F. DENNIS SAYLOR, IV, District Judge.
This matter arises out of a long-standing dispute between a former medical resident and a medical school. Plaintiff Jeffrey Isaacs has brought suit against the Department of Education alleging, among other things, that its Office for Civil Rights ("OCR") failed to investigate the circumstances surrounding his termination from Dartmouth-Hitchcock Medical Center in New Hampshire. Isaacs has asserted two claims under the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2)(A). In Count 1, he contends that OCR's decision to deny his appeal to investigate his administrative complaint was an "arbitrary and capricious" agency action in violation of the APA. In Count 2, he contends that the Office of Federal Student Aid's decision to deny his appeal to discharge more than $200,000 in student loan debt was similarly "arbitrary and capricious."
Defendant has moved to dismiss Count 1 on the grounds of sovereign immunity and failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons stated below, the Court finds that sovereign immunity has not been waived, and the motion will be granted.
The facts are set forth as described in the amended complaint and public record. Because the government has only moved to dismiss Count 1 of the amended complaint, this memorandum and order will not address factual allegations solely related to plaintiff's claim concerning the Office of Federal Student Aid.
Dr. Jeffrey Isaacs is a resident of Pennsylvania. (Compl. ¶ 14). In 1997, while he was an undergraduate at Dartmouth College, he suffered a head injury because of an incident with an intoxicated student. (Id. ¶ 18). The head injury caused long-lasting effects, including "postconcussion syndrome," and hindered his ability to finish his pre-med course requirements. (Id.). He dropped several difficult classes and ultimately obtained a degree in computer science. (Id.). He went on to attend the Wharton School at the University of Pennsylvania and received a Masters in Business Administration there. (Id. ¶¶ 14, 19). By 2005, he had completed the premed course requirements that he did not finish at Dartmouth. (Id. ¶ 19).
In 2005, Isaacs enrolled at the Keck School of Medicine at the University of Southern California. (Id. ¶ 20). However, during his first year, there was what he calls "[a]n unfortunate series of circumstances." (Id.). The complaint states that there was an allegation of unprofessionalism brought by one of his classmates. (Id.).
In order to pursue a medical degree, Isaacs enrolled in the American University of the Caribbean Medical School. (Id. ¶ 22). He received a degree from that institution in 2010. (Id.). He received more than $200,000 in federal student aid to pay for his tuition. (Id.). He took the United States Medical Licensing Examination, and his score "exceeded that of the average neurosurgeon, his desired specialty." (Id.).
After graduating, Isaacs began a surgical program residency at the University of Arizona. (Id. ¶ 23). By his third day, supervisors described him as "far behind his peers" and lacking "technical ability." (Id.). The complaint alleges that Isaacs had "perfectly completed the only procedure, a sub-cuticular suture, that he had been required to perform." (Id.). He resigned from the residency after approximately six weeks. (Id.).
Isaacs then received a psychiatric residency position at Dartmouth-Hitchcock Medical Center in New Hampshire in 2011. (Id. ¶ 24). In his application, he "omitted both his attendance at [Keck] and his aborted residency at [the University of Arizona]." Isaacs v. Dartmouth-Hitchcock Med. Ctr., 2014 WL 1572559, at *2 (D.N.H. Apr. 18, 2014) (granting summary judgment to defendants).
It appears that relatively early in his tenure at Dartmouth-Hitchcock, Isaacs was placed on probation. (Id.). "[T]he stress of being placed on probation," coupled with "criticism from superiors" "led to the development of significant health problems." (Id.). The complaint alleges that he developed a severe sleep disorder and requested medical leave to recuperate. (Id. ¶ 27). However, his supervisors denied his request for leave. (Id.). The complaint alleges that the sleep disorder also stemmed from his head injury that he suffered at Dartmouth College in 1997. (Id. ¶ 29).
In January 2012, a supervisor discovered that Isaacs had previously been a resident at the University of Arizona. (Id. ¶ 30). A confrontation with the supervisor led to Isaacs suffering a "psychological crisis." (Id.). On March 19, 2012, Dartmouth-Hitchcock issued a letter to Isaacs stating that he was being terminated for his failure to disclose his record at Keck and his Arizona residency. (Id. ¶ 31). Isaacs acknowledges that he never disclosed his record at Keck, but contends that he did so because he believed his prior litigation sealed all documents relating to his attendance there. (Id. ¶ 44). The complaint alleges that he has since applied for a residency at "nearly every hospital in the country," but that he has been denied each time. (Id. ¶ 47).
The New Hampshire Board of Medicine revoked Isaacs's medical license and found that his termination from Dartmouth-Hitchcock was appropriate because he concealed material information in his residency application. See In re: Jeffrey D. Isaacs, M.D., at 8. The Board of Medicine further reprimanded him for not only failing to provide any "credible evidence" in support of his position, but also "knowingly" making a false statement. Id. at 8-9.
Isaacs alleges that he "repeatedly attempted to have Dartmouth investigate his claims" that he was terminated "without any of the administrative procedures established by Dartmouth policies." (Compl. ¶¶ 31-32). The complaint alleges that Dartmouth-Hitchcock declined to investigate his claims for two years. (Id. ¶ 32). Frustrated with what he perceived to be "obfuscations and denials," Isaacs filed two suits pro se: the first was in the District of New Hampshire, and the second was in the Eastern District of Pennsylvania. (Id. ¶¶ 32-33).
On April 19, 2014, Isaacs e-mailed a complaint to OCR. (Id. ¶ 34). The e-mail suggested that Dartmouth-Hitchcock had engaged in "assault in hazing" and that then-Dartmouth College President Jim Yong Kim participated in "evidence destruction." (Compl. Ex. A at 2). The e-mail further stated that all federal judges in New Hampshire were biased and would not fairly adjudicate his claims. (Id.).
Approximately six months elapsed before OCR replied. On October 16, 2014, Jane Lopez, an OCR attorney, attempted to reach Isaacs by telephone. (Compl. ¶ 35).
However, soon afterward, Isaacs received a letter dated October 17, 2014, which stated that OCR was "closing" his complaint. (Id. ¶ 36; Compl. Ex. B). The letter stated that the complaint was untimely because "OCR generally does not investigate allegations [of discrimination] that are filed more than 180 days after the date of the alleged discrimination," and Isaacs filed his complaint in April 2014, more than two years after the purported misconduct. (Compl. Ex. B at 2).
According to the OCR Case Processing Manual then in effect, a waiver of the 180-day filing requirement could be granted for good cause shown. (Id.).
Isaacs e-mailed Lopez on November 5, 2014, and explained that he would appeal OCR's decision. (Compl. ¶ 38). He claimed that he had shown good cause for a waiver because he had two pending federal lawsuits when the complaint was filed. In addition, he claimed that he only learned in early 2014 that "Dartmouth never initiated an internal grievance investigation, after informing [him] that one would occur." (Id.). Lopez replied that she would treat his e-mail as an appeal and that he should submit any additional documents or information he thought relevant by December 16, 2014. (Id. ¶ 39; Compl. Ex. C).
Isaacs submitted a letter to OCR on December 12, 2014, alleging that OCR incorrectly determined that the "last discriminatory act against [him] occurred in 2012." (Compl. Ex. D at 1). The letter claimed that Dartmouth-Hitchcock and the Dartmouth College administration were "openly flaunting the fact that they would not investigate [his] claims." (Id.). Included in the letter were excerpts from depositions with various hospital and Dartmouth College officials that he claimed supported his claims of discrimination. (Id. at 2).
Isaacs filed suit against the Department of Education on June 30, 2017. An amended complaint was then filed on November 7, 2017, asserting two claims against defendant: a claim for violation of the APA by OCR (Count 1) and a claim for violation of the APA by the Department of Education's Office of Federal Student Aid (Count 2). Defendant has moved to dismiss Count 1 on the basis of sovereign immunity and for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6).
"Under settled principles of sovereign immunity, `the United States, as sovereign, is immune from suit, save as it consents to be sued and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit.'" United States v. Dalm, 494 U.S. 596, 608 (1990) (quoting United States v. Testan, 424 U.S. 392, 399 (1976)) (internal quotation marks and alterations omitted); see also Charles A. Wright & Arthur R. Miller, 14 Fed. Prac. & Proc. § 3654 (4th ed.) ("[T]he absence of consent by the United States to suit has been treated by courts as a fundamental defect that deprives the district court of subject matter jurisdiction."). Defendant, an as an agency of the United States, is also entitled to sovereign immunity. Sarit v. U.S. Drug Enforcement Admin., 987 F.2d 10, 16 (1st Cir. 1993). A plaintiff bears the "burden of proving [that] sovereign immunity has been waived." Mahon v. United States, 742 F.3d 11, 14 (1st Cir. 2014).
The Administrative Procedure Act provides an explicit waiver of sovereign immunity for individuals seeking equitable relief if they have suffered "a legal wrong because of agency action." 5 U.S.C. § 702; see also Sarit, 987 F.2d at 16. Here, plaintiff appears to seek an order from this Court directing OCR to investigate Dartmouth-Hitchcock. In addition, judicial review is available where there is a "final agency action for which there is no other adequate remedy in a court." 5 U.S.C. § 704. However, the APA further specifies that sovereign immunity is not waived where "agency action is committed to agency discretion by law." Id. § 701(a)(2).
Plaintiff contends that judicial review is possible because OCR's Case Processing Manual "created standards by which to evaluate OCR's refusal to investigate" his complaint. (Mem. in Opp. at 3). However, this "fails to account for the applicable language which accords the OCR, not the Court, the responsibility and discretion to award a waiver of the filing time limit." Kamps v. Baylor Univ., 2013 WL 12100452, at *5 (W.D. Tex. Oct. 30, 2013). "Both 34 C.F.R. § 110.31(a) and Article I, § 107 of the OCR Case Processing Manual provide that the Department of Education may, for good cause shown, extend the 180-day time limit for filing a complaint of discrimination." Id. (emphasis in original) (internal quotation marks omitted).
The complaint alleges that Dartmouth-Hitchcock discriminated against plaintiff in 2011 and early 2012. (Compl. ¶¶ 24-31). No complaint was filed with OCR until April 2014, well past the 180-day deadline for filing a complaint. (Id. ¶ 34). It was within OCR's discretion whether to grant a waiver for the 180-day deadline. Accordingly, OCR's decision to deny plaintiff's appeal is an agency action "committed to agency discretion by law," and sovereign immunity has not been waived. See 5 U.S.C. § 701(a)(2); Sherman v. Black, 315 Fed. Appx. 347, 348 (2d Cir. 2009) ("the OCR's decision not to commence enforcement proceedings is discretionary"); Mass. Pub. Interest Research Grp. v. U.S. Nuclear Regulatory Comm'n, 852 F.2d 9, 14 (1st Cir. 1988).
In addition, plaintiff's suggestion that he lacks an adequate alternative remedy is incorrect. He has filed no fewer than four separate actions against Dartmouth-Hitchcock, the Trustees of Dartmouth College, former Dartmouth President Kim, the New Hampshire Board of Medicine, and various other defendants in the District of New Hampshire. See Isaacs v. Dartmouth-Hitchcock Med. Ctr., No. 12-cv-040-LM; Isaacs v. Dartmouth-Hitchcock Med. Ctr., No. 12-cv-413-SM; Isaacs v. Dartmouth-Hitchcock Med. Ctr., No. 14-cv-007-LM; Isaacs v. Dartmouth-Hitchcock Med. Ctr., No. 17-cv-040-LM.
For the foregoing reasons, defendant's partial motion to dismiss is GRANTED.
(Compl. Ex. B at 2).
