Scherer v. U.S.

• Decision Date: 09 January 2003
• Docket Number: Case No. 02-2075-JWL.
• Citation: 241 F.Supp.2d 1270
• Parties: Thomas E. SCHERER, Plaintiff, v. UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — District of Kansas

241 F.Supp.2d 1270

Thomas E. SCHERER, Plaintiff, v. UNITED STATES of America, et al., Defendants.

Case No. 02-2075-JWL.

United States District Court, D. Kansas.

January 9, 2003.

COPYRIGHT MATERIAL OMITTED

Thomas E. Scherer, Topeka, KS, Pro se.

Emily B. Metzger, Office of United States Attorney, Wichita, KS, Katharine S. Bunn, Office of the General Counsel, Columbia, MO, for Defendants.

MEMORANDUM AND ORDER

LUNGSTRUM, District Judge.

Thomas E. Scherer, proceeding pro se, brings this action seeking monetary, injunctive and declaratory relief¹ against the Department of Education, Secretary Paige, and various employees of the agency² (collectively the "Department") for allegedly violating the Freedom of Information Act ("FOIA"), obstructing justice, violating ethical rules of conduct, and failing to enforce civil rights legislation against the University of Missouri.

The Department filed a motion to dismiss Mr. Scherer's claims pursuant to Federal Rules of Civil Procedure 12(b)(1), (b)(2) and (b)(6) (Doc. 38) and the matter is before the court on that motion. The Department contends that the court should dismiss Mr. Scherer's FOIA claims because (1) he failed to exhaust his administrative remedies; (2) he pursues an exclusive remedy, punitive damages, that is not available under the act; and (3) he named individual officers when FOIA permits suit against only the agency. As to Mr. Scherer's non-FOIA claims³, the Department contends that the court should dismiss these claims because (1) the doctrine of sovereign immunity deprives the court of subject matter jurisdiction over the claims; (2) the court lacks personal jurisdiction over the employees in their individual capacities; and (3) Mr. Scherer has no private right of action under the statutes, regulations and executive orders that form the basis of his non-FOIA claims. The court grants the Department's motion and dismisses Mr. Scherer's complaint in its entirety. Specifically, Mr. Scherer's FOIA claims must be dismissed because he failed to actually exhaust his administrative remedies and he pursues a remedy that is not available under the Act. As to his non-FOIA claims, the relevant statutes do not provide him with an express or implied right of action.⁴

BACKGROUND

In January of 2001, Mr. Scherer applied and was denied admission to the University of Missouri-Kansas City School of Law. On January 19, 2001, Mr. Scherer filed an administrative complaint with the Department of Education, alleging that he was wrongfully denied admission.⁵ Mr. Scherer also filed a complaint against the Curators of the University of Missouri in the Western District of Missouri.⁶

I. The Freedom of Information Act Request

On November 16, 2001, Mr. Scherer requested, under FOIA, certain documents that he intended to use in his suit before the Western District of Missouri. Two days later, the Department's FOIA officer, defendant Maria Teresa Cueva, contacted Mr. Scherer to request additional information regarding his document requests. On December 5, 2001, Mr. Scherer contacted Ms. Cueva concerning the status of his request. On January 7, 2002, the Department produced a copy of the grant application Mr. Scherer requested under FOIA, but failed to produce the "assurances" he sought in the same request. Thus, Mr. Scherer, that very day, made his second FOIA request for "assurances." On February 21, 2002, Ms. Cueva offered to produce, via fax, the "assurances" that Mr. Scherer had requested.⁷ One day later, Mr. Scherer filed the present action. To remedy this violation, Mr. Scherer seeks an award of punitive damages.

II. Non-FOIA Claims

In addition to the FOIA claim, Mr. Scherer contends that the Department obstructed justice by failing to produce the FOIA documents. Mr. Scherer alleges that he needed these documents as evidentiary exhibits in his federal action in the Western District of Missouri and that the Department intentionally refused to produce the documents to obstruct him in that proceeding. To remedy this violation, Mr. Scherer seeks a judgment declaring that the Department of Education obstructed justice by failing to produce the requested documents in a timely fashion.⁸

Apart from the claims related to the document requests, Mr. Scherer contends that the Department of Education, Office for Civil Rights ("OCR") for Region VII, cannot perform its functions because defendant Angela Bennett serves as both the director of OCR and as a member of the Board of Curators for the University of Missouri. Because the University of Missouri receives federal funds, conditioned upon compliance with federal civil rights statutes, Mr. Scherer alleges that Ms Bennett's dual status as a board member and civil rights director creates a conflict of interest.⁹

To remedy this alleged violation of federal ethical guidelines, Mr. Scherer requests an injunction requiring the Department of Education to conduct an internal investigation into Ms. Bennett's dual employment status.

Finally, Mr. Scherer contends that the Department has failed to investigate adequately his administrative complaint, has failed to initiate an investigation of Ms. Bennett despite his request for such action, and has generally failed to enforce the civil rights laws against the University of Missouri. Mr. Scherer does not identify explicitly any statutory or legal authority that converts these allegations into a cognizable right of action. The court, however, could construe Mr. Scherer's allegations as an attempt to state a statutory or implied right of action under Title VI, Section 504 of the Rehabilitation Act, or the Americans with Disabilities Act.¹⁰ To remedy this alleged violation, Mr. Scherer requests an injunction requiring the Department investigate increased federal funding to the University of Missouri and enforce the Civil Rights Act, the Rehabilitation Act, the Americans with Disabilities Act, and all Presidential Executive Orders against that institution. Additionally, Mr. Scherer requests that the court revoke all federal funding to the Curators of the University of Missouri "until such time as they can establish affirmative evidence that they comply with their voluntary assurances as a condition of receipt of federal funds."

ANALYSIS

I. Standard

When, as here, a plaintiff is proceeding pro se, the court construes his or her pleadings liberally and holds the pleadings to a less stringent standard than formal pleadings drafted by lawyers. McBride v. Deer, 240 F.3d 1287, 1290 (10th Cir.2001); accord Shaffer v. Saffle, 148 F.3d 1180, 1181 (10th Cir.1998) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). In other words, "[n]ot every fact must be described in specific detail, ... and the plaintiff whose factual allegations are close to stating a claim but are missing some important element that may not have occurred to him should be allowed to amend his complaint." Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir.1996) (quoting Hall, 935 F.2d at 1110). The liberal construction of the plaintiffs complaint, however, "does not relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could be based," and "conclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based." Id. (quoting Hall, 935 F.2d at 1110).

The court will dismiss a cause of action for failure to state a claim only when "it appears beyond a doubt that the plaintiff can prove no set of facts in support of his [or her] claims which would entitle him [or her] to relief," Poole v. County of Otero, 271 F.3d 955, 957 (10th Cir.2001) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)), or when an issue of law is dispositive. Neitzke v. Williams, 490 U.S. 319, 326, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). The court accepts as true all well-pleaded facts, as distinguished from conclusory allegations, and all reasonable inferences from those facts are viewed in favor of the plaintiff. Smith v. Plati, 258 F.3d 1167, 1174 (10th Cir.2001). The issue in resolving a motion such as this is "not whether [the] plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 997, 152 L.Ed.2d 1 (2002) (quotation omitted).

II. Analysis

Because the department's jurisdictional and substantive challenges do not uniformly apply to all of the defendants or to all of Mr. Scherer's claims, the court will simply evaluate all four potential claims separately to resolve the applicable jurisdictional and substantive issues.

A. The Freedom of Information Act Claim

As noted above, Mr. Scherer asserts that the Department violated FOIA in failing to produce the assurances. The Department contends that these claims must be dismissed because Mr. Scherer failed to exhaust his administrative remedies as required under the Act. Additionally, the Department contends that the court must dismiss Mr. Scherer's request for punitive damages because the Act does not permit him to recover monetary damages. Finally, the Department argues that the FOIA claims must be dismissed as to the individual defendants because the Act permits suit only against the non-compliant department or agency.

1. Exhaustion of Administrative Remedies

The Department asserts that the court lacks subject matter jurisdiction over Mr. Scherer's FOIA claims because he did not allege that he exhausted his administrative remedies as required under the Act. "The purpose of the exhaustion rule is to permit agencies to exercise discretion and apply their expertise, to allow the complete development of the record before judicial review, to prevent parties from circumventing the procedures established by Congress, and to avoid unnecessary judicial decisions by giving the agency an opportunity to correct errors." Urban by Urban v. Jefferson County Sch. Dist. R-1, 89...