Glueck v. Nat'l Conference of Bar Examiners, Tex. Bd. of Law Examiners, Law Sch. Admissions Council, Inc.

ANDREW J. GLUECK, Plaintiff, v. NATIONAL CONFERENCE OF BAR EXAMINERS, TEXAS BOARD OF LAW EXAMINERS,LAW SCHOOL ADMISSIONS COUNCIL, INC., Defendants.

Civil Action No. SA-17-CV-451-XR

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

November 3, 2017

ORDER

The Court held a hearing in this case on October 26, 2017. For the reasons stated in open court, the Court dismisses as withdrawn Defendant National Conference of Bar Examiners' ("NCBE") 12(b)(1) Motion to Dismiss Plaintiff's claims under the American with Disabilities Act ("ADA") and Texas Human Resources Code. The Court further GRANTS NCBE's 12(b)(6) Motion to Dismiss and GRANTS the Texas Board of Law Examiners' ("TBLE") 12(b)(1) Motion to Dismiss. The Court further DENIES Plaintiff's Motion for Reconsideration. Docket no. 37.

BACKGROUND

Plaintiff brought this action on a pro se basis on May 19, 2017, naming as defendants the NCBE, TBLE, and Law School Admissions Council, Inc. ("LSAC"). Docket no. 1. On July 24, 2017, Plaintiff filed an Amended Complaint, Docket no. 24, and on July 25, 2017, he filed a Second Amended Complaint. Docket no. 25. Plaintiff asserted claims under the ADA, the Texas Human Resources Code, and the Texas Deceptive Trade Practices Act ("DTPA"). Id.

Plaintiff is a third-year law school student and alleges he suffers from Attention Deficit Hyperactivity Disorder ("ADHD") Combined Type, Specific Learning Disorder (Reading and Comprehension Impairment), and dyslexia. Docket no. 25 at 8. Plaintiff alleges that his disability significantly compromises his reading comprehension and the rate at which he reads and writes. Id. Plaintiff states he has received accommodations while pursuing a graduate degree and on law school exams, including being granted extended testing time. Id.

On or about December 3, 2016, Plaintiff submitted a request for accommodations with the NCBE to take the Multistate Professional Responsibility Examination ("MPRE"), an ethics exam one must take and pass to be admitted to the State Bar of Texas. Id. at 15. On or about January 20, 2017, Plaintiff registered for the MPRE using LSAC's website, and he requested extended time (50%), an audio CD, and a non-scantron answer sheet for the MPRE. Id. On January 23, 2017, NCBE notified Plaintiff that it received his registration for the March 2017 MPRE test and to allow ten to fifteen days for its decision on his accommodation request. Id.

NCBE's website states that if NCBE denies an accommodation request, an individual will be notified of the decision and may seek reconsideration with any additional documentation. Id. at 17. The reconsideration request must be received prior to the late registration deadline for the corresponding MPRE test date. Id. For the March 2017 MPRE test date, the on-time registration deadline was January 26, 2017, and the late registration deadline was February 2, 2017. Id. at 16.

Plaintiff states that on February 16, 2017, NCBE denied his accommodation request. Id. at 17. On March 18, 2017, Plaintiff sat for and took the MPRE, and on April 12, 2017, Plaintiff learned he failed to pass the MPRE. Id.

Plaintiff alleges that NCBE's registration schedule, accommodations request system, and deadline to seek reconsideration for the MPRE allows NCBE to deny requests for accommodations due to its policy that there are no exceptions to its deadlines. Id. at 18. Plaintiff alleges that he submitted every document he possessed to evidence his disability, but that NCBE found that none of the documents warranted accommodations for the March 2017 MPRE. Id. Plaintiff states he was "unable to register for the August 2017 MPRE due to the fact that he was still waiting on a response from NCBE regarding his original complaint." Id. Plaintiff alleges it was reasonable for him to conclude "that submitting the same documents, shelling out more money to register for the MPRE, and hopefully receive a different determination—within five business days—was absolutely futile." Id. at 18-19.

Plaintiff states that on June 13, 2017, TBLE denied his request for accommodations for the July 2017 State Bar Exam. Id. at 23. Plaintiff alleges that TBLE provided no basis as to why denying his request would invalidate its "responsibility to maintain the integrity and validity" of the exam. Id. at 24. Plaintiff alleges that TBLE used its own expert consultants to call into question the documents he submitted about his disability. Id. Plaintiff alleges that TBLE violated his right to not be discriminated against as a disabled person. Id. at 25.

Plaintiff seeks declaratory and injunctive relief that would allow him 50% additional time to take any future administration of the MPRE and Texas Bar Exam.

On September 8, 2017, Defendants filed Motions to Dismiss for lack of subject-matter jurisdiction, failure to state a claim for which relief can be granted, and failure to plead claims sounding in fraud with particularity. Docket nos. 27, 28, 29. On October 16, 2017, the Court granted in part Defendants' Motions. The Court granted LSAC's Motion to Dismiss for lack ofsubject-matter jurisdiction, granted NCBE's Motion to Dismiss for failure to state a claim with respect to Plaintiff's DTPA claims, and granted TBLE's Motion to Dismiss for lack of subject-matter jurisdiction with respect to Plaintiff's Texas Human Resources Code and DTPA claims under the principle of sovereign immunity. Docket no. 34.

At the October 26, 2017, hearing, the Court heard arguments on Plaintiff's remaining claims under the ADA and Texas Human Resources Code and Defendants' corresponding Motions to Dismiss. NCBE withdrew its 12(b)(1) Motion to Dismiss Plaintiff's claims. Now before the Court are: (1) NCBE's 12(b)(6) Motion to Dismiss Plaintiff's ADA claims, and (2) TBLE's 12(b)(1) Motion to Dismiss Plaintiff's ADA claim under the principle of sovereign immunity. Also before the Court is Plaintiff's Motion for Reconsideration. Docket no. 37.

DISCUSSION

I. Legal Standard

The Court must dismiss a cause for lack of subject-matter jurisdiction "when the court lacks the statutory or constitutional power to adjudicate the case." See Home Builders Assn. of Mississippi, Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). A motion to dismiss for lack of jurisdiction under 12(b)(1) may be decided on: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts, plus the Court's resolution of disputed facts. Freeman v. United States, 556 F.3d 326, 334 (5th Cir. 2009). Unlike a 12(b)(6) motion, the district court is empowered to consider matters outside the complaint and matters of fact that may be in dispute in a 12(b)(1) motion. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).

"[T]he irreducible constitutional minimum of standing contains three elements." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). These elements are "(1) an 'injury in fact' that is (a) concrete and particularized and (b) actual or imminent; (2) a causal connection between the injury and the conduct complained of; and (3) the likelihood that a favorable decision will redress the injury." Croft v. Governor of Texas, 562 F.3d 735, 745 (5th Cir. 2009) (citing Lujan, 504 U.S. at 560-61). Particularized means "that the injury must affect the plaintiff in a personal and individual way." Lujan, 504 U.S. at 560 n. 1. "The party invoking federal jurisdiction bears the burden of establishing these elements." Lujan, 504 U.S. at 561. Because they are not mere pleading requirements but rather an indispensable part of the plaintiff's case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation. Id. At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we "presum[e] that general allegations embrace those specific facts that are necessary to support the claim." Lujan, 504 U.S. at 561; Public Citizen, Inc. v. Bomer, 274 F.3d 212, 218 (5th Cir. 2001).

"When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits." Id. This requirement prevents a court without jurisdiction from prematurely dismissing a case with prejudice. Id.

To survive a 12(b)(6) motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Aclaim for relief must contain: (1) "a short and plain statement of the grounds for the court's jurisdiction"; (2) "a short and plain statement of the claim showing that the pleader is entitled to the relief"; and (3) "a demand for the relief sought." FED. R. CIV. P. 8(a). In considering a motion to dismiss under Rule 12(b)(6), all factual allegations from the complaint should be taken as true, and the facts are to be construed favorably to the plaintiff. Fernandez-Montez v. Allied Pilots Assoc., 987 F.2d 278, 284 (5th Cir. 1993). To survive a 12(b)(6) motion, a complaint must contain "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555.

II. Defendant NCBE's Motion to Dismiss

Plaintiff's brings an ADA claim under § 12189, which states that "[a]ny person that offers examinations . . . related to applications, licensing, certification, or credentialing for . . . professional . . . purposes shall offer such examinations . . . in a place and manner accessible to persons with disabilities or offer alternative accessible arrangements for such individuals." 42 U.S.C. § 12189. Plaintiff also...