FILED NOT FOR PUBLICATION DEC 19 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ORION INSURANCE GROUP, a No. 17-35749 Washington Corporation; RALPH G. TAYLOR, an individual, D.C. No. 3:16-cv-05582-RJB
Plaintiffs-Appellants, MEMORANDUM* v.
WASHINGTON’S OFFICE OF MINORITY & WOMEN’S BUSINESS ENTERPRISES; EDWINA MARTIN- ARNOLD; DEBBIE MCVICKER; PAMELA SMITH; SARAH ERDMANN; STACEY SAUNDERS, individuals; U.S. DEPARTMENT OF TRANSPORTATION; STEPHANIE JONES, an individual,
Defendants-Appellees.
Appeal from the United States District Court for the Western District of Washington Robert J. Bryan, District Judge, Presiding
Argued and Submitted December 3, 2018 Seattle, Washington
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: W. FLETCHER, BYBEE, and WATFORD, Circuit Judges.
Plaintiffs-Appellants Orion Insurance Group and its owner Ralph
Taylor (collectively “Taylor”) appeal the district court’s partial dismissal and
partial summary judgment in favor of the U.S. Department of Transportation
(“USDOT”), the Washington State Office of Minority & Women’s Business
Enterprises (“OMWBE”), and other federal and state defendants sued in both their
official and individual capacities. We have jurisdiction pursuant to 28 U.S.C. §
1291, and we affirm the district court.
1. Order to Dismiss
We review the district court’s order dismissing various claims under Fed. R.
Civ. P. 12(b)(2) and 12(b)(6) de novo. Arias v. Raimondo, 860 F.3d 1185, 1189
(9th Cir. 2017) (reviewing Rule 12(b)(6) dismissal for failure to state a claim de
novo); Ziegler v. Indian River Cty., 64 F.3d 470, 473 (9th Cir. 1995) (reviewing
dismissal for lack of personal jurisdiction de novo). Here, we hold that the district
court did not err when it dismissed Taylor’s claims against the federal defendants.
First, the district court correctly dismissed Taylor’s claims against Stephanie Jones,
former Acting Director of the USDOT’s Office of Civil Rights, in her individual
capacity, under Fed. R. Civ. P. 12(b)(2) because the district court lacked personal
jurisdiction. Jones does not have sufficient “minimum contacts” with Washington
2 “such that the maintenance of the suit does not offend ‘traditional notions of fair
play and substantial justice.’” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316
(1945) (citation omitted); see Schwarzenegger v. Fred Martin Motor Co., 374 F.3d
797, 801–02 (9th Cir. 2004). Second, the district court correctly dismissed
Taylor’s discrimination claims under 42 U.S.C. § 1983 because the federal
defendants did not act “under color of state law” as required by the statute. 42
U.S.C. § 1983; Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other
grounds by Daniels v. Williams, 474 U.S. 327 (1986). Third, the district court
correctly dismissed Taylor’s claims for damages because the United States has not
waived its sovereign immunity on those claims. Fourth, the district court correctly
dismissed Taylor’s claims for equitable relief under 42 U.S.C. § 2000d because the
federal disadvantaged business enterprise program does not qualify as a “program
or activity” within the meaning of the statute. Lastly, the district court correctly
dismissed Taylor’s claims against the United States for equitable relief under
Washington state law because Taylor failed to make a showing that the relief he
sought was available under Washington state law.
2. Summary Judgment Order
We review the district court’s order granting summary judgment de novo.
Universal Health Servs. Inc. v. Thompson, 363 F.3d 1013, 1019 (9th Cir.
3 2004). Taylor argues the district court erred when it granted summary judgment in
favor of federal and state defendants on his claims for violation of the
Administrative Procedure Act (“APA”), violation of the Equal Protection Clause,
discrimination under 42 U.S.C. § 1983, and discrimination under 42 U.S.C. §
2000d. In addition, Taylor argues the district court erred when it declined to
exercise supplemental jurisdiction over his claims under the Washington State
Constitution and Washington Law Against Discrimination. We disagree.
A. Claims under the Administrative Procedure Act
The district court did not err when it granted summary judgment to state and
federal defendants on Taylor’s APA claims. As a preliminary matter, despite
Taylor’s assertions to the contrary, there were no issues of material fact. Fed. R.
Civ. Pro. 56(a); see also Occidental Eng’g Co. v. I.N.S., 753 F.2d 766, 769–70 (9th
Cir. 1985) (discussing summary judgment in the context of an administrative
proceeding and stating that a district court “is not required to resolve any facts in a
review of an administrative proceeding . . . the function of the district court is to
determine whether or not as a matter of law the evidence in the administrative
record permitted the agency to make the decision it did”). In addition, when
analyzing Taylor’s APA claims, the district court did not abuse its discretion in
refusing to consider documents outside the administrative record because those
4 documents did not fall into one of the recognized exceptions permitting review.
See Lands Council v. Powell, 395 F.3d 1019, 1029–30 (9th Cir. 2005).
Taylor argues that state and federal defendants violated the APA by acting in
an arbitrary and capricious manner. See 5 U.S.C. § 706(1)-(2). When considering
whether to set aside an agency action as “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law,” courts must determine
“whether the agency considered the relevant factors and articulated a rational
connection between the facts found and the choices made.” Ranchers Cattlemen
Action Legal Fund United Stockgrowers of Am. v. U.S. Dep’t of Agr., 499 F.3d
1108, 1115 (9th Cir. 2007) (internal quotations omitted); see also 5 U.S.C. §
706(1)–(2).
Here, OMWBE did not act in an arbitrary and capricious manner when it
determined it had a “well founded reason” to question Taylor’s membership claims
and, after requesting additional documentation from Taylor, determined that Taylor
did not qualify as a “socially and economically disadvantaged individual.” See 49
C.F.R. §§ 26.5, 26.61(c), 26.63(a)–(b), 26.67(a)(1). In addition, OMWBE did not
act in an arbitrary and capricious manner when it did not provide an in-person
hearing under 49 C.F.R.
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FILED NOT FOR PUBLICATION DEC 19 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ORION INSURANCE GROUP, a No. 17-35749 Washington Corporation; RALPH G. TAYLOR, an individual, D.C. No. 3:16-cv-05582-RJB
Plaintiffs-Appellants, MEMORANDUM* v.
WASHINGTON’S OFFICE OF MINORITY & WOMEN’S BUSINESS ENTERPRISES; EDWINA MARTIN- ARNOLD; DEBBIE MCVICKER; PAMELA SMITH; SARAH ERDMANN; STACEY SAUNDERS, individuals; U.S. DEPARTMENT OF TRANSPORTATION; STEPHANIE JONES, an individual,
Defendants-Appellees.
Appeal from the United States District Court for the Western District of Washington Robert J. Bryan, District Judge, Presiding
Argued and Submitted December 3, 2018 Seattle, Washington
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: W. FLETCHER, BYBEE, and WATFORD, Circuit Judges.
Plaintiffs-Appellants Orion Insurance Group and its owner Ralph
Taylor (collectively “Taylor”) appeal the district court’s partial dismissal and
partial summary judgment in favor of the U.S. Department of Transportation
(“USDOT”), the Washington State Office of Minority & Women’s Business
Enterprises (“OMWBE”), and other federal and state defendants sued in both their
official and individual capacities. We have jurisdiction pursuant to 28 U.S.C. §
1291, and we affirm the district court.
1. Order to Dismiss
We review the district court’s order dismissing various claims under Fed. R.
Civ. P. 12(b)(2) and 12(b)(6) de novo. Arias v. Raimondo, 860 F.3d 1185, 1189
(9th Cir. 2017) (reviewing Rule 12(b)(6) dismissal for failure to state a claim de
novo); Ziegler v. Indian River Cty., 64 F.3d 470, 473 (9th Cir. 1995) (reviewing
dismissal for lack of personal jurisdiction de novo). Here, we hold that the district
court did not err when it dismissed Taylor’s claims against the federal defendants.
First, the district court correctly dismissed Taylor’s claims against Stephanie Jones,
former Acting Director of the USDOT’s Office of Civil Rights, in her individual
capacity, under Fed. R. Civ. P. 12(b)(2) because the district court lacked personal
jurisdiction. Jones does not have sufficient “minimum contacts” with Washington
2 “such that the maintenance of the suit does not offend ‘traditional notions of fair
play and substantial justice.’” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316
(1945) (citation omitted); see Schwarzenegger v. Fred Martin Motor Co., 374 F.3d
797, 801–02 (9th Cir. 2004). Second, the district court correctly dismissed
Taylor’s discrimination claims under 42 U.S.C. § 1983 because the federal
defendants did not act “under color of state law” as required by the statute. 42
U.S.C. § 1983; Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other
grounds by Daniels v. Williams, 474 U.S. 327 (1986). Third, the district court
correctly dismissed Taylor’s claims for damages because the United States has not
waived its sovereign immunity on those claims. Fourth, the district court correctly
dismissed Taylor’s claims for equitable relief under 42 U.S.C. § 2000d because the
federal disadvantaged business enterprise program does not qualify as a “program
or activity” within the meaning of the statute. Lastly, the district court correctly
dismissed Taylor’s claims against the United States for equitable relief under
Washington state law because Taylor failed to make a showing that the relief he
sought was available under Washington state law.
2. Summary Judgment Order
We review the district court’s order granting summary judgment de novo.
Universal Health Servs. Inc. v. Thompson, 363 F.3d 1013, 1019 (9th Cir.
3 2004). Taylor argues the district court erred when it granted summary judgment in
favor of federal and state defendants on his claims for violation of the
Administrative Procedure Act (“APA”), violation of the Equal Protection Clause,
discrimination under 42 U.S.C. § 1983, and discrimination under 42 U.S.C. §
2000d. In addition, Taylor argues the district court erred when it declined to
exercise supplemental jurisdiction over his claims under the Washington State
Constitution and Washington Law Against Discrimination. We disagree.
A. Claims under the Administrative Procedure Act
The district court did not err when it granted summary judgment to state and
federal defendants on Taylor’s APA claims. As a preliminary matter, despite
Taylor’s assertions to the contrary, there were no issues of material fact. Fed. R.
Civ. Pro. 56(a); see also Occidental Eng’g Co. v. I.N.S., 753 F.2d 766, 769–70 (9th
Cir. 1985) (discussing summary judgment in the context of an administrative
proceeding and stating that a district court “is not required to resolve any facts in a
review of an administrative proceeding . . . the function of the district court is to
determine whether or not as a matter of law the evidence in the administrative
record permitted the agency to make the decision it did”). In addition, when
analyzing Taylor’s APA claims, the district court did not abuse its discretion in
refusing to consider documents outside the administrative record because those
4 documents did not fall into one of the recognized exceptions permitting review.
See Lands Council v. Powell, 395 F.3d 1019, 1029–30 (9th Cir. 2005).
Taylor argues that state and federal defendants violated the APA by acting in
an arbitrary and capricious manner. See 5 U.S.C. § 706(1)-(2). When considering
whether to set aside an agency action as “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law,” courts must determine
“whether the agency considered the relevant factors and articulated a rational
connection between the facts found and the choices made.” Ranchers Cattlemen
Action Legal Fund United Stockgrowers of Am. v. U.S. Dep’t of Agr., 499 F.3d
1108, 1115 (9th Cir. 2007) (internal quotations omitted); see also 5 U.S.C. §
706(1)–(2).
Here, OMWBE did not act in an arbitrary and capricious manner when it
determined it had a “well founded reason” to question Taylor’s membership claims
and, after requesting additional documentation from Taylor, determined that Taylor
did not qualify as a “socially and economically disadvantaged individual.” See 49
C.F.R. §§ 26.5, 26.61(c), 26.63(a)–(b), 26.67(a)(1). In addition, OMWBE did not
act in an arbitrary and capricious manner when it did not provide an in-person
hearing under 49 C.F.R. §§ 26.67(b)(2) and 26.87(d) because Taylor was not
entitled to a hearing under the regulations. USDOT did not act in an arbitrary and
5 capricious manner when it affirmed the state’s decision because the decision was
supported by substantial evidence and consistent with federal regulations. See 49
C.F.R. § 26.89(e), (f)(1)–(2). USDOT considered and discussed numerous pieces
of evidence in its decision letter and “articulated a rational connection” between
the evidence and the decision to deny Taylor’s application for certification.
Ranchers Cattlemen, 499 F.3d at 1115. In addition, Taylor’s argument that
USDOT violated 49 C.F.R. § 26.89(f)(8) is now moot.
B. Claims under the Equal Protection Clause and 42 U.S.C. §§ 1983 and 2000d
The district court did not err when it granted summary judgment to federal
and state defendants on Taylor’s equal protection claims because defendants did
not discriminate against Taylor, did not intend to discriminate against Taylor, and
did not treat Taylor differently from others similarly situated. See Vill. of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam); Hispanic Taco
Vendors of Wash. v. City of Pasco, 994 F.2d 676, 679–81 (9th Cir. 1993). The
district court also did not err when it granted summary judgment to state
defendants on Taylor’s discrimination claims under 42 U.S.C. §§ 1983 and 2000d
because neither statute applies to Taylor’s claims. In addition, the district court
correctly declined to apply the McDonnell Douglas burden-shifting framework
6 because that framework does not apply to Taylor’s claims. See McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973).
Lastly, having dismissed or granted summary judgment on all of Taylor’s
claims under federal law, the district court did not abuse its discretion when it
declined to exercise supplemental jurisdiction over Taylor’s state law claims.
AFFIRMED.1
1 We DENY Appellants’ motion to take judicial notice. See Dkt. Nos. 17, 20, 23, 24, 41–44. The motion by Jeremy I. Levitt to file an amicus curiae brief (Dkt. Nos. 62, 64) is DENIED for failure to comply with Federal Rule of Appellate Procedure 29(a) and Ninth Circuit Rule 29-3. Appellants’ motion to strike the amicus brief is DENIED as moot (Dkt. No. 61). 7