Maxwell v. New York University

09-2898-cv
Maxwell v. N.Y. Univ.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 8th day of December, two thousand ten.
PRESENT: REENA RAGGI,
DEBRA ANN LIVINGSTON,
DENNY CHIN,
Circuit Judges.
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MILFORD BENJAMIN MAXWELL,
Plaintiff-Counter-Defendant-Appellant,
v. No. 09-2898-cv
NEW YORK UNIVERSITY, CHRISTOPHER
CONNELLY,
Defendants-Counter-Claimants-Appellees.*
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APPEARING FOR APPELLANT: MILFORD BENJAMIN MAXWELL, pro se,
Brooklyn, New York.
APPEARING FOR APPELLEE: NANCY KILSON, Associate General Counsel,
for Bonnie Brier, General Counsel, New York
University, New York, New York.
*
The Clerk of the Court is directed to amend the caption to read as shown above.
Appeal from the United States District Court for the Southern District of New York
(Harold Baer, Jr., Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court entered on June 3, 2009, is AFFIRMED.
Plaintiff Milford Benjamin Maxwell, pro se, appeals from an award of summary
judgment in favor of defendants New York University (“NYU”) and Christopher Connelly
on plaintiff’s claims that NYU’s cancellation of his financial aid award for the 2005-06
academic year violated the Military Selective Service Act (“MSSA”), 50 U.S.C. app. § 451
et seq., and the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.
Maxwell also appeals the district court’s denial of his requests for pro bono counsel and for
an order either holding NYU’s counsel in contempt or imposing discovery sanctions based
upon NYU’s failure to respond to Maxwell’s discovery requests. We assume the parties’
familiarity with the facts and the record of prior proceedings, which we reference only as
necessary to explain our decision to affirm.
1. Summary Judgment on the MSSA and ADA Claims
We review an award of summary judgment de novo, viewing the facts in the light
most favorable to the non-moving party. See Havey v. Homebound Mortg., Inc., 547 F.3d
158, 163 (2d Cir. 2008). Summary judgment is appropriate where the record shows “that
there is no genuine issue as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); see also FDIC v. Great Am. Ins. Co., 607 F.3d 288,
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292 (2d Cir. 2010). Summary judgment determines only issues of law and does not impair
the right to a jury trial. See Benjamin v. Traffic Exec. Ass’n E. R.Rs., 869 F.2d 107, 115
n.11 (2d Cir. 1989) (“Plaintiffs cannot attack summary judgment decisions as inimicable to
the seventh amendment.”). Having conducted an independent and de novo review of the
record in light of these principles, we affirm the district court’s grant of summary judgment
for substantially the reasons stated by the district court in its thorough and well-reasoned
decision.
a. MSSA
The district court correctly determined that, under the circumstances of this case, a
student who is denied federal financial assistance by an educational institution due to his
Selective Service registration status must exhaust his administrative remedies before filing
suit in federal court.1
The MSSA provides that a person who is required to register with the Selective
Service but fails to do so “shall be ineligible for any form of assistance or benefit provided
under title IV of the Higher Education Act of 1965.” 50 U.S.C. app. § 462(f)(1). There is
an exception to this rule, however, where the registration requirement has become
inapplicable – due, for example, to the registrant’s age – and the person “shows by a
preponderance of the evidence that the failure of the person to register was not a knowing
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Because we conclude that Maxwell’s failure to exhaust his administrative remedies
precludes suit in federal court, we do not consider whether 50 U.S.C. app. § 462(g) implies
a private right of action.
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and willful failure to register.” Id. § 462(g).
The MSSA directs the Department of Education (“DOE”) to “issue regulations to
implement the requirements of” § 462(f) and to afford any person denied benefits “an
opportunity for a hearing to establish his compliance.” Id. § 462(f)(4). Pursuant to this
authority, the DOE has promulgated 34 C.F.R. § 668.37, which sets forth the procedures for
determining the eligibility of male students for federal assistance in connection with the
Selective Service registration requirement. Educational institutions are responsible in the
first instance for determining whether a student who did not register with the Selective
Service is nonetheless eligible for federal assistance under § 462(g). See 34 C.F.R.
§ 668.37(d). A student who is denied assistance on the basis of his Selective Service
registration status may seek a hearing before the Secretary of Education by filing a request
in writing “within the award year for which it was denied . . . assistance or within 30 days
following the end of the payment period, whichever is later.” Id. § 668.37(f)(2)(ii). At the
hearing, the student “retains the burden of proving compliance, by credible evidence,” with
the registration requirements. Id. § 668.37(f)(3).
“The doctrine of exhaustion of administrative remedies is well established in the
jurisprudence of administrative law.” Woodford v. Ngo, 548 U.S. 81, 88 (2006) (internal
quotation marks omitted). “The doctrine provides that no one is entitled to judicial relief for
a supposed or threatened injury until the prescribed administrative remedy has been
exhausted.” Id. at 88-89 (internal quotation marks omitted); see also Bastek v. Fed. Crop Ins.
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Corp., 145 F.3d 90, 93 (2d Cir. 1998) (“In general, exhaustion of administrative remedies is
the rule . . . .”). Where a statute does not explicitly require exhaustion, we must “exercise
discretion and balance the interest of the individual in retaining prompt access to a federal
judicial forum against countervailing institutional interests favoring exhaustion.” Id. at 94(internal quotation marks omitted). We have previously described the circumstances under
which waiver of the administrative exhaustion requirement may be appropriate:
Such circumstances occur when (1) requiring exhaustion would
occasion undue prejudice to subsequent assertion of a court
action; (2) the administrative remedy is inadequate because the
agency cannot give effective relief, e.g., (a) it lacks institutional
competence to resolve the particular type of issue presented,
such as the constitutionality of a statute; (b) the challenge is to
the adequacy of the agency procedure itself; or (c) the agency
lacks authority to grant the type of relief requested; or (3) the
agency is biased or has predetermined the issue (also known as
“futility”). Other circumstances potentially giving rise to a
waiver of exhaustion occur when (4) the claim is collateral to a
demand for benefits, or (5) plaintiffs would suffer irreparable
harm if required to exhaust their administrative remedies.
Id. at 94 n.4 (internal quotation marks, brackets, and citations omitted); see also United States
ex rel. Saint Regis Mohawk Tribe v. President R.C.-St. Regis Mgmt. Co., 451 F.3d 44, 50
(2d Cir. 2006) (“Where administrative remedies are not prescribed by statute, a plaintiff’s
failure to exhaust administrative remedies can be excused if (1) the claim is collateral to a
demand for benefits, (2) exhaustion would be futile, or (3) requiring exhaustion would result
in irreparable harm.” (internal quotation marks omitted)).
Upon our independent review of the record, we conclude that the district court
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correctly analyzed the circumstances surrounding Maxwell’s MSSA claim and determined
that each of the above criteria weighed in favor of requiring exhaustion of administrative
remedies through the DOE under 34 C.F.R. § 668.37 as a necessary prerequisite to bringing
his claim in federal court. The fact that application of the administrative exhaustion
requirement to this case will preclude judicial review of the merits of Maxwell’s claim does
not support a contrary conclusion. See, e.g., McGee v. United States, 402 U.S. 479, 491
(1971) (holding that the failure to exhaust administrative remedies barred defense to criminal
charges that defendant was entitled to exemption from Selective Service registration).
Accordingly, we conclude that the district court properly granted summary judgment in favor
of defendants on Maxwell’s MSSA claim.
b. ADA
The ADA prohibits discrimination “on the basis of disability in the full and equal
enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of
any place of public accommodation.” 42 U.S.C. § 12182(a); see also McInerney v.
Rensselaer Polytechnic Inst., 505 F.3d 135, 138 (2d Cir. 2007) (holding private institution
of higher learning is “place of public accommodation” subject to ADA). Upon an
independent review of the record, we find no error in the district court’s determination that
Maxwell failed to raise a genuine issue of material fact with respect to his ADA claim.
Among other things, Maxwell has offered no reason to believe that NYU’s actions with
respect to his financial aid were taken “on the basis of” his alleged disabilities, 42 U.S.C.
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§ 12182(a), rather than on the basis of his Selective Service registration status. Moreover,
disbursement of financial aid to a student who has been determined to be ineligible under
federal law is not the kind of “reasonable modification[ ]” in policies that is required under
the ADA to accommodate persons with disabilities. 42 U.S.C. § 12182(b)(2)(A)(ii).
2. Denial of Pro Bono Counsel
We review the denial of an application for pro bono counsel for abuse of discretion.
See Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1341 (2d Cir. 1994) (noting that
district courts have “broad discretion” regarding the appointment of counsel for indigent
litigants). Here, the district court did not abuse its discretion in denying appointed counsel
because Maxwell had demonstrated an ability to file and respond to motions and otherwise
to prosecute his action. See, e.g., Hodge v. Police Officers, 802 F.2d 58, 61 (2d. Cir. 1986)
(recognizing “plaintiff’s apparent ability to present the case” as factor relevant to need for
pro bono counsel).
3. Denial of Discovery Sanctions
This Court reviews discovery rulings for abuse of discretion. See Independent Order
of Foresters v. Donald, Lufkin & Jenrette, Inc., 157 F.3d 933, 937 (2d Cir. 1998). Based on
our independent review of the record, we find no abuse of discretion in the district court’s
ruling that NYU satisfied its discovery obligation to make reasonable efforts to locate and
produce responsive documents, as ordered by the district court.
We have considered Maxwell’s remaining arguments on appeal and conclude that they
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are without merit. Accordingly, the judgment is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
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