Update 23: On March 17th the Fourth Circuit affirmed the district court's dismissal of this case for lack of subject-matter jurisdiction. It was decided by a three-judge panel including Judge Diana Motz, Judge James Wynn, Jr., and Senior Judge Clyde Hamilton. Because this controversy far surpasses the dispute of a single individual, I have prepared a Petition for Rehearing En Banc before the Fourth Circuit. En Banc, "in the bench," is where the entire membership of the court is called on to decide especially important questions of law as opposed to the usual three-judge panels. The question of what constitutes due process given the recent transition to computer-based testing is one that now affects thousands of Virginia bar applicants every year (currently 83% of test takers and rising). The vast majority of other states (42 plus the District of Columbia) have adopted policies of transparency already.
Following is the Petition for Rehearing En Banc, filed with the court on March 31st.
UNITED STATES COURT OF APPEALS
v. No. 10-2361
W. SCOTT STREET, III, Secretary
of the Virginia Board of Bar Examiners,
Appellant’s Petition for Rehearing En Banc
COMES NOW Appellant, Jonathan Bolls, pro-se, in support of his petition for rehearing en banc states as follows:
The dismissal of this case for lack of subject-matter jurisdiction is problematic because it stands for the proposition that an individual cannot bring both a constitutional challenge to certain policies of a state agency while also requesting individual relief. See Order of Dismissal, Nov. 5, 2010 (the court lacks subject-matter jurisdiction 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”). Since this case is supported by strong scientific opinion about the technical impropriety of the Board’s continued enforcement of the unwritten Policy of Nondisclosure and Policy of Finality in the new computer-based testing environment, dismissing this case altogether would work an injustice for future bar examinees who will inevitably experience similar problems with the Board’s software. Appellant therefore requests rehearing en banc under the fourth prong of re-consideration, that the case involves a question of exceptional importance, and the third prong, namely that there is a conflicting U.S. Supreme Court precedent that was not addressed. Appellant believes an en banc panel is warranted in this instance because the two policies in question are of statewide significance and directly impact the rights of thousands of bar examinees each year.
Prong 4: The Question of What Constitutes Due Process in Light of the Problems Experienced with Computer-Based Testing in Virginia is a Question of Exceptional Importance.
This case far transcends an individual dispute. It calls into question the adequacy of the post-examination review process already set in place for thousands of bar examinees every year, namely the right to petition the Virginia Supreme Court. This right becomes illusory in the context of a software dispute if an applicant is required to petition the court without the essays. What Appellant observed in July of 2008 (see Affidavit reprinted in App. 9a-10a) both with respect to himself and others was not an isolated incident. See Declaration of Jonathan Bolls, attached to the Motion to Alter Judgment: [at the pre-trial conference] “When pressed [by the judge] whether symptoms similar to what [Appellant] described have been known to exist, ‘including the reboot,’ [counsel for the Attorney General] responded that, in fact, they do at every exam.” The expert report filed in support of the complaint confirms that such a reboot is “a very real cause for concern.” Declaration of Stephen Castell PhD ¶22. The evidence and testimony of this case (which have yet to be heard by any forum) strongly suggest that Virginia is experiencing the same technical problems that New York experienced in July of 2007. See App. 23a-24a, press release of the NY Bd. of Law Exmnrs., dated Nov. 15, 2007 (“one or more of the essay answers for 47 candidates could not be recovered”).
The similarity between what occurred in New York in July of 2007 and the observations made in reference to the Virginia July 2008 exam is striking. Both experienced problems during the saving stage of the test. See App. 30a, New York Law Journal, July 26, 2007, Software Snafus Upset Test Takers During First Day of State Bar Exam: “Test takers who typed the essays on the New York state bar examination into their laptop computers this week experienced problems saving their work and uploading the files for transfer to graders.” In both cases, exam essays were found to have been misplaced in the system. App. 29a-30a (entries recorded on a New York Personal Injury Law Blog); compare with Defendant’s Answer ¶25, which attempts to explain away how there were 24 known applicants with essays mysteriously misplaced in the software. Somehow, in a one-hour lunch recess, a small staff purportedly went through five essays for a thousand applicants (5,000 essays total) and then quickly signed off on the matter without further investigation. This occurred even though the Board was well aware of the software problems documented in other states and the similar symptoms observed in those states. See Answer ¶27. Mr. Zeni, witness in the instant case, experienced a software glitch in New York’s July 2007 exam and after examining his essays discovered that a significant portion was missing. This error was not caught by the bar examiners. He subsequently passed and was promptly admitted to the bar. App. 38a. Mr. Zeni can also provide testimony that in New York there exists a right to obtain the essays, and it was this very right that allowed the applicants to force a corrective process not previously in existence. See App. 25a-26a. This alone is compelling evidence that blind reliance on the software by the bar examiners, especially now that almost everyone is taking the test on laptop, undermines the overriding objective of accurate test results. The fact should also not be overlooked that recent law school graduates are accustomed to being able to obtain test essays following their law school exams and they take the Virginia Bar Exam unwittingly- Policy of Nondisclosure is unwritten.
The Board forecloses the only available remedy that does exist by preventing applicants who are experiencing these software related problems from obtaining their essays. Appellant obtained the assistance of a leading UK computer forensics expert who has testified in high profile cases in American federal court for both the plaintiff and defense. Dr. Castell was provided with Appellant’s affidavit dated August 25, 2009 (App. 9a-10a), the setup instructions provided to the applicants at the exam, the Board’s offer to compare the encrypted files, and the charts of state bar exam boards showing an overwhelming national trend toward transparency now that over 50% of state bar applicants rely on the test taking software (App. 19a-20a). First, Dr. Castell concluded, “Clearly something went wrong with the software while [Appellant’s] essays were being saved. The fact that others experienced similar problems at the same time suggests a systemic problem.” Declaration of Stephen Castell PhD ¶18. Dr. Castell was also able to conclude that the Board’s offer to compare the encrypted files “in no way addresses the matter at hand, and when a software glitch is encountered by an applicant, and should a dispute arise, the technically sound and reasonable way for the matter to be resolved is for there to be a policy in place for applicants to obtain their essays.” Declaration of Stephen Castell, PhD ¶2. The reason for this is that “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.” Id. ¶19. This opinion is shared by the only other two experts that Appellant has spoken with over the phone. Furthermore, Dr. Castell states:
“Virginia, as I understand it, does not allow applicants to obtain their essays. In my view and experience, this is an unusual way to design a system and immediately gives rise to concerns over validity and completeness checking, and difficulties in identifying and assessing any data corruptions or omissions potentially caused by system malfunction or otherwise.”
If this court were to simply strike down the policy that no one can obtain their essays following an exam then a perfectly logical remedy presents itself. An alternative grading methodology developed by the National Conference of Bar Examiners and the New York Board of Law Examiners following the New York July 2007 software crash required first and foremost cooperation with the applicants to identify essays that had been corrupted. App. 24a (press release of the New York Board of Law Examiners, Nov. 15, 2007). Dr. Castell states in his report that from his experience “[t]he need for a reboot in such circumstances is in my view a very real cause for concern.” Declaration of Stephen Castell PhD ¶22. He furthermore states that if Virginia adopted the “technically sound” policy of applicants in the computer-based test being able to obtain their essays then the door would be open for the “obvious and sensible” remedy available that does exist: the alternative grading methodology developed by the National Conference. Id. ¶¶38,33. His report and his testimony are crystal clear that there is no other remedy that is available. Id. ¶¶20, 36, 19, 2.
Prong 3: The Affirmance of the Dismissal Does Not Address the Direct Conflict with the Jurisdictional rule in D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983).
In Feldman, the question presented for the court was as follows: “Where the D.C. Court of Appeals has promulgated a rule regarding bar admissions, may respondent bring suit in federal district court challenging that rule’s constitutionality after he has requested the District of Columbia Court of Appeals to waive the operation of the rule in an exercise of its administrative discretion?” The majority agreed that he may. After close examination of the pleadings, the justices “refuse to accept the [Board’s] argument that ‘the sum and substance of respondents’ federal court actions were to obtain review of prior adverse decisions of the D.C. Court of Appeals in their individual cases’ . . . 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.” Feldman, at 1317 (Footnote 18)(emphasis in original). The court found that in promulgating its policy, the D.C. Court of Appeals had acted legislatively not judicially, and the federal court may indeed be asked to assess the validity of such a rule:
“Challenges to the constitutionality of state bar rules do not necessarily require a United States district court to review a final state-court judgment in a judicial proceeding. Instead, the district court may simply be asked to assess the validity of a rule promulgated in a nonjudicial proceeding. If this is the case, the district court is not reviewing a state court judicial decision. In this regard 28 U.S.C. §1257 does not act as a bar to the district court’s consideration of the case and because the proceedings giving rise to the rule are
non judicial the policies prohibiting United States district court review of final state-court judgments are not implicated. 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.”
Feldman, at 486, 103 S. Ct. at 1317.
The case at bar likewise entails a constitutional challenge to two specific policies of the Board coupled with a request for individual relief. The first policy (unwritten) is that no applicant can obtain copies of their essays following an examination (Answer ¶13 “applied uniformly”), and the second is that all results are final once posted electronically (Answer ¶14) (which occurs before the results are mailed out). In the Initial Brief on appeal, Appellant highlights in Section I of the Argument fifty paragraphs in the pleadings that relate only to the policy challenge and could not be considered as pertaining to individual relief. Furthermore, the Prayer for Relief clearly and succinctly sets forth first a general policy challenge “to protect the rights of all future applicants to the Virginia Bar” even before it requests an order of release of test essays. Feldman is strangely left out of the opinion of the Eastern District Court and the Fourth Circuit, although it was raised as the controlling precedent on jurisdiction when a policy challenge is coupled with a request for individual relief. It postdates both the Richardson and Woodard cases relied on by the court below. Had either the Eastern District or the Fourth Circuit properly applied the rule as laid out in Feldman, jurisdiction would have been established.
The need for a policy change is manifest now that the transition to computer-based testing is well underway.
Forty-two (42) states plus the District of Columbia now have in place policies that ensure applicants’ rights to the essays after an examination. App. 19a. The number of applicants who rely on the software functionality in Virginia are 83% and rising, according to the Board’s own admission. Answer ¶37. This represents a meteoric rise from when the Board first provided all applicants the option to take the essay test on the software in July 2005. Id. Part of Appellant’s case includes expert testimony that according to the best practices, the technicians on standby during a computer-based test should be making note in their Engineers’ Notes of every computer that required hands-on technical assistance and system reboots. Had that been occurring, Appellee would not now be able to claim “without sufficient knowledge to admit or deny whether Plaintiff experienced a problem saving his essay answers…” Answer ¶26. Rather than denying that any such problems occurred, Appellee simply takes issue that there were “numerous” others who experienced such problems. Id. This is far from a flat denial and certainly contradicts an earlier statement by Appellee to Appellant in a letter dated Nov. 17, 2008 which states: “Your assertion that there was some problem with ‘the Extegrity computer system’ is without basis. There was none.” After consulting with experts and others who took the exam, Appellant has confirmed that there was indeed a widescale problem, a problem that continues to persist “at every exam” according to the Attorney General’s office. See Declaration of Jonathan Bolls ¶6, recounting pre-trial conference in chambers, attached to the Motion to Alter Judgment.
This case is premised on the due process clause of the Fourteenth Amendment of the Constitution of the United States. “A state cannot exclude a person from the practice of law or from any other occupation in a manner or for reasons that contravene the due process or equal protection clause of the Fourteenth Amendment.” Schware, 353 U.S. at 238-239, 77 S. Ct. at 756. State control of the practice of law is subject to the restraints imposed by the Fourteenth Amendment. There are plenty of examples of constitutional policy challenges in federal court to state bar exam policies coupled with an individual request for relief. See Clark v. Virginia Board of Bar Examiners, 861 F. Supp. 512, 518 (E.D. Va. 1994) (relies on the rule in Feldman, supra); Keenan v. Bd. of Law Exmnrs. of North Carolina, 317 F. Supp. 1350 (1970); Huffman v. Montana Supreme Court, 372 F. Supp. 1175 (1974), aff’d 419 U.S. 955. Appellant’s case should have been no different.
If district courts make it a habit of dismissing challenges to state agency policies on the grounds that they are brought in reference to an underlying individual dispute then the Fourteenth Amendment’s prohibition (“no state shall…deprive any person of life, liberty, or property without due process of law”) will be gradually eroded as a chilling effect will be placed on individuals otherwise inclined to bring such policy challenges in the first place. It is well established that Article III courts cannot try cases or controversies in the abstract, so the circumstances of an individual case could be considered essential to the policy challenge. When a state supreme court, as here, acts as a court of first impression, then a legal remedy must exist at the federal level when allegations are raised regarding a flaw in the judicial procedures of the state supreme court. A contrary holding is an affront to our federalist system of government because it leaves to the state exclusive jurisdiction over a federally protected right, which may very well conflict with the state’s interests in expediency or convenience. Federal courts must protect the right to due process with zeal and allow open argument where necessary. This is one of those necessary cases.
March 31, 2011