                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            DEC 19 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ORION INSURANCE GROUP, a                         No. 17-35749
Washington Corporation; RALPH G.
TAYLOR, an individual,                           D.C. No. 3:16-cv-05582-RJB

              Plaintiffs-Appellants,
                                                 MEMORANDUM*
 v.

WASHINGTON’S OFFICE OF
MINORITY & WOMEN’S BUSINESS
ENTERPRISES; EDWINA MARTIN-
ARNOLD; DEBBIE MCVICKER;
PAMELA SMITH; SARAH ERDMANN;
STACEY SAUNDERS, individuals; U.S.
DEPARTMENT OF
TRANSPORTATION; STEPHANIE
JONES, an individual,

              Defendants-Appellees.


                    Appeal from the United States District Court
                      for the Western District of Washington
                     Robert J. Bryan, District Judge, Presiding

                     Argued and Submitted December 3, 2018
                              Seattle, Washington



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: W. FLETCHER, BYBEE, and WATFORD, Circuit Judges.

      Plaintiffs-Appellants Orion Insurance Group and its owner Ralph

Taylor (collectively “Taylor”) appeal the district court’s partial dismissal and

partial summary judgment in favor of the U.S. Department of Transportation

(“USDOT”), the Washington State Office of Minority & Women’s Business

Enterprises (“OMWBE”), and other federal and state defendants sued in both their

official and individual capacities. We have jurisdiction pursuant to 28 U.S.C. §

1291, and we affirm the district court.

                                 1. Order to Dismiss

      We review the district court’s order dismissing various claims under Fed. R.

Civ. P. 12(b)(2) and 12(b)(6) de novo. Arias v. Raimondo, 860 F.3d 1185, 1189

(9th Cir. 2017) (reviewing Rule 12(b)(6) dismissal for failure to state a claim de

novo); Ziegler v. Indian River Cty., 64 F.3d 470, 473 (9th Cir. 1995) (reviewing

dismissal for lack of personal jurisdiction de novo). Here, we hold that the district

court did not err when it dismissed Taylor’s claims against the federal defendants.

First, the district court correctly dismissed Taylor’s claims against Stephanie Jones,

former Acting Director of the USDOT’s Office of Civil Rights, in her individual

capacity, under Fed. R. Civ. P. 12(b)(2) because the district court lacked personal

jurisdiction. Jones does not have sufficient “minimum contacts” with Washington


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“such that the maintenance of the suit does not offend ‘traditional notions of fair

play and substantial justice.’” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316

(1945) (citation omitted); see Schwarzenegger v. Fred Martin Motor Co., 374 F.3d

797, 801–02 (9th Cir. 2004). Second, the district court correctly dismissed

Taylor’s discrimination claims under 42 U.S.C. § 1983 because the federal

defendants did not act “under color of state law” as required by the statute. 42

U.S.C. § 1983; Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other

grounds by Daniels v. Williams, 474 U.S. 327 (1986). Third, the district court

correctly dismissed Taylor’s claims for damages because the United States has not

waived its sovereign immunity on those claims. Fourth, the district court correctly

dismissed Taylor’s claims for equitable relief under 42 U.S.C. § 2000d because the

federal disadvantaged business enterprise program does not qualify as a “program

or activity” within the meaning of the statute. Lastly, the district court correctly

dismissed Taylor’s claims against the United States for equitable relief under

Washington state law because Taylor failed to make a showing that the relief he

sought was available under Washington state law.

                            2. Summary Judgment Order

      We review the district court’s order granting summary judgment de novo.

Universal Health Servs. Inc. v. Thompson, 363 F.3d 1013, 1019 (9th Cir.


                                           3
2004). Taylor argues the district court erred when it granted summary judgment in

favor of federal and state defendants on his claims for violation of the

Administrative Procedure Act (“APA”), violation of the Equal Protection Clause,

discrimination under 42 U.S.C. § 1983, and discrimination under 42 U.S.C. §

2000d. In addition, Taylor argues the district court erred when it declined to

exercise supplemental jurisdiction over his claims under the Washington State

Constitution and Washington Law Against Discrimination. We disagree.

                 A. Claims under the Administrative Procedure Act

      The district court did not err when it granted summary judgment to state and

federal defendants on Taylor’s APA claims. As a preliminary matter, despite

Taylor’s assertions to the contrary, there were no issues of material fact. Fed. R.

Civ. Pro. 56(a); see also Occidental Eng’g Co. v. I.N.S., 753 F.2d 766, 769–70 (9th

Cir. 1985) (discussing summary judgment in the context of an administrative

proceeding and stating that a district court “is not required to resolve any facts in a

review of an administrative proceeding . . . the function of the district court is to

determine whether or not as a matter of law the evidence in the administrative

record permitted the agency to make the decision it did”). In addition, when

analyzing Taylor’s APA claims, the district court did not abuse its discretion in

refusing to consider documents outside the administrative record because those


                                            4
documents did not fall into one of the recognized exceptions permitting review.

See Lands Council v. Powell, 395 F.3d 1019, 1029–30 (9th Cir. 2005).

      Taylor argues that state and federal defendants violated the APA by acting in

an arbitrary and capricious manner. See 5 U.S.C. § 706(1)-(2). When considering

whether to set aside an agency action as “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law,” courts must determine

“whether the agency considered the relevant factors and articulated a rational

connection between the facts found and the choices made.” Ranchers Cattlemen

Action Legal Fund United Stockgrowers of Am. v. U.S. Dep’t of Agr., 499 F.3d

1108, 1115 (9th Cir. 2007) (internal quotations omitted); see also 5 U.S.C. §

706(1)–(2).

      Here, OMWBE did not act in an arbitrary and capricious manner when it

determined it had a “well founded reason” to question Taylor’s membership claims

and, after requesting additional documentation from Taylor, determined that Taylor

did not qualify as a “socially and economically disadvantaged individual.” See 49

C.F.R. §§ 26.5, 26.61(c), 26.63(a)–(b), 26.67(a)(1). In addition, OMWBE did not

act in an arbitrary and capricious manner when it did not provide an in-person

hearing under 49 C.F.R. §§ 26.67(b)(2) and 26.87(d) because Taylor was not

entitled to a hearing under the regulations. USDOT did not act in an arbitrary and


                                          5
capricious manner when it affirmed the state’s decision because the decision was

supported by substantial evidence and consistent with federal regulations. See 49

C.F.R. § 26.89(e), (f)(1)–(2). USDOT considered and discussed numerous pieces

of evidence in its decision letter and “articulated a rational connection” between

the evidence and the decision to deny Taylor’s application for certification.

Ranchers Cattlemen, 499 F.3d at 1115. In addition, Taylor’s argument that

USDOT violated 49 C.F.R. § 26.89(f)(8) is now moot.

  B. Claims under the Equal Protection Clause and 42 U.S.C. §§ 1983 and 2000d

      The district court did not err when it granted summary judgment to federal

and state defendants on Taylor’s equal protection claims because defendants did

not discriminate against Taylor, did not intend to discriminate against Taylor, and

did not treat Taylor differently from others similarly situated. See Vill. of

Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam); Hispanic Taco

Vendors of Wash. v. City of Pasco, 994 F.2d 676, 679–81 (9th Cir. 1993). The

district court also did not err when it granted summary judgment to state

defendants on Taylor’s discrimination claims under 42 U.S.C. §§ 1983 and 2000d

because neither statute applies to Taylor’s claims. In addition, the district court

correctly declined to apply the McDonnell Douglas burden-shifting framework




                                           6
because that framework does not apply to Taylor’s claims. See McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973).

      Lastly, having dismissed or granted summary judgment on all of Taylor’s

claims under federal law, the district court did not abuse its discretion when it

declined to exercise supplemental jurisdiction over Taylor’s state law claims.

      AFFIRMED.1




      1
         We DENY Appellants’ motion to take judicial notice. See Dkt. Nos. 17,
20, 23, 24, 41–44. The motion by Jeremy I. Levitt to file an amicus curiae brief
(Dkt. Nos. 62, 64) is DENIED for failure to comply with Federal Rule of Appellate
Procedure 29(a) and Ninth Circuit Rule 29-3. Appellants’ motion to strike the
amicus brief is DENIED as moot (Dkt. No. 61).
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