West v. Spellings

503 F. Supp. 2d 333, 2007 U.S. Dist. LEXIS 63256, 2007 WL 2433876

Opinion

MEMORANDUM OPINION

ROSEMARY M. COLLYER, District Judge.

Michael West, proceeding pro se, sued Margaret Spellings, Secretary of the U.S. Department of Education (“DOEd”), in her official capacity. Counts 1 and 2 of the Complaint allege violations of the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. Counts 3 through 12 seek to compel DOEd under the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq., the All Writs Act, 28 U.S.C. § 1691, and Mandamus, 28 U.S.C. § 1361, to use its enforcement authority in a manner favorable to Mr. West under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“Seetion 504”). 1 The factual basis for Mr. West’s Complaint is his dissatisfaction with DOEd’s investigation of his complaints of disability discrimination and retaliation allegedly committed by Webster University.

On March 29, 2007, the Court granted summary judgment in favor of DOEd on Counts 3 though 12 and denied summary judgment without prejudice on Counts 1 and 2 based on the inadequacy of the agency’s search for responsive records. See Mem. Op. and Order [Dkt. Nos. 24 & 25], Mr. West then filed a motion to disqualify the Court [Dkt. Nos. 26 & 31] and a motion for reconsideration of the order granting summary judgment in part to DOEd [Dkt. No. 27], DOEd then moved to dismiss or for summary judgment on Counts 1 and 2 [Dkt. No. 28]. In an Opinion and Order dated July 18, 2007, the Court denied Mr. West’s motion for disqualification and his motion for reconsideration, and required that Mr. West file a response to DOEd’s motion to dismiss or for summary judgment no later than August 20, 2007. See Mem. Op. and Order [Dkt. Nos. 32 & 33], Mr. West failed to file such a response. Thus, the Court treats DOEd’s motion to dismiss or for summary judgment as conceded. See Neal v. Kelly, 963 F.2d 453, 456 (D.C.Cir. 1992); Fox v. Strickland, 837 F.2d 507, 509 (D.C.Cir.1988). Accordingly, the Complaint is dismissed. A memorializing order accompanies this Memorandum Opinion.

1 . Section 504 is effectuated by various regulations set forth in 34 C.F.R. Part 104.