Court must construe her filings
liberally and hold the complaint to “less stringent
standards than formal pleadings drafted by lawyers.”
Haines v. Kerner, 404 U.S. 519, 520-21 (1972);
see also Schnitzler v. United States, 761 F.3d 33,
38 (D.C. Cir. 2014).
initial argument here boils down to the question: Why are you
suing us? In other words, as Plaintiff is complaining about
discrimination by Nevada's VR Services and Pima, what is
his beef with the Department of Education? Garbed in more
appropriate legal dress, Defendants' position is that the
APA does not apply when a plaintiff has an alternative remedy
available. They are correct.
APA § 704, only “final agency action for which
there is no other adequate remedy in a court [is] subject to
judicial review.” As both Nevada's Department of
Employment, Rehabilitation, and Training (NDETR) and Pima
receive federal funds, see Mot., Exh. B (OCR Letter
to Plaintiff, March 29, 2017) at 2; id., Exh. E (OCR
Letter to Plaintiff, April 27, 2017) at 2, they are subject
to the federal Rehabilitation Act. See 29 U.S.C.
§ 794(a) (prohibiting discrimination against
“qualified individual with a disability” by
“any program or activity receiving Federal financial
assistance”). As a result, Albra can sue these entities
directly for disability discrimination under that Act. Given
that he has that alternative remedy, he does not have a cause
of action under the APA. See Perry Capital LLC v
Mnuchin, 864 F.3d 591, 620-21 (D.C. Cir. 2017)
(explaining that issue goes to legitimacy of cause of action,
not sovereign immunity).
in this district have so held on repeated occasions. In
West v. Spellings, 480 F.Supp.2d 213 (D.D.C. 2007),
for example, the plaintiff sued the Department of Education
for its failure to satisfactorily investigate a university he
believed had discriminated against him. Among other counts,
he brought APA claims, which the Court dismissed because he
could directly sue the institution, meaning another adequate
remedy existed. Id. at 217; see also Cottrell v.
Vilsack, 915 F.Supp.2d 81, 90 n.9 (D.D.C. 2013). In
fact, just two months ago, Chief Judge Howell handled a suit
brought by one “Adem Albra, ” the format and
content of whose pleadings look remarkably similar to Sami
Albra's here. See Albra v. Bd. of Trustees of Miami
Dade College, 2018 WL 910719 (D.D.C. Feb. 15, 2018).
Adem Albra also sued the Department of Education and other
entities in Florida regarding purported disability
discrimination. In dismissing the federal entities, the court
held that “the plaintiff has other adequate remedies
available to him.” Id. at *5.
same result obtains here. If Albra wants relief, he should
sue the Nevada entities he claims discriminated against him.
Proceeding under the APA against the federal Defendants is
not the proper route.
forth above, the Court will grant Defendants' Motion to
Dismiss. A ...