Derezic et al v. Ohio Department of Education et al
Filing
23
ORDER granting 16 Motion to Dismiss for Lack of Jurisdiction as to ODE and granting in part and denying in part as to Dr. Richard A. Ross' motion to dismiss. Signed by Judge George C Smith on 8/25/14. (lvw1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
AIMEE DEREZIC, et al.
Plaintiffs,
v.
Case No. 2:14-cv-51
JUDGE SMITH
Magistrate Judge King
OHIO DEPARTMENT OF EDUCATION, et al.,
Defendants.
OPINION AND ORDER
This matter is before the Court on Defendants Ohio Department of Education and
Richard A. Ross’s Motion to Dismiss (Doc. 16). Plaintiffs Birks, Coleman, Cuturic, Dautovic,
Derezic, Flaisman, Geiger-Dugandzic, Grubach, Hargrove, Hill, Kilroy, Loscei, Mallory, Nosse,
Pelima, Pesek, Quirarte, Moquemore, Rossman, and Zagar (“Plaintiffs”) filed a Memorandum in
Opposition (Doc. 19), to which Defendants have replied (Doc. 20). The issues before the Court
are fully briefed and ripe for review.
I.
FACTUAL BACKGROUND
This case centers on the decision of the Ohio Department of Education (“ODE”) to
terminate Plaintiffs’ EdChoice Scholarships for the 2013-2014 school year, and the alleged
inability of Plaintiffs to meaningfully contest this termination.
Plaintiffs are the parents of minor children enrolled at various private schools in Euclid,
Ohio. 1 (Doc. 15, Am. Compl. at ¶ 1). For the 2012-2013 school year, Plaintiffs’ private school
tuition was provided as part of the Educational Choice Scholarship Pilot Program. (Id. at ¶ 2).
1
For ease of reference purposes, the Court’s use of the appellation “Plaintiffs” throughout this Opinion and Order
will include the named parents and their children, identified in the Complaint by their initials.
This program, established by Ohio Revised Code Section 3310.02, is administered by the ODE.
See Ohio Rev. Code § 3310.02(A). The program essentially allows students who attend or are
assigned to attend “EdChoice eligible” public schools to apply for a “voucher” or “scholarship”
which can be used to cover the student’s tuition at an alternate private school of their choosing.
(See generally Doc. 15, Ex. S, EdChoice Scholarship Program Manual). The ODE determines
which schools are “EdChoice eligible” by considering a host of factors such as whether the
school has a low performance index score or has been on Academic Emergency or Academic
Watch in recent years. (See id. at 4; Doc. 15, Ex. 1, Designated Schools List). Prior to the 20122013 school year, the ODE deemed four Euclid City School District elementary schools
“EdChoice eligible,” including the schools to which Plaintiffs believed they were assigned. (See
Doc. 15, Ex. 1, Designated Schools List at 2).
After reviewing their applications, the ODE awarded all Plaintiffs EdChoice scholarships
for the 2012-2013 school year. (See Doc. 15, Ex. T, Letter Re: EdChoice Scholarships).
However, around this same time, Euclid was in the process of closing, opening, consolidating,
and reconfiguring boundaries for their six elementary schools. (See Doc. 15, Ex. C, E-mail Re:
Euclid IRN Request). In light of the confusion and miscommunication about which of the new
elementary schools were EdChoice eligible and which were not, the ODE conducted a review of
all scholarship awards for Euclid City School District students. (See Doc. 15, Ex. E, E-Mail Re:
Eligibility Confusion; Doc. 15, Ex. K, Mallory Termination Letter). After this review, Plaintiffs
all received letters notifying them that while their EdChoice scholarship award remained valid
for the 2012-2013 school year, they would not be eligible for the program in 2013-2014. 2 (See,
e.g., Doc. 15, Ex. J, Derezic Termination Letter; Doc. 15, Ex. K, Mallory Termination Letter;
2
In Plaintiffs’ Complaint, Plaintiffs separate themselves into two groups based on different factual underpinnings:
the “Derezic Plaintiffs” and the “Nosse Plaintiffs.” While these designations may be helpful in other contexts, the
Court finds it unnecessary to differentiate these two groups for the purpose of this motion.
2
Doc. 15, Ex. P, Nosse Termination Letter). In these letters, the ODE explained that the
EdChoice schools Plaintiffs had been assigned to originally (forming the basis of their initial
eligibility determination) had since been closed, and the new schools to which Plaintiffs were
assigned were not EdChoice eligible. 3 (See id.). Plaintiffs requested the ODE to reconsider its
termination decisions pursuant to Ohio Administrative Code Section 3301-11-14. (See, e.g.,
Doc. 15, Exhibit Q, Nosse Request; Doc. 15, Ex. L, Derezic Request). The ODE denied all of
Plaintiffs’ requests for reconsideration by letter. (See, e.g., Doc. 15, Ex. M, Derezic Denial; Doc.
15, Ex. R, Nosse Denial; see also Doc. 15, Ex. T, Letter Re: EdChoice Scholarships).
After receiving the ODE’s denial letters, Plaintiffs filed a Complaint against the ODE and
Dr. Richard A. Ross, ODE’s Superintendent of Public Instruction. (Doc. 1, Compl.). Plaintiffs
subsequently filed an Amended Complaint, which presently controls this action. (Doc. 15, Am.
Compl.). In their Amended Complaint, Plaintiffs allege the ODE and Ross violated their
constitutional due process rights by depriving them of their EdChoice scholarships “without a
meaningful opportunity to challenge the denial, and without sufficient due process protections to
prevent errors.” (Id. at ¶ 103). Specifically, Plaintiffs contend that the reconsideration
mechanism set forth in Ohio Administrative Code Section 3301-11-14 is “constitutionally
inadequate” as it did not allow Plaintiffs to “be heard at a meaningful time and in a meaningful
manner.” (Id. at ¶ 104). Plaintiffs also assert that the termination of their EdChoice scholarships
was in direct contravention of Ohio Revised Code Section 3310.03(E). (Id. at ¶ 117). Based on
these causes of action, Plaintiffs ask the Court to (1) issue an injunction to enjoin the ODE and
Ross from violating Plaintiffs’ due process rights; (2) declare that the ODE’s termination
3
Plaintiffs dispute the manner in which Euclid City School District and the ODE determined the eligibility of the
new schools, i.e. by improperly transferring Information Retrieval Numbers. However, Plaintiffs’ argument about
this convoluted process and the facts supporting it are not pertinent to the motion pending before the Court. The
Court therefore finds it unnecessary to address them in depth here.
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decisions were inconsistent with Ohio Revised Code Section 3310.02(E); and (3) award
Plaintiffs costs and expenses in bringing the action, as well as attorney’s fees.
The ODE and Ross filed a Motion to Dismiss (Doc. 16) pursuant to Rule 12(b)(1) of the
Federal Rules of Civil Procedure, asking the Court to dismiss Plaintiffs’ case for lack of
jurisdiction. In their motion, the ODE and Ross assert that all of Plaintiffs’ claims against them
are barred by the Eleventh Amendment. Plaintiffs, however, contend they are able to sustain
their claims based on the Ex parte Young exception to sovereign immunity.
II.
STANDARD OF REVIEW
Defendants move to dismiss Plaintiffs’ claims for lack of jurisdiction pursuant to Federal
Rule of Procedure 12(b)(1). Dismissal pursuant to Rule 12(b)(1) may be warranted if a party
brings a claim in federal court that does not satisfy statutory or constitutional jurisdictional
requirements. Where, as here, the jurisdictional dispute is a “facial attack” on the pleadings, i.e.
the determination of jurisdiction does not entail the resolution of disputed facts, the Court must
consider all allegations in the Complaint as true. RMI Titanium Co. v. Westinghouse Elec. Corp.,
78 F.3d 1125, 1134 (6th Cir. 1996). Ultimately, though, Plaintiffs shoulder the burden of
proving jurisdiction in order to survive the motion. Nichols v. Muskingum College, 318 F.3d
674, 677 (6th Cir. 2003).
III.
DISCUSSION
The ODE and Ross allege the Eleventh Amendment divests this Court of jurisdiction to
consider Plaintiffs’ claims. Plaintiffs disagree, citing the exception to sovereign immunity set
forth in Ex parte Young, 209 U.S. 123 (1908).
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A.
The General Standard: Sovereign Immunity and Ex parte Young
Generally, the Eleventh Amendment prohibits a citizen of a state from suing that state or
one of its agencies in federal court. Ernst v. Rising, 427 F.3d 351, 358 (6th Cir. 2005). This
immunity also protects state officials sued in their official capacities from federal claims for
money damages. Id. Accordingly, sovereign immunity essentially acts as “a limitation of
federal judicial power, that is, on the constitutional grant of jurisdiction to the federal courts.”
Jordon v. Gilligan, 500 F.2d 701, 706 (6th Cir. 1974). This Court has recognized three major
exceptions to this grant of immunity, however: (1) waiver by the state; (2) abrogation by
Congress; and (3) application of the Ex parte Young doctrine by the courts. Campbell v. Miller,
835 F. Supp. 2d 458, 466 (S.D. Ohio 2011) (Smith, J.); see also S & M Brands, Inc. v. Cooper,
527 F.3d 500, 507 (6th Cir. 2008). Only the last exception, the applicability of the Ex parte
Young doctrine, is at issue here.
In Ex parte Young, the United States Supreme Court held that the Eleventh Amendment
did not bar a suit alleged against a state official, in his official capacity, for prospective
injunctive relief, thereby carving out a narrow exception to sovereign immunity. 209 U.S. 123,
150-156 (1908). In order for this exception to apply, a plaintiff’s claim must “seek prospective
relief to end a continuing violation of federal law.” Diaz v. Michigan Dep’t of Corr., 703 F.3d
956, 964 (6th Cir. 2013). Claims seeking retroactive, monetary relief are barred by the Eleventh
Amendment and not subject to the Ex parte Young exception. Id.
While these general principles underlying the exception are well-established, courts must
determine whether a claim falls within the bounds of Ex parte Young on a claim-by-claim basis.
Whitfield v. Tennessee, 639 F.3d 253, 257 (6th Cir. 2011); Idaho v. Coeur d’Alene Tribe of
Idaho, 521 U.S. 261, 280 (1997) (“This case-by-case approach to the Young doctrine has been
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evident from the start.”). In so determining, the Court’s focus must be “on the allegations only;
it does not include an analysis of the merits of the claim.” Hendricks v. Kasich, No. 2:12-cv-729,
2014 WL 2006800, at *15 (S.D. Ohio May 16, 2004) (Kemp, J.) (quoting Verizon Md., Inc. v.
Public Serv. Comm’n of Md., 535 U.S. 635 (2002) (internal quotations omitted). The Court will
address each of Plaintiffs’ causes of action in turn.
B.
Plaintiffs’ Declaratory Judgment Action
In their Complaint, Plaintiffs ask the Court to issue a declaratory judgment “finding that
Defendants’ decision to terminate each Plaintiff’s scholarship is inconsistent with Revised Code
Section 3310.03(E) and is therefore unlawful.” (Doc. 15, Am. Compl. at ¶ 117). Section 3310.03
is a state statute outlining the eligibility requirements for students seeking to participate in Ohio’s
Educational Choice Scholarship Pilot Program. Therefore, Plaintiffs’ prayer for relief essentially
asks this Court to declare that a state official has violated state law.
Courts have justified the Ex parte Young exception as a necessary means “to permit the
federal courts to vindicate federal rights and hold state officials responsible to ‘the supreme
authority of the United States.’” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 105
(1984) (quoting Ex parte Young, 209 U.S. 123 (1908)). Thus, when no federal interests are
implicated, “the entire basis for the doctrine of Young . . . disappears.” Id. at 106 (holding the Ex
parte Young exception did not apply to claims “against state officials on the basis of state law”).
Consequently, all state law claims involving a state official’s non-compliance with state law,
whether retrospective or prospective, are barred by the Eleventh Amendment. Ernst v. Rising,
427 F.3d 351 (6th Cir. 2005) (“[B]ecause the purposes of Ex parte Young do not apply to a
lawsuit designed to bring a State into compliance with state law, the States’ constitutional
immunity from suit prohibits all state-law claims filed against a State in federal court, whether
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those claims are monetary or injunctive in nature.”). This principle applies to state-law claims
brought into federal court under pendent jurisdiction. Pennhurst, 465 U.S. at 121 (“[N]either
pendent jurisdiction nor any other basis of jurisdiction may override the Eleventh Amendment.”).
As stated above, Plaintiffs ask the Court to declare that Defendants’ decision to terminate
Plaintiffs’ scholarships were inconsistent with Ohio Revised Code Section 3310.02(E).
Plaintiffs’ basis for declaratory judgment here is an Ohio statute, not the United States
Constitution. Plaintiffs, in essence, ask the Court to instruct Ross how to conform his actions to
state law. This is precisely the type of sovereign invasion that “conflicts directly with the
principles of federalism that underlie the Eleventh Amendment.” Pennhurst, 465 U.S., at 106.
The Court therefore finds the Ex parte Young exception does not apply to Plaintiffs’ declaratory
judgment claim as set forth in Count II of their Amended Complaint, and that the Eleventh
Amendment bars the Court from considering this claim. Defendants’ Motion to Dismiss is welltaken as to Count II of Plaintiffs’ Amended Complaint.
C.
Plaintiffs’ Due Process Claim
Unlike their declaratory judgment action, Plaintiffs’ due process claim concerns an
alleged violation of federal law, namely the Due Process Clauses of the Fifth and Fourteenth
Amendments. (Doc. 15, Am. Compl. at ¶¶ 100-109). Plaintiffs assert that the ODE and Ross
deprived them of an invested property right (their EdChoice scholarships) without due process.
(Id. at ¶ 103). Whether this Court has jurisdiction to consider Plaintiffs’ constitutional due
process claim under Ex parte Young depends on whether the claim (1) is asserted against a state
official in his official capacity; (2) seeks prospective injunctive or declaratory relief and (3)
concerns a continuing violation of federal law.
If Plaintiffs fail to meet any of these three
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requirements, the Ex parte Young exception will not apply and the general rule—sovereign
immunity—will divest the Court of jurisdiction to consider their due process claim.
1.
State Official as Defendant
To meet the first requirement of the Ex parte Young exception, Plaintiffs’ due process
claim must be directed against a state official in his official capacity. In their Complaint,
Plaintiffs named both the ODE and Dr. Richard A. Ross, in his capacity as ODE’s
Superintendent of Public Instruction, as defendants to the action. (See Doc. 1, Compl.; Doc. 14,
Am. Compl.). As to Ross, it is clear that Plaintiffs have met the first requirement of the Ex parte
Young exception: Plaintiffs’ due process claim is directed at Ross, a state official, in his official
capacity. Accordingly, Plaintiffs have met the first requirement of the Ex parte Young exception
insofar as their claims concern Ross in his official capacity.
Plaintiffs’ claim against the ODE does not fare as well, however. The ODE is not a state
official, but rather an agency, or arm, of the State. See Ohio Rev. Code § 3301.01; Moss v.
Columbus Bd. of Educ., No. 2:00-CV-855, 2001 WL 1681117, at *8 (S.D. Ohio Sept. 27, 2001)
(Sargus, J.). As the Ex parte Young exception applies only to claims asserted against
government officials—and not against the State or its agencies—the Eleventh Amendment
divests this Court of jurisdiction to consider Plaintiffs’ claim insofar as it implicates the ODE.
See Moss, No. 2:00-CV-855, 2001 WL 1681117, at *8 (dismissing plaintiffs’ § 1983 claims
against the ODE on sovereign immunity grounds). For this reason, Plaintiffs cannot sustain their
federal due process claim against the ODE. Consequently, the Court will proceed with its Ex
parte Young analysis only as it pertains to Ross.
8
2.
Prospective Injunctive or Declaratory Relief
As stated above, the Eleventh Amendment divests this Court of jurisdiction to consider a
plaintiff’s retrospective claims against government officials; it does not, however, preclude a
plaintiff from sustaining claims for prospective injunctive or declaratory relief against those
officials. See generally Ex parte Young, 209 U.S. at 159–60. Thus, to satisfy the second prong of
the Ex parte Young exception, Plaintiffs’ due process claim must seek prospective injunctive or
declaratory relief. In determining whether Plaintiffs’ requested remedies are prospective and
equitable or retrospective and monetary, the Court must “examine [the] claims substantively
rather than by the form in which they appear.” Hendricks v. Kasich, No. 2:12-cv-729, 2014 WL
2006800, at *16 (S.D. Ohio May 16, 2004) (Kemp, J.). Retroactive relief compensates the
plaintiff for a past violation of his legal rights, usually resulting in some type of monetary award.
Doe v. Wigginton, 21 F.3d 733, 736 (6th Cir. 1994). On the other hand, prospective relief aims
to directly bring an end to a present violation of federal law by dictating an official’s future
conduct. Papasan v. Allain, 478 U.S. 265, 278 (1986); Rossborough Mfg. Co. v. Trimble, 301
F.3d 482, 489 (6th Cir. 2002). The Sixth Circuit has cautioned, though, that prospective relief
should not automatically be deemed “retrospective” solely because the ultimate judgment may
have some effect on the State treasury. Wigginton, 21 F.3d at 237. When the requested remedy
so implicates the allocation of State funds, “[t]he dividing line . . . is whether the money or the
non-monetary injunction is the primary thrust of the suit.” Barton v. Summers, 293 F.3d 944, 949
(6th Cir. 2002).
While the line between permissibly prospective and impermissibly retroactive can be
difficult to discern, the rationale behind the distinction is sound: When a plaintiff seeks
retroactive (often monetary) relief, the State, not the nominal official, is the “real, substantial
9
party in interest” responsible for compensating plaintiff with monies paid from the State treasury
or public funds. Wigginton, 21 F.3d at 236-37. Conversely, when a plaintiff seeks merely to
“compel a state officers’ compliance with federal law in the future,” the named officials are the
real party in interest, and the effect on the State treasury is merely ancillary. Id.
In conjunction with their federal due process claim, Plaintiffs seek damages in the form
of an injunction, declaratory judgment, reinstatement, court costs, and attorney’s fees. The Court
will consider each in turn.
a.
Injunction
Plaintiffs allege Ross “continues to deprive Plaintiffs of the valuable property interest of
their vouchers without a meaningful opportunity to challenge the denial, without sufficient due
process protections to prevent errors.” (Doc. 15, Am. Compl. at ¶ 103). Consequently, Plaintiffs
seek an injunction enjoining Ross from continuing to violate these rights in the future.
Otherwise stated, Plaintiffs ask the Court to issue an order precluding Ross from permanently
terminating their scholarships without first providing them due process.
In his Motion to Dismiss, Ross urges the Court to look past Plaintiffs’ semantics and
evaluate the substantive, practical implications of Plaintiffs’ claims. Specifically, Ross argues
that Plaintiffs in essence “claim they have been financially damaged by ODE’s actions and seek
to be paid for that damage.” (Doc. 20, Defs.’ Reply at 2). However, Ross does not elaborate on
his basis for this assertion. Plaintiffs expressly represent that they do not seek out-of-pocket
tuition expenses for past school years or any “monetary damages to compensate them for the
Defendants’ failure to provide a more robust procedural safeguard.” (Doc. 19, Pls.’ Memo. Opp.
at 6). Rather, Plaintiffs seek a hearing or some other meaningful avenue by which to challenge
the termination of their EdChoice scholarships.
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The Court finds Plaintiffs’ request for injunctive relief is both prospective and equitable.
The proposed injunction seeks to compel Ross to comply with federal law in the future, i.e. by
providing constitutionally adequate procedural safeguards before permanently depriving
Plaintiffs of their interest in their EdChoice scholarships. Further, this remedy would have only
an ancillary effect on the State treasury, e.g., the cost of conducting a hearing. For these reasons,
the Court finds Plaintiffs’ request for an injunction satisfies the second prong of the Ex parte
Young exception.
b.
Declaratory Judgment
In their Complaint and Memorandum in Opposition, Plaintiffs phrase their requests for
declaratory judgment in the context of their due process claim in two different ways. Plaintiffs
ask the Court to:
1. Declare that Defendants have violated, and are violating, and will continue to violate,
Plaintiffs’ procedural due process rights by continuing to deprive Plaintiffs of a
valuable property interest without sufficient procedural due process protections. (Doc.
15, Am. Compl. at 21).
2. Issue a declaratory judgment finding that Ohio Admin. Code Section 3301-11-14 is
unconstitutional as applied to them. (Doc. 19, Pls.’ Memo. Opp. at 6).
The Court will address each request separately.
Plaintiffs’ first request for declaratory judgment asks the Court to declare that Ross has
violated, and continues to violate, Plaintiffs’ constitutional rights by permanently depriving them
of their EdChoice scholarships without due process. This Court addressed an analogous request
for declaratory judgment in Gies v. Flack, 495 F. Supp. 2d 854 (2007) (Rice, J.). In Gies,
plaintiff, a professor, sought a declaration that the defendants, university officials, violated his
constitutional rights by failing to provide him with a name-clearing hearing upon his removal as
Dean. Id. at 863. This Court found that while some of plaintiff’s requests for declaratory relief
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fell outside of the Ex parte Young exception, not all did. Id. at 863-64. In particular, the Court
found plaintiff’s request for a declaration that the defendants violated his rights by failing to
provide him with a hearing qualified as prospective equitable relief. Id. The Court noted that
this declaratory judgment request was, in effect, part and parcel of plaintiff’s request for
injunctive relief (which asked the Court to direct defendants to provide plaintiff with a nameclearing hearing). Id. at 864. Thus, the Court concluded that this particular request for
declaratory relief was not an impermissible “end run” around sovereignty immunity, and
proceeded to consider plaintiff’s claims on the merits. Id.
As in Gies, the Court finds Plaintiffs’ first request for relief is not an impermissible “end
run” around sovereign immunity, but rather an essential “component of the resolution of
[Plaintiffs’] request for injunctive relief.” Id. The main thrust of this prayer for declaratory
judgment is non-monetary injunctive relief: Plaintiffs seek to compel a state official (Ross) to
comply with federal law (the Due Process Clauses of the Fifth and Fourteenth Amendments of
the United States Constitution), which is the essence of Ex parte Young’s prospective relief
requirement. Moreover, like Plaintiffs’ request for injunctive relief, this remedy would have
only a minor, ancillary effect on the State treasury, e.g., the cost of conducting a hearing. 4
Plaintiffs’ second request for declaratory judgment asks the Court to find the Ohio
Administrative Code’s current “request for reconsideration” procedure, as used by Ross in
affirming Plaintiffs’ scholarship termination, unconstitutional. “An action seeking to enjoin
enforcement of an allegedly unconstitutional statute through a suit against state officials charged
with its enforcement is not barred by the Eleventh Amendment.” McNeilus Truck & Mfg., Inc. v.
4
It is true that there may be additional costs to the State depending on the result of the hearing. However, any such
expense would relate to the substantive state-law based merits of the decision—which, for reasons stated above, is of
no concern to the Court. The Court’s focus here is whether the monetary cost associated with remedying the alleged
violation of Plaintiffs’ due process rights—i.e. the provision of a meaningful opportunity to be heard—significantly
implicates the State treasury, irrespective of the hearing’s ultimate outcome.
12
Ohio ex rel. Montgomery, 226 F.3d 429, 437 (6th Cir. 2000). Further, mirroring the reasons
stated above, the focus of Plaintiffs’ request for declaratory judgment here is prospective and
non-compensatory, with only an ancillary effect on the State treasury.
For these reasons, the Court finds Plaintiffs’ requests for declaratory relief, in the context
of their federal due process claim, satisfy the second prong of the Ex parte Young exception.
c.
Reinstatement
Nowhere in Plaintiffs’ Amended Complaint do they directly request reinstatement of
their EdChoice scholarships in relation to their due process claim. In their Memorandum in
Opposition, however, Plaintiffs ask the Court to reinstate their EdChoice scholarships, “at least
until they can be provided with a constitutionally adequate procedure to guard against wrongful
deprivation.” 5 Ross contends that this reinstatement request is essentially compensatory
monetary relief cloaked in the guise of equity.
As a general rule, the Sixth Circuit has consistently held that reinstatement claims “are
prospective in nature and appropriate subjects for Ex parte Young actions.” See, e.g., Carten v.
Kent State University, 282 F.3d 391, 396 (6th Cir. 2002); Diaz v. Michigan Dep't of Corr., 703
F.3d 956, 964 (6th Cir. 2013); Turker v. Ohio Dep't of Rehab. & Corr., 157 F.3d 453, 459 (6th
Cir. 1998). 6 Moreover, Plaintiffs have expressly represented to the Court that they do not seek
(1) “monetary damages to compensate them for the Defendants’ failure to provide a more robust
5
Plaintiffs do not provide any citation to their Complaint or Amended Complaint as the basis for this relief. Ross
does not raise this issue in his Motion to Dismiss. In the interest of completeness and judicial economy, the Court
will address Plaintiffs’ informal request for reinstatement in regards to their federal due process claim
notwithstanding the absence of a formal prayer for relief.
6
The Court acknowledges that a majority of these cases concern reinstatement in the employment context—a
situation very different from the one now before the Court. While some level of reinstatement is often necessary to
give teeth to a due process judgment, in light of the particular facts, circumstances, and property interests allegedly
involved in this case, the Court is unsure as to what degree reinstatement here would be warranted. However, this is
of little import at this stage of the proceedings, as “the inquiry into whether suit lies under Ex parte Young does not
include an analysis of the merits of the claim,” but rather focuses on the allegations alone. Verizon Maryland, Inc. v.
Pub. Serv. Comm'n of Maryland, 535 U.S. 635, 646 (2002).
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procedural safeguard”; or (2) “damages for the out-of-pocket expenses incurred to keep their
children enrolled in the private schools where they began their education on vouchers.” (Doc. 19,
Pls.’ Memo. Opp. at 6). Ross did not directly challenge Plaintiffs’ assertions in his Reply; rather,
he provided only broad, unsupported, conclusory statements, which the Court finds unavailing.
(See, e.g., Doc. 20, Defs.’ Reply at 2 (“[Plaintiffs] claim they have been financially damaged by
ODE’s actions and seek to be paid for that damage.”). Therefore, based on Plaintiffs’
unequivocal representations as well as the case law cited above, the Court finds that Plaintiffs’
reinstatement request qualifies as prospective equitable relief and falls within the boundaries of
the Ex parte Young exception.
d.
Attorney’s Fees and Costs
Plaintiffs also seek attorney’s fees and court costs in bringing their action. In his Motion
to Dismiss, Ross did not directly reference or contest this specific prayer for relief, but in the
interest of completeness, the Court will address the propriety of Plaintiffs’ request for court costs
and attorney’s fees under the Ex parte Young exception here.
This Court, the Sixth Circuit, and the United States Supreme Court have all held that
requests for attorney’s fees and court costs do not defeat an otherwise proper application of the
Ex parte Young exception. See Campbell v. Miller, 835 F. Supp. 2d 458, 466 (S.D. Ohio 2011)
(Smith, J.) (rejecting the notion that a request for attorney’s fees and costs renders the Ex parte
Young exception inapplicable); Uttilla v. Tennessee Highway Dep’t, 208 F.3d 216 (6th Cir.
2000) (“[I]t is well settled that an award of attorney’s fees ancillary to prospective relief is not
barred by Eleventh Amendment immunity.”) Missouri v. Jenkins by Agyei, 491 U.S. 274, 284
(1989) (“[T]he Eleventh Amendment has no application to an award of attorney’s fees, ancillary
to a grant of prospective relief, against a State.”). The Court finds no reason to depart from this
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well-settled principle here. Accordingly, the Court finds Plaintiffs’ requests for attorney’s fees
and court costs, ancillary to their requests for prospective injunctive and declaratory relief, falls
under the ambit of Ex parte Young.
In sum, based on the law and analysis set forth above, the Court finds Plaintiffs’ federal
due process claim seeks prospective equitable relief, thereby satisfying the second prong of the
Ex parte Young exception.
3.
Continuing Violation of Federal Law
To meet the third and final requirement of the Ex parte Young requirement, Plaintiffs’
due process claim must concern an ongoing violation of federal law. Plaintiffs assert Ross has
continually denied them a meaningful opportunity to be heard in regards to the deprivation of
their EdChoice scholarship property rights. They argue that this constant failure to provide them
with constitutionally adequate procedural safeguards constitutes a continuing violation of federal
law. Ross contends that Plaintiffs’ discontent is based not on a continuous violation of federal
law, but on the static, one-time decision of the ODE to terminate Plaintiffs’ scholarship.
The Court finds Plaintiffs’ due process cause of action satisfies the third prong of the Ex
parte Young exception. If the Court were addressing Plaintiffs’ state law declaratory judgment
action, which essentially asked the Court to address and overturn the ODE’s state law-based
termination decision on its merits, Ross’s arguments would be well-taken. However, Plaintiffs’
due process claim does not center on the ODE’s one-time decision, but rather the ODE’s
perpetual denial of any meaningful opportunity to challenge that decision. Simply put,
Plaintiffs’ due process claim challenges the process, not the substance. Plaintiffs allege that over
the past two years the ODE has continually deprived them of a property interest, i.e., an
EdChoice scholarship, without due process and in violation of their constitutional rights. This
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claim falls squarely within the third prong of the Ex parte Young exception: it alleges an ongoing
(from 2012-present) violation of federal law.
For the foregoing reasons, the Court finds Plaintiffs have met all three requirements of
the Ex parte Young exception to sovereign immunity in regards to their federal due process
claim. Therefore, the Court has jurisdiction to consider Plaintiffs’ due process cause of action as
set forth in Count I of the Amended Complaint.
IV.
CONCLUSION
The Court GRANTS the Ohio Department of Education’s Motion to Dismiss. All of
Plaintiffs’ claims against the Ohio Department of Education are barred by the doctrine of
sovereign immunity and are hereby dismissed with prejudice.
The Court GRANTS in part and DENIES in part Dr. Richard A. Ross’s Motion to
Dismiss. Plaintiffs’ state law-based declaratory judgment action (Count II of the Amended
Complaint) is barred by the doctrine of sovereign immunity and is hereby dismissed with
prejudice. Plaintiffs’ due process claim (Count I of the Amended Complaint), however, falls
within the Ex parte Young exception to sovereign immunity. Accordingly Richard A. Ross’s
Motion to Dismiss for lack of jurisdiction is not well-taken as to Count I, and Plaintiffs are
permitted to proceed with their federal due process claim against Richard A. Ross in his official
capacity.
The Clerk shall remove Document 16 from the Court’s pending motions list.
IT IS SO ORDERED.
/s/ George C. Smith____________
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT
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