LIAM O'GRADY, District Judge.
Before the Court are Defendant Fairfax County School Board's ("School Board") Motion to Dismiss (Dkt. No. 49), Defendants Fairfax County & Board of Supervisors' (the "County" and "Board of Supervisors" respectively) Motion to Dismiss (Dkt. No. 52), and Plaintiff Linda A. Eberhardt's ("Eberhardt") Motion For Leave To File Supplemental Brief (Dkt. No. 61). Plaintiff's two-count Amended Complaint (the "Complaint") alleges that the Defendants are liable for breach of contract (Count 1) and for damages resulting from denial of due process and equal protection (Count II).
Eberhardt, an employee of the Fairfax County Public School System, suffered a disabling injury, and as a result, sought out disability benefits from the Fairfax County Employees' Retirement System ("FCERS"). FCERS offers two kinds of disability; (i) ordinary disability and (ii) service-connected disability. Currently, Plaintiff is receiving ordinary disability; however, she contests that she is entitled to receive service-connected disability.
Plaintiff originally applied to FCERS for service-connected disability benefits in July of 2008. FCERS initially denied Eberhardt's request for any disability benefits, but on appeal the FCERS Board of Trustees (the "Trustees") awarded her ordinary disability retirement.
Plaintiff then filed the present action in the Eastern District of Virginia against the FCERS Board of Trustees. The Court granted the Trustees' Motion to Dismiss and gave Plaintiff leave to file an amended complaint, adding Fairfax County as a party. Plaintiff filed an amended Complaint naming the School Board, the Board of Supervisors, and the County as defendants. Meanwhile, Eberhardt pursued an appeal of the Fairfax County Circuit Court decision to the Supreme Court of Virginia.
Defendants in this cause of action filed motions to dismiss. The Court denied the motions without prejudice and stayed this action pending a decision from the Supreme Court of Virginia. The Virginia Supreme Court rendered its decision affirming the Fairfax County Circuit Court's determination on January 13, 2012. This Court lifted the stay, and Defendants noticed Motions to Dismiss which the Court heard on March 16, 2012. The Court has read the parties' briefing and considered the arguments made at the hearing, and this matter is ripe for disposition.
Plaintiff names the School Board as a defendant in this action based on an agency theory. In sum, Plaintiff alleges that FCERS is an agent of both the County and the School Board. Consequently, Plaintiff contends that the School Board bears liability for FCRES' alleged wrongful actions—the subject of the Complaint.
To determine whether FCERS is the School Board's agent, it is first significant to note the legal distinction between agency and apparent agency.
Giordano ex rel. Estate of Brennan v. Atria Assisted Living, Virginia Beach, L.L.C., 429 F.Supp.2d 732, 736-37 (E.D. Va. 2006) (emphasis added). Because Plaintiff has not made a compelling argument that the alleged agency relationship exists by way of an actual agreement between the parties, the Court assumes that Plaintiffs allegations are based on an apparent agency theory.
Assuming, without deciding, that the School Board and FCERS displayed "an appearance of agency paired with acquiescence thereto,"
In contrast, Virginia Code § 51.801 delegates authority to counties, cities, and towns to establish retirement systems. In sum, because the powers of schools boards are limited, and because establishing a retirement system is not included in the School Boards' express powers or powers necessarily implied from those express powers, it would be unreasonable for any third party to believe that the School Board could act as a principal to an organization responsible for administering a retirement system.
Accordingly, the Court finds that the School Board is not a proper party to this cause of action. The School Board's Motion to Dismiss is GRANTED,
Defendant Fairfax County
Virginia statutes establish jurisdictional requirements that must be followed before a party is entitled to sue a county. As set forth in the Virginia Code,
Va. Code § 15.2-1248. Once the governing body is presented with a claim, the following statute becomes relevant:
Va. Code § 15.2-1247. Should the County disallow a claim, the claimant may appeal the decision.
Va. Code § 15.2-1246.
Citing Nuckols v. Moore, 362 S.E.2d 715 (1987), Plaintiff argues that these requirements are inapplicable to her situation because the statutory prerequisites apply only to actions regarding monetary claims. Plaintiff contends that this is, in essence, a claim for declaratory relief. The Court finds Plaintiffs argument unavailing.
The Supreme Court of Virginia has been clear; the statutory claims procedural requirements apply to claims for declaratory relief when they are, at their core, claims for monetary relief. See Chesterfield Cnty. v. Town and Country Apartments and Townhouses, 203 S.E.2d 117, 118 (Va. 1974) ("The determinative question in this case is whether failure to comply with the foregoing Code section bars the maintenance against a county of a declaratory judgment proceeding which basically involves, so far as the county is concerned, a contractual dispute and a resulting monetary claim against the county. We answer the question in the affirmative.").
More importantly, the Court is not faced with determining whether Plaintiff has disguised a monetary claim for breach of contract as one seeking declaratory relief because Plaintiffs request for monetary relief is clear. Count I alleges a claim for "Breach of Contract." She pleads that "[a]s a result of the ... breach of contract, [she] has suffered substantial monetary damages." Compl. ¶ 35 (emphasis added).
Next, the County moves to dismiss Plaintiffs due process claim. Because the Complaint lacks specificity as to the precise nature of the due process deprivation, in concordance with the parties' briefing, the Court will address both procedural and substantive due process, respectively.
A plaintiff alleging she was deprived procedural due process must first establish that she had a legitimate claim of entitlement to a liberty or property interest. See Mallette v. Arlington Cnty. Emps.' Supplemental Ret. Sys. II, 91 F.3d 630, 634 (4th Cir. 1996). Plaintiff has made such a showing here. In determining whether a Plaintiff has a property interest in a benefit, the focus is on whether the Plaintiff has a "legitimate claim of entitlement to [the alleged interest]." Bd. of Regents of State Colls, v. Roth, 408 U.S. 564, 577 (1972). Here, such a claim of entitlement stems, if at all, from the Fairfax County Municipal Code. See Mallette, 91 F.3d at 635. The statute at issue provides that
Fairfax Cnty. Mun. Code § 3-2-35. In sum, if the employee can establish (1) a disability, (2) that arose out of and in the course of service, and (3) the Medical Examining Board makes the requisite certification—the employee may retire. In addition, § 3-2-36 provides that when retired, a member shall receive an annual retirement allowance, (emphasis added).
In determining whether this provision establishes in Plaintiff a statutory entitlement to which due process attaches, or in the alternative, a mere expectation, which is not sufficient to create due process, the Court must consider "the degree to which the decision-makers' discretion is constrained by law." Mallette, 91 F.3d at 635 (citing Board of Pardons v. Allen, 482 U.S. 369, 382 (1987) (O'Connor, J., dissenting)). Unless the benefit is "channeled by law," the Plaintiff has "nothing more than a mere hope of receiving a benefit." Id. In other words, "the statute must act to limit meaningfully the discretion of the decisionmakers." Id. In Mallette, the Fourth Circuit found that the Arlington statute at issue, similar to the Fairfax County statute at issue in the present case, vested in county employees "who met its requirements
As in Mallette, the statutes at issue here provide "particularized standards or criteria [that] guide the decision makers." Id. The only decision left to the FCERS Board is whether the disability occurred in the course of and arose out of the employment. Even then, the Board is directed to consider other bodies who have made a similar determination. Moreover, "[o]nce an employee meets those particularized standards, the Code does not allow [the FCERS] the discretion not to award benefits, or to apply additional or alternative eligibility criteria." Id.; see also Fairfax Cnty. Mun. Code § 3-2-26 ("Upon retirement under the provisions of Section 3-2-35, a member shall receive an annual retirement allowance...."). Additionally, "[t]he right to payment of disability retirement benefits arises by virtue of past labor services and past contributions to a disability fund. Member employees, who contribute their earnings to the system, reasonably expect that accrued benefits will be waiting if they need them and qualify for them." Mallette, 91 F.3d at 636. Thus, if Plaintiff can make a prima facie showing that she has met the listed requirements, the lack of discretion afforded the FCERS Board, in addition to her past contributions, suggest that Plaintiff is entitled to due process before a final decision denying service-connected disability benefits would be proper.
To make the prima facie case, Plaintiff must show that she has a disability, that the disability arose out of her employment, and that the Medical Board of Examiners certified that she is incapacitated. Plaintiffs pleadings allege that she suffered injury on January 5, 2007, and Plaintiffs disability is not disputed. Although the County does not admit that the disability was work related, Plaintiffs ability to secure Workers Compensation indicates that Plaintiff could at least make a prima facie showing that the disability meets the work-related requirement.
Thus, the real issue in dispute is whether Plaintiff can make the requisite showing that she is physically incapacitated for further employment by the employer. Plaintiffs pleadings allege that she was initially denied all forms of disability. On appeal, the FCERS Board awarded her ordinary disability,
Although Plaintiffs medical reports show that she is capable of performing light-duty work, the School Board's inability to place her in a light duty position for over two years indicates that, at least in effect, she lacks the capacity to continue with her prior employer. In any event, these facts are at least sufficient to establish the prima facie showing entitling Plaintiff to procedural due process. The fact that the County has denied Plaintiff disability to date is not dispositive. Roth, 408 U.S. at 577 (clarifying that in Goldberg v. Kelly, 397 U.S. 254 (1970), the Court held that the welfare claimants were entitled to due process even though they "had not yet shown that they were, in fact, within the statutory terms of eligibility").
Once a plaintiff has established a legitimate liberty or property interest, due process requires, at a minimum, notice and an opportunity to be heard. E.g., Goldberg, 397 U.S. 254. But, in some circumstances, procedural due process could require more. In determining how much process is due, considering the circumstances, a court should balance:
Mathews v. Eldridge, 424 U.S. 319, 335 (1976). In addition, the Fourth Circuit directs a district court to consider any post deprivation remedies that a state provides. See Mallette, 91 F.3d at 640 n.6 (quoting Zinermon v. Burch, 494 U.S. 113, 126 (1990) ("The constitutional violation actionable under § 1983 is not complete when the deprivation occurs; it is not complete unless and until the State fails to provide due process.")).
Id. As it stands, Plaintiff is in a position to seek redress in the Fairfax County Circuit Court. Thus, the issue of whether Plaintiff has received all the process she is due is not yet ripe. Consequently, the Court finds that it is not presently in a position to evaluate whether Plaintiff has been denied due process, and this Count is dismissed without prejudice. Should Plaintiff find it necessary to re-plead this allegation before the Court at a later date, she may do so. Should she do so, the Court cautions Plaintiff to consider the pleading standards set forth in Iqba
As for any alleged substantive due process violations, the Court grants Defendant's Motion to Dismiss with prejudice. First, the Complaint does not make clear whether the alleged due process violations are of a substantive or procedural nature. It is in an abundance of caution, and in conformance with the parties' briefing, that the Court addresses both of these separate due process limitations. The substantive aspect of the due process clause bars "certain government actions regardless of the fairness of the procedures used to implement them." Cnty. of Sacramento v. Lewis, 523 U.S. 833, 840 (1998). In determining whether an action violates substantive due process,
Hawkins v. Freeman, 195 F.3d 732, 738 (4th Cir. 1999). Negligent conduct is inadequate to meet this threshold requirement. Indeed, even certain forms of intentional conduct will not suffice. The conduct must be "intended to injure in some way unjustifiable by any government interest." Id. at 742 (citing Lewis, 523 U.S. at 847) (emphasis in original). Plaintiff contends she was denied a contractual property right to retirement benefits. The County has posited sufficient justification for their actions in the memoranda before the Court. Essentially, the County argues that Plaintiff is employable in light duty positions and thus does not qualify for service-connected disability. Although this Court believes that a reviewing body could determine that Plaintiff is entitled to service-connected disability retirement, as a matter of law, the Board's conduct in denying such a right does not rise to the level required to establish a substantive due process violation. Simply put, the County's actions do not "shock the conscience"; nor are they "`fatally arbitrary' in this constitutional sense." Id. To the extent that the complaint intended a claim for substantive due process, it is DISMISSED, with prejudice,
Finally, Defendant moves to dismiss Plaintiffs equal protection claim. The Court first notes that the Complaint is deficient and fails to satisfy the basic pleading standards required under Rule 8 of the Federal Rules of Civil Procedure. Dismissal is appropriate on this basis alone; however, the Court finds it unnecessary to grant leave to amend because this claim is also substantively deficient.
The Court assumes from the briefing before the Court that the equal protection violation is based on a Virginia statute that provides a direct right of appeal from FCERS decisions to the Circuit Court. As interpreted by Virginia's Supreme Court, the relevant statute
To make out a claim for an equal protection violation,
Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001).
As previously mentioned, Plaintiff fails to identify in her Complaint how she has been treated differently from others. It is only in briefing that this alleged disparity comes to light, and the Court assumes from briefing that the equal protection violation is based on Virginia statutes that provide a direct right of appeal only to police officers, as explained supra.
The Plaintiff has also failed to plead that the unequal treatment was the result of intentional or purposeful discrimination. Nor has Plaintiff provided any alleged purposeful discrimination in briefing or at the hearing. Plaintiff repeatedly alleges that she was purposefully denied a right to appeal, but this only affirms that the County acted as governed by the statute. It does not show that the governing statute was itself intentionally discriminatory.
Even assuming that Plaintiff has surmounted each of these hurdles (she has not), the statutory classification passes rational basis review,
In briefing, the County highlights the fact that, unlike other state and local employees, police officers are not entitled to coverage under the Social Security system. This coverage is afforded to other State employees by an agreement entered into between Virginia and the Social Security Commissioner. See 42 U.S.C. § 418 (a)(1), (d)(3) and (5)(A). Not only are police officers not similarly situated with the Plaintiff, but because police officers' disability coverage is more limited, the state also has an interest in providing them with a direct appeal from any decision denying them disability. The Supreme Court has made clear,
F.C.C., 508 U.S. at 314. Because Plaintiff could not plausibly allege that the statute under consideration fails under the scrutiny of rational basis review, and because Plaintiff has not contested Defendant's purported justification for the different treatment in the statute, Plaintiffs equal protection claim must be dismissed with prejudice.
Consistent with the rulings in open Court, the Court GRANTS Plaintiffs Motion for Leave to File Supplemental Brief (Dkt. No. 61).
For these reasons, the Court GRANTS the School Board's Motion to Dismiss (Dkt. No. 49), and GRANTS the County and Board of Supervisors' Motion to Dismiss (Dkt. No. 52).
The Court also GRANTS Plaintiffs Motion for Leave to File Supplemental Brief (Dkt. No. 61).
An appropriate Order shall issue.
In addition, none of the facts pled indicate that the School Board had any control over the FCERS' award decision. Indeed, it is telling that although the School Board stipulated to the fact that Eberhardt's disability was work related, the FCERS Board has apparently not agreed to that finding. Nor has the School Board had any say in FCERS' determination as to what kind of benefits to award Eberhardt.
