Lewin v. Cooke

28 F. App'x 186
CourtCourt of Appeals for the Fourth Circuit
DecidedJanuary 7, 2002
DocketNos. 00-1732, 00-1943, 01-1165, 01-1335
StatusPublished
Cited by7 cases

This text of 28 F. App'x 186 (Lewin v. Cooke) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lewin v. Cooke, 28 F. App'x 186 (4th Cir. 2002).

Opinion

OPINION

PER CURIAM.

Jonathan Lewin has sued the Eastern Virginia Medical School of the Medical College of Hampton Roads (EVMS) and various of EVMS’s employees, alleging that the defendants prevailed in Lewin’s previous federal lawsuit by improperly and illegally withholding crucial information. In the prior federal case Lewin invoked the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g(a)(2), in seeking to challenge the score he received on a pharmacology exam at EVMS. Lewin alleged that two of his answers, which were wrong according to the answer key, were in fact correct. Lewin essentially sought to have a federal court determine, for example, whether chlorothiazide or furosemide is the most appropriate treatment for congestive heart failure. Not surprisingly, the district court dismissed his case, holding that FERPA § 1232g(a)(2) only permits actions to correct ministerial or technical inaccuracies in [191]*191educational records, not to challenge the substantive scientific accuracy of a pharmacology examination. See Lewin v. Medical College of Hampton Roads, 931 F.Supp. 443 (E.D.Va.1996) (Lewin I).

In this case Lewin alleges that the defendants denied him access to crucial educational records so as to prevent him from prevailing in his previous federal lawsuit, in violation of FERPA § 1232g(a)(1)(A), 42 U.S.C. § 1985, and Virginia civil conspiracy law. He seeks damages for lost profits, tuition, and other injuries allegedly caused by EVMS’s refusal to correct the grade on his pharmacology exam and EVMS’s subsequent decision to expel him from the school. The current case arises from the sixth complaint filed by Lewin. In addition to three voluntary nonsuits in Virginia state court, Lewin has unsuccessfully litigated one federal and one state lawsuit. Suffice it to say that the factual and legal history leading up to this case is long and complicated. Although this history does not merit a full recitation here, it is set forth in the district court opinion. See Lewin v. Cooke, 95 F.Supp.2d 513, 516-19 (E.D.Va.2000) (Lewin II). The district court rejected Lewin’s FERPA and state law claims, and we affirm.

I.

The primary thrust of Lewin’s current complaint is that the defendants conspired to withhold information from him regarding the pharmacology exam and the circumstances of his dismissal from school, which in turn “caused the dismissal of Mr. Lewin’s case [Lewin I ] from federal court.” Lewin seeks to revive his original claim to correct the grade on his pharmacology exam by alleging that he lost his first federal suit only because the defendants illegally withheld information essential to his case. Upon evaluation of Lew-in’s complaint, we conclude that all but one of his claims are either barred by res judicata or wholly without merit. As for one of his claims for access to educational records under FERPA § 1232g(a)(1)(A), we will assume arguendo that it is not precluded. Nevertheless, Lewin has already received the only remedy to which he is entitled on this claim.

Lewin’s complaint recites a number of denials of access to information, most occurring prior to Lewin I and a few occurring after Lewin I. We will consider the pre-Lewin I denials and the post-Lewin I denials separately.

A.

First, we address those denials of access to information that occurred prior to Lewin’s initiation of his first federal suit. Lewin alleges that in 1991 the defendants failed to provide him access to his pharmacology exam within 45 days of his request, as required by § 1232g(a)(1)(A). He also alleges that in 1993 the defendants denied him access to the unabridged tape recording of the hearing and deliberations of the Student Progress Committee (SPC) that voted to expel him, also in violation of § 1232g(a)(1)(A). To the extent that the defendants denied Lewin access to information prior to his first federal lawsuit, these claims are barred by the doctrine of claim preclusion because they are “claims that were raised or could have been raised in the prior litigation.” Pittston Co. v. United States, 199 F.3d 694, 704 (4th Cir.1999).

Both the § 1232g(a)(2) claim brought in Lewin I and Lewin’s current § 1232g(a)(1)(A) claim allege that the defendants denied Lewin access to documents necessary for him to prove the inaccuracy of the exam. Accordingly, as to Lewin’s access claims under § 1232g(a)(1)(A) that accrued prior to his first federal suit, these claims involve the [192]*192very same facts, are closely related in motivation, and “arise[ ] out of the same transaction or series of transactions” as his § 1232g(a)(2) claim to correct his educational records. Id. (quoting Harnett v. Billman, 800 F.2d 1308, 1313 (4th Cir.1986)). Thus, as to denials of access that occurred prior to Lewin I, Lewin could have brought (and arguably did bring) his § 1232g(a)(1)(A) right of access claims in that suit, so he is barred by claim preclusion from relitigating those claims in this suit.

Lewin argues that these preLewin I denials of access had not accrued into a full-fledged FERPA § 1232g(a)(1)(A) violation because EVMS had not yet manifested a policy of denying access to records. If these denials had not accrued into a § 1232g(a)(1)(A) claim prior to Lewin I, he could not have brought the claim in that suit, and the claim would not be precluded now. FERPA § 1232g(a)(1)(A) applies to an institution “which has a policy of denying, or which effectively prevents, [eligible students] ... the right to inspect and review [their] education records.” 20 U.S.C. § 1232g(a)(1)(A) (emphasis added). Under the statute an institution “which effectively prevents” a student from access to his education records violates § 1232g(a)(1)(A), regardless of whether it also has a “policy of denying” access to such records. Even if EVMS had not manifested a “policy of denying” access to Lewin’s education records prior to his first lawsuit, it had “effectively prevented]” him from inspecting and reviewing those records. Thus, these denials gave rise to claims under § 1232g(a)(1)(A) prior to the first lawsuit. Alternatively, even if EVMS must have manifested a policy of denial in order for a § 1232g(a)(1)(A) claim to accrue, Lewin’s allegations in this suit include multiple denials of access prior to the first federal lawsuit. In his October 8, 1999, motion for judgment filed in Norfolk Circuit Court (which was subsequently removed to federal court), Lewin alleges at least five separate instances prior to Lew-in I in which EVMS faculty or administration denied or refused to consider his repeated requests for access to his exam. He also alleges at least two concurrent denials prior to Lewin I of his requests for access to the full SPC deliberations tape. Taken together, these alleged denials suffice to establish a policy on the part of EVMS of denying access to Lewin’s education records. Accordingly, even if a plaintiff must show a policy of denial of access to state a claim under § 1232g(a)(1)(A), Lewin’s § 1232g(a)(1)(A) right of access claim had accrued by the commencement of his first federal suit.

B.

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Bluebook (online)
28 F. App'x 186, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lewin-v-cooke-ca4-2002.