Schultz v. The Harry S. Truman Scholarship Foundation ( 2021 )

1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 BRENDAN SCHULTZ, Case No. 20-cv-04058-MMC 8 Plaintiff, ORDER DISMISSING IN PART 9 v. SECOND AMENDED COMPLAINT PURSUANT TO 28 U.S.C. § 1915; 10 THE HARRY S. TRUMAN DIRECTING SERVICE OF REMAINING SCHOLARSHIP FOUNDATION, et al., CLAIMS 11 Defendants. 12 13 Before the Court is plaintiff Brendan Schultz’s (“Schultz”) Second Amended 14 Complaint (“SAC”), filed July 30, 2021. The Court, having reviewed the SAC pursuant to 15 28 U.S.C. § 1915(e)(2), rules as follows. 16 I. BACKGROUND 17 The above-titled action arises from Schultz’s application for a Harry S. Truman 18 Scholarship (“Scholarship”) and, in particular, his 2009 finalist interview. In the SAC, he 19 asserts three Claims for Relief, each alleging ethnicity discrimination, and each brought 20 against the following defendants: the Harry S. Truman Foundation (“Foundation”); Terry 21 Babcock-Lumish, the Foundation’s current Executive Secretary (“Babcock-Lumish”); 22 Andrew Rich, the Foundation’s former Executive Secretary (“Rich”); Tara Yglesias, the 23 Foundation’s Deputy Executive Secretary (“Yglesias”); Westbrook Murphy, the 24 Foundation’s General Counsel (“Murphy”); Brooks Allen, the Secretary of the 2019 25 Truman Scholarship San Francisco Regional Review Panel (“Allen”); and Kevin Higgins, 26 the Chair of the 2019 Truman Scholarship San Francisco Review Panel (“Higgins”). 27 In support thereof, Schultz alleges that he has led youth development programs in 1 related to his work in international development, and that, as a third-year undergraduate 2 student, he applied for the Scholarship, a program administered by the Foundation, 3 which, Schultz alleges, is a federal agency. (See SAC ¶ 12.) Schultz alleges he 4 advanced as a finalist and, on March 18, 2019, was interviewed by the San Francisco 5 Regional Review Panel. (See id.) 6 Schultz further alleges that, during his interview, Higgins asked him inappropriate 7 and hostile questions, including, “Do you think that Jews are oppressed?” and “Are Jews 8 as oppressed as racial minorities in the United States?” (see SAC ¶ 13f) and that, upon 9 his expressing a desire to run for elected office, Allen broke into a discernable laugh (see 10 SAC ¶ 13g). Additionally, Schultz alleges, the only other Jewish finalist was asked “how 11 the oppression of Jews in America compared to Black Americans,” and that no other 12 finalist was “asked to defend the traumatic communal experiences of their ethnic group.” 13 (See SAC ¶ 14.) 14 When Schultz did not receive a Scholarship from the Foundation, and believing he 15 faced discrimination on the basis of his “ethnic identity,” he reported his concerns to 16 Yglesias who, Schultz alleges, investigated his interview. (See SAC ¶ 18.) According to 17 Schultz, Yglesias, who reported directly to Rich (see SAC, Ex. 4), responded that, 18 although the panelists’ recollection of his interview and materials was “generally positive,” 19 she lacked sufficient information to conduct an in-depth investigation (see SAC ¶¶ 19-20) 20 and, ultimately, “admitted that she had been ‘negligent’ in handling the investigation 21 process,” after which Babcock-Lumish began a second investigation into the interview 22 (see SAC ¶¶ 21-22). 23 Schultz alleges that, on August 14, 2019, Babcock-Lumish sent him an email in 24 which she described him as “well qualified” for the Scholarship and “admitted that some 25 members of the panel posed questions with ‘irreverence,’” but concluded “others 26 presented themselves in both writing and in person as better fits for our organization and 27 its mission.” (See SAC ¶ 22.) Schultz further alleges he responded with “criticisms 1 Babcock-Lumish replied that the investigation would be turned over to the Foundation’s 2 “outside legal counsel.” (See SAC ¶ 24.) 3 Thereafter, Schultz, “[u]nconfident regarding the sincerity of the [Foundation’s] 4 investigative process,” contacted a number of federal agencies as well as his 5 Congressional representative, none of which, according to Schultz, provided satisfactory 6 assistance (see SAC ¶¶ 25-26), and that subsequently, on May 1, 2020, Murphy sent 7 Schultz an email in which he stated his conclusion that the Foundation’s “belief in, and 8 practice of, nondiscrimination ma[de] it highly unlikely that [Schultz’s] unsatisfactory 9 interview experience resulted from personal animus by the interviewers” (see SAC ¶ 28). 10 The instant lawsuit followed. 11 II. PROCEDURAL BACKGROUND 12 By order filed June 29, 2020, Magistrate Judge Jacqueline Scott Corley, to whom 13 the matter previously was assigned, granted Schultz’s application for leave to proceed in 14 forma pauperis. Where, as here, a party proceeds in forma pauperis, the district court 15 “shall dismiss the case at any time” if the plaintiff “fails to state a claim on which relief 16 may be granted.” See 28 U.S.C. § 1915(e)(2)(B)(ii); Lopez v. Smith, 203 F.3d 1122, 17 1126-28 (9th Cir. 2000) (holding § 1915(e)(2) requires district court to dismiss in forma 18 pauperis complaint sua sponte where plaintiff fails to state cognizable claim). Pursuant to 19 § 1915(e), this Court, by order filed June 30, 2021, dismissed Schultz’s First Amended 20 Complaint and afforded him leave to amend. In so ruling, the Court adopted a Report 21 and Recommendation, filed September 16, 2020, in which Judge Corley found the First 22 Amended Complaint, by “fail[ing] to provide [d]efendants with fair notice of a specific, 23 delineated claim under which their acts have violated [Schultz’s] rights,” failed to comply 24 with Rule 8 of the Federal Rules of Civil Procedure. (See Dkt. No. 12 at 5:5-7 (emphasis 25 in original).) 26 In the SAC, Schultz, as noted, has now separated his causes of action into three 27 Claims for Relief. The Court, having read and considered the SAC, finds the allegations 1 turns to the substance of Schultz’s claims. 2 III. DISCUSSION 3 A. First Claim for Relief – Fifth Amendment 4 The First Claim for Relief is brought under the Due Process Clause of the Fifth 5 Amendment and is based on allegations that the Foundation, Allen, and Higgins 6 discriminated against Schultz in the review of his application for the Scholarship and that 7 the Foundation, Babcock-Lumish, Rich, Yglesias, and Murphy discriminated against him 8 in the review of his subsequent grievance. Schultz seeks injunctive relief and, citing 9 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), 10 also seeks compensatory and punitive damages. 11 “[A] cause of action may be implied directly under the equal protection component 12 of the Due Process Clause of the Fifth Amendment,” and equitable relief, e.g., injunctive 13 relief, is available thereunder. See Davis v. Passman, 442 U.S. 228, 242-43 (1979). 14 Here, as noted above, Schultz alleges that he and the one other Jewish finalist were the 15 only finalists who were questioned about their ethnic or religious identity, that neither was 16 selected for a Scholarship, and that the two finalists who were selected for a Scholarship 17 were less qualified than Schultz. The Court finds these allegations suffice at this stage of 18 the proceedings to state a claim for injunctive relief. 19 Schultz, however, sues Babcock-Lumish, Rich, Yglesias, Murphy, Allen, and 20 Higgins, in their “individual capacit[ies].” (See SAC ¶¶ 6-11.) As the practices he 21 challenges are carried out by these six defendants in their official capacities, and the 22 “permanent injunction[s]” he seeks pertain to their conduct while acting in their official 23 capacities (see SAC ¶¶ 83-86), the only equitable relief that can be obtained is from the 24 Foundation. See Feit v. Ward, 886 F.2d 848, 858 (7th Cir. 1989) (dismissing claims for 25 declaratory and injunctive relief where plaintiff sued federal employees in individual 26 capacities but claims were based on decisions made in official capacities); see also BEG 27 Invs., LLC v. Alberti, 34 F. Supp. 3d 68, 80 (D.D.C. 2014) (noting “[c]ourts have 1 injunctive relief in his or her individual or personal capacity”; collecting cases). 2 Accordingly, Schultz’s Fifth Amendment claim for injunctive relief against Babcock- 3 Lumish, Rich, Yglesias, Murphy, Allen, and Higgins will be dismissed. The Court next 4 turns to the question of whether Schultz is entitled to seek damages. 5 In Bivens, the Supreme Court, for the first time, held that, irrespective of an 6 absence of statutory authorization, a claim for damages could be brought directly under 7 the Amendment’s prohibition against unreasonable searches and seizures. See Bivens, 8 403 U.S. at 397. The Supreme Court thereafter expanded the holding announced in 9 Bivens on only two other occasions, see Davis, 442 U.S. 228 (recognizing Fifth 10 Amendment claim for damages against United States Congressman who concededly 11 terminated assistant’s employment solely on basis of gender) and Carlson v. Green, 446 12 U.S. 14 (1980) (recognizing Eighth Amendment claim for damages against federal prison 13 officials for failure to provide adequate medical treatment), and subsequently has made 14 clear that “expanding the Bivens remedy is now a ‘disfavored’ judicial activity.” Ziglar v. 15 Abbasi, 137 S. Ct. 1843, 1857 (2017); see also Hernandez v. Mesa, 140 S. Ct. 735, 743 16 (2020) (noting that “for almost 40 years [the Supreme Court] ha[s] consistently rebuffed 17 requests to add to the claims allowed under Bivens”; collecting cases). 18 In assessing a claim brought under Bivens, courts engage in a “two-step inquiry.” 19 See Hernandez, 140 S. Ct. at 743. The court first asks whether the claim arises in a 20 “new context” or involves a “new category of defendants,” and, if so, whether there are 21 any “special factors that counsel hesitation about granting the extension.” See id. 22 The Supreme Court’s “understanding of a ‘new context’ is broad.” See id. (noting 23 “[a] claim may arise in a new context even if it is based on the same constitutional 24 provision as a claim in a case in which a damages remedy was previously recognized”). 25 Here, the above-described facts differ to such an extent from those addressed in cases 26 wherein Bivens has been found applicable that the instant context can only meaningfully 27 be described as “new.” 1 recognized that “the burdens on Government employees who are sued personally, as 2 well as the projected costs and consequences to the Government itself” counsel 3 hesitation, and, “when alternative methods of relief are available, a Bivens remedy 4 usually is not.” See Abbasi, 137 S. Ct. at 1857-58, 1863 (holding “separation-of-powers 5 principles should be central to the analysis”). Here, as discussed above, Schultz has a 6 Fifth Amendment claim for injunctive relief, and, as set forth below, he is able to pursue 7 his discrimination claims under the Administrative Procedure Act as well. Moreover, the 8 challenged conduct falls within a category similar to that to which the Supreme Court has 9 declined to extend Bivens. See Bush v. Lucas, 462 U.S. 367, 388–89 (1983) (declining 10 to extend Bivens to employee’s claim of improper disciplinary action taken by managerial 11 personnel; finding Congress is in a “far better position than a court to evaluate the impact 12 of a new species of litigation” pertaining to federal employment issues).1 13 Accordingly, Schultz’s Fifth Amendment claim for damages against all defendants 14 will be dismissed, and, as noted above, Schultz may proceed on his Fifth Amendment 15 claim for injunctive relief against the Foundation. 16 B. Second Claim for Relief – APA 17 The Second Claim for Relief is brought pursuant to the Administrative Procedure 18 Act, 5 U.S.C. § 701 et seq. (“APA”), and is based on allegations that the Foundation, 19 Allen, and Higgins, by discriminating against Schultz in the review of his application for 20 the Scholarship, violated Executive Order 13160, which prohibits, inter alia, 21 “discrimination on the basis of race, sex, color, national origin, disability, [and] religion . . . 22 in Federally conducted education and training programs and activities” (see Exec. Order 23 No. 13160, 65 Fed. Reg. 39775 (June 23, 2000)), that the Foundation, by discriminating 24 against Schultz and not awarding a Scholarship based on merit, violated its own 25 procedures, and that the Foundation, Babcock-Lumish, Rich, Yglesias, and Murphy, by 26 1 Further, as to Allen and Higgins, who are not Foundation employees (see SAC, 27 Ex. 10), a question exists as to whether such individuals can be deemed to be acting 1 failing to develop a procedure to receive and address grievances, violated Executive 2 Order 13160. Schultz seeks both injunctive relief and damages. 3 Pursuant to the APA, “[a] person suffering legal wrong because of agency action, 4 or adversely affected or aggrieved by agency action within the meaning of a relevant 5 statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. Courts “may review a 6 claim under the APA asserting that an agency violated an executive order where the 7 order has the force of law.” See Silver Dollar Graving Ass'n v. U.S. Fish & Wildlife Serv., 8 No. 07-35612, 2009 WL 166924, at *2 (9th Cir. Jan. 13, 2009). An executive order has 9 the force of law where “it is explicitly promulgated pursuant to constitutional or statutory 10 authority.” Id. Here, the executive order on which Schultz relies expressly cites the 11 Constitution and the specific statutory authority under which it is promulgated, and in 12 addition, expressly states it is not intended “to preclude judicial review of final decisions in 13 accordance with the [APA].” See Exec. Order No. 13160, 65 Fed. Reg. 39775, 39778 14 (June 23, 2000); see also Legal Aid Soc. of Alameda Cty. v. Brennan, 608 F.2d 1319, 15 1330 (9th Cir. 1979) (distinguishing executive orders “intended primarily as . . . 16 housekeeping measure[s]” from those “issued . . . pursuant to constitutional or statutory 17 authority”). 18 The APA, however, does not provide for claims brought against individuals other 19 than in their “official capacity” and only provides for relief “other than money damages.” 20 See 5 U.S.C. § 702; see also Duhring Res. Co. v. U.S. Forest Serv., No. CIV.A.07- 21 0314E, 2009 WL 586429, at *6 (W.D. Pa. Mar. 6, 2009) (holding “[t]he APA does not 22 provide for individual-capacity claims, or money damages”). 23 Accordingly, as Schultz brings his claims against Babcock-Lumish, Rich, Yglesias, 24 Murphy, Allen, and Higgins in their “individual capacit[ies]” (see SAC ¶¶ 6-11), those 25 claims will be dismissed, and Schultz may proceed on his APA claim for injunctive relief 26 against the Foundation. 27 C. Third Claim for Relief – Title VI 1 1964, 42 U.S.C. § 2000d et seq., and is based on allegations that the Foundation, Allen, 2 and Higgins discriminated against Schultz in the review of his application for the 3 Scholarship and that the Foundation, Babcock-Lumish, Rich, Yglesias, and Murphy 4 discriminated against him in the review of his subsequent grievance. As relief, Schultz 5 seeks an award of damages. 6 Title VI provides that “[n]o person in the United States shall, on the ground of race, 7 color, or national origin, be excluded from participation in, be denied the benefits of, or be 8 subjected to discrimination under any program or activity receiving Federal financial 9 assistance.” 42 U.S.C. § 2000d. As defined in Title VI, the term “program or activity” 10 includes “the operations of” state or local government departments or instrumentalities, 11 colleges or certain systems of higher education, corporations or other private 12 organizations, or a combination of two or more of the foregoing entities. See 42 U.S.C. § 13 2000d-4a. The statutory definition does not, however, include the operations of federal 14 agencies, and courts have consistently held that “Title VI does not apply to programs 15 conducted directly by federal agencies.” Halim v. Donovan, 951 F. Supp. 2d 201, 207 16 (D.D.C. 2013). See also, e.g., Colen v. United States, No. EDCV071359RSWLRNB, 17 2008 WL 2051697, at *15 (C.D. Cal. May 12, 2008), aff'd, 368 F. App'x 837 (9th Cir. 18 2010) (collecting cases finding no private right of action under Title VI against a federal 19 entity). 20 Moreover, numerous courts have held that Title VI does not apply to individual 21 defendants sued in their individual capacities. See Shotz v. City of Plantation, 344 F.3d 22 1161, 1169 (11th Cir. 2003) (noting courts “have generally concluded that individuals may 23 not be held liable for violation of Title VI because it prohibits discrimination only by 24 recipients of federal funding”); see also Santos v. Merritt Coll., No. C-07-5227 EMC, 2008 25 WL 2622792, at *2 (N.D. Cal. July 1, 2008) (dismissing Title VI claim against individual 26 defendant; collecting cases holding individual defendants not subject to suit under Title 27 VI). 1 IV. CONCLUSION 2 For the reasons stated above: 3 1. All claims against Babcock-Lumish, Rich, Yglesias, Murphy, Allen, and 4 || Higgins are hereby DISMISSED; 5 2. To the extent the First Claim for Relief includes a claim for damages against 6 the Foundation, said claim is hereby DISMISSED; 7 3. The Third Claim for Relief against the Foundation is hereby DISMISSED. 8 4. The Clerk of Court shall issue summons and the United States Marshall 9 || shall serve upon the Foundation, without prepayment of fees, a copy of the SAC (Docket 10 || No. 18) and a copy of this Order. 11 12 IT IS SO ORDERED. 13 : 14 || Dated: December 2, 2021 XINE M. CHESNEY 15 United States District Judge 16 18 19 20 21 22 23 24 25 26 27 28