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Oliver v. Virginia Board of Bar Examiners

United States District Court, E.D. Virginia, Richmond Division

April 26, 2018



          Henry E. Hudson, United States District Judge

         Donshur L. Oliver ("Plaintiff) brings this action against the Virginia Board of Bar Examiners ("Board") and Catherine Crooks Hill[1] (collectively, "Defendants"), seeking declaratory relief, injunctive relief, and compensatory damages for the Board's alleged discrimination in its administration of the Virginia Bar Examination. Specifically, Plaintiff claims that the Board did not properly accommodate his disability, in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 1201, et seq., as amended, the Rehabilitation Act, 29 U.S.C. §§ 794, et seq, and the Fourteenth Amendment to the United States Constitution. The matter is presently before the Court on Defendants' Motion to Dismiss Plaintiffs Amended Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure (ECF No. 17). The parties have thoroughly briefed the underlying issues, and the Court heard oral argument on the Motion on March 22, 2018. The matter is accordingly ripe for decision. For the reasons discussed below, Defendants' Motion to Dismiss will be granted.

         I. BACKGROUND

         Plaintiff enrolled at Western Michigan University Cooley Law School in 2012. (Am. Compl. ¶ 18, ECF No. 12.) During his first semester Plaintiff sought a psychological evaluation, as a result of which Dr. John Braccio diagnosed him with "ADHD predominately inattentive type (Guarded) and an Adjustment Disorder with Mixed Anxiety and Depressed Mood." (Id. at ¶ 19.) While in law school at Western Michigan, Plaintiff took a reduced course load and received extra time on his exams. (Id. at ¶¶ 20, 21.) In January of 2015, Plaintiff transferred to Michigan State University College of Law, where he also received extra time on exams; he received additional accommodations in the form of "a 30 minute break for any exam that exceed[ed] four (4) hours and a separate exam room or reduced distraction environment if [a] separate room [was] not available." (Id. at ¶ 23.)

         In anticipation of applying to take the Virginia Bar Examination, in 2016 Plaintiff obtained an updated psychological evaluation, this time from a different clinical psychologist, Dr. Jennifer Thompson. (Id. at ¶ 25.) She diagnosed Plaintiff "with a Specific Reading Disorder ... and Major Depressive Disorder, Single Episode, Mild." (Id. at ¶ 26.) In his subsequently filed Bar Application, Plaintiff requested testing accommodations, specifically "additional testing time, use of a reader, separate testing area, and a private testing room." (Id. at ¶ 28.) Plaintiff supplemented his application and request for accommodations with the necessary forms and records of his psychological evaluations, as well as other supporting documentation. (Id. at ¶¶ 27, 30-32.)

         Bar applications are submitted to and reviewed by the Board, which is a public entity and an agency of the Supreme Court of Virginia. (Id. at ¶ 8.) The Board is responsible for administering the Bar Examination and otherwise ascertaining the qualifications of applicants for admission to the Bar of Virginia. (Id.) It is also responsible for issuing disability-accommodation decisions; petitions for accommodations are reviewed on a case-by-case basis in accordance with the ADA, as amended by the ADA Amendments Act of 2008 ("ADAAA"), and controlling interpretive case law. (A/, at ¶¶ 83, 84.)

         On June 9, 2016, the Board denied Plaintiffs request for accommodations by letter, stating that the Board's expert reviewing Plaintiffs claimed disability found that the clinical documentation did not support the request for additional time. (Id. at ¶ 36.) On June 23, 2016, Plaintiff filed a request for reconsideration with the Board; he included a letter from Dr. Thompson outlining why she believed Plaintiff fit the criteria for a Specific Learning Disability. (Id. at ¶ 43.) In his request for reconsideration, Plaintiff also increased his requested time-accommodation, "because he ... learned that there is more reading on the Virginia Bar Examination than he first understood." (Id. at ¶ 44.) On July 6, 2016, the Board affirmed its denial of Plaintiff s requested accommodations; Plaintiff did not appeal this denial further. (Id. at ¶ 45.)

         As a result of the Board's decision, Plaintiff took the Virginia Bar Examination without accommodation. (Id. at ¶ 56.) On October 20, 2016, Plaintiff learned that he did not pass the Bar, and that he missed the passing score by three points. (Id. at ¶¶ 59, 60.) Plaintiff subsequently took the Michigan Bar Examination, with accommodations, and passed. (Id. at ¶¶ 65, 66.) He now works as an attorney in Michigan; however, he desires to practice in Virginia, his home state. (Id. at ¶¶ 67, 68.) Accordingly, he brings this action.

         In Count One of the Amended Complaint, Plaintiff alleges that the Board unlawfully denied him accommodations to which he was entitled pursuant to the ADA (Id. at ¶¶ 102-03). In Count Two, Plaintiff alleges that the Board unlawfully discriminated against him and other individuals with disabilities through its acts and the policies, practices, and guidelines in place at the time of his application to the Virginia Bar, in violation of the anti-discrimination requirements of § 504 of the Rehabilitation Act. (Id. at ¶¶ 113-14.) Finally, Plaintiff alleges in Count Three that the Board violated Plaintiffs fundamental right to pursue his chosen profession, and that its policies, practices, and procedures deny him and others like him equal access to the Virginia Bar Examination and to the legal profession. (Id. at ¶¶ 120-22.) Plaintiff seeks declaratory and injunctive relief, as well as compensatory damages in the amount of $100, 000.00.[2]


         A motion made pursuant to Fed.R.Civ.P. 12(b)(1) challenges the court's jurisdiction over the subject matter of a complaint. Such challenges can be facial, asserting that the facts as pled fail to establish jurisdiction, or factual, disputing the pleadings themselves and arguing that other facts demonstrate that no jurisdiction exists. If a defendant raises a factual challenge, "the district court may then go beyond the allegations of the complaint and resolve the jurisdictional facts in dispute by considering evidence outside the pleadings, such as affidavits." United States ex re I. Vuyyuru v. Jadhav, 555 F.3d 337, 348 (4th Cir. 2008). Consideration of evidence outside of the pleadings on a 12(b)(1) motion does not necessarily convert the motion to one for summary judgment. Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999) (citation omitted); McBurney v. Cuccinelli, 616 F.3d 393, 409 (4th Cir. 2010) (Agee, J., concurring in part and dissenting in part) (motions under Rule 12(b)(1) are not restricted by Rule 12(d)). Regardless of whether the challenge is facial or factual, the plaintiff bears the burden of proof to preserve jurisdiction. Jadhav, 555 F.3d at 348; Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).

         Meanwhile, "[a] motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party of N.C v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citation omitted). To survive a Rule 12(b)(6) challenge, a complaint must contain sufficient factual information to "state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Fed. R. Civ. P. 8(a)(2). To do so, it must contain "'a short and plain statement of the claim showing that the pleader is entitled to relief, ' in order to 'give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'" Id. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Mere labels and conclusions declaring that the plaintiff is entitled to relief are not enough. Id. Thus, the "[f]actual allegations must be enough to raise a right to relief above the speculative level" to a level that is "plausible on its face" rather than merely "conceivable." Id. at 555, 570 (citations omitted). In considering such a motion, a plaintiffs well-pleaded allegations are taken as true and the complaint is viewed in the light most favorable to the plaintiff. T.G. Slater & Son v. Donald P. & Patricia A. Brennan, LLC, 385 F.3d 836, 841 (4th Cir. 2004) (citing Mylan Labs, Inc. v. Matkari, 1 F.3d 1130, 1134 (4th Cir. 1993)). Legal conclusions enjoy no such deference. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).


         The Court notes as an initial matter that, while Catherine Crooks Hill is named as a Defendant in this action, her only mention in the Amended Complaint is in a single paragraph, which introduces her as "an officer of the [Board], namely Secretary and Treasurer." (Am. Compl. ¶ 10.) Moreover, none of Plaintiff s allegations are levelled against Defendants, in the plural, but rather against "Defendant, " singular, or simply "the VBBE" (Plaintiffs label for the Board). Finally, Plaintiff introduces his Amended Complaint by saying that he "states the following ... against the defendant, the Virginia Board of Bar Examiners (VBBE):" (Id. at 1.) As such, the Court finds that Plaintiff has failed to allege any facts that would put Defendant Hill on notice of any claims asserted against her, personally. See Twombly, 550 U.S. at 555.

         To the extent Plaintiff endeavors to use Defendant Hill to preserve jurisdiction through the Ex Parte Young doctrine, the attempt fails. Ex Parte Young is a jurisdictional "fiction" that enables a plaintiff to enjoin government officials in their official capacities from perpetuating violations of constitutional or federal statutory rights, usually where sovereign immunity bars a suit against the government entity itself. Antrican v. Odom, 290 F.3d 178, 184 (4th Cir. 2002). In this case, however, Defendants are correct that Plaintiff has failed to allege any actions by Defendant Hill in her individual capacity which, if enjoined, would provide the relief Plaintiff seeks.[3] Accordingly, the Court finds that Ex Parte Young does not apply, and to the extent that Plaintiff endeavored to state any claims against Defendant Hill, those claims will be dismissed More generally speaking, with respect to Plaintiffs claims against the Board, Defendants argue that the Complaint as a whole should be dismissed because the Court lacks jurisdiction pursuant to the Rooker-Feldman doctrine. Alternatively, Defendants argue that Counts One and Two should be dismissed in recognition of the Board's sovereign immunity and that Count Three should be dismissed for failure to state an equal protection claim. For the reasons set forth below, the Court agrees.

         A. The Court Lacks Subject Matter Jurisdiction Pursuant to Rooker-Feldman

         The Rooker-Feldman doctrine prevents lower federal courts from hearing cases where a plaintiff, under the auspice of bringing a constitutional claim, seeks "review of, or relief from, a state action or proceeding that is essentially judicial in nature." Suarez Corp. Indus, v. McGraw, 125 F.3d 222, 228 (4th Cir. 1997) (citing Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of Columbia Ct. App. v. Feldman, 460 U.S. 462 (1983)). The doctrine applies where a plaintiff brings a claim in federal court that was actually adjudicated by a state court or inextricably intertwined with the state court's judgment, or where the plaintiff otherwise had the opportunity to raise that claim during state proceedings. See Feldman, 460 U.S. at 482 n.16 (1983). "[I]f 'in order to grant the federal plaintiff the relief sought, the federal court must determine that the state court judgment was erroneously entered or must take action that would render the judgment ineffectual, ' Rooker-Feldman is implicated." Jordahl v. Democratic Party, 122 F.3d 192, 202 (4th Cir. 1997).

         Defendants contend that by bringing the present action, Plaintiff is in actuality asking the Court to overturn the outcome of a state judicial proceeding. (Mem. Supp. Mot. Dismiss 13-14, ECF No. 18.) Among Plaintiffs desired relief is that the Court declare that Defendant violated Plaintiffs rights under the ADA and the Rehabilitation Act by not providing Plaintiff the accommodations that he believes he was entitled to, and for the Court to "require Defendant to accommodate Plaintiff on any future bar examinations." (Am. Compl. 20-21.) Plaintiff primarily argues that the Board's decision to deny his requested accommodations was not a judicial function, taking the issue outside the purview of Rooker-Feldman.

         It is undisputed that the Board is an agency of the Supreme Court of Virginia. The critical question for the Court to determine, therefore, is whether or not the Board proceedings underlying this action were "judicial in nature, " as opposed to administrative or ministerial processes. If the Court concludes that the proceedings were in fact judicial, it must then consider whether, in the course of those proceedings, the state court actually adjudicated Plaintiffs claims, or whether Plaintiff has waived adjudication by failing to bring his claims before the state court when it was proper to do so.

         1. The Board's Accommodations Decision was Judicial in Nature

         "In evaluating the [Board]'s proceedings to assess their judicial character, we examine the nature and effect of the proceeding and not the form of it." Allstate Ins. Co. v. W.Va. State Bar, 233 F.3d 813, 817 (4th Cir. 2000) (citing Feldman, 460 U.S. at 477). In District of Columbia Court of Appeals v. Feldman, the United States Supreme Court found that the D.C. Court of Appeals[4] engaged in a judicial act when it denied Feldman and Hickey waivers that would have allowed them to take the D.C. Bar Examination despite not having graduated from an accredited law school. The Supreme Court considered and expressly rejected the characterization of the D.C. Court's determination as administrative or ministerial. It based its finding on the fact that "the proceedings before the [D.C] Court of Appeals involved a 'judicial inquiry' in which the court was called upon to investigate, declare, and enforce 'liabilities as they [stood] on present or past facts and under laws supposed already to exist.'" Feldman, 460 U.S. at 479 (second alteration in original) (quoting Prentis v. Atlantic Coast Line, 211 U.S. 210, 226 (1908)). When considering Feldman's petition, the D.C. Court of Appeals weighed Feldman's arguments, the circumstances of his petition, and the court's existing rules and standards for Bar qualification. Id. at 480. Ultimately, it "determined as a legal matter that Feldman was not entitled" to the relief he sought: waiver of certain established rules and prerequisites of admission to the D.C. bar. Id.

         In this case, the Board engaged in a similar adjudication when it evaluated Plaintiffs request for accommodation and ultimately denied it. Just as the D.C. Court of Appeals considered Feldman's and Hickey's requests for waiver from certain qualification requirements, the Board considered Plaintiffs request for "waiver" from the time constraints and other standardized test-taking procedures that normally apply to Virginia Bar examinees. The Board was presented with competing expert reports regarding Plaintiffs disability, and it had to determine based on those reports, Plaintiffs medical and academic records, relevant law, and its own experience and precedents whether it should grant the requested accommodations.

         Plaintiff attempts to argue that the Board performed a ministerial act because it makes its accommodations determination according to guidelines and definitions set by the ADA. (Br. Opp. Mot. Dismiss, 14-15.) However, this fact actually cuts against Plaintiffs position. Just as in Feldman, where the Supreme Court found that the D.C. Court of Appeals "determine[d] in light of existing law and in light of Feldman's qualifications and arguments whether Feldman's petition should be granted, " the Board determined in light of existing law (the ADA) and Plaintiffs medical and academic records whether his petition for accommodations should be granted. As the Supreme Court stated in Feldman, this sort of adjudication of current "rights" "is the essence of a judicial proceeding." 460 U.S. at 481.

         In light of Feldman, the Court agrees with Defendants and finds that this undertaking demonstrates an exercise of judicial judgment and therefore constitutes a judicial proceeding. Plaintiffs arguments to the contrary, particularly those focusing on the form of the proceedings, are unavailing. Compare PL Supp. Br. 4-5, ECF No. 36, with Feldman, 460 U.S. at 479-482 ("Admittedly, the proceedings ... did not assume the form commonly associated with judicial proceedings. . . . however, 'the form of the ...

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