UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

JANE DOE, on behalf of herself and similarly 

situated others,

Plaintiffs, 

v. 

UNITED STATES DEPARTMENT OF 

HEALTH AND HUMAN SERVICES, et al.,

Defendants.

Civil Action No. 14-366 (BAH)

Judge Beryl A. Howell

JANE DOE, on behalf of herself and similarly 

situated others,

Plaintiffs, 

v. 

UNITED STATES 

DEPARTMENT OF EDUCATION, et al.,

Defendants. 

Civil Action No. 14-367 (BAH)

Judge Beryl A. Howell

MEMORANDUM OPINION

The plaintiff in these two related cases, Jane Doe1, seeks mandamus and declaratory 

relief against the defendants, the U.S. Department of Health and Human Services (“HHS”) and 

the U.S. Department of Education (“DOE”), for alleged violations of Title IX of the Education 

Amendments of 1972 (“Title IX”), 20 U.S.C. § 1681 et seq., Title IV of the Civil Rights Act of 

1964 (“Title IV”), 42 U.S.C. § 2000c et seq., the Patient Protection and Affordable Care Act 

1 The petitioner was granted leave to proceed under a pseudonym due to the nature of the allegations in the petitions. 

Order Granting Mot. Lv. Proceed Under Pseudonym at 4, Case No. 14-366, ECF 2; Order Granting Mot. Lv. 

Proceed Under Pseudonym at 4, Case No. 14-367, ECF 2.

1

 
(“ACA”), 42 U.S.C. § 18001, et seq., the Administrative Procedure Act (“APA”), 5 U.S.C. § 500

et seq., and the U.S. Constitution. See generally Pet. Mandamus (“366 Pet.”), Case No. 14-366, 

ECF No. 3; Pet. Mandamus (“367 Pet.”), Case No. 14-367, ECF No. 3. The plaintiff, a former 

undergraduate student at the University of Virginia (“UVA”), alleges that UVA “failed to 

provide prompt and equitable redress in connection with its investigation and resolution of a 

matter arising out of severe sexual harassment and misconduct perpetrated against [the plaintiff] 

in December 2011.” 366 Pet. ¶ 2; 367 Pet. ¶ 2. The plaintiff subsequently filed complaints with 

the defendants alleging that UVA’s response to her case violated Title IX and Title IV. 366 Pet. 

¶¶ 2–3; 367 Pet. ¶¶ 2–3.

The alleged sexual harassment and misconduct underlying the two complaints at issue are 

serious issues that are the subject of ongoing debate on college campuses, including UVA, and 

elsewhere. The plaintiff invites judicial involvement, but the United States’ system of 

jurisprudence requires that courts resolve only those “Cases” or “Controversies” brought against 

the right defendants on valid and legally cognizable claims, so that justice can be done for all 

parties to the lawsuit. 

The plaintiff’s suit is, for the most part, based on an erroneous interpretation of recent 

amendments to seven of the eighteen subsections of 20 U.S.C. § 1092(f), known as the “Clery 

Act.” See generally 366 Pet.; 367 Pet. The plaintiff contends that these amendments also 

changed the standard under which sexual assault and harassment claims are evaluated by 

colleges and universities under Title IX, which is a separate and distinct statute from the Clery 

Act. See 366 Pet. ¶ 15; 367 Pet. ¶ 15. The Clery Act establishes certain reporting and 

notification requirements for higher learning institutions. 20 U.S.C. § 1092(f). By contrast, Title 

IX prohibits discrimination based on sex at those educational institutions, 20 U.S.C. § 1681, and 

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provides mechanisms for Federal agencies to enforce those provisions through the withholding 

of grants or other federal funding, id. § 1682. The 2013 amendments to portions of the Clery 

Act, contained in Section 304 of the Violence Against Women Reauthorization Act of 2013 

(“VAWA”), Pub. L. 113-4, 127 Stat. 54, 89–92 (2013), had no effect on Title IX.

The defendants have moved to dismiss the plaintiff’s complaints on grounds that this 

Court lacks jurisdiction over the matters and that the complaints fail to state a claim upon which 

relief can be granted, pursuant to Federal Rules of Civil Procedure 12(b)(1) and (b)(6), 

respectively. Defs.’ Mot. Dismiss (“HHS Mot.”) at 1, Case No. 14-366, ECF No. 7; Defs.’ Mot. 

Dismiss (“DOE Mot.”) at 1, Case No. 14-37, ECF No. 7. For the reasons explained in more 

detail below, the defendants’ motions are granted. 

I. BACKGROUND

To understand the plaintiff’s claims, and why they are based on an erroneous 

interpretation of the law, the Court first reviews the Clery Act and the recent amendments made 

under VAWA’s Section 304, before turning to the plaintiff’s specific allegations.

A. The Clery Act Amendments In VAWA

The Clery Act requires institutions of higher learning that receive federal funding—

which encompasses nearly every public and private university in the United States—to disclose 

crime statistics and campus security policies. 20 U.S.C. § 1092(f)(1). The Act has eighteen 

subsections that delineate the information an institution must disclose both publicly and to the 

Department of Education, which is the agency responsible for enforcing the Clery Act. See id. 

Among other things, the Clery Act requires that institutions disclose: “policies concerning 

campus law enforcement,” id. § 1092(f)(1)(C); “polic[ies] regarding the possession, use, and sale 

of alcoholic beverages,” id. § 1092(f)(1)(H); crimes believed to be “a threat to other students . . . 

that are reported to campus security,” id. § 1092(f)(3); and certain aspects of the institutions’ 

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“police or security department . . . daily log[s],” id. § 1092(f)(4)(A). The Clery Act also contains 

requirements for reporting information to the Federal government, id. § 1092(f)(5); id. § 

1092(f)(12); definitions for terms used in the Act, including certain crimes, id. § 1092(f)(6); 

directions for compiling reportable statistics, id. § 1092(f)(7); and an enforcement provision, id.

§ 1092(f)(13).

Section 304 of the VAWA amended seven subsections of the Clery Act. 127 Stat. at 89–

92. Although most of the amendments modified definitions, Section 304 replaced three

subsections entirely: 20 U.S.C. § 1092(f)(8), § 1092(f)(16), and § 1092(f)(17). The new § 

1092(f)(8) requires institutions to include in their public reports “a statement of policy 

regarding” the “institution’s programs to prevent domestic violence, dating violence, sexual 

assault, and stalking” and “the procedures that such institution will follow once an incident . . . 

has been reported, including a statement of the standard of evidence that will be used during any 

institutional conduct proceeding arising from such a report.” 127 Stat. 90 (codified at 20 U.S.C. 

§ 1092(f)(8)(A)). 

Due to the amendment made by VAWA’s Section 304, the new § 1092(f)(8) requires the 

institution’s statement of policy to address “education programs to promote the awareness” of 

sexual and domestic violence; the “possible sanctions or protective measures that such institution 

may impose following a final determination of an institutional disciplinary procedure;” 

“procedures victims should follow” if an offense occurs; “procedures for institutional 

disciplinary action;” procedures the institution will take to maintain confidentiality; notification 

about services available for those affected by sexual and domestic violence; and the options 

victims may exercise “regardless of whether the victim chooses to report the crime to campus 

police or local law enforcement.” Id. at 90–91 (codified at 20 U.S.C. § 1092(f)(8)(B)). Section 

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304 further added a requirement to the new § 1092(f)(8) that the institution’s policy “include a 

clear statement that . . . disciplinary action in cases of alleged domestic violence, dating violence, 

sexual assault, or stalking” involve proceedings that provide “prompt, fair, and impartial

investigation and resolution” to the parties involved, as well as “be conducted by officials who 

receive annual training on the issues related to domestic violence, dating violence, sexual assault, 

and stalking and how to conduct an investigation and hearing process that protects the safety of 

victims and promotes accountability.” Id. at 91 (codified at 20 U.S.C. § 1092(f)(8)(B)(iv)).

As noted, Section 304 of VAWA also replaced § 1092(f)(16) of the Clery Act to require

the Secretary of Education to “seek the advice and counsel of the Attorney General of the United 

States and the Secretary of Health and Human Services concerning the development, and 

dissemination to institutions of higher education, of best practices information about preventing 

and responding to incidents of domestic violence, dating violence, sexual assault, and stalking, 

including elements of institutional policies that have proven successful based on evidence-based 

outcome measurements.” Id. at 92 (codified at 20 U.S.C. § 1092(f)(16)). Finally, Section 304 of 

VAWA replaced § 1092(f)(17), which states that “no officer, employee, or agent of an institution 

. . . shall retaliate, intimidate, threaten, coerce, or otherwise discriminate against any individual 

for exercising their rights or responsibilities under any provision” of the Clery Act. Id. (codified 

at 20 U.S.C. § 1092(f)(17)).

Importantly for the resolution of the instant suit, section 304 did not amend eleven of the 

Clery Act’s subsections, including 20 U.S.C. § 1092(f)(2), which subsection states that 

“[n]othing in this subsection shall be construed to authorize the Secretary to require particular 

policies, procedures, or practices by institutions of higher education with respect to campus 

crimes or campus security.” See generally id. at 89–92. After Section 304 took effect in March 

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2014, DOE issued a statement that the changes to the Clery Act in the VAWA “did not affect in 

any way title IX of the Education Amendments of 1972 . . . its implementing regulations, or 

associated guidance issued by the Department’s Office for Civil Rights.” Violence Against 

Women Act, 79 Fed. Reg. 35,418, 35,422 (June 20, 2014). Indeed, DOE stated that “[w]hile the 

Clery Act and title IX overlap in some areas relating to requirements for an institution’s response 

to reported incidents of sexual violence, the two statutes and their implementing regulations and 

interpretations are separate and distinct.” Id.2

With this contextual background, the plaintiff’s specific allegations are examined next.

B. The Petitioner’s Claims

As previously noted, the plaintiff is a former undergraduate student at UVA and a current 

resident of the District of Columbia. 366 Pet. ¶ 48; 367 Pet. ¶ 48. In December 2011, the 

plaintiff reported to UVA an alleged incident of sexual harassment and assault perpetrated 

against the plaintiff. 366 Pet. ¶¶ 2, 6; 367 Pet. ¶¶ 2, 6. After the university investigated the 

plaintiff’s allegations, “UVA determined the underlying sexual harassment/misconduct matter in 

favor of the offender.” 366 Pet. ¶ 6; 367 Pet. ¶ 6.

Following UVA’s dismissal of the plaintiff’s complaint in June 2012, the plaintiff filed a 

complaint with DOE’s Office for Civil Rights pursuant to Title IX and Title IV. 367 Pet. ¶ 2. 

The plaintiff filed a similar complaint with HHS’ Office for Civil Rights. 366 Pet. ¶ 2. Both 

complaints allege that UVA violated Title IX and Title IV by “fail[ing] to provide prompt and 

equitable redress in connection with its investigation and resolution of a matter arising out of 

2 The Court may take judicial notice of items published in the Federal Register. 44 U.S.C. § 1507 (“The contents of 

the Federal Register shall be judicially noticed”). In any event, since the defendants are challenging the Court’s 

subject matter jurisdiction over this matter, the Court may examine facts outside of the Complaint as part of “an 

independent investigation to assure itself of its own subject matter jurisdiction.” Settles v. U.S. Parole Comm’n, 429 

F.3d 1098, 1107 (D.C. Cir. 2005) (quoting Haase v. Sessions, 835 F.2d 902, 908 (D.C. Cir. 1987)).

6

 
severe sexual harassment and misconduct perpetrated against [the plaintiff] in December 2011.” 

366 Pet. ¶ 2; 367 Pet. ¶ 2. The plaintiff alleged, inter alia, that UVA “failed to promptly and 

equitably investigate and resolve” the matter, “destroyed and/or withheld evidence” of the 

alleged assault, failed to gather evidence showing that the plaintiff was “substantially 

incapacitated by rape drugs” at the time of the incident, and “unlawfully applied a burden of 

proof far stricter than the mandatory preponderance of the evidence standard.” 366 Pet. ¶ 5; 367 

Pet. ¶ 5. 

On July 19, 2012, HHS confirmed receipt of the plaintiff’s complaint and informed the 

plaintiff that she would be contacted after an initial review. 366 Pet. App’x Doc. 2 at 41, ECF 

No. 3.3

 In December 2012, HHS contacted the plaintiff requesting additional information. 366 

Pet. App’x Doc. 3 at 43, ECF No. 3. Specifically, HHS requested that the plaintiff: (1) “restate 

[her] allegation(s)”; (2) notify HHS as to the status of her complaint pending before DOE; (3) 

identify who the plaintiff’s allegations were against; (4) provide the “names and contact 

information of any witnesses”; and (5) provide “any evidence that substantiates [her] 

allegations.” Id. at 43–44. The petition and attachments do not indicate whether the plaintiff 

responded to this letter. The plaintiff alleges that HHS has taken no further action on her 

complaint. 366 Pet. ¶ 1.

On July 27, 2012, DOE dismissed the plaintiff’s complaint but consolidated the 

plaintiff’s allegations into an ongoing compliance review of UVA “to assess whether the 

University’s policies and procedures, and the University’s implementation thereof, ensure the 

elimination of sexual harassment and sexual violence.” 367 Pet. App’x Doc. 2 at 63, ECF No. 3.

3 Citations to pages in the complaints’ appendices refer to the ECF document number.

7

 
More than a year later, on March 6, 2014, the plaintiff filed the instant petitions for 

mandamus and equitable relief in this Court. See generally 366 Pet.; 367 Pet. Each petition 

seeks relief based on eight causes of action. 366 Pet. ¶¶ 51–91; 367 Pet. ¶¶ 51–93. The Counts 

are as follows: Count I, labeled “Mandamus,” is predicated on the defendants’ alleged failure to 

resolve her complaints “promptly,” 366 Pet. ¶¶ 51–61; 367 Pet. ¶¶ 51–63; Count II labeled 

“Administrative Procedures [sic] Act” alleges that the agencies’ failure to act “constitutes 

‘unreasonabl[e] delay’ within the meaning of 5 U.S.C. § 706(2),” 366 Pet. ¶ 63 (alteration in 

original); 367 Pet. ¶ 65 (alteration in original); Count III, labeled “Equal Protection,” claims that 

the agencies’ violated the plaintiff’s rights to equal protection under the “Fourteenth 

Amendments [sic] to the United States Constitution,” 366 Pet. ¶¶ 66–68; 367 Pet. ¶¶ 68–70; 

Count IV, labeled “Substantive Due Process,” alleges that the agencies violated the plaintiff’s 

right to “substantive Due Process of law” under the Fourteenth Amendment, 366 Pet. ¶¶ 70–72; 

367 Pet. ¶¶ 72–74; Count V, labeled “Procedural Due Process,” alleges the agencies violated the 

plaintiff’s right to “procedural due process” under the Fourteenth Amendment, 366 Pet. ¶¶ 74–

77; 367 Pet. ¶¶ 76–79; Count VI, labeled “First Amendment,” alleges that the agencies’ delay 

“chilled” the plaintiff’s First Amendment rights, 366 Pet. ¶¶ 79–81; 367 Pet. ¶¶ 81–83; Count 

VII, labeled “Title IX,” alleges that the agencies’ “delayed redress of [the plaintiff’s] complaint 

threatens and violates Petitioner’s rights and the rights of similarly situated others” under Title 

IX, 366 Pet. ¶¶ 83–86; 367 Pet. ¶¶ 85–88; and Count VIII, labeled “Title IV,” alleges that the 

agencies’ “delayed redress of [the plaintiff’s] complaint threatens and violates [the plaintiff’s]

rights and the rights of others by subjecting violence on the basis of sex to less protective legal 

standards in violation of Title IV,” 366 Pet. ¶¶ 88–91; 367 Pet. ¶¶ 90–93. 

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The plaintiff seeks three types of relief: (1) issuance of a writ of mandamus “ordering 

[the agencies] to investigate and resolve her Complaint and issue a decision thereon before 

March 7, 2014;” (2) an order that the agencies “shall not apply substantive provisions from 

[Section 304] to the resolution of [the plaintiff’s] complaint . . . if [the plaintiff’s] complaint is 

not resolved until after March 7, 2014;” and (3) a declaration that “identified aspects of [Section 

304 are] unconstitutional” and an injunction against “their future enforcement on behalf of [the 

plaintiff] and similarly situated others.” 366 Pet. at 29; 367 Pet. at 29. 

The defendants have moved to dismiss the actions for lack of subject matter jurisdiction 

and failure to state a claim, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), 

respectively. HHS Mot. at 1; DOE Mot. at 1.

II. LEGAL STANDARD

A. Rule 12(b)(1)

“‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power 

authorized by Constitution and statute.’” Gunn v. Minton, 133 S. Ct. 1059, 1064 (2013) (quoting 

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). Indeed, federal courts 

are “forbidden . . . from acting beyond our authority,” NetworkIP, LLC v. FCC, 548 F.3d 116, 

120 (D.C. Cir. 2008), and, therefore, have “an affirmative obligation ‘to consider whether the 

constitutional and statutory authority exist for us to hear each dispute.’” James Madison Ltd. by 

Hecht v. Ludwig, 82 F.3d 1085, 1092 (D.C. Cir. 1996) (quoting Herbert v. Nat’l Acad. of 

Sciences, 974 F.2d 192, 196 (D.C. Cir. 1992)). Absent subject matter jurisdiction over a case, 

the court must dismiss it. Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006); FED. R. CIV. P.

12(h)(3). 

When considering a motion to dismiss under Rule 12(b)(1), the court must accept as true 

all uncontroverted material factual allegations contained in the complaint and “‘construe the 

9
complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the 

facts alleged,’ and upon such facts determine jurisdictional questions.” Am. Nat’l Ins. Co. v. 

FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 

(D.C. Cir. 2005)) (internal citations omitted). The court need not accept inferences drawn by the 

plaintiff, however, if those inferences are unsupported by facts alleged in the complaint or 

amount merely to legal conclusions. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).

Moreover, in evaluating subject matter jurisdiction, the court, when necessary, may 

“‘undertake an independent investigation to assure itself of its own subject matter jurisdiction,’”

Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 1107 (D.C. Cir. 2005) (quoting Haase v. 

Sessions, 835 F.2d 902, 908 (D.C. Cir. 1987)), and consider facts developed in the record beyond 

the complaint, id. See also Herbert, 974 F.2d at 197 (in disposing of motion to dismiss for lack 

of subject matter jurisdiction, “where necessary, the court may consider the complaint 

supplemented by undisputed facts evidenced in the record, or the complaint supplemented by 

undisputed facts plus the court’s resolution of disputed facts”); Alliance for Democracy v. FEC, 

362 F. Supp. 2d 138, 142 (D.D.C. 2005). The burden of establishing any jurisdictional facts to 

support the exercise of the subject matter jurisdiction rests on the plaintiff. See Hertz Corp. v. 

Friend, 559 U.S. 77, 96–97 (2010); Thomson v. Gaskill, 315 U.S. 442, 446 (1942); Moms 

Against Mercury v. FDA, 483 F.3d 824, 828 (D.C. Cir. 2007). 

B. Standing

Article III of the Constitution restricts the power of federal courts to hear only “Cases” 

and “Controversies.” CONST. Art. III, § 2 cl. 1. “The doctrine of standing gives meaning to 

these constitutional limits by ‘identify[ing] those disputes which are appropriately resolved

through the judicial process.’” Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014)

(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)) (alterations in original). 

10
Absent standing by the plaintiffs, the Court lacks subject matter jurisdiction to hear the claim and 

dismissal is mandatory. See FED. R. CIV. P. 12(h)(3). The Supreme Court has explained, “the 

irreducible constitutional minimum of standing contains three elements.” Lujan, 504 U.S. at 

560. First, the plaintiff must have suffered an “injury in fact,” i.e., “an invasion of a legally 

protected interest which is (a) concrete and particularized, and (b) actual or imminent, not 

conjectural or hypothetical.” Id. (citations and internal quotation marks omitted). “Second, there 

must be a causal connection between the injury and the conduct complained of,” i.e., the injury 

alleged must be “fairly trace[able] to the challenged action of the defendant.” Id. (alteration in 

original; citation omitted). Finally, it must be “likely” that the injury will be “redressed by a 

favorable decision.” Id. at 561.

III. DISCUSSION

The plaintiff’s claims in both of her pending complaints in this matter against HHS and 

DOE fit into three distinct categories: (1) mandamus, encompassing Count I; (2) violation of the 

APA, encompassing Count II; and (3) claims based on her interpretation of Section 304 and its 

interrelation with Title IX, encompassing Counts III through VIII. Each category is addressed in 

turn, since each category must be evaluated differently.

A. Count I: The Plaintiff Is Not Entitled To Mandamus

Mandamus is “a drastic remedy, reserved for extraordinary situations.” Thomas v. 

Holder, 750 F.3d 899, 903 (D.C. Cir. 2014) (internal quotation marks omitted). To be eligible 

for mandamus relief, a plaintiff must prove that she “has a clear right to relief,” that “the 

defendant has a clear duty to act,” and that “there is no other adequate remedy available to the 

plaintiff.” Id. (quoting Council of & for the Blind v. Regan, 709 F.2d 1521, 1533 (D.C. Cir. 

1983)).

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The plaintiff alleges that DOE and HHS have a duty under applicable regulations to 

process her complaints “promptly.” See 366 Pet. ¶ 59; 367 Pet. ¶ 61. The word “prompt” in 

DOE’s and HHS’ regulations is undefined. See 34 C.F.R. § 100.7(c) (DOE regulation stating 

DOE “will make a prompt investigation whenever a . . . complaint . . . indicates a possible failure 

to comply with” Title IX); 45 C.F.R. § 80.7(c) (HHS regulation stating same). Additionally, the 

regulations at issue require a “prompt investigation,” but do not require a prompt “resolution.” 

See 34 C.F.R. § 100.7(d) (setting forth procedures for resolving complaints); 45 C.F.R. § 80.7(d) 

(same). Thus, the plaintiff’s claim for mandamus relief fails for two reasons.

First, the plaintiff has submitted letters from DOE and HHS indicating that an 

“investigation” was commenced within weeks of the agencies receiving the plaintiff’s 

complaints. See 366 Pet. App’x Doc. 2 at 41 (stating plaintiff’s complaint was being reviewed as 

of July 19, 2012); 367 Pet. App’x Doc. 2 at 63 (stating plaintiff’s complaint was dismissed and 

allegations were consolidated into larger compliance review). The plaintiff does not appear to 

claim that the defendants failed to initiate an investigation promptly, but instead that the agencies 

have not completed their investigations and provided her with a resolution. See 366 Pet. ¶ 59; 

367 Pet. ¶ 61. 

For a court to exercise its mandamus power, the plaintiff must show a “clear right” to the 

relief she seeks. See Thomas, 750 F.3d at 903. While frustrating to the plaintiff, the regulations 

she cites do not show that she has a clear right to a prompt “resolution” of her claim. See 34 

C.F.R. § 100.7(d); 45 C.F.R. § 80.7(d). Instead, the plaintiff has a clear right to the prompt 

“investigation” of her claim, 34 C.F.R. § 100.7(c); 45 C.F.R. § 80.7(c), which she does not 

dispute occurred here and the evidence supports. Since the plaintiff has shown that the only 

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action to which she had a clear right has already been taken, i.e., a prompt “investigation,” she is 

not entitled to the mandamus relief she seeks.

Second, if the agencies were required to resolve promptly the plaintiff’s complaint, the 

plaintiff admits that the defendants “are not subject to a specific mandatory timeframe within 

which such complaints must be resolved.” 366 Pet. ¶ 7; 367 Pet. ¶ 7. Even if the regulations 

were construed to apply to resolution of complaints, the word “prompt” does not specify a 

timeframe as it is undefined. See 34 C.F.R. § 100.7(c); 45 C.F.R. § 80.7(c). Consequently, the 

plaintiff has no “clear right” to see an investigation completed in a specific timeframe. Again, 

although the plaintiff is understandably frustrated at the time the investigation has taken, she 

does not have a “clear right” such that mandamus relief is warranted.4 Since the plaintiff has 

failed to state a claim for mandamus that can be granted, this claim is dismissed under Federal 

Rule of Civil Procedure 12(b)(6).

B. Count II: The Plaintiff’s APA Claim Is Barred

The plaintiff’s APA claim is foreclosed by directly applicable D.C. Circuit precedent. In 

Women’s Equity Action League v. Cavazos (WEAL), 906 F.2d 742, 750–52 (D.C. Cir. 1990), the 

plaintiffs’ APA action, which sought to “redress the systemic lags and lapses by federal 

monitors” in investigating complaints under Title IX by bringing suit against the Department of 

Health, Education, and Welfare (“HEW”) (the predecessor agency to HHS and DOE), was 

rejected. The D.C. Circuit held that since “[p]laintiffs have implied rights of action against 

4 The plaintiff also notes that HHS is charged with enforcing other civil rights laws and the ACA. 366 Pet. ¶¶ 53–

54, 56. She also cites an HHS “case resolution manual” for the proposition that investigations should “obtain[] 

speedy relief for individual harms.” Id. ¶ 57. She does not contend that any of these laws or manuals include a 

required timeframe under which an investigation must be completed. See id. Therefore, the plaintiff is not entitled 

to mandamus relief under any of the other statutes, let alone manuals, to which she refers.

13

 
federally-funded institutions to redress discrimination proscribed by Titles VI and IX,” that 

remedy precludes “a default remedy under the APA.” Id. at 750–51 (citing 5 U.S.C. § 704).

The plaintiffs in WEAL raised nearly identical complaints to the plaintiff in this matter, 

that HEW failed to enforce civil rights laws by, inter alia, failing to “do the job Congress 

entrusted to them by promptly processing complaints and compliance reviews.” Id. at 750. The 

plaintiffs in WEAL sued HEW, rather than the allegedly discriminating institutions, to force 

compliance. Id. The WEAL Court found that since a private remedy existed for the plaintiffs to 

bring suit against the allegedly discriminating institutions, a suit under the APA against HEW 

was foreclosed. Id. at 751. Specifically, the Court found that where Congress had authorized 

“private suits to end discrimination” and found those suits “adequate [and] in fact the proper 

means for individuals to enforce” civil rights statutes, “an APA suit . . . is far more disruptive of 

HEW’s efforts efficiently to allocate its enforcement resources.” Id. (quoting Cannon v. Univ. of 

Chicago, 441 U.S. 677, 704 (1979)). Even though suits against individual institutions “may be 

more arduous, and less effective in providing systemic relief, than continuing judicial oversight 

of federal government enforcement,” those private suits were “the only court remedy Congress 

has authorized for private parties,” thereby foreclosing APA review. Id.

The plaintiff’s attempts to distinguish WEAL are unavailing. The plaintiff contends that 

she is seeking to challenge the agency’s lack of a prompt response, not UVA’s policy. Pl.’s 

Opp’n HHS Mot. (“Pl.’s HHS Opp’n”) at 8, ECF No. 9. Yet, this argument is disingenuous, 

since the plaintiff’s suits essentially seek from the agencies relief from the UVA policies with 

which she is dissatisfied. See 366 Pet. ¶ 2; 367 Pet. ¶ 2 (noting complaints filed with HHS and 

DOE for which the plaintiff seeks prompt resolution “allege[] that the University of Virginia 

failed to provide” equitable redress). WEAL explicitly considered and rejected this argument, 

14
noting that even if a suit against a private institution was “more arduous, and less effective,” it 

was still the only right of action allowed the plaintiff. WEAL, 906 F.2d at 751. 

The plaintiff further asserts, erroneously, that Section 304 “overturned” precedent 

allowing a private right of action to enforce Title IX because Section 304 “regulates schools’ 

redress of violence against women,” and amended portions of the Clery Act, which “forbids 

private rights of action.” Pl.’s HHS Opp’n at 9. The plaintiff’s conclusion does not follow from 

her premise.

The Clery Act does prohibit private suits based on failure to comply with the Clery Act. 

20 U.S.C. § 1092(f)(14)(A)(i). As the defendants point out, however, that subsection of the 

Clery Act was among the eleven subsections not amended by Section 304; indeed, the lack of 

private right of action subsection has been in effect since 1990. HHS’ Reply Pl.’s Opp’n HHS 

Mot. (“HHS Reply”) at 9, ECF No. 12. The plaintiff’s effort to rely on the Clery Act to sidestep 

the clear holding of WEAL barring APA claims where a private right of action is permitted under 

Title IX is also barred by another DC Circuit decision. Fourteen years after the enactment of 20 

U.S.C. § 1092(f)(14), the D.C. Circuit reaffirmed that the implied private right of action against 

institutions under Title IX, first recognized by the Supreme Court in Cannon, remained “viable,”

despite certain unrelated intervening changes in law. Nat’l Wrestling Coaches Ass’n v. U.S. 

Dep’t of Educ., 366 F.3d 930, 945–46 (D.C. Cir. 2004).

Under WEAL, the plaintiff has an adequate alternative remedy to relief under the APA, 

i.e., bringing suit against UVA. WEAL, 906 F.2d at 951. Consequently, any relief under the 

APA is foreclosed. Id. This is not to say that the plaintiff lacks any right to redress in the federal 

courts. Rather, as WEAL instructs, Congress determined that the most appropriate defendant for 

Title IX actions is the institution of higher learning accused of discriminatory practices, not the 

15
government agencies charged with enforcing Title IX. See id. This Court may not contradict 

Congress’ mechanism for enforcing the law. Consequently, under WEAL, this Court lacks 

subject matter jurisdiction over the plaintiff’s APA claim and it must be dismissed under Federal 

Rule of Civil Procedure 12(b)(1).

C. Counts III–VIII: The Plaintiff’s Remaining Claims Are Predicated On An 

Erroneous Interpretation Of Law

Finally, although the plaintiff’s complaints go on at length about the supposed 

substantive changes wrought by Section 304, including the application of a higher standard of 

proof for allegations of sexual assault, VAWA’s Section 304 is not the culprit for any such 

substantive change. Section 304 altered seven subsections of the Clery Act, which generally 

governs how an institution must report certain data to the government and what types of policies 

it must disclose publicly. See 20 U.S.C. 1092(f). The Clery Act does not require or say anything 

about what standard of proof is to be applied in resolving sexual assault claims, either before the 

Section 304 amendments or after them. See 20 U.S.C. § 1092(f); 127 Stat. 89–92. 

To the contrary, by its very terms, the Clery Act affirmatively does not authorize DOE 

“to require particular policies, procedures, or practices by institutions of higher education with 

respect to campus crimes.” 20 U.S.C. § 1092(f)(2). This subsection, which was not amended by 

Section 304, specifically prohibits the kind of substantive changes the plaintiff alleges occurred 

after the passage of VAWA. The DOE, which is charged with enforcing the Clery Act, agrees, 

stating that VAWA and the Clery Act did not change the responsibilities of higher education 

institutions to prevent discrimination under Title IX. 79 Fed. Reg. at 35,422. The plaintiff has 

also failed to show, in any way, how Section 304 has any effect on Title IV. Thus, the plaintiff’s 

contention that Section 304 will expose her to “less protective legal standards compared to the 

standards in effect at the time she filed her complaint,” 366 Pet. ¶ 9; 367 Pet. ¶ 9, is predicated 

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on a demonstrably erroneous understanding of the law. Consequently, the plaintiff fails to state a 

claim upon which relief can be granted for Counts III through VIII.

Counts III, IV, and V allege violations of the “Fourteenth Amendment’s” equal 

protection and due process guarantees. 366 Pet. ¶¶ 65–77; 367 Pet. ¶¶ 67–79. These claims are 

predicated on the notion that, after VAWA, different standards must be applied to investigations 

of discrimination based on race or national origin, as opposed to gender. See id. Since Section 

304 did not change any of the standards for evaluating sex discrimination complaints, these 

counts fail to state a claim upon which relief can be granted, and these claims must be dismissed 

pursuant to Federal Rule of Civil Procedure 12(b)(6).5

Count VI, which alleges a violation of the plaintiff’s First Amendment right to free 

speech and to petition for redress of grievance, fails for similar reasons. First, the plaintiff has 

not pleaded that her right to petition for redress of grievances and her right to freedom of speech 

were affected by VAWA’s Section 304. Second, the plaintiff has no standing to pursue this 

claim since she has not demonstrated that her actions, or any imminent actions she intends to 

take, have been affected by VAWA’s Section 304 or the actions of the defendants. 

Consequently, the plaintiff has failed to allege a concrete and particularized injury in fact that is 

imminent, see Lujan, 504 U.S. at 560, meaning she has failed to allege a case or controversy 

sufficient to convey Article III standing, and this claim must be dismissed pursuant to Federal 

Rule of Civil Procedure 12(b)(1). 

Finally, as previously noted, VAWA’s Section 304 did not affect Title IX or Title IV and 

did not make substantive changes, or, indeed, any changes, to the way in which the government 

5 The Fourteenth Amendment applies to State actors, not the Federal government. U.S. CONST. AMEND. XIV § 1. 

The Court construes these claims as arising under the Fifth Amendment’s due process guarantees, which applies to 

the Federal government. Id. AMEND. V.

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or institutions of higher learning process claims of sex discrimination. Since Counts VII and 

VIII are predicated on Section 304 creating a “disparate impact” on women, 366 Pet. ¶¶ 85, 90; 

367 Pet. 87, 92, these counts must be dismissed for failure to state a claim upon which relief can

be granted pursuant to Federal Rule of Civil Procedure 12(b)(6).6 

IV. CONCLUSION

For the foregoing reasons, the defendants’ motions are granted. Counts II and VI in both 

complaints are dismissed because the Court lacks subject matter jurisdiction over them, and 

Counts I, III, IV, V, VII, and VIII in both complaints are dismissed for failure to state a claim, 

pursuant to Rules 12(b)(1) and (b)(6) respectively. Accordingly, both of the plaintiff’s 

complaints are dismissed.

An Order consistent with this Memorandum Opinion will issue contemporaneously.

Date: March 24, 2015

__________________________

BERYL A. HOWELL

United States District Judge

6 In her oppositions, the plaintiff claims that she is raising a “facial” challenge to Section 304, Pl.’s HHS at 1; Pl.’s 

Opp’n DOE Mot. at 1, Case No. 367, ECF No. 9. The record does not support the existence of such a claim, since 

none of the counts in either complaint refers to a “facial challenge” to Section 304. In any event, such a claim

would fail for the same reasons the plaintiff’s other claims fail: Section 304 made no substantive changes to Title IX 

or Title IV, nor did it cause any disparate impact based on gender. Thus, even had this claim been properly raised, it 

would be dismissed pursuant to Rule 12(b)(6) for failure to state a claim upon which relief could be granted.

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