Williams v. United States Department of Education

UNITED STATES DISTRICT COURT March 30, 2021

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

HOUSTON DIVISION

Jeffrey Williams, §

Plaintiff, §

§

v. § Civil Action H-19-5053

§

United States Department of Education, §

Defendant. §

ORDER ON MOTION TO DISMISS

Jeffrey Williams filed suit against the United States Department of Education1

under the Federal Tort Claims Act. Williams asserts that Defendant failed to comply

with governing regulations and a Department of Education procedure manual in its

adjudication of a discrimination complaint he filed. The parties consented to the

jurisdiction of the magistrate judge, and the district judge transferred the case to the

undersigned for all further proceedings, including entry of final judgment. (D.E. 14,

15.) Pending before the court is Defendant’s motion to dismiss based on lack of

subject matter jurisdiction. (D.E. 22.) The motion is GRANTED.

1 To the extent that Williams’s claims are brought against this federal agency, the court lacks subject matter jurisdiction

over his claims. However, the United States has been defending the suit in the name of the United States as if it were

the substituted party under 28 U.S.C. § 2679(d)(1). Williams has approached this lawsuit as one against the United

States under the Federal Torts Claims Act. Prior to the court’s entry of final judgment, the court will substitute the

United States as the proper party. Objections to the substitution must be filed no later than April 6, 2021.

1. Background and Procedural Posture

This litigation stems from the investigation of a civil rights complaint.

(D.E. 21 ¶ 60.) Williams alleges that in 2009 he was unlawfully dismissed from a

post-graduate program in violation of Title IX of the Education Amendments of

1972 (Title IX) and the Age Discrimination Act of 1975 (Age Discrimination Act).

Id. ¶ 1. According to Williams, he was one of four students placed on academic

probation in December 2008 but was the only student who was ultimately dismissed

from the program in August 2009. Id. ¶¶ 26, 31.

Williams filed a complaint against the school with the Department of

Education’s Office for Civil Rights (OCR) asserting that he was treated differently

from similarly situated female students. (D.E. 21 ¶ 60.) He filed administrative

complaints against OCR alleging that OCR improperly adjudicated his complaint

against the school. Id. ¶¶ 81, 95. He also filed an earlier federal lawsuit that he

dismissed. Id. ¶ 84. A timeline of relevant events is helpful.

 September 2009—Williams filed his discrimination complaint against the

school with OCR. (D.E. 21 ¶ 60.)

 April 15, 2010—OCR issued a determination letter informing Williams it

found insufficient evidence of discrimination against him. (D.E. 21 ¶ 67;

D.E. 26-2.)

 September 2010—Williams appealed the findings detailed in OCR’s April

2010 determination letter. (D.E. 21 ¶ 72.)

 August 2012—Williams presented his first administrative claim to OCR,

seeking adjudication of his September 2010 appeal of OCR’s investigative

findings and determination. (D.E. 21 ¶ 81; D.E. 23-2.)

 August 31, 2012—OCR denied Williams’s first administrative claim.

(D.E. 21 ¶ 82; D.E. 23-3.)

 October 2012—Williams filed a complaint against the United States

Department of Education in the United States District Court for the District of

Massachusetts. (D.E. 21 ¶¶ 84–85; D.E. 23-4.)

 February 27, 2013—OCR issued a denial letter, which denied Williams’s

September 2010 appeal of OCR’s investigative findings and determination.

(D.E. 21 ¶¶ 88, 92–93; D.E. 23-5 at 7.)

 May 24, 2013—The District of Massachusetts granted Williams’s motion to

voluntarily dismiss his federal complaint. (D.E. 23-4.)

 February 18, 2015—Williams presented his second administrative claim to

OCR, alleging that OCR employees intentionally violated numerous federal

statutes. (D.E. 21 ¶ 95; D.E. 23-5 at 2–4.)

 May 7, 2019—OCR denied Williams’s second administrative claim. (D.E. 21

¶ 97; D.E. 23-6.)

 December 3, 2019—Williams filed this lawsuit in the United States District

Court for the Southern District of Texas. (D.E. 1.)

A. OCR Investigation and Decision

In his September 2009 OCR complaint, Williams alleged that school

administrators intentionally altered his school transcript, miscalculated his grades,

lied about their own conduct, and failed to follow school policies. (D.E. 21 ¶¶ 59,

61, 63–66.) He provided investigators with evidence that he believes unequivocally

established his claims including his own calculations of his grades and “voice

excerpts” of conversations he had with school administrators. Id. ¶¶ 65–66.

On April 15, 2010, OCR issued a “letter of finding” informing Williams that

it completed its investigation of his complaint. (D.E. 21 ¶ 67; D.E. 26-2 at 2–8.) The

letter states that OCR interviewed Williams, school representatives, and people that

Williams recommended OCR interview “whom [they] were successful in

contacting.” (D.E. 26-2 at 2.) OCR also reviewed documents submitted by Williams

and by the school, including the college’s policies and procedures. Id. at 3–6. OCR

identified potential comparators but determined that they were not similarly situated

to Williams because they were at different stages of the program and thus different

procedures applied to them under school policy. Id. at 6–7. The letter also described

OCR’s review of statistical information about the school and OCR’s determination

that it “could not infer a pattern or other indication of different treatment based on

sex or age.” Id. at 7. Following the discussion of the investigation, the letter

explained that it “found insufficient evidence” of discrimination under Title IX and

the Age Discrimination Act and closed the complaint. Id. at 7–8. The letter described

how to submit a reconsideration request. Id. at 8.

B. Appeal and First Administrative Complaint

Before Williams filed for reconsideration of OCR’s decision, he requested the

agency’s internal notations on the investigation under the Freedom of Information

Act. (D.E. 21 ¶¶ 68, 71.) Williams received responsive documents. Id. ¶¶ 70, 74. In

his federal complaint, he describes the response as missing certain documents and

containing “documents directly refuting written and oral testimony given by senior

college administrators and their legal representatives.” Id. ¶ 74. Armed with this

information, Williams appealed OCR’s April 15, 2010 denial of his discrimination

claim. Id. ¶ 72. According to Williams’s federal complaint, his appeal consisted of

“more than 200 pages” and identified “more than a dozen analytical errors, plus an

audio recording proving that college senior staff had made numerous prevarications

in their sworn testimony.” (D.E. 21 ¶¶ 72, 107; D.E. 26 at 19.) Seven months later,

Williams contacted OCR to follow up on his appeal. (D.E. 21 ¶¶ 76–77.) An OCR

employee told him that the appeal would be read “cover-to-cover” before a decision

was made. Id. ¶ 76. After two years, Williams filed an administrative complaint

seeking prompt adjudication of his September 2010 appeal of OCR’s investigative

findings and determination. (D.E. 21 ¶ 81; D.E. 23-2.) The administrative complaint

was denied. (D.E. 21 ¶ 82; D.E. 23-3.) Six months later, OCR denied Williams’s

September 2010 appeal of OCR’s investigative findings and determination. (D.E. 21

¶¶ 88, 92–93; D.E. 23-5 at 7.) The letter denying his appeal, signed “Debbie Osgood

for Sandra Battle,”2 states in part:

After careful consideration of your appeal, I find that OCR

Boston’s determination to close your case was consistent with the

laws and regulations enforced by OCR. Accordingly, your appeal

is denied. This concludes OCR’s consideration of your appeals

and is the final agency determination.

(D.E. 23-5 at 7.)

C. Second Administrative Complaint

Two years after OCR issued the February 27, 2013 denial of Williams’s

appeal, on February 18, 2015, Williams filed a second administrative complaint.

2 Sandra Battle was the Deputy Assistant Secretary for Enforcement. (D.E. 23-5 at 7.) A 2010 Department of

Education Memorandum attached to the motion to dismiss purports to show this position as one delegated with the

proper authority. (D.E. 23-8.)

(D.E. 21 ¶ 95; D.E. 23-5 at 2–4.) In it, he alleged that OCR employees “intentionally

falsif[ied] the facts and/or finding of the case” and “unlawfully” closed his appeal in

violation of civil and criminal statutes and OCR policy. (D.E. 23-5 at 2–3.) He

demanded payment of $2,980,000 in lost wages, the resignation of specific agency

employees, and the commencement of a federal criminal investigation into the

conduct of the agency employees, employees of his post-graduate program, and their

legal counsel. Id. at 3.

Four years later, on May 7, 2019, the Department of Education determined

that Williams’s administrative claims arose “from the Department’s exercise of its

authority under laws and regulations enforced by [OCR].” (D.E. 21 ¶ 97; D.E. 23-

6.) It denied Williams’s second administrative complaint based on the discretionary

function exception to the Federal Tort Claims Act (FTCA). Id.

D. Federal Lawsuit

Williams filed his federal lawsuit against the Department of Education under

the FTCA almost seven months later. (D.E. 1.) In his second amended complaint,

Williams asserts that government employees failed to exercise due care while

investigating and adjudicating his 2009 discrimination complaint and subsequent

appeal of OCR’s investigative findings and determination. He argues that their

conduct violated sections of OCR’s Case Processing Manual (CPM).3 Specifically,

Williams argues that:

 Under CPM § 110, OCR was not justified in closing his appeal (D.E. 21

¶¶ 109–10, 117);

 OCR failed to explain the reason his appeal was closed in violation of CPM

§ 111 (D.E. 21 ¶ 134);

 OCR’s denial letter was not signed by the Chief Attorney or their designee in

violation of CPM § 111 (D.E. 21 ¶ 109–10, 133);

 OCR denied his right to appeal in violation of CPM § 112 (D.E. 21 ¶¶ 123–

25, 139–40);

 OCR’s case file failed to contain documentation to support the decision in

violation of CPM § 301 (D.E. 21 ¶ 173);

 Under CPM § 306, OCR had no authority to close his appeal (D.E. 21 ¶ 109,

117, 123–25);

 OCR conducted an improper de novo review on appeal in violation of CPM

§ 306 (D.E. 21 ¶¶ 78–80); and

 OCR used oral testimony in its determination without obtaining written

corroboration as required under CPM § 602 (D.E. 21 ¶¶ 100–02, 175).

He characterizes these things as negligence, violations of his constitutional rights,

and negligent infliction of emotional distress. Williams seeks money damages based

on an alleged loss of income and medical conditions allegedly caused by OCR’s

conduct. Id. ¶¶ 163, 176.

The United States filed its first motion to dismiss in April 2020, for lack of

subject matter jurisdiction and failure to state a claim upon which relief may be

granted. (D.E. 8.) In response, Williams amended his complaint. (D.E. 13.)

Defendant again filed a motion to dismiss, raising the same arguments as in its first

3 The Case Processing Manual is attached to the United States’ motion to dismiss (D.E. 23-7) and is cited herein by

paragraph number.

motion. (D.E. 16.) Williams filed his second amended complaint, which is the live

pleading before the court. (D.E. 21.) The United States filed its third motion to

dismiss. (D.E. 22.) It argues that the court lacks subject matter jurisdiction because:

(1) OCR’s actions fall within the FTCA’s discretionary function exception; (2)

Williams’s constitutional claims are not cognizable under the FTCA; (3) Williams

failed to properly present his claims of negligent infliction of distress to the agency;

and (4) the claims are time-barred. (D.E. 23.) The court need not reach all these

arguments, because all of Williams’s claims are barred by the discretionary function

exception to the FTCA, and he has not alleged a constitutional violation sufficient

to overcome the exception.

2. Legal Standards for a Rule 12(b)(1) Motion to Dismiss

A court may dismiss an action for lack of subject matter jurisdiction under

Federal Rule of Civil Procedure 12(b)(1). “Jurisdiction is power to declare the law,

and when it ceases to exist, the only function remaining to the court is that of

announcing the fact and dismissing the cause.” Steel Co. v. Citizens for a Better

Env’t, 523 U.S. 83, 94 (1998). The party asserting jurisdiction has the burden to

prove the court’s subject matter jurisdiction. Griener v. United States, 900 F.3d 700,

703 (5th Cir. 2018).

“A district court may dismiss a case under Rule 12(b)(1) based on ‘(1) the

complaint alone; (2) the complaint supplemented by undisputed facts evidenced in

the record; or (3) the complaint supplemented by undisputed facts plus the court’s

resolution of disputed facts.’” In re S. Recycling, L.L.C., 982 F.3d 374, 379 (5th Cir.

2020) (citation omitted). Courts may weigh evidence and resolve factual disputes to

ensure they have the power to hear the case. Montez v. Dep’t of Navy, 392 F.3d 147,

149 (5th Cir. 2004). The court resolves the instant motion based on Williams’s

second amended complaint, as well as the undisputed factual evidence attached to

Defendant’s motion to dismiss and Williams’s response.

3. Federal Torts Claims Act

“The United States enjoys sovereign immunity from suit, meaning it cannot

be sued without consent.” Gonzalez v. United States, 851 F.3d 538, 543 (5th Cir.

2017). The federal government has consented to a limited waiver of sovereign

immunity from tort lawsuits under the FTCA. Id. The waiver allows individuals to

seek monetary damages:

for injury or loss of property, or personal injury or death caused

by the negligent or wrongful act or omission of any employee of

the Government while acting within the scope of his office or

employment, under circumstances where the United States, if a

private person, would be liable to the claimant in accordance with

the law of the place where the act or omission occurred.

28 U.S.C. § 1346(b). The FTCA’s waiver of immunity is subject to statutory

exceptions outlined in 28 U.S.C. § 2680. “If one of these exceptions applies, a

federal court is without subject-matter jurisdiction over the claim.” Cascabel Cattle

Co. v. United States, 955 F.3d 445, 450 (5th Cir. 2020) (citing Campos v. United

States, 888 F.3d 724, 730 (5th Cir. 2018)).

Under the discretionary function exception, the Government is not liable for

claims based on an agency’s or employee’s conduct while carrying out a duty that is

discretionary rather than mandatory. 28 U.S.C. § 2680(a). The exception covers

actions that are “discretionary in nature” and “involv[e] an element of judgment or

choice” on the part of the agency or employee. United States v. Gaubert, 499 U.S.

315, 322 (1991) (alteration in original) (quoting Berkovitz ex rel. Berkovitz v. United

States, 486 U.S. 531, 536 (1988)). “Where Congress has delegated the authority to

an independent agency or to the Executive Branch to implement the general

provisions of a regulatory statute and to issue regulations to that end, there is no

doubt that planning-level decisions establishing programs are protected by the

discretionary function exception, as is the promulgation of regulations by which the

agencies are to carry out the programs.” Id. at 323. If an agency’s policy allows

officials to act on the basis of policy considerations, the discretionary function

exception applies. Spotts v. United States, 613 F.3d 559, 568 (5th Cir. 2010) (quoting

Berkovitz, 486 U.S. at 547).

“A two-prong test determines whether the exception applies: (1) the conduct

must be a “matter of choice for the acting employee[;] and (2) the judgment [must

be] of the kind that the discretionary function exception was designed to shield.”

Gonzalez, 851 F.3d at 543–44 (alterations in original) (citations and internal

quotation marks omitted). The plaintiff bears the burden of showing that the

exception does not apply. Tsolmon v. United States, 841 F.3d 378, 382 (5th Cir.

2016).

A. First Prong: Whether the conduct was a matter of choice

As to the first prong, an employee’s conduct is not “a matter of choice” if a

“federal statute, regulation, or policy specifically prescribes a course of action for an

employee to follow.” Gonzalez, 851 F.3d at 544 (quoting Gaubert, 499 U.S. at 322).

“In this event, the employee has no rightful option but to adhere to the directive.”

Berkovitz, 486 U.S. at 536. On the other hand, if the agency is not bound to act in a

particular manner and can determine when and how to take action, then its conduct

is a “matter of choice.” Gonzalez, 851 F.3d at 544. The issue here is whether OCR

employees were performing discretionary acts when adjudicating Williams’s

complaint and appeal.

Title IX and the Age Discrimination Act ban federally-funded educational

programs from discriminating against program participants based on their gender or

age. 20 U.S.C. § 1681(a); 42 U.S.C. § 6101. In 1979, Congress established the

Department of Education, in part, to “ensure that education issues receive proper

treatment at the Federal level.” 20 U.S.C. §§ 3402, 3411. The Department’s Office

for Civil Rights was created to identify significant civil rights problems and to ensure

compliance with relevant federal laws, such as Title IX and the Age Discrimination

Act. 20 U.S.C. § 3413. To achieve its directives, OCR follows the general rules

created by the Department of Education and approved by the President. 20 U.S.C.

§ 1682; 42 U.S.C. § 6103; see 34 C.F.R. §§ 106.1, 110.1. Under these rules, an

individual who believes that a program has discriminated against them in violation

of either statute may file a written complaint with OCR. 34 C.F.R. §§ 100.7(b),

110.31.4 OCR will promptly investigate, reviewing “the pertinent practices and

policies” of the program or institution, the circumstances surrounding the complaint,

and any other factors to determine whether a violation occurred. 34 C.F.R.

§ 100.7(c)–(d); see 34 C.F.R. § 110.33. If it is determined that no action is warranted,

the department official or their designee must inform the complainant in writing.

34 C.F.R. § 100.7(d)(2).

In accordance with these regulations, OCR created the CPM, which provides

“the procedures to promptly and effectively investigate complaints and compliance

reviews, issue findings, and to secure resolution agreements that remedy

discriminatory policies or practices identified by OCR.” (CPM Introduction,

D.E. 23-7 at 2.) Williams asserts that the CPM contains mandatory directives that

OCR employees are required to follow. Defendant argues that the CPM and relevant

4 The procedural provisions for proceeding under Title VI of the Civil Rights Act of 1964 also apply to provisions

under Title IX. 34 C.F.R. § 106.81.

regulations instead dictate that OCR employ its discretion to determine whether the

evidence supports a finding of discrimination.

1. The Conduct at Issue

To determine if OCR’s conduct was discretionary, the court must first define

the conduct. Gonzalez, 851 F.3d at 545. Williams alleges that OCR employees failed

to follow the CPM (1) during the investigation of his 2009 discrimination complaint

and (2) while adjudicating Williams’s September 2010 appeal of the investigation’s

findings and determination. The Fifth Circuit, in Gonzalez, instructs that the court

must carefully define the conduct at issue. Gonzalez, 851 F.3d at 545 (referring to

the definition of the conduct at issue as a “gateway” issue; rejecting both parties’

framing of the conduct at issue and concluding that the relevant issue was “whether

the controlling policies mandated the USFS to inspect and maintain the trails in a

specific manner”).

Most of Williams’s allegations and arguments focus on whether OCR

employees followed their own manual. In this sense, he focuses on whether OCR

employees abused their discretion and glosses over whether the employees’ actions

were discretionary. In determining whether the discretionary function exception

applies, the court is not concerned with whether the agency or its employee in fact

abused its discretion; instead, the concern is whether the regulatory scheme allowed

the exercise of discretion in the first place. Gonzalez, 851 F.3d at 546–47

(contrasting strong evidence that the agency employee breached its duty under the

controlling policy with the inquiry under consideration, which asks whether the

challenged actions contained an element of judgment).

Before the court addresses the conduct that is at issue, the court must clarify

what conduct is not at issue. Central to Williams’s argument in response to the

motion to dismiss is that his September 2010 appeal of OCR’s investigative findings

and determination was improperly “administratively closed” and that he was denied

his right to appeal the administrative closure. Much of what Williams argues is a red

herring, however, and conflicts directly with what he states in his complaint and with

the unrebutted evidence submitted for the court’s consideration. The court has before

it the April 15, 2010 determination letter denying Williams’s 2009 discrimination

complaint against the school. (D.E. 26-2.) Williams admits to appealing the April

15, 2010 determination in September 2010. (D.E. 21 ¶ 72.) The court further has

before it OCR’s February 27, 2013 denial of Williams’s appeal. (D.E. 23-5.) As will

be discussed next, the undisputed evidence shows that there was no administrative

closure of either his complaint or his appeal, so any argument that OCR employees

were acting under regulations governing administrative closures is not relevant to

this case.

The CPM does not clearly define some of the terms at issue, including

“administrative closure,” “denial,” or “appeal.” However, the meaning of these

terms is apparent when the manual is read in full. CPM § 101 defines a “complaint”

as “a written or electronic statement to the Department alleging that the rights of one

or more persons have been violated and requesting that the Department take action.”

CPM § 101. A complaint may be “dismissed” under CPM § 108 or opened for

investigation under CPM § 109. If a complaint is opened for investigation, OCR will

issue a letter of notification to the complainant and the educational institution against

whom the complaint has been filed, referred to as the “recipient.” CPM § 109. Upon

completion of the investigation, OCR will issue a “letter of finding” informing the

complainant whether OCR found sufficient evidence to support the complaint. CPM

§ 303. The complainant may appeal the CPM § 303 finding under CPM § 306.

If, during the investigation, OCR determines that a complaint meets specific

criteria, for example, that there is a similar complaint already pending or the

complaint is foreclosed by federal law or other OCR policy considerations, OCR

will “administratively close” the complaint. CPM § 110. In the event of an

administrative closure, OCR issues a “letter of administrative closure” explaining

the decision. CPM § 111. Under CPM § 112, the complainant may appeal the

administrative closure.

Attached to his response to the motion to dismiss, Williams provided the court

with OCR’s April 15, 2010 determination letter denying his discrimination

complaint. (D.E. 26-2.) The subject line of the letter is “Complaint No. 01-09-2073”

and states that OCR “completed its investigation of the complaint [Williams] filed.”

Id. at 2. According to the letter, OCR investigated “[w]hether the College treated

[Williams] differently than other students based on sex and age in its reinstatement

process.” Id. It includes five explanatory pages detailing the investigation before

concluding that “OCR found insufficient evidence to establish that the College

violated Title IX or the Age [Discrimination] Act.” Id. at 3–7. It informs Williams

that the “letter is a letter of finding(s)” and that OCR would be closing the complaint.

Id. at 7–8. Thus, Williams’s 2009 discrimination complaint was opened for

investigation under CPM § 109, investigated by OCR, and closed with a

determination of “insufficient evidence” in accordance with CPM § 303. The

complaint was not “dismissed” or “administratively closed.” OCR did not act under

CPM § 110.

It is also undisputed that in a letter dated February 27, 2013, OCR denied

Williams’s September 2010 appeal of OCR’s denial of his complaint. Thus, OCR

was acting on his appeal under CPM § 306. Williams construes the February 27,

2013 denial of his appeal as a “closure” of his complaint. The undisputed evidence

demonstrates that it was not a “closure.” Because OCR was not acting under CPM

§ 110, it was not obligated to explain its actions under CPM § 111 or allow an appeal

under CPM §112.

This brings the court back to the conduct that is actually at issue in this case.

Williams complains that OCR employees negligently, and in violation of his

constitutional rights, adjudicated his complaint. He further alleges that OCR

employees negligently, and in violation of his constitutional rights, denied his

appeal. The court will review each of the relevant sections of the policy manual to

determine whether they permit the employee carrying out their duties under the

manual to exercise discretion.

2. OCR’s Investigation of Williams’s 2009 OCR Complaint

Williams alleges that OCR employees negligently adjudicated his complaint.

Article III of the CPM is entitled “Investigation of the Complaint.” It states that

“OCR will ensure that investigations are legally sufficient and that they are

dispositive of the allegations raised in the complaint.” CPM, Art. III. This sort of

generalized, precatory language demonstrates that the CPM does not, in general,

seek to direct OCR employees to follow any particularized set of procedures in

investigating and adjudicating complaints. Cf. Gonzalez, 851 F.3d at 565-46

(concluding that language in a manual directing that agency employees meet certain

goals left room for choice based on evaluation of certain factors and was therefore

too general to prescribe a certain course for the employees to achieve the stated

goals). Article III of the CPM is divided into sections including “Case Planning,”

§ 301, “Investigative Determinations,” § 303, and “Appeals,” § 306, each of which

forms the basis for Williams’s complaints. Article VI, entitled “Appendices”

contains a section on “Data Collection and Gathering,” § 602, which Williams also

relies on.

Williams alleges that the OCR case file did not contain evidence in support of

its decision. (D.E. 21 at 3.) He alleges that OCR’s file contains evidence that is

incorrect and fabricated. Id. at 7, 46–47. But, again, the question is whether the CPM

allowed discretion, not whether OCR employees abused that discretion. CPM § 301

is entitled “Case Planning.” The first sentence of CPM § 301 states “[c]ase planning

will begin as early as possible, will be thorough, and will be conducted throughout

the life of every case to ensure high quality decisions, prompt investigations and

efficient use of OCR resources.” There are five “essential elements” of case planning

listed in CPM § 301 that “will be addressed in every OCR case and placed in the file

(unless inapplicable).” They include the allegations of the complaint, the legal

issues, and the investigation strategy. CPM § 301 then states that “[t]he case file will

contain documentation that supports the decisions made with respect to each of the

applicable essential planning elements.” The court reads CPM § 301 to require

organization and documentation of the agency’s decision-making process. It does

not require any particular sort of documentation be included in the case file. It

appears to be the sort of general instruction that would help an adjudicator make

decisions about what types of documents to obtain or retain. CPM § 301 allows for

choice and judgment. It contains no directives or mandates to keep the file in any

specific manner.

Williams alleges throughout his complaint and motion responses that his

complaint was not investigated and adjudicated properly and that OCR employees’

failures caused him injury. CPM § 303 is entitled “Investigative Determinations:

Letters of Finding.” It requires OCR to issue a letter at the end of the investigation

indicating whether it found sufficient evidence to support the claim. CPM § 303. If

a finding of “insufficient evidence” is made, OCR is required to send a letter to the

parties including “a statement of the issues raised by the complaint,” “a statement of

OCR’s jurisdiction over the complaint,” and “a clear explanation of the pertinent

legal standard and factual analysis.” Id. This section allows wide discretion. It

basically requires OCR to write an opinion describing its ruling. Although some

direction is given, there are no directives or mandates that would preclude the

exercise of discretion. In fact, the last requirement that OCR provide its legal and

factual analysis is literally a requirement that OCR describe how it exercised its

discretion.

Williams argues that OCR improperly used oral testimony in its

determination. He asserts that, under CPM § 602, OCR employees were required to

obtain written corroboration for oral testimony. (D.E. 21 ¶ 12.) He also argues that

the alleged requirement should extend to written testimony. Id. The CPM does not

direct employees to take specific actions during the investigation of discrimination

complaints. Instead, it explicitly states that investigations “are guided by several

fundamental principles” and that the “exact approach . . . will vary from case to

case.” CPM § 602. The approach may differ depending on “the nature and

complexity of the case” and may be “adjusted as necessary to take into account new

information obtained during case processing.” CPM § 301. This language explicitly

requires OCR employees to make choices and judgment calls based on the facts of

each specific case they work. CPM § 602 merely lists corroboration of oral

statements as a “general practice[] that should be part of decision-making during

data collection.” CPM § 602 (emphasis added). While corroboration may be

recommended, it is not mandatory. Suggestions are not the same as specific

mandates. See Aragon v. United States, 146 F.3d 819, 826 (10th Cir. 1998)

(interpreting manual language stating that certain actions “should be” taken in

furtherance of the agency’s objective as suggestive, not mandatory).

There is no one-size-fits-all way for the investigation or determination of a

discrimination complaint. OCR actions taken during the investigation of Williams’s

2009 discrimination complaint were made based on the discretion of the employees

tasked with the reviewing the evidence. The discretionary function exception bars

claims based on this conduct. See Huff v. Neal, 555 F. App’x 289, 298 (5th Cir.

2014) (explaining that where a statute or policy fails to prescribe a specific course

of action, it is within the agency’s discretion “to decide how best to fulfill its duty”).

3. OCR’s Adjudication of Williams’s September 2010 Appeal of OCR’s

Investigative Findings and Determination

Williams’s main complaint is that it took a long time for OCR to adjudicate

his 2009 discrimination complaint. This is where a careful review of the timeline set

forth above comes into play. Williams filed his discrimination complaint in

September 2009, and it was denied after investigation in April 2010. He appealed in

September 2010, and the appeal was denied in February 2013. Williams argues that

the denial of his appeal was an “administrative closure” of his complaint and that he

was never allowed to appeal the administrative closure. In this way, he alleges that

his September 2010 appeal of OCR’s investigative findings and determination is still

somehow pending and seeks to have the court consider various parts of the CPM

that have no bearing on this case. The only question is whether the adjudication of

his appeal, which was terminated as a final agency action on February 27, 2013, was

a discretionary function.

As for timing, the CPM does not provide a specific timeline for adjudication.

Instead, CPM § 306 merely states that “[t]he appeal process provides an opportunity

for complainants to bring information to OCR’s attention that would change OCR’s

decision” and that a “response to an appeal will be issued as promptly as possible.”

CPM § 306 does not dictate how the appeal will be considered. It allows evidence

and argument to be submitted and states that a response will be issued. CPM § 306.

Neither the timing of the appeal nor the manner of adjudication are mandates. The

CPM’s instructions are “generalized, precatory, or aspirational language that is too

general to prescribe a specific course of action for an agency or employee to follow.”

Gonzalez, 851 F.3d at 545–46 (quoting Freeman v. United States, 556 F.3d 326, 338

(5th Cir. 2009)).

Williams also argues that OCR conducted a de novo investigation in violation

of CPM § 306. He states that an “Excel spreadsheet attached to [an] email

demonstrated that OCR . . . was conducting a de novo investigation.” (D.E. 21 ¶ 78.)

Again, Williams is complaining that OCR did not follow the manual, not that the

manual contained a directive that deprived the agency of discretion. CPM § 306

allows for introduction of new information that “would change OCR’s decision” and

states that “[t]he appeal process will not be a de novo review of OCR’s decision.”

CPM § 306. Williams is confused about the meaning of this section. He seems to

think that new evidence may not be considered on appeal, because the appeal is not

a de novo review. But CPM § 306 specifically allows the introduction of information

that may change the outcome. In any event, the merits of Williams’s claim aside, he

does not explain how the section of the manual he cites requires a non-discretionary

act.

Finally, Williams argues that the February 27, 2013 denial letter was not

signed by a person with authority to rule on his appeal. (D.E. 21 at 43–44.) It was

signed by another person with permission to sign on behalf of the person who did

have authority. (D.E. 23-5 at 7; D.E. 23-8.) Again, whether the signature was

properly affixed is not the question. The question is whether the act of adjudicating

the appeal was a discretionary function. As discussed, it was.

Williams has failed to demonstrate that any of the actions taken by OCR or its

employees were non-discretionary. The court considers the second prong of the

analysis.

B. Second Prong: Whether the judgment was the type the exception was

designed to shield

As to the second prong of the test, the agency’s decisions must be based on

considerations of public policy in order for those decisions to be the type of judgment

that the exception was designed to shield. Berkovitz, 486 U.S. at 537. “[T]he purpose

of the exception is to ‘prevent judicial “second-guessing” of legislative and

administrative decisions grounded in social, economic, and political policy through

the medium of an action in tort.’” Gaubert, 499 U.S. at 323 (quoting United States

v. Varig Airlines, 467 U.S. 797, 813 (1984)). When governmental policy allows its

agent to exercise discretion, it is presumed that the exercise of that discretion is

grounded in policy. Id. at 324. To overcome this presumption, a complainant “must

allege facts which would support a finding that the challenged actions are not the

kind of conduct that can be said to be grounded in the policy of the regulatory

regime.” Id. at 324–25. The issue here is whether OCR employees’ exercise of

discretion is grounded in policy.

This prong is not seriously in dispute here. The Department of Education

created the OCR to enforce public policy that disfavors sex and age discrimination

in higher education. The CPM was written to carry out that policy. Employees acting

pursuant to the CPM are acting in pursuit of strong public policy. They are not

carrying out “mundane, administrative, garden-variety housekeeping” functions.

Gibson v. United States, 809 F.3d 807, 814 (5th Cir. 2016) (quoting Gotha v. United

States, 115 F.3d 176, 181 (3d Cir. 1997)).

C. Williams’s Constitutional Claims

Williams seeks to get around the discretionary function exception by arguing

that OCR’s conduct violates his Fifth and Fourteenth Amendment constitutional

rights. Williams argues that “Defendant owed a duty of care to follow OCR’s Case

Processing Manual . . . and afford Plaintiff the constitutional right of Due Process as

guaranteed under the Fifth Amendment.” (D.E. 21 ¶ 130.) According to Williams,

“Defendant breached their duty of care when they administratively closed Plaintiff’s

appeal without authorization/justification” and “when they administratively closed

Plaintiff’s appeal without the approval of the Chief Attorney, or the Chief Attorney’s

designee.” Id. ¶¶ 132–33. Williams asserts that Defendant also deprived Williams of

“his due process and liberty” because he “was never afforded his absolute right to

appeal the administrative closure of OCR Complaint No. 01-09-2073.” Id. ¶ 134.

Williams argues that Defendant’s “negligent breach of duty of care . . . resulted in

the oppression of a federal constitutional right,” namely, the Fifth and the Fourteenth

Amendments. (D.E. 26 at 26–27.)

Again, Williams’s September 2009 discrimination complaint was not

administratively closed. It is also clear that he did appeal the denial of his complaint.

Williams asserts that his “appeal would have most likely succeeded as Defendant

negligently failed to follow the required mandates/procedures contained within

Section(s) 110 & 111 of OCR-CPM.” (D.E. 21 ¶ 142.) As discussed, CPM §§ 110

and 111 are irrelevant.

Moreover, the FTCA does not provide a cause of action against the United

States for constitutional claims. F.D.I.C. v. Meyer, 510 U.S. 471, 477–78 (1994).

Under the statute, the government’s waiver of immunity only applies in

circumstances where a private person could also be held liable for the same conduct.

28 U.S.C. § 1346(b)(1); see Peña Arita v. United States, 470 F. Supp. 3d 663, 688

(S.D. Tex. 2020) (“Private individuals cannot be liable for constitutional torts, and

constitutional tort claims are not actionable under the FTCA.”). Williams’s

constitutional claims are jurisdictionally barred.

4. Conclusion

Williams has amended his complaint twice already and the court concludes

that further amendment would be futile. Defendant’s motion to dismiss (D.E. 22) is

GRANTED. The earlier motions to dismiss are denied as moot. (D.E. 8, 16.) The

court will issue a separate final judgment.

Signed at Houston, Texas, on March 30, 2021.

Peter Bray

United States Magistrate Judge

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