Case: 1:18-cv-1568 As of: 06/04/2020 04:53 PM EDT 1 of 8
U.S. District Court District of Maryland (Baltimore) CIVIL DOCKET FOR CASE #: 1:18−cv−01568−TDC

CLOSED

The National Federation of the Blind et al v. U.S. Department of Date Filed: 05/31/2018

Education et al

Date Terminated: 02/07/2020

Assigned to: Judge Theodore D. Chuang

Jury Demand: None

Cause: 05:551 Administrative Procedures Act

Nature of Suit: 899 Other Statutes:

Administrative Procedures Act/Review or

Appeal of Agency Decision

Jurisdiction: U.S. Government Defendant

Plaintiff

The National Federation of the Blind

represented by Anisha S. Queen Brown Goldstein & Levy LLP 120 E Baltimore Street Suite 1700 Baltimore, MD 21202 4109621030 Fax: 4103850869 Email: AQueen@browngold.com ATTORNEY TO BE NOTICED

Brooke E Lierman Brown Goldstein Levy 120 E Baltimore St Ste 1700 Baltimore, MD 21202 14109621030 Fax: 14103850869 Email: blierman@browngold.com ATTORNEY TO BE NOTICED

Eve Lynne Hill Brown Goldstein & Levy, LLP 120 East Baltimore St. Ste. 1700 Baltimore, MD 21202 410−962−1030 Fax: 410−385−0869 Email: ehill@browngold.com ATTORNEY TO BE NOTICED

Plaintiff
The Counsel of Parent Attorneys and Advocates, Inc.

represented by Anisha S. Queen (See above for address) ATTORNEY TO BE NOTICED

Brooke E Lierman (See above for address) ATTORNEY TO BE NOTICED

Eve Lynne Hill (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
National Association for the Advancement of Colored People, Inc.

represented by Anisha S. Queen (See above for address) ATTORNEY TO BE NOTICED

Brooke E Lierman

Case: 1:18-cv-1568 As of: 06/04/2020 04:53 PM EDT 2 of 8
(See above for address) ATTORNEY TO BE NOTICED
Eve Lynne Hill (See above for address) ATTORNEY TO BE NOTICED

V. Defendant U.S. Department of Education Lyndon Baines Johnson Dept. of Education Bldg.
Defendant Betsy Devos Secretary of Education in her Official Capacity Lyndon Baines Johnson Dept. of Education Bldg. U.S. Department of Education

represented by U.S. Department of Education Lyndon Baines Johnson Department of Education Building 400 Maryland Avenue, SW Washington, DC 20202 PRO SE
Marsha Stelson Edney U.S. Department Of Justice 1100 L St. NW Rm. 11014 Washington, DC 20005 2025144520 Email: Marsha.Edney@usdoj.gov TERMINATED: 05/15/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tamra Tyree Moore US Department of Justice 1100 L Street NW Washington, DC 20005 2023058628 Fax: 2026168470 Email: tamra.moore@usdoj.gov TERMINATED: 09/10/2019 LEAD ATTORNEY
Michael F Knapp US Department of Justice 1100 L St. NW Washington, DC 20005 2023058613 Fax: 2026168470 Email: michael.knapp@usdoj.gov TERMINATED: 09/10/2019
represented by Betsy Devos PRO SE
Marsha Stelson Edney (See above for address) TERMINATED: 05/15/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tamra Tyree Moore (See above for address) TERMINATED: 09/10/2019 LEAD ATTORNEY
Michael F Knapp (See above for address)

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TERMINATED: 09/10/2019

Defendant
Candice Jackson Acting Assistant Secretary for Civil Rights In her Official Capacity U.S. Dept . of Education , Office for Civil Rights Lyndon Baines Johnson Dep t. of Education Bldg

represented by Candice Jackson PRO SE
Marsha Stelson Edney (See above for address) TERMINATED: 05/15/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tamra Tyree Moore (See above for address) TERMINATED: 09/10/2019 LEAD ATTORNEY

Michael F Knapp (See above for address) TERMINATED: 09/10/2019

Date Filed 05/31/2018
05/31/2018 05/31/2018 05/31/2018 05/31/2018 05/31/2018 05/31/2018 05/31/2018 06/01/2018

# Docket Text
1 COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF against All Defendants ( Filing fee $ 400 receipt number 0416−7359032.), filed by The National Federation of the Blind, National Association for the Advancement of Colored People, Inc., THE COUNCIL OF PARENT ATTORNEYS AND ADVOCATES, INC.. (Attachments: # 1 Civil Cover Sheet)(Hill, Eve) (Entered: 05/31/2018)
2 NOTICE by National Association for the Advancement of Colored People, Inc., THE COUNCIL OF PARENT ATTORNEYS AND ADVOCATES, INC., The National Federation of the Blind for the Clerk to issue summons (Hill, Eve) (Entered: 05/31/2018)
3 NOTICE by National Association for the Advancement of Colored People, Inc., THE COUNCIL OF PARENT ATTORNEYS AND ADVOCATES, INC., The National Federation of the Blind for the Clerk to issue summons (Hill, Eve) (Entered: 05/31/2018)
4 NOTICE by National Association for the Advancement of Colored People, Inc., THE COUNCIL OF PARENT ATTORNEYS AND ADVOCATES, INC., The National Federation of the Blind for the Clerk to issue summons (Hill, Eve) (Entered: 05/31/2018)
5 Local Rule 103.3 Disclosure Statement by National Association for the Advancement of Colored People, Inc., THE COUNCIL OF PARENT ATTORNEYS AND ADVOCATES, INC., The National Federation of the Blind (Hill, Eve) (Entered: 05/31/2018)
6 Local Rule 103.3 Disclosure Statement by National Association for the Advancement of Colored People, Inc., THE COUNCIL OF PARENT ATTORNEYS AND ADVOCATES, INC., The National Federation of the Blind (Hill, Eve) (Entered: 05/31/2018)
7 Local Rule 103.3 Disclosure Statement by National Association for the Advancement of Colored People, Inc., THE COUNCIL OF PARENT ATTORNEYS AND ADVOCATES, INC., The National Federation of the Blind (Hill, Eve) (Entered: 05/31/2018)
8 CASE MANAGEMENT ORDER. Signed by Judge Theodore D. Chuang on 5/31/2018. (aos, Deputy Clerk) (Entered: 05/31/2018)
9 NOTICE of Appearance by Brooke E Lierman on behalf of All Plaintiffs (Lierman, Brooke) (Entered: 06/01/2018)

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06/06/2018 06/06/2018

10 QC NOTICE: 1 Complaint, filed by National Association for the Advancement of Colored People, Inc., The Counsel of Parent Attorneys and Advocates, Inc., The National Federation of the Blind was filed incorrectly. The following attachments or exhibits are missing − Proposed Summons were provided for only the named Defendants. If the defendant is either an agency of the United States or an officer or employee of the United States, you must serve both the U.S. Attorney General and the U.S. Attorney for the District of Maryland, as well as each defendant. Please electronically submit a summons for each required party, using the Civil event "Supplemental" located under "Other Filings", and then "Other Documents".(heps, Deputy Clerk) (Entered: 06/06/2018)
11 Supplemental to Summons − Attorney General of the United States, Jefferson B. Session, III (Hill, Eve) (Entered: 06/06/2018)

06/06/2018 12 Supplemental to Summons − U.S. Attorney for the District of Maryland, Robert K. Hur (Hill, Eve) (Entered: 06/06/2018)

06/06/2018

13 Summons Issued 60 days as to Betsy Devos, Candice Jackson, U.S. Department of Education, U.S. Attorney and U.S. Attorney General(heps, Deputy Clerk) (Entered: 06/06/2018)

06/18/2018 06/18/2018 07/10/2018 07/10/2018

14 SUMMONS Returned Executed by The National Federation of the Blind, National Association for the Advancement of Colored People, Inc., The Counsel of Parent Attorneys and Advocates, Inc.. Betsy Devos served on 6/11/2018, answer due 8/10/2018. (Attachments: # 1 Receipt Certified Mail Receipt)(Hill, Eve) (Entered: 06/18/2018)
15 SUMMONS Returned Executed by The National Federation of the Blind, National Association for the Advancement of Colored People, Inc., The Counsel of Parent Attorneys and Advocates, Inc.. U.S. Department of Education served on 6/11/2018, answer due 8/10/2018. (Attachments: # 1 Receipt Certified Mail Receipt)(Hill, Eve) (Entered: 06/18/2018)
16 Summons Returned Executed, Complaint w/attachments, and Civil Cover Sheet served on Jefferson B. Session, III on June 11, 2018, filed by National Association for the Advancement of Colored People, Inc., The Counsel of Parent Attorneys and Advocates, Inc., The National Federation of the Blind. (Attachments: # 1 Receipt Certified Mail Receipt)(Hill, Eve) Modified on 7/25/2018 (heps, Deputy Clerk). (Entered: 07/10/2018)
17 Summons Returned Executed , Complaint w/attachments, and Civil Cover Sheet served on Robert K. Hur on June 7, 2018, filed by National Association for the Advancement of Colored People, Inc., The Counsel of Parent Attorneys and Advocates, Inc., The National Federation of the Blind. (Attachments: # 1 Receipt Certified Mail Receipt)(Hill, Eve) Modified on 7/25/2018 (heps, Deputy Clerk). (Entered: 07/10/2018)

08/03/2018

18 Consent MOTION for Extension of Time To Respond to Complaint by Betsy Devos, Candice Jackson, U.S. Department of Education (Attachments: # 1 Text of Proposed Order)(Moore, Tamra) (Entered: 08/03/2018)

08/08/2018

19 ORDER Granting 18 Consent Motion to Extend Time to Respond to Plaintiff's Complaint. Signed by Judge Theodore D. Chuang on 8/7/2018. (heps, Deputy Clerk) (Entered: 08/08/2018)

08/14/2018 08/15/2018

20 Request for Conference (Hill, Eve) (Entered: 08/14/2018)
21 PAPERLESS NOTICE that a telephone CASE MANAGEMENT CONFERENCE to discuss 20 Notice of Intent to File Motion for a Preliminary Injunction is scheduled for August 29, 2018 at 4:00 p.m. Instructions for the call will be emailed to the parties at a later date. In addition to the proposed motion, the parties should be prepared to address whether they consent to have all further proceedings before a Magistrate Judge and whether they wish to participate in a mediation session with a Magistrate Judge, whether before, during, or after discovery. Parties are expected to consult with their clients and confer with each other on these issues in advance of the Case Management Conference and, if possible, present joint views to the Court. (gk2s, Chambers) (Entered: 08/15/2018)

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08/24/2018 08/29/2018

22 Consent MOTION for Extension of Time To Respond to Complaint by Betsy Devos, Candice Jackson, U.S. Department of Education (Attachments: # 1 Text of Proposed Order)(Moore, Tamra) (Entered: 08/24/2018)
23 Case Management Conference held on 8/29/2018 before Judge Theodore D. Chuang.(FTR−2B.) (klss, Deputy Clerk) (Entered: 08/29/2018)

08/30/2018

24 ORDER Granting 22 Consent MOTION for Extension of Time To Respond to Complaint. Signed by Judge Theodore D. Chuang on 8/29/2018. (heps, Deputy Clerk) (Entered: 08/30/2018)

09/28/2018 25 STATUS REPORT by Betsy Devos, Candice Jackson, U.S. Department of Education (Attachments: # 1 Text of Proposed Order)(Moore, Tamra) (Entered: 09/28/2018)

10/01/2018 11/05/2018 11/06/2018 11/19/2018

26 ORDER re 25 Joint Status Report directing that the parties shall submit a Joint Status Report on or before November 5, 2018. Signed by Judge Theodore D. Chuang on 10/1/2018. (kns, Deputy Clerk) (Entered: 10/01/2018)
27 STATUS REPORT by Betsy Devos, Candice Jackson, U.S. Department of Education (Attachments: # 1 Text of Proposed Order)(Moore, Tamra) (Entered: 11/05/2018)
28 ORDER that the parties shall submit a Joint Status Report informing the Court about the status of this case on or before November 19, 2018. Signed by Judge Theodore D. Chuang on 11/6/2018. (heps, Deputy Clerk) (Entered: 11/06/2018)
29 STATUS REPORT Joint Status Report by National Association for the Advancement of Colored People, Inc., The Counsel of Parent Attorneys and Advocates, Inc., The National Federation of the Blind (Attachments: # 1 Attachment Proposed Order)(Hill, Eve) (Entered: 11/19/2018)

11/20/2018

30 MOTION for Leave to File Supplemental Complaint by National Association for the Advancement of Colored People, Inc., The Counsel of Parent Attorneys and Advocates, Inc., The National Federation of the Blind (Attachments: # 1 Exhibit Supplemental Complaint, # 2 Exhibit Redline Supplemental Complaint)(Hill, Eve) (Entered: 11/20/2018)

11/20/2018 11/20/2018 11/20/2018
11/20/2018
11/21/2018

31 Request for Conference (Hill, Eve) (Entered: 11/20/2018)
32 NOTICE by Betsy Devos, Candice Jackson, U.S. Department of Education re 29 Status Report, (Attachments: # 1 Exhibit)(Moore, Tamra) (Entered: 11/20/2018)
33 NOTICE by National Association for the Advancement of Colored People, Inc., The Counsel of Parent Attorneys and Advocates, Inc., The National Federation of the Blind re 30 MOTION for Leave to File Supplemental Complaint NOTICE OF ERRATA (Hill, Eve) (Entered: 11/20/2018)
34 ORDER Denying Without Prejudice 30 Motion for Leave to File a Supplemental Complaint; directing plaintiff to file a Notice of Intent regarding the Motion for Leave to File a Supplemental Complaint by November 28, 2018. Signed by Judge Theodore D. Chuang on 11/20/2018. (heps, Deputy Clerk) (Entered: 11/21/2018)
35 Request for Conference (Hill, Eve) (Entered: 11/21/2018)

11/29/2018 36 Case Management Conference held on 11/29/2018 before Judge Theodore D. Chuang.(FTR−2B.) (klss, Deputy Clerk) (Entered: 11/30/2018)

11/30/2018 12/03/2018 12/11/2018

37 ORDER Granting Plaintiff leave to file an Amended Complaint by December 4, 2018; Defendants shall submit either the Answer or a Notice of Intent to File a Motion to Dismiss by December 18, 2018. Signed by Judge Theodore D. Chuang on 11/30/2018. (heps, Deputy Clerk) (Entered: 11/30/2018)
38 AMENDED COMPLAINT against All Defendants, filed by The National Federation of the Blind, National Association for the Advancement of Colored People, Inc., The Counsel of Parent Attorneys and Advocates, Inc.. (Attachments: # 1 Amended Complaint−Redlined)(Hill, Eve) (Entered: 12/03/2018)
39 NOTICE by National Association for the Advancement of Colored People, Inc., The Counsel of Parent Attorneys and Advocates, Inc., The National Federation of the Blind Notice regarding filing of Motion for Preliminary Injunction (Hill, Eve) (Entered: 12/11/2018)

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12/18/2018 12/19/2018

40 NOTICE by Betsy Devos, Candice Jackson, U.S. Department of Education re 38 Amended Complaint, of Intent to File Motion to Dimiss Based on Lack of Subject Matter Jurisdiction (Moore, Tamra) (Entered: 12/18/2018)
41 PAPERLESS ORDER granting Defendants leave to file the proposed Motion 40 pursuant to the briefing schedule stated in this Court's Order 37 . Signed by Judge Theodore D. Chuang on 12/19/2018. (sl5, Chambers) (Entered: 12/19/2018)

12/26/2018

42 MOTION to Stay re 40 Notice (Other), 41 Order Defendants' Motion to Dismiss Due to Lapse in Appropriations by Betsy Devos, Candice Jackson, U.S. Department of Education(Moore, Tamra) (Entered: 12/26/2018)

01/02/2019

43 ORDER granting in part 42 Motion to Stay is DENIED; Defendant's Motion to Dismiss is now due by January 17, 2019; defendants must file a motion to obtain any further extensions. Signed by Judge Theodore D. Chuang on 1/2/2019. (heps, Deputy Clerk) (Entered: 01/02/2019)

01/15/2019 01/16/2019 02/06/2019 02/07/2019

44 Consent MOTION for Extension of Time to File Defendants' Motion to Dismiss In Light of Lapse in Appropriations by Betsy Devos, Candice Jackson, U.S. Department of Education (Attachments: # 1 Text of Proposed Order)(Moore, Tamra) (Entered: 01/15/2019)
45 ORDER Granting 44 Motion for Extension of Time to File Defendant's Motion to Dismiss in Light of Lapse in Appropriations. Signed by Judge Theodore D. Chuang on 1/16/2019. (heps, Deputy Clerk) (Entered: 01/16/2019)
46 Consent MOTION for Extension of Time to File Motion to Dismiss by Betsy Devos, Candice Jackson, U.S. Department of Education (Attachments: # 1 Text of Proposed Order)(Moore, Tamra) (Entered: 02/06/2019)
47 ORDER granting 46 Unopposed Motion for Extension of Time. Signed by Judge Theodore D. Chuang on 2/7/2019. (kns, Deputy Clerk) (Entered: 02/07/2019)

02/11/2019

48 NOTICE of Appearance by Anisha S. Queen on behalf of National Association for the Advancement of Colored People, Inc., The Counsel of Parent Attorneys and Advocates, Inc., The National Federation of the Blind (Queen, Anisha) (Entered: 02/11/2019)

02/11/2019 03/11/2019 03/22/2019 03/22/2019 04/17/2019

49 MOTION to Dismiss for Lack of Jurisdiction , MOTION to Dismiss for Failure to State a Claim by Betsy Devos, Candice Jackson, U.S. Department of Education (Attachments: # 1 Memorandum in Support, # 2 Marcus Declaration, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Wills Declaration, # 10 Exhibit A, # 11 Text of Proposed Order)(Moore, Tamra) (Entered: 02/11/2019)
50 RESPONSE in Opposition re 49 MOTION to Dismiss for Lack of Jurisdiction MOTION to Dismiss for Failure to State a Claim filed by National Association for the Advancement of Colored People, Inc., The Counsel of Parent Attorneys and Advocates, Inc., The National Federation of the Blind. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Hill, Eve) (Entered: 03/11/2019)
51 Consent MOTION for Extension of Time to File Response/Reply as to 49 MOTION to Dismiss for Lack of Jurisdiction MOTION to Dismiss for Failure to State a Claim, 50 Response in Opposition to Motion, by Betsy Devos, Candice Jackson, U.S. Department of Education (Attachments: # 1 Text of Proposed Order)(Moore, Tamra) (Entered: 03/22/2019)
52 PAPERLESS ORDER granting 51 Motion for Extension of Time to File Response/Reply. Defendants' Reply in support of 49 Defendants' Motion to Dismiss is now due April 19, 2019. Signed by Judge Theodore D. Chuang on 3/22/2019. (sl5s, Chambers) (Entered: 03/22/2019)
53 Consent MOTION for Extension of Time to File Response/Reply as to 49 MOTION to Dismiss for Lack of Jurisdiction MOTION to Dismiss for Failure to State a Claim by Betsy Devos, Candice Jackson, U.S. Department of Education. (Attachments: # 1 Text of Proposed Order)(Moore, Tamra) (Entered: 04/17/2019)

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04/22/2019 04/23/2019

54 NOTICE of Appearance by Michael F Knapp on behalf of All Defendants (Knapp, Michael) (Entered: 04/22/2019)
55 ORDER granting 53 Motion for Extension of Time to File Their Reply in Support of 49 MOTION to Dismiss on or before April 26, 2019. Signed by Judge Theodore D. Chuang on 4/23/2019. (cags, Deputy Clerk) (Entered: 04/23/2019)

04/26/2019

56 REPLY to Response to Motion re 49 MOTION to Dismiss for Lack of Jurisdiction MOTION to Dismiss for Failure to State a Claim filed by Betsy Devos, Candice Jackson, U.S. Department of Education. (Attachments: # 1 Affidavit of Randolph Wills)(Knapp, Michael) (Entered: 04/26/2019)

05/29/2019

57 NOTICE by National Association for the Advancement of Colored People, Inc., The Counsel of Parent Attorneys and Advocates, Inc., The National Federation of the Blind Notice of Supplemental Authority (Attachments: # 1 Exhibit 1)(Hill, Eve) (Entered: 05/29/2019)

08/21/2019 08/21/2019 09/03/2019 09/09/2019

58 MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 8/19/2019. (heps, Deputy Clerk) (Entered: 08/21/2019)
59 ORDER Granting 49 Motion to Dismiss; the Amended Complaint is Dismissed Without Prejudice; any Motion for Leave to Amend the Complaint must be filed within Fourteen (14) days of the date of this Order. Signed by Judge Theodore D. Chuang on 8/19/2019. (heps, Deputy Clerk) (Entered: 08/21/2019)
60 MOTION for Leave to File A Second Amended Complaint by National Association for the Advancement of Colored People, Inc., The Counsel of Parent Attorneys and Advocates, Inc., The National Federation of the Blind (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Text of Proposed Order)(Hill, Eve) (Entered: 09/03/2019)
61 NOTICE to Substitute Attorney Tamra Moore and Michael Knapp (Edney, Marsha) (Entered: 09/09/2019)

10/03/2019

62 ORDER Granting 60 Motion for Leave to File A Second Amended Complaint. Signed by Judge Theodore D. Chuang on 10/3/2019. (heps, Deputy Clerk) (Entered: 10/03/2019)

10/03/2019
10/17/2019 11/06/2019 11/13/2019 11/25/2019

63 SECOND AMENDED COMPLAINT against Betsy Devos, Candice Jackson, U.S. Department of Education, filed by The National Federation of the Blind, National Association for the Advancement of Colored People, Inc., The Counsel of Parent Attorneys and Advocates, Inc.. (Attachments: # 1 Redline version of Amended Complaint)(heps, Deputy Clerk) (Entered: 10/03/2019)
64 ANSWER to 63 Amended Complaint, by Betsy Devos, Candice Jackson, U.S. Department of Education.(Edney, Marsha) (Entered: 10/17/2019)
65 SCHEDULING ORDER: Status Report due by 3/18/2020.. Signed by Judge Theodore D. Chuang on 11/5/2019. (dg3s, Deputy Clerk) (Entered: 11/06/2019)
66 Correspondence re: Request for Modification of Scheduling Order (Edney, Marsha) (Entered: 11/13/2019)
67 Joint MOTION to Stay re 65 Scheduling Order All Pretrial Deadlines by National Association for the Advancement of Colored People, Inc., The Counsel of Parent Attorneys and Advocates, Inc., The National Federation of the Blind (Attachments: # 1 Text of Proposed Order)(Hill, Eve) (Entered: 11/25/2019)

11/27/2019

68 ORDER granting 67 Joint Motion to Stay re 65 Scheduling Order All Pretrial Deadlines; Status Report due on or before 1/3/2020. Signed by Judge Theodore D. Chuang on 11/27/2019. (dg3s, Deputy Clerk) (Entered: 11/27/2019)

11/27/2019 01/02/2020

69 PAPERLESS NOTICE. In light of ECF No. 68 , the Case Management Conference scheduled for Monday, December 2, 2019 is CANCELLED. (sb3s, Chambers) (Entered: 11/27/2019)
70 STATUS REPORT (Joint) by National Association for the Advancement of Colored People, Inc., The Counsel of Parent Attorneys and Advocates, Inc., The National Federation of the Blind (Attachments: # 1 Text of Proposed Order)(Hill, Eve) (Entered: 01/02/2020)

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01/08/2020 02/06/2020

71 ORDER granting 70 STATUS REPORT (Joint); Status Report due on or before 2/7/2020. Signed by Judge Theodore D. Chuang on 1/7/2020. (dg3s, Deputy Clerk) (Entered: 01/08/2020)
72 STIPULATION of Dismissal by National Association for the Advancement of Colored People, Inc., The Counsel of Parent Attorneys and Advocates, Inc., The National Federation of the Blind(Hill, Eve) (Entered: 02/06/2020)

02/07/2020

73 ORDER DISMISSING case with each party to bear its own costs unless otherwise agreed without prejudice to the right of a party to move for good cause to reopen this action if settlement is not consummated. Signed by Judge Theodore D. Chuang on 2/7/2020. (dg3s, Deputy Clerk) (Entered: 02/07/2020)

 
 Case 1:18-cv-01568-TDC Document 1 Filed 05/31/18 Page 1 of 25

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND (Northern Division)

THE NATIONAL FEDERATION OF

*

THE BLIND

200 East Wells Street at Jernigan Place

*

Baltimore, MD 21230,

*

And

*

THE COUNCIL OF PARENT ATTORNEYS

AND ADVOCATES, INC.

*

8 Market Place, Suite 300

Baltimore, MD 21202,

*

And

*

NATIONAL ASSOCIATION FOR THE

*

ADVANCEMENT OF COLORED PEOPLE, INC.

4805 Mt. Hope Drive

*

Baltimore, MD 21215,

*

Plaintiffs,

*

Civil Action No.:

v.

*

U.S. DEPARTMENT OF EDUCATION

*

Lyndon Baines Johnson Dept. of Education Bldg.

400 Maryland Avenue, SW

*

Washington, D.C. 20202,

*

And

*

BETSY DEVOS

Secretary of Education

*

In Her Official Capacity

Lyndon Baines Johnson Dept. of Education Bldg. *

U.S. Department of Education

400 Maryland Avenue, SW

*

Washington, D.C. 20202,

*

And

*

Case 1:18-cv-01568-TDC Document 1 Filed 05/31/18 Page 2 of 25

CANDICE JACKSON

*

Acting Assistant Secretary for Civil Rights

In Her Official Capacity

*

U.S. Dept. of Education,

Office for Civil Rights

*

Lyndon Baines Johnson Dept. of Education Bldg.

400 Maryland Avenue, SW

*

Washington, D.C. 20202-1100,

*

Defendants.

*

*

*

*

*

*

*

*

*

* *

* * **

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 1. COME NOW, Plaintiffs, The National Federation of the Blind, Inc., The Council of Parent Attorneys and Advocates, Inc., and National Association for the Advancement of Colored People, Inc., by and through their undersigned counsel and hereby bring this action against Defendants, U.S. Department of Education, Betsy DeVos (Secretary of Education), and Candice Jackson (Acting Assistant Secretary for Civil Rights), in their official capacities, and in support thereof state as follows:
INTRODUCTION 2. The Office for Civil Rights (“OCR”) within the U.S. Department of Education (“DOE”) has a special mission: “to ensure equal access to education and to promote educational excellence through vigorous enforcement of civil rights in our nation’s schools.” https://www2.ed.gov/about/offices/list/ocr/aboutocr.html. This office serves “student populations facing discrimination and the advocates and institutions promoting systemic solutions to civil rights problems.” Id. 3. To fulfill its mission, OCR notes that “an important responsibility is resolving complaints of discrimination.” Id. Complaints of discrimination can be filed by anyone who believes that an educational institution that receives federal financial assistance has discriminated
2

Case 1:18-cv-01568-TDC Document 1 Filed 05/31/18 Page 3 of 25
against someone on the basis of race, color, national origin, sex, disability, or age. The victim himself does not need to file – instead, an advocate or organization can file on an individual’s behalf or on behalf of a group. The ability to file a complaint and have it thoroughly reviewed is integral to the mission of the OCR.
4. Indeed, some claims under the statutes enforced by DOE’s OCR, such as those alleging disparate impact discrimination, can only be enforced by the federal government. Alexander v. Sandoval, 532 U.S. 275 (2001) (finding that implementing regulation of Title VI of the Civil Rights Act of 1964 regarding disparate impact discrimination is only enforceable by the federal funding agencies).
5. Contrary to its mission and without any public notice, earlier this year DOE summarily eliminated substantive rights of the very people it purports to serve by changing its Case Processing Manual to abdicate its basic duty to investigate legitimate complaints of discrimination by students and their parents.
6. Effective March 5, 2018, the DOE amended the U.S. Department of Education Office for Civil Rights Case Processing Manual (“2018 OCR Manual”). The changes include new provisions to require mandatory dismissal of certain complaints and the elimination of the appeal rights of complainants.
7. Because these changes violate the federal Administrative Procedure Act (“APA”), 5 U.S.C. Chapter 5, §§ 551, et seq., and are contrary to OCR’s mission, Plaintiffs, on their own behalf and on behalf of their members who are or may be victims of discrimination in the education system, ask the Court (1) to declare the amendments to the 2018 OCR Manual in violation of the law, (2) to enjoin Defendants from enforcing these new provisions of the 2018 OCR Manual, and (3) to set aside the changes
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PARTIES & JURISDICTION 8. The National Federation of the Blind, Inc. (“NFB”) is the oldest and largest national organization of blind persons. It is a 501(c)(3) non-profit corporation duly organized under the laws of the District of Columbia and headquartered at 200 East Wells Street at Jernigan Place, Baltimore, Maryland. It has approximately 50,000 members and affiliates in all 50 states, Washington, D.C., and Puerto Rico. The NFB and its affiliates are widely recognized by the public, Congress, executive agencies of state and federal governments, and courts as a collective and representative voice on behalf of blind Americans and their families. The organization promotes the general welfare of the blind by assisting the blind in their efforts to integrate themselves into society on terms of equality and by removing barriers that result in the denial of opportunity to blind persons in virtually every sphere of life, including education, employment, family and community life, transportation, and recreation. 9. The ultimate purpose of the NFB is the complete integration of blind individuals into society on a basis of equality. This objective includes the removal of legal, economic, and social discrimination. As part of its mission and to achieve these goals, the NFB actively pursues administrative complaints and litigation to ensure that the blind receive equal access to the opportunities, facilities, services, programs and activities offered by public schools, institutions of higher education, and other recipients of federal financial assistance from DOE. The NFB has filed complaints with OCR on behalf of its members in the past, has complaints pending with OCR at present, and expects to need to file complaints on behalf of its members in the future. 10. For example, in 2009, the NFB filed several complaints with OCR and the Department of Justice against colleges and universities that were deploying inaccessible Amazon Kindle devices in classes. See https://nfb.org/node/1129. As a result of these complaints, the
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DOE and Department of Justice reached resolution agreements with several colleges and universities prohibiting them from requiring, purchasing, or incorporating inaccessible electronic book readers in their curricula. See, e.g., https://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/11092094-b.html. The DOE and Department Justice followed these resolutions with a “Dear Colleague Letter” to all college and university presidents explaining that Section 504 and the Americans with Disabilities Act prohibit the use of emerging technologies in the classroom if the technologies are inaccessible to students with disabilities. https://www2.ed.gov/about/offices/list/ocr/letters/colleague-20100629.html. DOE subsequently issued a Frequently Asked Questions document regarding the application of Section 504 to electronic book readers in elementary, secondary, and higher education. https://www2.ed.gov/about/offices/list/ocr/docs/dcl-ebook-faq-201105.html. However, the 2018 OCR Manual, by its terms, would have mandated that OCR reject this “pattern” of complaints and would prevent investigation of such a “pattern” of complaints if they were filed today.
11. NFB’s members have been and are illegally discriminated against by educational institutions that receive federal funding. Among the NFB’s members are individuals against whom persons and entities receiving federal financial assistance from the DOE have illegally discriminated in the provision of services. Many of the NFB’s members have filed complaints with OCR on behalf of themselves, on behalf of their children, or on behalf of others. Because discrimination against blind people, including blind children, is persistent and frequent, many of them have had to file more than one complaint. For example, NFB members Joy and Paul Orton of Alabama, filed a complaint with OCR in 2016 on behalf of their child, who is blind, alleging that their local school district was discriminating on the basis of disability. This meritorious complaint was resolved through a resolution agreement by OCR. However, an additional
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instance of discrimination has recently arisen and they have had to file another complaint with OCR, which is currently pending. The 2018 OCR Case Processing Manual’s provision requiring dismissal of complaints by individuals who have filed previously applies to them and interferes with their ability to advocate for their child’s civil rights.
12. In addition, as part of its mission, the NFB periodically submits comments on federal agencies’ proposed rules and regulations to inform agencies about the impact of such proposals on the lives and rights of blind people. For example, in 2017, the NFB submitted comments in response to DOE’s request for comments regarding its evaluation of existing regulations pursuant to Executive Order 13777, Enforcing the Regulatory Reform Agenda. https://nfb.org/images/nfb/documents/pdf/nfb_response_ed_2017_os_0074.pdf.
13. The Council of Parent Attorneys and Advocates, Inc. (“COPAA”) is a national not-for-profit organization of parents of children with disabilities, their attorneys, and their advocates. COPAA’s primary goal is to secure appropriate educational services for children with disabilities in accordance with federal law. COPAA provides resources, training, and information for parents, advocates, and attorneys to assist them in obtaining the equal opportunity for education such children are entitled to under the federal civil rights laws. COPAA frequently advises and trains parents, attorneys, and advocates about filing complaints with the DOE OCR, helps parents and advocates file administrative complaints on behalf of children with disabilities, helps parents and advocates find attorneys and legal resources as they advocate for their children’s legal rights, educates policy makers, including federal agencies, about the educational experiences of children with disabilities and their families, and educates COPAA members about developments in the federal civil rights laws and policies affecting education of children with disabilities.
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14. COPAA’s attorney members represent children with disabilities in civil rights matters, including complaints with the DOE’s OCR.
15. COPAA’s members have been and are illegally discriminated against by educational recipients of federal funding. For example, COPAA member Katie Kelly is a public interest lawyer in Florida who has filed complaints with OCR on behalf of students with disabilities and their parents to challenge discrimination under Section 504, and Titles VI and IX of the Civil Rights Act. Her clients often cannot file complaints on their own behalf and cannot afford to pay an attorney. The 2018 OCR Case Processing Manual’s provision requiring dismissal of complaints by individuals who have filed previously applies to her and her clients and interferes with their ability to advocate for the civil rights of low-income children.
16. Several COPAA members have informed COPAA that their complaints have already been subjected to dismissal and appeals have been denied pursuant to the 2018 OCR Manual. Others have filed complaints with OCR in the past and are preparing to file, or expect to file, additional complaints in the near future.
17. In addition, COPAA periodically submits comments on federal agencies’ proposed rules and regulations to inform agencies about the impact of such proposals on the lives and rights of children with disabilities and their families. For example, COPAA recently submitted comments in response to the DOE’s Notice of Proposed Rulemaking published in the Federal Register on February 27, 2018, proposing to delay the compliance date for the 2016 final regulations implementing the Individuals with Disabilities Education Act (IDEA) requirement addressing significant disproportionality. https://cdn.ymaws.com/www.copaa.org/resource/resmgr/docs/2018_documents/COPAA_on_Sig nificant_Disprop.pdf.
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18. The National Association for the Advancement of Colored People, Inc. (NAACP), founded in 1909, is the nation’s largest and oldest grassroots civil rights organization. The NAACP is a 501(c)(3) non-profit organization headquartered in Baltimore, Maryland, with approximately 2,200 chartered state-based, local, and collegiate units in all 50 states and on three military installations around the world. The mission of the NAACP is to ensure the political, educational, social, and economic equality of rights of all persons and to eliminate race-based discrimination.
19. The NAACP has been at the forefront of many of the major civil rights advancements in our Nation. The NAACP fought to desegregate public schools throughout the American South, culminating with the seminal case, Brown v. Board of Education of Topeka, KS. A decade later, due largely to the vigorous advocacy of the NAACP and its leaders, Congress passed and President Johnson signed into law the Civil Rights Act of 1964.
20. The NAACP continues to advocate for equality in public education, regardless of zip code, race, or ethnicity. The NAACP has submitted comments, usually as part of a coalition of civil rights organizations, urging modification of proposed Department of Education rules that would have negatively affected students of color, physically disadvantaged students, and young adults leaving from college with student loans.
21. In addition, the NAACP has spent considerable resources educating its units and members across the country regarding the Every Student Succeeds Act (“ESSA”) and its implementing regulations. Those units and members, in turn, have educated education officials to ensure that state plans under ESSA are designed to eliminate race-based inequality in public education and to provide a quality education for all students.
22. The NAACP’s members have been and are illegally discriminated against by educational recipients of federal funding. The NAACP and its state and local units have filed
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complaints with the DOE OCR when they believe the actions (or inaction) of school officials constitute violations of Title VI of the Civil Rights Act of 1964. For example, in 2016, the NAACP filed a complaint against the City of Richmond Public Schools on behalf of two African American students with disabilities, and all African American students and students with disabilities, based on discriminatory discipline policies and practices. Then, in September 2017, the NAACP filed another complaint against Lee County Florida’s school district, again alleging discriminatory policies and practices. The 2018 OCR Case Processing Manual’s provision requiring dismissal of complaints would foreclose complaints like these.
23. OCR’s removal of the ability of a complainant such as the NAACP to file a series of complaints alleging similar misconduct by a number of different school systems across the country, its removal of the ability of complainants to file administrative appeals from closure of their complaints, and its requirement that even meritorious complaints be dismissed without investigation if they are believed to be administratively burdensome, negatively impact the NAACP and its units and members who wish to file complaints of race discrimination under Title VI of the Civil Rights Act of 1964.
24. DOE OCR’s implementation of these changes in the 2018 version of its Case Processing Manual, without notice or comment, prevented the NAACP and its units and members from learning of the planned changes before they took effect and informing DOE OCR why these changes are fundamentally inconsistent with the mission of DOE OCR and why they prevent organizations such as the NAACP from filing complaints based on patterns of misconduct occurring across different jurisdictions.
25. Plaintiffs are associations or organizations of individuals who have been or are being injured by the Defendants’ failure to comply with the requirements of Chapter 5 of the federal APA.
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26. All Plaintiffs have suffered, and continue to suffer, diversion of their resources to identify, inform and advise their members about, and respond to Defendants’ unlawful actions in adopting the challenged provisions of the 2018 OCR Manual.
27. All Plaintiffs have experienced, and continue to experience, frustration of their missions to ensure equal access to education for their members and others who experience discrimination by recipients of federal financial assistance in violation of federal civil rights law.
28. Plaintiffs have organizational or associational standing to bring this suit on behalf of themselves and their members.
29. Defendants are the U.S. Department of Education (“DOE”), current U.S. Secretary of Education Betsy DeVos, and Candice Jackson, Acting Assistant Secretary for Civil Rights. Ms. DeVos and Ms. Jackson are sued in their official capacities.
30. As the U.S. Secretary of Education, Ms. DeVos is responsible for the administration of the DOE in accordance with law, including adoption of rules and regulations pursuant to the rule-making procedures set out in the federal Administrative Procedure Act, 5 U.S.C. Chapter 5, §§ 551, et seq.
31. As the Acting Assistant Secretary for Civil Rights, Ms. Jackson is responsible for the administration of the DOE’s Office for Civil Rights (“OCR”) in accordance with law, including mandating procedures for the handling and processing of complaints of illegal discrimination made to OCR for investigation.
32. This Court has subject matter jurisdiction over this matter pursuant to 5 U.S.C. §702 and 28 U.S.C. §§ 1331 and 2201.
33. This Court has authority to issue declaratory relief pursuant to 28 U.S.C. § 2201. 34. Venue is properly in this Court under 28 U.S.C. §1391(e)(1)(C), because the United States, its agencies, and its officials acting in their official capacity may be sued in the
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federal judicial jurisdiction in which the plaintiffs reside, so long as no real property is involved in the suit. For purposes of venue, an association is deemed to reside in the judicial district in which it maintains its principle place of business. 28 U.S.C. §1391(c)(2). Plaintiff NFB’s principal place of business is in Baltimore, Maryland. Plaintiff COPAA’s principal place of business is in Baltimore, Maryland. Plaintiff NAACP’s principal place of business is in Baltimore, Maryland. Venue in this Court is also appropriate under 28 U.S.C. §1391(b)(2) because a substantial part of the events or omissions giving rise to the claim arose in this district.
LEGAL BACKGROUND 35. The head of a federal Executive Department may adopt rules for the conduct and government of her agency. 5 U.S.C. §301. 36. Adoption of such rules must comply with the requirements of the rule-making procedures of the federal Administrative Procedure Act (“APA”), 5 U.S.C. §551, et seq., if the proposed rules meet the definition of “rule” found in 5 U.S.C. §551(4): “ … the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency . . . .” 37. The APA requires that courts “shall … hold unlawful and set aside agency action, findings, and conclusions found to be … arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A), (B). 38. The APA also requires that rules proposed by a federal agency first be published in the Federal Register, with the terms or substance of the proposed rule, the legal authority for the proposed rule, and specific information regarding when a public hearing on the proposed rule will take place. 5 U.S.C. §§ 553(b), (d).
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39. Under the APA, the proposing agency must consider, prior to adoption of the rule, all written data, views, or arguments submitted by interested persons regarding the proposed rule. 5 U.S.C. §§ 553(c), (d). This set of APA provisions for publication and consideration of comments is referred to as the “notice-and-comment requirement.”
40. 5 U.S.C. §702 creates a cause of action in federal court for any person who has suffered legal wrong because of, or been adversely affected or aggrieved by, an agency action or failure to act as required by the rule-making statutes. The statute waives the sovereign immunity of the federal government for such a lawsuit, so long as the lawsuit is against a federal agency or a federal employee who acted or failed to act in her official capacity or under color of legal authority, and the suit does not request monetary damages.
41. 28 U.S.C. § 2201 permits this Court to issue a declaratory judgment that the Defendants have violated 5 U.S.C. Chapter 5 in adopting certain provisions in the 2018 OCR Manual, as identified below.
RELEVANT FACTS 42. Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, et seq. (“Section 504”), prohibits discrimination by recipients of federal financial assistance, including assistance from the DOE, from discriminating against individuals with disabilities. 43. Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, et seq. (“Title VI”), prohibits discrimination by recipients of federal financial assistance, including assistance from the DOE, from discriminating on the basis of race, color, or national origin. 44. The DOE’s Title VI regulations provide:
The responsible Department official or his designee will make a prompt investigation whenever a compliance review, report, complaint, or any other information indicates a possible failure to comply with this part.
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34 C.F.R. § 100.7(c) (Title 34, Subchapter B, Chapter 1, Part 100: Non-Discrimination Under Programs Receiving Federal Assistance Through the Department of Education Effectuation of Title VI of the Civil Rights Act of 1964) (emphasis added).
45. Section 504 requires agencies that provide federal funding to apply the same remedies, procedures, and rights set forth in Title VI to the civil rights of persons with disabilities. 29 U.S.C. § 794a(a). DOE adopted the Title VI rights and procedures, including 34 C.F.R. § 100.7, for complaints of violations of Section 504. 34 C.F.R. § 104.61.
46. In 2015, the OCR issued a Case Processing Manual (“2015 OCR Manual”), which adopted “procedures to promptly and effectively investigate and resolve complaints, compliance reviews and directed investigations to ensure compliance with the civil rights laws enforced by OCR,” including Title VI and Section 504. 2015 OCR Manual, Introduction.
47. The 2015 OCR Manual set out the process by which OCR staff received and investigated complaints from individuals who allege that a person or entity that receives funding from the DOE has violated the civil rights laws by illegally discriminating on the basis of race, color, national origin, sex, disability, or age. Id.
48. The 2015 OCR Manual allowed timely complaints that were within OCR’s jurisdiction to be dismissed prior to opening an investigation in three circumstances, namely, (1) if the complaint, on its face, failed to state a claim of violation of one of the laws that OCR enforces, (2) if it lacked sufficient detail for OCR to infer that discrimination has occurred, or (3) if it was so speculative, conclusory or incoherent that OCR could not infer that discrimination had occurred. Id. § 108.
49. The 2015 OCR Manual also provided several bases for closing complaints after opening an investigation, including that OCR, in its discretion, could administratively close a complaint that was “a continuation of a pattern of complaints previously filed by the complainant
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or someone other than the complainant involving the same allegation(s) and/or the same issue(s)
that have been found to be without merit by OCR.” Id. § 110(j).
50. The 2015 OCR Manual did not require that a complaint be dismissed, either
mandatorily or through OCR’s discretion, simply because the same complainant had filed more
than one complaint or because the complaint included multiple alleged discriminators.
51. The 2015 Manual also provided that, if an investigation concluded that the
preponderance of the evidence did not support a conclusion that the recipient had violated
applicable law, OCR would issue a letter of findings explaining the reasons for its decision.
2015 Manual § 303. The 2015 Manual stated that “OCR affords an opportunity to the
complainant to appeal” such a letter of findings to the Director of the Enforcement Office that
issued the letter. 2015 OCR Manual §§ 303(a) and 306.
52. In March 2018, OCR issued a new “U. S. Department of Education, Office for
Civil Rights, Case Processing Manual. The Introduction to the 2018 OCR Manual states:
The Case Processing Manual (CPM) provides OCR with the procedures to promptly and effectively investigate and resolve complaints, compliance reviews, and directed investigations to ensure compliance with the civil rights laws and regulations enforced by OCR.
2018 OCR Manual, Introduction. Upon information and belief, the 2018 Manual replaces the
2015 OCR Manual.
53. The 2018 OCR Manual includes the following provision, which was not in the
2015 OCR Manual:
… OCR will dismiss an allegation, or, if appropriate, the complaint in its entirety, when: …
(t) A complaint is a continuation of a pattern of complaints previously filed with OCR by an individual or group against multiple recipients or a complaint(s) is filed for the first time against multiple recipients that, viewed as a whole, places an
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unreasonable burden on OCR’s resources. OCR may consider conducting a compliance review or providing technical assistance concerning the issues raised by the complaint. 2018 Manual §108(t) (emphasis original). This provision, interpreted in accordance with ordinary rules of grammar and punctuation, means that a complaint will be dismissed without investigation if: (1) it is part of a series of complaints by a single complainant or
group of complainants against multiple recipients, even if it alleges different factual and legal violations; or (2) it is a single complaint against multiple recipients that, when viewed together, places an unreasonable burden on OCR's resources. Unlike the 2015 OCR Manual, dismissal is mandatory, and there is no requirement that the previous complaints have been found to be without merit, or even that the undefined “pattern” involves the same or similar allegations. 54. The first change (“Rule Change 1”) means that, as of March 5, 2018, OCR will no longer investigate a claim of illegal discrimination if the claim is part of “a pattern” of complaints by an individual complainant against multiple recipients. “Pattern” is undefined and may cover as few as two complaints, involving different allegations against different entities over an unspecified period of time. This provision, as written, is not limited to those complaints that would place an “unreasonable burden” on OCR. Nor is this provision limited to instances where the prior complaints were meritless. 55. This new restriction affects both individuals who have been subjected to more than one incident of illegal discrimination and organizations that represent individuals who cannot afford to bring claims on their own. The latter groups often submit claims over time for multiple individuals against multiple recipients. These groups include entities like Plaintiffs, civil rights advocates and attorneys, and the Protection and Advocacy systems, which are
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federally authorized and funded to pursue administrative, legal and other claims of discrimination on behalf of individuals with disabilities under 54 U.S.C. § 15043, 29 U.S.C. § 3004, and 42 U.S.C. § 10803-07.
56. According to the language of §108(t) of the 2018 OCR Manual, such entities will be blocked from bringing multiple claims on behalf of their multiple constituents. Because DOE provided no opportunity for notice and comment, the NFB, COPAA, the NAACP, and other entities were unable to bring this problem to the attention of DOE before it adopted the new provision.
57. In addition, the 2018 Manual precludes these groups and individuals from bringing a single complaint against multiple recipients (even if those recipients acted together), if OCR, in its sole judgment, and on the basis of unknown factors, decides that investigating would place an undefined “unreasonable burden” on OCR’s resources (“Rule Change 2”).
58. These two distinct and substantive changes mean that, as of March 5, 2018, OCR has unilaterally eliminated a right of claimants that was created by the DOE’s regulations and maintained in prior Case Processing Manuals: the right to have one’s claim of discrimination investigated if it indicates a possible failure to comply with federal civil rights laws.
59. Rule Changes 1 and 2 to the 2018 OCR Manual are arbitrary, capricious, and not in accordance with law.
60. The ban on complaints from persons or entities who have made complaints in the past or complaints against multiple recipients of federal funds directly contradicts the DOE regulations requiring that all complaints be investigated. Neither regulations nor statutes empower DOE’s OCR to limit the complaints that will be investigated in this fashion.
61. Further, DOE has provided no rationale for this ban on complaints, making the ban arbitrary and capricious.
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62. Plaintiffs and their members have been and are being injured by DOE’s and OCR’s adoption of arbitrary, capricious, and illegal rules that eliminate potentially legitimate complaints of violation of the DOE’s non-discrimination statutes.
63. In addition to adding § 108(t), DOE made a third change that eliminated complainants’ right to appeal OCR findings of insufficient evidence (“Rule Change 3”).
64. The 2015 OCR Manual included a right for complainants to appeal OCR decisions to close their complaints for lack of evidence. In the 2018 OCR Manual, DOE eliminated the entire “Appeals” section. There is no provision in the 2018 OCR Manual offering an appeal or reconsideration of an OCR determination not to pursue a claim of discrimination. The appeal right was eliminated without notice and comment and without any stated rationale to support it.
65. None of the three 2018 OCR Manual rule changes is merely an interpretative rule, a general statement of policy, or a rule of agency organization, procedure, or practice. All the changes shift and affect rights and interests of complainants, and make substantive changes to prior rules. Therefore, all three changes were required to be subject to notice and comment under the APA.
66. DOE did not comply with the federal APA rule-making procedures set out in 5 U.S.C. Chapter 5, §§ 551, et seq., before issuing the 2018 OCR Manual. The proposed 2018 OCR Manual was not published in the Federal Register, nor were public comments on the proposal sought, received, or considered, prior to the 2018 OCR Manual’s adoption. Plaintiffs did not have an opportunity for notice and comment before the Manual was adopted and put into effect.
67. DOE failed to afford Plaintiffs an opportunity to provide information to DOE regarding the impact that its changes to the OCR Manual would have on their members, who are
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and will continue to be affected and injured by the adoption of the three Manual changes, and by the denial of an opportunity to comment on the proposed changes before adoption.
68. Plaintiffs’ interest in preserving the rights of their members to have all claims of illegal discrimination by recipients of federal financial assistance investigated by OCR and to provide comments on the changes to the Manual falls squarely within the zone of interests that the APA rule-making provisions are designed to protect.
69. DOE’s action in adopting the changes in the 2018 OCR Manual is final. The Manual went into effect on March 5, 2018. There is no other remedy for this injury except suit in federal court.
CAUSES OF ACTION COUNT I: Violations of 5 USC Chapter 5, §§ 551, et seq.:
Adoption of a Rule that is Not in Accordance with Law (for Injunctive and Declaratory Relief)
70. Plaintiffs repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
71. This Court is empowered by 5 U.S.C. § 702 to hold unlawful and set aside agency action that the Court finds to be not in accordance with law.
72. This Court is empowered by 28 U.S.C. § 2201 to declare the rights of Plaintiffs and other interested parties regarding the issues presented in this Complaint.
73. OCR Manual Changes 1 and 2 wholly and unequivocally contradict DOE regulation 34 C.F.R. § 100.7(c) and 34 C.F.R. § 104.61, which provide that DOE “will make a proper investigation” when it receives a complaint that “indicates a possible” illegal discriminatory action by a recipient of federal educational funds (emphasis added). Nothing in these regulations permits DOE or OCR to refuse to investigate complaints on the grounds that
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the complainant has submitted other complaints, or that there is more than one alleged discriminating recipient.
74. To the extent that the ban on complaints against multiple entities is intended to preserve agency resources, nothing in the DOE’s implementing statutes or regulations authorizes adoption of a rule upon that basis. 34 C.F.R. §100.7(c) and 34 C.F.R. § 104.61 do not state any basis for refusing to investigate a claim in order to preserve agency resources.
75. Nor has DOE provided the public with any evidence that agency resources are being over-used as a result of multiple meritorious discrimination claims from a single complainant or group or as a result of single complaints against multiple entities. The 2015 OCR Manual already permitted OCR to dismiss complaints that did not allege illegal discrimination, were duplicative of other claims, or were part of a pattern of meritless complaints, and to refuse review of complaints with procedural defects. Those provisions already reduced OCR’s workload by eliminating groundless complaints. In fact, according to DOE’s own documents, in 2016 OCR already dismissed 58% of the complaints it received. Department of Education Office for Civil Rights Fiscal Year 2018 Budget Request at Z-13, available at https://www2.ed.gov/about/overview/budget/budget18/justifications/z-ocr.pdf (last visited May 30, 2018).
76. In addition, Congress appropriated an increase of $8.5 million for DOE OCR for fiscal year 2018, for a total annual budget of $117,000,000. Consolidated Appropriations Act of 2018, Public Law No: 115-141 (March 23, 2018). Notably, DOE’s FY 2018 Budget Request sought a flat budget of only $106,797,000, over $10 million less than Congress provided, and proposed to decrease staff by 46 full time equivalents. Department of Education Office for Civil Rights Fiscal Year 2018 Budget Request at Z-7, available at
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https://www2.ed.gov/about/overview/budget/budget18/justifications/z-ocr.pdf (last visited May 30, 2018).
77. Many claims that are banned by § 108(t) of the 2018 OCR Manual allege legitimate claims of illegal discrimination, but will be dismissed nonetheless for no reason permitted by federal statute or regulation.
78. Plaintiffs are entitled to a declaratory judgment that § 108(t) of the 2018 OCR Manual is not in accordance with law and violates Chapter 5 of the APA.
79. Plaintiffs are entitled to an order vacating § 108(t) of the 2018 OCR Manual and enjoining the DOE and OCR officials, as named in this suit, from implementing it.
COUNT II: Violation of 5 USC Chapter 5, §§ 551, et seq. Adoption of a Rule that is Arbitrary or Capricious (for Injunctive and Declaratory Relief)
80. Plaintiffs repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
81. This Court is empowered by 5 U.S.C. § 702 to hold unlawful and set aside agency action that the Court finds to be arbitrary or capricious.
82. This Court is empowered by 28 U.S.C. § 2201 to declare the rights of Plaintiffs and other interested parties regarding the issues presented in this Complaint.
83. On its face, the rules adopted by the DOE and OCR in §108(t) of the 2018 OCR Manual, are arbitrary or capricious, or both. Neither the DOE nor OCR has identified any evidence or rationale to support the 2018 OCR Manual’s ban on complaints from claimants who have submitted more than one complaint in the past or a single complaint against multiple recipients. None of the essential terms used in § 108(t) to the 2018 OCR Manual is defined, such as the number of past complaints that constitute a “pattern,” the time frame covered, or the
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threshold for a finding of “unreasonable burden.” As a result, OCR can articulate no rational basis for dismissing a complaint based upon §108(t).
84. This ban negatively affects the rights of Plaintiffs and their members, and substantively changes the prior rule, by precluding legitimate claims of illegal discrimination by educational entities, submitted by persons who have suffered the discrimination.
85. To the extent that the ban is intended to preserve agency resources, DOE has provided the public with no evidence that agency resources are being over-used as a result of multiple meritorious discrimination claims from a single complainant or group. The 2015 OCR Manual already permitted OCR to dismiss complaints that did not allege illegal discrimination, were duplicative of other claims, or were part of a pattern of meritless complaints, and to refuse review of complaints with procedural defects. Those provisions already reduced OCR’s workload by allowing OCR to dismiss 58% of the complaints it received in fiscal year 2016. Department of Education Office for Civil Rights Fiscal Year 2018 Budget Request at Z-13, available at https://www2.ed.gov/about/overview/budget/budget18/justifications/z-ocr.pdf (last visited May 30, 2018).
86. In addition, Congress appropriated an increase of $8.5 million for DOE OCR for fiscal year 2018, for a total annual budget of $117,000,000. Consolidated Appropriations Act of 2018, Public Law No: 115-141 (March 23, 2018). This appropriation was over $10 million more than DOE requested. Department of Education Office for Civil Rights Fiscal Year 2018 Budget Request at Z-7, available at https://www2.ed.gov/about/overview/budget/budget18/justifications/z-ocr.pdf (last visited May 30, 2018).
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87. There is no rational basis for assuming that a claim is meritless or unworthy of investigation simply because it was submitted by a party who has submitted other meritorious claims in the past or has filed against multiple violators. Because there is no rational basis for the assumptions underlying §108(t) of the 2018 OCR Manual, its adoption was arbitrary or capricious, or both.
88. Plaintiffs are entitled to a declaratory judgment that § 108(t) of the 2018 OCR Manual described in this Complaint is arbitrary and capricious and violates Chapter 5 of the APA. Plaintiffs are entitled to an order vacating § 108(t) and enjoining the DOE and OCR officials, as named in this suit, from implementing or enforcing it.
COUNT III: Violation of 5 U.S.C. Chapter 5, §§ 551, et seq.: Failure to comply with notice and comment requirements (for Injunctive and Declaratory Relief)
89. Plaintiffs repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
90. This Court is empowered by 5 U.S.C. §§ 702 and 706 to hold unlawful and set aside final agency action that the Court finds to have been adopted without observance of procedure required by law.
91. This Court is empowered by 28 U.S.C. § 2201 to declare the rights of Plaintiffs and other interested parties regarding the issues presented in this Complaint.
92. DOE and OCR have violated the APA, 5 U.S.C. Chapter 5, §§ 551, et seq., by adopting § 108(t) of the 2018 OCR Manual and eliminating the right to appeal without complying with the notice and comment requirements of the APA rule-making provisions.
93. None of the three 2018 OCR Manual changes is merely an interpretative rule, a general statement of policy, or a rule of agency organization, procedure, or practice. The
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Case 1:18-cv-01568-TDC Document 1 Filed 05/31/18 Page 23 of 25 changes shift and affect rights and interests of complainants, and make substantive amendments to prior rules.
94. No public notice of these new rules was provided to interested persons, and interested persons were given no opportunity to provide comment on them before they were adopted. No explanation, reason or rationale was provided for the unilateral adoption of these changes.
95. Plaintiffs have been injured in that the DOE and OCR have adopted rules that bar investigation of potentially legitimate complaints of violations of the DOE’s non-discrimination statutes, and eliminate a right to appeal a closure of a complaint for insufficient evidence, without Plaintiffs, Plaintiffs’ members, or other members of the public having an opportunity to provide the DOE with their considered and experienced views on the proposed action. As a result, some legitimate discrimination claims will be precluded because DOE did not consider all available views and comments on the proposed changes.
96. Plaintiffs are entitled to a declaratory judgment that the three changes in the 2018 OCR Manual described in this Complaint were adopted without compliance with Chapter 5 of the APA, and are, therefore, illegal.
97. Plaintiffs are entitled to an order vacating § 108(t) of the 2018 OCR Manual and reinstating its appeals process, enjoining the DOE and OCR officials, as named in this suit, from implementing those changes, and, requiring them, before attempting to adopt any similar provisions, to comply with the notice and comment requirements of the APA, 5 U.S.C. Chapter 5, §§ 551, et seq.
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PRAYER FOR RELIEF WHEREFORE, Plaintiffs the National Federation of the Blind, Council of Parent Attorneys and Advocates, and National Association for the Advancement of Colored People respectfully request that this Court enter a judgment in their favor, and against Defendants, and:
a) Declare that Defendants’ adoption of § 108(t) in the 2018 OCR Manual was not in accordance with law and was beyond statutory and regulatory authority, in violation of the Administrative Procedure Act;
b) Declare that Defendants’ adoption of § 108(t) in the 2018 OCR Manual was arbitrary, or capricious, or both, in violation of the Administrative Procedure Act;
c) Declare that Defendants’ adoption of § 108(t) and the elimination of the 2015 OCR Manual § 303(a) appeal right in the 2018 OCR Manual without complying with notice and comment requirements violated the Administrative Procedure Act;
d) Vacate and set aside the challenged provisions of the 2018 OCR Manual, pursuant to 5 U.S.C. § 702;
e) Preliminarily and permanently enjoin Defendants, their agents, servants, employees, attorneys, and all persons in active concert or participation with them, from acting in accordance with implementing § 108(t) of the 2018 OCR Manual, and from denying the right to appeal a dismissal of a claim for insufficient evidence;
f) Preliminarily and permanently enjoin Defendants to comply with DOE regulations and the notice and comment requirements of the Administrative Procedure Act in the development of any provisions replacing the vacated provisions of the Manual;
g) Award Plaintiffs their reasonable fees, costs, and expenses, including attorneys’ fees, pursuant to 28 U.S.C. § 2412; and
h) Order such other and further relief that this Court may deem just and proper.
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Case 1:18-cv-01568-TDC Document 1 Filed 05/31/18 Page 25 of 25 Respectfully submitted,

Dated: May 31, 2018

__________/s/ _ Eve L. Hill (Fed. Bar No.: 19938) Brooke E. Lierman (Fed. Bar No. 17879) BROWN GOLDSTEIN & LEVY, LLP 120 East Baltimore Street, Suite 1700 Baltimore, Maryland 21202 T: (410) 962-1030 F: (410) 385-0869 ehill@browngold.com blierman@browngold.com
Attorneys for Plaintiffs

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 Case 1:18-cv-01568-TDC Document 58 Filed 08/21/19 Page 1 of 22

UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND

THE NATIONAL FEDERATION OF THE BLIND, THE COUNSEL OF PARENT ATTORNEYS AND ADVOCATES, INC. and NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, INC.,
Plaintiffs,
v.
UNITED STATES DEPARTMENT OF EDUCATION, BETSY DEVOS, Secretary of Education, and KENNETH L. MARCUS, Assistant Secretary for Civil Rights,
Defendants.

Civil Action No. TDC-18-1568

MEMORANDUM OPINION Plaintiffs The National Federation of the Blind ("NFB"), The Council of Parent Attorneys and Advocates, Inc., ("COPAA"), and National Association for the Advancement of Colored People, Inc. ("NAACP") have filed this civil action challenging the March 5, 2018 issuance of a new United States Department of Education ("DOE"), Office for Civil Rights, Case Processing Manual ("the March 2018 Manual"), which allegedly eliminated certain substantive rights of complainants that the Office for Civil Rights is designed to protect. Plaintiffs assert three causes of action for injunctive and declaratory relief under the Administrative Procedure Act ("AP A"):
that the adoption of the March 2018 Manual was (1) arbitrary and capricious, 5 U.S.C. S 706(2)(A) (2012); (2) procedurally improper, 5 U.S.C. S 706(2)(D); and (3) not in accordance with law, 5

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U.S.C. S 706(2)(C). Now pending before the Court is Defendants' Motion to Dismiss. Upon

review ofthe submitted materials, the Court finds that no hearing is necessary. See D. Md. Local

R. 105.6. For the reasons set forth below, the Motion will be GRANTED, and the Amended

Complaint will be DISMISSED WITHOUT PREJUDICE.

BACKGROUND

The mission of the DOE Office for Civil Rights ("OCR") is "to ensure equal access to

education and to promote educational excellence through vigorous enforcement of civil rights in

our nation's schools." Am. CompI. ~ 2, ECF No. 38 (quoting

https://www2.ed.gov/about/offices/list/ocr/aboutocr.html).

OCR is responsible for enforcing

certain civil rights statutes including Title VI of the Civil Rights Act of 1964,42 U.S.C. SS 2000d-

2000d-7 (2012), which prohibits discrimination on the basis of race, color, or national origin by

recipients of federal financial assistance, and Section 504 of the Rehabilitation Act of 1973, 29
U.S.C. S 794 (2012), which prohibits discrimination on the basis of disability by recipients of

federal financial assistance. To fulfill its mission, OCR authorizes anyone who believes that an

educational institution that receives federal financial assistance is discriminating on the basis of

race, color, national origin, sex, disability, or age to file a complaint and have it reviewed by OCR.

Certain types of complaints, including those alleging disparate impact discrimination on the basis

of race, can be advanced only by the federal government.

In 2015, OCR issued a Case Processing Manual ("the 2015 Manual") which adopted

"procedures to promptly and effectively investigate and resolve complaints, compliance reviews

and directed investigations to ensure compliance with the civil rights laws enforced by OCR."

Am. CompI. ~ 46 (quoting the 2015 Manual). Then, on March 5, 2018, without providing notice

or opportunity to comment, DOE issued a revised manual, the March 2018 Manual, which

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Case 1:18-cv-01568-TDC Document 58 Filed 08/21/19 Page 3 of 22
superseded the 2015 Manual and contained new provisions requiring mandatory dismissal of certain complaints and eliminating the right of complainants to appeal determinations by OCR to the Enforcement Office Director.
On May 31, 2018, Plaintiffs filed the instant action asserting that the changes implemented through the March 2018 Manual violated the APA. Originally, Plaintiffs challenged three rule changes: (l) the automatic dismissal of any complaint of illegal discrimination if it is part of "a pattern" of complaints by an individual complainant against multiple recipients, contained in section 108(t) of the March 2018 Manual; (2) the automatic dismissal of any complaint against multiple recipients if OCR, in its sole judgment, determines that investigating that complaint would place an "unreasonable burden" on OCR's resources, also contained in section 108(t) of the March 2018 Manual; and (3) the elimination of complainants' right to appeal OCR findings of insufficient evidence.
At the time of the filing of the original Complaint, Plaintiffs alleged that they had suffered and continued to suffer the diversion of their resources to "identify, inform and advise their members about, and respond to Defendants' unlawful actions in adopting the challenged provisions ofthe [March] 2018 OCR Manual." Compl.,-r 26, ECF No. 1. They also alleged that several of their members had filed complaints that had been dismissed or were subject to imminent dismissal pursuant to section 108(t), and that absent injunctive relief, they would continue to have to divert resources to navigating the new complaint requirements, and many of their members' complaints and appeals would be dismissed without an adequate remedy in an alternative forum.
On August 29,2018, before any substantive proceedings had taken place, the Court held a case management conference at the parties' request, during which the parties sought additional time to determine whether they would be able to resolve this matter outside of litigation. The
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Case 1:18-cv-01568-TDC Document 58 Filed 08/21/19 Page 4 of 22
request was premised, in part, on the fact that since the filing of the initial Complaint, Kenneth L. Marcus had been appointed as Assistant Secretary of Education for Civil Rights and had stated that he intended to revise the March 2018 Manual to delete section 108(t) and establish a new appeals process. On September 28, 2018, and again on November 5, 2018, the parties reported that they were engaged in productive settlement negotiations and requested a stay of all deadlines until November 19,2018 to continue to work to resolve the case.
Then, on November 19, 2018, the parties notified the Court that settlement discussions had broken down when Defendants informed Plaintiffs' counsel that they were no longer willing to offer any stipulation or agreement to resolve the matter and instead planned to release a revised OCR Case Processing Manual later that day, which could render Plaintiffs' requests for relief moot. Indeed, effective November 19,2018, DOE issued the new manual ("the November 2018 Manual"), which eliminated section 108(t) and reinstated an appeals process. The next day, Plaintiffs sought leave to file an Amended Complaint and a Motion for a Preliminary Injunction to add allegations that Defendants were also using section 108(k) of the March 2018 Manual to dismiss complaints on the basis that a similar complaint filed by another individual had been previously dismissed pursuant to section 108(t).
On November 29,2018, the Court held another case management conference, during which the parties vigorously disputed whether the case was moot in light of the issuance of the November 2018 Manual. The Court granted Plaintiffs leave to file an Amended Complaint and a Motion for a Preliminary Injunction and also granted Defendants leave to file a Motion to Dismiss. Plaintiffs ultimately notified the Court that they did not intend to file a Motion for a Preliminary Injunction after all.
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Case 1:18-cv-01568-TDC Document 58 Filed 08/21/19 Page 5 of 22
On December 3, 2018, Plaintiffs filed the operative Amended Complaint. The only substantive change to the Amended Complaint was the addition of a challenge to section 108(k) of the March 2018 Manual. Section 108(k) requires the dismissal of a complaint if filed by any complainant against the same recipient, raising the same or similar allegations based on the same operative facts, that were made in an earlier complaint previously dismissed based on section 108(t). Plaintiffs challenge section 108(k) only to the extent that it perpetuates dismissals on the basis of section 108(t).
Notably, Plaintiffs do not mention the issuance of the November 2018 Manual in their Amended Complaint. The Amended Complaint also does not amend or supplement any of Plaintiffs' allegations relating to standing in light of the issuance of the November 2018 Manual. Rather, it asserts three separate but related challenges to the adoption of the March 2018 Manual, specifically, the inclusion of section 108(t) and section 108(k) to the extent it relies on section 108(t), and the deletion of a provision for appeals of OCR determinations. Count I alleges that the adoption of the March 2018 Manual was not in accordance with law, in violation of 5 U.S.C. ~ 706(2)(C). Count II alleges that the adoption of the March 2018 Manual was arbitrary and capricious, in violation of 5 U.S.C. ~ 706(2)(A). Count III alleges that the adoption of the March 2018 Manual, including the provision rescinding the appeals process, was procedurally improper because it was issued without fulfilling the notice and comment requirements of the APA, in violation of 5 U.S.C. ~ 706(2)(D).
DISCUSSION In their Motion, Defendants assert that: (1) Plaintiffs lack standing under the operative Amended Complaint; (2) Counts I and II of the Complaint are moot; (3) Plaintiffs have an adequate private remedy against the recipients of federal funding named in their OCR complaints such that
5

Case 1:18-cv-01568-TDC Document 58 Filed 08/21/19 Page 6 of 22

the DOE is not subject to suit under the APA; and (4) the elimination of the opportunity to appeal

is a rule of agency practice or procedure not subject to the APA's notice and comment requirement.

The first two arguments are jurisdictional and brought pursuant to Federal Rule of Civil Procedure

12(b)(I); the second two arguments are non-jurisdictional and brought pursuant to Rule 12(b)(6).

Because the Court finds that Plaintiffs' allegations in the Amended Complaint are insufficient to

establish standing, it cannot and does not address Defendants' non-jurisdictional arguments for

dismissal.

I.

Legal Standard

Defendants' arguments that Plaintiffs lack standing and that certain claims are moot are

governed by Federal Rule of Civil Procedure 12(b)(l) because a plaintiffs personal stake in the

litigation-standing-and the existence of a live case or controversy-mootness-are elements of

subject matter jurisdiction. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,

528 U.S. 167, 180 (2000) (stating that "the Constitution's case-or-controversy limitation on federal

judicial authority, Art. III, S2, underpins both our standing and our mootness jurisprudence"). The

plaintiff has the burden to show that subject matter jurisdiction exists. Evans v. B.F Perkins Co.,

Div. of Stand ex Int'l Corp., 166 F.3d 642, 647 (4th Cir. 1999). Rule 12(b)(l) allows a defendant

to move for dismissal when it believes that the plaintiff has failed to make that showing. When a

defendant asserts that the plaintiff has failed to allege facts sufficient to establish subject matter

jurisdiction, the allegations in the complaint are assumed to be true under the same standard as in

a Rule 12(b)(6) motion, and "the motion must be denied if the complaint alleges sufficient facts to

invoke subject matter jurisdiction." Kernsv. United States, 585 F.3d 187, 192 (4th Cir. 2009).

When a defendant asserts that facts outside of the complaint deprive the court of jurisdiction, the

Court "may consider evidence outside the pleadings without converting the proceeding to one for

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Case 1:18-cv-01568-TDC Document 58 Filed 08/21/19 Page 7 of 22
summary judgment." Velasco v. Gov't of Indonesia, 370 F.3d 392,398 (4th Cir. 2004); Kerns, 585 F.3d at 192. The court should grant a Rule 12(b)(1) motion based on a factual challenge to subject matter jurisdiction "only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Evans, 166 F.3d at 647 (quoting Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). II. Standing
Plaintiffs pursue two theories of standing: organizational standing and associational standing. Under either theory, a plaintiff establishes standing by demonstrating (1) a "concrete and particularized" injury that is "actual or imminent," (2) "fairly traceable to the challenged conduct," (3) and "likely to be redressed by a favorable judicial decision." Hollingsworth v. Perry,
133 S. Ct. 2652, 2661 (2013); Covenant Media of s.c., LLC v. City of N Charleston, 493 F.3d
421,428 (4th Cir. 2007). For organizational standing, the organization suffers an injury-in-fact when "a defendant's actions impede its efforts to carry out its mission." Lane v. Holder, 703 F.3d 668, 674 (4th Cir. 2012). For associational standing, an organization must demonstrate that (1) one or more of its members would have standing to sue as an individual; (2) "the interests it seeks to protect are germane to the organization's purpose"; and (3) "neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Hunt v. Washington State Apple Advert. Comm 'n, 432 U.S. 333, 343 (1977); see Lujan v. Defenders of Wildlife, 504 U.S. 555, 563 (1992) (stating that a single member with standing in his or her own right is sufficient to establish that an organization has standing).
Standing must be established for each claim. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332,352 (2006). The presence of one plaintiff with standing renders a claim justiciable. Bostic v. Schaefer, 760 F.3d 352,370-71 (4th Cir. 2014). For claims involving a statutory cause of action,
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Case 1:18-cv-01568-TDC Document 58 Filed 08/21/19 Page 8 of 22
a plaintiff must also have interests that fall within the "zone of interests protected by the law invoked." Lexmark Int'l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1388 (2014). Finally, and particularly important here, standing is evaluated at the time the operative complaint was filed, which in this case was December 3, 2018, the date of the Amended Complaint. See Rockwell Int'l Corp. v. United States, 549 U.S. 457, 473-74 (2007) (holding that "when a plaintiff files a complaint in federal court and then voluntarily amends the complaint, courts look to the amended complaint to determine jurisdiction"); see also Young v. City of Mount Rainier, 238 F.3d 567,571 (4th Cir. 2001) (stating that "an amended pleading ordinarily supersedes the original and renders it of no legal effect"); Daniels v. Arcade, L.P., 477 F. App'x 125,130-31 (4th Cir. 2012) (evaluating standing based on the amended complaint, not the original complaint).
Defendants raise two arguments for why Plaintiffs lack standing through either organizational standing or associational standing. First, they argue that at no point in the case have Plaintiffs alleged a sufficiently concrete and particularized injury, such that Plaintiffs never had standing to bring this lawsuit and no amendment could cure that deficiency. Second, they assert that even if Plaintiffs have alleged a cognizable past injury, by the time of the filing of the Amended Complaint, in light of the rescission of the challenged provisions of the March 2018 Manual, such past injury is not redressable through injunctive or declaratory relief. Under this argument, Defendants contend that Plaintiffs effectively gave up their standing by amending their Complaint after the March 2018 Manual was replaced by the November 2018 Manual and failing to allege any new, ongoing, or imminent injuries under the newly enacted regulatory regime. As discussed below, the Court agrees with the second but not the first argument.
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Case 1:18-cv-01568-TDC Document 58 Filed 08/21/19 Page 9 of 22
A. Concrete and Particularized Injury The Amended Complaint sufficiently alleges a concrete and particularized injury fairly traceable to the challenged conduct under both theories of organizational standing and associational standing. For direct organizational injury, an "organization must allege that discrete programmatic concerns are being directly and adversely affected" by the challenged action, see National Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 1433 (D.C. Cir. 1995), as opposed to that there has merely been a diversion of resources based on the "organization's own budgetary choices," see Lane, 703 F.3d at 675. Defendants argue that Plaintiffs have alleged only an abstract "interest in 'seeing' the law obeyed or a social goal furthered," which does not constitute a sufficiently discrete injury to establish organizational standing. Nat'l Taxpayers Union, 68 F.3d at 1433. Plaintiffs respond that, as alleged in the Amended Complaint, each oftheir organizations' missions include equal access to education, and central to their missions is that each maintains a regular practice of filing complaints with OCR on behalf of members or others who have been deprived of educational opportunities based on, as relevant here, vision impairment, disability, race, or ethnicity. Specifically, NFB's mission is "the complete integration of blind individuals into society on a basis of equality." Am. Compl. ~ 9. To further this mission, NFB regularly files OCR complaints on behalf of its members "to ensure that the blind receive equal access to the opportunities, facilities, services, programs and activities offered by public schools, institutions of higher education, and other recipients of federal financial assistance from DOE." Id. COP AA is a national organization of parents of children with disabilities, their attorneys, and their advocates, whose mission is to secure appropriate educational services for children with disabilities. To further this mission, "COP AA frequently advises and trains parents, attorneys, and advocates about filing complaints with the DOE OCR" and "helps parents and advocates file administrative
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Case 1:18-cv-01568-TDC Document 58 Filed 08/21/19 Page 10 of 22
complaints on behalf of children with disabilities." !d. ~ 13. Finally, the NAACP's mission is to "ensure the political, educational, social, and economic equality of rights of all persons and to eliminate race-based discrimination." Id. ~ 18. To do so, the NAACP and its state and local units file OCR complaints regularly and educate their members about laws and regulations relevant to equal educational opportunity.
To further each of these missions, after OCR implemented the challenged provisions of the March 2018 Manual, Plaintiffs expended resources to "identify, inform and advise their members about, and respond to Defendants' unlawful actions." Id. ~ 26. Specifically, Plaintiffs allege that each organization was forced to go above and beyond its normal activities to reach out to and assist members whose OCR complaints or appeals might be dismissed under the March 2018 Manual in order to ensure that each member's claim was still investigated and resolved, at least in some forum. The NAACP has asserted that the identified provisions of the March 2018 Manual would require it to expend resources to retrain its state and local units on how to file complaints with OCR, how to prevent meritorious cases from being dismissed, and how to find alternative, more workable mechanisms to address discrimination outside of the OCR process. Likewise, after the issuance of the March 2018 Manual, COPAA expended resources to update its training materials, to retrain members, and to alter its recommendations and advice on the efficacy of an OCR complaint, which required additional expenditures on staff and diverted resources from direct assistance to members. Through such activities, the organizations have expended time and resources that they otherwise could have dedicated to their other efforts to secure equal access to education.
Such efforts are distinct from those of the plaintiffs in National Taxpayers Union and Lane, the two cases primarily relied upon by Defendants. Unlike in National Taxpayers Union, Plaintiffs
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Case 1:18-cv-01568-TDC Document 58 Filed 08/21/19 Page 11 of 22
here allege that they have engaged in activities, and thus expended resources, beyond those "normally expended to review, challenge, and educate the public" about policy changes. Nat'l Taxpayers Union, 68 F.3d at 1434. Plaintiffs are not merely in the business of advising the public about potential changes in the law; rather, they affirmatively engage in advising specific members on whether and how to file an OCR complaint and in fact file such complaints in their own names and on behalf of their members. As discussed above, additional resources had to be expended to enable them to properly advise specific members about their complaints or potential complaints. Plaintiffs also had to make the same adjustments to their own complaint-filing processes, since under DOE regulations, Plaintiffs are permitted to and regularly do file complaints against educational institutions that are engaging in discrimination.
In Lane, an organization challenging a federal restriction on interstate transfers of handguns simply alleged that its "resources [were] taxed by inquiries into the operation and consequences of interstate handgun transfer provisions." Lane, 703 F.3d at 675. Although the court held that an injury to an organization generally does not arise from a decision to expend resources on member education or litigation in response to legislation or policy action, see id., Plaintiffs are not asserting that their injury consists of the cost of this lawsuit or general member education about the March 2018 Manual. Rather, this case is more akin to Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), in which the United States Supreme Court had held that an apartment complex owner's racial steering practices had "perceptibly impaired" the fair housing organization plaintiffs "ability to provide counseling and referral services for low- and moderate-income homeseekers." Id. at 379; see Lane, 703 F.3d at 674-75 (distinguishing Havens). Like the fair housing organization in Havens, Plaintiffs have alleged a need to expend more resources than usual to assist their members in a specific fashion that is core to their mission of advancing equal access to
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education, and have asserted that it will be more burdensome to do so because the March 2018 Manual creates additional obstacles to a successful OCR complaint, to the point that Plaintiffs must consider advising members on more expensive alternative complaint mechanisms such as f~derallawsuits. See Havens, 455 U.S. at 379; Casa De Maryland v. Us. Dep't of Homeland Sec., 284 F. Supp. 3d 758, 771 (D. Md. 2018) (holding in a case involving the proposed rescission ofthe Deferred Action for Childhood Arrivals ("DACA") program that "[t]he fact that one of their primary functions has been assisting their members with tens of thousands of DACA initial renewal applications is sufficient for standing in and of itself') rev'd in part on other grounds, 924 F.3d 684 (4th Cir. 2019). Thus, Plaintiffs have organizational standing on Counts I and II, which allege that the issuance of the March 2018 Manual was arbitrary and capricious and contrary to law, in violation of the APA.
As for Count III, alleging that the March 2018 Manual was issued without compliance with the procedural requirement of allowing for notice-and-comment rulemaking, Plaintiffs have alleged more than a mere "procedural right in vacuo" untethered to a concrete injury. Summers v. Earth Island Instil., 555 U.S. 488, 496 (2009). Deprivation of a procedural right-in this case, the right of the Plaintiff organizations to submit comments on the March 2018 Manual prior to its adoption-ean constitute an injury for purposes of standing when it is tied to a specific resultant harm. See id. at 496-97. As detailed above, the specific resultant harm alleged by Plaintiffs is not merely the dismissal of their members' complaints, but also the diversion of resources by the Plaintiff organizations to assist their members under the March 2018 Manual's regime. Had Plaintiffs been permitted to participate in a notice-and-comment process, they may have been able to prevent OCR from enacting the challenged provisions of the March 2018 Manual such that they would not have had to engage in such costly and time-consuming efforts.
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Under these circumstances, the Court finds that Plaintiffs have adequately alleged that they suffered a concrete and particularized injury in the form of a diversion of resources and frustration of their mission in the time period after the March 2018 Manual was adopted and implemented but before the November 2018 Manual was adopted. See Havens, 455 U.S. at 379. This injury is traceable to Defendants because, had they not adopted the March 2018 Manual, Plaintiffs would not have suffered this injury.
For purposes of associational standing, at least NFB and COPAA have identified specific members who suffered or were at risk of suffering a concrete and particularized injury while the March 2018 Manual was in effect but before the November 2018 Manual was enacted. For example, the Amended Complaint identifies two NFB members, Joy and Paul Orton, who filed a complaint with OCR in 2016 on behalf of their child, which was then resolved through an OCR resolution agreement. In 2018, the Ortons' child suffered another instance of discrimination, and the Ortons had to file another OCR complaint, which was at risk of dismissal under the March 2018 Manual's "provision requiring dismissal of complaints by individuals who have filed previously." Am. Compl. ~ 11. Similarly, the Amended Complaint alleges that OCR complaints filed by COPAA member Katie Kelly, an attorney for students with disabilities, were subject to dismissal under the March 2018 Manual. The Amended Complaint also states that several COP AA members complaints were actually dismissed and appeals denied pursuant to the March 2018 Manual. The Declaration of Denise Marshall, Executive Director of COP AA, specifically identifies one of these members as Marcie Lipsitt, who had over 600 of her complaints dismissed on the basis of the March 2018 Manual.
These complaint dismissals are more than just a procedural injury because Plaintiffs' members cannot simply re-file their complaints in federal court. Mark Riccobono, the President
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ofNFB, explains that the OCR complaint process "presents a faster and lower-cost option to filing complaints in federal court," and most ofNFB's members "cannot afford to hire an attorney and pay out-of-pocket for the fees and expenses oflitigation." Riccobono Decl. ~ 14, ECF No. 50-1. Even those members who can afford to litigate their complaints in federal court face higher costs of doing so, which is a cognizable injury. In two comparable cases in which NFB was involved, the one filed with OCR cost just over $70,000 and the one filed in federal court cost over $400,000.
Where the present case, which challenges the provisions of the March 2018 Manual under the AP A, plainly does not require the participation of these specific members, see Retail Indus. Leaders Ass'n v. Fielder, 475 F.3d 180,187 (4th Cir. 2007), the Court finds that at leastNFB and COP AA have sufficiently alleged associational standing because one or more of their members suffered a concrete and particularized injury during the time period after the March 2018 Manual was adopted.
B. Redressability Although they have shown a concrete and particularized injury, Plaintiffs have failed to plead sufficient facts to establish the third requirement for standing, a likelihood that the injury can be redressed by a favorable ruling providing injunctive or declaratory relief. See Comite de Apoyo a los Trabajadores Agricolas (CATA) v. Us. Dep't of Labor, 995 F.2d 510, 513 (4th Cir. 1993) ("By itself, a declaratory judgment cannot be the redress that satisfies the third standing prong. Rather, plaintiffs must identify some further concrete relief that will likely result from the declaratory judgment."). In City of Los Angeles v. Lyons, 461 U.S. 95 (1983), the Supreme Court held that "[p last exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects." Id. at 102. In Lyons, the plaintiff, who had been subjected to a chokehold by the police during a traffic
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stop, sought damages and an injunction barring the police from using the same type of chokehold in the future. Id. at 105. The Court held that Lyons had standing to seek damages, but that he had failed to demonstrate that an injunction would redress his past injury where there was no finding that he "faced a real and immediate threat of again being illegally choked," where choking under the circumstances present at the time of the past incident was not permitted by police department policy. Id. at 105-106, 110. The United States Court of Appeals for the Fourth Circuit reached a similar conclusion in a class action by a group of patients at a hospital operated by the United States Department of Veterans Affairs, finding that patients who had their information compromised due to a data breach in the past lacked standing to seek a broad injunction under the APA ordering the hospital to comply with the safeguards of the Privacy Act because there was no imminent threat that their information would be compromised again in the future. See Beck v. McDonald, 848 F.3d 262, 277 -78 (4th Cir. 2017). In another case, the United States Court of Appeals for the Second Circuit found that a nonprofit organization challenging a law against possession of a certain kind of knife lacked standing to seek declaratory and injunctive relief where it had alleged only a past diversion of resources in response to the challenged practice but no ongoing risk of injury. See Knife Rights, Inc. v. Vance, 802 F.3d 377,388-89 (2d Cir. 2015).
Here, in asserting organizational standing, Plaintiffs have alleged only injuries premised on the applicability of the March 2018 Manual. Even in the declarations attached to their memorandum in opposition to the Motion ("Opposition"), the leaders of each Plaintiff organization describe the harm in this manner: "[T]he changes to the March 2018 [Manual], as articulated in the Amended Complaint, caused and, if they remained in effect or were reinstated, would continue to cause harm to the NFB to our members." Riccobono Decl. ~ 9; see also Goode Decl. ~ 14, ECF No. 50-2; Marshall Decl. ~ 12, ECF No. 50-3. However, as of the date of the Amended Co~plaint,
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December 3, 2018, the March 2018 Manual and its challenged provisions were no longer in effect. Where Plaintiffs have not alleged in the Amended Complaint any ongoing injury that remains despite the rescission of the March 2018 Manual, or any new injury arising from the November 2018 Manual, the operative complaint requests prospective relief for past injuries only and provides no specific allegations that there is an imminent risk of the reinstatement of the March 2018 Manual. Such a risk is neither stated in the Amended Complaint nor supported with any factual allegations. In the absence of any particularized factual allegations establishing a likelihood of reinstatement of the challenged provisions, or ongoing injury arising from the now rescinded March 2018 Manual, this risk is too speculative to confer standing to seek injunctive and declaratory relief. See Bryant v. Cheney, 924 F.2d 525, 529 (4th Cir. 1991) (finding that a plaintifflacked standing to seek an injunction against future adverse employment actions that were not likely to recur where his record had been expunged and he had since been reassigned).
The Court likewise finds that Plaintiffs' claim of associational standing fails on the redressability prong. In the Amended Complaint, Plaintiffs allege facts supporting the conclusion that specific members' complaints were at risk of dismissal because of the provisions of the March 2018 Manual. For example, while the March 2018 Manual was in effect, NFB members Joy and Paul Orton had filed a second complaint against their child's school district that was subject to dismissal under section 108(t). An imminent injury is sufficient to confer standing. See Lujan, 504 U.S. at 560. However, once Plaintiffs filed their Amended Complaint, the Ortons' injurywhich had yet to occur-was no longer imminent because the March 2018 Manual was no longer in effect. Although Plaintiffs have also alleged that certain members ofCOPAA actually had their OCR complaints or appeals dismissed as a result of the March 2018 Manual, they have not asserted in the Amended Complaint how the injury arising from such dismissals is redressable by an
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injunction setting aside the March 2018 Manual when it is no longer in effect. In fact, the Amended Complaint provides no allegations stating whether and how the rescinded March 2018 Manual continues to have ongoing negative effects on such members with dismissed complaints or appeals, nor does it explain how a prospective injunction would remedy such negative effects, given that OCR has formally rescinded the policy which harmed them.
That is not to say, however, that no redressable injury could be plausibly alleged. In their Opposition, Plaintiffs assert that Defendants have not demonstrated that their actions since the filing ofthis lawsuit have fully addressed the alleged violations. For example, they argue that the "directed investigations" that OCR has committed to open based on complaints dismissed pursuant to section 108(t) have not yet occurred and do not appear to be nearly as robust as the complaintinitiated investigations to which these institutions would have been subject had the complaints not been dismissed. Moreover, they assert that under the November 2018 Manual, there is still a provision, now found at section 108(1), that mirrors section 108(k) and does not purport to limit the ability of OCR to dismiss complaints based on past dismissals under section 108(t) of the March 2018 Manual, even though section 108(t) is no longer in effect. Finally, they note that Defendants have not taken any action to reinstate appeals dismissed pursuant to the March 2018 Manual. Because Plaintiffs have identified facts that, if properly alleged, may establish that they continue to suffer an injury such that their claims are redressable through an injunction, the Court will dismiss the Amended Complaint for lack of standing without prejudice. III. Mootness
The Court also addresses Defendants' argument that Counts I and II of the Amended Complaint are moot, as this argument is also jurisdictional, and a finding of mootness would mean that any amendment to Plaintiffs' standing allegations would be futile because jurisdiction would still be lacking, at least as to Counts I and II.
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Article III of the Constitution limits the judicial power of the federal courts to actual
"Cases" and "Controversies." u.s. Const. art. III, S 2, cl. 1. "When a case or controversy ceases
to exist, the litigation is moot, and the court's subject matter jurisdiction ceases to exist also." s.c.
Coastal Conservation League v. Us. Army Corps of Eng'rs, 789 F.3d 475, 482 (4th Cir. 2015). A "case 'becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.'" Chafin v. Chafin, 133 S. Ct. 1017, 1023 (2013) (quoting Knox v. Servo Emps., 132 S. Ct. 2277, 2287 (2012)). Voluntary cessation of a challenged. practice does not necessarily render a case moot. Friends of the Earth, 528 U.S. at 189. The "heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness." Id. (internal alterations omitted). For this reason, "there are circumstances in which the prospect that a defendant will engage in (or resume) harmful conduct may be too speculative to support standing, but not too speculative to overcome mootness." Id. at 190; see also Lyons, 461 U.S. at 101, 109-110 (holding both that the plaintiffs allegations of imminent injury based on past harm was too speculative to confer standing to seek injunctive relief and that a citywide moratorium on police chokeholds did not moot an otherwise valid claim for injunctive relief because the moratorium was not permanent). This is one such case.
Defendants argue that the rescission of section 108(t) through the issuance of the November 2018 Manual, along with other actions they have taken to address the complaints dismissed under the challenged provisions of the March 2018 Manual, render this case moot. Upon the issuance ofthe November 2018 Manual, DOE did not formally reinstate all appeals or complaints dismissed under section 108(t) or 108(k). Rather, to address the dismissal of complaints under section 108(t) and 108(k), Defendant Marcus and Randolph Wills, Deputy Assistant Secretary of Education for
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Enforcement, stated in declarations that OCR has sent or will send letters to all complainants whose complaints were dismissed based on section 108(t) or 108(k) (pursuant to a prior 108(t) dismissal) between March 5, 2018 and November 19,2018, as well as to the recipients of those complaints, informing them that OCR would be initiating a "directed investigation" into the allegations by June 2019. As of April 26, 2019, some, but not all, of those directed investigations had been opened. To date, Defendants have not advised the Court whether those additional directed investigations were actually opened. Wills further stated that OCR will advise the complainants whose complaints were dismissed pursuant to sections 108(t) and 108(k) of the resolution of each of the directed investigations. If OCR finds insufficient evidence of a violation after those directed investigations, those specific complainants will be permitted to file new complaints against the same recipients.
According to Plaintiffs, these actions are insufficient to remedy prior dismissals pursuant to section 108(t) and section 108(k). First, Plaintiffs note that a statement in a letter that an investigation will be opened is different than an actual investigation, and there is no evidence in the record that directed investigations have actually been opened on all complaints dismissed under sections 108(t) and 108(k). Moreover, a review of the November 2018 Manual, currently in effect, reveals that the "directed investigations" promised in OCR's letters may not be the equivalent of a complaint-initiated investigation. The November 2018 Manual provides approximately 20 pages of procedures for complaint-initiated investigations, which require notice to and consent from the complainant, deadlines for acceptance of a resolution and negotiations, requirements for resolution letters and official findings by the agency communicated to the complainant and recipient, enforcement action procedures, and appeals. Directed investigations are covered by two paragraphs in the November 2018 Manual, which states in part:
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A directed investigation is an OCR-initiated process that allows OCR to address possible discrimination that is not currently being addressed through OCR's complaint compliance review or technical assistance activities. Depending on the circumstances, a directed investigation may include offering technical assistance to the recipient, and/or conducting an expe~ited investigation that may result in a resolution agreement that will ensure that recipients come into compliance with the requirements of the civil rights laws and regulations enforced by OCR.
November 2018 Manual S 402, Marcus Decl. Ex. D, ECF No. 49-5. Thus, the claim by Deputy
Assistant Secretary Wills that "these directed investigations are similar to complaint investigations in that the investigation and resolution options and procedures identified in the CPM for addressing complaints are also utilized for directed investigations" does not appear to be correct. Wills Supp. Decl. ~ 9, ECF No. 56-1. Whether they mirror or approximate a complaint-initiated investigation is entirely in the discretion of the agency. See id. Notably, none of Defendants' declarations promise that the directed investigations into recipients who were the subjects of dismissed complaints will actually incorporate the same procedures as those required for complaint-initiated investigations.
Further, although Deputy Assistant Secretary Wills has committed that section 108(1) of the November 2018 Manual will not be used to bar a complainant whose complaint was dismissed pursuant to 108(t), reinvestigated through a directed investigation, and found to lack sufficient supporting evidence from refiling a formal complaint against the same recipient, that commitment leaves a notable gap. DOE has not committed that pursuant to section 108(1), a prior section 108(t) dismissal under the March 2018 Manual will not be used to bar a new complaint against the same recipient if filed by a different complainant. Indeed, section 108(1), like its predecessor section 108(k), sweeps more broadly and requires automatic dismissal of a "complaint filed by the complainant or someone other than the complainant against the same recipient [which] raises the same or similar allegations(s) based on the same operative facts that was previously dismissed or
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closed by OCR." November 2018 Manual S 108(1) (emphasis added). Thus, where a complaint
dismissed under section 108(t) of the March 2018 Manual can still result in the dismissal of a later filed complaint, the impact of that provision endures.
In summary, the replacement of the March 2018 Manual with the November 2018 Manual has not eliminated all adverse effects. Defendants have not established that complaints dismissed under section 108(t) or section 108(k) of the March 2018 Manual have been fully reinstated; rather, they are being subjected to a different, less robust investigative process which, to date, mayor may not have been initiated for each such complaint. Dismissals under section 108(t) may still form the basis for a dismissal under section 108(1) of the November 2018 Manual. Finally, Defendants notably have not asserted mootness as to Count III, the only count which addresses the dismissal of appeals under the March 2018 Manual, likely because there is no evidence that any remedial action has been or will be taken to reinstate appeals dismissed under the March 2018 Manual. Thus, the Court finds that Plaintiffs' claims, including those relating to section 108(t) and 108(k) of the March 2018 Manual, are not moot. Accordingly, the Court need not address whether Defendants have, by replacing the March 2018 Manual with the November 2018 Manual, rendered the case moot by having "made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.'" Wall v. Wade, 741 F.3d 492, 497 (4th Cir. 2014) (quoting Friends of the Earth, 528 U.S. at 189).
The Court therefore finds that although Plaintiffs have not adequately alleged a redressable injury for purposes of organizational or associational standing, this case is not moot. Friends of the Earth, 528 U.S. at 190.
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IV. Failure to State a Claim Because the Court presently lacks jurisdiction over this case for lack of standing, it cannot
and does not address Defendants' other arguments for dismissal. See Steel Co. v. Citizens for a Better Env 't, 523 U.S. 83,94-95 (1998) (holding that a federal court may not hypothesize subject matter jurisdiction for purposes of deciding the merits); Ex Parte McCardle, 74 U.S. 506, 514 (1868) ("Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.").
Because the Court finds that Plaintiffs' lack of standing is a pleading deficiency that could plausibly be cured, the Court will dismiss the Amended Complaint without prejudice.

CONCLUSION For the foregoing reasons, Defendants' Motion to Dismiss is GRANTED. The Amended Complaint will be DISMISSED WITHOUT PREJUDICE. Any Motion for Leave to Amend the Complaint must be filed within 14 days of the date of this Order.

Date: August 19,2019

THEODORE . United States Distri

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 Case 1:18-cv-01568-TDC Document 63 Filed 10/03/19 Page 1 of 33

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND (Northern Division)

THE NATIONAL FEDERATION OF

*

THE BLIND

200 East Wells Street at Jernigan Place

*

Baltimore, MD 21230,

*

And

*

THE COUNCIL OF PARENT ATTORNEYS

AND ADVOCATES, INC.

*

8 Market Place, Suite 300

Baltimore, MD 21202,

*

And

*

NATIONAL ASSOCIATION FOR THE

*

ADVANCEMENT OF COLORED PEOPLE, INC.

4805 Mt. Hope Drive

*

Baltimore, MD 21215,

*

Plaintiffs,

*

v.

*

Civil Action No.: 1:18-cv-01568

U.S. DEPARTMENT OF EDUCATION

*

Lyndon Baines Johnson Dept. of Education Bldg.

400 Maryland Avenue, SW

*

Washington, D.C. 20202,

*

And

*

BETSY DEVOS

Secretary of Education

*

In Her Official Capacity

Lyndon Baines Johnson Dept. of Education Bldg. *

U.S. Department of Education

400 Maryland Avenue, SW

*

Washington, D.C. 20202,

*

And

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Case 1:18-cv-01568-TDC Document 63 Filed 10/03/19 Page 2 of 33

KENNETH L. MARCUS

*

Assistant Secretary for Civil Rights

In His Official Capacity

*

U.S. Dept. of Education,

Office for Civil Rights

*

Lyndon Baines Johnson Dept. of Education Bldg.

400 Maryland Avenue, SW

*

Washington, D.C. 20202-1100,

*

Defendants.

*

*

*

*

*

*

*

*

*

* *

*

*

* *

SECOND AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 1. COME NOW, Plaintiffs, The National Federation of the Blind, Inc., The Council of Parent Attorneys and Advocates, Inc., and National Association for the Advancement of Colored People, Inc., by and through their undersigned counsel and hereby bring this action against Defendants, U.S. Department of Education, Betsy DeVos (Secretary of Education), and Kenneth Marcus (Assistant Secretary for Civil Rights), in their official capacities, and in support thereof state as follows:
INTRODUCTION 2. The Office for Civil Rights (“OCR”) within the U.S. Department of Education (“DOE”) has a special mission: “to ensure equal access to education and to promote educational excellence throughout the nation through vigorous enforcement of civil rights.” https://www2.ed.gov/about/offices/list/ocr/aboutocr.html. This office serves “student populations facing discrimination and the advocates and institutions promoting systemic solutions to civil rights problems.” Id. 3. To fulfill its mission, OCR notes that “[a]n important responsibility is resolving complaints of discrimination.” Id. Complaints of discrimination can be filed by anyone who

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believes that an educational institution that receives federal financial assistance has discriminated against someone on the basis of race, color, national origin, sex, disability, or age. The victim himself does not need to file – instead, an advocate or organization can file on an individual’s behalf or on behalf of a group. The ability to file a complaint and have it thoroughly reviewed is integral to the mission of the OCR.
4. Indeed, some claims under the statutes enforced by DOE’s OCR, such as those alleging disparate impact discrimination, can only be enforced by the federal government. Alexander v. Sandoval, 532 U.S. 275 (2001) (finding that implementing regulation of Title VI of the Civil Rights Act of 1964 regarding disparate impact discrimination is only enforceable by the federal funding agencies).
5. Contrary to its mission and without any public notice, in March 2018, DOE summarily eliminated substantive rights of the very people it purports to serve by changing its Case Processing Manual to abdicate its basic duty to investigate legitimate complaints of discrimination by students and their parents.
6. Effective March 5, 2018, the DOE amended the U.S. Department of Education Office for Civil Rights Case Processing Manual (“March 2018 CPM”). The changes included new provisions to require mandatory dismissal of certain complaints and the elimination of the appeal rights of complainants.
7. Plaintiffs, on behalf of themselves and their members, filed suit challenging the dismissal and appeal provisions of the March 2018 CPM pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. Chapter 5, §§ 551 et seq. ECF No. 1. Defendants requested, and Plaintiffs did not oppose, two extensions to their deadlines for answering the complaint, and the parties jointly requested two extensions to engage in what seemed to be “productive”
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settlement negotiations. See ECF Nos. 18, 22, 25, 27. As a result, the deadline for answering the Complaint was extended from August 6, 2018 to November 19, 2018.
8. Defendants, through their counsel, on October 31, 2018, proposed that the parties enter into a stipulation pursuant to which Defendants would take steps to meet Plaintiffs’ settlement demands. Plaintiffs agreed to consider such a stipulation depending on the detailed commitments therein. Defendants’ Counsel agreed to draft a proposed stipulation for Plaintiffs’ review. On this basis, Plaintiffs agreed to join Defendants in requesting a two-week stay to allow Defendants to draft the stipulation, and allow the Parties to negotiate the details of the stipulation.
9. On November 15, 2018, with one business day remaining before the deadline for the parties’ final Joint Status Report to the Court, instead of providing the draft stipulation as discussed, Defendants’ counsel informed Plaintiffs’ counsel that they were withdrawing from settlement discussions and planned, among other things, to release a revised Case Processing Manual.
10. On November 19, 2018, DOE OCR issued a further revised Case Processing Manual (“November 2018 CPM”). The November 2018 CPM eliminated one of the provisions requiring dismissal of complaints (§ 108(t)) and included a new provision allowing for complainant appeals. The November 2018 CPM retained the provision (renumbered from § 108(k) to § 108(l)) requiring dismissals of new complaints if a prior complaint against the same recipient had been dismissed. These revisions did not adequately address the harm Plaintiffs experienced and continue to experience from the March 2018 CPM.
11. Because the challenged provisions of the March 2018 CPM violated the federal Administrative Procedure Act (“APA”), 5 U.S.C. Chapter 5, §§ 551, et seq., are contrary to OCR’s mission, and continue to harm Plaintiffs and their members, Plaintiffs, on their own behalf and on behalf of their members who are or may be victims of discrimination in the
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education system, ask the Court to (1) declare the amendments to the March 2018 CPM in violation of the law, (2) order Defendants to reinstate complaints and appeals it dismissed pursuant to the challenged provisions of the March 2018 CPM and November 2018 CPM, and (3) enjoin Defendants from adopting future policies similar to the challenged provisions of the March 2018 CPM.
PARTIES & JURISDICTION 12. The National Federation of the Blind, Inc. (“NFB”) is the oldest and largest national organization of blind persons. It is a 501(c)(3) non-profit corporation duly organized under the laws of the District of Columbia and headquartered at 200 East Wells Street at Jernigan Place, Baltimore, Maryland. It has approximately 50,000 members and affiliates in all 50 states, Washington, D.C., and Puerto Rico. The NFB and its affiliates are widely recognized by the public, Congress, executive agencies of state and federal governments, and courts as a collective and representative voice on behalf of blind Americans and their families. The organization promotes the general welfare of the blind by assisting the blind in their efforts to integrate themselves into society on terms of equality and by removing barriers that result in the denial of opportunity to blind persons in virtually every sphere of life, including education, employment, family and community life, transportation, and recreation. 13. The ultimate purpose of the NFB is the complete integration of blind individuals into society on a basis of equality. This objective includes the removal of legal, economic, and social discrimination. As part of its mission and to achieve these goals, the NFB actively pursues administrative complaints and litigation to ensure that the blind receive equal access to the opportunities, facilities, services, programs and activities offered by public schools, institutions of higher education, and other recipients of federal financial assistance from DOE. The NFB
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provides training for advocates and its members on the legal system and on filing complaints with the DOE OCR. The NFB has also itself filed complaints with OCR on behalf of its members in the past, has complaints pending with OCR at present, and expects to need to file complaints on behalf of its members in the future. For example, in 2009, the NFB filed several complaints with OCR and the Department of Justice against colleges and universities that were deploying inaccessible Amazon Kindle devices in classes. See https://archive.nfb.org/node/1129. As a result of these complaints, the DOE and Department of Justice reached resolution agreements with several colleges and universities prohibiting them from requiring, purchasing, or incorporating inaccessible electronic book readers in their curricula. See, e.g., https://www.ada.gov/case_western_univ.htm. The DOE and Department of Justice followed these resolutions with a “Dear Colleague Letter” to all college and university presidents explaining that Section 504 and the Americans with Disabilities Act prohibit the use of emerging technologies in the classroom if the technologies are inaccessible to students with disabilities. https://www2.ed.gov/about/offices/list/ocr/letters/colleague-20100629.html. DOE subsequently issued a Frequently Asked Questions document regarding the application of Section 504 to electronic book readers in elementary, secondary, and higher education. https://www2.ed.gov/about/offices/list/ocr/docs/dcl-ebook-faq-201105.html. However, the March 2018 CPM, by its terms, would have mandated that OCR reject this “pattern” of complaints and would have prevented the investigation of such a “pattern” of complaints if they were filed between March 5, 2018 and November 19, 2018.
14. NFB’s members have been and are illegally discriminated against by educational institutions that receive federal funding. Among the NFB’s members are individuals against whom persons and entities receiving federal financial assistance from the DOE have illegally
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discriminated in the provision of services. Many of the NFB’s members have filed complaints with OCR on behalf of themselves, on behalf of their children, or on behalf of others. Because discrimination against blind people, including blind children, is persistent and frequent, many of them have had to file more than one complaint. For example, NFB members Joy and Paul Orton of Alabama, filed a complaint with OCR in 2016 on behalf of their child, who is blind, alleging that their local school district was discriminating on the basis of disability. This meritorious complaint was resolved through a resolution agreement by OCR. However, an additional instance of discrimination subsequently arose, and they had to file another complaint with OCR, which was pending when the March 2018 CPM was put into effect. The March 2018 CPM’s provision requiring dismissal of complaints by individuals who have filed previously would have applied to them and would have interfered with their ability to advocate for their child’s civil rights.
15. Another example of an NFB member who filed multiple complaints is Noah Al Hadidi, who lives in Colorado. He filed a complaint with OCR about illegal discrimination and then, when teachers retaliated, filed a second complaint alleging retaliation. This second complaint would have been dismissed under the March 2018 CPM.
16. In addition, as part of its mission, the NFB periodically submits comments on federal agencies’ proposed rules and regulations to inform agencies about the impact of such proposals on the lives and rights of blind people. For example, in 2017, the NFB submitted comments in response to DOE’s request for comments regarding its evaluation of existing regulations pursuant to Executive Order 13777, Enforcing the Regulatory Reform Agenda. https://nfb.org/images/nfb/documents/pdf/nfb_response_ed_2017_os_0074.pdf.
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17. The Council of Parent Attorneys and Advocates, Inc. (“COPAA”) is a national not-for-profit organization of parents of children with disabilities, their attorneys, and their advocates. COPAA’s primary goal is to secure appropriate educational services for children with disabilities in accordance with federal law. COPAA provides resources, training, and information for parents, advocates, and attorneys to assist them in obtaining the equal opportunity for education such children are entitled to under the federal civil rights laws. COPAA frequently advises and trains parents, attorneys, and advocates about filing complaints with the DOE OCR, helps parents and advocates file administrative complaints on behalf of children with disabilities, helps parents and advocates find attorneys and legal resources as they advocate for their children’s legal rights, educates policy makers, including federal agencies, about the educational experiences of children with disabilities and their families, and educates COPAA members about developments in the federal civil rights laws and policies affecting the education of children with disabilities.
18. COPAA’s attorney members represent children with disabilities in civil rights matters, including complaints with the DOE’s OCR.
19. COPAA’s members have been and are illegally discriminated against by educational recipients of federal funding. For example, COPAA member Katie Kelly is a public interest lawyer in Florida who has filed complaints with OCR on behalf of students with disabilities and their parents to challenge discrimination under Section 504, and Titles VI and IX of the Civil Rights Act. Her clients often cannot file complaints on their own behalf and cannot afford to pay an attorney. The March 2018 CPM’s provision requiring dismissal of complaints by individuals who have filed previously applied to her and her clients and interfered with their ability to advocate for the civil rights of low-income children.
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20. Several COPAA members have informed COPAA that their complaints were subjected to dismissal and appeals have been denied pursuant to the March 2018 CPM. Others have filed complaints with OCR in the past and are preparing to file, or expect to file, additional complaints in the near future.
21. For example, at the time DOE OCR issued the March 2018 CPM, Marcie Lipsitt, a member of COPAA, had several hundred complaints pending with OCR, in which she alleged that various departments of education, public school districts, public and private colleges and universities, and libraries had websites that were not accessible to individuals with disabilities. After the DOE OCR issued its March 2018 CPM, OCR dismissed over 600 of her complaints on the basis of the challenged provisions of the March 2018 CPM.
22. Following the issuance of the November 2018 CPM, on November 19, 2018, Ms. Lipsitt received a letter explaining that the OCR planned to initiate “directed investigations” into the allegations raised in her complaints. All but two of these directed investigations are ongoing. The directed investigation process differs significantly from the complaint-initiated investigations that Ms. Lipsitt experienced prior to the March 2018 CPM.
23. In addition, in March 2018, Robert Brown, a member of COPAA, had a complaint pending with the DOE OCR against Purdue University. In April 2018 and May 2018, he received two letters dismissing the allegations in his complaint. In May 2018 and again in February 2019, he reached out to employees within the DOE OCR to inquire about the ability to appeal the OCR’s decisions. On both occasions, he was informed that there were no appeal rights in place for cases closed pursuant to the March 2018 CPM. Mr. Brown has still not been afforded the opportunity to file an appeal.
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24. In addition, COPAA periodically submits comments on federal agencies’ proposed rules and regulations to inform agencies about the impact of such proposals on the lives and rights of children with disabilities and their families. For example, COPAA recently submitted comments in response to the DOE’s Notice of Proposed Rulemaking published in the Federal Register on February 27, 2018, proposing to delay the compliance date for the 2016 final regulations implementing the Individuals with Disabilities Education Act (“IDEA”) requirement addressing significant disproportionality. https://cdn.ymaws.com/www.copaa.org/resource/resmgr/docs/2018_documents/COPAA_on_Sig nificant_Disprop.pdf.
25. The National Association for the Advancement of Colored People, Inc. (“NAACP”), founded in 1909, is the nation’s largest and oldest grassroots civil rights organization. The NAACP is a 501(c)(3) non-profit organization headquartered in Baltimore, Maryland, with approximately 2,200 chartered state-based, local, and collegiate units in all 50 states and on three military installations around the world. The mission of the NAACP is to ensure the political, educational, social, and economic equality of rights of all persons and to eliminate race-based discrimination.
26. The NAACP has been at the forefront of many of the major civil rights advancements in our Nation. The NAACP fought to desegregate public schools throughout the American South, culminating with the seminal case, Brown v. Board of Education of Topeka, KS. A decade later, due largely to the vigorous advocacy of the NAACP and its leaders, Congress passed and President Johnson signed into law the Civil Rights Act of 1964.
27. The NAACP continues to advocate for equality in public education, regardless of zip code, race, or ethnicity. The NAACP has submitted comments, usually as part of a coalition
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of civil rights organizations, urging modification of proposed Department of Education rules that would have negatively affected students of color, physically disadvantaged students, and young adults leaving from college with student loans.
28. In addition, the NAACP has spent considerable resources educating its units and members across the country regarding the Every Student Succeeds Act (“ESSA”) and its implementing regulations. Those units and members, in turn, have educated education officials to ensure that state plans under ESSA are designed to eliminate race-based inequality in public education and to provide a quality education for all students.
29. The NAACP’s members have been and are illegally discriminated against by educational recipients of federal funding. The NAACP periodically encourages constituents who reach out to the Association to file complaints with DOE OCR or to request information from DOE OCR about why OCR will not address systemic allegations in their complaint. The NAACP and its state and local units have also filed complaints with the DOE OCR when they believe the actions (or inaction) of school officials constitute violations of Title VI of the Civil Rights Act of 1964. For example, in 2016, the NAACP filed a complaint against the City of Richmond Public Schools on behalf of two African American students with disabilities, and all African American students and students with disabilities, based on discriminatory discipline policies and practices. Then, in September 2017, the NAACP filed another complaint against Lee County Florida’s school district, again alleging discriminatory policies and practices. The March 2018 CPM’s provision requiring dismissal of complaints foreclosed complaints like these.
30. OCR’s March 2018 removal of the ability of a complainant such as the NAACP to file a series of complaints alleging similar misconduct by a number of different school systems across the country, its removal of the ability of NAACP members to file administrative appeals
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from closure of their complaints, and its requirement that even meritorious complaints be dismissed without investigation if they are believed to be administratively burdensome, negatively impacted (and continues to impact) the NAACP and its units and members who wished to file complaints of race discrimination under Title VI of the Civil Rights Act of 1964 from March 2018 to November 2018.
31. In addition, the NAACP regularly comments on proposed DOE rules that would impact marginalized communities (e.g., racial and ethnic minorities, girls, students with disabilities). For example, the NAACP publicly responded to the federal government’s announcement that it would rescind guidance on use of race in college admissions. See https://www.naacp.org/latest/naacp-statement-trump-administrations-move-revoke-obama-eraguidance-using-race-school-admissions/.
32. DOE OCR’s changes in the March 2018 CPM, without notice or comment, prevented the NAACP and its units and members from learning of the planned changes before they took effect and informing DOE OCR why these changes were fundamentally inconsistent with the mission of DOE OCR and why they prevent organizations such as the NAACP from filing complaints based on patterns of misconduct occurring across different jurisdictions.
33. Plaintiffs are associations or organizations of individuals who have been or are being injured by the Defendants’ failure to comply with the requirements of Chapter 5 of the federal APA.
34. All Plaintiffs have suffered, and continue to suffer, diversion of their resources to identify, inform and advise their members about, and respond to Defendants’ unlawful actions in adopting the challenged provisions of the March 2018 CPM. For example, after the March 2018 CPM was issued, rather than help families enforce their rights through filing OCR complaints,
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COPAA’s contractual legal director and policy advisor had to review the new manual, update trainings for its members, advise COPAA on how to proceed, and do other work that was not directly helping to enforce the civil rights of COPAA’s members.
35. All Plaintiffs are continuing to expend resources to address the harm caused by OCR’s unlawful dismissals and denial of appeal rights pursuant to the March 2018 CPM.
36. All Plaintiffs have experienced, and continue to experience, frustration of their missions to ensure equal access to education for their members and others who experience discrimination by recipients of federal financial assistance in violation of federal civil rights law.
37. Plaintiffs have organizational or associational standing to bring this suit on behalf of themselves and their members.
38. Defendants are the U.S. Department of Education (“DOE”), current U.S. Secretary of Education Betsy DeVos, and Kenneth Marcus, Assistant Secretary for Civil Rights. Ms. DeVos and Mr. Marcus are sued in their official capacities.
39. As the U.S. Secretary of Education, Ms. DeVos is responsible for the administration of the DOE in accordance with law, including adoption of rules and regulations pursuant to the rule-making procedures set out in the federal Administrative Procedure Act, 5 U.S.C. Chapter 5, §§ 551, et seq.
40. As the Assistant Secretary for Civil Rights, Mr. Marcus is responsible for the administration of the DOE’s Office for Civil Rights (“OCR”) in accordance with law, including mandating procedures for the handling and processing of complaints of illegal discrimination made to OCR for investigation.
41. This Court has subject matter jurisdiction over this matter pursuant to 5 U.S.C. § 702 and 28 U.S.C. §§ 1331 and 2201.
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42. This Court has authority to issue declaratory relief pursuant to 28 U.S.C. § 2201. 43. Venue is properly in this Court under 28 U.S.C. § 1391(e)(1)(C), because the United States, its agencies, and its officials acting in their official capacity may be sued in the federal judicial jurisdiction in which the plaintiffs reside, so long as no real property is involved in the suit. For purposes of venue, an association is deemed to reside in the judicial district in which it maintains its principle place of business. 28 U.S.C. §1391(c)(2). Plaintiff NFB’s principal place of business is in Baltimore, Maryland. Plaintiff COPAA’s principal place of business is in Baltimore, Maryland. Plaintiff NAACP’s principal place of business is in Baltimore, Maryland. Venue in this Court is also appropriate under 28 U.S.C. § 1391(b)(2) because a substantial part of the events or omissions giving rise to the claim arose in this district.
LEGAL BACKGROUND 44. The head of a federal Executive Department may adopt rules for the conduct and government of her agency. 5 U.S.C. §301. 45. Adoption of such rules must comply with the requirements of the rule-making procedures of the federal Administrative Procedure Act (“APA”), 5 U.S.C. § 551, et seq., if the proposed rules meet the definition of “rule” found in 5 U.S.C. § 551(4): “ … the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency . . . .” 46. The APA requires that courts “shall … hold unlawful and set aside agency action, findings, and conclusions found to be … arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. §§ 706(2)(A), (B).
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47. The APA also requires that rules proposed by a federal agency first be published in the Federal Register, with the terms or substance of the proposed rule, the legal authority for the proposed rule, and specific information regarding when a public hearing on the proposed rule will take place. 5 U.S.C. §§ 553(b), (d).
48. Under the APA, the proposing agency must consider, prior to adoption of the rule, all written data, views, or arguments submitted by interested persons regarding the proposed rule. 5 U.S.C. §§ 553(c), (d). This set of APA provisions for publication and consideration of comments is referred to as the “notice-and-comment requirement.”
49. 5 U.S.C. § 702 creates a cause of action in federal court for any person who has suffered legal wrong because of, or been adversely affected or aggrieved by, an agency action or failure to act as required by the rule-making statutes. The statute waives the sovereign immunity of the federal government for such a lawsuit, so long as the lawsuit is against a federal agency or a federal employee who acted or failed to act in her official capacity or under color of legal authority, and the suit does not request monetary damages.
50. 28 U.S.C. § 2201 permits this Court to issue a declaratory judgment that the Defendants have violated 5 U.S.C. Chapter 5 in adopting certain provisions in the March 2018 CPM, as identified below.
RELEVANT FACTS 51. Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, et seq. (“Section 504”), prohibits recipients of federal financial assistance, including assistance from the DOE, from discriminating against individuals with disabilities.
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52. Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, et seq. (“Title VI”), prohibits recipients of federal financial assistance, including assistance from the DOE, from discriminating on the basis of race, color, or national origin.
53. The DOE’s Title VI regulations provide: The responsible Department official or his designee will make a prompt investigation whenever a compliance review, report, complaint, or any other information indicates a possible failure to comply with this part.
34 C.F.R. § 100.7(c) (Title 34, Subchapter B, Chapter 1, Part 100: Non-Discrimination Under Programs Receiving Federal Assistance Through the Department of Education Effectuation of Title VI of the Civil Rights Act of 1964) (emphasis added).
54. Section 504 requires agencies that provide federal funding to apply the same remedies, procedures, and rights set forth in Title VI to the civil rights of persons with disabilities. 29 U.S.C. § 794a(a). DOE adopted the Title VI rights and procedures, including 34 C.F.R. § 100.7, for complaints of violations of Section 504. 34 C.F.R. § 104.61.
55. In 2015, the OCR issued a Case Processing Manual (“2015 CPM”), which adopted “procedures to promptly and effectively investigate and resolve complaints, compliance reviews and directed investigations to ensure compliance with the civil rights laws enforced by OCR,” including Title VI and Section 504. 2015 CPM, Introduction.
56. The 2015 CPM set out the process by which OCR staff received and investigated complaints from individuals who allege that a person or entity that receives funding from the DOE has violated the civil rights laws by illegally discriminating on the basis of race, color, national origin, sex, disability, or age. Id.
57. The 2015 CPM allowed timely complaints that were within OCR’s jurisdiction to be dismissed prior to opening an investigation in three circumstances, namely, (1) if the
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complaint, on its face, failed to state a claim of a violation of one of the laws that OCR enforces, (2) if it lacked sufficient detail for OCR to infer that discrimination has occurred, or (3) if it was so speculative, conclusory or incoherent that OCR could not infer that discrimination had occurred. Id. § 108.
58. The 2015 CPM also provided several bases for closing complaints after opening an investigation, including that OCR, in its discretion, could administratively close a complaint that was “a continuation of a pattern of complaints previously filed by the complainant or someone other than the complainant involving the same allegation(s) and/or the same issue(s) . . . that have been found to be without merit by OCR.” Id. § 110(j).
59. The 2015 CPM did not require that a complaint be dismissed, either mandatorily or through OCR’s discretion, simply because the same complainant had filed more than one complaint or because the complaint included multiple alleged discriminators. Nor did the 2015 CPM provide for dismissal or closure because OCR had dismissed a previous complaint against the same recipient by another complainant without finding the complaint meritless.
60. The 2015 CPM also provided that, if an investigation concluded that the preponderance of the evidence did not support a conclusion that the recipient had violated applicable law, OCR would issue a letter of findings explaining the reasons for its decision. 2015 CPM § 303. The 2015 CPM stated that “OCR affords an opportunity to the complainant to appeal” such a letter of findings to the Director of the Enforcement Office that issued the letter. 2015 CPM § 306.
61. In March 2018, OCR issued a new Case Processing Manual. The Introduction to the March 2018 CPM states:
The Case Processing Manual (CPM) provides OCR with the procedures to promptly and effectively investigate and resolve
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complaints, compliance reviews, and directed investigations to ensure compliance with the civil rights laws and regulations enforced by OCR.
March 2018 CPM, Introduction. Upon information and belief, the March 2018 CPM replaced
the 2015 CPM.
62. The March 2018 CPM included the following provision, which was not in the
2015 CPM:
… OCR will dismiss an allegation, or, if appropriate, the complaint in its entirety, when: …
(t) A complaint is a continuation of a pattern of complaints previously filed with OCR by an individual or group against multiple recipients or a complaint(s) is filed for the first time against multiple recipients that, viewed as a whole, places an unreasonable burden on OCR’s resources. OCR may consider conducting a compliance review or providing technical assistance concerning the issues raised by the complaint.
March 2018 CPM §108(t) (emphasis original). This provision, interpreted in accordance with
ordinary rules of grammar and punctuation, means that, under the March 2018 CPM, a dismissal
without investigation is mandatory if:
(1) it is part of a series of complaints by a single complainant or group of complainants against multiple recipients, even if it alleges different factual and legal violations; or
(2) it is a single complaint against multiple recipients that, when viewed together, places an unreasonable burden on OCR's resources.
Unlike the 2015 CPM, dismissal was mandatory, and there was no requirement that the previous
complaints have been found to be without merit, or even that the undefined “pattern” involved
the same or similar allegations.
63. The first change (“Rule Change 1”) meant that, as of March 5, 2018, OCR would
no longer investigate a claim of illegal discrimination if the claim was part of “a pattern” of
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complaints by an individual complainant against multiple recipients. “Pattern” was undefined and may cover as few as two complaints, involving different allegations against different entities over an unspecified period of time. This provision, as written, was not limited to those complaints that would place an “unreasonable burden” on OCR. Nor was this provision limited to instances where the prior complaints were meritless.
64. This new restriction in the March 2018 CPM affected both individuals who have been subjected to more than one incident of illegal discrimination and organizations that represent individuals who cannot afford to bring claims on their own. The latter groups often submit claims over time for multiple individuals against multiple recipients. These groups include entities like Plaintiffs, civil rights advocates and attorneys, and the Protection and Advocacy systems, which are federally authorized and funded to pursue administrative, legal and other claims of discrimination on behalf of individuals with disabilities under 42 U.S.C. § 15043, 29 U.S.C. § 3004, and 42 U.S.C. § 10803-07.
65. According to the language of § 108(t) of the March 2018 CPM, dismissal of multiple claims on behalf of an organization’s multiple constituents was mandatory. Because DOE provided no opportunity for notice and comment prior to issuing the March 2018 CPM, the NFB, COPAA, the NAACP, and other entities were unable to bring this problem to the attention of DOE before it adopted the new provision.
66. In addition, the March 2018 CPM precluded these groups and individuals from bringing a single complaint against multiple recipients (even if those recipients acted together), if OCR, in its sole judgment, and on the basis of unknown factors, decided that investigating would place an undefined “unreasonable burden” on OCR’s resources (“Rule Change 2”).
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67. These two distinct and substantive changes meant that, as of March 5, 2018, OCR had unilaterally eliminated a right of claimants that was created by the DOE’s regulations and maintained in prior Case Processing Manuals: the right to have one’s claim of discrimination investigated if it indicates a possible failure to comply with federal civil rights laws.
68. The March 2018 CPM also added the following provision (“Rule Change 3”), which was not in the 2015 CPM:
… OCR will dismiss an allegation, or, if appropriate, the complaint in its entirety, when: … (k) The complaint filed by the complainant or someone other than the complainant against the same recipient raises the same or similar allegation(s) based on the same operative facts that was previously dismissed by OCR pursuant to subsections 108(a), (e), g(ii), (i), (l), (n), (r), (s), (t), or (u).
March 2018 CPM §108(k) (emphasis original). 69. These Rule Changes to the March 2018 CPM are arbitrary, capricious, and not in
accordance with law. 70. The ban on complaints from persons or entities who have made complaints in the
past or complaints against multiple recipients of federal funds directly contradicts the DOE regulations requiring that all complaints be investigated. Neither regulations nor statutes empower DOE’s OCR to limit the complaints that will be investigated in this fashion.
71. Further, DOE has provided no rationale for this ban on complaints, making the ban arbitrary and capricious.
72. Between March 2018 and November 2018, OCR dismissed hundreds of complaints of discrimination filed against recipients pursuant to § 108(t). In addition, OCR relied on § 108(k) to dismiss complaints filed by new complainants against recipients identified
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in prior complaints that were dismissed under § 108(t), thus expanding its refusal to investigate these recipients, regardless of who complains about their discrimination.
73. Plaintiffs and their members have been and are being injured by DOE’s and OCR’s adoption of arbitrary, capricious, and illegal rules that eliminate potentially legitimate complaints of a violation of the DOE’s non-discrimination statutes.
74. In addition to adding § 108(t), DOE made a fourth change that eliminated complainants’ right to appeal OCR findings of insufficient evidence (“Rule Change 4”).
75. The 2015 CPM included a right for complainants to appeal OCR decisions to close their complaints for lack of evidence. In the March 2018 CPM, DOE eliminated the entire “Appeals” section. There was no provision in the March 2018 CPM offering an appeal or reconsideration of an OCR determination not to pursue a claim of discrimination. The appeal right was eliminated without notice and comment and without any stated rationale to support it.
76. Rule Change 4 to the March 2018 CPM was not in accordance with law. 77. None of the four March 2018 CPM rule changes is merely an interpretative rule, a general statement of policy, or a rule of agency organization, procedure, or practice. All the changes shifted and affected rights and interests of complainants and made substantive changes to prior rules. Therefore, all four changes were required to be subject to notice and comment under the APA. 78. DOE did not comply with the federal APA rule-making procedures set out in 5 U.S.C. Chapter 5, §§ 551, et seq., before issuing the March 2018 CPM. The proposed March 2018 CPM was not published in the Federal Register, nor were public comments on the proposal sought, received, or considered, prior to the March 2018 CPM’s adoption. Plaintiffs did not have an opportunity for notice and comment before the Manual was adopted and put into effect.
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79. DOE failed to afford Plaintiffs an opportunity to provide information to DOE regarding the impact that its changes to the March 2018 CPM would have on their members, who are and will continue to be affected and injured by the adoption of the four Manual changes, and by the denial of an opportunity to comment on the proposed changes before adoption.
80. On November 19, 2018, again without public notice, the DOE OCR rescinded the March 2018 CPM and replaced it with a revised Manual. The November 2018 CPM eliminated § 108(t) as a basis for dismissing complaints and included a new provision allowing for complainant appeals, effectively withdrawing Rule Changes 1, 2, and 4 of the March 2018 CPM. See November 2018 CPM § 307.
81. Section 108(k) of the March 2018 CPM remains, in substance, in the November 2018 CPM, renumbered as § 108(l), requiring dismissal of a complaint if “[t]he complaint … raises the same or similar allegation(s) based on the same operative facts that was previously dismissed or closed by OCR.” Challenged Rule Change 3, therefore, remains in effect.
82. The November 2018 CPM did not adequately address the ongoing harm caused by the rule changes in the March 2018 CPM.
83. Pursuant to the November 2018 CPM, as it did pursuant to the March 2018 CPM, DOE OCR will continue to mandatorily dismiss new complaints if a prior complaint was dismissed pursuant to § 108(t) of the March 2018 CPM. In addition, OCR has provided no plan for addressing the complaints that were dismissed pursuant to § 108(k) of the March 2018 CPM. See Declaration of Kenneth Marcus, ECF No. 49-2 (“Marcus Decl.”) ¶ 16 (addressing only dismissals pursuant to § 108(t)).
84. The November 2018 CPM also provides no process for reopening the over 600 complaints that were dismissed pursuant to § 108(t) of the March 2018 CPM. Instead, in a
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declaration Defendant Marcus asserts that, following the issuance of the November 2018 CPM, instead of initiating the complaint-initiated investigations that would have occurred had the complaints not been dismissed, OCR sent letters to complainants whose complaints were dismissed pursuant to § 108(t) of the March 2018 CPM, expressing its intent to open “directed investigation[s].” See Marcus Decl. ¶ 16. OCR provided no evidence that OCR staff were informed of the requirement to open directed investigations or of the processes for conducting directed investigations. Id.
85. Mr. Marcus’ declaration stated that OCR intended to complete reopening some dismissed complaints (those whose recipients had participated in an OCR webinar) in June 2019, over one year after they were dismissed. Id. For 115 complaints (those whose recipients had not participated in an OCR webinar), no deadline for opening directed investigations was provided in Mr. Marcus’ declaration. Id. OCR has not provided information publicly on the status of opening or investigating the dismissed complaints.
86. A directed investigation, as described in the November 2018 CPM and in DOE OCR’s letters to complained-of recipients, bears little resemblance to a complaint-initiated investigation. The November 2018 CPM provides approximately twenty pages of procedures for complaint-initiated investigations, including notice to the complainant, consent from the complainant, deadlines for acceptance of a resolution, requirements for contents of resolution letters, official findings by the agency communicated to the complainant and respondent, deadlines for negotiations, enforcement action procedures, and appeals. November 2018 CPM §§ 104, 105, 302(b), 302(c), 303(e), 303(h), 307, 601–604.
87. By contrast, directed investigations merit two paragraphs in the November 2018 CPM, of which the substance is simply that “a directed investigation may include offering
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technical assistance to the recipient, and/or conducting an expedited investigation . . .” November 2018 CPM § 402.
88. COPAA member Ms. Lipsett’s experience with OCR’s “directed investigations” shows that directed investigations do not involve the level of communication with the complainant or the level of information gathering that the complaint-initiated procedures require. As a result, OCR’s initiation of “directed investigations” does not sufficiently address the harm caused by the dismissal of complaints under the March 2018 CPM.
89. The DOE OCR also did not reinstate or consider the appeals dismissed or denied under the March 2018 CPM. As a result, Plaintiffs and their members, including COPAA member, Robert Brown, have still not been afforded the right to appeal OCR’s improper determinations not to pursue their claims of discrimination.
90. Therefore, even with the issuance of the November 2018 CPM, Plaintiffs’ interests in having all claims of illegal discrimination by recipients of federal financial assistance fully investigated by OCR, the opportunity to appeal determinations made by OCR and the opportunity to provide comments on the changes to the Case Processing Manuals it promulgates continue to be infringed upon. These interests fall squarely within the zone of interests that the APA rule-making provisions are designed to protect.
91. DOE’s action in adopting the changes in the March 2018 CPM was final. The March 2018 CPM went into effect on March 5, 2018 and was implemented until November 2018. There is no other remedy for this injury except suit in federal court.
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CAUSES OF ACTION COUNT I: Violations of 5 U.S.C. Chapter 5, §§ 551, et seq.:
Adoption of a Rule that is Not in Accordance with Law (for Injunctive and Declaratory Relief)
92. Plaintiffs repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
93. This Court is empowered by 5 U.S.C. § 702 to hold unlawful and set aside agency action that the Court finds to be not in accordance with law.
94. This Court is empowered by 28 U.S.C. § 2201 to declare the rights of Plaintiffs and other interested parties regarding the issues presented in this Complaint.
95. The March 2018 CPM Rule Changes 1, 2, and 3 wholly and unequivocally contradict DOE regulations 34 C.F.R. § 100.7(c) and 34 C.F.R. § 104.61, which provide that DOE “will make a prompt investigation” when it receives a complaint that “indicates a possible” illegal discriminatory action by a recipient of federal educational funds (emphasis added). Nothing in these regulations permits DOE or OCR to refuse to investigate complaints on the grounds that the complainant has submitted other complaints, that there is more than one alleged discriminating recipient, or that a previous meritorious complaint has been dismissed.
96. To the extent that the ban on complaints against multiple entities was intended to preserve agency resources, nothing in the DOE’s implementing statutes or regulations authorizes adoption of a rule upon that basis. 34 C.F.R. §100.7(c) and 34 C.F.R. § 104.61 do not state any basis for refusing to investigate a claim in order to preserve agency resources.
97. Nor has DOE provided the public with any evidence that agency resources are being over-used as a result of multiple meritorious discrimination claims from a single complainant or group or as a result of single complaints against multiple entities. The 2015 CPM already permitted OCR to dismiss complaints that did not allege illegal discrimination,
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were duplicative of other claims, or were part of a pattern of meritless complaints, and to refuse review of complaints with procedural defects. Those provisions already reduced OCR’s workload by eliminating groundless complaints. In fact, according to DOE’s own documents, in 2016, OCR already dismissed 58% of the complaints it received. Department of Education Office for Civil Rights Fiscal Year 2018 Budget Request at Z-13, available at https://www2.ed.gov/about/overview/budget/budget18/justifications/z-ocr.pdf (last visited September 3, 2019).
98. In addition, Congress appropriated an increase of $8.5 million for DOE OCR for fiscal year 2018, for a total annual budget of $117,000,000. Consolidated Appropriations Act of 2018, Public Law No: 115-141 (March 23, 2018). Notably, DOE’s FY 2018 Budget Request sought a flat budget of only $106,797,000, over $10 million less than Congress provided, and proposed to decrease staff by 46 full time equivalents. Department of Education Office for Civil Rights Fiscal Year 2018 Budget Request at Z-7, available at https://www2.ed.gov/about/overview/budget/budget18/justifications/z-ocr.pdf (last visited September 3, 2019).
99. Many claims that were banned by § 108(t) of the March 2018 CPM allege legitimate claims of illegal discrimination, but were dismissed nonetheless for no reason permitted by federal statute or regulation.
100. Even if the fact that a complainant had filed a pattern of previous complaints or that a complainant had filed against multiple recipients were legitimate bases for dismissal, the DOE regulations requiring investigation of complaints do not permit dismissal of complaints filed by complainants who have not filed patterns of complaints or filed against multiple
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recipients. Yet that is what OCR accomplishes through § 108(k) of the March 2018 CPM and § 108(l) of the November 2018 CPM.
101. Plaintiffs are entitled to a declaratory judgment that § 108(t) of the March 2018 CPM is not in accordance with law and violates Chapter 5 of the APA.
102. Plaintiffs are entitled to a declaratory judgment that § 108(k) of the March 2018 CPM and § 108(l) of the November 2018 CPM, to the extent they permit dismissal based on a prior dismissal under § 108(t), are not in accordance with law and violate the APA.
103. Plaintiffs are entitled to a declaratory judgment that OCR’s elimination, in the March 2018 CPM, of the right to appeal dismissals of complaints is not in accordance with law and violates Chapter 5 of the APA.
104. Plaintiffs are entitled to an order requiring Defendants to open or reopen all complaints dismissed under § 108(t) or under § 108(k) because of a prior dismissal under § 108(t) and requiring Defendants to investigate these complaints using the complaint-initiated process articulated in the applicable CPM.
105. Plaintiffs are also entitled to an order prohibiting Defendants from, pursuant to § 108(l) in the November 2018 CPM, dismissing a new complaint based on a prior § 108(t) dismissal under the March 2018 CPM.
106. Plaintiffs are entitled to an order requiring Defendants to inform complainants whose complaints were closed because of the elimination of appeal rights in the March 2018 CPM that they may appeal the closure of their complaints and requiring Defendants to open and pursue appeals requested by all such complainants pursuant to the appeal process set out in the applicable CPM.
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COUNT II: Violation of 5 U.S.C. Chapter 5, §§ 551, et seq. Adoption of a Rule that is Arbitrary or Capricious (for Injunctive and Declaratory Relief)
107. Plaintiffs repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
108. This Court is empowered by 5 U.S.C. § 702 to hold unlawful and set aside agency action that the Court finds to be arbitrary or capricious.
109. This Court is empowered by 28 U.S.C. § 2201 to declare the rights of Plaintiffs and other interested parties regarding the issues presented in this Complaint.
110. On its face, the rules adopted by the DOE and OCR in § 108(t) of the March 2018 CPM and in § 108(k) of the same CPM and in § 108(l) of the November 2018 CPM, to the extent they rely on dismissal under § 108(t), are arbitrary or capricious, or both. Neither the DOE nor OCR has identified any evidence or rationale to support the March 2018 CPM’s ban on complaints from claimants who have submitted more than one complaint in the past or a single complaint against multiple recipients. None of the essential terms used in § 108(t) to the March 2018 CPM is defined, such as the number of past complaints that constitute a “pattern,” the time frame covered, or the threshold for a finding of “unreasonable burden.” As a result, OCR can articulate no rational basis for dismissing a complaint based upon § 108(t). Nor have DOE or OCR identified any rationale to support the dismissal under § 108(k) or § 108(l) of complaints similar to complaints dismissed under § 108(t) when filed by a different complainant.
111. This ban negatively affects the rights of Plaintiffs and their members, and substantively changes the rule articulated in the 2015 CPM, by precluding legitimate claims of illegal discrimination by educational entities, submitted by persons who have suffered the discrimination.
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112. To the extent that the ban was intended to preserve agency resources, DOE has provided the public with no evidence that agency resources are being over-used as a result of multiple meritorious discrimination claims from a single complainant or group. The 2015 CPM already permitted OCR to dismiss complaints that did not allege illegal discrimination, were duplicative of other claims, or were part of a pattern of meritless complaints, and to refuse review of complaints with procedural defects. Those provisions already reduced OCR’s workload by allowing OCR to dismiss 58% of the complaints it received in fiscal year 2016. Department of Education Office for Civil Rights Fiscal Year 2018 Budget Request at Z-13, available at https://www2.ed.gov/about/overview/budget/budget18/justifications/z-ocr.pdf (last visited September 3, 2019).
113. In addition, Congress appropriated an increase of $8.5 million for DOE OCR for fiscal year 2018, for a total annual budget of $117,000,000. Consolidated Appropriations Act of 2018, Public Law No: 115-141 (March 23, 2018). This appropriation was over $10 million more than DOE requested. Department of Education Office for Civil Rights Fiscal Year 2018 Budget Request at Z-7, available at https://www2.ed.gov/about/overview/budget/budget18/justifications/z-ocr.pdf (last visited September 3, 2019).
114. There is no rational basis for assuming that a claim is meritless or unworthy of investigation simply because it was submitted by a party who has submitted other meritorious claims in the past or has filed against multiple violators. Nor is there a rational basis for assuming another victim’s first complaint is meritless because it is similar to one filed previously by a different complainant who had filed more than one complaint. Because there is no rational
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basis for the assumptions underlying § 108(t) of the March 2018 CPM, its adoption was arbitrary or capricious, or both. To the extent § 108(k) and § 108(l) are based on dismissals under § 108(t), they, too are arbitrary or capricious, or both.
115. Plaintiffs are entitled to a declaratory judgment that § 108(t) of the March 2018 CPM, and § 108(k) and § 108(l) to the extent they are based on § 108(t), are arbitrary and capricious and violate Chapter 5 of the APA. Plaintiffs are entitled to an order enjoining Defendants to reinstate and fully investigate, through complaint-initiated investigations, complaints dismissed pursuant to § 108(t) and those that were dismissed under § 108(k) and § 108(l) based on dismissals under § 108(t). Plaintiffs are entitled to an order enjoining Defendants to refrain from, pursuant to § 108(l) of the November 2018 CPM, dismissing any new complaints based on a prior § 108(t) dismissal under the March 2018 CPM.
COUNT III: Violation of 5 U.S.C. Chapter 5, §§ 551, et seq.: Failure to comply with notice and comment requirements (for Injunctive and Declaratory Relief)
116. Plaintiffs repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
117. This Court is empowered by 5 U.S.C. §§ 702 and 706 to hold unlawful and set aside final agency action that the Court finds to have been adopted without observance of procedure required by law.
118. This Court is empowered by 28 U.S.C. § 2201 to declare the rights of Plaintiffs and other interested parties regarding the issues presented in this Complaint.
119. DOE and OCR have violated the APA, 5 U.S.C. Chapter 5, §§ 551, et seq., by adopting § 108(t) and § 108(k) of the March 2018 CPM and eliminating the right to appeal without complying with the notice and comment requirements of the APA rule-making provisions.
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120. None of the four March 2018 CPM changes was merely an interpretative rule, a general statement of policy, or a rule of agency organization, procedure, or practice. The changes shifted and affected rights and interests of complainants, and made substantive amendments to prior rules.
121. No public notice of these new rules was provided to interested persons, and interested persons were given no opportunity to provide comment on them before they were adopted. No explanation, reason or rationale was provided for the unilateral adoption of these changes.
122. Plaintiffs have been injured in that the DOE and OCR have adopted rules that bar investigation of potentially legitimate complaints of violations of the DOE’s non-discrimination statutes, and eliminate a right to appeal a closure of a complaint for insufficient evidence, without Plaintiffs, Plaintiffs’ members, or other members of the public having an opportunity to provide the DOE with their considered and experienced views on the proposed action. As a result, some legitimate discrimination claims were precluded between March 2018 and November 2018 because DOE did not consider all available views and comments on the proposed changes.
123. Plaintiffs are entitled to a declaratory judgment that the four changes in the March 2018 CPM described in this Complaint were adopted without compliance with Chapter 5 of the APA, and are, therefore, illegal.
124. Plaintiffs are entitled to an order requiring Defendants to reopen complaints and appeals dismissed pursuant to the unlawful provisions in the March 2018 CPM, and, requiring them, before attempting to adopt any similar provisions, to comply with the notice and comment requirements of the APA, 5 U.S.C. Chapter 5, §§ 551, et seq.
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PRAYER FOR RELIEF WHEREFORE, Plaintiffs the National Federation of the Blind, Council of Parent Attorneys and Advocates, and National Association for the Advancement of Colored People respectfully request that this Court enter a judgment in their favor, and against Defendants, and:
a) Declare that Defendants’ adoption of § 108(t) in the March 2018 CPM, their adoption of § 108(k) in the March 2018 CPM and § 108(l) in the November 2018 CPM to the extent they rely on § 108(t), and their elimination of the 2015 CPM § 303(a) appeal right in the March 2018 CPM were not in accordance with law and were beyond statutory and regulatory authority, in violation of the Administrative Procedure Act;
b) Declare that Defendants’ adoption of § 108(t) and § 108(k) in the March 2018 CPM was arbitrary, or capricious, or both, in violation of the Administrative Procedure Act;
c) Declare that Defendants’ adoption of § 108(t) and § 108(k) and the elimination of the 2015 CPM § 303(a) appeal right in the March 2018 CPM without complying with notice and comment requirements violated the Administrative Procedure Act;
d) Vacate and set aside the challenged provisions of the March 2018 CPM, pursuant to 5 U.S.C. § 702;
e) Preliminarily and permanently enjoin Defendants, their agents, servants, employees, attorneys, and all persons in active concert or participation with them to reopen and fully investigate (in accordance with the complaint-initiated investigation procedures in the applicable CPM) all complaints dismissed pursuant to § 108(t) and all complaints dismissed pursuant to § 108(k) based on a dismissal pursuant to § 108(t);
f) Preliminarily and permanently enjoin Defendants, their agents, servants, employees, attorneys, and all persons in active concert or participation with them to refrain from
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Case 1:18-cv-01568-TDC Document 63 Filed 10/03/19 Page 33 of 33

dismissing a new complaint pursuant to § 108(l) in the November 2018 CPM based on a prior § 108(t) dismissal under the March 2018 CPM;
g) Preliminarily and permanently enjoin Defendants, their agents, servants, employees, attorneys, and all persons in active concert or participation with them to inform all complainants whose complaints were closed under the March 2018 CPM that they may appeal the closure, and to reopen and pursue all appeals requested, in accordance with the procedures in the applicable CPM.
h) Preliminarily and permanently enjoin Defendants to comply with DOE regulations and the notice and comment requirements of the Administrative Procedure Act in the development of any provisions similar to § 108(t) in future manuals;
i) Award Plaintiffs their reasonable fees, costs, and expenses, including attorneys’ fees, pursuant to 28 U.S.C. § 2412; and
j) Order such other and further relief that this Court may deem just and proper. Respectfully submitted,

Dated: September 3, 2019

__________/s/ _ Eve L. Hill (Fed. Bar No.: 19938) Anisha Queen (Fed. Bar. No.: 20766) BROWN GOLDSTEIN & LEVY, LLP 120 East Baltimore Street, Suite 1700 Baltimore, Maryland 21202 T: (410) 962-1030 F: (410) 385-0869 ehill@browngold.com aqueen@browngold.com
Attorneys for Plaintiffs

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 SETTLEMENT AGREEMENT This Settlement Agreement is entered into between the National Federation of the Blind, the Council of Parent Attorneys and Advocates, Inc., and the National Association for the Advancement of Colored People, Inc. ("Plaintiffs"); and Elisabeth D. DeVos, in her official capacity as Secretary of Education, Kenneth L. Marcus, in his official capacity as Assistant Secretary for Civil Rights, and the U.S. Department of Education ("Defendants") (collectively, the "Parties"). Whereas the Parties now mutually desire to resolve all of the claims asserted by Plaintiffs in this action without the need for further litigation, and without any admission of liability, the Pa11ies hereby accordingly agree to compromise, settle, and resolve all of the claims asserted by Plaintiffs in this action on the following terms and conditions: 1. Stipulation of Dismissal: Within ten (10) calendar days of the Effective Date (as defined in paragraph 11), the Parties will execute and cause to be filed, in the United States District Court for the District of Maryland, a Stipulation of Dismissal in the form appended hereto at Exhibit l. 2. Relief:
a. Defendants agree that the U.S. Department of Education Office for Civil Rights ("OCR") will resolve, in accordance with the procedures set out in Article III of the November 2018 Case Processing Manual ("CPM"), the website accessibility complaints that were previously dismissed under section 108(t) of the March 20 I8 CPM and opened as directed investigations under section 402 of the November 2018 CPM. Any closure letters for such directed investigations will comply with the relevant sections of Article III of the November 2018 CPM (i.e., section 302(c) or section 303(e)).

b. OCR will reissue to complainants letters of finding(s) in the 24 website accessibility directed investigations that were previously closed for insufficient evidence no later than 45 calendar days from the date the signed stipulation of dismissal is filed with the Court. The reissued letters of finding(s) will comply with section 303(e) of the November 2018 CPM.
c. OCR has also opened directed investigations, pursuant to section 402 of the November 2018 CPM, of 16 housing disability complaints that had previously been dismissed pursuant to section 108(t) of the March 2018 CPM. OCR will resolve these directed investigations in accordance with the procedures set out in Article III of the November 2018 CPM. Any closure letters for such directed investigations will comply with the relevant provisions of Article III of the November 2018 CPM (i.e., section 302(c) or section 303(e)).
d. For complainants whose complaints were dismissed for insufficient evidence under section 303(a) of the CPM between March 5, 2018 and November 19, 2018, Defendants agree to offer complainants an opportunity to appeal those dismissals. In the request for an appeal, a complainant must explain why either (a) he or she believes the factual information was incomplete or incorrect, or (b) the legal analysis was incorrect, or (c) the appropriate legal standard was not applied, and how correction of any error(s) would change the outcome of the case. Failure to do so may result in the dismissal of the appeal. See November 2018 CPM § 307.
e. Plaintiffs agree to notify their members of the opportunity to appeal being offered in paragraph (2)(d) of this Agreement no later than 30 calendar days from the date the signed stipulation of dismissal is filed with the Court. Complainants must
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submit any appeal request no later than 60 calendar days after Plaintiffs notify their members of the opportunity to appeal. 3. Attorneys' Fees and Costs: Defendants agree to pay to Plaintiffs the sum of $50,000 in attorneys' fees and costs in full and final settlement of any and all claims for attorneys' fees and costs in connection with this case. 4. Releases: Subject to the terms in paragraph 11 of this Agreement, Plaintiffs hereby waive, release, and forever discharge Defendants, all of the Department of Education's agencies, components, offices, or establishments, and any officers, employees, agents, or successors, either in their official or individual capacities, of any such department, agency, component, office, or establishment, from any and all claims, demands, and causes of action of every kind, nature, or description, whether known or unknown, which have been or could have been asserted in this action, or any other administrative or judicial proceeding against Defendants, arising out of or in connection with the events alleged in the Second Amended Complaint in National Federation of the Blind, et al. v. U.S. Department of Education, et al., Case No. 18-cv-01568 (D.Md.). 5. No Admission of Liability: This Agreement is not and shall not be construed as an admission by Defendants of the truth of any allegation or the validity of any claim asserted in this action or the Defendants' liability therein. Nor is it a concession or an admission of any fault or omission in any act or failure to act, nor shall it be construed for any purpose whatsoever as an admission or presumption of wrongdoing on the part of Defendants. Nor shall any of the terms hereof be offered or received in evidence or in any way referred to in any civil, criminal, or administrative action (except in an action to enforce its terms).
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6. Entire Agreement: The terms of this Agreement, and the attachment thereto, constitute the entire agreement of the Parties entered into in good faith, and no statement, remark, agreement, or understanding, oral or written, which is not contained herein, shall be recognized or enforced; nor does this Agreement reflect any agreed-upon purpose other than the desire of the Parties to reach a full and final conclusion of this action and to resolve the matter without the time and expense of further litigation.
7. Modification and Amendment: This Agreement cannot be modified or amended except by an instrument in writing signed by the party to be charged therewith; nor shall any provision hereof be waived other than by a writing setting forth such waiver and signed by the party to be charged with such waiver.
8. Rule of Construction: This Agreement shall be considered a jointly drafted agreement and shall not be construed against any party as the drafter.
9. No Third-Party Rights: This Agreement is not intended to create, and does not create, any third-party beneficiary rights or any other kinds of rights or privileges for any person, group or entity.
10. Execution: This Agreement, which may be signed in counterparts, shall take effect upon execution by all signatories below. This Agreement may be executed on copies sent by electronic mail with the same force and effect as an executed original of the same.
11. Effective Date and Term: The effective date of this Agreement shall be the date on which it is executed by the undersigned parties. This Agreement shall terminate and the case shall be dismissed with prejudice one year from the date of the filing of the stipulation of dismissal unless: (1) the Parties jointly move the Court to terminate the Agreement earlier; or (2) pursuant to Local Rule 111, Plaintiffs move the Court, upon a
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showing of good cause, to reopen the case because the terms of this Agreement have not been consummated. The Parties agree not to dispute that Plaintiffs' filing of such a motion constitutes an appropriate mechanism to enforce the provisions of this Agreement. However, this agreement shall not be deemed to waive any available defenses to the substance of such motion, and any right or authority to contend that no breach of this Agreement has occurred. Plaintiffs agree to meet and confer with Defendants at least 30 days prior to filing such a motion with the Court. Defendants agree to provide Plaintiffs with an update on the status of the directed investigations pursuant to paragraphs 2a, 2b, and 2c no later than 60 days prior to the expiration of this Agreement. IN WITNESS WHEREOF, the Parties hereto have personally signed this Agreement or have caused this Agreement to be signed by their duly authorized representatives intending to be bound.

2-/ Dated:

j ,/ , 2020

Eve L. Hill Anisha S. Queen Brown, Goldstein & Levy, LLP 120 E. Baltimore St., Ste 1700 Baltimore, MD 21202 Tel : 410-962-1030 ehill@browngold.com
Counselfor Plaintiffs

_2+-/ Dated:

tf--1-1/ --/

, 2020

Marsha Stelson Edney, Esq. United States Department of Justice Civil Division, Federal Programs Branch 1100 L Street, N.W.
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Washington, D.C. 20005 Tel: 202-514-4520; Marsha.Edney@usdoj.gov Counsel for Defendants
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