ELIJAH NOBLE

v.

FLORIDA INTERNATIONAL UNIVERSITY

Before: TRAWICK, WALSH and SANTOVENIA. SANTOVENIA, J. Elijah Noble (Noble” or “Petitioner”) was a medical student at the Florida International University (“FIU” or “University”) Herbert Wertheim College of Filing # 115866858 E-Filed 10/29/2020 07:00:42

After the hearing, the

MSEPC

memorialized its findings and 1 Notably, Noble was already repeating during the Fall 2018 semester courses he had taken previously. [*3] Page 3 of 16 recommendations in a memorandum dated June 19, 2019. Noble was notified of the MSEPC’s findings and recommendation when the June 19, 2019 memorandum was forwarded to Noble on June 20, 2019 at his University email address and via Federal Express, together with a cover letter. In that communication, Petitioner was advised that he had the right to appeal the MSEPC’s findings and recommendation to the Appeals Committee in accordance with the procedures set forth in the Medical School Student Handbook (“Handbook”). Noble was also advised of the pages and section of the Handbook where the appeal process is addressed, and that the request for an appeal would have to be submitted within 10 business days of the date of the notification. The cover letter also advised Noble of the available grounds for an appeal. A letter from the University dated August 26, 2019 confirms that Petitioner failed to appeal timely the findings and recommendation made by the MSEPC.

Pursuant to the Handbook, the MSEPC forwarded its findings and recommendation from the June 11, 2019 hearing to the Dean of the Medical School for review and approval on July 15, 2019. On July 16, 2019, the Dean issued a decision affirming the MSEPC recommendation. Petitioner was notified of the Dean’s decision on July 18, 2019. On August 12, 2019, Petitioner submitted a request to the Provost’s office seeking to appeal the Dean’s decision. On August 26, 2019, the office of the Provost responded to Petitioner’s request by advising him that in accordance with the Handbook, his request for appeal was not subject to further [*4] Page 4 of 16 review due to his failure to appeal in a timely manner. The Petition asserts several claims. First, Petitioner challenges the validity of the University’s decision upholding the MSEPC’s recommendation. Petitioner points out that Respondent, FIU, imposed a deadline to appeal despite being aware of Petitioner’s medical condition and the fact that he would have difficulty in meeting the appeal deadline. Petitioner requests that Respondent’s policy be overridden and that he be granted an extension to appeal. Petitioner alleges he had medical problems which resulted in missed examinations, and that the same medical problems impacted his ability to meet the appeal deadline. In addition, Petitioner requests that certain of his grades be amended. Petitioner also requests that the grade he received for the Cardiovascular Respiratory Systems class be vacated and replaced with an “incomplete” status. Petitioner further alleges a violation of the Family Educational Rights and Privacy Act (“FERPA”), 20 USC §1232(g). The University argues in response that this court lacks subject matter jurisdiction over the Petition because the Petition was untimely filed; Petitioner failed to exhaust administrative remedies; the University accorded Noble due process; the University adhered to its own regulations and observed the essential requirements of law; competent, substantial evidence supports the University’s administrative findings and decision below; and the Petition improperly seeks relief beyond the scope of this court’s jurisdiction. [*5] Page 5 of 16 Our standard of review of administrative action requires the court to determine “(1) whether procedural due process was accorded; (2) whether the essential requirements of the law were observed; and (3) whether there was competent, substantial evidence to support the administrative findings and judgment.” City of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla. 1982). Timeliness of Petition The decision by FIU on Noble’s appeal to the Provost was issued on August 26, 2019. Noble filed his Petition one day late on September 26, 2019. Accordingly, Respondent’s argument that the Petition should be dismissed because this court lacks subject matter jurisdiction is well-taken. See State of Fla. Dep't. of Highway Safety & Motor Vehicles v. Melendez, 132 So. 3d 1237 (Fla. 3d DCA 2014) ("The 30-day filing deadline established by Rule 9.100(c) is jurisdictional in nature and not merely a matter of procedure...As such, an untimely Petition divests this court of jurisdiction over the untimely filed Petition and it should be dismissed".). Notwithstanding that this court lacks jurisdiction over the Petition, even if we were to address the merits of the Petition, the University raises several other points which it argues must result in a denial of the Petition. We address those points below. Exhaustion of Administrative Remedies The University argues that Petitioner failed to exhaust his administrative [*6] Page 6 of 16 remedies before filing the Petition. It is well-settled that where adequate administrative remedies are available, it is improper to seek relief in the circuit court before those remedies are exhausted. Cmtys. Fin. Corp. v. Fla. Dep't. of Envtl. Reg., 416 So. 2d 813, 816 (Fla. 1st DCA 1982). As a general rule, exhaustion of administrative remedies includes pursuing an appeal from an administrative ruling where a method of appeal is available. Fla. High School Athletic Ass'n v. Melbourne Cent. Catholic High School, 867 So. 2d 1281, 1288 (Fla. 5th DCA 2004). When a petitioner has failed to appeal an administrative decision, Florida courts have generally found that the petitioner has not exhausted administrative remedies. General Electric Credit Corp. of Georgia v. Metropolitan Dade County, 346 So. 2d 1049 (Fla. 3d DCA 1977) (affirmed dismissal of certiorari proceeding in circuit court where no appeal of denial of rezoning application by board of county commission was taken to the Commission as required by statute). See Robinson v. Department of Health, 89 So. 3d 1079 (Fla. 1st DCA 2012) (holding that State employee's failure to appeal Commission on Human Relations' dismissal of whistleblower complaint against employer constituted failure to exhaust administrative remedies). Moreover, certiorari is an extraordinary remedy that is not available to a litigant that had an adequate remedy at law. Bondi v. Tucker, 93 So. 3d 1106, 1111- 12 (Fla. 1st DCA 2012). In this case, it is undisputed that Petitioner failed to appeal [*7] Page 7 of 16 to the Appeals Committee the MSEPC’s findings and recommendations within the 10 business days allowed. Therefore, he failed to exhaust available administrative remedies. Due Process In order to prevail on his Petition under the applicable standard of review, Noble would have to show that the MSEPC hearing did not afford him due process. See City of Deerfield Beach, supra., 419 So. 2d at 626. In student disciplinary actions, due process requires adequate notice, an opportunity to be heard, and substantial evidence to support the penalty. Matar v. Florida Int’l Univ., 944 So. 2d 1153, 1160 (Fla. 3d DCA 2006). The due process requirement of a student administrative proceeding requires that the proceeding must be “essentially fair.” Student Alpha ID No. Guja v. Sch. Bd. of Volusia County, 616 So. 2d 1011, 1012 (Fla. 5th DCA 1993); Abramson v. Fla. Int'l Univ., 704 So. 2d 720, 720 (Fla. 3d DCA 1998) (finding student's due process violations argument without merit as the record demonstrated that the proceeding was “essentially fair”). It is equally clear that disciplinary proceedings do not require the same safeguards afforded to criminal defendants. See e.g., Gordon v. Savage, 383 So. 2d 646 (Fla. 5th DCA 1980). When there is a failure by a student to meet academic standards, procedural due process concerns are far less stringent. See Board of Curators of Univ. of Missouri v. Horowitz, 435 U.S. 78, 86 (1978). [*8] Page 8 of 16 The University points out that Noble was given both notice and a real opportunity to be heard. A review of the appendices filed by the parties (“record”) shows this to be true. The record reflects that Petitioner was present at the June 11, 2019 hearing before the MSEPC where he was given the opportunity to question the four witnesses who appeared. Furthermore, the record reflects that Petitioner was notified of his right to appeal the decision of the MSEPC. Due process is met when there is adequate notice, an opportunity to be heard, and substantial evidence to support the penalty. Matar, supra., 944 So. 2d at 1160. All of these requirements were met in this case2. Essential Requirements of Law The second factor to be evaluated in determining whether the Petition should be granted is whether the University observed the essential requirements of the law in making its decision. As explained in Ivey v. Allstate Insurance Co., 774 So. 2d 679, 682 (Fla. 2000), the departure from the essential requirements of the law necessary for the issuance of a writ of certiorari is something more than a simple legal error. In order to warrant certiorari, there must be a violation of a clearly established 2 Petitioner does not contend that he did not receive proper notice or an opportunity to be heard, but rather that he had difficulties in complying with the appeal deadline because of medical reasons. However, this contention does not negate the fact that Petitioner was provided notice and a full opportunity to be heard as evidenced by his attendance at the MSEPC hearing. [*9] Page 9 of 16 principle of law resulting in a miscarriage of justice if not corrected. See Combs v. State, 436 So. 2d 93, 96 (Fla. 1983). The essential requirements of law can derive from a variety of legal sources, including recent controlling case law, rules of court, statutes, and constitutional law. Allstate Insurance Co. v. Kaklamanos, 843 So. 2d 885, 890 (Fla. 2003). The Florida Constitution offers guidance on the requirements of law applicable here. The Florida Constitution establishes a single state university system governed by the Board of Governors, which has the power to “operate, regulate, control, and be fully responsible for the management of the whole university system.” Art. IX, § 7, Fla. Const. The Board of Governors has delegated broad constitutional authority to individual university boards of trustees to administer their respective universities, and these broad powers include the power to adopt rules and regulations establishing a uniform student code of conduct and related penalties. See Couchman v. University of Cent. Florida, 84 So. 3d 445, 449 (Fla. 5th DCA 2012). The relevant law in this case is derived from the student code which is set forth in the Handbook. Pursuant to the Handbook, the MSEPC has the authority to suspend or dismiss a student from medical school based on academic performance. If the MSEPC makes an adverse recommendation, it is forwarded to the student and the student has the right to appeal the determination to the appeals committee within 10 business days of the notification. If the student does not appeal the adverse [*10] Page 10 of 16 recommendation of the MSEPC in a timely manner, the MSEPC forwards its written findings and recommendation to the Dean for adoption or modification. Once the Dean’s determination to affirm or amend the recommendations has been made, the student is notified by the Executive Dean for Student Affairs. The Handbook provides that: “the Dean’s decision upon receipt of the MSEPC recommendation, as applicable, shall be final agency action unless the student timely files an appeal with the Appeals Committee or the Provost, as applicable, in accordance with the procedures set forth in this HWCOM Medical Student Handbook…” Here, Noble failed to appeal timely the Dean’s decision so that it became final agency action. Noble did not appeal that decision within 30 days so that this court does not have jurisdiction to address the propriety of the Dean’s decision or the MSEPC’s findings and recommendation. A student may appeal the determination of the Appeals Committee when there has been a material failure to provide the student his due process rights, in which case the appeal must be made to the Provost within 5 business days of the issuance of the decision by the Dean. However, the Handbook provides for an appeal to the Provost only for situations where the MSEPC’s recommendations are timely appealed to the Appeals Committee, the Dean affirms or amends the Appeals Committee’s recommendation, and the student timely appeals to the Provost the Dean’s decision on the Appeals Committee’s recommendation. Here, Noble never [*11] Page 11 of 16 appealed the MSEPC’s recommendations in the first place so that the Appeals Committee never reviewed the matter and an appeal to the Provost was thus not available to Noble. Moreover, Petitioner’s appeal to the Provost on August 12, 2019 attempting to challenge the July 16, 2019 decision by the Dean to affirm the MSEPC’s recommendation, even if it had been available pursuant to the Handbook appeal procedure, was late because it was not done within the five-day appeal period. The record also shows that Respondent, FIU complied with all of the procedures in its Handbook. The MSEPC conducted a hearing where Petitioner’s academic performance was evaluated pursuant to the Handbook and other policies. Petitioner was notified of the MSEPC’s recommendation and findings via email and a letter on June 20, 2019. This communication advised Petitioner of his right to appeal the recommendation to the Appeals Committee within ten days. Since Noble did not appeal the MSEPC’s findings and recommendation within the ten-day period, the MSEPC then forwarded its recommendation to the Dean on July 15, 2019. The Dean affirmed the recommendation on July 16, 2019 and Petitioner was advised of the Dean’s decision on July 18, 2019. Petitioner’s submission on August 12, 2019 to the office of the Provost attempting to appeal belatedly the Dean’s decision to affirm the MSEPC’s recommendation was correctly denied by the University since the Petitioner did not timely appeal the MSEPC’s decision. In this case, Petitioner did not comply with the Handbook procedures because [*12] Page 12 of 16 he failed to appeal the MSEPC’s recommendation in a timely manner. Thus, the University did not depart from the essential requirements of the law when it acted in accordance with the procedures in its Handbook. Competent Substantial Evidence In first-tier certiorari review, the circuit court must review the record and determine, among other things, whether the administrative findings and judgment are supported by competent, substantial evidence. See State Dep't of Highway Safety & Motor Vehicles v. Wiggins, 151 So. 3d 457, 462 (Fla. 1st DCA 2014). “Competent substantial evidence” was defined in the leading decision of De Groot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957) as follows: We have used the term “competent substantial evidence” advisedly. Substantial evidence has been described as such evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred. We have stated it to be such relevant evidence as a reasonable mind would accept as adequate to support a conclusion. In employing the adjective “competent” to modify the word “substantial,” we are aware of the familiar rule that in administrative proceedings the formalities in the introduction of testimony common to the courts of justice are not strictly employed. We are of the view, however, that the evidence relied upon to sustain the ultimate finding should be sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached.

(emphasis added). The circuit court acting in its appellate capacity may not substitute its findings for those of the administrative tribunal on issues of fact. See St. Johns County v. [*13] Page 13 of 16 Smith, 766 So. 2d 1097 (Fla. 5th DCA 2000). Noble did not bring to the court’s attention any record evidence showing that the University’s decision is not supported by competent substantial evidence, nor does Noble advance that argument in his Petition. Notwithstanding, the June 19, 2019 memorandum containing the MSEPC’s findings and recommendation on its face evidences the competent, substantial evidence on which the MSEPC relied. The record reflects that Petitioner was present at the June 11, 2019 hearing before the MSEPC where he was given the opportunity to question the four witnesses who appeared. The June 19, 2019 memorandum containing the MSEPC’s findings and recommendation lists the fourteen documents that were reviewed by the MSEPC, a summary of the testimony of the witnesses, and Noble’s educational and disciplinary history at the University. Also, the MSEPC determined that Petitioner had failed two courses, had two other courses pending completion, and had engaged in academic misconduct by taking an in-class proctored quiz outside of the classroom, all of which findings supported the recommendation to dismiss Petitioner from medical school. As such, the decision by Respondent to dismiss Noble is supported by competent substantial evidence. Relief Requested by Petitioner Petitioner requests, inter alia, that this court afford him an extension to appeal the MSEPC’s findings and recommendation and extend the time frame for appeal in [*14] Page 14 of 16 the Handbook. In addition, Petitioner requests that his grades for two classes be reflected differently on his transcript. Noble misapprehends the role of this appellate court and the limited relief which it can grant on a petition for certiorari even were he to prevail. As acknowledged by the Supreme Court in Broward County v. G.B.V. International, Ltd.: On certiorari the appellate court only determines whether or not the tribunal or administrative authority whose order or judgment is to be reviewed has in the rendition of such order or judgment departed from the essential requirements of the law and upon that determination either to quash the writ of certiorari or to quash the order reviewed…The appellate court has no power in exercising its jurisdiction in certiorari to enter a judgment on the merits of the controversy under consideration nor to direct the respondent to enter any particular order or judgment.

787 So. 2d 838 (Fla. 2001). The relief requested by Noble in the Petition must be denied for the additional reason that the requested relief is beyond this court’s jurisdiction to grant in any event. Violation of FERPA This court may only look to whether there are facts in the record constituting competent substantial evidence supporting the final agency action on review. See Wiggins v. Fla. Dept. of Highway Safety & Motor Vehicles, 209 So. 3d 1165, 1171 (Fla. 2017); De Groot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957). However, the alleged FERPA violation is not reviewable here as it occurred after the August 26, [*15] Page 15 of 16 2019 final agency action. The MSEPC’s recommendation was that: Mr. Noble should be given the opportunity to withdraw voluntarily from medical school. If he does not elect to withdraw voluntarily, he will automatically be involuntarily withdrawn from HWCOM within ten days of receiving a final determination. Mr. Noble is not eligible to reapply for admission to HWCOM.

The University’s final determination, in the form of the Dean’s July 16, 2019 memorandum affirming the MSEPC’s recommendation, was submitted to Noble on July 18, 2019 by a letter sent to his email address. By operation of the MSEPC’s recommendation which was affirmed by the Dean, Noble was involuntarily withdrawn from HWCOM as of July 26, 2019 since it appears he had chosen not to withdraw voluntarily. The e-mails attached to the Petition evidence that Noble was requesting to have his grades changed and a hearing thereon in September, 2019, after he would have withdrawn or been involuntarily withdrawn from HWCOM and was no longer a student at the University. Even assuming arguendo that the court were to address Petitioner’s argument that the University is in violation of FERPA 20 USC §1232(g), the record shows that the principal motive of Petitioner in his request under that law was to appeal a grade. It has been determined that FERPA cannot be used as the basis for a cause of action to challenge a grade assigned to a student, except for challenges based on ministerial [*16] Page 16 of 16 error. See Tarka v. Cunningham, 917 F. 2d 890 (5th Cir.1990) (affirming the dismissal of such an action by a student who challenged the validity of the "C" grade given to him in a physics course but did not allege any ministerial or mathematical error in the grade); Lewin v. Medical College of Hampton Roads, 931 F. Supp. 443 (E. D. Va. 1996) (holding that student's complaint was fundamentally a challenge to the substance of his professors' evaluation and, therefore, beyond the reach of the statute). Where, as in this case, the request is fundamentally one to challenge a grade, such challenge falls outside the purview of the FERPA statute. Accordingly, the Petition is DENIED. TRAWICK and WALSH, JJ. concur. COPIES FURNISHED TO COUNSEL

OF RECORD AND TO ANY PARTY

NOT REPRESENTED BY COUNSEL.

[*17] Copies Furnished to: [email protected] [email protected]