Dyer v. Md. State Bd. of Educ.

• Decision Date: 19 May 2016
• Docket Number: CIVIL NO. JKB-15-3699
• Citation: 187 F.Supp.3d 599
• Parties: Allen R. Dyer, Plaintiff v. Maryland State Board of Education, et al., Defendants.
• Court: U.S. District Court — District of Maryland

187 F.Supp.3d 599

Allen R. Dyer, Plaintiff

v.Maryland State Board of Education, et al., Defendants.

CIVIL NO. JKB-15-3699

United States District Court, D. Maryland.

Signed May 19, 2016

Filed May 20, 2016

Carl S. Silverman, Law Office of Carl S. Silverman LLC, Baltimore, MD, for Plaintiff.

Elizabeth Mary Kameen, Derek Spencer Simmonsen, Office of the Attorney General, Maryland State Department of Education, Baltimore, MD, Alvin I. Frederick, Lauren Elizabeth Marini, Eccleston and Wolf PC, Hanover, MD, for Defendants.

MEMORANDUM

James K. Bredar, United States District Judge

After a nearly two-year administrative process and two unsuccessful trips through the state courts, Allen R. Dyer ("Plaintiff"), a former member of the Howard County Board of Education (the "County Board"), brought an action in this Court for declaratory relief and damages stemming from alleged violations of his due process, equal protection, and First Amendment rights in connection with his removal from office. Plaintiff named as Defendants the Maryland State Board of Education (the "State Board") and nine of its current and former members in their official and individual capacities (collectively, the "State Defendants").¹ Plaintiff also named Judith S. Bresler, Esq. ("Ms. Bresler") and the law firm of Carney, Kelehan, Bresler, Bennett & Scherr, LLP ("Carney Kelehan"), a limited liability partnership organized under the laws of Maryland (together, the "Carney Kelehan Defendants").²

Now pending before the Court are motions to dismiss or, in the alternative, for summary judgment, filed by the Carney Kelehan Defendants (ECF No. 5) and the State Defendants (ECF No. 7). The issues have been briefed, and no hearing is required, see Local Rule 105.6 (D. Md. 2014). For the reasons explained below, the motions will be reviewed under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure and will be GRANTED.³

I. Procedural Background⁴

Plaintiff was elected in November 2008 to serve a four-year term as one of eight County Board members. (ECF No. 1 ¶ 24.) On June 9, 2011, the County Board enacted a resolution directing its counsel (Ms. Bresler) to prepare and its chairman to execute a request to the State Board to remove Plaintiff from his position, pursuant to Md. Code Ann., Educ. § 3-701(g) (the "Removal Statute"). (ECF No. 3–5.) The Removal Statute authorizes the State Board to remove a County Board member on grounds of immorality, misconduct in office, incompetence, or willful neglect of duty; the statute requires the State Board to deliver notice of the pending removal action to the subject board member and to afford that member an opportunity for a hearing, with the possibility of de novo judicial review in the event of an adverse decision. Consistent with the statute, James H. DeGraffenreidt, Jr., then-president of the State Board and one of the named Defendants here, delivered notice to Plaintiff that the County Board had invoked the Removal Statute on grounds of misconduct in office based on allegations that Plaintiff had (1) repeatedly breached confidentiality, (2) acted unilaterally and undermined the functioning of the County Board, (3) spurned less divisive methods of problem-solving in favor of litigation, and (4) used his position to further his personal litigation and to harass fellow board members and Howard County Public School System ("HCPSS") personnel. (ECF No. 1–1 at 5-6.) DeGraffenreidt's notice included examples of the alleged misconduct. (Id. at 7-8.) Plaintiff requested a hearing, and the State Board—pursuant to Md. Code Ann., State Gov't § 10-205 —transferred the case to the Maryland Office of Administrative Hearings (the "Maryland OAH"), where Administrative Law Judge Douglas E. Koteen ("ALJ Koteen") undertook to conduct an evidentiary hearing and draft a proposed decision. (ECF No. 3–14 at 1-3.)

On August 26, 2011, Plaintiff filed the first of numerous motions challenging the pending removal action. (See ECF No. 3–12 at 2.) ALJ Koteen denied Plaintiff's motion (id. at 30), and Plaintiff filed exceptions before the State Board; the board declined to consider those exceptions (ECF No. 3–8 ¶ 11). Plaintiff next filed a complaint in the Circuit Court for Howard County, seeking either interlocutory review or a writ of mandamus. (ECF No. 3–8.) The circuit court dismissed Plaintiff's action in a single-page order dated March 26, 2012 (ECF No. 3–9), and Plaintiff appealed—but in November 2012, before the Court of Special Appeals of Maryland addressed the matter, Plaintiff lost his reelection bid (ECF No. 3–10 at 1). Thereafter, the Court of Special Appeals dismissed Plaintiff's appeal as moot, observing that he could not be "removed from a position...that he no longer occupie[d]." (Id. ) The Court of Appeals of Maryland denied Plaintiff's subsequent petition for a writ of certiorari. (ECF No. 3–11.)

While Plaintiff's case wound its way through the Maryland courts, the administrative process moved forward. Between May 7, 2012, and July 11, 2012, ALJ Koteen presided over a ten-day evidentiary hearing: Plaintiff appeared pro se , while Ms. Bresler—over Plaintiff's objection—represented the interests of the County Board. (ECF No. 3–14 at 2-3.) On December 5, 2012, in a carefully reasoned, ninety-page proposed decision, ALJ Koteen recommended that Plaintiff be removed for committing misconduct in office. ALJ Koteen looked to Maryland case law for the definition of misconduct: citing Resetar v. State Board of Education , 284 Md. 537,399 A.2d 225 (1979), and an opinion by the State Superintendent of Schools,⁵ he noted that the term is sufficiently comprehensive to include misfeasance as well as malfeasance and to reach unprofessional acts even where such acts are not inherently wrongful or criminal in nature. (ECF No. 3–14 at 38-39.) He then concluded that Plaintiff had committed misconduct by, inter alia , breaching the County Board's confidentiality provisions; disclosing a memorandum that the County Board deemed privileged; violating the Family Educational Rights and Privacy Act ("FERPA") of 1974, as amended, 20 U.S.C. § 1232g ; and giving improper, unilateral directions to HCPSS personnel and general counsel. (Id. at 82-85.) The State Board subsequently upheld ALJ Koteen's proposed decision over Plaintiff's forty-nine exceptions (Opinion No. 13-30). (ECF No. 3–15.)⁶

On June 14, 2013, Plaintiff commenced his second trip through the state courts with a pleading filed in the Circuit Court for Howard County and styled as a "Petition for De Novo Review of Adjudication & Removal." (ECF No. 3–16 at 4.) But on November 4, 2013 Plaintiff recharacterized his pleading by interlineation as a "Complaint for a Declaratory Judgment Pursuant to a Non-Statutory Administrative Review of an Allegedly Illegal Adjudication." (Id. at 1.)⁷ The circuit court understood Plaintiff's request as one for civil relief under the Maryland Uniform Declaratory Judgment Act ("MUDJA"), Md. Code Ann., Cts. & Jud. Proc. §§ 3-401 et seq. But the court determined that declaratory relief was improper: because Plaintiff was no longer a member of the County Board, "he [could not] be removed from the County Board and accordingly, his Complaint...must be dismissed as moot." (ECF No. 3–17 at 21.) The court added that, by abandoning the de novo review mechanism prescribed by the Removal Statute, see Md. Code Ann., Educ. § 3-701(g)(4), Plaintiff failed to exhaust his administrative remedies and was therefore not entitled to relief under the MUDJA. (Id. at 39.)⁸ The Court of Special Appeals affirmed on that latter exhaustion ground (ECF No. 3–18), and the Court of Appeals denied certiorari (ECF No. 3–19).

Having thus repeatedly failed to sway state administrative and judicial authorities, Plaintiff brought his case to federal court, filing a two-count Complaint requesting declaratory relief, millions of dollars in damages, and attorney's fees. (ECF No. 1.)⁹ Both counts are presented as claims for relief under 42 U.S.C. § 1983¹⁰ : Count I alleges violations of "Free Speech" and "Due Process," while Count II alleges violations of "Equal Protection."¹¹

On February 19, 2016, the State Defendants moved to dismiss or, in the alternative, for summary judgment (ECF No. 3); the State Defendants corrected their motion on February 22, 2016 (ECF No. 7). The Carney Kelehan Defendants likewise moved to dismiss or, in the alternative, for summary judgment, on February 19, 2016. (ECF No. 5.) Plaintiff opposed both motions (ECF Nos. 10 & 11), and Defendants replied (ECF Nos. 14 & 15). The motions are ripe for adjudication.

II. Standard and Scope of Review

A motion under Rule 12(b)(1) challenges the Court's subject-matter jurisdiction to hear a case. This challenge proceeds "in one of two ways," Kerns v. United States , 585 F.3d 187, 192 (4th Cir.2009). "First, the defendant may contend ‘that [the] complaint simply fails to allege facts upon which subject matter jurisdiction can be based.’ " Id. (quoting Adams v. Bain , 697 F.2d 1213, 1219 (4th Cir.1982) ). Second, "the defendant can contend...‘that the jurisdictional allegations of the complaint [are] not true.’ " Id. (alteration in original) (quoting Adams , 697 F.2d at 1219 ). The first case represents a "facial" challenge, in which the plaintiff enjoys the same procedural protection he would receive under Rule 12(b)(6) ; the second case represents a "factual" challenge, where the Court may look beyond the complaint without converting the motion to one for summary judgment. Id.¹²

A motion under Rule 12(b)(6) tests the sufficiency of the complaint. A complaint must contain "sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ "

Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). In analyzing a Rule 12(b)(6) motion, the Court views all well-pleaded allegations in the...