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Alston v. National Conference of Bar Examiners

United States District Court, E.D. Pennsylvania

June 7, 2018

ALSON ALSTON, Plaintiff,


          Gerald Austin McHugh United States District Judge.

         This is a civil rights action brought by a recent law school graduate, Alson Alston, proceeding pro se, claiming violations of the Fifth and Fourteenth Amendments, and raising state law claims of negligence and defamation, arising out of his difficulty in passing the bar exams of two states. Defendants move to dismiss on multiple grounds, and the briefing addresses a number of complex legal issues. But in the final analysis, Plaintiff's case suffers from fundamental, incurable deficits, with the result that it is not necessary to address the full panoply of issues raised.

         The heart of Alston's argument is that the grading methodology employed by Defendants National Conference of Bar Examiners (NCBE) and the Pennsylvania and New Jersey Boards of Law Examiners [hereinafter “PA Board” and “NJ Board, ” respectively] is “fundamentally arbitrary, irrational, and random, ” since it results in some applicants getting a failing grade when they would have passed under a different, allegedly more accurate method. Defendants' method consisted of calculating a single score from each portion of the two-part exam, scaling those scores individually (to correct for differences among from year to year), then combining and measuring them against a single cutoff score. This resulted in Alston receiving a score that was just four points shy of passing the July 2015 Pennsylvania bar exam, and one point shy of passing the February 2016 New Jersey bar exam.

         Alston contrasts Defendants' methodology with the score band method employed by the Law School Admissions Counsel (LSAC), which he argues would have provided a “statistically accurate representation” of his performance because it takes implicit error into account. According to the Complaint, under the score band approach, the test taker is not assigned a single numerical value, but a range of scores derived from a score on the exam that reflects the level of desired proficiency, plus and minus the calculated error-or standard deviation-for the exam. Any score within the band is supposed to represent the test taker's proficiency in the tested skills, with a statistical certainty ranging from 68 to 99 percent. Purportedly applying this approach, Alston takes the cut-off score for each state's exam (271 for Pennsylvania, and 133 for New Jersey), subtracts the standard deviation provided by the NCBE for each exam (16.1 and 15, respectively), and produces a score band of 255.9 to 288.1 for the Pennsylvania exam, and 118 to 148 for the New Jersey exam. He then suggests that since his score on the exams (268 and 132, respectively) fell within these bands, he would have passed each had this approach been taken.

         Alston thus argues that the decision not to apply the score band approach while simultaneously representing that his score accurately reflected his proficiency in the skills tested violates both the substantive and procedural due process clauses of the Fourteenth Amendment, the Takings Clause of the Fifth Amendment, and constitutes negligence and defamation under New Jersey and Pennsylvania law.

         Now pending are several Motions to Dismiss, filed by Defendants NCBE and Justice Berch, and the PA and N.J. Boards and their respective chairs.

         I. Motion of Defendants NCBE and Justice Berch

         Defendant NCBE and its chair, the Honorable Rebecca White Berch, raise multiple arguments, starting with personal jurisdiction. As to Justice Berch, Plaintiff fails to plead any allegations regarding her conduct. I am thus without a basis to conduct an analysis as to whether personal jurisdiction exists as to that Defendant. Because it was Plaintiff's burden to demonstrate that such jurisdiction exists, General Elec. Co. v. Deutz AG, 270 F.3d 144, 150 (3d Cir. 2001), I must conclude that it does not, and will dismiss Plaintiff's claims against her.

         As to Defendant NCBE, there is no basis for Plaintiff's assertion of general jurisdiction. The same is not true of the case for specific jurisdiction, however, which exists where (1) the defendant has “purposefully directed its activities” at the forum, (2) the litigation arises “out of or relates to” at least one of those activities, and (3) once the prior two requirements are met, a court concludes that jurisdiction otherwise “comports with fair play and substantial justice.” O'Connor v. Sandy Lane Hotel Co., 496 F.3d 312, 316-17 (3d Cir. 2007).

         NCBE argues that specific jurisdiction does not exist here because its activities related to Alston-design of the “MBE” portion of the bar exam and its grading system, and “recertification” of Alston's scores on that portion-took place in Wisconsin, and to the extent that their actions reached Alston, it was through Defendant PA Board's conduct. That misses the point. As Plaintiff succinctly puts it, “the relevant inquiry is not whether a defendant has purposeful contact with the plaintiff, but whether a defendant has purposeful contact with the forum.” Pl.'s NCBE Sur-Reply 2, ECF No. 31. Here, NCBE contracted with the PA Board, and thus contracted with the state itself to confer services to individuals, like Alston, who would be taking the state's examination. Specifically, NCBE concedes that its relationship with the state entails that, at a minimum, it would send testing materials into Pennsylvania, receive exam answer sheets, grade those sheets and send them back into the state so that they may be delivered to test takers. See Def. NCBE's Mot. 8, ECF No. 13-1. Alston is essentially alleging that the exam materials that NCBE sent into the state was administered to him, and a portion of his grade sheet from that exam was sent back to NCBE, which then employed an unconstitutional grading methodology, and sent the resulting score back to Pennsylvania.

         The fact that these activities did not require NCBE to ever set foot in Pennsylvania is of no moment. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985) (“Jurisdiction in these circumstances may not be avoided merely because the defendant did not physically enter the forum State.”) (emphasis in original); Grand Entm't Group, Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 482 (3d Cir.1993) (“Mail and telephone communications sent by the defendant into the forum may count toward the minimum contacts that support jurisdiction.”). Indeed, far from being drawn into Pennsylvania by Alston's conduct, it is NCBE's own conduct in contracting with the state to perform that is the basis for this action and for concluding that it purposefully directed its activities at the state.[1] Needless to say, that also satisfies the requirement that the causes of action here “arise out of or relate to” NCBE's Pennsylvania activities.

         As to whether finding jurisdiction here would comport with traditional notions of fair play and substantial justice, NCBE argues that it would not because that would render it “open to specific jurisdiction with respect to virtually any state bar examination-related claim in more than 50 jurisdictions.” Def. NCBE's Mot. 10. But again, as Alston argues, that does not undercut Pennsylvania's interest in adjudicating such disputes where a resident is allegedly injured by NCBE's conduct. Moreover, NCBE's alarm over the potential scope of jurisdiction is overstated. As it vigorously argues, its contract with the state implicates only the design, grading, and re-certification of one portion of the exam. Such conduct gives rise to jurisdiction here because those actions are at the heart of Alston's grievance. In sum, I do not find anything contrary to “fair play and substantial justice” in subjecting NCBE to jurisdiction in Pennsylvania on the basis of its specific conduct targeted at, and for which it is paid by, the state.

         Though jurisdiction exists, the case against NCBE is fatally flawed.

         Alston raises due process and equal protection claims pursuant to the Fourteenth and Fifth Amendments, but fails to present any allegations that would render Defendant NCBE a state actor, which is a threshold requirement under 42 U.S.C. § 1983. See Borrell v. Bloomsburg Univ., 870 F.3d 154, 160 (3d Cir. 2017). NCBE is a private, non-profit corporation, which receives no public funding. Plaintiff cites no precedent to support the proposition that NCBE's activities assisting courts with the qualifications of lawyers would amount to governmental action. In the analogous context of the licensing of physicians, Judge Robreno of this Court conducted a thorough analysis of the pertinent factors and concluded that the American Board of Internal Medicine, an entity quite similar to NCBE, was not a state actor. Goussis v. Kimball, 813 F.Supp. 352, 357-58 (E.D. Pa. 1993). In two non-precedential decisions, unanimous panels of the Court of Appeals have made similar holdings. Boggi v. Med. Review & Accrediting Council, 415 Fed.Appx. 411, 414 (3d Cir. 2011) ...

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