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SurvJustice Inc v. Devos

United States District Court, N.D. California

November 1, 2019

SURVJUSTICE INC, et al., Plaintiffs,
v.
ELISABETH DEVOS, et al., Defendants.

          ORDER RE: CROSS MOTIONS FOR SUMMARY JUDGMENT RE: DKT. NOS. 136, 140

          JACQUELINE SCOTT CORLEY, UNITED STATES MAGISTRATE JUDGE

         SurvJustice, Inc., Equal Rights Advocates, and Victim Rights Law Center (“Plaintiffs”) are non-profit advocacy organizations who sue for injunctive relief against the U.S. Department of Education (the “Department”), Secretary Elisabeth D. DeVos, and Acting Assistant Secretary for Civil Rights Kenneth L. Marcus (collectively, “Defendants”).[1] Plaintiffs seek to vacate the Department's policy regarding enforcement of Title IX of the Education Amendments of 1972 set forth in guidance documents the Department issued on September 22, 2017. (Dkt. No. 123 at ¶ 1.)[2] Now before the Court are the parties' cross motions for summary judgment. (Dkt. Nos. 136 & 140.) After careful consideration of the parties' briefing and having had the benefit of oral argument on October 17, 2019, the Court DENIES Plaintiffs' motion and GRANTS Defendants' motion because the challenged agency action is not “final” for purposes of judicial review under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706.

         BACKGROUND

         I. Factual Background

         A. Title IX Generally

         Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, prohibits any educational program or activity that receives federal funding from discriminating on the basis of sex. 20 U.S.C. § 1681(a). Sexual harassment is a form of sex discrimination that educational institutions must address and remedy under Title IX. Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629 (1999); Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998). The Department, acting through its Office of Civil Rights (“OCR”), is “the administrative agency charged with administering Title IX.” Neal v. Bd. of Trs. of California State Univ., 198 F.3d 763, 770 (9th Cir. 1999) (internal quotation marks and citation omitted). Applicants for federal funding from the Department must sign an “assurance of compliance” indicating that “the education program or activity operated by the applicant” will comply with Title IX and its implementing regulations. 34 C.F.R. § 106.4(a). Further, recipients of federal funding must “adopt and publish grievance procedures providing for prompt and equitable resolution of student and employee complaints alleging any action” prohibited under Title IX. 34 C.F.R. § 106.8(b).

         B. The 2001 Guidance

         In January 2001, OCR issued a revised guidance document titled Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, which “reaffirm[ed] the compliance standards that OCR applies in investigations and administrative enforcement of Title IX . . . regarding sexual harassment.” (Dkt. No. 136-2, Ex. A3 at 24 (“2001 Guidance”).) The 2001 Guidance largely reaffirmed the requirements and guidelines established under previous guidance issued by OCR in 1997, but also “re-ground[ed]” OCR's standards “in the Title IX regulations, distinguishing them from the standards applicable to private litigation for money damages and clarifying their regulatory basis as distinct from Title VII of the Civil Rights Act of 1964 (Title VII) agency law.” (See id.) The stated purpose of the 2001 Guidance is to “provide the principles that a school should use to recognize and effectively respond to sexual harassment of students in its program as a condition of receiving Federal financial assistance.” (Id.) OCR issued the 2001 Guidance after publishing notice in the Federal Register “requesting public comments on the proposed revised guidance.” (Id. at 25.)

         C. The 2011 Letter and the 2014 Q&A

         In April 2011, OCR issued a “Dear Colleague Letter on Sexual Violence, ” (Dkt. No. 134-3 at 89-107 (“2011 Letter”)), followed by a set of questions and answers in 2014 in response to “additional concerns raised by schools and students, ” (id. at 192-244 (“2014 Q&A”)) (together, “2011 & 2014 Guidance”). The 2011 Letter reaffirmed the Title IX requirements detailed in the 2001 Guidance “related to student-on-student sexual harassment, including sexual violence, and . . . schools' responsibility to take immediate and effective steps to end sexual harassment and sexual violence.” (Id. at 90.) The 2011 Letter also “supplement[ed] the 2001 Guidance by providing additional guidance and practical examples regarding the Title IX requirements as they relate to sexual violence.” (Id.)

         The 2011 & 2014 Guidance set forth or reiterated several substantive provisions; specifically: (1) requiring schools to “use a preponderance of the evidence standard (i.e., it is highly probable or reasonably certain that the sexual harassment or violence occurred)”; (2) requiring schools to provide an appeals process for both parties; (3) noting that voluntary mediation is not appropriate “[i]n cases involving allegations of sexual assault”; (4) requiring schools “to take steps to protect the complainant as necessary, including taking interim steps before the final outcome of the investigation”; (5) recognizing that “a typical [sexual misconduct] investigation takes approximately 60 calendar days following receipt of the complaint, ” but specifying that “[w]hether OCR considers an investigation to be prompt as required by Title IX will vary depending on the complexity of the investigation and the severity and extent of the alleged conduct”; (6) requiring schools to “process all complaints of sexual violence, regardless of where the conduct occurred, to determine whether the conduct occurred in the context of an education program or activity or had continuing effects on campus or in an off-campus education program or activity”; (7) requiring that “[i]f a school determines that it can respect [a] student's request not to disclose his or her identity to the alleged perpetrator, it should take all reasonable steps to respond to the complaint consistent with the request”; and (8) noting that “[q]uestioning about the complainant's sexual history with anyone other than the alleged perpetrator should not be permitted.” (See Dkt. No. 134-3 at 31, 96, 98-99, 100, 211, 218, 227, 229, 230.)

         D. The 2017 Guidance

         On September 22, 2017, the Department issued a “Dear Colleague Letter” rescinding the 2011 & 2014 Guidance. (Dkt. No. 134-2 at 2 (“2017 Letter”).) That same day, the Department issued questions and answers on “Campus Sexual Misconduct.” (Id. at 4 (“2017 Q&A”).) The stated purpose of the 2017 guidance documents (collectively, “2017 Guidance”) was to withdraw the “new mandates” imposed by the 2011 letter and 2014 Q&A “related to the procedures by which educational institutions investigate, adjudicate, and resolve allegations of student-on-student sexual misconduct.” (Id. at 2.)

         The 2017 Letter singles-out as flawed the following procedures set forth in the 2011 Letter: (i) requiring “schools to adopt a minimal standard of proof-the preponderance-of-the-evidence standard-in administering student discipline, even though many schools had traditionally employed a higher clear-and-convincing-evidence standard”; (ii) “insist[ing] that schools with an appeals process allow complainants to appeal not-guilty findings, even though many schools had previously followed procedures reserving appeal for accused students”; (iii) “discourag[ing] cross-examination by the parties, suggesting that to recognize a right to such cross-examination might violate Title IX”; (iv) “forb[idding] schools from relying on investigations of criminal conduct by law-enforcement authorities to resolve Title IX complaints, forcing schools to establish policing and judicial systems while at the same time directing schools to resolve complaints on an expedited basis;” and (v) “provid[ing] that any due-process protections afforded to accused students should not ‘unnecessarily delay' resolving the charges against them.” (Id.) The 2017 Letter notes that “[t]he Department imposed these regulatory burdens without affording notice and the opportunity for public comment.” (Id. at 3.) The 2017 Letter continues:

Under these circumstances, the Department has decided to withdraw the above-referenced guidance documents in order to develop an approach to student sexual misconduct that responds to the concerns of stakeholders and that aligns with the purpose of Title IX to achieve fair access to educational benefits. The Department intends to implement such a policy through a rulemaking process that responds to public comment. The Department will not rely on the withdrawn documents in its enforcement of Title IX.

(Id.) In the interim, the 2017 Letter directs readers to the 2017 Q&A, and states that the Department “will continue to rely on [the 2001 Guidance], which was informed by a notice-and-comment process, ” and a 2006 Dear Colleague Letter on Sexual Harassment that reaffirmed the 2001 Guidance. (Id.) The 2017 Q&A reiterates the Department's intention to engage in formal “rulemaking on the topic of schools' Title IX responsibilities concerning complaints of sexual misconduct, ” stating, in pertinent part:

Under Title IX of the Education Amendments of 1972 and its implementing regulations, an institution that receives federal funds must ensure that no student suffers a deprivation of her or his access to educational opportunities on the basis of sex. The Department of Education intends to engage in rulemaking on the topic of schools' Title IX responsibilities concerning complaints of sexual misconduct, including peer-on-peer sexual harassment and sexual violence. The Department will solicit input from stakeholders and the public during that rulemaking process. In the interim, these questions and answers-along with the [2001 Guidance] previously issued by the Office of Civil Rights-provide information about how OCR will assess a school's compliance with Title IX.

(Id. at 4 (footnote omitted).)[3]

         1. Substantive changes under the 2017 Guidance

         In rescinding the 2011 & 2014 Guidance, the 2017 Guidance enacts eight changes. (See Dkt. Nos. 136 at 11-12 & 140 at 14-15.) First, the 2017 Guidance returns to the pre-2011 policy of giving schools discretion over the standard of proof it employs in evaluating evidence, permitting schools to use either the “preponderance” or a “clear and convincing” standard.[4] (See Dkt. No. 134-2 at 8.) Second, regarding the appeals process, the 2017 Guidance allows schools to “choose to allow appeal (i) solely by the responding party; or (ii) by both parties, in which case any appeal procedures must be equally available to both parties.” (Id. at 10.) Third, the 2017 Guidance allows for voluntary informal mediation if the parties have “receiv[ed] a full disclosure of the allegations and their options for formal resolution and if a school determines that the particular Title IX complaint is appropriate for such a process.” (Id. at 7.)

         Fourth, the 2017 Guidance rescinds the 2014 Q&A's mandate that schools must take interim measures during the investigation of a complaint, and instead returns to the 2001 Guidance, which provided that schools may take such measures. (See Id. at 5-6; see also Dkt. No. 136-2, Ex. A-3 at 47 (providing that “[i]t may be appropriate for a school to take interim measures during the investigation of a complaint.”).) Fifth, the 2017 Guidance does not recognize the 2014 Q&A's 60-day benchmark for “prompt” investigations in typical cases, (see Dkt. No. 134-3 at 229), and states instead that “[t]here is no fixed time frame under which a school must complete a Title IX investigation, ” (Dkt. No. 134-2 at 6). In determining whether an investigation is “prompt, ” the 2017 Guidance provides that “OCR will evaluate a school's good faith effort to conduct a fair, impartial investigation in a timely manner designed to provide all parties with resolution.” (Id.)

         Sixth, the 2017 Guidance addresses off-campus conduct and provides that “[s]chools are responsible for redressing a hostile environment that occurs on campus even if it relates to off-campus activities, ” but notes that “OCR has informed institutions that a university does not have a duty under Title IX to address an incident of alleged harassment where the incident occurs off-campus and does not involve a program or activity of the [school].” (Dkt. No. 134-2 at 4 n.3 (internal quotation marks omitted) (citing OCR complaints issued prior to the 2011 & 2014 Guidance).) Conversely, the 2014 Q&A provided that “school[s] must process all complaints of sexual violence, regardless of where the conduct occurred, to determine whether the conduct occurred in the context of an education program or activity or had continuing effects on campus or in an off-campus education program or activity.” (Dkt. No. 134-3 at 227.) The 2014 Q&A further provided that “[e]ven if the misconduct did not occur in the context of an education program or activity, a school must consider the effects of off-campus misconduct when evaluating whether is hostile environment on campus or in an off-campus education program or activity.” (Id.)

         Seventh, the 2017 Guidance provides that schools should provide notice to the accused party of the “identities of the parties involved” in the complaint “[o]nce it decides to open an investigation that may lead to disciplinary action.” (Dkt. No. 134-2 at 7.) This differs from the 2014 Q&A, which provided that “[i]f a school determines that it can respect [a] student's request not to disclose his or her identity to the alleged perpetrator, it should take all reasonable steps to respond to the complaint consistent with the request.”[5] (Dkt. No. 134-3 at 218.) Finally, the 2017 Guidance appears to differ from the rescinded guidance in that it does not expressly prohibit “[q]uestioning about the complainant's sexual history with anyone other than the alleged perpetrator, ” which the 2014 Q&A noted “should not be permitted.” (Compare Id. at 229 with Dkt. No. 134-2 at 7 (noting that investigating “a Title IX complaint requires a trained investigator to analyze and document the available evidence to support reliable decisions, objectively evaluate the credibility of parties and witnesses, synthesize all available evidence-including both inculpatory and exculpatory evidence-and take into account the unique and complex circumstances of each case”).)

         II. Procedural History

         In January 2018, Plaintiffs filed their original complaint for injunctive relief against Defendants Elisabeth D. DeVos and Candice Jackson in their official capacities, [6] and the Department. (Dkt. No. 1.) Plaintiffs filed the first amended complaint (“FAC”) the following month, seeking injunctive relief and alleging causes of action for: (i) violation of the APA, 5 U.S.C. § 706; (ii) ultra vires action; and (iii) violation of the equal protection guarantee under the Fifth Amendment. (Dkt. No. 23.) Defendants moved to dismiss the FAC pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Dkt. No. 40.) The Court granted dismissal of Plaintiffs' ultra vires action and equal protection claims without prejudice and with leave to amend. (Dkt. No. 81 at 21.) The Court dismissed Plaintiffs' APA claim with prejudice, however, concluding that the 2017 Guidance did not constitute final agency action for purposes of judicial review under the APA. (Id.)

         Plaintiffs filed the second amended complaint (“SAC”) on October 31, 2018, alleging equal protection and ultra vires action claims. (Dkt. No. 86.) Defendants moved to dismiss the SAC pursuant to Rules 12(b)(1) and 12(b)(6). (Dkt. No. 95.) Plaintiff then filed a motion for reconsideration of the Court's dismissal with prejudice of Plaintiffs' APA claim.[7] (Dkt. No. 107.) On March 29, 2019, the Court denied Defendants' motion to dismiss the SAC under Rule 12(b)(1) for lack of Article III standing but granted dismissal with prejudice as to the equal protection claim pursuant to Rule 12(b)(6) for lack of prudential standing. (Dkt. No. 120 at 17.) The Court also granted dismissal with prejudice as to Plaintiffs' ultra vires action claim because Plaintiffs “did not amend their complaint after being granted leave to amend, but instead re-pled the same facts and legal theories.” (Id. (internal quotation marks and citation omitted).) The Court granted Plaintiffs' motion for reconsideration the same day, concluding that the Ninth Circuit's decision in Gill v. U.S. Dep't of Justice, 913 F.3d 1179 (9th Cir. 2019) warranted reconsideration of the Court's October 2018 Order “to the extent it dismissed Plaintiffs' APA claim with prejudice.” (Dkt. No. 121 at 1.) The Court directed Plaintiffs to file an amended complaint within 30 days of the Order. (Id. at 12.)

         Plaintiffs filed the third amended complaint (“TAC”) on April 18, 2019, alleging arbitrary and capricious agency action in violation of the APA. (Dkt. No. 123.) The parties filed a joint case management statement on April 25, 2019, in which both parties requested to proceed with summary judgment briefing. (Dkt. No. 124 at ¶¶ 4, 17.) Following the case management conference on May 2, 2019, the Court issued a scheduling order that set deadlines for Defendants' production of the administrative record and the parties' respective motions for summary judgment. (Dkt. No. 128.) Defendants filed the administrative record on June 3, 2019. (Dkt. No. 134.) The parties' cross motions for summary judgment are fully briefed, (see Dkt. Nos. 136, 140, 141, 144), and the Court heard oral argument on October 17, 2019.

         DISCUSSION

         Plaintiffs assert that the Court should enter judgment in their favor because they have satisfied the elements of their APA claim: (1) they have standing, (2) the 2017 Guidance constitutes final agency action, and (3) the 2017 Guidance is arbitrary and capricious. (Dkt. No. 136 at 13-30.) Defendants oppose Plaintiffs' motion and move for judgment in their favor on two grounds: (1) the 2017 Guidance does not constitute final agency action and is therefore non-reviewable under the APA; and (2) “the 2017 Guidance is not arbitrary or capricious.” (Dkt. No. 140 at 16.)

         A. Standing

         The Court previously determined that Plaintiffs adequately alleged Article III standing to pursue their APA claim, (see Dkt. Nos. 81 at 10-14 & 121 at 10-11), and Plaintiffs' declarations in support of their motion for summary judgment continue to demonstrate standing, (see Dkt. No. 136-2, Exs. B-D). Further, Defendants' cross motion for summary judgment does not challenge the Court's prior rulings or set forth substantive arguments that Plaintiffs lack standing overall, (see Dkt. No. 140 at n.5 (“While Defendants continue to dispute Plaintiffs' standing generally, in light of the Court's prior rulings, this brief addresses only Plaintiffs' standing to challenge the 2017 Guidance's determination that mediation may be permissible in certain cases of alleged sexual assault.”)). Thus, there is nothing in the record that changes the ...


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