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Dyer v. Maryland State Board of Education

United States District Court, D. Maryland

May 19, 2016

ALLEN R. DYER, Plaintiff
v.
MARYLAND STATE BOARD OF EDUCATION, et al., 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 Background[4]

         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, 399 A.2d 225 (Md. 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. § 1983[10]: 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 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In analyzing a Rule 12(b)(6) motion, the Court views all well-pleaded allegations in the light most favorable to the plaintiff. Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997). “[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable[.]” Twombly, 550 U.S. at 556. Even so, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Id. at 555. “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (alteration in original) (quoting Twombly, 550 U.S. at 555, 557).

         As a general proposition, extrinsic evidence does not factor in to the Rule 12(b)(6) equation. However, exhibits attached to the Complaint are treated as incorporated therein. McDermott v. Nat’l Shipping Co. of Saudi Arabia, Civ. No. CCB-99-3080, 2000 WL 218377, at *1 (D. Md. Jan. 24, 2000), aff’d, 18 F. App’x 120 (4th Cir. 2001) (per curiam). Moreover, even at the pleading stage, the Court “may take judicial notice of matters of public record, including court and administrative filings.” Fakhoury v. Great N. Ins. Co., Civ. No. WDQ-12-0268, 2012 WL 1554487, at *1 n.1 (D. Md. Apr. 30, 2012). Courts sitting in this Circuit have taken judicial notice of such administrative documents as decisions of the Maryland OAH, see Smith v. Wash. Suburban Sanitary Comm’n, Civ. No. DKC 12-0316, 2012 WL 4863399, at *4 n.4 (D. Md. Oct. 11, 2012); employee grievance records, see Guthrie v. McClaskey, No. 1:11cv00061, 2012 WL 5494457, at *4 (W.D. Va. Nov. 13, 2012); and Equal Employment Opportunity Commission filings and records, see Whittington v. N.C. Dep’t of Juvenile Justice & Delinquency Prevention, No. 1:05CV348, 2006 WL 909141, at *1 (W.D. N.C. Apr. 7, 2006).

         In this case, Plaintiff attached five exhibits to his Complaint, and the parties appended a plethora of documents to their memoranda. These documents include opinions and orders of the Maryland OAH, the State Board, and state courts, as well as assorted motions that Plaintiff filed (mainly pro se) during the prior state proceedings. The Court may properly take notice of these documents, as they are in the public record. However, the Court declines to take notice of certain exhibits appended to Plaintiff’s memoranda, [13] including two affidavits by Plaintiff; an affidavit by one Cynthia L. Vaillancourt, a nonparty; and what appears to be the transcript of a blog post titled Canary in the Coal Mine and drafted by one Susan Garber, also a nonparty. Such documents fall outside the proper scope of Rule 12(b)(6) review.

         III. Analysis

         A. Declaratory Relief

         The Declaratory Judgment Act (“DJA”) provides that a federal court may-in a case of actual controversy and upon the filing of an appropriate pleading-“declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” 28 U.S.C. § 2201(a). Declaratory relief may be appropriate where a dispute is (1) definite and concrete, i.e., affecting the legal relations of parties with adverse interests; and (2) real and substantial, i.e., amenable to specific, conclusive relief, as opposed to an advisory opinion based on a hypothetical state of facts. MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007); see also Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273 (1941) (“Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.”). It is settled that “past injury, without more, cannot form the basis for either injunctive or declaratory relief.” Peter B. v. Buscemi, C/A No. 6:10-767-TMC, 2013 WL 869607, at *7 (D.S.C. Mar. 7, 2013) (citing O’Shea v. Littleton, 414 U.S. 488, 495-96 (1974); Green v. Mansour, 474 U.S. 64, 74 (1985)), aff’d sub nom. Chip E. v. Buscemi, No. 15-1039, 2016 WL 1720593 (4th Cir. Apr. 29, 2016) (per curiam). Even where a genuine, current controversy exists, relief under the DJA is not guaranteed: the statute has “long been understood ‘to confer on federal courts unique and substantial discretion in deciding whether to declare the rights of litigants.’” MedImmune, Inc., 549 U.S. at 136 (citing Wilton v. Seven Falls Co., 515 U.S. 277, 286 (1995)).

         Declaratory relief is inappropriate in this case. Plaintiff invites the Court to declare, inter alia, that the removal process (facially and as applied to Plaintiff) violates the First and Fourteenth Amendments and that the State Board exceeded its authority by “attempt[ing] to administratively adjudicate and enforce the common law crime of misconduct in office” and by “attempt[ing] to create and adjudicate . . . something called an ‘administrative crime of misconduct in office.’” (ECF No. 1 at 19-20.) He also urges the Court to declare Opinion No. 13-30 “meaningless, illegal or unlawful, overruled and voided.” (Id. at 20.) But such declarations would have no concrete remedial effect, because-independent of the state administrative and judicial proceedings-Plaintiff was voted out of office by the Howard County electorate. The Court certainly has no authority to reinstate an ex-official against the will of the voters, even if the removal process somehow violated his rights.[14] As Judge Louis A. Becker of the Circuit Court for Howard County put it, “the political mechanism for normal and ultimate decision-making as to who holds elected office in our state and county governments . . . finally decided . . . that [Plaintiff] . . . should not be retained in [his] position. The voters answered: No.” (ECF No. 3-17 at 26.)

         Plaintiff bases his demand for declaratory relief on his notion that the removal process “constitutes an ongoing intimidation and suppression of political speech of currently serving duly elected members of local boards of education”; he adds that an “actual and substantial controversy exists between the voters and Defendants” because the removal process “constitutes a nullification of a properly conducted election.” (ECF No. 1 ¶¶ 52-53.) But Plaintiff has no standing to assert the rights of third-party elected officials or “voters” generally. Compare Stahlman v. United States, 995 F.Supp.2d 446, 453 (D. Md. 2014) (“A party may assert third-party standing only if she has standing herself.”), and Equal Rights Ctr. v. Abercrombie & Fitch Co., 767 F.Supp.2d 510, 523 (D. Md. 2010) (“The Supreme Court . . . has ‘limited [the third-party standing] exception by requiring that a party seeking [such] standing make two additional showings’: (1) that the litigant has a ‘close’ relationship with the third party; and (2) that the third party faces some obstacle to asserting her own right.” (quoting Kowalski v. Tesmer, 543 U.S. 125, 130 (2004))), with Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 80 (1978) (“[W]e have declined to grant standing where the harm asserted amounts only to a generalized grievance shared by a large number of citizens in a substantially equal measure.”).

         In his response to the State Defendants’ motion, Plaintiff adds that Defendants’ conduct harmed his “professional, political and public reputation, ” which harm has “continued to this day.” (ECF No. 10 at 14-15.) Reputational harm may, under the right circumstances, give rise to a claim for damages-but Plaintiff cannot stake his claim for declaratory relief on past injury alone. Indeed, virtually all misconduct can be characterized as having some lingering effect- but if that were enough to implicate the DJA, the Supreme Court’s admonition that declaratory relief requires a “substantial controversy, between parties having adverse legal interests, of sufficient immediacy, ” Md. Cas. Co., 312 U.S. at 273, would be nugatory.[15]

         Plaintiff, having lost his reelection bid over three years ago, has no live dispute with Defendants the likes of which the Court may properly redress via the DJA. His demands for declaratory relief will be DENIED.

         B. Eleventh Amendment Immunity

         The Court, having dispensed with Plaintiff’s prayer for declaratory relief, turns its attention to his request for damages. Plaintiff sued the State Board as well as its members (in their official and individual capacities). With respect to the claims against the board itself and the official-capacity claims against its members, the State Defendants have asserted Eleventh Amendment immunity.

         “Under the Eleventh Amendment, ‘a State cannot be sued directly in its own name regardless of the relief sought, ’ absent consent or permissible congressional abrogation. And for purposes of the Eleventh Amendment, a state official acting in his official capacity is protected from a damages action by the same immunity.” Ballenger v. Owens, 352 F.3d 842, 844-45 (4th Cir. 2003) (citations omitted). While Plaintiff brings his federal claims pursuant to § 1983, Congress has not abrogated Eleventh Amendment immunity through that statute.[16] And while Maryland’s General Assembly has waived sovereign immunity with respect to certain classes of tort claims prosecuted in state court, it has expressly declined to extend that waiver to claims brought in federal court. See Md. Code Ann., State Gov’t § 12-103(2) (specifying that the Maryland Tort Claims Act does not “waive any right or defense of the State or its units, officials, or employees in an action in a court of the United States . . . including any defense that is available under the 11th Amendment to the United States Constitution”); see also Dorsey v. Dep’t of Pub. Safety & Corr. Servs., Civ. No. TDC-14-2568, 2016 WL 1239922, at *5 (D. Md. Mar. 24, 2016) (“Maryland has explicitly denied waiver of Eleventh Amendment immunity.”).

         Plaintiff’s damages claims as against the State Board and its members acting in their official capacities are barred by the Eleventh Amendment and must therefore be DISMISSED.[17]

         C. Individual Immunities

         Although Plaintiff’s claims against the State Board and its members in their official capacities must fail on Eleventh Amendment grounds, the Eleventh Amendment does not shield state actors from liability for constitutional torts that they commit in their individual capacities. That said, even if Plaintiff’s federal claims had any substantive merit (they do not), the State Board members would be protected under principles of absolute, quasi-judicial immunity or, alternatively, qualified immunity.[18]

         1. Absolute, Quasi-Judicial Immunity

         The State Defendants contend that the State Board members are immune from Plaintiff’s damages claims because they “acted in a manner comparable to a judge when they considered the evidence presented, exercised their independent judgment, and issued a written decision that included findings of fact and conclusions of law.” (ECF No. 3-2 at 8.)

         In Ostrzenski v. Seigel, the Fourth Circuit explained that, while the “prospect of liability for damages encourages public officials to perform their assignments appropriately, ” there are situations in which the “threat of liability for damages hinders, rather than advances, the prospects that public officials will perform their duties in the public interest. The special functions of some governmental officials require that they be exempted completely from such liability.” 177 F.3d 245, 248-49 (4th Cir. 1999) (citations omitted). These officials include “judges performing judicial acts within their discretion . . . and ‘quasi-judicial’ agency officials whose duties are comparable to those of judges . . . when adequate procedural safeguards exist.” Id. at 249; see also Dukes v. Maryland, Civ. No. CCB-11-876, 2011 WL 4500885, at *6 (D. Md. Sept. 27, 2011) (“‘[Q]uasi-judicial immunity’ is extended when (1) the . . . official’s functions are similar to those of a judge, (2) a strong need exists for the official to perform essential functions for the public good without fear of harassment and intimidation, and (3) adequate procedural safeguards exist to protect against constitutional deprivations.” (citing Ostrzenski, 177 F.3d at 249)).

         Federal courts have extended quasi-judicial immunity to a wide range of administrative officials performing essentially adjudicative functions. See, e.g., Butz v. Economou, 438 U.S. 478, 513-14 (1978) (extending quasi-judicial immunity to federal ALJs); Mathis v. Goldberg, 538 F. App’x 310, 311 (4th Cir. 2013) (per curiam) (extending quasi-judicial immunity to state arbitrator); Richter v. Connor, 21 F.3d 423, 1994 WL 118011, at *4-5 (4th Cir. 1994) (unpublished table decision) (extending quasi-judicial immunity to medical board members and staff assistants); Dukes, 2011 WL 4500885, at *6 (extending quasi-judicial immunity to hearing examiner with the Maryland Department of Labor, Licensing, and Regulation (“DLLR”) and to chairperson of the DLLR Board of Appeals); Traversa v. Ford, 718 F.Supp.2d 639, 646-47 (D. Md. 2010) (extending quasi-judicial immunity to members of the Maryland Commission on Human Relations); cf. Mua v. Md. Office of the Attorney Gen., Civ. No. PJM 14-2070, 2016 WL 1258469, at *10 n.12 (D. Md. Mar. 31, 2016) (declining to grant plaintiff leave to plead claims against individual State Board members and noting that such members “are very likely protected by quasi-judicial immunity”).

         In overseeing and executing Plaintiff’s removal from office, the State Board members performed precisely the type of function that courts have deemed sufficiently judicial so as to warrant the extension of absolute immunity. Much like an Article III judge reviewing the work of an ALJ or a United States Magistrate Judge, the State Board members reviewed ALJ Koteen’s proposed decision and issued a thoughtful opinion of their own. In that opinion, they tackled justiciability issues, interpreted statutory language and case law, and applied the law as they understood it to the facts that ALJ Koteen had found. Moreover, the removal process afforded Plaintiff extensive procedural protections. The evidentiary hearing was governed by the contested case provisions of Maryland’s Administrative Procedure Act and by the Rules of Procedure of the Maryland OAH, [19] and Plaintiff enjoyed administrative review by the State Board and the right to de novo review in the Circuit Court for Howard County, see Md. Code Ann., Educ. § 3-701(g)(4).[20] Finally, and crucially, a strong public interest warrants the extension of absolute immunity here. If this Court were to hold that the State Board members are individually amenable to suit on the basis of their adjudicative actions, those members would be much less likely to ...


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