Alia Merchant v. United States Department of Education Office of Civil Rights Atlanta Division

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[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 21-13712 Non-Argument Calendar ____________________

ALIA MERCHANT, f.k.a. Nausheen Zainulabeddin, Plaintiff-Appellant, versus UNITED STATES DEPARTMENT OF EDUCATION OFFICE OF CIVIL RIGHTS ATLANTA DIVISION, SECRETARY, U.S. DEPARTMENT OF EDUCATION,

Defendants-Appellees. USCA11 Case: 21-13712 Date Filed: 10/28/2022 Page: 2 of 6 2 Opinion of the Court 21-13712

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Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 8:21-cv-00195-WFJ-JSS ____________________

Before WILSON, ROSENBAUM, and ANDERSON, Circuit Judges. PER CURIAM: Alia Merchant, proceeding pro se, appeals the district court’s dismissal of her complaint with prejudice for lack of subject-matter jurisdiction based on sovereign immunity and, alternatively, for failure to state a claim upon which relief may be granted. She ar- gues that the district court erred in dismissing her complaint be- cause it had jurisdiction under the Administrative Procedure Act (“APA”) and that her claims were meritorious. After careful re- view, we affirm the ruling of the district court that it lacked subject- matter jurisdiction, but we modify the order from a dismissal with prejudice to a dismissal without prejudice. I. Merchant asserted that she had been dismissed from medical school, appealed, and eventually filed a complaint with the U.S. Department of Education Office of Civil Rights (“OCR”), alleging discrimination. According to Merchant, the OCR rendered an ad- verse decision, which she had unsuccessfully appealed.

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Based on these circumstances, Merchant filed a complaint against the U.S. Department of Education and the U.S. Secretary of Education (the “agency”), asserting that her claims arose under the Americans With Disabilities Act Amendments of 2008 (“ADAAA”), Pub. L. No. 110-325, 122 Stat. 3553. Merchant posited that the district court had subject-matter jurisdiction over her complaint under the APA, 5 U.S.C. § 705, for the agency’s “alleged negligence in denying injunctive relief.” She asserted five counts of violations of the APA. First, she alleged that the agency’s decision was judicially reviewable. She also con- tended that she had been discriminated against and “collaterally ag- grieved by the final agency decision.” Next, she claimed that no other adequate remedy was available. Merchant further alleged ir- reparable harm and likelihood of success on the merits of her claims. Finally, Merchant alleged that the agency’s decision was arbitrary and capricious. In her prayer for relief, she requested injunctive relief rein- stating her to medical school without academic probation standing, expungement of her earlier academic records, tuition reimburse- ment, and reinstatement of federal loans to complete medical school. She mentioned other relief in her complaint before her prayer for relief, including references to declaratory relief and court review of the agency’s decision to determine whether it was arbi- trary and capricious. The agency moved to dismiss Merchant’s complaint for lack of subject-matter jurisdiction, under Rule 12(b)(1), Fed. R. Civ. P.,

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and failure to state claims upon which relief may be granted, under Rule 12(b)(6), Fed. R. Civ. P. It argued that sovereign immunity barred her requested student-loan relief because the government had not waived sovereign immunity for claims seeking injunctive relief in that context. The agency also argued that relief under the APA was barred because Merchant had an adequate remedy in court of filing a discrimination complaint against her former medi- cal school and because the agency’s investigation and enforcement actions were committed to its discretion by law. Among other rulings, the district court dismissed Mer- chant’s complaint with prejudice, concluding that it lacked jurisdic- tion because of the agency’s sovereign immunity. Merchant now appeals. II. We review de novo determinations of sovereign immunity and subject-matter jurisdiction. Nat’l Ass’n of Bds. of Pharmacy v. Bd. of Regents of the Univ. Sys. of Ga., 633 F.3d 1297, 1313 (11th Cir. 2011) (sovereign immunity); Innab v. Reno, 204 F.3d 1318, 1320 (11th Cir. 2000) (subject matter jurisdiction). A district court will hold a pro se pleading to a less stringent pleading standard than a counseled pleading. Erickson v. Pardus, 551 U.S. 89, 94 (2007). “Sovereign immunity is jurisdictional in nature.” FDIC v. Meyer, 510 U.S. 471, 475 (1994). “Absent a waiver, sovereign im- munity shields the Federal Government and its agencies from suit.” Id. Chapter 5 of the APA contains a waiver of the immunity for

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claims that allows for judicial review for “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute” but lim- its the waiver to claims “seeking relief other than money damages.” 5 U.S.C. § 702. The APA expressly provides, however, that this waiver does not “affect[] other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground” or “confer[] au- thority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.” Id. Sec- tion 1082 of the Higher Education Act states that the Secretary of Education may be sued in state or federal court “[i]n the perfor- mance of, and with respect to, the functions, powers, and duties, vested in him,” but provides that no injunction shall be issued against the Secretary. 20 U.S.C. § 1082(a)(2). A dismissal for lack of subject-matter jurisdiction is not a judgment on the merits and is entered without prejudice. Stalley ex rel. U.S. v. Orlando Reg’l Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th Cir. 2008). We may affirm a district court’s judgment on any ground supported by the record. See Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1264 (11th Cir. 2010). And we may affirm a dismissal with prejudice while modifying it to a dismissal without prejudice, if necessary. See Crayton v. Callahan, 120 F.3d 1217, 1222 (11th Cir. 1997). Issues not raised in an initial brief are forfeited and generally deemed abandoned. United States v. Campbell, 26 F.4th 860, 871–

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72 (11th Cir. 2022) (en banc), petition for cert. filed, (U.S. May 23, 2022) (No. 21-1468). “[F]orfeiture is the failure to make the timely assertion of a right; waiver is the intentional relinquishment or abandonment of a known right.” Id. at 872 (quotation marks omit- ted). We have the discretion to review forfeited issues under five circumstances: (1) the issue involves a pure question of law and re- fusal to consider it would result in a miscarriage of justice; (2) the party lacked an opportunity to raise the issue at the district court level; (3) the interest of substantial justice is at stake; (4) the proper resolution is beyond any doubt; or (5) the issue presents significant questions of general impact or of great public concern. Id. at 873. Here, the district court did not err in dismissing Merchant’s complaint because it properly found that her claims were barred by the doctrine of sovereign immunity. Merchant was suing the Sec- retary of Education, she does not challenge the district court’s con- struction of her complaint as solely seeking injunctive relief, and the government expressly has not waived sovereign immunity as to claims for injunctive relief. So we must affirm the district court’s dismissal of Mer- chant’s complaint. But because the dismissal is for lack of jurisdic- tion, we modify the dismissal from a dismissal with prejudice to a dismissal without prejudice. AFFIRMED AS MODIFIED.