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April 9, 1981

Jane DOE, Plaintiff,
NEW YORK UNIVERSITY: John Sawhill, individually and as President of New York University; Ivan Bennett, M.D., individually and as Dean of New York University School of Medicine; Jacobus Potter, individually and as Associate Dean of New York University School of Medicine; David S. Scotch, individually and as Dean of Students of New York University School of Medicine, Defendants

The opinion of the court was delivered by: GOETTEL


In January of 1976, plaintiff Jane Doe, then a first-year student at the New York University Medical School ("N.Y.U."), secured a leave of absence from N.Y.U. because of various psychological problems she had been having. She subsequently received psychiatric treatment and sought readmission in 1977, maintaining that she had regained sufficient emotional stability to return to school. N.Y.U. refused to readmit her. The plaintiff then filed this action alleging that N.Y.U."s refusal to readmit her violates section 504 of the Rehabilitation Act, 29 U.S.C. § 794. *fn1"

 The plaintiff moved for a temporary restraining order and for a preliminary injunction. The motions were denied in an opinion issued by this Court in January of 1978. See Doe v. New York University, 442 F. Supp. 522 (S.D.N.Y.1978) (staying the action and holding that the plaintiff must first exhaust her administrative remedies). *fn2"

 The parties engaged in extensive discovery during the latter part of 1978 and the first half of 1979, while Jane Doe simultaneously pursued her administrative remedies with the Department of Health, Education and Welfare ("HEW") and the Department of Education ("Education"). *fn3" In June 1979, the case was placed on the ready trial calendar, since it appeared that the parties had concluded their discovery and that no administrative agency decision had been rendered. That August, HEW issued a Letter of Findings, ruling that N.Y.U. had violated the Rehabilitation Act. Based on that opinion, the Court removed the case from the ready trial calendar and placed it on suspense to allow HEW an opportunity to resolve the matter, the plaintiff has brought this motion to restore the case to the active calendar. She has also moved to shift the burden of proof from her to the defendant.

 1. Motion to Restore Case to Active Calendar

 N.Y.U. asserts that it would not oppose restoring the case to the active calendar only if Jane Doe complies with certain discovery requests. In particular, it wants the plaintiff to commit herself as to who her witnesses will be and to produce four spiral notebooks, the contents and significance of which is not made very clear by the papers.

 N.Y.U. has not offered any authority for the novel proposition that one party can hold an action hostage on the suspense calendar until its adversary complies with its discovery requests. Whether N.Y.U. is entitled to these discovery requests is irrelevant to whether the case should be on the suspense or active calendar. In this instance, the action was placed on suspense to afford HEW an opportunity to resolve the matter through the administrative process. Since it appears that the matter cannot be so resolved, and since there is need for a speedy trial of the action, the action will be restored to the active calendar.

 2. Burden of Proof

 The plaintiff argues that the burden of proof should be shifted from her to N.Y.U. because of the "adjudicatory nature" of HEW/Education's consideration of the case and because of this Court's prior ruling that the plaintiff must exhaust her administrative remedies. *fn4" She moves, in effect, to have this Court serve only as a "reviewing court" of an agency action, even though the provisions for judicial review under the Administrative Procedure Act ("APA") do not literally apply to the case at bar. See 5 U.S.C. § 701 et seq. *fn5" Jane Doe recognizes the novelty of her position *fn6" and concedes that there are no cases directly in support of it. She relies instead on three general areas of the law: (1) the structure of the APA, (2) the doctrines of primary jurisdiction and exhaustion of administrative remedies, and (3) the doctrines of res judicata and collateral estoppel. We need not reach these legal arguments, however, because our review of the voluminous papers thrust upon the Court by both parties lead us to reject the plaintiff's basic contention that the HEW procedures in this case were "uniquely adjudicatory." Rather, the HEW/Education procedures reflect a very thorough investigation that merits considerable weight once this case goes to trial.

 Stated broadly, the administrative process included an investigation by HEW's Office of Civil Rights ("OCR"), a review of this investigation by the regional office of General Counsel, another review by the Regional Attorney, further review by the Director of Region II's Office of Civil Rights, and finally, a review of the entire record by Peggy Brodsky of the Department of Education. *fn7"

 The materials on which HEW/Education based its decision include 1200 pages of deposition transcripts, a 100-page transcript of a psychiatric interview of Jane Doe by one of N.Y.U."s psychiatrists, 350 pages of Jane Doe's hospital records and doctor's records, and over 100 pages of legal memoranda. In addition, five of the nine HEW/Education officials involved in the investigation attended the depositions of two N.Y.U. psychiatrists, N.Y.U."s Dean of Students, and Jane Doe. *fn8"

 Despite the thoroughness of their investigation, the HEW/Education procedures do not resemble an adjudicatory proceeding. An adjudicatory proceeding implies a hearing before an impartial arbiter, who, having received evidence from two or more adversaries, renders a judgment or decree. The HEW/Education investigation has none of these features.

 First, Jane Doe and N.Y.U. were technically not adversaries. When a complaint is filed in such a situation, the complainant is not required to prove that she or he has been discriminated against; rather, the agency is required to conduct its own investigation to determine whether the recipient of federal assistance ("recipient") against whom the complaint was filed has complied with the Act. See 45 C.F.R. § 80.7 (1979); 34 C.F.R. § 100.7 (1980). *fn9"

 Second, HEW/Education did not conduct any hearings. While Jane Doe and N.Y.U. were invited to submit facts and legal arguments, this was done quite informally by way of letter correspondence. N.Y.U. was not offered a formal opportunity to present live witnesses and/or evidence to the HEW/Education investigators. The fact that various HEW/Education officials attended various depositions is of little consequence. These officials merely attended these ...

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