Prete v. Roger Williams University School of Law et al
Filing
16
MEMORANDUM AND ORDER granting Defendants' 4 Motion to Dismiss for Lack of Jurisdiction. So Ordered by Judge Joseph N Laplante (New Hampshire) on 12/12/2012. (Duhamel, John)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Michael Eric Prete
v.
Civil No. 12-cv-474-JL
Roger Williams University
School of Law and Christopher
Neronha
MEMORANDUM ORDER
This age discrimination case arises out of Roger Williams
University School of Law’s (the “law school”) decision to deny
early admission to plaintiff Michael Eric Prete.
Prete has
brought suit against the law school and Christopher Neronha, the
Associate General Counsel for Roger Williams University, alleging
that the law school denied him admission as an undergraduate
junior on the basis of his age, in violation of the Equal
Protection Clause of the Fourteenth Amendment, U.S. Const. amend.
XIV, § 1, cl. 4, and the Age Discrimination in Federally Assisted
Programs Act (“Age Discrimination Act”), 42 U.S.C. § 6101 et seq.
The defendants moved to dismiss, arguing the court lacks subject
matter jurisdiction and that Prete has failed to state a claim.
See Fed. R. Civ. P. 12(b).
This court has jurisdiction over the equal protection
challenge pursuant to 28 U.S.C. § 1331 (federal question).
The
parties disagree as to whether the court possesses subject matter
jurisdiction over Prete’s Age Discrimination Act claim.
After
hearing oral argument on both the defendant’s motion to dismiss
and Prete’s motion for a preliminary injunction, the court
concludes that it cannot entertain Prete’s Age Discrimination Act
claim because Prete neither provided notice to defendants nor
exhausted his administrative remedies before filing suit.1
Prete’s equal protection claim also fails because the law school
is not a state actor bound by the Fourteenth Amendment.
1
Whether the Age Disability Act’s notice and exhaustion
requirements are jurisdictional in nature has not been decided by
our Court of Appeals. Other courts have treated this issue
differently. Compare Curto v. Smith, 248 F. Supp. 2d 132, 145
(N.D.N.Y. 2003) (holding that the trial court lacks subject
matter jurisdiction when administrative remedies are not
exhausted), with Jackson v. Bd. of Educ., No. 10-C-5710, 2012 WL
3079259 (N.D. Ill. July 27, 2012) (explaining that the Act’s
exhaustion and notice requirements are conditions precedent for
filing suit); see also Parker v. Bd. of Sup’rs Univ. of
Louisiana-Lafayette, 296 Fed. Appx. 414, 418-19 (5th Cir. 2008)
(declining to rule on the issue). Because the answer does not
change the outcome of this case, the court expresses no opinion
as to the proper resolution of that question.
2
I.
Applicable legal standards
Under Rule 12(b)(6), the plaintiff’s complaint must make
factual allegations sufficient to “state a claim to relief that
is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)).
In ruling on a Rule 12(b)(6) motion, the court must
accept as true all well-pleaded facts set forth in the complaint
and must draw all reasonable inferences in the plaintiff’s favor.
See, e.g., Martino v. Forward Air, Inc., 609 F.3d 1, 2 (1st Cir.
2010).
The court “may consider not only the complaint but also
facts extractable from documentation annexed to or incorporated
by reference in the complaint and matters susceptible to judicial
notice.”
Rederford v. U.S. Airways, Inc., 589 F.3d 30, 35 (1st
Cir. 2009) (internal quotation omitted).
With the facts so
construed, “questions of law [are] ripe for resolution at the
pleadings stage.”
Simmons v. Galvin, 575 F.3d 24, 30 (1st Cir.
2009).
The standard of decision for a motion to dismiss for lack of
subject matter jurisdiction under Rule 12(b)(1) is identical to
that applicable to Rule 12(b)(6) motions, Sam M. ex. rel. Elliot
v. Chafee, 800 F. Supp. 2d 363, 370 (D.R.I. 2011), however, a
motion to dismiss for lack of subject-matter jurisdiction
3
“involves a court’s power to hear a case.”
Corp., 546 U.S. 500, 514 (2006).
limited jurisdiction.
Arbaugh v. Y & H
“Federal courts are courts of
They possess only that power authorized by
Constitution and statute, which is not to be expanded by judicial
decree.”
Kokkonen v. Guardian Life Ins. Co. of Amer., 511 U.S.
375, 377 (1994).
Consequently, a court without jurisdiction over
a claim must dismiss it.
Fed. R. Civ. P. 12(h)(3).
“The burden
of proving federal court jurisdiction is on the party invoking
the jurisdiction.”
Pejepscot Indus. Park, Inc. v. Maine Cent. R.
Co., 215 F.3d 195, 200 (1st Cir. 2000).
II.
Background
Prete, age 20 as of July 16, 20122, is an undergraduate
student at Roger Williams University in Bristol, Rhode Island.
Roger Williams University School of Law is an ABA-accredited law
school also located in Bristol.
The law school is a private
institution that receives financial assistance from the federal
government.
2
In his complaint, Prete did not provide his age at the time
he was denied admission. The earliest mention of his age in the
record, though not his age at the time of the alleged
discrimination, is in Prete’s objection to the defendant’s motion
to dismiss. Pl.’s Obj. Def.’s Mot. Dismiss (document no. 9) at
1.
4
In 2010, Roger Williams University accepted Prete into its
“Three-Plus-Three program.”
The program allows Roger Williams
University undergraduate students to begin their first year of
law school during their fourth year of undergraduate study-provided they are able to gain early admission to the law school.
Early acceptance into the law school is guaranteed to students
who (1) satisfy Roger Williams University’s undergraduate
requirements, (2) achieve a Law School Admissions Test (“LSAT”)
score that is at or above the law school’s median accepted score
for the prior year, and (3) present no serious character or
fitness issues.
Prete sat for the LSAT during the first semester of his
junior year.
He scored 149, two points below the law school’s
median accepted LSAT score in the year prior to his application.
After receiving his results, Prete contacted the law school and
was informed that his score was not at or above the median
accepted score of 151 and that he would not be guaranteed early
admission.
The law school, however, invited Prete to apply for
admission the following year, his senior year of undergraduate
study.
Undeterred, Prete applied for early admission anyway.
His application was denied.
5
The parties agree that Prete’s LSAT score did not qualify
him for guaranteed entry.
According to Prete, the combination of
his GPA and LSAT scores would have resulted in his admission into
the law school had he been a college senior rather than an
undergraduate junior.
In short, Prete (completely ignoring the
difference between a junior and senior under the law school’s
admissions policies) alleges there was “no academic reason for
denial of acceptance into law school” and that he was denied
admission because of his age.
Prete filed this suit in the
Providence Superior Court and defendants removed the case to this
court.
III. Analysis
A.
Age Discrimination Act claim
Prete’s age discrimination claim rests on the allegation
that, because the law school denied him early admission as a
junior when it would have admitted a similarly-situated senior,
his age was the motivating factor in the law school’s decision.
Rather than exploiting the manifest absurdity of Prete’s
substantive argument (there is no serious dispute that the law
school denied Prete’s admission because he was neither a college
graduate nor an undergraduate junior who met the law school’s
6
early admissions requirements, and not because of his age)3, the
defendants instead argue that this court lacks subject matter
jurisdiction over Prete’s Age Discrimination Act claim because
Prete did not exhaust administrative remedies or give notice as
required under the statute.
42 U.S.C. § 6104.
Alternatively,
the defendants argue that Prete has failed to state a claim on
which relief may be granted for the same reason.
Prete answers
that the notice and exhaustion requirements do not apply to his
suit because he originally filed his case in Rhode Island state
court.
He is incorrect.
The Age Discrimination Act “prohibit[s] discrimination on
the basis of age in programs or activities receiving Federal
financial assistance.”
42 U.S.C. § 6101.
To achieve this
purpose, Congress has directed each agency distributing federal
financial assistance to promulgate regulations creating an
administrative process to remedy violations.
Id. §§ 6103,
6104(a).
3
As the defendants note, “[o]ne’s year in a university,
whether freshman, sophomore, junior, or senior, is not associated
with a specific age. Rather one’s classification is determined
by the completion of certain academic requirements. One could be
a sophomore who is a 12 year old child prodigy or a freshman who
is a senior citizen returning to school.” Def.’s Obj. to Pl.’s
Emer. Mot. for Inj. (document no. 13) at 3; see Wheat v. Mass,
994 F.2d 273, 276 (5th Cir. 1993).
7
The Act’s notice and exhaustion provisions are contained in
Section 6104(e).
Section 6104(e)(1), the notice provision,
specifies that,
[w]hen any interested person brings an action in any United
States district court for the district in which the
defendant is found or transacts business to enjoin a
violation of this Act by any program or activity receiving
Federal financial assistance, such interested person shall
give notice by registered mail not less than 30 days prior
to the commencement of the action to Secretary of Health and
Human Services, the Attorney General of the United States,
and the person against whom the action is directed.
Id. § 6104(e)(1) (emphasis added).
Section 6104(e)(2), the
exhaustion provision, directs that no action referred to in
6104(e)(1) may be filed unless administrative remedies are
exhausted.
Id. § 6104(e)(2).
Prete concedes he has satisfied neither the Act’s notice nor
its exhaustion provisions.
is fatal to his suit.
The law school argues that this fact
Prete counters that Section 6104(e) does
not apply to civil actions originally filed in state courts, such
as his, because the statute, by its terms, relates only to
actions filed in U.S. District Court.
But Prete’s argument is
based on the underlying assumption that the Age Discrimination
Act gives him a cause of action in state court.
Prete has not
provided any authority or reasoned argument to support his
premise, and the court rejects it.
8
Section 6104(e) of the Act creates a limited private right
of action to seek injunctive relief in federal district court.
See, e.g., Long v. Fulton County Sch. Dist., 807 F. Supp. 2d
1274, 1286 (N.D. Ga. 2011); Rannels v. Hargrove, 731 F. Supp.
1214, 1219-20 (E.D. Pa. 1990).
The court has not found, and the
parties have not cited, any authority supporting an implied right
to sue in state court.4
In fact, regulations promulgated under
the Act state the opposite, requiring the Department of Education
to inform complainants, upon administrative exhaustion, that “a
civil action can be brought only in a United States district
court for the district in which the recipient is found or
transacts business.”
34 C.F.R. § 110.39(b)(3)(I)(emphasis
added); see also 45 C.F.R. § 90.50(b)(3)(I); Becker v. Washington
State Univ., 266 P.3d 893, 902 (Wash. App. 2011) (“42 U.S.C.
6104(e)(1) requires any private civil action under the [Age
Discrimination Act] to be brought in a United States District
Court for the district in which the recipient is found or
4
Prete cites to DeFunis v. Odegaard, 507 P.2d 1169 (Wash.
1973), vacated, 416 U.S. 312 (1974), as authority for his assumed
state court cause of action. This reliance is misplaced. The
DeFunis case is not an Age Discrimination Act case; it is a equal
protection challenge.
9
transacts business.”).
Nevertheless, Prete insists that the Act
creates a cause of action in state court.
For Prete to succeed, the court must find that the Act
implies the right and remedy underlying his premise.
See
Transamerica Mortg. Advisors, Inc. (TAMA) v. Lewis, 444 U.S. 11,
15-16 (1979).
“The interpretive inquiry begins with the text and
structure of the statute. . . and ends once it has become clear
that Congress did not provide a cause of action.”
Sandoval, 532 U.S. 275, 288, n. 7 (2001).
Alexander v.
As noted by the
Supreme Court:
The judicial task is to interpret the statute Congress
has passed to determine whether it displays an intent
to create not just a private right but also a private
remedy. Statutory intent on the latter point is
determinative. Without it, a cause of action does not
exist and courts may not create one, no matter how
desirable that might be as a policy matter, or how
compatible with the statute. Raising up causes of
action where a statute has not created them may be a
proper function for common-law courts, but not for
federal tribunals.
Id. at 286-87 (internal citations and quotations omitted); see
also Cox v. Boston Consol. Gas Co., 67 F. Supp. 742, 745 (D.
Mass. 1946) aff'd, 161 F.2d 680 (1st Cir. 1947) (applying the
casus omissus pro omisso habendus est canon--“nothing is to be
added to what the text states or reasonably implies”).
Accordingly, “a federal statute ordinarily should be read as
10
written, in effect creating a presumption against importing, by
implication, a private right of action.”
San Juan Cable, LLC v.
Puerto Rico Telephone Co., 612 F.3d 25, 30 (1st Cir. 2010);
accord Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 68 (1st Cir.
2002) (“the explicit provision of remedies within a statute cuts
sharply against the implication of a private right of action”).
Prete assumes, but has not demonstrated, that Congress
created either a private right to sue in state court or a remedy
for state courts to administer.
The only private cause of action
created by the Age Discrimination Act is a narrow right to seek
injunctive relief in United States District Court.
Accordingly,
Prete’s assumed premise cannot, necessarily, overcome the
“considerable bite” of the presumption against it.
Cable, 612 F.3d at 30.
See San Juan
The court finds, for the purposes of this
motion to dismiss, that Prete has not established the major
premise of his argument--that the notice and exhaustion
requirements do not apply to state court actions--because the Act
does not authorize actions in state court to begin with.
Even if the Age Discrimination Act did provide for a cause
of action in state court, Prete would not be excused from the
Act=s notice and exhaustion prerequisites by virtue of his
decision to initiate the suit in state court.
11
In support of his
argument to the contrary, Prete emphasizes that, although the
statute clearly requires administrative exhaustion and notice for
“actions brought for relief based on an alleged violation of the
[Age Discrimination Act],” 42 U.S.C. § 6104(e) & (f), the
omission of the phrase “state actions” from Section 6104(e)(1)
provides an exemption from those requirements for actions first
filed in state court.
Prete’s theory is based on the canon expressio unius est
exclusio alterius - or “the expression of one thing is the
exclusion of the other things.”
See generally United States v.
Hernandez-Ferrer, 599 F.3d 63, 67 (1st Cir. 2010).
“The canon
depends on identifying a series of two or more terms or things
that should be understood to go hand in hand, . . . supporting a
sensible inference that the term left out must have been meant to
be excluded.”
(2002).
Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 81
But “an inference drawn from congressional silence . . .
cannot be credited when it is contrary to all other textual . . .
evidence.”
United States v. Vonn, 535 U.S. 55, 65, (2002). In
other words, application of the exclusio unius canon is improper
when it creates ambiguity or conflict.
See Pauley v. BethEnergy
Mines, Inc., 501 U.S. 680, 719 (1991) (rejecting the canon “where
12
its application would render a regulation inconsistent with the
purpose and language of the authorizing statute”).
The Age Discrimination Act created a limited cause of action
for “interested persons” to seek injunctive relief in federal
district court.
The court may entertain this cause of action
only upon exhaustion of administrative remedies and notice to the
appropriate parties.
Such requirements apply to all Act-based
actions to enjoin alleged age discrimination in programs
receiving federal financial assistance.
The court declines to
adopt either Prete’s premise for an implied cause of action in
state court or his construction of the statute exempting state
court actions from Section 6104.
Consequently, Prete’s claim
under the Age Discrimination Act is dismissed because he has
failed to exhaust administrative remedies or provide the
requisite notice for his claim.
B.
Equal Protection claim
Prete’s claim under the Equal Protection Clause relies on
the same premise as his Age Discrimination claim.
The
defendants, again ignoring the patent absurdity of Prete’s age
discrimination theory (see supra pt. A), instead argue that the
13
law school is not a state actor subject to the Fourteenth
Amendment.
The Fourteenth Amendment provides, in pertinent part, that
“no State shall. . . deny to any person within its jurisdiction
the equal protection of the laws.”
cl. 4.
U.S. Const. amend. XIV § 1,
The limited scope of the Equal Protection Clause is well
documented.
The Fourteenth Amendment prohibits only state
action.
See e.g. United States v. Morrison, 529 U.S. 598, 621
(2000).
“The Amendment erects no shield against merely private
conduct, however discriminatory or wrongful.”
Shelley v. Kramer, 334 U.S. 1, 13 (1948)).
Id. (citing
Private action may,
nonetheless, be subject to equal protection scrutiny if the “acts
performed by a nominally private entity. . . comprise state
action.”
Rolon v. Rafael Rosario & Assocs., Inc., 450 F. Supp.
2d 153, 162 (D.P.R. 2006).
Prete acknowledges the law school is a private, nongovernmental entity.
He argues, however, that the defendants are
still subject to the Fourteenth Amendment as state actors.
Private parties may be considered state actors, but only after
consideration of:
(1) whether there was a sufficient nexus between the
state and the private actor which compelled the private
actor to act as it did; (2) whether the private actor
14
has assumed a traditionally public function; or (3)
whether there is a sufficient ‘symbiotic relationship’
between the state and the private actor so that the
state might be recognized as a joint participant in the
challenged activity.
Missert v. Trustees of Boston Univ., 73 F. Supp. 2d 68, 71 (D.
Mass. 1999), aff'd, 248 F.3d 1127 (1st Cir. 2000) (considering
whether a decision by a private university to dismiss a student
from a graduate program was state action).
If the law school=s
actions do not constitute state action under at least one factor
of the test, the inquiry ends.
See Rendell-Baker v. Kohn, 457
U.S. 830, 838 (1982).
At oral argument, Prete relied on the first Missert factor,
the compulsion test.
He argued, in substance, that an
unspecified amount of financial assistance flowing from the
federal government to the law school established a sufficient
nexus to establish state action.
See Blum v. Yaretsky, 457 U.S.
991, 1011 (1992) (identifying receipt of financial assistance as
a method of establishing a nexus between the government and the
private actor).
But the receipt of financial assistance, in and
of itself, does not render a private school subject to the
strictures of the Equal Protection Clause.
U.S. at 840-41.
Rendell-Baker, 457
Rather, the plaintiff must show that the
government, through its distribution of financial assistance,
15
exercised “coercive power” over or “significant encouragement”
for the particular decision challenged.
See Perkins v.
Londonderry Basketball Club, 196 F.3d 13, 19 (1st Cir. 1999).
Prete has not made any such showing here, or even suggested as
much.5
Having failed to identify any legal basis upon which the law
school may be considered a state actor and subjected to equal
protection scrutiny, Prete has not stated a claim for which
relief can be granted.
Consequently, his claim under the equal
protection clause is dismissed.
5
As the defendants point out, the law school is also not
considered a state actor under the other Missert factors. Our
Court of Appeals has conclusively held that education, including
higher education, is not a traditionally exclusive public
function. Missert, 73 F. Supp. 2d at 72-73; accord Johnson v.
Pinkerton Academy, 861 F.2d 335, (1st Cir. 1988) (holding that a
private secondary school, despite a state directive to educate
all children to a certain age, is not a state actor by virtue of
the public function test). Likewise, there is no indication that
the state is a “joint participant” in the law school’s admissions
processes or that the state exercises any measurable influence in
the school’s day-to-day affairs. See Missert, 73 F. Supp. 2d at
72-73.
16
IV.
Conclusion
For the reasons set forth above, the motion to dismiss of
defendants Roger Williams University School of Law and
Christopher Neronha6 is GRANTED.
SO ORDERED.
Joseph N. Laplante
United States District Judge
Dated: December 12, 2012
cc:
Michael Eric Prete, pro se
Mark P. Dolan, Esq.
6
Document no. 4.
17
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?