Oliver v. Va. Bd. of Bar Exam'rs

• Decision Date: 26 April 2018
• Docket Number: Civil Action No. 3:17CV492–HEH
• Parties: Donshur L. OLIVER, Plaintiff, v. VIRGINIA BOARD OF BAR EXAMINERS, et al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

312 F.Supp.3d 515

Donshur L. OLIVER, Plaintiff,

v.VIRGINIA BOARD OF BAR EXAMINERS, et al., Defendants.

Civil Action No. 3:17CV492–HEH

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

Signed April 26, 2018

James Broome Thorsen, Mary Kathryn Hart, Thorsen Hart & Allen, LLP, Richmond, VA, for Plaintiff.

Elaine Scott Moore, Erin Rose McNeill, Rita Poindexter Davis, Office of the Attorney General, Richmond, VA, for Defendants.

MEMORANDUM OPINION

(Granting Defendants' Motion to Dismiss)

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 Hill¹ (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 Plaintiff's 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. (Id. at ¶¶ 83, 84.)

On June 9, 2016, the Board denied Plaintiff's request for accommodations by letter, stating that the Board's expert reviewing Plaintiff's 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 Plaintiff's 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

II. LEGAL STANDARDS

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 rel. 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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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, 127 S.Ct. 1955 (quoting Conley v. Gibson , 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (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, 127 S.Ct. 1955 (citations omitted). In considering such a motion, a plaintiff's 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 , 7 F.3d 1130, 1134 (4th Cir. 1993) ). Legal conclusions enjoy no such deference. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

III. DISCUSSION

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" (Plaintiff's 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...