Pearl River Union Free School District v. Duncan et al

Filing 63

OPINION & ORDER. Defendants' Motion To Dismiss is granted. The Clerk is respectfully directed to terminate the pending Motion, (see Dkt. No. 49), and to close this case. SO ORDERED. (Signed by Judge Kenneth M. Karas on 10/5/16) (yv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

PEARL RIVER UNION FREE SCHOOL DISTRICT,
Plaintiff,

Case No. 12-CV-2938 (KMK)
OPINION & ORDER

-vJOHN KING, JR., as SECRETARY OF THE
DEPARTMENT OF EDUCATION, and UNITED
STATES DEPARTMENT OF EDUCATION,
OFFICE FOR CIVIL RIGHTS,
Defendants.1

Appearances:
Mark Craig Rushfield, Esq.
Shaw, Perelson, May & Lambert, LLP
Poughkeepsie, NY
Counsel for Plaintiff
Jennifer Ellen Blain, Esq.
United States Attorney’s Office
Southern District of New York
New York, NY
Counsel for Defendants
KENNETH M. KARAS, District Judge:
Plaintiff Pearl River Union Free School District (“Plaintiff”) brings this action against
Defendants John King, Jr., as Secretary of the United States Department of Education (the
“Department”), and the United States Department of Education’s Office for Civil Rights

1

Plaintiff names Arne Duncan, former Secretary of the Department of Education, as a
defendant. Arne Duncan resigned in 2015, and John King, Jr. succeeded him as Secretary.
Pursuant to Federal Rule of Civil Procedure 25(d), John King, Jr. is substituted as the named
Defendant, and the Clerk of Court is respectfully directed to amend the caption as set forth
above.

(“OCR”) (collectively, “Defendants”), alleging that OCR’s issuance of a Letter of Findings
providing its determinations regarding an alleged incident of racial harassment reflects an
unwritten policy of issuing Letters of Findings before completing relevant investigations.
Plaintiff claims that the issuance of the Letter of Findings here was therefore arbitrary and
capricious, in violation of the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq. (the
“APA”). Defendants move to dismiss the Second Amended Complaint on the grounds that
Plaintiff fails to state a claim because its allegation of an unwritten policy is conclusory and
implausible, and that the APA precludes review of OCR’s enforcement decisions because those
determinations are committed to OCR’s discretion.2 For the following reasons, Defendants’
Motion To Dismiss is granted.
I. Background
A. Factual Background
The following facts are derived from Plaintiff’s Second Amended Complaint. Although
the Court will sometimes refer to Plaintiff’s contentions as “alleged,” it accepts all allegations as
true for the purpose of deciding Defendants’ Motion To Dismiss. OCR received a complaint
against Plaintiff on February 23, 2011, alleging that Plaintiff “discriminated against
[complainant’s] son . . . , a student at Ardsley High School and a member of the Ardsley [High
School] basketball team, on the basis of his race” by inadequately addressing an alleged
“incident of racial harassment” at a basketball game on February 18, 2011. (Second Am. Compl.

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Defendants also previously moved to dismiss Plaintiff’s substantive due process claim.
(See Second Am. Compl. ¶ 52 (Dkt. No. 38) (alleging that the Letter of Findings “deprived the
District of substantive due process in violation of the 5th Amendment”).) Plaintiff has since
withdrawn its due process claim, (see Dkt. Nos. 54–55), so the Court will not address it further at
this time.
2

¶¶ 6–7 (Dkt. No. 38).) The complainant alleged that “a spectator . . . yelled a racial slur as the
[complainant’s son] came onto the basketball court to play.” (Id. ¶ 7.)
Plaintiff claims that it then commenced a “prompt and comprehensive investigation into
the allegations made by the [c]omplainant,” including interviews of 31 witnesses (among them
students, staff, and coaches from the school district, along with staff from Ardsley High School,
referees, and other individuals from the community), as well as review of a video recording of
the game. (Id. ¶ 8.) Plaintiff states that “[n]one of the witnesses [interviewed] heard the alleged
racial slur . . . and the slur could not be detected on the video recording,” and claims that the
investigation “revealed no credible evidence suggesting that an incident of racial harassment had
occurred.” (Id. ¶ 9.)
OCR sent Plaintiff a letter on March 10, 2011 notifying Plaintiff that “it was opening an
investigation regarding [the complainant’s] allegation” “in accordance with its duties to enforce
Title VI of the Civil Right Act of 1964 . . . and its implementing regulation[s] . . . , which
prohibit discrimination on the basis of race, color or national origin in programs and activities
receiving financial assistance from the U.S. Department of Education.” (Id. ¶ 10.) The Second
Amended Complaint includes excerpts of the letter:
Please note that opening the allegation for investigation in no way implies that OCR
has made a determination with regard to its merits. During the investigation, OCR
is a neutral fact-finder, collecting and analyzing relevant evidence from the
complainant, the recipient, and other sources, as appropriate. OCR will ensure that
its investigation is legally sufficient and is dispositive of the allegations, in
accordance with the provisions of Article III of OCR’s Case Processing Manual.
***
Also, when appropriate, a complaint may be resolved before the conclusion of
investigation after the recipient expresses an interest to OCR to resolve the
complaint. In such cases, OCR obtains a resolution agreement signed by the
recipient. This agreement must be aligned with the complaint allegations or the

3

information obtained during the investigation, and it must be consistent with
applicable regulations.
(Id. (emphasis omitted).)
The letter also included “a copy of the OCR Complaint Processing Procedures,” which
states:
A complaint may also be resolved before the conclusion of the investigation, if the
recipient expresses an interest in resolving the complaint. If OCR determines that
the resolution of the complaint before the conclusion of the investigation is
appropriate, OCR will attempt to negotiate an agreement with the recipient. OCR
will notify the complainant of the recipient’s request of the complaint and will keep
the complainant informed throughout all stages of the resolution process. The
provisions of the resolution agreement that is reached must be aligned with the
complaint allegations and the information obtained during the investigation, and
must be consistent with applicable regulations. A resolution agreement reached
before the conclusion of the investigation will be monitored by OCR.
If OCR determines that a recipient failed to comply with one of the civil rights laws
that OCR enforces, OCR will contact the recipient and will attempt to secure the
recipient’s willingness to negotiate a voluntary resolution agreement. If the
recipient agrees to resolve the complaint, the recipient will negotiate and sign a
written resolution agreement that describes the specific remedial actions that
recipient will undertake to address the area(s) of noncompliance identified by OCR.
The terms of the resolution agreement, if fully performed, will remedy the
identified violation(s) in compliance with applicable civil rights laws. OCR will
monitor the recipient’s implementation of the terms of the resolution agreement to
verify that the remedial actions agreed to by the recipient have been implemented
consistent with the terms of the agreement and that the area(s) of noncompliance
identified were resolve [sic] consistent with applicable civil rights laws.
If the recipient refuses to negotiate a voluntary resolution agreement or does not
immediately indicate its willingness to negotiate, OCR will inform the recipient
that it has 30 days to indicate its willingness to engage in negotiations to voluntarily
resolve identified areas of noncompliance, or OCR will issue a Letter of Findings
to the parties providing the factual and legal bases for a finding noncompliance
[sic].
(Id. ¶¶ 11, 13 (emphasis omitted).)
Plaintiff then contacted OCR Compliance Team Investigator Geraldo Perez (“Mr. Perez”)
to indicate Plaintiff was interested “in resolving the complaint through execution of a resolution

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agreement in accordance with Sections 302 and 304 of the OCR Case Processing Manual” (the
“CPM”), despite Plaintiff’s “strong belief that its comprehensive investigation yielded no
credible evidence suggesting that the alleged incident occurred.” (Id. ¶¶ 14–15 (emphasis
omitted).)
Section 302 of the CPM (“Resolution Agreement Reached During an Investigation”)
states in part:
Resolution Agreement Reached During an Investigation
A complaint may be resolved at any time when, before the conclusion of an
investigation, the recipient expresses an interest in resolving the complaint. OCR
should inform the recipient that this process is voluntary. OCR’s determination that it
is appropriate to resolve the complaint during the course of an investigation must be
approved by the Office Director or designee. If approved, OCR will immediately
notify the complainant of the recipient’s interest in resolving the complaint and will
keep the complainant informed throughout all stages of this resolution process. The
provisions for the resolution agreement will be aligned with the complaint allegations
or the information obtained during the investigation, and will be consistent with the
applicable regulations. A copy of the resolution agreement will be included with the
resolution letter. Resolution letters and agreements must be approved by the Chief
Attorney or designee and the Office Director or designee, in consultation with the
Enforcement Director. (See Section 304 regarding resolution agreements.)

(Id. ¶ 17.)
Section 304 of the CPM (“Guidelines for Resolution Agreements”) also states in part:
Guidelines for Resolution Agreements
The complaint will be considered resolved and the recipient deemed compliant if the
recipient enters into an agreement that, fully performed, will remedy the complaint
(pursuant to Section 302) or identified violations (pursuant to Section 303). A copy of
the agreement will be included with the resolution letter (if obtained during the
investigation, pursuant to Section 302) or letter of finding(s) (if obtained after a
compliance determination is made at the end of the investigation, pursuant to Section
303). Resolution agreement planning will be documented in the case file either
separately or by reference to the resolution agreement.

(Id. ¶ 18 (emphasis omitted).)
On September 29, 2011, Plaintiff sent a copy of the proposed resolution agreement to the
three members of the OCR team that had been handling Plaintiff’s case. (Id. ¶ 19.) Plaintiff also
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included a challenge to one member’s statement that one witness, Dr. Auriemma (Plaintiff’s
Superintendent of Schools), “had allegedly stated that three adults had communicated to him that
they had heard a racial slur at the . . . basketball game.” (Id.) Plaintiff notified OCR that Dr.
Auriemma “had advised that he had never made any such statement and that such
communications to him had, in fact, not occurred.” (Id.) Another member told Plaintiff that
OCR would review its notes from its interview of Dr. Auriemma; Plaintiff responded that
Plaintiff’s “Board of Education felt strongly that [Plaintiff] had done nothing wrong and was not
prepared to agree to take action that would send a message that [Plaintiff] acknowledged having
done anything wrong and made clear that [Plaintiff] would like to ‘cooperatively resolve this
matter.’” (Id. ¶¶ 20–21.)
On November 15, 2011, Plaintiff and OCR entered a Resolution Agreement to “resolve
the compliance concerns” raised in the complaint. (Id. ¶ 22.) Plaintiff agreed to do the
following:
By November 30, 2011, [Plaintiff] will conduct further investigation to determine
the source of the alleged racial slur made during the basketball game on February
18, 2011; including but not limited to, attempting to interview the complainant, the
[complainant’s son], and other witnesses identified by the complainant and the
[complainant’s son], and interviewing at least five additional student witnesses who
were located in or near [Plaintiff’s] student section during the game. If the
investigation reveals the identity of the alleged harasser(s), [Plaintiff] will take
prompt and effective steps reasonably calculated to end the harassment, and prevent
the harassment from recurring. [Plaintiff] will notify the complainant of the
outcome.
By December 15, 2011, [Plaintiff] will provide OCR with a copy of the
investigative report, including a description of any action taken if the investigation
reveals the identity of the alleged harasser(s). Additionally, [Plaintiff] will provide
OCR with documentation demonstrating that [Plaintiff] notified the complainant of
the outcome of the investigation.
***

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By December 14[,] 2011, [Plaintiff] will review and revise, as necessary, its
harassment policy and related grievance procedures to address complaints of
harassment based on race, color and national origin. These procedures will provide
for the prompt and equitable resolution of complaints of harassment based on race,
color and national origin. The procedures will include at a minimum [a number of
requirements described in the Resolution Agreement.]
***
Once revised, [Plaintiff] will utilize its on-going training programs that raise
awareness of the issue of harassment for staff and students, to ensure that staff and
students are aware of these revised policies and procedures and the prohibition
against racial harassment.
***
By December 14, 2011, [Plaintiff] will provide its revised harassment policy and
any related grievance procedures to OCR for review and concurrence.
Within fifteen (15) days of [Plaintiff’s] receipt of OCR’s concurrence with respect
to the revised policy and any grievance procedures, [Plaintiff] will provide OCR
with documentation to substantiate that it has formally adopted the revised policy
and procedures; updated its printed publications and on-line publications with the
revised policy and procedures (inserts may be used pending reprinting of these
publications in the 2012–13 school year); electronically disseminated the revised
policy and grievance procedures to those high school students, parents, and . . . staff
that [Plaintiff] has e-mails for, and mailed copies of the revised Code of Conduct
pages to high school parents. This documentation will include at a minimum (i)
printouts or a link to all on-line publications containing the revised policy and
grievance procedures; (ii) evidence of the electronic dissemination of the revised
policy and grievance procedures to high school students, parents and . . . staff, as
described [in the Resolution Agreement]; and (iii) if not yet finalized, copies of
inserts for printed publications.
By January 1, 2012, [Plaintiff] will provide to OCR copies of the printed versions
of all publications disseminated to high school students, parents, and . . . staff
containing the revised policy and grievance procedures.
(Affirmation of Michael K. Lambert, Esq. in Opp’n to Defs.’ Mot. To Dismiss the Compl. Ex. I
(the “Resolution Agreement”) 1–3 (Dkt. No. 12) (headings omitted).)3

3

Plaintiff’s Second Amended Complaint provides a synopsis of the Resolution
Agreement; the excerpts above are direct quotes from the Resolution Agreement rather than the
complaint. (See Second Am. Compl. ¶ 26.) “In ruling on a 12(b)(6) motion, . . . a court may
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Plaintiff also acknowledged that it understood
that OCR will not close the monitoring of this agreement until OCR determines that
the recipient has fulfilled the terms of this agreement and is in compliance with the
regulation . . . at issue . . . [,] [that] by signing this agreement, [Plaintiff] agrees to
provide data and other information in a timely manner in accordance with the
reporting requirements of this agreement . . . [,] [that] during the monitoring of this
agreement, if necessary, OCR may visit [Plaintiff], interview staff and students, and
request such additional reports or data as are necessary for OCR to determine
whether [Plaintiff] has fulfilled the terms of this agreement and is in compliance
with the regulation . . . at issue . . . [,] [and that entering into the Resolution
Agreement] does not constitute an admission that [Plaintiff] has committed any
violation of Title VI or its implementing regulations. Nor does execution of [the]
Resolution Agreement constitute any admission of other wrongdoing by [Plaintiff].
(Id. at 3.)
Plaintiff alleges that on November 17, 2011, two days after Plaintiff entered the
Resolution Agreement, OCR issued a Letter of Findings. (See Second Am. Compl. ¶ 28.)
Plaintiff alleges that the Letter of Findings was issued pursuant to a policy of OCR of, contrary
to the provisions of the Department of Education’s Case Processing Manual, “issuing . . . adverse
finding [sic] letters after entering into resolution agreements with the subject of complaints,” and
that this is particularly true “when its investigators have expended what it considers to be
substantial time and/or resources in the investigation of a complaint, whether or not it has

consider the complaint as well as . . . any statements or documents incorporated in it by
reference.” Kalyanaram v. Am. Ass’n of Univ. Professors at N.Y. Inst. of Tech., Inc., 742 F.3d
42, 44 n.1 (2d Cir. 2014); see also Jiaxing Hongyu Knitting Co. v. Allison Morgan LLC, No. 11CV-9342, 2013 WL 81320, at *6 (S.D.N.Y. Jan. 8, 2013) (“If the documentary exhibits attached
to a complaint contradict the allegations of the complaint, those allegations may be insufficient
to defeat a motion to dismiss.” (internal quotation marks omitted)); Bill Diodato Photography
LLC v. Avon Prods., Inc., No. 12-CV-847, 2012 WL 4335164, at *3 (S.D.N.Y. Sept. 21, 2012)
(same). Plaintiff sent the Court a copy of the Resolution Agreement and included it as an exhibit
to Plaintiff’s affirmation in opposition to Defendants’ first Motion To Dismiss. (See Affirmation
of Michael K. Lambert, Esq. in Opp’n to Defs.’ Mot. To Dismiss the Compl. Ex. I (Dkt. No.
12).)
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actually completed its investigation before the resolution agreement was entered into.” (Second
Am. Compl. ¶¶ 29, 49, 50.) The Letter of Findings included the following provisions:
OCR determined that there was sufficient evidence to conclude that the incident
occurred as alleged. OCR further determined that [Plaintiff] had actual notice of
the incident and promptly investigated the incident; however, OCR determined that
[Plaintiff’s] investigation was incomplete and insufficient. Specifically, [Plaintiff]
did not attempt to interview more than three students to determine the source of the
slur, even though [Plaintiff] was advised that the slur originated from the section of
the bleachers where [Plaintiff’s] students were seated. Further, [Plaintiff] did not
interview the complainant, the [complainant’s son], or any of the witnesses who
advised [Plaintiff] that they heard the racial slur, and could have provided more
information to assist [Plaintiff] in identifying the source of the slur.
[Plaintiff] executed the . . . Resolution Agreement to resolve this complaint. OCR
will monitor [Plaintiff’s] implementation of the Resolution Agreement. Please be
advised that if [Plaintiff] fails to comply with its terms, OCR will resume its
investigation of this complaint.
This letter sets forth OCR’s determination in an individual OCR case. This letter
is not a formal statement of OCR policy and should not be relied upon, cited, or
construed as such. OCR’s formal policy statements are approved by a duly
authorized OCR official and made available to the public. The complainant may
have the right to file a private suit in federal court whether or not OCR finds a
violation.
(Decl. of Ellen Blain in Supp. of Mot. To Dismiss Ex. A (“Letter of Findings”), at 1–4 (Dkt. No.
32).)
On November 20, 2011, Plaintiff requested that OCR “recall[], rescind[] and otherwise
repudiate[]” the Letter of Findings and close the case because of the Resolution Agreement.
(Second Am. Compl. ¶ 37.) Although OCR did ultimately close the case on March 6, 2012, it
did not otherwise comply with Plaintiff’s requests. (Id. ¶¶ 40–41.)
Plaintiff claims that it has suffered “profound embarrassment” from the issuance of the
“defamatory” Letter of Findings and that its “reputation for being efficient, fair-minded and raceneutral” has been “degraded.” (Id. ¶ 44.) Plaintiff notes that OCR made the text of the Letter of
Findings available to the public and gave it to the complainant as well, (id. ¶ 43), and asserts that
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the determinations in the Letter of Findings were “arbitrary, capricious, an abuse of discretion,
. . . without the observance of the procedures required by law and otherwise not in accordance
with law and should be set aside by this Court” under the APA, (id. ¶ 50).
B. Procedural Background
Plaintiff filed its original Complaint on April 13, 2012. (See Dkt. No. 1.) On January 4,
2013, Defendants filed a Motion To Dismiss, in which they argued that because the Letter of
Findings was not “final agency action,” the APA precluded its review. (See Dkt. Nos. 9–11.)
Plaintiff filed its Opposition to Defendants’ Motion on January 23, 2013, (see Dkt. Nos. 12–13),
to which Defendants replied on March 15, 2013, (see Dkt. No. 15).
However, before the Court decided Defendants’ Motion, it issued an Order, in keeping
with its independent obligation to consider the presence or absence of subject matter jurisdiction,
directing the Parties to “file supplemental briefs with the Court addressing the issue of Plaintiff’s
standing.” (Order 2 (Dkt. No. 16).) Following the Parties’ submission of responsive
memoranda, the Court issued a second Order:
In its supplemental brief on standing, Plaintiff focused on establishing that the
reputational injury [that it allegedly suffered] qualifies as an injury in fact for
purposes of establishing [Plaintiff’s] standing to challenge . . . Defendants’ action
through the instant case, and Plaintiff asserted no other basis for standing.
However, Plaintiff’s Complaint does not include any allegations with respect to
reputation. A plaintiff may not rely on an unpled injury to establish standing.
Accordingly, because the Complaint includes no allegations of reputational injury,
or any other injury in fact, the Court finds that Plaintiff has failed to meet its burden
of establishing standing.
However, the Court notes that in certain circumstances, reputational injury may be
sufficient to establish standing.
Therefore, the Complaint is dismissed without prejudice, and Plaintiff is granted
leave to file an amended complaint alleging an injury . . . . Because the Court has
dismissed the Complaint on standing grounds, Defendants’ motion to dismiss on
the basis of APA finality is moot and denied without prejudice.

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(Order 2–3 (alterations, citations, and internal quotation marks omitted) (Dkt. No. 19).) Pursuant
to this Order, Plaintiff filed an Amended Complaint on June 20, 2013. (See Dkt. No. 20.)
Defendants filed a second Motion To Dismiss on September 23, 2013, (see Dkt. Nos.
30–32), to which Plaintiff responded the following day, (see Dkt. No. 33). Defendants then
replied on October 30, 2013, (see Dkt. No. 36), at which point Defendants’ Motion was fully
submitted. The Court held oral argument on August 7, 2014. The Court then issued a third
Order:
The Court finds that Plaintiff has standing, but that the APA precludes this Court’s
review of Plaintiff’s APA claims, as OCR’s issuance of the Letter of Findings was
not a final agency action, and no exception to the APA’s finality requirement
applies. However, because this result was dictated in part by deficiencies in
Plaintiff’s Amended Complaint, Plaintiff will be given one final opportunity to
amend . . . . Should Plaintiff fail to [file a Second Amended Complaint within 30
days of the issuance of this Opinion], the Court will dismiss its APA claims with
prejudice.
(Am. Op. & Order 68 (Dkt. No. 57) (alterations, citations, and internal quotation marks
omitted).) The Court also noted that “Plaintiff’s due-process claims may be vulnerable to attack”
because “the only asserted basis for Plaintiff’s standing in this Action is the reputational harm
that it allegedly suffered . . . [b]ut . . . [a] person’s interest in his or her good reputation alone,
apart from a more tangible interest, is not . . . sufficient to invoke the procedural protections of
the Due Process Clause.” (Id. at 67 n.16 (internal quotation marks omitted).) However, the
Court concluded that “because Defendants did not raise this issue in their Memorandum of Law,
the Court will not rule on it at this time.” (Id.) Pursuant to this Order, Plaintiff filed a Second
Amended Complaint on September 29, 2014. (See Dkt. No. 38.) Defendants filed another
Motion To Dismiss on March 2, 2015. (See Dkt. Nos. 49–50.) Plaintiff requested permission to
withdraw its due process claim on April 15, 2015, (see Dkt. No. 54); this claim was dismissed by
the Court on April 16, 2015, (see Dkt. No. 55). Plaintiff then responded to Defendants’ Motion
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To Dismiss regarding the first claim for relief under the APA on April 21, 2015. (See Dkt. No.
56.) Defendants responded on May 8, 2015. (See Dkt. No. 58.)
II. Discussion
A. Standard of Review
Defendants move to dismiss Plaintiff’s Second Amended Complaint on three separate
grounds.4 First, they argue that Plaintiff fails to allege that OCR has an illegal policy or to seek
relief from such a policy. Relatedly, they argue that Plaintiff’s claims that are based on the
contents of the Letter of Findings should be disregarded because the Letter of Findings does not
constitute final agency action and is therefore not subject to judicial review. (See Defs.’ Mem. in
Supp. of Mot. To Dismiss (“Defs.’ Mem.”) 11–12.) Defendants ground this argument in APA
§ 704, which states that “final agency action for which there is no other adequate remedy in a
court [is] subject to judicial review,” but that “[a] preliminary, procedural, or intermediate
agency action or ruling” is subject to challenge only “on the review of the final agency action.”
5 U.S.C. § 704; see also Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644,
659 (2007) (“The federal courts ordinarily are empowered to review only an agency’s final
action . . . .”); Shakhnes v. Berlin, 689 F.3d 244, 260 (2d Cir. 2012) (“Under the Administrative
Procedure Act, courts may not review agency actions unless such actions are ‘final.’” (citation
omitted)).

4

As previously noted, Defendants also initially moved to dismiss Plaintiff’s substantive
due process claim. (See Second Am. Compl. ¶ 52 (alleging that the Letter of Findings “deprived
the District of substantive due process in violation of the 5th [sic] Amendment”)). Because
Plaintiff has since withdrawn the claim, (see Dkt. Nos. 54–55), the Court will not address it
further here.
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Second, Defendants argue that Plaintiff’s claim that OCR has an arbitrary and capricious
unwritten policy of issuing Letters of Findings before completing an investigation is based on
conclusory and implausible allegations, and so should be dismissed under Rule 12(b)(6) for
failure to adequately state a claim. (See Defs.’ Mem. 12–17.)
Third, Defendants argue that Plaintiff’s claim that OCR’s policy (as codified in the CPM)
of issuing Letters of Findings after completing an investigation and entering a resolution
agreement is arbitrary and capricious should be dismissed under Rule 12(b)(1) because the
Department’s policy choices regarding enforcement procedures are committed to agency
discretion by law. Those policy choices, Defendants claim, are therefore not subject to judicial
review under the APA per § 701(a)(2). (See id. at 17–22.)
The Court concluded in its prior Opinion that the APA’s finality requirement is not
jurisdictional in nature, but rather an element of a claim for relief under the APA, and is
therefore subject to the Rule 12(b)(6) standard rather than the 12(b)(1) standard. (See Am. Op.
& Order 14–15 (“Although the Second Circuit has not yet definitely resolved this issue, the
better view appears to be that the requirement is not jurisdictional in nature, but is instead merely
an essential element of an APA claim for relief. See Sharkey [v. Quarantillo], 541 F.3d [75,] 87
n.10 [(2d Cir. 2008)] (collecting cases from the First, Fourth, Sixth, and D.C. Circuits holding or
suggesting that the finality requirement is not jurisdictional).”) In contrast, the Court analyzes
Defendants’ § 701(a)(2) arguments as a jurisdictional issue. See, e.g., Lunney v. United States,
319 F.3d 550, 557–58 (2d Cir. 2003) (noting that, because “[t]he APA is not an independent
grant of subject matter jurisdiction,” but “[r]ather . . . waives the federal government’s sovereign
immunity in actions brought under the general federal question jurisdictional statute,” “there is
no jurisdiction if the statute or regulation said to govern the challenged agency action is drawn so

13

that a court would have no meaningful standard against which to judge the agency’s exercise of
discretion” (emphasis and internal quotation marks omitted)); see also Tomsha v. Gen. Servs.
Admin., No. 15-CV-7326, 2016 WL 3538380, at *4 (S.D.N.Y. June 21, 2016) (“[T]he Court
cannot exercise subject-matter jurisdiction over a claim if § 701(a)(2) precludes judicial review
of the relevant decision under the APA.” (alterations and internal quotation marks omitted)).
Accordingly, Defendants’ third claim should be evaluated under the standard of review
applicable to motions brought under Rule 12(b)(1), and Defendants’ first and second claims
should be evaluated under the standard of review applicable to motions brought under Rule
12(b)(6).5 The Court will lay out the standards of review for motions brought under both rules,
noting that Plaintiff bears the burden under Rule 12(b)(1), but that Defendants bear the burden
under Rule 12(b)(6).
1. Rule 12(b)(1)
“A federal court has subject matter jurisdiction over a cause of action only when it has
authority to adjudicate the cause pressed in the complaint.” Bryant v. Steele, 25 F. Supp. 3d 233,
241 (E.D.N.Y. 2014) (internal quotation marks omitted). “Determining the existence of subject
matter jurisdiction is a threshold inquiry and a claim is properly dismissed for lack of subject
matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or
constitutional power to adjudicate it.” Morrison v. Nat’l Austl. Bank Ltd., 547 F.3d 167, 170 (2d
Cir. 2008) (internal quotation marks omitted), aff’d, 561 U.S. 247 (2010). While a district court
resolving a motion to dismiss under Rule 12(b)(1) “must take all uncontroverted facts in the
complaint . . . as true, and draw all reasonable inferences in favor of the party asserting

5

As the Court also noted in its prior Opinion, the standards under Rule 12(b)(1) and
12(b)(6) are “substantively identical,” so the difference is slight and only impacts the question of
which party bears the burden of proof. (Am. Op. & Order 15.)
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jurisdiction,” “where jurisdictional facts are placed in dispute, the court has the power and
obligation to decide issues of fact by reference to evidence outside the pleadings, such as
affidavits,” in which case “the party asserting subject matter jurisdiction has the burden of
proving by a preponderance of the evidence that it exists.” Tandon v. Captain’s Cove Marina of
Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014) (alterations and internal quotation marks
omitted); see also Ray Legal Consulting Grp. v. Gray, 37 F. Supp. 3d 689, 696 (S.D.N.Y. 2014)
(“[W]here subject matter jurisdiction is contested a district court is permitted to consider
evidence outside the pleadings, such as affidavits and exhibits.”).
2. Rule 12(b)(6)
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief
requires more than labels and conclusions, and a formulaic recitation of the elements of a cause
of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations,
alterations, and internal quotation marks omitted). Indeed, Rule 8 of the Federal Rules of Civil
Procedure “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Nor does a complaint suffice if it tenders naked
assertions devoid of further factual enhancement.” Id. (alteration and internal quotation marks
omitted). Instead, a complaint’s “[f]actual allegations must be enough to raise a right to relief
above the speculative level.” Twombly, 550 U.S. at 555. Although “once a claim has been stated
adequately, it may be supported by showing any set of facts consistent with the allegations in the
complaint,” id. at 563, and a plaintiff must allege “only enough facts to state a claim to relief that
is plausible on its face,” id. at 570, if a plaintiff has not “nudged [his or her] claim[] across the
line from conceivable to plausible, the[] complaint must be dismissed,” id.; see also Iqbal, 556

15

U.S. at 679 (“Determining whether a complaint states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to draw on its judicial experience and
common sense. But where the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the
pleader is entitled to relief.’” (citation omitted) (second alteration in original) (quoting Fed. R.
Civ. P. 8(a)(2))); id. at 678–79 (“Rule 8 marks a notable and generous departure from the hypertechnical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a
plaintiff armed with nothing more than conclusions.”).
“[W]hen ruling on a defendant’s motion to dismiss, a judge must accept as true all of the
factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam); see also Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (“In addressing the sufficiency
of a complaint we accept as true all factual allegations . . . .” (internal quotation marks omitted));
Aegis Ins. Servs., Inc. v. 7 World Trade Co., 737 F.3d 166, 176 (2d Cir. 2013) (“In reviewing a
dismissal pursuant to Rule 12(b)(6), we . . . accept all factual allegations in the complaint as
true . . . .” (internal quotation marks and alterations omitted)). Further, “[f]or the purpose of
resolving [a] motion to dismiss, the Court . . . draw[s] all reasonable inferences in favor of the
plaintiff.” Daniel v. T & M Prot. Res., Inc., 992 F. Supp. 2d 302, 304 n.1 (S.D.N.Y. 2014)
(citing Koch v. Christie’s Int’l PLC, 699 F.3d 141, 145 (2d Cir. 2012)). Additionally, “[i]n
ruling on a 12(b)(6) motion, . . . a court may consider the complaint[,] . . . any written instrument
attached to the complaint as an exhibit[,] or any statements or documents incorporated in it by
reference,” as well as “matters of which judicial notice may be taken, and documents either in
[the] plaintiffs’ possession or of which [the] plaintiffs had knowledge and relied on in bringing
suit.” Kalyanaram v. Am. Ass’n of Univ. Professors at N.Y. Inst. of Tech., Inc., 742 F.3d 42, 44

16

n. 1 (2d Cir. 2014) (citation, internal quotation marks, and some alterations omitted); see also
Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (“In adjudicating a Rule
12(b)(6) motion, a district court must confine its consideration to facts stated on the face of the
complaint, in documents appended to the complaint or incorporated in the complaint by
reference, and to matters of which judicial notice may be taken.” (internal quotation marks
omitted)); Hendrix v. City of New York, No. 12-CV-5011, 2013 WL 6835168, at *2 (E.D.N.Y.
Dec. 20, 2013) (same).
B. Analysis
Defendants move to dismiss the Second Amended Complaint because Plaintiff (1) fails to
allege that OCR has an illegal policy, fails to seek relief from such a policy, and relies on the
content of the Letter of Findings, which is not subject to judicial review; (2) fails to state a claim
regarding its allegation that OCR has an arbitrary and capricious unwritten policy of issuing
Letters of Findings before completing an investigation; and (3) fails to establish subject matter
jurisdiction over OCR’s policy (as codified in the CPM) of issuing Letters of Findings after
completing an investigation and entering a resolution agreement, because that policy decision is
committed to agency discretion. Because the third contention “goes to the power of the [C]ourt
to hear and decide the case,” Atlantica Holdings v. Sovereign Wealth Fund Samruk-Kazyna JSC,
813 F.3d 98, 114 n.8 (2d Cir. 2016), pet. for cert. filed, No. 16-201 (Aug. 12, 2016), the Court’s
analysis begins there. Afterward, if the Court has jurisdiction, it will consider whether Plaintiff
has plausibly alleged final agency action capable of judicial review in the form of either (1) the
Letter of Findings or (2) an unwritten policy of issuing Letter of Findings before completing an
investigation.

17

1. Whether OCR’s Procedures Are Committed To Agency Discretion
As noted, “[a]gency action made reviewable by statute and final agency action for which
there is no other adequate remedy in a court [is] subject to judicial review.” 5 U.S.C. § 704.
However, this provision does not apply where the “agency action is committed to agency
discretion by law.” 5 U.S.C. § 701(a)(2). According to Defendant, such is the case here. (See
Defs.’ Mem. 18–22.)
In general, “[t]here is a strong presumption favoring judicial review of administrative
action.” Salazar v. King, 822 F.3d 61, 75 (2d Cir. 2016) (citing, inter alia, Mach Mining, LLC v.
EEOC, 135 S. Ct. 1645, 1651 (2015)); see also Bowen v. Mich. Acad. of Family Physicians, 476
U.S. 667, 670 (1986) (noting “the strong presumption that Congress intends judicial review of
administrative action”).6 Indeed, “judicial review of a final agency action by an aggrieved
person will not be cut off unless there is persuasive reason to believe that such was the purpose
of Congress.” Bowen, 476 U.S. at 670. However, the exception for “agency
action . . . committed to agency discretion by law,” 5 U.S.C. § 701(a)(2), is triggered where
“there is no law to apply,” Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 410
(1971) (internal quotation marks omitted), overruled on other grounds by Califano v. Sanders,

6

Here, as elsewhere, the Court cites relevant authority decided after the Parties’ briefing
of the instant Motion. Nevertheless, that authority did not meaningfully change the landscape of
administrative law and deals with issues briefed by the Parties. It is therefore appropriate to
consider. See, e.g., Bank of N.Y. Mellon v. WMC Mortg., LLC, No. 12-CV-7096, 2015 WL
4163343, at *3 n.5 (S.D.N.Y. July 10, 2015) (considering a New York Court of Appeals decision
even though it was decided “after briefing was complete in th[e] case,” where “[t]he [Court of
Appeals] decision . . . affirmed a substantial body of case law” reaching a particular conclusion);
cf. also Sinoying Logistics Pte Ltd. v. Yi Da Xin Trading Corp., 619 F.3d 207, 215 (2d Cir. 2010)
(applying a Second Circuit decision even where it post-dated the facts at issue in the pending
case, reasoning that “a rule applied to the parties in a case before the Court ‘is the controlling
interpretation of federal law and must be given full retroactive effect in all cases still open on
direct review and as to all events, regardless of whether such events predate or postdate our
announcement of the rule’” (quoting Harper v. Va. Dep’t of Taxation, 509 U.S. 86, 97 (1993))).
18

430 U.S. 99, 105 (1977); see also Westchester v. U.S. Dep’t of Hous. & Urban Dev., 778 F.3d
412, 419 (2d Cir. 2015) (“Th[e] exception to the availability of judicial review [found in
§ 701(a)(2)] ‘applies only in those rare instances where statutes are drawn in such broad terms
that in a given case there is no law to apply.’” (quoting Sharkey, 541 F.3d at 91)). This will be
so when “no judicially manageable standards are available for judging how and when an agency
should exercise its discretion.” Heckler v. Chaney, 470 U.S. 821, 830 (1985); see also Tomsha,
2016 WL 3538380, at *4 (“Section 701(a)(2) bars judicial review of claims only if there is no
law to apply, such that there is no meaningful standard against which to judge the agency’s
exercise of discretion.” (citation and internal quotation marks omitted)). “To determine whether
there is ‘law to apply’ that provides ‘judicially manageable standards’ for judging an agency’s
exercise of discretion, the courts look to the statutory text, the agency’s regulations, and informal
agency guidance that govern the agency’s challenged action.” Salazar, 822 F.3d at 76 (citing
Westchester, 778 F.3d at 419; Chaney, 470 U.S. at 830). “Agency regulations and guidance can
provide a court with law to apply because, ‘as the Supreme Court noted where the rights of
individuals are affected, it is incumbent upon agencies to follow their own procedures. This is so
even where the internal procedures are possibly more rigorous than otherwise would be
required.’” Id. (alteration and some internal quotation marks omitted) (quoting Montilla v.
I.N.S., 926 F.2d 162, 167 (2d Cir. 1991)); see also GoJet Airlines, LLC v. F.A.A., 743 F.3d 1168,
1173 (8th Cir. 2014) (noting that the “narrow presumption of unreviewability” found in
§ 701(a)(2) “does not apply if . . . the agency has made clear its intent that a policy statement or
set of enforcement guidelines impose binding limitations on the exercise of its enforcement
discretion,” and further noting that, in applying this standard, it is relevant whether the agency
policy or procedural rule at issue is “intended primarily to confer important procedural benefits

19

upon individuals in the face of otherwise unfettered discretion.” (internal quotation marks
omitted)); Sec’y of Labor v. Twentymile Coal Co., 456 F.3d 151, 158–59 (D.C. Cir. 2006)
(noting that “judicially manageable standards may be found in formal and informal policy
statements and regulations as well as in statutes,” but cautioning that, “in determining whether
agency statements create such a standard, the operative question is whether the statements create
binding norms” (internal quotation marks omitted)); Spencer Enters., Inc. v. United States, 345
F.3d 683, 688 (9th Cir. 2003) (“Even where statutory language grants an agency unfettered
discretion, its decision may nonetheless be reviewed if regulations or agency practice provide a
meaningful standard by which this court may review its exercise of discretion.” (alteration and
internal quotation marks omitted)); South Dakota v. Ubbelohde, 330 F.3d 1014, 1027–28 (8th
Cir. 2003) (treating as “law to apply” for purposes of 5 U.S.C. § 701(a)(2) the Army Corps of
Engineers’ Missouri River Main Stem Reservoir System Reservoir Regulation Manual, which
“set[] out priorities and direct[ed] the Corps to take certain actions in given situations,” and was
“binding on the Corps because it set[] out substantive requirements, and [because] its language
and context indicate that it was intended to bind the Corps’s discretion”).
Therefore, in its hunt for “law to apply,” Citizens to Pres. Overton Park, 401 U.S. at 410,
the Court begins with “the statutory text,” Salazar, 822 F.3d at 76. Here, as alleged, the
Department’s letter indicated that its actions were undertaken pursuant to “its duties to enforce
Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000d et seq., . . . and its
implementing regulation at 34 C.F.R. Part 100 . . . .” (Second Am. Compl. ¶ 10.) Under 42
U.S.C. § 2000d, “[n]o person in the United States shall, on the ground of race, color, or national
origin, be excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal financial assistance,” an

20

aspiration given legal teeth through another Title VI provision that “authorize[s] and direct[s]”
“[e]ach Federal department and agency which is empowered to extend [certain] financial
assistance to any program or activity . . . to effectuate” the foregoing provision, among others,
“with respect to such program or activity by issuing rules, regulations, or orders of general
applicability which shall be consistent with achievement of the objectives of the statute
authorizing the financial assistance in connection with which the action is taken,” 42 U.S.C.
§ 2000d-1. More specifically, the statute provides two mechanisms by which “[c]ompliance
with any requirement adopted pursuant to this section may be effected,” specifically (1) “by the
termination of or refusal to grant or to continue assistance under [the relevant] program or
activity,” subject to certain limitations, or (2) “by any other means authorized by law,” subject,
again, to certain other limitations. Id. Because the Department’s actions in this case plainly
were not the former, the inquiry becomes whether there is “law to apply,” Citizens to Pres.
Overton Park, 401 U.S. at 410, to the question of whether the Department’s “means [were]
authorized by law,” 42 U.S.C. § 2000d-1.7

7

One passing point: Title VI provides that “[a]ny department or agency action taken
pursuant to section 2000d-1 . . . shall be subject to such judicial review as may otherwise be
provided by law for similar action taken by such department or agency on other grounds,” and, in
an apparent reference to the first mechanism for ensuring compliance found in § 2000d-1, also
indicates that “[i]n the case of action, not otherwise subject to judicial review, terminating or
refusing to grant or to continue financial assistance upon a finding of failure to comply with any
requirement imposed pursuant to [§] 2000d-1 . . . , any person aggrieved . . . may obtain judicial
review of such action in accordance with” the judicial review procedures of the APA, “and such
action shall not be deemed committed to unreviewable agency discretion within the meaning of
that chapter.” 42 U.S.C. § 2000d-2 (emphasis added). A textual argument could be made that,
by expressly noting that compliance mechanism #1 (i.e., withholding financial assistance) was
not “deemed committed to unreviewable agency discretion within the meaning of that chapter,”
id., Congress insinuated that procedures adopted to compliance mechanism #2 (i.e., any other
means authorized by law) may well be unreviewable, either because it is committed to agency
discretion or because § 2000d-2 through this language “preclude[d] judicial review,” 5 U.S.C.
§ 701(a)(1). However, “[a]s a general matter, the mere fact that some acts are made reviewable
21

From there, the analysis naturally shifts to the regulations. Under the heading of a
provision of the regulations fittingly entitled “[c]onduct of investigations,” see 34 C.F.R.
§ 100.7, whenever a complaint “indicates a possible failure to comply with” those rules that, per
34 C.F.R. § 100.1, are meant to effectuate the purposes of Title VI, “[t]he responsible
Department official or his designee will make a prompt investigation,” which “should include,
where appropriate, a review of the pertinent practices and policies of the recipient, the
circumstances under which the possible noncompliance with this part occurred, and other factors
relevant to a determination as to whether the recipient has failed to comply with this part,” see id.
§ 100.7(c). Where such an investigation pursuant to this regulation “indicates a failure to
comply with this part, the responsible Department official or his designee will so inform the
recipient and the matter will be resolved by informal means whenever possible,” id.
§ 100.7(d)(1); however, where the investigation “does not warrant action . . . [,] the responsible
Department official or his designee will so inform the recipient and the complainant, if any, in
writing,” id. § 100.7(d)(2).
Whether these foregoing principles amount to “law to apply,” Citizens to Pres. Overton
Park, 401 U.S. at 410, depends on where the putative “agency action” (that may be or may not
be “committed to agency discretion by law”) is to be found. 5 U.S.C. § 701(a)(2). More
specifically, the Parties’ submissions seem to conceptualize the challenged action as either the
timing of this Letter of Findings in the context of this investigation, (see Pl.’s Opp’n 15 (arguing
that Defendants’ alleged failure to abide by procedural rules that they adopt “may be overturned
as arbitrary, capricious or an abuse of discretion under the APA”)), or a broader policy of issuing

should not suffice to support an implication of exclusion as to others.” Bowen, 476 U.S. at 674
(alteration and internal quotation marks omitted).
22

Letters of Findings after voluntarily resolving a case, pursuant to which the action in this case
was taken, (see Defs.’ Mem. 21 (arguing that “the Court lacks jurisdiction to review OCR’s
policy” in part “[b]ecause OCR has wide discretion to fashion its own procedural rules and
policies with regard to the timing of issuance of Findings Letters when an investigation indicates
a failure to comply with Title VI”)).
To the extent that the former is the challenged option, the Court has “judicially
manageable standards” guiding “how and when [the Department] should exercise its discretion.”
Chaney, 470 U.S. at 830. Indeed, the regulations provide specific guidance as to how the
responsible Department official is to conduct “[i]nvestigations” and oversee “[r]esolution of
matters.” See 34 C.F.R. § 100.7. By way of just one example, it may be argued that the
Department’s putative failure to interview players who attended the game, (see Second Am.
Compl. ¶ 34), betrayed its failure to appropriately consider “the circumstances under which the
possible noncompliance with this part occurred,” see 34 C.F.R. § 100.7(c). Judging the propriety
of agency action in light of the relevant rules in place is appropriate work for a court, agency
expertise notwithstanding. Cf. Ethyl Corp. v. Envtl. Prot. Agency, 541 F.2d 1, 68 (D.C. Cir.
1976) (Leventhal, J., concurring) (arguing that, “[i]n the case of agency decisionmaking[,] . . . Congress has been willing to delegate its legislative powers broadly and courts
have upheld such delegation because there is court review to assure that the agency exercises the
delegated power within statutory limits, and that it fleshes out objectives within those limits by
an administration that is not irrational or discriminatory” (footnote omitted)). Moreover, OCR’s
Complaint Processing Procedures and Case Processing Manual provide guidelines for resolution
agreements as well as guidance as to the resolution of a complaint prior to the conclusion of an
investigation, during an investigation, and after a determination of noncompliance. (See Second

23

Am. Compl. ¶¶ 11, 13, 16–17.) This “[a]gency . . . guidance can provide a court with law to
apply,” Salazar, 822 F.3d at 76, and, for what it may be worth, looks to have “create[d] binding
norms,” Twentymile Coal Co., 456 F.3d at 159 (internal quotation marks omitted), as to how
OCR conducts investigations. Therefore, at bottom, there is “law to apply.” Citizens to Pres.
Overton Park, 401 U.S. at 410.8
If, however, the relevant agency action at issue is not this letter, but rather the adoption of
a policy of issuing Letters of Findings after voluntary resolution of a case, matters become more
interesting. In support of their argument that the Court lacks subject matter jurisdiction,
Defendants invoke the Supreme Court’s decision in Vermont Yankee Nuclear Power Corp. v.
Natural Resources Defense Council, Inc., 435 U.S. 519, 519 (1978). As Defendants correctly
note, (see Defs.’ Mem. 19–20), in that case, the Supreme Court, acknowledging the benefits of
agency expertise, cautioned courts against imposing new procedural requirements where the
agencies did not adopt such restrictions themselves, see Vt. Yankee, 435 U.S. at 524 (“Agencies
are free to grant additional procedural rights in the exercise of their discretion, but reviewing
courts are generally not free to impose them if the agencies have not chosen to grant them.”). To
the extent that Plaintiff’s position is, in fact, that no agency rule barred the issuance of a Letter of
Findings before resolution of an investigation, but that one should have, it would run afoul of
Vermont Yankee.
But the Court does not think that is what Plaintiff is arguing. Rather, Plaintiff takes issue
not with Defendants’ failure to take worthwhile action, but rather its decision to take allegedly

8

Of course, such a line of argumentation might be inconsistent with the Court’s holding
in its prior opinion. (See Am. Op. & Order 49 (noting that “not only [did] Plaintiff fail to allege
in its Amended Complaint that it is challenging any OCR policy—Plaintiff actually appear[ed] to
allege that OCR’s issuance of the Letter of Findings was wrongful in part because it violated
OCR policy”).)
24

improper action. To the extent that Plaintiff’s position is that Defendants reversed course and
silently shelved its prior approach to resolving matters and, instead, adopted a policy of issuing
Letters of Finding in circumstances such as these, there is little question that federal courts
regularly interdict such conduct. See, e.g., F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502,
515 (2009) (“An agency may not . . . depart from a prior policy sub silentio or simply disregard
rules that are still on the books.”); Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 42 (1983) (“[A]n agency changing its course by rescinding a rule is
obligated to supply a reasoned analysis for the change beyond that which may be required when
an agency does not act in the first instance.”); Mexichem Specialty Resins, Inc. v. E.P.A., 787
F.3d 544, 557 (D.C. Cir. 2015) (noting “the doctrine requiring agencies to give reasons before
they rescind rules”). And while Defendants have forcefully argued that agencies’ decisions to
adopt rules of procedures are matters with which courts traditionally do not interfere, (see Defs.’
Mem. 18–22), that principle does not counsel the same level of forbearance when an agency
changes rules, see State Farm, 463 U.S. at 42. Defendant has provided no reason, and the Court
is not aware of any, why such a decision would be committed to its discretion within the
meaning of § 701(a)(2) despite the ordinary proscription of an agency’s unprincipled,
unexplained change of rules. Absent some basis to so conclude, the Court will not second-guess
the otherwise self-evident conclusion that Plaintiff has established that subject matter jurisdiction
exists. See Tandon, 752 F.3d at 243.
2. Was The Letter of Findings Final Agency Action?
Next, Defendants argue that Plaintiff’s challenge to OCR’s letter is not final agency
action for the same reasons identified in the Court’s prior Opinion, (see Defs.’ Mem. 11–12),

25

and, to the extent that Plaintiffs are now challenging a policy of issuing letters, its claim is
hopelessly implausible, (see id. at 12–17).
To begin, there are “two conditions that generally must be satisfied for agency action to
be ‘final’ under the APA.” U.S. Army Corps of Eng’rs v. Hawkes Co., 136 S. Ct. 1807, 1813
(2016). “First, the action must mark the consummation of the agency’s decisionmaking
process—it must not be of a merely tentative or interlocutory nature.” Id. (internal quotation
marks omitted); see also Salazar, 822 F.3d at 82 (same). “[S]econd, the action must be one by
which rights or obligations have been determined, or from which legal consequences will flow.”
Hawkes, 136 S. Ct. at 1813 (internal quotation marks omitted); see also Salazar, 822 F.3d at 82
(same). The second prong will be satisfied where the agency’s action “gives rise to ‘direct and
appreciable legal consequences.’” Hawkes, 136 S. Ct. at 1814 (quoting Bennett v Spear, 520
U.S. 154, 178 (1997)).
In its prior Opinion, the Court found that because OCR’s issuance of the Letter of
Findings failed the second prong of the finality test, it was unnecessary to address the first prong
(although the Court noted that it seemed unlikely that that action would satisfy the first prong
regardless). (Am. Op. & Order 41–42 & n.8.) The Court acknowledged that although the Letter
of Findings did not qualify as final agency action, a potential policy of issuing Letters of Finding
despite previously entering into resolution agreements might constitute a “determination of rights
or obligations,” and therefore might fulfill the second prong of the finality test. (Id. at 47–48
(citing Venetian Casino Resort, L.L.C. v. E.E.O.C., 530 F.3d 925, 931 (D.C. Cir. 2008)
(“Adopting a policy of permitting employees to disclose confidential information without notice
is surely a ‘consummation of the agency’s decisionmaking process,’ and ‘one by which [the
submitter’s] rights [and the agency’s] obligations have been determined.’” (alterations in

26

original))).) The Letter of Findings makes clear that the letter itself “is not a formal statement of
OCR policy and should not be relied upon, cited, or construed as such. OCR’s formal policy
statements are approved by a duly authorized OCR official and made available to the public.”
(Letter of Findings 3–4.) As a result, the Court indicated that Plaintiff would need to allege a
separate policy outside the bounds of the Letter of Findings at issue to sufficiently state a
reviewable claim involving final agency action.
The Court adheres to its earlier decision. “The law-of-the-case doctrine generally
provides that when a court decides upon a rule of law, that decision should continue to govern
the same issues in subsequent stages in the same case,” Musacchio v. United States, 136 S. Ct.
709, 716 (2016) (alteration and internal quotation marks omitted)), and, accordingly, courts
should “be loathe to [revisit earlier decisions] in the absence of extraordinary circumstances,”
Knox v. Countrywide Bank, No. 13-CV-3789, 2015 WL 5254519, at *5 (E.D.N.Y. July 29, 2015)
(quoting Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988)), adopted by
2015 WL 5285738 (Sept. 9, 2015), appeal filed, No. 16-155 (Jan. 15, 2016). Here, there is no
reason to revisit the Court’s prior holding. Simply put, not every letter from an administrative
agency articulating its views qualifies as final agency action, see, e.g., Pebble Ltd. P’ship v. U.S.
E.P.A., 604 F. App’x 623, 625 (9th Cir. 2015) (finding a letter from the EPA regional
administrator announcing the commencement of review proceedings under § 404(c) of the Clean
Water Act to fulfill neither prong of the final agency action test); Paskar v. U.S. Dep’t of
Transp., 714 F.3d 90, 91, 96–97 (2d Cir. 2013) (finding no final reviewable agency action in a
letter indicating that the FAA agreed with an expert panel’s finding that New York City’s plan to
reopen a particular coastal garbage transfer facility would be compatible with safe air operations
as long as several recommendations were followed); Jallali v. Sec’y, U.S. Dep’t of Educ., 437 F.

27

App’x 862, 865 (11th Cir. 2011) (per curiam) (finding no final agency action in a Department of
Education letter informing a student that it did not have authority to provide the requested relief
in connection with a complaint), and Plaintiff has provided no basis for the Court to revisit its
earlier conclusion.
Of course, the Court also provided Plaintiff with an opportunity to amend its Complaint
one additional time to include allegations that, in issuing the Letter of Findings, Defendants acted
pursuant to a policy to be challenged. (Id. at 50, 68.) To that end, Plaintiff’s Second Amended
Complaint submitted pursuant to that instruction contains three additions:
The issuance by OCR of the Letter of Findings was made pursuant to a policy the
Department has adopted of OCR issuing such adverse finding [sic] letters after
entering into resolution agreements with the subject of complaints, particularly
when its investigators have expended what it considers to be substantial time and/or
resources in the investigation of a complaint, whether or not it has actually
completed its investigation before the resolution agreement was entered into.
....
The determinations . . . in the Letter of Findings . . . [were] based upon a policy
established by the Department of issuing adverse finding [sic] letters to subjects of
complaints even after resolution agreements have been entered into by such
subjects, particularly where OCR has expended what it considers to be substantial
time and/or resources in the investigation of a complaint, whether or not it has
actually completed its investigation before the resolution agreement was entered
into.
....
The . . . determinations . . . in the Letter of Findings . . . [were] the result of a policy
adopted by the Department that is inconsistent with its own Case Processing
Manual . . . .
(Second Am. Compl. ¶¶ 29, 49, 50.)
These three additional notations do not sufficiently allege that OCR issues Letters of
Findings prior to completion of investigations as a matter of policy, outside the realm of this
particular case. Simply put, these new allegations are classic conclusory statements. Just as it is
28

too conclusory, in a complaint seeking relief under a statute proscribing actions taken pursuant to
a conspiracy, to posit that a conspiracy existed where the conduct described was “consistent with
conspiracy, but just as much in line with a wide swath of [other] rational and competitive
business strategy,” see Twombly, 550 U.S. at 553–54, or to allege, in a case where relief
ultimately turns on showing “that [government actors] adopted a policy because of, not merely in
spite of, its adverse effects upon an identifiable group,” that officials took actions “as a matter of
policy, solely on account of [certain proscribed bases],” Iqbal, 556 U.S. at 680–81 (internal
quotation marks omitted), so, too, is it equally unsatisfactory here to try to meet the requirements
of 5 U.S.C. § 704 by alleging without further factual support that a policy was adopted, cf.
Means v. City of New York, No. 15-CV-4855, 2016 WL 1337278, at *3 (S.D.N.Y. Apr. 5, 2016)
(noting in context of claim brought pursuant to Monell v. Department of Social Services, 436
U.S. 658 (1978), that “[c]onclusory allegations that a non-supervisory official ‘acted pursuant to
a “policy,” without any facts suggesting the policy’s existence, are plainly insufficient.’”
(quoting Missel v. County of Monroe, 351 F. App’x 543, 545 (2d Cir. 2009)).
Indeed, this is not a case where a policy of some kind was plainly adopted and
illuminated, albeit imperfectly, by an agency’s manual, cf. Venetian Casino Resort, 530 F.3d at
931; rather, at best, Plaintiff has alleged that Defendants took certain action with respect to it and
asks the Court to surmise therefrom the existence of a broader policy. That is, however, not
enough for purposes of § 704. See Bark v. U.S. Forest Serv., 37 F. Supp. 3d 41, 50 (D.D.C.
2014) (“Plaintiffs appear to have attached a ‘policy’ label to their own amorphous description of
the [defendant government agency’s] practices. But a final agency action requires more.”). In
this respect, Plaintiff’s case is particularly infirm because, even if Plaintiff’s allegations
established that a policy existed, the Second Amended Complaint is simply bereft of allegations

29

related to its adoption. Compare Venetian Casino Resort, 530 F.3d at 931 ("Adopting a policy
of permitting employees to disclose confidential information without notice is surely [final
agency action]."), with Cabell v. Kempthorne, 455 F.3d 301, 307 (D.C. Cir. 2006) ("Because an
on-going program or policy is not, in itself, a 'final agency action' under the APA, our
jurisdiction does not extend to reviewing generalized complaints about agency behavior." (some
internal quotation marks omitted)). To the contrary, although the Second Amended Complaint
states that OCR's alleged unwritten policy exists, it provides no indication as to why Plaintiff
draws that conclusion, and, even upon elaboration in its Memorandum of Law, Plaintiff asserts
only that "it is a reasonable inference to draw from these facts [in the current case] that ... the
defendant's [sic] decision to issue the Letter of Findings was based upon a policy or practice
established by OCR .. . ." (Pl.'s Opp',n 9.) In short, "[Defendants'] alleged 'policy' of issuing
[Letter of Findings after resolution agreements have been entered into] is found in no
authoritative text, and is instead a generalized complaint about agency behavior that gives rise to
no cause of action." Bark, 37 F. Supp. 3d at 51.
III. Conclusion
Accordingly, Defendants' Motion To Dismiss is granted. The Clerk is respectfully
directed to terminate the pending Motion, (see Dkt. No. 49), and to close this case.
SO ORDERED.
Dated:

OctoberS , 20 16
White Plains, New York

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