09-2898-cv
Maxwell v. N.Y. Univ.
                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.

      At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 8th day of December, two thousand ten.

PRESENT: REENA RAGGI,
         DEBRA ANN LIVINGSTON,
         DENNY CHIN,
             Circuit Judges.

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MILFORD BENJAMIN MAXWELL,
                 Plaintiff-Counter-Defendant-Appellant,

                    v.                                                  No. 09-2898-cv

NEW YORK UNIVERSITY, CHRISTOPHER
CONNELLY,
                 Defendants-Counter-Claimants-Appellees.*
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APPEARING FOR APPELLANT:                          MILFORD BENJAMIN MAXWELL, pro se,
                                                  Brooklyn, New York.

APPEARING FOR APPELLEE:                           NANCY KILSON, Associate General Counsel,
                                                  for Bonnie Brier, General Counsel, New York
                                                  University, New York, New York.


          *
              The Clerk of the Court is directed to amend the caption to read as shown above.
       Appeal from the United States District Court for the Southern District of New York

(Harold Baer, Jr., Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court entered on June 3, 2009, is AFFIRMED.

       Plaintiff Milford Benjamin Maxwell, pro se, appeals from an award of summary

judgment in favor of defendants New York University (“NYU”) and Christopher Connelly

on plaintiff’s claims that NYU’s cancellation of his financial aid award for the 2005-06

academic year violated the Military Selective Service Act (“MSSA”), 50 U.S.C. app. § 451

et seq., and the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.

Maxwell also appeals the district court’s denial of his requests for pro bono counsel and for

an order either holding NYU’s counsel in contempt or imposing discovery sanctions based

upon NYU’s failure to respond to Maxwell’s discovery requests. We assume the parties’

familiarity with the facts and the record of prior proceedings, which we reference only as

necessary to explain our decision to affirm.

1.     Summary Judgment on the MSSA and ADA Claims

       We review an award of summary judgment de novo, viewing the facts in the light

most favorable to the non-moving party. See Havey v. Homebound Mortg., Inc., 547 F.3d

158, 163 (2d Cir. 2008). Summary judgment is appropriate where the record shows “that

there is no genuine issue as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a); see also FDIC v. Great Am. Ins. Co., 607 F.3d 288,


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292 (2d Cir. 2010). Summary judgment determines only issues of law and does not impair

the right to a jury trial. See Benjamin v. Traffic Exec. Ass’n E. R.Rs., 869 F.2d 107, 115

n.11 (2d Cir. 1989) (“Plaintiffs cannot attack summary judgment decisions as inimicable to

the seventh amendment.”). Having conducted an independent and de novo review of the

record in light of these principles, we affirm the district court’s grant of summary judgment

for substantially the reasons stated by the district court in its thorough and well-reasoned

decision.

       a.      MSSA

       The district court correctly determined that, under the circumstances of this case, a

student who is denied federal financial assistance by an educational institution due to his

Selective Service registration status must exhaust his administrative remedies before filing

suit in federal court.1

       The MSSA provides that a person who is required to register with the Selective

Service but fails to do so “shall be ineligible for any form of assistance or benefit provided

under title IV of the Higher Education Act of 1965.” 50 U.S.C. app. § 462(f)(1). There is

an exception to this rule, however, where the registration requirement has become

inapplicable – due, for example, to the registrant’s age – and the person “shows by a

preponderance of the evidence that the failure of the person to register was not a knowing


       1
         Because we conclude that Maxwell’s failure to exhaust his administrative remedies
precludes suit in federal court, we do not consider whether 50 U.S.C. app. § 462(g) implies
a private right of action.

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and willful failure to register.” Id. § 462(g).

       The MSSA directs the Department of Education (“DOE”) to “issue regulations to

implement the requirements of” § 462(f) and to afford any person denied benefits “an

opportunity for a hearing to establish his compliance.” Id. § 462(f)(4). Pursuant to this

authority, the DOE has promulgated 34 C.F.R. § 668.37, which sets forth the procedures for

determining the eligibility of male students for federal assistance in connection with the

Selective Service registration requirement. Educational institutions are responsible in the

first instance for determining whether a student who did not register with the Selective

Service is nonetheless eligible for federal assistance under § 462(g). See 34 C.F.R.

§ 668.37(d). A student who is denied assistance on the basis of his Selective Service

registration status may seek a hearing before the Secretary of Education by filing a request

in writing “within the award year for which it was denied . . . assistance or within 30 days

following the end of the payment period, whichever is later.” Id. § 668.37(f)(2)(ii). At the

hearing, the student “retains the burden of proving compliance, by credible evidence,” with

the registration requirements. Id. § 668.37(f)(3).

       “The doctrine of exhaustion of administrative remedies is well established in the

jurisprudence of administrative law.” Woodford v. Ngo, 548 U.S. 81, 88 (2006) (internal

quotation marks omitted). “The doctrine provides that no one is entitled to judicial relief for

a supposed or threatened injury until the prescribed administrative remedy has been

exhausted.” Id. at 88-89 (internal quotation marks omitted); see also Bastek v. Fed. Crop Ins.


                                                  4
Corp., 145 F.3d 90, 93 (2d Cir. 1998) (“In general, exhaustion of administrative remedies is

the rule . . . .”). Where a statute does not explicitly require exhaustion, we must “exercise

discretion and balance the interest of the individual in retaining prompt access to a federal

judicial forum against countervailing institutional interests favoring exhaustion.” Id. at 94

(internal quotation marks omitted). We have previously described the circumstances under

which waiver of the administrative exhaustion requirement may be appropriate:

              Such circumstances occur when (1) requiring exhaustion would
              occasion undue prejudice to subsequent assertion of a court
              action; (2) the administrative remedy is inadequate because the
              agency cannot give effective relief, e.g., (a) it lacks institutional
              competence to resolve the particular type of issue presented,
              such as the constitutionality of a statute; (b) the challenge is to
              the adequacy of the agency procedure itself; or (c) the agency
              lacks authority to grant the type of relief requested; or (3) the
              agency is biased or has predetermined the issue (also known as
              “futility”). Other circumstances potentially giving rise to a
              waiver of exhaustion occur when (4) the claim is collateral to a
              demand for benefits, or (5) plaintiffs would suffer irreparable
              harm if required to exhaust their administrative remedies.

Id. at 94 n.4 (internal quotation marks, brackets, and citations omitted); see also United States

ex rel. Saint Regis Mohawk Tribe v. President R.C.-St. Regis Mgmt. Co., 451 F.3d 44, 50

(2d Cir. 2006) (“Where administrative remedies are not prescribed by statute, a plaintiff’s

failure to exhaust administrative remedies can be excused if (1) the claim is collateral to a

demand for benefits, (2) exhaustion would be futile, or (3) requiring exhaustion would result

in irreparable harm.” (internal quotation marks omitted)).

       Upon our independent review of the record, we conclude that the district court


                                               5
correctly analyzed the circumstances surrounding Maxwell’s MSSA claim and determined

that each of the above criteria weighed in favor of requiring exhaustion of administrative

remedies through the DOE under 34 C.F.R. § 668.37 as a necessary prerequisite to bringing

his claim in federal court. The fact that application of the administrative exhaustion

requirement to this case will preclude judicial review of the merits of Maxwell’s claim does

not support a contrary conclusion. See, e.g., McGee v. United States, 402 U.S. 479, 491

(1971) (holding that the failure to exhaust administrative remedies barred defense to criminal

charges that defendant was entitled to exemption from Selective Service registration).

Accordingly, we conclude that the district court properly granted summary judgment in favor

of defendants on Maxwell’s MSSA claim.

       b.     ADA

       The ADA prohibits discrimination “on the basis of disability in the full and equal

enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of

any place of public accommodation.” 42 U.S.C. § 12182(a); see also McInerney v.

Rensselaer Polytechnic Inst., 505 F.3d 135, 138 (2d Cir. 2007) (holding private institution

of higher learning is “place of public accommodation” subject to ADA).              Upon an

independent review of the record, we find no error in the district court’s determination that

Maxwell failed to raise a genuine issue of material fact with respect to his ADA claim.

Among other things, Maxwell has offered no reason to believe that NYU’s actions with

respect to his financial aid were taken “on the basis of” his alleged disabilities, 42 U.S.C.


                                              6
§ 12182(a), rather than on the basis of his Selective Service registration status. Moreover,

disbursement of financial aid to a student who has been determined to be ineligible under

federal law is not the kind of “reasonable modification[ ]” in policies that is required under

the ADA to accommodate persons with disabilities. 42 U.S.C. § 12182(b)(2)(A)(ii).

2.     Denial of Pro Bono Counsel

       We review the denial of an application for pro bono counsel for abuse of discretion.

See Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1341 (2d Cir. 1994) (noting that

district courts have “broad discretion” regarding the appointment of counsel for indigent

litigants). Here, the district court did not abuse its discretion in denying appointed counsel

because Maxwell had demonstrated an ability to file and respond to motions and otherwise

to prosecute his action. See, e.g., Hodge v. Police Officers, 802 F.2d 58, 61 (2d. Cir. 1986)

(recognizing “plaintiff’s apparent ability to present the case” as factor relevant to need for

pro bono counsel).

3.     Denial of Discovery Sanctions

       This Court reviews discovery rulings for abuse of discretion. See Independent Order

of Foresters v. Donald, Lufkin & Jenrette, Inc., 157 F.3d 933, 937 (2d Cir. 1998). Based on

our independent review of the record, we find no abuse of discretion in the district court’s

ruling that NYU satisfied its discovery obligation to make reasonable efforts to locate and

produce responsive documents, as ordered by the district court.

       We have considered Maxwell’s remaining arguments on appeal and conclude that they


                                              7
are without merit. Accordingly, the judgment is AFFIRMED.

                                      FOR THE COURT:
                                      CATHERINE O’HAGAN WOLFE, Clerk of Court




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