Sherman v. Black
Opinion of the Court
SUMMARY ORDER
Plaintiff-Appellant David Sherman, pro se, appeals from the September 27, 2007 judgment of the United States District Court for the Eastern District of New York (Gershon, J.) dismissing Sherman’s complaint. We assume the parties’ familiarity with the underlying facts and the procedural history of the case.
The district court correctly determined that it was unable to review the decision of the Office for Civil Rights (“OCR”) under the Administrative Procedures Act (“APA”) because the OCR’s decision not to commence enforcement proceedings is discretionary. See 5 U.S.C. § 701(a)(2); Heckler v. Chaney, 470 U.S. 821, 831, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985); Marlow v. U.S. Dep’t of Educ., 820 F.2d 581, 582-83 (2d Cir. 1987) (finding OCR’s decision to dispose of discrimination
We also find no error in the district court’s determination that Sherman could not pursue mandamus relief. Because an agency’s enforcement decisions are a matter of discretion, Sherman cannot show that appellees had “a plainly defined and peremptory duty to perform the act in question.” Benzman v. Whitman, 523 F.3d 119, 133 (2d Cir. 2008). As discussed above, the OCR completed the required investigation of Sherman’s complaint.
Additionally, Sherman is precluded from bringing a claim under either the APA or for mandamus relief because he has another adequate remedy, a suit against the medical school alleging discrimination based on his disability. See id. (noting a plaintiff is only entitled to a writ of mandamus where, inter alia, he has no other adequate remedy); Marlow, 820 F.2d at 583 n. 3 (noting a plaintiff could not bring claim against the OCR under the APA because he “clearly has an adequate remedy in court,” i.e., the lawsuit against the institution that committed the alleged discrimination). This right of action is adequate to redress Sherman’s discrimination claims. See Women’s Equity Action League v. Cavazos, 906 F.2d 742, 751 (D.C.Cir. 1990).
There is no merit to Sherman’s contention that a suit against the medical school is inadequate as, to the extent that Sherman seeks reinstatement, a successful action against the medical school can provide this relief. Moreover, courts do not have the authority to grant him the additional remedy he seeks, a court order that the OCR supervise the medical school through the selection of his residency. This monitoring is conducted by the OCR only after it finds that a recipient of federal funds is not in compliance with anti-discrimination statutes and then enters into a voluntary agreement with that institution. As discussed above, the OCR’s enforcement decisions are discretionary, and a court cannot require that the OCR find that the medical school discriminated against Sherman and then dictate the terms of a voluntary agreement.
We have considered all of Sherman’s remaining arguments and find them to be without merit. Accordingly, the judgment of the district court is AFFIRMED.
Reference
- Full Case Name
- David SHERMAN v. David BLACK, Margaret Spellings
- Cited By
- 3 cases
- Status
- Published