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Stephen C. v. Bureau of Indian Education

United States District Court, D. Arizona

December 16, 2019

Stephen C., et al., Plaintiffs,
v.
Bureau of Indian Education, et al., Defendants.

          ORDER

          Honorable Steven P. Logan United States District Judge

         This dispute arises out of a conflict between several students (together, the “Plaintiffs”) who attend or have previously attended Havasupai Elementary School (“HES”) and the defending parties responsible for the operation and administration of HES, including the Bureau of Indian Education and the United States Department of the Interior (together, the “Defendants”). Before the Court is the Defendants' Motion for Partial Summary Judgment (Doc. 182) (the “Defendants' Motion”) and the Plaintiffs' Motion for Summary Judgment (Docs. 184, 187) (the “Plaintiffs' Motion”). The Defendants' Motion and the Plaintiffs' Motion were fully briefed on July 17, 2019. (Docs. 190, 191, 200, 202, 203) The Plaintiffs requested oral argument on both motions, and the Court held a hearing (the “Motion Hearing”) on both motions on November 20, 2019. The Court's ruling is as follows.

         I. Legal Standard

         A court shall grant summary judgment if the pleadings and supporting documents, viewed in the light most favorable to the non-moving party “show that there is no genuine dispute 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 Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Material facts are those facts “that might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine dispute of material fact arises if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

         The party moving for summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the record, together with affidavits, which it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. If the movant is able to do such, the burden then shifts to the non-movant who, “must do more than simply show that there is some metaphysical doubt as to the material facts, ” and instead must “come forward with ‘specific facts showing that there is a genuine issue for trial.'” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). A judge's function' at summary judgment is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial. Cable v. City of Phoenix, 647 Fed.Appx. 780, 781 (9th Cir. 2016).

         II. Background

         The Plaintiffs are students who attend or have previously attended HES. The defending parties, including the Bureau of Indian Education (“BIE”) and the United States Department of the Interior (“DOI”), are responsible for the operation and administration of HES. The Plaintiffs filed their third amended complaint (the “TAC”) on August 10, 2018, alleging six causes of action against the Defendants. (Doc. 129) Each claim is rooted in the Defendants' failure to provide the Plaintiffs with adequate education under the standards set forth by the Department of Education's (“DOE”) regulations and other federal statutes.

         III. Analysis

         The Complaint lists six causes of action for (i) violation of 5 U.S.C. § 706(1) for failure to provide basic education, (ii) violation of 5 U.S.C. § 706(2) for failure to provide basic education, (iii) violation of 29 U.S.C. § 794 for failure to provide a system enabling students with disabilities to access public education, (iv) violation of 29 U.S.C. § 794 for failure to provide a system enabling students impacted by childhood adversity access to public education, (v) violation of 34 C.F.R. § 104.32 for failing to abide by DOE regulations regarding “location and notification”, and (vi) violation of 34 C.F.R. § 104.36 for failing to abide by DOE regulations regarding “procedural safeguards.” (Doc. 129) The Defendants' Motion seeks partial summary judgment on counts 1, 2, 4, 5, and 6. The Plaintiffs' Motion seeks partial summary judgment on counts 1, 3, 4, 5, and 6. At the Motion Hearing, the Defendants admitted that they have failed to provide basic education as required by the law; thus, the Court finds that there is no genuine dispute as to the material facts of this case. Accordingly, the Court addresses summary judgment on each claim in turn.

         A. Count I - Violation of 5 U.S.C. § 706(1) - Failure to Provide Basic Education

         The Defendants seek summary judgment on the Plaintiffs' claim pursuant to 5 U.S.C. § 706(1), arguing that this claim is not actionable under the Administrative Procedure Act (“APA”). (Doc. 182 at 10-11) The Defendants argue that the APA only allows judicial review of a final “agency action, ” and there is no final agency action for the Court to review in this case. (Doc. 182 at 11) In response to the Defendants' Motion, the Plaintiffs argue that they should survive summary judgment because the Complaint alleges “discrete failures to act” by the Defendants, and the Court may compel agency action under such circumstances. (Doc. 190 at 9)

         In the Plaintiffs' Motion, the Plaintiffs seek summary judgment on Count 1, arguing that there is no dispute as to the fact that the Defendants have failed to comply with regulations set forth in Title 25 of the Code of Federal Regulations (the “Title 25 Regulations”). (Doc. 184 at 10) In addition to arguing that the Plaintiffs have failed to identify a discrete agency action as required for a claim pursuant to 5 U.S.C. § 706(1), the Defendants respond to the Plaintiffs' Motion by arguing that the Plaintiffs fail to meet their burden of demonstrating that summary judgment is warranted because (i) the Plaintiffs fail to identify and discuss the legal standards underlying their claim, and (ii) there are genuine disputes of material fact regarding whether BIE has implemented the Title 25 Regulations identified by the Plaintiffs. (Doc. 191 at 8-13)

         It is plainly stated that 5 U.S.C. § 706(1) allows the Court to “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706. A claim under § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take. Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004). However, it is well settled that a plaintiff cannot seek “wholesale” improvement of an agency program under the APA through the courts. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 892-94 (1990). The Supreme Court of the United States addressed this issue in Lujan v. National Wildlife Federation, in which it stated that flaws in an agency program “consisting principally of the many individual actions . . . cannot be laid before the courts for wholesale correction under the APA.” Lujan, 497 U.S. at 893.

         Lujan's holding is supported by the Supreme Court's analysis in Norton v. Southern Utah Wilderness Alliance, in which the Supreme Court stated that broad programmatic attacks are not permissible under 5 U.S.C. § 706(1). SUWA, 542 U.S. at 64, (2004). The SUWA opinion moved on to state that judicial interference is not appropriate where a statute mandates an agency action and provides the agency “a great deal ...


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