VIRGINIA BAR EXAM: LACK OF TRANSPARENCY

Update 27: On September 14, 2011 the Eastern District Court, by Judge Henry Hudson, wrote a 9-page opinion accompanying an order dismissing the constitutional challenge to Va. Code Sec. 54.1-108(1) for lack of standing and lack of a triable federal due process controversy. The case has since been appealed to the U.S. Court of Appeals for the Fourth Circuit and the initial opening brief/ assignment of errors (reprinted below) was submitted on November 10, 2011. The standing question and due process question will be reviewed de novo ("as they were new," i.e. no deference given to the lower court). After my previous action was denied jurisdiction on the basis that it challenged the policy that no applicant can obtain their essays with reference only to my own exam, now the same court is concluding that a facial attack on the same policy and its foundational law cannot be brought by an aggrieved bar examinee either. Again, the merits of the case (consisting of an expert report, eyewitness testimony both in and outside Virginia relating to the same software symptoms observed, major move toward transparency nationwide given the transition to computer-based testing, and the existence of an actual remedy developed by the National Conference of Bar Examiners) have yet to be addressed.

My argument for reversal is fairly simple and straightforward. The injury to myself was clearly stated up front in the complaint, and it is ongoing. The injury to others is also ongoing, as the Attorney General has conceded that software system reboots and hands-on technical assistance at the saving stage are occurring at every exam. The district court simply mischaracterized the injury as mere software malfunctions that could be sorted out by the Virginia Supreme Court. On the contrary, the injury that I complain of is much more insidious and could only be heard by a federal court- the law in question takes away an applicant's right to present evidence vital to the Virginia Supreme Court in the exercise of its authority. Essentially, the policies of the Virginia Supreme Court and its Board work a "catch-22" for the applicants in violation of federal due process procedural protections accorded to U.S. citizens. Whatever the case law may have been in the 1970's and 80's the introduction of computer-based testing, and experiences of applicants at the saving stages, means Va. Code Sec. 54.1-108(1) denying applicants who have a software dispute from obtaining by FOIA their essays, is no longer proper and violates individual rights following the exam. Dr. Castell, the expert in this case, can testify that having such a policy in place violates a core IT systems principle. The only two other experts I have consulted concur.



IN THE
UNITED STATES COURT OF APPEALS
FOURTH CIRCUIT
2011-2012 TERM
No. 11-2115



JONATHAN BOLLS,
APPELLANT


v.


VIRGINIA BOARD OF BAR EXAMINERS,
APPELLEE




On appeal from the
United States District Court for the
Eastern District of Virginia



INITIAL BRIEF FOR THE APPELLANT



Jonathan B. Bolls
Pro-Se



ASSIGNMENTS OF ERROR

1. The district court erred in holding that Appellant lacked standing to bring a prima facie constitutional challenge to Va. Code §54.1-108(1) and its corresponding unwritten policy of the bar examiners that no applicant can obtain their essays.

2. The district court erred in finding that Appellant suffered no injury-in-fact and bears no personal stake in the outcome.

3. The district court erred by finding that the Due Process Clause of the Fourteenth Amendment of the Federal Constitution is not implicated by failing to address the ultimate issue of the case: what the means are of resolving software related disputes before the Virginia Supreme Court if a law and policy present an obstacle to applicants obtaining their essays in the first place.

4. The district court erred by ignoring the jurisdictional mandates of D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983), establishing jurisdiction over a prima facie constitutional challenge to a bar examiner policy brought by an aggrieved bar applicant.


OPINION BELOW

The opinion of the United States District Court for the Eastern District of Virginia
appears in its order of dismissal, Civ. No. 3:11CV427-HEH (September 14, 2011).

JURISDICTION
The United States Court of Appeals for the Fourth Circuit has jurisdiction to hear this appeal pursuant to 28 U.S.C. §1331, viz the due process clause of the Fourteenth Amendment of the Constitution of the United States.

PRELIMINARY STATEMENT

This case is a prima facie constitutional attack, given the recent transition to computer-based testing in Virginia, on Va. Code §54.1-108(1), denying applicants’ FOIA requests to obtain their test essays, and to the corresponding unwritten policy of the Board that no applicant can obtain their essays. Appellant’s previous case, Bolls v. Street, brought a constitutional challenge to just the Board’s policy that no applicant can obtain their essays coupled with a request for the release of his own essays. That case was dismissed as an as-applied challenge under Woodard v. Virginia Bd. of Bar Exmnrs., 598 F.2d 1345 (4th Cir. 1979). Because others continue to experience the same problems Appellant experienced with the software, and the fact that at least three computer forensic experts are in agreement that it violates a core IT systems principle to prevent applicants in a computer-based test from obtaining their essays, Appellant now brings a prima facie case against the policy and its foundational law.

The injuries to Appellant and a significant number of others that Appellant complains of are not, as the district would have it, merely software system malfunctions. Though these malfunctions are a seminal reason for a change in law and policy, the actual injury to Appellant and others similarly situated is quite different, and much more insidious. In Virginia a bar examinee has a right following the release of the results to bring a complaint to the Virginia Supreme Court, which has the power to reverse exam assessments under its inherent authority. See Order of the Fairfax Circuit Court, App. 3a. But this right is fatally handicapped when there exists an unwritten policy followed by the Board that no applicant can obtain their essays, which policy is rooted in Va. Code §108(1) denying Freedom of Information Act requests for the same. The injury that Appellant complains of is therefore an unreasonable hindrance to his and others’ access to the Virginia Supreme Court, namely the right to present necessary evidence to that court. The evidence in this case would prove, by expert and eyewitness testimony, that the Board is engaging in a pattern of improper activity in setting forth a sham remedy and applying the policy in question uniformly to applicants who experience a software system malfunction as described in Complt ¶28 and App. 9a-10a in Appellant’s affidavit. This policy of uniform application has been in existence since the 1970’s, long before the software system was introduced to all applicants in 2005. This activity is also going on while there exists an even longer standing law in Virginia that requires the Board to preserve an individual’s essays, presumably for any kind of dispute that should arise (see Va. Code §54.1-3929, reprinted App. 21a).

On standing, the injury to Appellant is both real and concrete, as borne out in the procedural history of his individual case, Bolls v. Street. Immediately after reaching an impasse with the Board with respect to obtaining his essays, he filed for an emergency court order in Fairfax Circuit Court to compel the release of the essays so that he could avail himself of his right to make an informed decision and particularize his complaint appropriately for the Virginia Supreme Court. That court, having found that the Board is not subject to review under the Virginia Administrative Process Act, directed Appellant to the Virginia Supreme Court. Appellant’s prayer for relief before the Virginia Supreme Court was two-fold: first, he sought to compel the release of the test essays, and then second, he sought an expedited second hearing “in the event that a claim is made.” Appellant informed the court as to what he and others experienced at the test site and that he had a leading computer forensics expert to back him up. Without hearing any of the evidence, the Virginia Supreme Court dismissed on the grounds that it cannot compel a discretionary decision on the part of the Board. App. 1a (Opinion of the Supreme Court of Virginia). He lost a career position (see Cmplt ¶10: “denied his license and lost a job in public service”) after experiencing a software system malfunction not the fault of his own (Complt. ¶10: described by a leading computer forensics expert as a “textbook case”) and then, once he requested to obtain his essays so that he could make an informed decision on how to proceed, he was denied his essays. The essays are patently sine qua non evidence in any bar exam software related dispute before the Virginia Supreme Court.

Appellant has informed the Board, and every former court that has denied jurisdiction, that his essay score on the 2008 Virginia Bar Exam is completely inaccurate- he has simply been prevented from making an informed decision and particularizing his complaint to the Virginia Supreme Court because his essays have been wrongfully witheld. Applicants do have a right, as the district court points out to “simply take the bar exam again” (Mem. Op. p. 8) but that court failed to address the fact that when such applicants take the exam again they will be subject to the same flawed law and policy that Appellant objects to on constitutional grounds. The district court’s opinion therefore acts to perpetuate the problem and does not square with the Fourth Circuit’s previous statement that “the rule is: once is enough” (see Richardson v. McFadden, infra). Appellant continues to have a right to have his first bar exam properly reviewed and resolved by the Virginia Supreme Court.

Since the Board is an agency of the Virginia Supreme Court and the Virginia Supreme Court bears ultimate responsibility for determining admission to the Virginia bar, this Court has concluded that for the purposes of reviewing a constitutional challenge to a bar examiner policy the federal court should conceptualize the Virginia Supreme Court and its Board as a single administrative agency. “[W]hen that court [Virginia Supreme Court] reviews or declines to review a decision of the bar examiners as to an individual examinee’s status, the court is acting as an administrative agency, rather than as a court of appeals. Therefore, we find it appropriate to determine whether or not [] allegations concerning the review procedures of the court and the Board make out a viable claim.” Rogers v. Supreme Court of Virginia, 772 F.2d 900 (4th Cir. 1985) (P4). Where an applicant experiences a system software malfunction at the test site and later observes that his/her essay score was surprisingly low, that applicant is currently prevented from obtaining their essays and directed to the Virginia Supreme Court. When the applicant seeks an order by the Virginia Supreme Court to compel the release of the essays prior to filing a complaint in that court, the Virginia Supreme Court rules, even before hearing the expert testimony, that it cannot mandamus a discretionary act on the part of the Board. App. 2a (Supreme Court of Virginia order of dismissal of Appellant’s individual case). This is a “catch-22” for these applicants; the Virginia Supreme Court bears just as much responsibility as the Board in maintaining a meaningless review mechanism with impossible obstacles to the individual complainant.

Virginia’s transition to computer-based testing has not taken place in a vacuum. Other state bars have faced similar difficulties as the evidence in this case shows. The vast majority of states have taken steps to ensure their applicants rights to the essays, Virginia being only one of seven (7) states that do not. App. 19a (note that Colorado has recently changed its policy to allow applicants such rights). In almost all the States, over 50% of the applicants now rely on the satisfactory performance of testing software. See Chart, App. 20a. Applicants to many other Virginia licensing boards and departments, such as the Virginia Board of Pharmacy for example, now rely on computer-based tests. Indeed, the change is also an international one as Appellant’s expert states: “The move towards computer-based testing is a major transition, as was identified and discussed at the 10th CAA International Computer Assisted Assessment Conference, July 4-5 2006, held at Loughborough University here at the UK.” Declaration of Stephen Castell PhD ¶29.

The instant case represents a constitutional challenge to both (i) Va. Code §54.1-108(1) and (ii) the Board’s unwritten policy that no applicant can obtain their essays. These are not one in the same but work in tandem, as the latter acts to circumvent the discretion of the former. Perhaps most illuminating is the Board’s initial argument before the Fairfax Circuit Court, stating as follows: “In its discretion, the Board does not provide copies of bar exam answers to any applicant, including petitioner.” (Mem. Opp. Mot. for Emerg. Inj. Relief, p.3 (emphasis in original). Appellant’s previous action in federal court, Bolls v. Street, was found to be a prohibited as-applied constitutional challenge to a bar examiner policy that no one can obtain their essays. The instant case is a prima facie constitutional challenge to the same policy and to Va. Code §54.1-108(1), its foundational underpinning. A comparison of the two complaints will bear out the difference.

STANDARD OF REVIEW
The standard of review for jurisdictional dismissal by the district court is de novo. “We review issues of justiciability pursuant to Article III de novo.” National Rifle Ass’n v. Magaw, 132 F.3d 272, 278 (6th Cir. 1997) (quoted with approval in Thomas Moore Law Center v. Barack Obama, 2011 FED App. 0168P (6th Cir.)). Issues of justiciability encompass dismissals based on 12(b)(1) subject matter jurisdiction and 12(b)(6) failure to state a claim. The Fourth Circuit reviews dismissals de novo for lack of subject matter jurisdiction or for failure to state a claim upon which relief can be granted. See Cavallo v. Star Enter., 100 F.3d 1150, 1153 (4th Cir. 1996); Tillman v. Resolution Trust Corp., 37 F.3d 1032, 1034 (4th Cir. 1994). In the case at bar, the district court dismissed under Rule 12(b)(1) and Rule 12(b)(6) based on its findings as to standing and due process respectively. Memorandum Opinion, page 9. Further, “the issue of standing presents a pure question of law, thus a trial court’s ruling on the issue is entitled to no deference on appeal.” C.J.S. Actions §102 (2009).

A district court dismissal for failure to state a claim is proper “only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). On this point, courts are held to a “beyond a reasonable doubt” standard. “[U]nless it appears beyond a reasonable doubt that the Appellant can prove no set of facts in support of his claim which would entitle him to relief” a court should not dismiss a complaint for failure to state a claim. Conley v. Gibson, 355 U.S. 41, 47 (1957).

ARGUMENT

I. THE DISTRICT COURT ERRED IN GRANTING A 12(B)(1) MOTION BASED ON LACK OF STANDING.

The “irreducible constitutional minimum of standing” contains three elements: “(1) an
injury in fact, meaning an injury that is concrete and particularized, and actual or imminent, (2) a causal connection between the injury and the causal conduct, and (3) a likelihood that the injury will be redressed by a favorable decision.” Granite State Outdoor Advertising Inc. v. City of Clearwater, 351 F.3d 1112, 1116 (11th Cir. 2003). In ruling on a motion to dismiss, this Court simply needs to examine Appellant’s allegations:

At the pleading stage, general factual allegations of injury resulting from defendant’s conduct may suffice, for on a motion to dismiss we “presume[e]that general allegations embrace those specific facts that are necessary to support the claim.”

Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (quoting Lujan v. Nat’l Wildlife Federation, 497 U.S. 871, 889 (1990). Thus, “mere allegations of injury” are sufficient to withstand a motion to dismiss based on lack of standing. Dep’t of Commerce v. U.S. House of Representatives, 525 U.S. 316, 329 (1999).

Appellant laid out his injury in ¶10 of the Complaint, entitled “Parties & Standing,” stating as follows: “[h]is essays were withheld from him, and his case never could be heard on its merits. He was denied his license and lost a job in public service.” As soon as he received his bar exam results, right away he contacted the Board and explained to them that the “essay segment of the exam” was “surprisingly deficient.” App. 13a (Appellant’s initial letter to the Board dated October 21, 2008). The rest of ¶10 details how he petitioned state and federal courts for over two years to release his essays, which are preserved by law , after he and others experienced a software system malfunction with identical symptoms to what was observed one year prior in New York where corruption of the essays was proven and properly remedied.

The injury to Appellant therefore consists of injury to his right to make an informed decision and, if necessary, present the evidence alongside his complaint to the Virginia Supreme Court. Va. Code §54.1-108(1) and the Board’s corresponding Policy of Nondisclosure effectively foreclosed any form of meaningful review by the Virginia Supreme Court because that court could not possibly act without the essays in question. As Appellant’s expert states in his declaration:

As an expert in many high-profile cases both in American federal courts and the English High Court on matters relating to information and communication technology, software, systems, and services, I cannot conceive how it would be possible to bring a claim relating to a software malfunction without discovery of the item in question. This leaves the question of what the means are of resolving such disputes.
Declaration of Stephen Castell PhD ¶32.

The district court simply misconstrues the alleged injury. Apparently focusing on what could possibly be known about the extent of damage as a result of the software malfunctions where the essays are not released, it characterizes the injury as speculative and hypothetical. Mem. Op,, p.6. The software malfunction, however, is not the injury Appellant seeks a federal court to redress. Once applicants who experience a software malfunction can obtain their essays, the Virginia Supreme Court can make such determinations on its own. Until the law and policy in question are removed as improper following a computer-based test, legitimate software disputes will become “unsolved mysteries.” The right to practice one’s chosen profession is a well-recognized liberty interest and cannot be taken away without certain due process protections in place. This Court has recognized that in Virginia, an applicant’s due process interests are satisfied by the Virginia Supreme Court’s inherent authority over bar admissions. The injury that Appellant complains of is simply the taking away of his (and others’) right to present the evidence vital to that court in the exercise of its authority. Essentially the injury is Va. Code §54.1-108(1) creating an impediment to an applicant’s right to present their complaint to the Virginia Supreme Court. “In order to work a violation of the right to access the courts, it is not necessary for a statute to produce a procedural hurdle which is absolutely impossible to surmount, only one which is significantly difficult.” C.J.S. Constitutional Law §2156 (2009). Without the essays, in any software dispute, it is utterly impossible to resolve the dispute.

To support its conclusion as to there being no injury, the district court ignores this Court’s precedent and reaches for an out-of-circuit precedent that poses a contrary view. On page 8 of the Memorandum Opinion, the district judge cites to Brewer v. Wegmann, 691 F.2d 216, 217 (5th Cir. 1982) which held that the unqualified right to retake the bar exam constitutes adequate due process protection. However, after considering the issue of reexamination and due process, the Fourth Circuit is clear that reexamination is not a more effective remedy than judicial review:

It is true that some courts have held that reexamination is a more effective remedy than review because the administrative burden of allowing challenges
was perceived to be too great. We are not persuaded . . . To our knowledge, a
person is not required by any state to repeatedly demonstrate his competence to
practice law. The rule is: once is enough. And the reason for the rule is that it takes work, effort, and nowadays money to prepare for a bar examination. Moreover, the license is deemed of sufficient value that delay in getting it is an injury.Richardson v. McFadden, 540 F.2d 744, 752 (4th Cir. 1976).

To require applicants who have a legitimate software dispute, some of whom have a career position on the line, to take the exam again six months later does nothing to correct the underlying fault in the review process that is supposed to be available to the applicants. Dr. Castell was prepared to testify that withholding essays following the mishaps described in Complaint ¶28 goes to the heart of a core IT systems development principle. Hence, where a fault is built into an exam or the examining procedures, reexamination will not correct the fault and suit is proper before a federal district court. See Castro v. Beecher, 334 F. Supp. 930 (D. Mass. 1971).

The district court erroneously concludes on page 6 of its Memorandum Opinion that Appellant has no personal stake in the matter. Because he “will suffer no actionable harm as a direct result of the challenged statute [Va. Code §54.1-108(1)] , he does not have a sufficient personal interest at stake to prosecute this action” (citing to City of Los Angeles v. Lyons, 461 U.S. 95 (1983)). Lyons brought suit to enjoin as unconstitutional the use of chokeholds by the LAPD in instances where the police were not threatened with death or serious bodily injury (alleged to be an official policy). The Lyons court concluded, “[a]bsent a sufficient likelihood that he will again be wronged in a similar way, Lyons is no more entitled to bring an injunction than any other citizen of LA; and a federal court may not entertain a claim by an or all citizens who no more than assert that certain practices of law enforcement officers are unconstitional.” Id. at 111. Appellant Jonathan Bolls is situated differently than Lyons because Mr. Bolls’ injury is ongoing; it is not complete. He never was heard by the Virginia Supreme Court because that court ruled as a matter of law, even before receiving the expert testimony, that it could not mandamus the essays (App. 1a). Putting the injury in its proper context as a denial of access to crucial evidence to bring a complaint, the injury to Appellant is therefore a continuing one. Secondly, as the district court points out, he has a right to retake the examination. He cannot take the examination, however, without being subject to the very same law and policy that he contends is compromising the integrity of the test. Unlike Lyons, where the likelihood of him being subject to another chokehold was found to be miniscule, Appellant most certainly does have a substantial personal interest in fixing the very process that he would again be subject to in order to practice his chosen profession in his home state.

II. THE DISTRICT COURT ERRED IN GRANTING A 12(B)(6) MOTION BASED ON ITS FINDING THERE IS NO VIABLE DUE PROCESS CLAIM.

In support of this finding, the district court relies on settled case law prior to the institution of computer-based testing for the bar exam. The 4th circuit authority it cites to on page 9 of its memorandum opinion, Rogers v. Supreme Court of Virginia, 772 F.2d 900 (4th Cir. 1985), is the same one that Appellant cites to in order to establish jurisdiction. But it is crucial for this Court to understand that the facts presented between this case and that one are fundamentally different. Rogers’ test was not administered on a software program; Rogers did not experience a software system malfunction requiring hands-on technical assistance and a system reboot while the essays were being saved; Rogers did not have an expert report concluding that the software symptoms observed are consistent with that of another jurisdiction where data loss and misgrading as a direct result were proven. Rogers also had an opportunity to at least review her essays in a previous failed exam- the review policy she challenged merely precluded applicants from having a second review on a following exam.

The purpose of Appellant citing to Rogers is two-fold. First, it is to show that when a Virginia bar examinee brings a complaint as to the constitutionality of a review policy, the district court does have jurisdiction under D.C. Court of Appeals v. Feldman [see Part III infra]. Rogers v. Supreme Court of Virginia, No. 84-1746, August 22, 1985 p.3. Second, it is to show that when this Court determines allegations regarding post examination review procedures for the bar, it does not consider the state supreme court an appellate court but rather an administrative agency. As such, the review procedures of the Virginia Supreme Court and its agency, the Board, are to be reviewed together to know if a viable due process claim exists. See page 4 of Rogers:

[W]e think that when that court [Virginia Supreme Court] reviews or declines to review a decision of the bar examiners as to an individual examinee’s status, the court is acting as an administrative agency, rather than as a court of appeals. Therefore, we find it appropriate to determine whether or not Rogers’ allegations concerning the review procedures of the court and the Board make out a viable claim.

The district court departs from applying this type of analysis by sidestepping the heart of the issue, which is how a software dispute could possibly be resolved if an applicant cannot obtain their essays before approaching the Virginia Supreme Court. Having overlooked this crucial point, the court simply directs such aggrieved applicants to the Virginia Supreme Court, where the procedural due process injury originates. See Memorandum Opinion, page 8: “Bar applicants who have been notified that they have failed the bar examination and who believe that it is attributable to a computer or software glitch have two available statutory options. They can either present their grievance to the Supreme Court of Virginia or, if decided adversely to them, petition the Supreme Court of the United States for certiorari.” This does not take into account the fact that the district court in Rogers was reversed for its similar line of reasoning. The review procedures of the state supreme court, and its board, are appropriately reviewed together by a federal court when challenged under due process, particularly procedural due process actions like the instant case. A contrary rule would simply undermine the 14th Amendment’s prohibition upon the States.

Certainly, this Court would not stand for the proposition that no due process challenges may be brought against a policy of the Virginia Board of Bar Examiners or law of the Virginia General Assembly. It is an established principle that the content of due process varies with each factual context. Hannah v. Larche, 363 U.S. 420 (1960). The recent major transition to computer-based testing in Virginia, and indeed throughout the country, is undoubtedly such a change that requires the courts to now reconsider the question of what rights applicants have to their essays in this new context. The expert report filed with the Complaint has been able to conclude, even absent a forensic analysis of Virginia’s software system, that the only way for an applicant who undergoes a software system malfunction as described in ¶28 of the Complaint to have the matter properly resolved is for that applicant, the “key creator of the data,” to obtain their essays. Declaration of Stephen Castell PhD ¶2, ¶31. This is also what is done in the vast majority of States. As it stands now in Virginia, any legal recourse such applicant has to the Virginia Supreme Court is meaningless unless they can obtain their essays. Paragraphs 9, 30 and 45 of the Complaint speak directly to this for Va. Code §54.1-108(1) and the Board’s Policy of Nondisclosure. See also ¶31 which states the fact that the Board has used its discretion to install Policy of Nondisclosure which is applied uniformly to all applicants, including those who experience the software problems described in ¶28. And see ¶36 which states that the USB saving mechanism in Virginia is identical to that used in New York where, as explained in ¶35 and ¶29 , data corruption and misgrading were proven.

Whether a remedy exists for a plaintiff alleging violation of constitutional rights is itself a question of federal law sufficient to confer federal jurisdiction. See Bell v. Hood, 327 U.S. 678, 683-85 (1946). The new realities of computer-based testing turn the case law that the district court relies on completely on its head. Before the software issues came into being, it was generally thought that the opportunity for reexamination provided an adequate means of exposing grading errors. Tyler v. Vickery, 517 F.2d 1089 (5th Cir. 1975), cert. denied, 426 U.S. 940 (1976); Whitfield v. Illinois Board of Law Examiners, 504 F.2d 474 (7th Cir. 1974). Thirty years after these decisions came down the computer-based test was introduced, raising a new question on what procedural safeguards are adequate to protect an individual’s rights should something go wrong during the test. The answer for the vast majority of the states is resoundingly clear: transparency. All except for seven allow failed applicants access to their essays (see charts, App. 19a-20a) (note that Colorado has recently made the transition to allow such access after this data was compiled). It is no wonder why the Board has dropped its initial argument before the Fairfax Circuit Court that such disclosure would compromise the integrity of the exam when such policies work just fine in other states, regardless of whether they have a built-in appeals process or not. The high court of every state still has the inherent authority over its bar admissions and essentially becomes a court of first impression if no other statutory procedure is in place.

A. Due Process Procedural Protections

In Virginia, as the Attorney General concedes, applicants are experiencing the software symptoms described in ¶28 of the Complaint at every exam. App. 42a ¶6. A law that prevents these applicants from obtaining their essays through FOIA, particularly when the applicants claim a significant discrepancy in their essay score, means that “the bar examiners may very well have a serious problem on their hands and not even know it” (Declaration of Stephen Castell PhD ¶30). Neither can the applicants prove it without their essays, effectively denying them the procedural right to which they are already entitled- to present their complaint to the Supreme Court of Virginia.

Bar examiners are subject to due process requirements in carrying out their duties, (Richardson v. McFadden, 540 F.2d 744 (4th Cir. 1976), on reh’g, 563 F.2d 1130 (4th Cir. 1977), and bar examination procedures are reviewable to ascertain whether there has been a due process infringement. The 2nd Circuit has held that the principal function of the due process clause is to ensure that state power is exercised only pursuant to procedures adequate to vindicate individual rights. In re Taylor, 567 F.2d 1183 (2nd Cir. 1977). Cf. Opinion of the Justices, 252 Ala. 351, 40 So.2d 849 (1949) (while due process of law does not guarantee any particular form, mode, or method of procedure, the fundamental principles inherent therein must be observed).

The law is clear that one of the fundamental principles inherent in due process is the right of a plaintiff to present evidence to court in support of the complaint. “A litigant’s right to present evidence in court is generally considered essential to due process.” C.J.S. Constitutional Law §1790 (2009). In a software dispute, the essays themselves happen to be the only evidence. Simply put, without them there is no complaint, i.e. sine qua non evidence. As Eric Zeni would testify, had his case been in Virginia his essay grade would not have been corrected. The Virginia Supreme Court would not likely accept a petition from a bar examinee without concrete evidence. It has already ruled in Appellant’s individual case, described by Dr. Castell as a “textbook case” of a software mishap (Declaration of Stephen Castell PhD ¶31), that it cannot mandamus a discretionary act on the part of the Board. App. 1a. This in no way addresses the fact that the Board has used its discretion to make a policy that no one, including those who experience software mishaps, can obtain their essays. The problem is thus a systemic one requiring federal court intervention to consider the new issues brought on by the computer-based test.

III THE DISTRICT COURT ERRED BY IGNORING THE JURISDICTIONAL MANDATES OF D.C. COURT OF APPEALS V. FELDMAN.

The district court erred by ignoring the jurisdictional mandates of D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983), establishing jurisdiction for a prima facie constitutional challenge to a bar examiner policy brought by an aggrieved bar applicant. Given the then-current state of confusion among the circuits over what jurisdiction a district has in this area, the U.S. Supreme Court drew a distinction between as-applied and facial challenges to a bar examiner policy:

The Court of Appeals for the 10th Circuit in Doe v. Pringle properly emphasized the distinction between general challenges to state bar admission rules and claims that a state court has unlawfully denied a particular applicant admission . . . United States district courts, therefore, have subject-matter jurisdiction over general challenges to state bar rules, promulgated by state courts in nonjudicial proceedings, which do not require review of a final state-court judgment in a particular case.”D.C. Court of Appeals v. Feldman, 103 S. Ct. at 1316-1317.

The Eastern District Court has since upheld under the principles of Feldman constitutional challenges to state bar rules that are applied uniformly to all applicants. See Clark v. Virginia Board of Bar Examiners, 861 F. Supp. 512, 519 (E.D. Va. 1994) (“It is now clear to the Court that, rather than attacking the Board’s treatment of Clark in particular, this case challenges the defendants’ right to enforce their rule of general application that all applicants must answer question 20(b) . . . under the principles of Feldman, it has jurisdiction over this case.”) . See also Rogers v. Supreme Court of Virginia, 772 F.2d 900 (4th Cir. 1985) (“the district court correctly decided it had jurisdiction, on the ground that Rogers was challenging the conduct of a non-judicial proceeding under District of Columbia Court of Appeals v. Feldman. . . Therefore, we find it appropriate to determine whether or not Rogers’ allegations concerning the review procedures of the court and the Board make out a viable claim.”). Similarly, in the instant case, the Board continues to enforce an unwritten policy of uniform application that no applicant can obtain their essays, which the expert testimony would show violates a sound IT systems principle in a computer-administered examination.

In citing to Schware v. Bd. of Bar Examiners of New Mexico, 353 U.S. 232 (1957) on page 7 of the Memorandum Opinion, the district court places an undue limitation on a federal court’s enforcement authority over due process and equal protection cases. Schware is essentially a character and fitness case, not a bar exam case, and the court quoted a portion of Schware that is appropriate for a character and fitness case to illustrate its point. Certainly the principles of due process would also be able to reach the bar exam, which is the most significant part of the bar admissions process.

A. The Courts have a duty to open, rather than close, the door to the courthouse where a denial of standing would pose an impenetrable barrier to any judicial scrutiny of legislative action.

There is nothing paradoxical about a bar exam applicant who experienced the software system reboots described in ¶28 by himself and a significant number of others to eventually seek to change an improper policy that denied him and others meaningful review. The Supreme Court of Virginia is the proper forum for these disputes but it is utterly impossible for a litigant to bring a software dispute before the Virginia Supreme Court if he cannot first investigate, make an informed decision, and particularize the evidence in the complaint. This goes to the very core of the integrity of the grading process and a sense of fairness in the American judicial system. The Supreme Court of Alaska, for example, has properly characterized the Alaska bar examiner board’s process requiring applicants to prove error without a device to locate the error as a “logical hiatus.” Application of Peterson, 459 P.2d at 709 (Alaska 1969).

It is patently false for the Attorney General to assert that the Board is offering a remedy for those who experience the problems described in ¶28 of the Complaint. As Dr. Castell, a leading computer forensics and computer law expert of over forty years experience, states in his preliminary report filed with this Court:

To the extent that the board seeks to “review the version on [the applicant’s] computer against the one graded,” this can only merely confirm that the file was written by [the applicant] using the Exam4 software. In no way does this pose a remedy to, or even a sensible investigation of, any potential corruption problem caused by the Exam4 software itself, or through other (temporary or permanent) system fault, for which [the applicant] could not have been
responsible.Declaration of Stephen Castell PhD ¶20.

This is significant: if there is any omission, alteration, corruption or other fault or deficiency in or of data when the Exam4 program records data during the first step of saving the essays onto the laptop, then the data on the USB will be nothing more than a duplicate of such (already) deficient, faulty, or corrupted essay data.Id. ¶19.

The only remedy that does exist is not being employed presumably because it requires cooperation with the applicant. Following the software mishaps of New York’s July 2007 exam, the National Conference of Bar Examiners developed an alternative grading methodology detailed in a press release sent out by the New York Board of Law Examiners on Nov. 15, 2007 (reprinted top of App. 24a ). Eric Zeni, an attorney in New York whose software had to be rebooted in the middle of the essay exam in July 2007, has agreed to testify to the authenticity of the above referenced press release and to how the alternative grading methodology helped protect his license from being unfairly denied only once he was able to obtain his essays as of right. Dr. Castell has described this remedy as an “obvious and sensible remedy” which could work if “there were in Virginia to be the reasonable, and technically sound, policy in place for applicants to obtain and inspect their essays . . .” Id. ¶38.

If Appellant does not have standing to challenge this law and policy, then that leaves the question of who would have such standing. Where “a denial of standing would pose, in effect, an impenetrable barrier to any judicial scrutiny of legislative action, the court’s duty is to open, rather than close, the door to the courthouse.” C.J.S. Actions §112 (2009). The fact that Appellant’s software malfunctioned at the saving stage of both morning and afternoon sessions of the test, requiring hands-on technical assistance which was to no avail, and finally a system reboot is a “textbook case” of a software malfunction and “very real cause for concern.” Declaration of Stephen Castell PhD ¶31 and ¶22. See also Appellant’s affidavit in App. 9a-10a. These problems also affected a significant number of others (App. 10a ¶9) and the Attorney General has conceded that the software reboots are occurring at every exam (App. 42a ¶6). There is significant evidence and expertise brought to this case, including expert testimony, eyewitness testimony, and research on other state bar exam policies and computer-based tests. Further evidence relating to the Engineers’ Notes of the technicians at the Virginia Bar exams could be obtained on discovery to corroborate Appellant’s observations that the software problems are localized to the saving stage of the exams, an indication of a systemic problem. In light of all the ongoing problems associated with software administered testing, post examination review mechanism of the Virginia Supreme Court and its Board must be reviewed by a federal court. Ignoring these observations, or downplaying them, is to trifle with individual rights. If this Court affirms such denials of standing to the only individuals who possibly would have standing then this Court is being too overly restrictive of its judicial role.

Previously in Bolls v. Street, Appellant brought a challenge to the policy that no applicant can obtain their essays coupled with a request for his own essays to be released. This was found to be an as-applied challenge to a bar examiner policy, which is prohibited under Feldman, supra. In this case there is no request whatsoever that Appellant Jonathan Bolls’ essays be released. Additionally, the case seeks not just to bring a prima facie challenge to the Board’s policy but to its foundational underpinning, Va. Code §54.1-108(1). The allegations borne out in the Complaint clearly establish a solid case for a prima facie challenge as they refer to software problems that affected a substantial number of others in Virginia, evidence consisting of eyewitness and expert testimony on the propriety of the law and policy in question, research compiled on what the policies are of the other States, and the existence of an efficient, thorough, and nationwide remedy developed by the National Conference of Bar Examiners for such situations (see Complaint ¶35). The procedural history of Appellant’s individual case is instructive to this Court as one case in point.

The novel issues raised by computer-administered testing, and the evidence of the instant case, are compelling reasons for the court to hear this case, notwithstanding previous case law on the subject that took place before these issues were even a consideration.

CONCLUSION

In sum, the district court characterized the injury-in-fact incorrectly. Appellant had to bring this case to a federal court because the policies of the Board and the Virginia Supreme Court were effectively denying individuals their right to bring evidence in support of their complaints, thereby preventing them from accessing needed evidence for their complaints. See Complaint ¶10 detailing his own particular injury (“His essays were withheld from him, and his case never could be heard on its merits. He was denied his license and lost a job in public service.”). Without considering the novel issues raised with respect to the computer-based testing, without squaring the opinion with the content of the expert’s report, and without addressing the overwhelming trend among all the state bars toward openness and transparency, the district court concludes that due process is satisfied by the recourse applicants have to the Virginia Supreme Court. In so concluding, it fails to address ¶¶6, 9, 30, 31, 36, and 45 of the Complaint and relies on settled case law from the 70’s and 80’s, well before the software issues were even a consideration. The heart of this matter is that the applicants’ right to petition the Virginia Supreme Court under its inherent authority is vitiated because the evidence necessary to substantiate such a complaint is being withheld by the law and policy in question. An applicant such as Eric Zeni in New York would not be able to have his grade corrected in Virginia.

The standing question is linked with the due process question. Having found that there is no due process interest at issue with the law and policy in question, the court concludes that there is therefore no injury-in-fact and no standing. Had the court concluded, as it should have, that due process procedural protections were fairly implicated, then “the law is clear that injuries to common law, constitutional, and statutory rights are sufficient for standing.” Whether a remedy exists for a plaintiff alleging constitutional rights is itself a question of federal law sufficient to confer federal jurisdiction. See Bell v. Hood, 327 U.S. 678, 683-85 (1946). Had the district court understood the injury in its proper context, this controversy would have been heard on its merits and Appellant would be able to proceed with the prima facie case to vindicate his rights and the rights of all future applicants to the Virginia bar.

This issue is ripe for review as there is no precedent on what constitutes procedural due process protections in the context of a software malfunction. The parameters of due process must keep up with a rapidly changing society, and technology clearly represents a driving force for such as change. Va. Code §54.1-108(1) was enacted into law at a time when the General Assembly could not have foreseen the vast implications of computer software performance on society as a whole, let alone on individual rights as we see today. As the Supreme Court states, “ ‘Due Process’ is, perhaps, the least frozen concept of our law- the least confined to history and most absorptive of powerful social standards of a progressive society.” Griffin v. Illinois, 351 U.S. 12 (1956). The law that prevents FOIA requests and a corresponding policy that no applicant can obtain their essays has been generally upheld in the past, however, the advent of computer-based testing demands that courts take a second look. The evidence shows that applicants in other parts of the country that are allowed to obtain their essays have indeed proven that the same software symptoms observed at the Virginia Bar Exam have led to corruption of their essays, and misgrading as a result. Furthermore, a workable remedy does exist that requires cooperation with the applicants.

Appellant’s personal stake in the outcome should have been readily apparent. The injury to his due process rights is still ongoing as the evidence necessary to a proper review of his case continues to be held in secret pursuant to an improper policy following a computer-administered exam. He furthermore has a vested interest in fixing a bar admissions process that he has a standing right to undergo again in order to practice his chosen profession, in his home state.


Respectfully Submitted,

Jonathan Bolls
Appellant Pro-Se

November 10, 2011

VIRGINIA BAR EXAM: LACK OF TRANSPARENCY

Update: There are a couple of documents that I will hold onto and release at a later date as appropriate. On August 23, 2011 I filed a memorandum of law (reprinted below) opposing the Attorney General's motion to dismiss this complaint that challenges Va. Code Section 54.1-108(1), which denies FOIA requests for license examination papers. This action also challenges the Board's policy that no one can obtain copies of their test papers following the administration of a computer based bar exam. This policy also undermines Va. Code Section 54.1-3929 which requires the Board to preserve the essays for one year after the exam. The Attorney General is arguing res judicata, that is to say, the constitutional issues raised were already decided in previous litigation, and that the instant action is the same as what was previously filed in this court (U.S. District Court for the Eastern District of Virginia). Both of these arguments are disingenuous for the following reasons.

First, nowhere in the present complaint is there an allegation relating to Plaintiff's individual case (as there was prior) and nowhere in the request for relief is Plaintiff requesting the release of his test essays or any kind of individual relief whatsoever. The relief requested is merely to assist all future Virginia bar examinees by striking down a Virginia law that denies FOIA requests for examinees who have a legitimate reason to obtain their essays and protect their interests. This is what the vast majority of the country is already doing given the recent transition to computer-administered testing. The Eastern District Court quickly dismissed the last action without reaching the merits simply because of the individual relief component. Now that this jurisdictional defect has been removed, the requirements for jurisdiction are fully satisfied and the court may now try the case. The Fourth Circuit case law is very clear that a general constitutional policy challenge and an individual as-applied constitutional challenge are two very different things.

Second, the Attorney General exaggerates the review afforded in previous litigation before the Virginia Supreme Court and the Eastern District Court. The Virginia Supreme Court held that as a matter of law it was powerless to compel the release of the test essays, which is in the discretion of the Board, one of its agencies. The dismissal was rendered immediately, without addressing the merits or hearing the expert or eyewitness testimony. Likewise, the Eastern District Court's opinion was made prior to reaching the merits and is very narrow only to effect dismissal. The Eastern District Court held that the individual relief component prevented it from reviewing the matter. Neither the Virginia Supreme Court nor the Eastern District Court state in their opinions that the constitutional matters were addressed. Therefore, the constitutional issues now before the Eastern District Court are as yet undetermined and the court is free to address them.

The evidence in the case is based on eyewitness testimony as to the significant number of Virginia bar examinees requiring hands-on technical assistance and system reboots, symptoms that are particularly localized to one stage of the examination: the crucial saving stage. The AG has admitted to this occurrence in chambers and that this is happening "at every exam." A leading computer forensics expert will testify that the localization of these symptoms to the saving stage indicates a systemic problem and there is no way to rule out corruption of the essays without including the applicant in the process, which comports with a sound IT systems principle. He will also testify that it is misleading for the Board to claim it is offering a remedy by simply comparing the encrypted codes of the essays, which is an exact duplicate of potentially corrupted data. Eric Zeni, an applicant in New York who experienced a need for a reboot during his test in New York, is also willing to testify that the New York Board was at first dismissive of his concerns but he was able to obtain his essays as of right and thereafter was able to prove that the grader was evaluating partially corrupted material. He was immediately sworn in. Mr. Zeni will also authenticate a press release from the New York Board of Law Examiners that confirms that a significant number of software problems and reboots were experienced at the saving stage of the New York exam in 2007 and, consequently, almost 50 essay tests were misscored as a direct result. The evidence also includes research to show that almost all states administer a computer-based bar exam, of which almost all have over 50% taking it on their board's software (Virginia: currently 83% and rising). Furthermore, there are 44 jurisdictions (with the recent addition of Colorado) that have policies in place to allow these applicants rights to the essays following the exam.

Discovery will be necessary to obtain the Engineers' Notes of the technicians on standby who are required to record each and every computer they give hands-on technical assistance at the saving stage of the test.

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

Civil Action No. 3:11cv427

JONATHAN BOLLS,

Plaintiff,

v.

VIRGINIA BOARD OF BAR EXAMINERS,

Defendant.


Plaintiff’s Memorandum of Law Opposing Defendant’s Motion to Dismiss

NOW COMES Plaintiff, Jonathan Bolls, pro se, in opposition to the Motion to Dismiss states as follows:

Introduction
As the nation relies more and more on computer-based testing, one of our western states, the state of Colorado, is the most recent state to afford bar exam applicants rights to the essays following the administration of the bar exam. They are the 44th state to do so. The action before this Court represents a prima facie constitutional challenge to Section 1 of Va. Code §54.1-108 that contains a clause that exempts examination papers from the disclosure provisions of the Virginia Freedom of Information Act (§2.2-3700 et seq.). Because of the far reaching effects of Va. Code §54.1-108(1) the instant case necessarily affects the rights of applicants for other licensing agencies in Virginia who are subject to computer-based testing, not exclusively bar applicants. It further seeks declaratory and injunctive relief with respect to the Board’s unwritten policy, applied uniformly, that no applicant can obtain their essay answers.

Plaintiff’s previous litigation includes a suit in state court wherein he sought individual relief only in the form of an order releasing test essays following a software system malfunction that affected himself and a substantial number of other applicants at the test site (see Petitioner’s sworn affidavit, App. 9a-10a). As a court of first impression and without reaching the merits, the Virginia Supreme Court ruled as a matter of law that it cannot compel the release of the essays because the underlying decision of the Board on whether to release them is discretionary. See App. 1a.

This is the crux of the due process dilemma faced by Virginia bar examinees. The Attorney General argues that the proper procedure for an applicant who experiences a software crash, on software approved and provided for by the Board, is to appeal without their essays to the Virginia Supreme Court. This rationale fails for two reasons. First, it does not take into account the fact that the Board has effectively circumvented its discretionary authority by making a rule that no one can obtain their essays. See Footnote 2 in Fairfax Circuit Court opinion by Judge Leslie Alden (“this Court does not reach the issue of whether the Board has abused its discretion by adopting a policy to never release bar exam answers to applicants.”). Secondly, there are no guidelines or criteria available to the public by which the Board must follow in making such a case-by-case determination, if in fact such guidelines even exist. Such would be necessary in any fair litigation on appeal before the Virginia Supreme Court not just to assess whether there was an abuse of discretion in a particular case but whether the guidelines or criteria themselves have a solid foundation in science given the landmark transition to and high reliance placed upon computer-based testing in Virginia. Such a systemic problem requires a remedy.

Plaintiff is certainly not the only one who had the experiences described in ¶28 of the Complaint while saving his essays, a fact that the Board does not dispute. To the extent that Defendant’s motion leaves the impression that the Board re-evaluated Plaintiff’s essays/ short answers after Plaintiff raised his concerns, Plaintiff emphasizes that any such routine re-evaluations were conducted before the results were released and before Plaintiff raised his concerns. Incredibly, no investigation took place. One is furthermore left to conclude, based on the following statement, that other applicants similarly situated (who experienced the software problems including hands-on technical assistance and system reboots described in ¶28) are all left without a remedy. See Deft. Mot. Dism., p. 18 n. 8 (“[Plaintiff] cannot allege that he has been treated differently than others in the same circumstances”). Previously, the Attorney General’s office has also conceded in chambers that the system reboots and need for hands-on technical assistance during the saving stage of the Virginia Bar Exam are, in fact, occurring “at every exam.” See App. 42a ¶6.

The case at bar constitutes the first cause of action filed by Plaintiff where the jurisdictional bar has been completely removed. Plaintiff’s previous action before this Court (Bolls v. Street, 2010 U.S. Dist. LEXIS 133047 (E.D. Va. Dec. 15, 2010) was a constitutional challenge to the Board’s policies coupled with a request for individual relief. It was found to be nonjusticiable because of the individual relief component and not because the issues were already adjudicated at the state court level. See Prayer for Relief, Deft. Ex. 4. In the complaint in the instant case, this Court will notice that there is no longer a request for individual relief at all whatsoever. Plaintiff is merely acting in the capacity of a concerned citizen of Virginia who is willing to prove that a state law and a corresponding state agency policy are outmoded and technically improper given the recent transition to computer-based testing in Virginia; and they run afoul of the due process clause of the Federal Constitution.

This case can be proven by obtaining a few limited items on discovery. First, Plaintiff is informed by his expert witness that the IT technicians on standby at the Virginia Bar Exam would have “engineers’ notes” recording every computer they put their hands on. Contemporaneous performance and error log reports would be able to confirm the observations that applicants are making following the Virginia Bar Exam. This information can be interpreted by Dr. Castell, the Plaintiff’s expert witness who has over forty years experience in the field of computer forensics. The volume of assistance required, particularly at the saving stage of the test, would be documented by technician notes and staff notes. Staff of the Board are also responsible for matching technicians with individuals who require assistance, and they are witnesses to the high volume of reported problems at the saving stage. Records of written complaints regarding the software performance and any follow-up investigations (or lack thereof) would be relevant and helpful to the Court. Eric Zeni, an eyewitness who experienced a similar software problem in New York’s bar in 2007, is familiar with this case and is willing to testify in reference to how he and others were able to obtain their essays and prove that the graders were assessing incomplete material. Mr. Zeni can also authenticate the press release of the New York Board of Law Examiners, admitting to the software problems, included in App. 23a-24a.

That there is a liberty interest at stake in having proper procedures following a bar exam dispute is beyond question. See Rogers v. Supreme Court of Virginia, 772 F.2d 900 (4th Cir. 1985) (“we find it appropriate to determine whether or not Rogers’ allegations concerning the review procedures of the court and the Board make out a viable claim”). The circuits that have addressed the issue are in agreement that aside from fraud and coercion, probative facts that point to manifest unfairness and other serious grounds or circumstances warrant federal court review. See Chaney v. State Bar of California, 386 F.2d 962, 967 (9th Cir. 1967); Feldman v. State Bd. of Bar Exmnrs., 438 F.2d 699, 704 (8th Cir. 1971); Whitfield v. Illinois Bd. of Law Exmnrs., 504 F.2d 474, 478 (7th Cir. 1974); Cf. Scinto v. Stamm, 224 Conn. 524, 620 A. 2d 99 (1993) (“evidence that the grading system is not effective in revealing grading errors or that it inadequately guards against the risk, if any, of an erroneous deprivation of an applicant’s interest”). Without this rule there would be no remedy for when a state, whether it is for purposes of administrative convenience or any other reason, employs policies that violate due process.

The matter is ripe for review as the technology involved presents a novel issue and extensive research has uncovered no precedent for rights to the essays in the context of a software mishap.

ARGUMENT

I. The Declaratory Judgment Act (28 U.S.C. §2201) has no prerequisite for class certification for bringing suit in federal court against a state law and a policy of the state board of bar examiners.

The Declaratory Judgment Act offers a unique mechanism by which advocates may seek
to remedy ongoing violations of statutory or constitutional provisions. 28 U.S.C. §2201 and §2202 (courts’ authority to grant broad relief). The Act may authorize broad, classwide declaratory and injunctive relief without resort to class action procedures. See Gary Smith & Nu Usaha, Dusting Off the Declaratory Judgment Act: A Broad Remedy for Classwide Violations of Federal Law, 32 Clearinghouse Review 112 (July-Aug. 1998).

A number of courts have upheld the issuance, under the Declaratory Judgment Act, of
broad injunctive relief directed against a defendant government agency or official to remedy an ongoing violation of federal law even in the absence of a certified class. See, e.g. Evans v. Harnett County Bd. of Educ., 684 F.2d 304, 306(4th Cir. 1982); Sandford v. R.C. Coleman Realty, 573 F.2d 173, 178 (4th Cir. 1978). Over the years legal aid advocates have successfully obtained broad relief under the Declaratory Judgment Act for their clients in cases involving civil rights, public benefits, social security, health care, housing, and labor issues. See, e.g., Harmon v. Thornburgh, 878 F.2d 484, 491-494 (D.C. Cir. 1989)(constitutional challenge to random drug tests of federal employees); Gallinot, 657 F.2d at 1019 (constitutional challenge to state mental health involuntary commitment procedures); Burrell v. Norton, 381 F.Supp. 339, 340 (D. Conn. 1974)(granting declaratory relief to individual plaintiff challenging constitutionality of certain state eligibility standards for emergency assistance welfare payments). The remedies afforded by the Act are particularly suited for attacking and correcting illegal policies, practices, and rules that harm large numbers of persons. There is no doubt that there are a significant number of applicants to the Virginia bar who are continuously being denied their due process rights following the Virginia bar exam. However, this issue transcends the Board of Bar Examiners to include all other state licensing agencies that rely on computer-based testing. Plaintiff is therefore seeking review of Va. Code §54.1-108(1) and relief under the Declaratory Judgment Act on behalf of all applicants for state professional licenses. In the computer-based testing environment, where there have been complaints relating to symptoms associated with data loss in other jurisdictions, the Board of Bar Examiners’ policy that no applicant can obtain their essays likewise must fall.

Historically, plaintiffs have brought general challenges to board of bar examiners’ policies in federal district court without the need for class action. This Court need look no further than its own 1994 ruling in Clark, where an applicant to the Virginia bar refused to answer question 20(b), relating to mental health treatment, and was subsequently denied admission. Clark v. Virginia Bd. of Bar Exmnrs., 861 F. Supp. 512, 519 (E.D. Va. 1994). She brought suit under the Americans with Disabilities Act challenging the Board’s right to ask question 20(b) in this Court, and this Court ultimately found that the Board’s requirement was indeed a “rule of general application” and under the principles of the landmark U.S. Supreme Court case D.C. Court of Appeals v. Feldman, 460 U.S. 462, it had jurisdiction. Finding violation of the ADA, this Court ordered question 20(b) struck from all applications.

There are plenty of examples of actual policies of the Board of Bar Examiners being challenged under the jurisdiction of federal district court. The Fourth Circuit has dealt specifically with a due process claim relating to the Board of Bar Examiners, overturning this Court in Rogers, stating “we find it appropriate to determine whether or not Rogers’ allegations concerning the review procedures of the court and the Board make out a viable claim.” Rogers v. Supreme Court of Virginia, 772 F.2d 900 (4th Cir. 1985). See also Goldfarb v. Supreme Court of Virginia, 766 F.2d 859 (4th Cir. 1985) (rational basis test applied to rule admitting only out-of-state attorneys to the bar without examination who intend to practice full time in Virginia) and Brown v. Supreme Court of Virginia, 359 F. Supp. 549 (1973) (in using rational basis test the court examines the rules of other states and compares them). Cf. Huffman v. Montana Supreme Court, 372 F. Supp. 1175 (1974) (rational basis test applied to the diploma privilege policy) and Goldsmith v. Pringle, 399 F. Supp. 620 (D. Colo. 1975) (rational basis test applied to a reciprocity rule). These decisions came down in the 70’s and 80’s, resolving many of the controversies at the time. However, extensive research has uncovered no precedent for the computer software and due process issues raised today, which makes this issue ripe for review.

II. The expert report filed in this case links the software symptoms that are occurring during the saving stage of the Virginia Bar Exam with documented data loss in another jurisdiction.

The Attorney General’s office has conceded that hands-on technical assistance and
software system reboots are a recurring problem “at every exam.” App. 42a ¶6. This admission corroborates Plaintiff’s own observations and experience as laid out in his sworn affidavit, reprinted in App. 9a-10a. Common sense would dictate that any request to obtain essay answers, particularly by any of the applicants who personally experienced these problems, should be honored. This is even more true when the General Assembly has a longstanding regulation that is over fifty years older than Va. Code §54.1-108(1) that assures that the essay papers specifically must be preserved for one year. See Va. Code §54.1-3929, reprinted in App. 21a. The evidence of this case will prove that the Board is ignoring the legitimate concerns of its examinees as to misgrading of the essays following a recurring problem in its test taking software.

Dr. Castell does a good job of explaining why it is the prevailing scientific opinion that applicants who take computer-administered essay exams have rights to obtain their essays following the exam. He is well familiar with this case having conducted an extensive interview with Plaintiff and examining the documentation regarding the observations of the software during the saving stage of the Virginia Bar Exam, the documentation of New York’s bar exam software system malfunction in 2007, and a new remedy developed by the National Conference of Bar Examiners specifically tailored to software system malfunctions. In his declaration filed in support of the Complaint, he expresses concern with the policy that prevents applicants in the computer-based test from obtaining their essays. In ¶31 he states as follows:

“In my view and experience the nature of computer-based testing systems is that there will inevitably be instances where cooperation with the applicant, the key creator of the critical data involved, is necessary, if not vital: Mr. Bolls may be said to be a ‘textbook case.’ It is as important also to remember that Mr. Bolls was not the only one affected, and his case may prove helpful in improving the accuracy, integrity and reliability of systems if, like Eric Zeni, corruption of the essay responses is discovered.”

The software system reboots and hands-on technical assistance as described in ¶28 of the Complaint are occurring only at the end of the test (morning and afternoon sessions), which indicates a systemic problem. See Declaration of Dr. Castell ¶18 (“The fact that others experienced similar problems at the same time suggests a systemic problem”). This is happening at a crucial stage of the test, which is when the essay data is saved for the grading. Plaintiff can testify that a substantial number of applicants had this experience in July 2008 and that a full team of technicians on standby were overwhelmed in both the morning and afternoon sessions of the test. By the Attorney General’s own admission, this is a recurring problem “at every exam.” See App. 42a ¶6

The law and policy preventing applicants from obtaining their essays is no longer proper because they do not take into account the new technical and scientific issues at play. In ¶38 he states that a “technically sound” policy of disclosing the essays following a computer-based test would then allow applicants to avail themselves of a remedy already in existence in other jurisdictions. In ¶35 he states:

“I am therefore concerned and surprised that the board has not allowed [Plaintiff] to obtain his essays to determine if what was graded was exactly what he wrote. It seems clear that his experience and observations at the exam are consistent with the same symptoms associated with data corruption in other jurisdictions.”

A committee member of the British Computer Society’s Law Specialist Group, Dr. Castell explains in ¶32 the systemic flaw from a legal standpoint as well:

“As an expert witness in many high-profile cases both in American federal courts and the English High Court on matters relating to information and communication technology, software, systems and services, I cannot conceive how it would be possible to bring a claim relating to a software malfunction without discovery of the item in question. This leaves the question of what the means are of resolving such disputes.”

Plaintiff urges this Court to consider how the advent of computer-based testing represents the kind of changed circumstances of a progressive society that occasionally require federal courts to re-examine state laws and policies to ensure they comport with the due process rights of the individual. Justice Frankfurter in Griffin v. Illinois states, “‘due process’ is, perhaps, the least frozen concept of our law- the least confined to history and most absorptive of powerful social standards of a progressive society.” 351 U.S. 12 (1956). Va. Code §54.1-108(1) has been the foundational underpinning for policies such as Policy of Nondisclosure that are no longer appropriate in the computer-based testing environment as tested by any scientific standard.


III. Stopping Bar Applicants in a Computer-Based Essay Test From Obtaining Their Essays Acts to Foreclose the Only Available Remedy That Does Exist.

The National Conference of Bar Examiners has developed an efficient, thorough,
and nationwide remedy for when a software dispute arises. See Nov. 15, 2007 press release of the New York Board of Law Examiners, App. 24a (top). In order for it to be possible, however, to apply this methodology an applicant with a software dispute must first obtain his/her essays. Such a policy that affords applicants rights to the essays following a bar exam is the choice policy for 43 jurisdictions (now 44 with the recent addition of Colorado). See Charts 19a-20a showing the policies of transparency of the various States and the marked increase in high reliance placed on the software. This remedy has successfully been used to overturn the results of many applicants in New York. New Jersey and Kentucky have openly admitted to having had software problems of their own. Instead of recognizing the problem, and thereby allowing this remedy to take effect, the Board has stubbornly ignored the issue altogether. In doing so, they simply cite to an unwritten policy that no applicant can obtain their essays and to Va. Code §54.1-108(1) as their authority. See Deft. Mot. Dism., p. 10 (top).

Instead, what the Board does do is disappointing and very misleading. Their offer to compare the encrypted code saved on archive with the one saved on the individual’s laptop has been characterized by the Attorney General as their remedy. This is no remedy at all, as Dr. Castell pointedly asserts in ¶¶19-20 of his Declaration:

“This is significant: if there is any omission, alteration, corruption or other fault or deficiency in or of data when the Exam4 program records data during the first step of saving essays onto the laptop, then the data on the USB will be nothing
more than a duplicate of such (already) deficient, faulty or corrupted essay data.
To the extent that the board seeks to ‘review the version on his computer against
the one graded,’ this can only merely confirm that the file was written by
[the applicant] using the Exam4 software. In no way does it pose a remedy to, or
even a sensible investigation of, any potential corruption problem caused by the
exam4 software itself, or through other (temporary or permanent) system fault,
for which [the applicant] could not have been responsible.”

The Board, for reasons yet undisclosed, persists in following a policy that no longer makes sense despite their knowledge as to the software issues experienced in other jurisdictions, the contents of Dr. Castell’s expert report, and the fact that “the need for a reboot in such circumstances” [circumstances that affect a substantial number at every test, as described in ¶28 of the Complaint] is a “very real cause for concern.” Declaration of Stephen Castell PhD ¶22. Plaintiff has gone to the length of acquiring an expert witness who is willing to testify to this Court on the technical issues involved in computer testing.

Dr. Castell’s opinion has as its foundation the sound IT systems development principle that the only way to check that a computer program is operating correctly is to test it. And actual live operation is as much a test as any other, the cornerstone of which is that you check the actual computer system outputs against the expected correct outputs. It follows that someone with the knowledge of what the output should be must be able to audit what the computer program has produced or recorded as its output.

It should not go without mention that the Board has not asserted a scientific basis in defending its policy; neither have they brought forward an expert witness.

IV. The Rooker-Feldman Doctrine should not be invoked because there is no state court decision under review.

The Rooker-Feldman Doctrine precludes federal district courts from reviewing state court judgments, an authority vested exclusively in the U.S. Supreme court pursuant to 28 U.S.C. §1257. The Supreme Court of Virginia’s ruling in Plaintiff’s individual case is extremely limited (App. 1a). It holds merely that mandamus does not lie to compel the performance of a discretionary act. By no means did the court reach the technical issues involved. Pet. for Reh’g, App. 7a ¶10 (“Petitioner has an expert witness on computer data loss and retrieval. By not hearing Petitioner, the Court will be depriving itself of the benefit of hearing this important evidence.”). In effect, there was no adjudication because of the state court’s deference to the Board’s discretion.

The Fourth Circuit, in Adkins v. Rumsfeld, cited by the Attorney General, explains that “the test is not whether the relief sought in the federal suit ‘would certainly upset’ the enforcement of a state court decree, but rather whether the relief would ‘reverse or modify’ the state court decree.” 464 F.3d 456, 464 (4th Cir. 2006). A federal declaration that the Board’s Policy of Nondisclosure and Va. Code §54.1-108(1) are unconstitutional in light of the fact that 83% of Virginia bar applicants rely on the functionality of the testing software certainly would not reverse or modify the Virginia Supreme Court’s opinion on discretion, a matter of state law. The constitutional issues raised were not decided by the Virginia Supreme Court. Further, under the Supremacy Clause, federal law overrides state law whenever there is conflict between the two. See Griffin v. Illinois, 351 U.S. 12 (1956). The due process issues raised by Plaintiff fit squarely within the jurisdiction of this Court. Indeed, a contrary holding would mean that the Fourteenth Amendment’s prohibitions to the States is of no avail. Chicago B&Q R.R. v. Chicago, 166 U.S. 226 (1897).

None of the four factors as laid out by the Court in Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (2005), have been met. The first factor is that the federal court plaintiff lost in state court. Plaintiff did not lose at the Supreme Court of Virginia; the court did not reach any of the questions because of its opinion on discretion and mandamus. The court dismissed without requiring Defendant to answer and without hearing the expert witness. Such a ruling is not unlike a dismissal for lack of standing where there is no adjudication on the merits. The second factor is that plaintiff must complain of injuries caused by a state court judgment. Plaintiff is not complaining to this Court about the Virginia Supreme Court’s ruling. The third factor is that the plaintiff must invite review and rejection of that judgment. Plaintiff is doing neither.

The fourth factor is that the state court judgment must be rendered before the federal court proceeding began. It was not established at the Virginia Supreme Court level that the unwritten Policy of Nondisclosure was even in existence. This information and the expert testimony of Dr. Castell was not allowed to be developed by the Virginia Supreme Court. Since none of the four factors as laid out in Exxon are met, it is clear the present action is a general challenge to a state law and policy and not an appeal of a state court decision.

V. Res Judicata and Collateral Estoppel cannot apply because no judgment on the merits was rendered and no issues decided in either of the previous state or federal suits.

The Attorney General engages in the use of hyperbole to describe what in actuality is one prior suit in state court and one prior suit in federal court filed by plaintiff (as opposed to five as characterized by the Attorney General). After being dismissed for reasons having to do with jurisdiction and without reaching the merits, they were both appealed as of right on the grounds that jurisdiction should not have been denied. Furthermore, a close look at the opinions will reveal that both the Virginia Supreme Court (as a court of first impression) and this Court dismissed the prior causes of action without reaching the merits of Plaintiff’s claim or the broader constitutional issues raised because of the individual relief component in the prayer for relief. In both instances the individual relief requested was the same: simply that the court order the release of the test essays following the software problems described. The previous cause of action before this Court did also request declaratory relief that the Board’s Policy of Nondisclosure and Policy of Finality be found unconstitutional in light of the transition to computer-administered testing in Virginia, but this Court did not find it necessary to reach the constitutional questions because “the Complaint is based upon the plaintiff’s challenge to the procedures and practices of the Virginia Board of Bar Examiners in reference to the plaintiff’s own bar examination results,” citing to Woodard, 598 F.2d 1345 (4th Cir. 1979) and Judge Hall’s concurrence in Richardson, 563 F.2d 1130 for its basis. See Bolls v. Street, Civil Action No. 3:10cv550, order entered Nov. 5, 2010.

Plaintiff’s mandamus action filed in the Virginia Supreme Court (order of dismissal reprinted App. 1a) was at the recommendation of a state circuit court judge who, although inclined, was ultimately unable to assist plaintiff following an emergency motion filed in Fairfax Circuit Court because the Board is exempt from the application of the state Administrative Process Act. See Va. Code §2.2-4002(A)(2). [Follow-up briefs on the applicability of the A.P.A. filed by the parties available upon request]. See Order of the Circuit Court of Fairfax County, March 16, 2009, reprinted App. 3a-4a (“To the extent Petitioner seeks a mandamus ordering the Board to release his bar exam answers, the Petitioner should invoke the original jurisdiction of the Supreme Court. Va. Const. art. VI §1.”). The Supreme Court of Virginia’s ruling is limited to a very narrow point of Virginia law, viz “mandamus does not lie to compel the performance of a discretionary act.” It does not address any of the constitutional issues. That the decision was made without listening to the evidence is underscored by the fact that the expert testimony had not yet been developed. See Petition for Rehearing, reprinted App. 7a ¶10 (“In order to demonstrate the inadequacy behind the remedy offered by the Board, Petitioner has an expert witness on computer data loss and retrieval. By not hearing Petitioner, the Court will be depriving itself of the benefit of hearing this important evidence”). At no time did any court rule on the issue that is now before this Court- whether Va. Code §54.1-108(1) and its corresponding policies cause an illegal interference with state license examinees’ post examination due process interests following a computer-administered exam.

In Bolls v. Street, this court could have struck the individual relief component and separately considered the remainder policy challenge by examining evidence on the wide scale, recurrent problems experienced at the saving stage of the Virginia Bar Exam, the expert testimony, documentation showing misgrading in other jurisdictions as a result of similar problems, and information collected confirming that the vast majority of jurisdictions (App. 19a) allow applicants rights to the essays following the computer-based test. But this Court chose rather not to reach those issues and dismissed altogether. Therefore, the only matter that was actually resolved by this Court is that an applicant to the bar cannot challenge policies of the state board of bar examiners as applied to a particular individual. This ruling, however, should not be construed as barring any and all challenges to a policy of the state board of bar examiners, as this Court clearly authorizes that in some instances the policies can be challenged. See Clark v. Virginia Board of Bar Examiners, 861 F. Supp. 512, 515 (E.D. Va. 1994), citing the U.S. Supreme Court in D.C. Court of Appeals v. Feldman, 460 U.S. at 485:

“subtle but fundamental distinction between two types of claims which a frustrated bar applicant might bring to federal court; the first is a constitutional challenge to the state’s general rules and regulations governing admissions; the second is a claim, based on constitutional or other grounds, that the state has unlawfully denied a particular applicant admission . . .” Clark, at 515.

“It is now clear to the Court that, rather than attacking the Board’s treatment of
Clark in particular, this case challenges the defendants’ right to enforce their
rule of general application that all applicants must answer question 20(b).”[Court then strikes the request for an order directing the defendants to grant plaintiff a license]. Id. 518-519.

Footnote: Separation of the general challenge to the state bar admissions policy from the individual relief request can be found in the landmark case D.C. Court of Appeals v. Feldman, 103 S.Ct. 1303, 1317: "a close reading of the complaints discloses that the respondents mounted a general challenge to the constitutionality of the rule and sought review of the District of Columbia Court of Appeals' decisions in their particular cases . . . [t]he remaining allegations in the complaints, however, involve a general attack on the constitutionality of Rule 46 I(b)(3) . . . [t]he District Court, therefore, has subject-matter jurisdiction over these elements of the respondents' complaints."

The “subtle but fundamental distinction” referenced above is the very reason why the Attorney General’s contention fails that the “sum and substance” of this action is the same as Bolls v. Street. The previous action before this court was found to be a prohibited as-applied challenge; the present action before this court seeks no application whatsoever to an individual case. The evidence of the case also far surpasses one individual’s experience and establishes a systemic recurring problem that is not being addressed and a problem that the evidence will also show is occurring nationwide.

This “subtle but fundamental distinction” is certainly not a distinction without a difference, as it makes all the difference in the world for jurisdiction. Judge Hall’s concurrence in Richardson, 563 F.2d 1130, 1132-1134 (4th Cir. 1977) (en banc), cited by this Court in dismissing Bolls v. Street, expressly relies on this “subtle but fundamental distinction.” The following year this Court adopted Judge Hall’s opinion on the prohibition of as-applied bar exam challenges. See Woodard, 454 F. Supp. 4, 6 (E.D. Va. 1978), aff’d 598 F.2d 1345 (4th Cir. 1979). A national issue at the time, the U.S. Supreme Court adopted the same language of the “subtle but fundamental distinction” in 1983 in its holding of D.C. Court of Appeals v. Feldman, 103 S. Ct. at 1311 (1983). Plaintiff now relies on this “subtle but fundamental distinction” and the very authorities cited by this Court previously in dismissing Bolls v. Street to establish jurisdiction over the general unwritten policy that no applicant can obtain their essays.

There is no preclusive or precedential effect when in previous actions there was no full and fair opportunity to litigate and any judgments rendered are narrow in scope. In Johnson v. Degrandy, 512 U.S. 997, 1005-06 (1994) the state argued that the claims of the plaintiffs should have been dismissed as res judicata because they had a full and fair opportunity to litigate before the state supreme court. The court disagreed, stating as follows: “[t]he premise, however, is false, exaggerating the review afforded the DeGrandy plaintiffs in the state court and ignoring that court’s own opinion of its judgment’s limited scope.” Similarly, in the instant case, the Attorney General exaggerates the review afforded to plaintiff in the previous suit filed before the Virginia Supreme Court and the one filed before this Court. Both cases were dismissed before reaching the merits and before the discovery process. The narrow scope of the judgments are clearly apparent by the express language used in the opinions, and no fair reading of them would conclude that the constitutional issues were implicated. Thus, any final judgments rendered can only give preclusive effect to what was actually decided in them, which in this case was very little.

Furthermore, it would have been impossible for Plaintiff to have obtained a judgment before the Supreme Court of Virginia. The Attorney General indicates on p. 8 of the brief that Plaintiff could have instead “appealed” to the Supreme Court of Virginia and argued abuse of discretion and raised the constitutional due process arguments in the appeal. First, the Attorney General says nothing here about the initial confusion that the Attorney General experienced when asked by a judge in Fairfax Circuit Court about what process is available to aggrieved bar applicants when a dispute with the Board arises on a software malfunction. The answer that came from an assistant attorney general says it all: “that is an interesting question,” and that perhaps the matter could be likened to a bar disciplinary proceeding, which does fall under the original jurisdiction of the Virginia Supreme Court. This Court should not be left with the impression that this process is clear to the applicants at all, let alone the Attorney General’s office.

Additionally, requiring an aggrieved applicant with a dispute relating to the essays to “appeal” to a state supreme court a decision that was made as a result of an unwritten policy makes no sense. First, no investigation by the Board into the technical issues was ever disclosed to Plaintiff so there is nothing that can be reviewed. Neither was there disclosure of guidelines in applying discretion (if discretion is even applied on a case-by-case basis) nor any stated reasons at all as to why the essays would be withheld in Plaintiff’s instance. Individuals in Plaintiff’s shoes therefore have no record that could be reviewed by a court and no guidelines by which to show that discretion was misapplied in a certain instance. More importantly, given the novel software issues at play, any petition to the Virginia Supreme Court may very well seek to challenge the guidelines themselves as outdated and technically improper give the advent of computer-administered testing. Therefore, no matter how legitimate a claim may be in Virginia, it fails for lack of evidence. See Application of Heaney, 106 Ariz. 391, 476 P.2d 846 (1970) (petition before the Arizona supreme court insufficient where it failed to set forth “exact and complete particulars of alleged unfair or improper grading” of a particular set of exam papers). The Commonwealth is perpetuating the same kind of due process dilemma and “logical hiatus” as described in Alaska’s high court in Application of Peterson, where an applicant could petition the board for a review hearing if “serious grounds” are present but afforded no procedural device to enable the applicant to ascertain and demonstrate these grounds. Application of Peterson, 459 P.2d 703, 709 (Alas. 1969). Alaska and the vast majority of state bar examination boards throughout the United States have therefore adopted policies that allow applicants rights to the essays for them to make an informed decision on how to proceed, thereby upholding the integrity of their grading systems. App. 19a (Transparency Policies of State Law Examiner Offices). See also App. 20a (Statistics of the Computer Based Essay Examination). Plaintiff’s pleadings before the Virginia Supreme Court raised the constitutional due process considerations, yet the court simply did not address them because of its holding on a narrow point of Virginia law. App. 1a.

Where a litigant foregoes further optional state court review, particularly when there are allegations of unfairness or inadequacy in the state court procedures, the state cannot then claim in subsequent litigation that the litigant’s mere option to return to state court converts the previous judgment into a judgment following a “full and fair opportunity to litigate.” See Allen v. Curry, 449 U.S. 90, 104, 101 S. Ct. 411, 420, 66 L.Ed. 2d 308 (1980) (“full and fair opportunity to litigate, as res judicata would require”). The “full and fair opportunity to litigate” requirement applies equally to collateral estoppel. “[O]ne general limitation the Court has repeatedly recognized is that the concept of collateral estoppel cannot apply when the party against whom the earlier decision is asserted did not have a ‘full and fair opportunity’ to litigate that issue in the earlier case.” Id., at 95; Montana v. United States, 440 U.S. 147, 153, 99 S. Ct. 970, 973; Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 328-329, 91 S. Ct. 1434, 1443. It is the opinion of the Attorney General that the previous action before the Virginia Supreme Court resulted in a valid final judgment. If that is the case then Plaintiff was free to litigate elsewhere, including in the federal courts, and the state decision is necessarily limited to its narrow scope. The opinion reprinted in App. 1a clearly does not reach the constitutional issues that are now before this Court.

Similarly, any preclusive or precedential effect given to this Court’s holding in Bolls v. Street, 2010 U.S. Dist. LEXIS 133047 (E.D. Va. Dec. 15, 2010), 2011 U.S. App. LEXIS 5557 (4th Cir. Mar. 17, 2011), is merely limited to an as-applied challenge to a policy of the Board. It does not preclude an individual from bringing a general attack to the policy, which is an acceptable legal action according to Judge Hall’s concurrence cited in Woodard above. A contrary ruling would certainly extinguish the federal court’s authority to review any Fourteenth Amendment challenges to state law examiner policies. Nevertheless, that is the absurd result that the Attorney General seems to be promoting by objecting to both the present suit and the previous suit Bolls v. Street. This would run contrary to what this Court said in Woodard, 454 F. Supp. 4 (E.D. Va. 1978) (“federal courts do exercise jurisdiction over many constitutional claims which attack the state’s power to license attorneys involving challenges to either the rule making authority or administration of the rules”) (emphasis added). But even the Attorney General concedes that the rules and regulations of the Board are indeed subject to the due process clause of the federal Fourteenth Amendment (brief in support of Mot. to Dism. P. 17, bottom). That the instant case is a bona fide general challenge to the unwritten Policy of Nondisclosure is shown most strongly by the fact that no individual relief is being requested for Plaintiff. The relief sought is prospective, for the benefit of future license examinees for the bar and other state boards or departments.

The personal circumstances of Plaintiff and the procedural history of his case are included as evidence in the Appendix only to assist the court in providing the concreteness it would require in reviewing the constitutional due process issues raised. It need only be one factor in the court’s analysis. However, since Article III courts are forbidden by the Constitution from deciding questions in the abstract, the personal circumstances are needed so the court can resolve cases or controversies. Outside of Plaintiff’s testimony this Court may consider undisputed evidence as to how the process is structured in Virginia (Cmplt ¶8, ¶9), including a state law that denies FOIA requests for exam papers that at times constitute evidence crucial to a case while at the same time vests unfettered discretion in the entity that is the subject of the dispute; an older conflicting law that preserves the bar exam papers for one year following the exam (Va. Code §54.1-3929, reprinted App. 21a); the observations and Engineers’ Notes of the technicians from the saving stage of the examinations (Cmplt ¶28); complaints from the examinees (Complt ¶17); similar observations that led to documented misgrading in other jurisdictions (Cmplt. ¶16); expert testimony on the proper procedures following a computer-administered exam (Cmplt ¶18); the policy, applied uniformly and without the proper guidelines, that no applicant can obtain their essays (Complt ¶¶31-32); eyewitness testimony in another jurisdiction on how obtaining the essays proved vital to protecting his due process interest and where reliance on grader vigilance proved to be futile (Cmplt ¶29); and an overwhelming national trend among bar exam boards towards transparency following the computer-based exam (Cmplt. ¶46). The bottom line is that no expensive forensic analysis is required to prove the case now before this Court. Plaintiff will show that there is no way, following the symptoms described in ¶28 of the Complaint, for the Board to rule out corruption of an applicant’s essays without cooperation with the applicant, the creator of the data. The Board has already admitted that hands-on technical assistance and system reboots are occurring “at every exam.” App. 42a ¶6. They have separately admitted to having knowledge of the misgrading that resulted from the software in New Jersey, New York, and Kentucky.

If this Court finds that such observations are consistent with those associated with data loss in these other jurisdictions, that is to say, if they are localized to a particular stage of the test, like the saving stage as Plaintiff witnessed, then it could conclude that there is a systemic problem that requires a policy change. That is why expert testimony is required. Other boards or departments in Virginia are also making the transition to computer-administered testing, and could conceivably run into similar problems. It is for all of these reasons that Va. Code §54.1-108(1), denying FOIA requests for test papers, and corresponding policies of state agencies, have created an unconstitutional road block and Catch-22 to the applicants’ already established post examination due process rights. For bar applicants, these rights are limited to sending their complaints to the Virginia Supreme Court as a court of first impression. For all other applicants for a license in the Virginia Department of Professional and Occupational Regulation (DPOR) or Department of Health Professions, the proper procedure is to file under the Administrative Process Act. In either case, with software disputes, the essay answers constitute evidence crucial to the case. Without them, one is left to wonder how a claim relating to a software dispute could possibly be successful.

Aside from the challenge to the policy that no applicant can obtain their essays, this case seeks to challenge Va. Code §54.1-108(1) as unconstitutional on its face. The complaint states that §54.1-108(1) “denies all applicants, no matter the profession, the very subject of proof that would be necessary to pursue a right that already exists: due process following a dispute in matters of test taking with any and all boards or departments.” Cmplt., p.1 (bottom). This broadens the issue significantly and has far more reaching implications as it requires a showing of how many of the various state licensing departments have made the transition to computer-based testing and what their policies are following exams. Plaintiff has discovered that a number of them have already made this transition to computer-based testing, and more research will be compiled for this Court on their policies and procedures.

Even if Plaintiff could have brought the challenge to §54.1-108(1) in his previous suit before this Court, there still would be no preclusive or precedential effect. Again, the district court’s opinion in Bolls v. Street, supra was so limited in scope that it neither reached the constitutional due process issue nor the merits of Plaintiff’s individual case. It merely held that it had no jurisdiction over constitutional challenges as applied to an individual’s bar exam. See Bolls v. Street, supra. Had Plaintiff requested declaratory relief against §54.1-108(1) the result of dismissal would have been no different, because of the district court’s finding that the individual component of the Prayer for Relief turned the action into an as-applied as opposed to a prima facie challenge to the Board’s policies. Naturally, it would have found no differently with respect to §54.1-108(1). However, as-applied challenges are fundamentally different than prima facie challenges, and a jurisdictional bar to an as-applied challenge to a law and policy does not give preclusive effect to a prima facie challenge to the same.

Previous litigation may show that the causes of action are closely related, but they are not identical as would be required for preclusive effect. On preclusion, this Court must look to Virginia law for the applicable standard. In Virginia, there is a fine line distinction between suits that are “closely related” and those that are “identical,” as the court in Wright v. Castles stated:

“[I]n support of the plea of res judicata in the subsequent law action, the defendants
argued that plaintiff’s ‘based [their case] on the identical cause of action which was
litigated in the former equity suit.’ We rejected this argument, stating that ‘while the
causes of action in the two suits [were] closely related, they [were] not identical.’”
Wright v. Castles, 232 Va. 218 (1986) (quoting Worrie v. Boze, 198 Va. 533, 537, 95
S.E. 2d 192, 196 (1956).

In sum, Plaintiff’s former action in Bolls v. Street and the instant action represent both sides of the coin on the “subtle but fundamental distinction” referenced in Judge Hall’s concurrence in Richardson, supra and in Feldman, supra. The instant case represents a prima facie challenge whereas the previous case was found to be an as-applied challenge. This distinction is vital to the jurisdictional question, and it is what makes the instant case not identical to the Bolls v. Street previously brought before this Court.

VI. Denial of Certiorari by the Supreme Court Is Not An Expression on the Merits.

Rule 10 of the U.S. Supreme Court lists the considerations governing review on writ of certiorari. These considerations include, inter alia, conflicts among Circuit Courts of Appeals, conflicts between state high courts and Circuit Courts of Appeals, and important federal questions that the Supreme Court must address. Its purpose is solely to induce the high court to hear a case. Only if granted are briefs then taken on the merits. Denial of writ of certiorari by the Federal Supreme Court imports no expression of opinion upon the merits of a case but means only that there were not four members of the Court who thought the case should be heard. Judiciary Act of 1925, 43 Stat. 936. U.S.N.C. 1953. Brown v. Allen, 344 U.S. 443, 73 S. Ct. 397, 97 L.Ed. 469, reh’g denied 73 S. Ct. 827. In his address before the ABA, Chief Justice Vinson states: “During the past term of Court, only about 15% of the petitions for cert were granted, and this figure itself is considerably higher than the average in recent years . . . a great many of the 85% that were denied were far from frivolous.” Work of the Federal Courts p. 236, Address Before the American Bar Association, September 7, 1949. The American bar is very clear on this point. “[A]s we have often said, a denial of certiorari by this Court imports no expression of opinion upon the merits of a case.” House v. Mayo, 324 U.S. 42, 48, 65 S. Ct. 517 (1945). See State of Ohio ex rel. Seney v. Swift & Co., 260 U.S. 146, 151, 43 S. Ct. 22, 24, 67 L. Ed. 176; United States v. Carver, 260 U.S. 482, 490, 43 S. Ct. 181, 182, 67 L.Ed. 361 (“as the bar has been told many times”). Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240 U.S. 251, 258, 36 S. Ct. 269, 271; Atlantic Coast Line R. Co. v. Powe, 283 U.S. 401, 403, 404, 51 S. Ct. 498, 499, 75 L.Ed. 1142. Cf. Ex Parte Abernathy, 320 U.S. 219.

The Court in Brown explicitly refers to the above legal principle as barring res judicata or any precedential effect in further proceedings. “When on review of the proceedings no res judicata or precedential effect follows, the result would be in accord with that expression, that statement [“imports no expression of opinion on the merits”] is satisfied.” Brown, supra, 344 U.S., at 456. Plaintiff’s application may have been denied for any of the above stated reasons, but inadequacy of the record seems to be a likely possibility. In his dissent in Griffin, supra, 351 U.S., at 29-30 Justice Harlan says he “would decline to decide the constitutional question tendered by petitioners because the record does not present it in that ‘clean-cut,’ ‘concrete,’ and ‘unclouded’ form usually demanded for a decision of constitutional issues.” Again, the Board’s stringent policy that no applicant can obtain their essays prevented a record from being made which could be reviewed by the highest appellate court. It is therefore clear that Plaintiff should be free to pursue a constitutional challenge to the Board’s policies and procedures in federal district court because the merits of his individual case and the constitutional issues raised have not been addressed, even by the U.S. Supreme Court.

CONCLUSION

A Virginian by choice, Plaintiff has had a longstanding commitment to the Commonwealth. Plaintiff graduated from the College of William & Mary in 2004 and the Marshall Wythe School of Law at William & Mary in 2008. Upon graduation Plaintiff was recognized by the Virginia Bar Association for participating in its Community Service Program, a program which has a broad volunteer base not strictly confined to pro bono work. Plaintiff continues to be active today, as a chief elections officer in Pioneer Precinct in Springfield, VA.

The granting of a motion to dismiss is a harsh remedy. It is without dispute that it must be cautiously studied, both to effectuate the spirit of the liberal rules of the pleading and to protect the interest of justice. Carlson v. United States Postal Service, F. Supp. 2d 1040 (N.D. Okla. 2003); see also Cayman Explor. Co. v. United States Pipe Line Co., 873 F.2d 1357, 1359 (10th Cir. 1989). To resolve the motion to dismiss, the court must accept as true all factual allegations in the complaint, construe the record in favor of the plaintiff, and decide whether as a matter of law, the plaintiff could prove no set of facts which would entitle it to relief. Parker v. Wakelin, 882 F. Supp. 1131 (D. Me. 1995); Straka v. Francis, 867 F. Supp. 767 (N.D. Ill. 1994); Bensch v. Metropolitan Dade County, 855 F. Supp. 351 (S.D. Fla. 1994). Plaintiff’s case includes eyewitness testimony from Virginia and another state, published documentation, scientific opinion, compiled research on other state policies and computer statistics, and undisputed facts relating to the law and policy currently under review and the structure of the judicial review process in Virginia.

The Fourteenth Amendment requires that no State shall deprive any person of life, liberty, or property without due process of law. Bar licenses and other licenses are well recognized within the law as a protected liberty interest. See Board of Regents v. Roth, 408 U.S. 564, 572, 92 S. Ct. 2701, 33 L.Ed.2d 548 (1972) (stating that the liberty interest guaranteed by the Fourteenth Amendment includes the right to “engage in any of the common occupations of life”). Currently, the due process accorded to professionals seeking licenses in Virginia is pursuant to the Administrative Process Act, in the case of health and other occupational licenses, and the Virginia Supreme Court, in the case of bar licenses. Nevertheless, this process is vitiated when applicants are stopped from obtaining their essays in the first place, evidence crucial to their cases in a software dispute or otherwise.

Res Judicata and Collateral estoppel have no preclusive effect over the current proceedings because of the limited scope of the prior litigation. The Virginia Supreme Court’s holding in Plaintiff’s individual case was on a fine point of Virginia law, that mandamus does not lie to compel the performance of a discretionary act on the part of the Board. It would have been impossible for the state court to reach the merits of the technical issues at play because the dismissal took place even before the evidence was presented.

Following the cause of action in state court, this Court held in Bolls v. Street, supra that Plaintiff’s action was an as-applied challenge, not justiciable in federal district court. Again, a close reading of the opinion will reveal no opinion as to the constitutional issues raised; the court simply found that it had no jurisdiction to decide the merits.

In contrast, the case at bar seeks no relief for Plaintiff and the allegations of the complaint are different. Rather than speaking to Plaintiff’s individual case as in the prior suit, the allegations rather refer to the software symptoms occurring on a wide scale at the saving stage of the Virginia Bar Exam (see Complaint ¶28) and an expert’s opinion on the likelihood of there being a systemic problem. These technical issues likewise affect all licensing agencies now offering computer-based testing in Virginia. It also refers to an eyewitness, who is willing to testify, from New York who observed similar problems at the saving stage and has personal experience (App. 25a) with having to reboot the software during the test. This witness will testify that the New York board was at first dismissive of his concerns, but the applicants’ right to obtain their essays forced a corrective process not previously in existence. Applicants in New York were discovering that their essays were lost, incomplete, duplicated, etc. App. 28a-29a. Plaintiff merely seeks to assist this Court in identifying the law in Virginia that has led to a systematic denial of due process rights for the individual applicant. Plaintiff’s individual case demonstrates the substantive and procedural flaw, but this Court need not look to his case alone for the reasons stated above. Unlike Bolls v. Street, this is not an as applied challenge; therefore, the jurisdictional bar has been removed completely.

The Rooker-Feldman Doctrine should not be invoked here as there is no state court decision that is currently under review. This case represents a constitutional challenge to Va. Code §54.1-108(1) and a corresponding policy of the Board that no applicant can obtain their essays, which acts to deter applicants and undermine their efforts to avail themselves of their right to petition the Virginia Supreme Court.
Finally, there is no class certification prerequisite under the Declaratory Judgment Act (28 U.S.C. §2201) for bringing a general challenge to a policy of the Board of Bar Examiners or to a standing law of the Commonwealth. There are furthermore plenty of precedents within this Court and other Circuit Courts of Appeals in support of this point as laid out in Part (I) of this brief.

For the foregoing reasons, Plaintiff asks this Court to deny the Motion to Dismiss.

Respectfully Submitted,


Jonathan Bolls
Plaintiff Pro-Se


August 20, 2011