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James R. Brawner, Iii v. Education Management Corporation

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


July 27, 2012

JAMES R. BRAWNER, III,
PLAINTIFF,
v.
EDUCATION MANAGEMENT CORPORATION, ART INSTITUTE OF PHILADELPHIA, U.S. CONGRESSMAN CHAKA FATTAH, U.S. SENATOR OLYMPIA SNOWE, PENNSYLVANIA DEP'T OF EDUCATION,: U.S. DEP'T OF EDUCATION, ACICS, AND ACCST, DEFENDANTS.

The opinion of the court was delivered by: Slomsky, J.

OPINION

TABLE OF CONTENTS

I. INTRODUCTION .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. FACTUAL BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

III. DISCUSSION. . . . . . . . . . . . . . . . . . . . . . . . . . . 10

A. Subject-Matter Jurisdiction under Fed. R. Civ. P. 12(b)(1).. . . . . . . . . . . . . . . . . 10

1. Legal Standard: Rule 12(b)(1) Motion to Dismiss for Lack of Subject-Matter Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

2. Sovereign Immunity Bars Plaintiff's Claims against the PA DOE, U.S. Congressman Fattah, U.S. Senator Snowe, and the U.S. DOE, and Legislative Immunity Bars Plaintiff's Claims against U.S. Congressman Fattah and U.S. Senator Snowe. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

a. Eleventh Amendment Sovereign Immunity Bars Plaintiff's Claim against the PA DOE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

b. The Discretionary Function Exception to the Waiver of Sovereign Immunity under the FTCA Bars Plaintiff's Claim of Negligence against U.S. Congressman Fattah, U.S. Senator Snowe, and the U.S. DOE. . . . . . . . . 13

c. Legislative Immunity under the Speech or Debate Clause of the U.S. Constitution Bars Plaintiff's Claim of Negligence against U.S. Congressman Fattah and U.S. Senator Snowe.. . . . . . . . . . . 19

B. Failure to State a Claim under Fed. R. Civ. P. 12(b)(6).. . . . . . . . . . . . . . . . . . . . 21

1. Legal Standard: Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

2. Plaintiff's Fraud, Negligence, and Breach of Contract Claims are Barred by the Statute of Limitations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

V. CONCLUSION .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

ii

I. INTRODUCTION

This case involves claims of fraud, negligence, and breach of contract brought by Plaintiff James R. Brawner, III ("Plaintiff"), proceeding pro se, arising from events related to an associate's degree in graphic design he received from the Art Institute of Philadelphia ("the Art Institute") in 1999.

On September 28, 2011, Plaintiff filed an application in this case to proceed in forma pauperis ("IFP"). (Doc. No. 1.) On October 6, 2011, the application was granted (Doc. No. 2). On October 17, 2011, the Complaint was filed naming as defendants the Education Management Corporation ("EDMC"), the Art Institute of Philadelphia, United States Congressman Chaka Fattah, United States Senator Olympia Snowe, the Pennsylvania Department of Education ("PA DOE"), the United States Department of Education ("U.S. DOE"), and the Accrediting Council for Independent Colleges and Schools ("ACICS").*fn1 (Doc. No. 3.) Plaintiff also has brought suit against a defendant identified in the Complaint and subsequent pleadings as "ACCST."*fn2 (Doc. Nos. 3, 16, 17, and 34.)

Presently before the Court are Motions to Dismiss filed by the PA DOE (Doc. No. 5), by the Art Institute and EDMC jointly (Doc. No. 8), by ACICS (Doc. Nos. 22 and 23), by the United States of America on behalf of Senator Snowe and the U.S. DOE (Doc. No. 31),*fn3 and by Congressman Fattah (Doc. No. 32).*fn4 In response, Plaintiff has filed three motions with the same title: "Motion to Continue/Request to Deny Motions to Dismiss."*fn5 (Doc. Nos. 16, 17, and 34.) On January 24, 2012, the Court held a hearing on whether the case should be dismissed.*fn6 (Doc. No. 28.) Upon consideration of the parties' briefs, exhibits,*fn7 and arguments advanced at the January 24, 2012 hearing, and after an independent review of the allegations in the Complaint, Defendants' Motions to Dismiss will be granted and Plaintiff's Complaint will be dismissed in its entirety.

II. FACTUAL BACKGROUND

Plaintiff attended the Art Institute of Philadelphia from 1996 through 1999. (Doc. No. 3 at 5.) The Art Institute is owned and operated by Defendant EDMC. (Id. at 5.) He took classes to earn an associate's degree in graphic design and earned the degree in 1999. (Id.) In 1996, when he made inquiries about attending the school, the school's admissions and sales representatives told him that the school was accredited. (Id.) The representatives also told him that an associate's degree from the Art Institute would be transferable to various undergraduate schools so that Plaintiff could then work toward a bachelor's degree. (Id.) During these conversations, the representatives referred to language in the school's catalogue in support of their statements that an associate's degree from the Art Institute would be transferable to other schools. (Id.) The catalogue has been submitted by Plaintiff with his supplemental exhibits and states as follows:

Pursuit of a Baccalaureate Degree

As part of its College Articulation Program, the schools of the Art Institute International have entered into arrangements with other colleges and universities, which may increase the opportunity for transfer of credits to those institutions. Graduates of The Art Institute of Philadelphia have the opportunity to apply to pursue a four-year baccalaureate degree. Agreements vary by institution and academic major, and are decided by the receiving institution on a course-by-course basis. It is recommended that students request information and an updated list of participating schools as they progress through their programs by contacting the Registrar's Office at The Art Institute of Philadelphia. (Doc. No. 39 at 37.) Plaintiff alleges, moreover, that he was led to believe that upon graduation, he would secure employment with his graphic design degree that would enable him to earn a salary "at the 30,000 mark." (Doc. No. 16 at 13.) Relying on the catalogue and these statements, Plaintiff decided to attend the Art Institute.

While attending the Institute, Plaintiff encountered what he describes as a "shell game" with his coursework. Specifically, he claims:

[A] shell game [was] played with courses between 1997-1998 where [an] administrator would register plaintiff for same class previously taken under different name citing previous course load now defunct under alleged new curriculum. This occurred twice[.] (Doc. No. 3 at 6.) It is unclear whether this "shell game" happened two or three times because Plaintiff alleges elsewhere in the Complaint that these circumstances occurred "2-3 times." (Id. at 5.) Regardless, these classes were recommended to Plaintiff by a student administrator named Michael Santispirit. (Id.) After Plaintiff paid for and successfully completed the courses, Santispirit later informed Plaintiff that the credits from those classes "were defunct and not applicable towards graduation." (Id.)

After graduating from the Art Institute, Plaintiff experienced difficulties with utilizing his degree: he could not transfer his credits to another school, and he could not find employment in graphic design. In relation to these two problems, the Complaint states:

FRAUD - Discovered 9/12/2011 per discovery of new information in 2011 2000-2011 But refused by the Art Institute of Philadelphia and other parties Denied.

All attempts to gather information were blocked/denied.

(Doc. No. 3 at 5.)

In 2000, when Plaintiff decided to transfer his degree for the first time, he tried to obtain "information" from the Registrar of the Art Institute in the form of a list of other schools that would accept credits from his associate's degree. (Doc. No. 3 at 5; Doc. No. 16 at 6.) He claims that he sought the information from "2000-2011" but was consistently denied being given the list he was requesting. (Doc. No. 3 at 5.) In July 2007, Plaintiff again asked the Art Institute for a list of schools to which he could transfer his credits. (Doc. No. 16 at 4.) That same month, Plaintiff received an email response from Adriane Medford, an Art Institute of Philadelphia representative, who told Plaintiff that "the list did NOT EXIST until 2003 and that it was only for high school students and a specific major, Multimedia." (Doc. No. 34 at 4.) As a part of his supporting exhibits, Plaintiff has provided what appears to be a copy of this email, which states in full as follows:

James,

In 1999 the list did not exist. Articulation began in 2003.

*NOTE* Information newly discovered was previously requested

The articulation agreements that we have in effect as of now are a little over 95% High Schools who are able to have transfer of credits come into AiPH. The few universities we have do not take in our credits but we articulate their credits into our programs. In 2004 we articulated with Bloomsburg University where our Multimedia Web Design Bachelor of Science would fully transfer in and a student with a gpa of 3.0 would be able to go into their Master's Degree program. However we no longer offer Multimedia Web Design and we are currently seeking to update that as well. Adriane Medford (Doc. No. 39 at 25.)*fn8

The Complaint alleges that this "[i]nformation was refused from 2000-2007," and according to Plaintiff, it was "finally given to [him] via 3rd party by way of the US Dept of Education . . . ." (Doc. No. 3 at 6.) In January 2011, Debra Wiley, a representative of the U.S. DOE, emailed Plaintiff that she would "send copies of the lists with a letter responding to your overall concerns." (Doc. No. 39 at 23.) Wiley's email also noted that, upon her review of the articulation agreements referenced in the Art Institute of Philadelphia catalogs for 1996-1998, it was "clear that transferability of credits was up to the receiving institution." (Id.) She also alerted Plaintiff that, "As with other information cautioning about transferability of credits, notations on each list reiterate that the individual agreements vary and are subject to change." (Id.) Plaintiff claims that he did not receive copies of the lists from Wiley until September 2011. (Doc. No. 16 at 4; see Doc. No. 34 at 4.) He also alleges that the information he received from Wiley "proves [that the] email received by Adrienne [sic] Medford of the Art Institute of Philadelphia to be true and correct." (Doc. No. 3 at 6.)

Plaintiff also had difficulty finding employment after graduating from the Art Institute, and as a result, he complained to various individuals and entities, including Defendants, beginning in 2001. (Id. at 6; Doc. No. 16 at 2, 5; Doc. No. 34 at 3.) When Plaintiff attempted to obtain information about the degree he earned from the Art Institute, he claims that all Defendants impeded his efforts by denying him the requested information. (Doc. No. 3 at 7.) He also claims that Defendants deterred his efforts by failing to address his concerns and hindering investigation by other parties. (Id.)

Because Defendants Congressman Fattah, Senator Snowe, the PA DOE, and the U.S. DOE did not launch investigations into the Art Institute or EDMC after Plaintiff submitted complaints, Plaintiff alleges that they neglected their duties to him as a citizen and therefore "infringed upon [his] rights per the US Constitution and the Declaration of Independence." (Doc. No. 34 at 13.) Plaintiff further alleges that Senator Snowe did not investigate his concerns because of her personal ties to EDMC: her husband, John R. McKernan, Jr., is Chairman of the Board of Directors at EDMC. (Doc. No. 17 at 3.)

According to Plaintiff, Defendants caused him to suffer damages in the amount of $12 million. He claims that Defendants' actions over a twelve-year period have caused him to be subjected to inaccurate credit reporting and damage to his credit standing, threats of wage garnishment by Sallie Mae, loss of time generally, loss of time in school, loss of income, loss of earning potential, loss of opportunities, financial expenses and filing fees, loss of wages, "threat of legal rights imposed," stress, political ostracization, no assistance from elected government officials, debt of more than $100,000 and penalties of more than $50,000.*fn9 (Doc. No. 3 at 8.)

In a responsive brief, Plaintiff requests additional relief. (Doc. No. 34 at 4.) They include:

1. Absolution of the debt Plaintiff owes to the Art Institute;

2. Payment of the debt Plaintiff has accrued by attending other educational institutions;

3. An admission of negligence from Congressman Fattah, Senator Snowe, the PA DOE and the U.S. DOE;

4. An apology from all persons named in the lawsuit;

5. Active engagement from Congress, the Senate, and other governmental agencies "to ensure that citizens are not harmed by their decisions or by accepting lobbying efforts of companies like EDMC";

6. "A complete shut down and dismantling of ALL Art Institutes as well as schools like the Art Institute of Philadelphia until they can provide students with true education that can be used at ANY University or Community College, and that they meet the same accreditations as the Universities and Community Colleges in order to continue to operate."

(Doc. No. 34 at 4.)

Defendants, in turn, ask the Court to dismiss the Complaint based on provisions of the Federal Rules of Civil Procedure. Each of the Motions to Dismiss seeks dismissal pursuant to Rule 12(b)(6) for failing to state a claim upon which relief can be granted. (Doc. Nos. 5, 8, 22, 23, 31, and 32.) In addition, Defendants PA DOE, Congressman Fattah, and the United States on behalf of Senator Snowe and the U.S. DOE seek dismissal pursuant to Rule 12(b)(1) for lack of subject-matter jurisdiction. (Doc. Nos. 5, 31, and 32.) Congressman Fattah seeks dismissal also pursuant to Rule 12(b)(4) for insufficient process (Doc. No. 32), and Defendants ACICS and Congressman Fattah seek dismissal pursuant to Rule 12(b)(5) for insufficient service of process (Doc. Nos. 22, 23, and 32). Plaintiff has filed responses to the Motions to Dismiss. (Doc. Nos. 16, 17, 34, and 39.) As noted, for reasons discussed below, Defendants' Motions will be granted and the Complaint will be dismissed in its entirety.

III. DISCUSSION*fn10

A. Subject-Matter Jurisdiction under Fed. R. Civ. P. 12(b)(1)

1. Legal Standard: Rule 12(b)(1) Motion to Dismiss for Lack of Subject-Matter Jurisdiction

Federal Rule of Civil Procedure 12(b)(1) requires a court to grant a motion to dismiss if the court lacks subject-matter jurisdiction to hear a claim. Rule 12(b)(1) states:

Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:

(1) lack of subject-matter jurisdiction . . . . Fed. R. Civ. P. 12(b)(1). Challenges to subject-matter jurisdiction under Rule 12(b)(1) may be either facial or factual. See In re Schering Plough Corp. Intron/Termodar Consumer Class Action, 678 F.3d 235, 243 (3d Cir. 2012). "Facial attacks, like those presented in this case, contest the sufficiency of the pleadings, and the trial court must accept the complaint's allegations as true." Walthour v. Herron, No. 11-1690, 2011 WL 1325981, at *2 (E.D. Pa. Apr. 7, 2011) (quotations omitted); see also Common Cause of Pa. v. Pennsylvania, 558 F.3d 249, 257 (3d Cir. 2009).

2. Sovereign Immunity Bars Plaintiff's Claims against the PA DOE, U.S. Congressman Fattah, U.S. Senator Snowe, and the U.S. DOE, and Legislative Immunity Bars Plaintiff's Claims against U.S. Congressman Fattah and U.S. Senator Snowe

The PA DOE, Congressman Fattah, Senator Snowe, and the U.S. DOE are only named as Defendants in Count II. The allegation made in this Count covers negligent conduct for failing to investigate Plaintiff's complaints, including negligent conduct on the part of Congressman Fattah and Senator Snowe for failing to launch a full congressional investigation. These four Defendants argue that sovereign immunity bars the negligence claim brought against them, and Congressman Fattah argues in addition that legislative immunity under the Speech or Debate Clause of the U.S. Constitution bars the same claim.*fn11 (Doc. No. 32.)

In response to both the sovereign immunity and legislative immunity arguments raised by Defendants, Plaintiff counters that immunity is not a defense because he believes that the defense is unconstitutional. (Doc. No. 16 at 10; Doc. No. 34 at 14.) He contends that as a citizen, he should be protected by state and federal agencies and entities established to represent his interests. (Doc. No. 16 at 10.) Plaintiff's arguments, however, are unavailing. The Court agrees with the PA DOE, Congressman Fattah, and the United States on behalf of Senator Snowe and the U.S. DOE that sovereign immunity and legislative immunity bar Plaintiff's negligence claim against them set forth in Count II of the Complaint. Accordingly, the PA DOE, Congressman Fattah, Senator Snowe, and the U.S. DOE will be dismissed as Defendants in Count II.

a. Eleventh Amendment Sovereign Immunity Bars Plaintiff's Claim against the PA DOE.

The Eleventh Amendment to the United States Constitution provides: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against any one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. The Third Circuit has held that:

The guarantee of the Eleventh Amendment is that non-consenting states may not be sued by private individuals in federal court unless Congress abrogates the states' immunity pursuant to a valid exercise of its power. The Eleventh Amendment's bar extends to suits against departments or agencies of the state having no existence apart from the state.

Cook v. Floyd, 389 F. App'x 702, 703 (3d Cir. 2010) (citations omitted).

Here, viewing the facts alleged in the Complaint in the light most favorable to Plaintiff, he claims that the PA DOE was negligent in its supervision of the Art Institute as an educational institution in Pennsylvania. (Doc. No. 3 at 7.) Count II also alleges that the PA DOE failed to act when it became aware of Plaintiff's allegations against the Art Institute. (Id.) However, the Pennsylvania Department of Education is an agency of the Commonwealth of Pennsylvania and has "no existence apart from the state." CG v. Pennsylvania Dep't of Educ., No. 06-1523, 2011 WL 318289, at *3 (M.D. Pa. Jan. 28, 2011) (citing Laskaris v. Thornburgh, 661 F.2d 23, 25 (3d Cir. 1981)). As a result, the sovereign immunity afforded to departments or agencies of the state by the Eleventh Amendment bars federal jurisdiction over Plaintiff's claims against the PA DOE, which may not be sued in federal court. Consequently, the PA DOE must be dismissed as a Defendant in Count II.

b. The Discretionary Function Exception to the Waiver of Sovereign Immunity under the FTCA Bars Plaintiff's Claim of Negligence against U.S. Congressman Fattah, U.S. Senator Snowe, and the U.S. DOE.

The United States has dealt with its own sovereign immunity in the Federal Tort Claims Act, 28 U.S.C. §§ 2671, et seq. ("FTCA"). The FTCA "is the exclusive waiver of sovereign immunity for actions sounding in tort against the United States, its agencies and officers acting within their official capacity." Chickie's and Pete's, Inc. v. Inter City Leasing Co., No. 01-4890, 2002 WL 1929458, at *1 (E.D. Pa. Aug. 19, 2002); Melo v. Hafer, 912 F.2d 628, 640 (3d Cir. 1990). Because Plaintiff brings a tort claim of negligence against Congressman Fattah, Senator Snowe, and the U.S. DOE, the FTCA initially acts as a waiver of sovereign immunity. In this case, however, there are legal impediments that bar Plaintiff from using the FTCA as a means of seeking relief against these three federal Defendants.

First, under the FTCA, Plaintiff must exhaust administrative remedies before filing suit in federal court. 28 U.S.C. § 2675(a)*fn12 ; McNeil v. United States, 508 U.S. 106, 113 (1993).

Nothing in the Complaint or in Plaintiff's responsive briefs, read in the light most favorable to him, suggests that he took steps to exhaust his administrative remedies before filing a suit in federal court. For this reason alone, the Count II negligence claims should be dismissed.

Even if Plaintiff had exhausted his administrative remedies prior to filing this lawsuit, the waiver of sovereign immunity under the FTCA would be unavailing because of the statutorily based discretionary function exception. In order to determine whether the discretionary function exception applies, a court must apply an analysis utilizing the framework of the FTCA, about which the Third Circuit has stated the following in full:

The United States, "as a sovereign, is immune from suit unless it consents to be sued." Merando, 517 F.3d at 164 (citing United States v. Mitchell, 445 U.S. 535, 538 (1980)). The FTCA is a "partial abrogation" of that immunity, Gotha v. United States, 115 F.3d 176, 179 (3d Cir. 1997), and permits suits against the United States for torts committed by "any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred," 28 U.S.C. § 1346(b)(1). The FTCA, however, "imposes a significant limitation," Gotha, 115 F.3d at 179, by providing that the provisions of 28 U.S.C. § 1346 shall not apply to: [a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.

28 U.S.C. § 2680(a).

This discretionary function exception "marks the boundary between Congress' willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals." United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808 (1984). The exception "does not apply to every situation in which there is an actual option to choose between courses of action or inaction." Gotha, 115 F.3d at 179. Rather, it immunizes from second-guessing "legislative and administrative decisions grounded in social, economic, and political policy." Id. (citing Varig Airlines, 467 U.S. at 814.

As a threshold matter, before determining whether the discretionary function exception applies, a court must identify the conduct at issue. Merando, 517 F.3d at 165. The court must then follow a two-step inquiry to determine whether the discretionary function exception immunizes the government from a suit arising out of such conduct. Id. at 164. "First, a court must determine whether the act giving rise to the alleged injury and thus the suit involve[d] an 'element of judgment or choice.'" Id. (citing United States v. Gaubert, 499 U.S. 315, 322 (1991)). If a "federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow," the exception does not apply because "the employee has no rightful option but to adhere to the directive." Berkovitz v. United States, 486 U.S. 531, 536 (1988). However, where a specific course of action is not prescribed, we proceed to the second step, which requires us to determine "whether the challenged action or inaction 'is of the kind that the discretionary function exception was designed to shield.'" Gotha, 115 F.3d at 179 (quoting Berkovitz, 486 U.S. at 536). "Because the purpose of the exception is to prevent judicial 'second-guessing' of legislative and administrative decisions grounded in social, economic, and political policy . . . the exception protects only governmental actions and decisions based on considerations of public policy." Gaubert, 499 U.S. at 323 (internal marks and citations omitted). The "focus of the inquiry is not on the agent's subjective intent in exercising the discretion conferred by statute or regulation, but on the nature of the actions taken and on whether they are susceptible to policy analysis." Id. at 325.*fn13

S.R.P. ex rel. Abunabba v. United States, 676 F.3d 329, 332-33 (3d Cir. 2012).*fn14

With the above principles in mind, the Court first must identify the challenged conduct. S.R.P. ex rel. Abunabba, 676 F.3d at 333-34. Here, Plaintiff claims that Congressman Fattah, Senator Snowe, and the U.S. DOE failed to investigate his concerns about the education he received from the Art Institute and his concerns about the EDMC as owner and operator of the Art Institute. (Doc. No. 3 at 7.) He also claims that the failure to investigate his concerns constituted an "abandon[ment] of their duties to their constituents for political reasons." (Id.) Regarding Senator Snowe specifically, looking at the Complaint in the light most favorable to Plaintiff, he alleges that she was a lobbyist for Defendant EDMC and had a "questionable relationship" with Defendant EDMC because her husband, John R. McKernan, Jr., is Chairman of the Board of Directors at EDMC. (Id. at 6; Doc. No. 17 at 3.)

Where, as here, Plaintiff has not directed the Court to a statute, regulation, or other policy that required or prescribed a course of action for the Congressman, the Senator, or the U.S. Department of Education to investigate his complaints about the Art Institute and EDMC, the Court will consider the second inquiry under the discretionary function exception-whether the alleged action or inaction involved an element of judgment or choice based on considerations of public policy.

As a practical matter, the decision to investigate a matter on behalf of a constituent can only involve an exercise of discretion. See Baer v. United States, No. 11-1277, 2011 WL 6131789, at *6 (D.N.J. Dec. 8, 2011) (dismissing claims of investor plaintiffs against the Security Exchange Commission after the plaintiffs were defrauded by Bernard Madoff and finding that "as a matter of common sense, the decisions made by the [Security Exchange Commission] to investigate Madoff appear to be discretionary, involving the exercise of judgment."). Moreover, as discussed below, the discretion exercised by the Congressman, the Senator, and the U.S. DOE in deciding on a response to Plaintiff's complaints were based on considerations of public policy and therefore susceptible to "policy analysis."

In Baer, the Government argued, and the court agreed, that the investigation of Bernard Madoff in that case was susceptible to "policy analysis" for the following reasons: limited resources force the government to choose among competing priorities, such as whether to investigate possible "front-running" instead of a possible Ponzi scheme . . . . At the end of the day, limited resources affect agency decisions concerning which laws to emphasize, which investigations to initiate, which leads to pursue, which witnesses to question, which questions to ask, and which documents to request. All of these decisions are susceptible to policy analysis. . . . This is persuasive. Indeed, decisions by a regulatory agency about who or what to investigate are quintessential governmental policy decisions. In a world in which governmental resources are finite, the SEC cannot investigate everyone and everything. The agency must decide which leads are most worth pursuing, and which investigations are most likely to produce the greatest public benefit. Such decisions-about the depth and breadth of an investigation, which implicate the allocation of resources such as manpower-fundamentally entail matters of policy.

Id. (citation omitted).

The Baer court held that because of these concerns, the discretionary function exception under the FTCA applied to shield the Government from the plaintiff's claims. Id. at *7, 9. As that court noted:

[T]o impose an obligation on the government to expend the resources sufficient to uncover every wrong which could be discovered from a proper investigation is to impose an unlimited obligation on the government to spend its resources on such endeavors, whether or not fiscal policy concerns might require otherwise.

Id. at *7.

In the instant case, Congressman Fattah raises similar arguments to those raised by the Government in Baer. He asserts:

Members of Congress, like Congressman Fattah, have many constituents and only limited resources to use in assisting those constituents with their problems. These judgment calls are precisely the sort of action for which the discretionary function exception was designed. Indeed, courts specifically have held that decisions by a Member of Congress involving the office's response, or lack thereof, to a constituent's request are not actionable under the FTCA because they fall within the discretionary function exception. (Doc. No. 32-2 at 6 (citing Karchin v. Metzenbaum, 587 F. Supp. 563, 566 (N.D. Ohio 1983).) The same argument applies to Senator Snowe and the U.S. DOE. Here, like the court in Baer, this Court agrees that the policy considerations described above permit the discretionary function exception to shield Congressman Fattah, Senator Snowe, and the U.S. DOE from Plaintiff's allegations of negligence.*fn15 Since the discretionary function exception applies, the waiver of sovereign immunity as to these Defendants under the FTCA is not applicable here, and they are covered by sovereign immunity. Therefore, Plaintiff's action against them will be dismissed.

c. Legislative Immunity under the Speech or Debate Clause of the U.S. Constitution Bars Plaintiff's Claim of Negligence against U.S. Congressman Fattah and U.S. Senator Snowe.

Plaintiff's claim of negligence against Congressman Fattah and Senator Snowe includes an allegation that these two Defendants should be held liable for failing to launch a congressional investigation into the operations of the Art Institute and EDMC. However, the Speech or Debate Clause of Article I in the U.S. Constitution affords protection to United States Representatives and Senators in their official duties. U.S. Const. art. I, § 6, cl. 1 ("[F]or any Speech or Debate in either House, they shall not be questioned in any other Place."). This Clause provides members of Congress legislative immunity as "practical security for protecting the independence of the legislative branch-by ensuring that legislators are not subject to 'prosecution by an unfriendly executive and conviction by a hostile judiciary.'" Youngblood v. DeWeese, 352 F.3d 836, 839 (3d Cir. 2003) (quoting United States v. Johnson, 383 U.S. 169, 179 (1966)). When this legislative immunity applies, it is an absolute bar to suit. Eastland v. U.S. Servicemen's Fund, 421 U.S. 491, 503 (1975).

The immunity provided under the Speech or Debate Clause applies to "legislators acting within the sphere of legitimate legislative activity." Eastland, 421 U.S. at 503. The scope of this "sphere" should be interpreted "broadly" by a district court, United States v. Johnson, 383 U.S. 169, 180 (1966), and encompasses all activities that are: an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House. Id. (quoting Gravel v. United States, 408 U.S. 606, 625 (1972)).

Here, Plaintiff attacks the investigative function of Congress. Namely, he contends that Congressman Fattah and Senator Snowe failed to investigate the Art Institute and EDMC. Congressional investigations fall into the sphere of legislative activities that are protected by the Speech or Debate Clause. Watkins v. United States, 354 U.S. 178, 187 (1957) ("The power of the Congress to conduct investigations is inherent in the legislative process."); Youngblood, 352 F.3d at 839 ("Investigation is within the sphere of legitimate legislative activity to which legislative immunity extends."); Gov't of V.I. v. Lee, 775 F.2d 514, 521 (3d Cir. 1985) ("fact-finding [conducted by an individual legislator] occupies a position of sufficient importance in the legislative process to justify the protection afforded by legislative immunity."). Because the investigative power of Congress falls within the sphere of legislative functions protected by the Speech or Debate Clause, Plaintiff's allegation that Congressman Fattah and Senator Snowe should be liable because they did not set in motion a congressional investigation of the Art Institute and EDMC fails.

In light of the above, Plaintiff's negligence claim contained in Count II of the Complaint against Congressman Fattah and Senator Snowe, also will be dismissed. Furthermore, Plaintiff has not alleged that he has exhausted his administrative remedies under the FTCA, and sovereign immunity bars Plaintiff's claim against Congressman Fattah, Senator Snowe, and the U.S. DOE. Additionally, this Court will not engage in judicial second-guessing of a matter involving the exercise of discretion made by Congressman Fattah, Senator Snowe, and the U.S. DOE. Accordingly, the Motions to Dismiss of Congressman Fattah and the United States on behalf of Senator Snowe and the U.S. DOE will be granted.

B. Failure to State a Claim under Fed. R. Civ. P. 12(b)(6)

All Defendants in their Motions to Dismiss ask the Court to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim on which relief can be granted. The Court has already discussed why Plaintiff's claims contained in Count II against the PA DOE, Congressman Fattah, Senator Snowe, and the U.S. DOE will be dismissed for lack of subject-matter jurisdiction. The Court will therefore concentrate here on the remaining allegations of fraud, negligence, and breach of contract contained in Counts I, II, and III against Defendants EDMC, the Art Institute, and ACICS.

The remaining Defendants raise two primary arguments in their motions. First, they assert that the statute of limitations bars Plaintiff's suit. Second, they contend that the Complaint should be dismissed for a failure to satisfy the minimum pleading requirements of Fed. R. Civ. P. 12(b)(6). As discussed below, the Complaint will be dismissed against Defendants EDMC, the Art Institute, and ACICS because, when the statute of limitations is applied here, it fails to state a claim upon which relief can be granted.*fn16

1. Legal Standard: Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim

The motion to dismiss standard under Federal Rule of Civil Procedure 12(b)(6) is set forth in the Supreme Court's opinion in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). After Iqbal it is clear that "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice" to defeat a Rule 12(b)(6) motion to dismiss. Id. at 1949; see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Applying the principles of Iqbal and Twombly, the Third Circuit in Santiago v. Warminster Twp., 629 F.3d 121 (3d Cir. 2010), set forth a three-part analysis that the court must conduct in evaluating whether allegations in a complaint survive a 12(b)(6) motion to dismiss. 629 F.3d at 130; see also Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (applying the principles of Iqbal and articulating a two-part test).

First, the court must "tak[e] note of the elements a plaintiff must plead to state a claim." Second, the court should identify allegations that, "because they are no more than conclusions, are not entitled to the assumption of truth." Finally, "where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief."

Santiago, 629 F.3d at 130 (quoting Iqbal, 129 S. Ct. at 1947, 1950). While a district court must accept all of the complaint's well-pleaded facts as true, a complaint must do more than allege a plaintiff's entitlement to relief-it must "show" such an entitlement with its facts. Fowler, 578 F.3d at 210-11 (citing Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234-35 (3d Cir. 2008)).

2. Plaintiff's Fraud, Negligence, and Breach of Contract Claims are Barred by the Statute of Limitations

As an initial matter, in considering the time frame of Plaintiff's well-pleaded facts and allegations in the light most favorable to Plaintiff, it is evident the statute of limitations bars his claims. As noted above, Plaintiff brings claims of fraud, negligence, and breach of contract, all stemming from the coursework and degree he received from the Art Institute of Philadelphia. In Pennsylvania, the limitations period for fraud and negligence claims is two years. 42 Pa. Cons. Stat. § 5524(7). The limitations period for a breach of contract claim is four years. 42 Pa. Cons. Stat. § 5525. "[T]he purpose of the statute of limitations . . . is to protect defendants from stale claims." McCreesh v. City of Philadelphia, 888 A.2d 664, 665 (Pa. 2005). This protection "expedite[s] litigation and thus discourage[s] delay and the presentation of stale claims which may greatly prejudice the defense of such claims." Id. at 671 (citation omitted). Critical to the statute of limitations issue is a determination of when the limitations period accrued for each claim and whether Plaintiff is entitled to tolling under the "discovery rule."

"'In Pennsylvania, a cause of action accrues when the plaintiff could have first maintained the action to a successful conclusion.'" Atlantic Pier Assoc., LLC v. Boardakan Restaurant Partners, L.P., No. 08-4564, 2011 WL 3268129, at *4 (E.D. Pa. Jul. 29, 2011) (quoting Fine v. Checcio, 870 A.2d 850, 857 (Pa. 2005)). However, under the "discovery rule," the statute of limitations "does not begin to run until the injured party discovers or reasonably should discover that he has been injured and that his injury has been caused by another party's conduct." Danysh v. Eli Lilly and Co., 461 F. App'x 75, 77 (3d Cir. 2012) (quoting Fine, 870 A.2d at 859) (internal quotations omitted). This period commences when a plaintiff has "actual or constructive knowledge of at least some form of significant harm and of a factual cause linked to another's conduct, without the necessity of notice of the full extent of the injury, the fact of actual negligence, or precise cause." Danysh, 461 F. App'x at 77 (quoting Gleason v. Borough of Moosic, 15 A.3d 479, 484 (Pa. 2011)) (internal quotations omitted). "The point of time at which the injured party should reasonably be aware that he or she has suffered an injury is generally an issue of fact to be determined by the jury. Only where the facts are so clear that reasonable minds cannot differ may the commencement of the limitation period be determined as a matter of law." Atlantic Pier Assoc., LLC, 2011 WL 3268129, at *4 (quoting Sadtler v. Jackson-Cross Co., 587 A.2d 727, 732 (Pa. Super. Ct. 1991)) (quotation marks omitted).

Defendants argue that Plaintiff's claims are time-barred because he was enrolled at the Art Institute from 1996 to 1999, and he received his degree from the Art Institute in 1999. Plaintiff responds that the harm was not discovered until at least 2000, when he tried to transfer credits from his degree and was unable to do so. Additionally, Plaintiff contends that he did not have proof until 2006 that the Art Institute was not an accredited institution when he began his coursework there. (Doc. No. 16 at 6.) He further contends that he could not have known about or discovered the harm until July 2007, when he "was told directly by an Art Institute employee within the registrar's office that the LIST [he] had been requesting from the schools since 2000, and NEVER received, even after meeting directly with the President of the school in person, never existed while [he] was a student." (Id.) Given these factors, Plaintiff asserts that the discovery rule should toll the statute of limitations.

Here, Plaintiff first experienced problems with the coursework provided to him between 1997 and 1999. During this time period, Plaintiff claims that "2-3 times between 97-99" he registered for, paid for, and passed courses that he was advised to take by an employee of the Art Institute only to be later told that the credits from those classes would not apply toward his degree in graphic design. (Doc. No. 3 at 5.) Because this happened more than once, Plaintiff was on notice while attending the Art Institute that there was possibly something awry with the credits he was receiving and the degree he was about to obtain. Moreover, Plaintiff began submitting and expressing grievances about his training from the Art Institute as early as "2001-2003" after having difficulties securing employment in graphic design with his Art Institute degree. (Doc. No. 16 at 2, 5; Doc. No. 34 at 3.) He also was aware by July 2007 about problems with transferring credits. These grievances are admitted by Plaintiff and signify that he had actual or constructive knowledge of concrete and potential problems with the credits and degree he earned from the Art Institute by 2003, and problems with employment and transfer of credits by July 2007.*fn17

Despite Plaintiff's knowledge about problems with his degree as early as 2003 and as late as July 2007, he asks the Court to suspend the limitations period based upon when he claims he discovered the misconduct by the various Defendants named here. However, the limitations period is "not postponed until the injured party knows every fact necessary to bring his action." Danysh, 461 F. App'x at 77 (3d Cir. 2012) (internal quotations omitted). As the above demonstrates, the facts are clear that Plaintiff had knowledge of significant harm that could befall him as a result of his attendance at the Art Institute as early as 2003 and as late as July 2007. In every filing of Plaintiff, it is evident that Plaintiff knew something was askew by July 2007 and earlier while he attended the Art Institute. He filed his Application to Proceed in forma pauperis on September 28, 2011 and the Complaint on October 17, 2011, well beyond the two- and four-year limitations periods for claims of fraud, negligence, and breach of contract. The "discovery rule" provides him no relief here from the clear bar of the statute of limitations. Consequently, Plaintiff's claims are time-barred, and Counts I, II, and III will be dismissed against Defendants EDMC, the Art Institute of Philadelphia, and ACICS.*fn18

V. CONCLUSION

The Court lacks subject-matter jurisdiction to hear the claims made against the PA DOE, U.S. Congressman Fattah, U.S. Senator Snowe, and the U.S. DOE. Accordingly, the Motions to Dismiss pursuant to Fed. R. Civ. P. 12(b)(1) filed by these Defendants will be granted. Moreover, the statute of limitations bars Plaintiff's claims of fraud, negligence, and breach of contract, which requires dismissal of all Defendants pursuant to Fed. R. Civ. P. 12(b)(6).*fn19 Counts I, II, and III of the Complaint will be dismissed in their entirety.

Appropriate Orders follow.


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