Michael Sindram v. WENDELLA P. FOX On Appeal From the United States District Court For the Eastern…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
NO. 09-1802
___________
MICHAEL SINDRAM,
Appellant
v.
WENDELLA P. FOX
____________________________________
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(E.D. Pa. Civ. No. 07-cv-0222)
District Judge: William H. Yohn, Jr.
________________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 1, 2010
Before: MCKEE, FUENTES and NYGAARD, Circuit Judges
(Opinion filed: February 19, 2010)
_________
OPINION
_________
PER CURIAM
Appellant Michael Sindram, proceeding pro se, appeals the order of the District
Court dismissing his complaint with prejudice. For the following reasons, we will affirm.
I.

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The District Court gave Sindram leave to amend his FOIA claim provided that he1
demonstrated or alleged in good faith that he had exhausted his appeals. The court also
recognized that the OCR had released 170 pages of documents relating to its investigation
2
On January 22, 2007, Sindram filed a complaint against Wendella P. Fox, Director
of the United States Department of Education’s Philadelphia Office of Civil Rights
(“OCR”) claiming violations of the United States Constitution and various federal laws,
including the Freedom of Information Act (“FOIA”). Sindram alleges that he was
discriminated against on the basis of age and disability while attending Columbia Union
College, the University of Maryland, and Washington Bible College (“the schools”) at
various times. He filed complaints with the OCR regarding the discrimination, and OCR
opened an investigation. He asserts that the schools retaliated against him for filing the
complaints, and complains that the OCR was aware of the retaliation, but that defendant
took no action. Sindram filed a FOIA request, asking for documents relating to the
OCR’s investigation. In January 2007, the OCR denied the request after a telephone
conversation with Sindram in which he refused to specify what he was seeking or to pay a
fee for provision of an additional seventy pages. The OCR also informed Sindram of his
right to appeal the decision within thirty days. On April 10, 2007, the OCR released to
Sindram 170 pages of documents relating to its investigation, subject to certain redactions
for privacy pursuant to 5 U.S.C. § 552(b)(7)(C).
In October 2007, the District Court granted the defendant’s motion to dismiss with
leave to amend certain claims. Sindram filed an amended complaint in November 2007,1

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and that Sindram should not amend if those pages satisfied his request.
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but did not include proof of a FOIA appeal or any response by OCR to any such appeal.
Upon defendant’s motion, the District Court dismissed Sindram’s constitutional and
FTCA claims with prejudice, but denied the motion to dismiss as to Sindram’s FOIA
claim. The court ordered Sindram to produce within thirty days evidence of or a specific
description of his exhaustion of his administrative remedies, warning that it would
dismiss the claim with prejudice if he did not comply. The court also denied the motion
as to Sindram’s claims under 42 U.S.C. § 1981 and the Age Discrimination Act of 1975,
42 U.S.C. § 6101 et seq. (“ADA”) because defendant had failed to brief the question of
whether Sindram stated a claim for relief.
Sindram filed a “motion for appropriate and adequate relief,” to which defendant
filed a response, along with a renewed motion to dismiss. The District Court granted the
motion to dismiss the remaining claims with prejudice by order entered March 3, 2009.
Sindram timely appealed.
II.
Our review of the District Court’s orders is plenary. See Santiago v. GMAC
Mortg. Group, Inc., 417 F.3d 384, 386 (3d Cir. 2005). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In deciding a

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motion to dismiss, a court must determine whether the complaint “pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id.
III.
A. FOIA Claim
The District Court dismissed Sindram’s FOIA claim because he filed his response
several days beyond the thirty-day deadline that the court had set. The District Court also
determined that, even if it were to consider his response as timely, Sindram failed to
provide evidence that he had exhausted his administrative remedies. In his brief to this
Court, Sindram has, for the first time, attempted to provide such evidence. He has
attached to his brief an April 14, 2007 letter titled “Appeal of Freedom of Information
Act (FOIA) Request ‘response’...” In it, Sindram states: “FOIA requests...remains [sic]
pending and unacted upon...When to receive copy of requested entitled afore-referenced
documents as per operation of law [sic]?” It appears that the “appeal” is a request that the
OCR act on his initial FOIA requests, rather than an appeal from the OCR’s January 2007
denial of his request or its April 10, 2007 decision to release certain documents.
Moreover, the “appeal” was filed four months after Sindram filed suit. See Oglesby v.
Department of Army, 920 F.2d 57, 65-66 (D.C. Cir. 1990) (if an agency responds to a
request at any time before the requester’s FOIA suit is filed, the requester must
administratively appeal a denial and wait at least twenty working days for the agency to

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adjudicate that appeal before commencing litigation). In any event, even if the April 14,
2007 letter could be construed as a timely appeal of an OCR decision, the letter was not
part of the record before the District Court, and we may not consider it. In re Capital
Cities/ABC, Inc.’s Application for Access to Sealed Transcripts, 913 F.2d 89, 96 (3d Cir.
1990).
B. 42 U.S.C. § 1981 Claim
Sindram argues that defendant’s failure to remedy the schools’ discriminatory acts
violated § 1981. By its terms, § 1981 provides a private cause of action for
discrimination by private actors and discrimination under color of state law. See §
1981(a), (c). Defendant, as an official of the Department of Education, was operating
under color of federal law, and § 1981 does not protect against discrimination under color
of federal law. See, e.g., Dotson v. Griesa, 398 F.3d 156, 162 (2d Cir. 2005); Davis-
Warren Auctioneers v. FDIC, 215 F.3d 1159, 1161 (10th Cir. 2000); Davis v. U.S. Dept.
of Justice, 204 F.3d 723, 725 (7th Cir. 2000); Lee v. Hughes, 145 F.3d 1272, 1277 (11th
cir. 1998). Accordingly, the District Court properly concluded that Sindram failed to state
a cognizable claim under 42 U.S.C. § 1981.
C. Age Discrimination Act Claim
Sindram seeks damages and an injunction based upon defendant’s alleged
violations of the ADA. The District Court concluded that the ADA does not permit a
private cause of action against an employee of the Department of Education. Although

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“[N]o person in the United State shall, on the basis of age, be excluded from2
participation in, be denied the benefits of, or be subjected to discrimination under, any
program or activity receiving Federal financial assistance.” 42 U.S.C. § 6102.
“Program or activity” is defined to include state and local governments and3
instrumentalities, colleges, universities, and certain corporations. Federal employees and
agencies are not included in the definition. See 42 U.S.C. § 6107(4).
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we have not addressed the precise issue presented here in a precedential opinion, the two-
step inquiry for determining whether a private right of action exists under a federal statute
is clear; a court must ascertain “(1) whether Congress intended to create a personal right
in the plaintiff; and (2) whether Congress intended to create a personal remedy for that
plaintiff.” McGovern v. City of Phila., 554 F.3d 114, 116 (3d Cir. 2009); see also
Alexander v. Sandoval, 532 U.S. 275, 286-87 (2001) (if a statute does not display
congressional intent to create a private remedy, courts may not create one). To determine
Congress’s intent, we examine “the text and structure of the statute; the existence or
nonexistence of a comprehensive remedial scheme elsewhere in the same statute; the
statute’s legislative history; and Congress’s explicit creation of private rights in similar
statutes enacted during the same time period.” McGovern, 554 F.3d at 119.
The text of the ADA creates federal rights , but does not include federal agencies2
or employees within its reach , even after Congress expanded its scope with the Civil3
Rights Restoration Act of 1987. Congress also created a comprehensive remedial scheme
that does not include a cause of action against a federal agency or its employees. See
McGovern, 554 F.3d at 118 (“courts should not imply rights of action where Congress

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For the reasons the District Court provided in the orders filed on October 31, 20074
and August 5, 2008, Sindram’s remaining constitutional claims and claims under the
Rehabilitation Act and the FTCA properly were dismissed.
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has already established a different remedial scheme”). The ADA’s enforcement
mechanism includes federal agency oversight and a private cause of action for injunctive
relief against a recipient of federal funds. See §§ 6103, 6104(a)-(c). Importantly, under §
6104(c), a court may enjoin a violation of the ADA, but not a federal agency’s failure to
remedy such a violation, which is what Sindram would have us do. We agree with the
District Court that Congress did not intend to create a private cause of action against a
federal agency or its employees for failure to remedy an alleged violation of the ADA.
VI.
For the foregoing reasons, we will affirm the District Court’s judgment.4
Sindram’s motion for mediation and the appointment of counsel is denied.

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