Rosenfeld v. Clark (586 F. Supp. 1332, 1984)

COFFRIN, Chief Judge.

Plaintiff brings this action ‘pro se under 42 U.S.C. § 1983 and 28 U.S.C. § 1343(a)(3) to recover for damages allegedly sustained as a result of improper administration of the Vermont Bar Examination (“exam”) by the defendants, the individual members of the Vermont Board of Bar Examiners (“Board”). Plaintiff took the exam in February of 1983 and was initially informed that he had failed by one point. Plaintiff then appealed his score, pursuant to Vt. Stat.Ann. tit. 12, App. I, Part II §§ 10(f), (g), to the Chairman of the Board, defendant Clark. The statutory appeals process requires the Chairman to “render a ruling in writing within thirty days of the receipt of the petition for appeal as to whether the appeal has substantial merit.” If the Chairman finds substantial merit, the appeal is then considered by the full Board which has another thirty days to act on the Chairman’s recommendation. Vt.Stat.Ann. tit. 12 App. I, Part II, § 10(h). If the Board issues a favorable decision and the applicant is found qualified by the Character and Fitness Committee and approved by the Vermont Supreme Court, the applicant is admitted to the state bar.

Plaintiff alleges that shortly after receiving notice on April 1, 1983 that he had failed the exam; he wrote to the Board requesting a review of his score. On April 28, 1983, he received a copy of the examiners’ model answers and a scoring guide to compare with a copy of his own graded exam. According to plaintiff, he submitted an appeal to defendant Clark on May 9, 1983. Shortly thereafter plaintiff by letter informed defendant Clark that he had completed all of the other requirements for admission to practice and requested an expedited review of his appeal. Plaintiff alleges that defendant Clark issued a favorable ruling, but not until June 15, 1983, some seven days after the statutorily prescribed period had run. The full Board informed the plaintiff on June 25, 1983 that a decision had issued in his favor and that his score had been adjusted up one point to the passing grade. On July 7, 1983, plaintiff appeared before the Vermont Supreme Court and was admitted to the state bar.

Plaintiff asserts a number of constitutional and state law violations. He alleges that defendant Clark violated his fourteenth amendment right to due process by exceeding the thirty day period in which the Chairman was required to have rendered his decision so that plaintiff was excluded from the practice of his profession; that defendant Clark violated his right to due process “by not reviewing and ruling on the appeal as quickly as possible”; that all of the defendants violated his fourteenth amendment right to equal protection under the law “by awarding him a failing grade at the same time they passed other applicants who had earned the same or lesser scores in the examination”; that the members of the full Board violated his right to due process “by denying him admission to the bar in a manner that did not provide a timely review of this action”; and finally, that the defendant members of the full Board carelessly and recklessly failed to fulfill their responsibility for assuring a fairly and accurately graded exam. Plaintiff seeks a declaratory judgment, actual and punitive damages, and attorney’s fees.

The defendants deny the plaintiff’s allegations and assert as defenses lack of subject matter jurisdiction, absolute judicial immunity, the eleventh amendment, improper service, and failure to state a claim under 42 U.S.C. § 1983.

The case is presently before the court on defendants’ motion for summary judgment and plaintiff’s cross motion for summary judgment. For the reasons stated below, we dismiss the “Third” and “Fifth” claims contained in the Complaint for lack of subject matter jurisdiction and we grant defendant’s motion for summary judgment as to the rest of plaintiff's claims.

JURISDICTION

Defendants contend that this court lacks subject matter jurisdiction over plaintiff’s claims. According to the defendants, the plaintiff is entitled to appeal the decision of the Board to the Vermont Supreme Court pursuant to Vt.Stat.Ann. tit. 12, App. I, Part II, § 13(b). If the Vermont Supreme Court rendered a decision adverse to plaintiff, his only recourse would be to petition the United States Supreme Court for certiorari. A federal district court, defendants contend, is without jurisdiction to review a decision of a state court on the merits.

The defendants rely primarily on District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983) and Welch v. Smith, 486 F.Supp. 153 (D.Vt.1980), to support their argument. In Feldman, the plaintiffs had applied for waivers of a requirement of admission to the District of Columbia bar that all applicants be graduates of an approved law school. Denied the waivers by the District of Columbia Court of Appeals, the plaintiffs brought suit in federal district court alleging that the denials were arbitrary and hence in violation of the fifth amendment.

The Court first acknowledged that a federal district court is without authority to review final determinations of a state’s highest court, petition for certiorari pursuant to 28 U.S.C. § 1257 being the sole avenue for review of such decisions. Federal district court jurisdiction is defeated, however, only when the state court’s determination is “judicial” in nature and the plaintiff’s claim was disposed of “on its merits.” Id. at 1312-1313. Because the issuance of a waiver, reasoned the Court, involved a judicial inquiry into various equitable and legal considerations, a district court did not have subject matter jurisdiction over the plaintiffs’ claims that the bar associations had arrived at incorrect decisions. Therefore, to the extent that the plaintiffs sought a review of the bar associations’ decisions denying the waiver, a district court lacked subject matter jurisdiction over their complaints.

On the other hand, to the extent that the plaintiff challenged the constitutional validity of an admission rule itself, the Court held that a district court would have subject matter jurisdiction. State supreme courts may act in a non-judicial capacity in promulgating rules regulating the state bar admission process.

Challenges to the constitutionality of state bar rules, therefore, do not necessarily require a United States District Court to review a final state court judgment in a judicial proceeding. Instead, the District Court may simply be asked to assess the validity of a rule promulgated in a non-judicial proceeding. If this is the case, the District Court is not reviewing a state court judicial decision.

Id. at 1316-1317. A district court would, therefore, have jurisdiction over plaintiffs’ constitutional challenge to the rules themselves.

Applying the analysis set forth in Feldman, we must disagree with the defendant’s contention that the Board’s alleged failure to provide a timely decision and timely notification of that decision is somehow the result of a judicial proceeding. Despite defendants’ reference to decisions of the Vermont Supreme Court indicating that the bar admission process is a judicial function, Feldman requires us to examine the nature and effect of the challenged action rather than its form. The plaintiff here does, not seek review of the Board’s determination. Clearly this court would lack jurisdiction over a challenge to the merits of the Board’s decision. Instead of attacking the decision of the Board or its Chairman — they decided his appeal had merit — plaintiff seeks a review of the alleged procedural improprieties in the exam appeal process. The Chairman is faulted for failure to comply with the timing requirements of the state statute. The entire Board is alleged to have violated plaintiff’s constitutional right to due process by not providing for a “timely review” of their initial grade determination, an allegation which amounts to a claim that the statutory time period for decision of an appeal is itself unconstitutional. These claims are clearly not directed to the merits of the Board’s determination.

Thus the plaintiff can in no way be said to be seeking a review of the merits of a judicial decision of a state court. The Court in Feldman clearly recognized the distinction between a challenge to the merits of a decision by a state supreme court and a challenge to the constitutionality of a bar admission rule or its application. We find this case more clearly related to the latter class of actions so that jurisdiction is not defeated on this basis.

Defendants’ reliance on Welch is also misplaced but for a different reason. The plaintiff in Welch, who received a failing grade on the 1978 Vermont bar exam, asserted that due process had been denied by certain acts of the Board. This court held that the Board’s negative determination was not a “final decision”, since only the Vermont Supreme Court had the final authority to pass on bar admissions. Furthermore, because a challenge to the Vermont Supreme Court’s final determination would only lie through petition for certiorari to the United States Supreme Court, a federal district court would not have subject matter jurisdiction over the plaintiff’s claims even if they had resulted from a final decision.

In a short unpublished decision, the Second Circuit Court of Appeals affirmed, but on the basis of plaintiff’s failure to state a claim rather than lack of subject matter jurisdiction. Welch v. Smith, No. 80-7306 (2d Cir. June 10, 1980). Although the Court of Appeals did not elaborate, our decision in Welch clearly cannot be cited as support for the proposition that a federal district court lacks jurisdiction over a challenge to rules and practices employed by a state board of bar examiners.

Defendants also allege that the bar of the eleventh amendment applies because plaintiff seeks damages against the defendants in their official capacities, citing Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). Although the Complaint does not precisely state the capacity in which the defendants are being sued, plaintiff contended at hearing that he sought recovery against the individual defendants rather than the state treasury and therefore that his claim falls under Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (damages against state officials as individuals may be a permissible remedy in some circumstances notwithstanding the fact that they held public office). The question is an extremely close one, but an examination of the pleadings (as required by Scheuer) leads us to the somewhat tenuous conclusion that plaintiff seeks recovery against the defendants as individuals. Therefore, the eleventh amendment does not apply.

Finally, defendants assert that this court does not have subject matter jurisdiction because plaintiff has failed to raise a substantial federal question. In order to dismiss on this basis, however, plaintiff’s claims must be wholly unsubstantial or frivolous, foreclosed by prior case law, or so patently without merit as to require no meaningful consideration. Hagans v. Lavine, 415 U.S. 528, 536-538, 94 S.Ct. 1372, 1378-379, 39 L.Ed.2d 577 (1974).

We believe that plaintiff’s equal protection claim (“Third Claim” in the Complaint) fails to present a substantial federal question. An allegation that a mistake in grading an exam (and plaintiff does not contest that it was anything but a mistake) gives rise to a violation of the equal protection clause of the fourteenth amendment is clearly frivolous. See e.g. Chaney v. State Bar of California, 386 F.2d 962, 964-966 (9th Cir.1967) (allegation that use of an essay-type bar exam violates due process is a frivolous claim which should be dismissed), cert. denied, 390 U.S. 1011, 88 S.Ct. 1262, 20 L.Ed.2d 162 (1968). Since the equal protection claim has no constitutional substance, we dismiss it.

The court cannot say, however, that plaintiffs constitutional due process claims fail to present substantial federal questions. Having discerned no jurisdictional defects in these claims, this court has subject matter jurisdiction over the plaintiffs due process claims.

Turning to plaintiffs state law claim (“Fifth Claim” in the Complaint), which alleges that the Board carelessly and recklessly failed to assure a timely and accurately graded exam, the court must decline to exercise pendent jurisdiction. This state law negligence claim would involve issues and evidence vastly different than might be raised in the determination of the federal claims. Further, the negligence claims appear to arise out of the Board’s wholly discretionary function in preparing and grading the exam rather than out of the procedural requirements of the exam appeals process. Thus plaintiff’s state law negligence claim and his constitutional claim do not arise out of the common nucleus of operative fact necessary in order for the court to be able to exercise pendent jurisdiction. United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). For this reason, we hold that we have no jurisdiction over plaintiff’s “Fifth Claim” and accordingly dismiss it.

DUE PROCESS CLAIMS

The defendants allege that they are entitled under Fed.R.Civ.P. 56 to summary judgment on a variety of grounds. We will assume, for purposes of this motion, that all of plaintiff’s material factual allegations are true and we resolve all inferences in the plaintiff’s favor. 6 Moore’s Federal Practice, 11 56.11[1.-1] at 56-198 (1983).

Plaintiff asserts that he has been deprived of a property interest without due process of law. The extent to which the constitution protects a “right” to be admitted to a state bar was delineated in Schware v. Board of Bar Examiners of New Mexico, 353 U.S. 232, 238-239, 77 S.Ct. 752, 755-756, 1 L.Ed.2d 796 (1957):

A State cannot exclude a person from the practice of law or from any other occupation in a manner or for reasons that contravene the Due Process or Equal Protection Clause of the Fourteenth Amendment. A State can require high standards of qualification, such as good moral character or proficiency in its law, before it admits an applicant to the bar, but any qualification must have a rational connection with the applicant’s fitness or capacity to practice law ____ Even in applying permissible standards, officers of a State cannot exclude an applicant when there is no basis for their finding that he fails to meet these standards, or when their action is invidiously discriminatory, (citations and footnote omitted).

The plaintiff does not allege that the Board has proposed standards which have no rational connection to his fitness to practice law, that the Board improperly assessed his qualities with respect to permissible standards, or that the Board’s action was invidiously discriminatory. The plaintiff’s primary complaint is that the Chairman’s failure to render a decision within the time requirements of Vt.Stat.Ann. tit. 12, App. I, Part II, § 10(f) and the failure of the Chairman and the Board to act in an otherwise “timely manner” caused him to be excluded from the practice of law for a period of several weeks.

As to the allegations against defendant Clark, plaintiff implies that Clark's alleged failure to render his decision within the time prescribed by statute was ipso facto a violation of due process. Plaintiff relies on the principle that “an agency’s violation of its own procedures may constitute a denial of due process, adjudicable in the courts.” Sneaker Circus, Inc. v. Carter, 566 F.2d 396, 402 (2d Cir.1977). Certainly an agency’s violation of a statutorily mandated procedure may result in a violation of due process, but it is clear that such a violation did not occur here merely because of a failure to follow the thirty day time limit. The total time allowed by state statute for the appeals process was sixty days; thirty days were allotted for the Chairman to make his decision and thirty additional days were provided the full Board to act on the Chairman’s recommendation. Although defendant Clark allegedly took thirty-seven days to render his decision, the full Board, by plaintiff’s own admission, took only ten days to render their finding that plaintiff had passed the exam. Plaintiff, therefore, obtained a final decision in forty-seven days, thirteen days before the statutory period for a final decision by the full Board expired. Since the appeals process was completed well within the timing requirements set forth by statute, defendant Clark’s violation of state notice requirements was not, ipso facto, a violation of plaintiff’s right to due process.

Plaintiff also asserts, however, that whether or not defendant Clark’s alleged failure to adhere to the statutory time requirements constituted a violation of due process, the total time taken by Clark and the full Board violated due process because of the urgency of plaintiff’s situation. Since the Board acted within the statutorily prescribed time limit, this claim amounts to a challenge to the constitutional adequacy of the procedures set forth in the statute itself.

Defendants’ response is that they were engaged in a process that should, taken as a whole, be characterized as a judicial function. As an arm of the Vermont Supreme Court thus engaged in an activity judicial in nature, defendants contend that they are entitled to absolute judicial immunity for their acts related to the grading of the bar exam, including any violations of notice requirements imposed by the constitution (though they deny that any violation oecurre