Skip to content

Get Judicial Watch Updates!


Judicial Watch • Montgomery Opinion and Order

Montgomery Opinion and Order

Montgomery Opinion and Order

Page 1: Montgomery Opinion and Order


Number of Pages:9

Date Created:August 17, 2011

Date Uploaded to the Library:February 20, 2014

Tags:Opinion, MONTGOMERY, order

File Scanned for Malware

Donate now to keep these documents public!

See Generated Text   ∨

Autogenerated text from PDF



This matter comes before the Comt the Defendant's Motion Dismiss Plaintiffs' 
Complaint. (D.E. #13). Defendant moves dismiss the Complaint pursuant Maryland Rule 2-332(b) for failure slate claim upon which relief can granted. Plaintiffs oppose 
Defendant's Motion. (D.E. #17). May 19, 2011 the Defendant filed Reply further support its Motion. (D.E. 27). May 25, 2011, the parties appeared, through counsel, before the 
Court for hearing the Defendant's Motion Dismiss. the conclusion this hearing, the Court took the matter under advisen:1ent. 
BACKGROUND January 20, 2011, Michael Lee Philips, Patricia Fenati and David Drake (hereinafter the "Plaintiffs") filed two-count complaint against the Board Trustees Montgomery College (hereinafter the "Board"). both Counts, Plaintiffs challenge the Board's tuition policy, which affords recent graduates Montgomery County public high schools the right attend Montgomery College in-county tuition rates. Plaintiffs assert that the Board's tuition rate policy violates state law (Md. Code An. Educ.  16-310, al. (Count I)), well federal law U.S.C.  1621 (Count IJ)). 

Montgomery College public college currently serving over 60,000 students. statute, the Board exercises general control over the college. Pursuant Md. Code Ann. Educ. 
AUG 162011 
Clark the Circuit C0url Montgomery County, .k:. 
 l6-103(c), the Board has the power "adopt reasonable rules, regulations, bylaws carry 
out the provisions of" 16-103. Md. Code Ann. Educ. 16-103(c). regard student tuition, the Board has the discretion "charge students reasonable tuition und fees set [them} with view making college education available all qualified individuals low cost" Code 
Ann. Educ.  l6-l03(j). November 2010, the Board adopted resolution incorporating in-county tuition policy into College Policy 45003. This policy establishes three categories tuition rates: County Rate ("C Rate"), State Rate (''S Rate"), and Out State Rate ("OS Rate"). The Board determined charge, among others, ''graduate[ from Montgomery County Public School within the past three years" the Rate. The Rate" the lowest tuition rate, followed the Rate," and then the "OS Rate." their Complaint, Plaintiffs ask that this Court: 
Declare unlawful Defendant Board's long-standing policy allowing students 

who enroll Montgomery College within three years graduating from Montgomery County public high school pay reduced, in-county tuition rates regardless their place residence status unlawfully present aliens, and 

Enjoin Defendant Board from continuing enforce otherwise carry out its unlawful policy. Complaint, pp. 15-16. March 18, 2011, the Board filed Motion Dismiss the Plaintiffs' Complaint. 
(D.E. 13). The Board seeks dismissal Plaintiffs' Complaint the following grounds: 
Congress entrusted enforcement U.S.C.  1621 the Secretary Homeland Security, not Plaintiffs, and created private right action these individuals, 

Md. Code Ann. Educ. 16-310 and COMAR have associated private right action, and 

Plaintiffs have failed allege the essential eJcmcnts necessary for award injunctive relief. Board's Memorandum Points Authorities Support Motion Dismiss, April 2011, Plaintiffs filed their Opposition the Board's Motion Dismiss. 
(D.E. 17). May 19, 2011, the Board filed Response. (D.E. 27). May 25, 2011, the The other categories students eligible for the Rate are Montgomery County residents, regional students, aiMlftR[/"1ontgomery County public school. Philips Board Trustees Montor:iery CollegeAUG 6ZOl1 Czvil No. 342882 
Ck1rk the Circuit Cow 
Montgomery County1 Md. 

parties appeared before the Court for hearing the Board's Motion Dismiss. Following this hearing, the Court took the matter under advisement. May 31, 2011 the Plaintiffs filed Motion for Leave File Supplemental Response 
(D.E. 30), which the Board opposed (D.E. 31). Order dated August 15, 2011 the Comt granted Plaintiffs' Motion for Leave File '.:;upplcmcntal Response. 
DISCUSSION Standard Review Motion Dismiss motion dismiss for failure state claim tests the sufficiency the pleadings. 
allegations and permissible inferences, true, would not afford relief the plaintiff. Id. 
The Court will first address Count Plaintiffs' two-count Complaint. Plaintiffs Cannot Maintain Private Right Action under 8U.S.C.1621 (Count II) Maryland Courts Apply Federal Law Attempts Enforce Federal Statutes. 
Plaintiffs assert that their status Maryland taxpayers entitles them sue enforce federal statute, and that such they not need private right action under U.S.C.  1621. Plaintiffs' assertion incorrect. the Maryland Court Appeals has stated, "lt has long been settled that when action brought state court enforce rights claims under federal law, the Supremacy Clause the United States Constitution requires that federal law and policy 
300 Md. 
tt .--i  

Cimt( :...,1icuit Court Montgomery County, Md. 

Philips Board Trustees Montgomery College Civil No. 342882 

Maryland courts must apply federal law. Pace State, 195 Md. 32, 46-47 (Md. Cl. Spec.:. App. 
2010) (finding that the plaintiff could not enforce any duties imposed the National School Lunch Act, U.S.C.  1751 seq. (2006) against State Maryland defendants because 
Congress did not intend confer private cause action individual with special dietary needs). Plaintiffs' contention that their status Maryland taxpayers sufficient enforce 
federal law plainly violates the Supremacy Clause the United St.4les Constitution and the applicable case law holding that federal law must applied determine rights asserted under 
federal statutes. Thus, the Court must apply federal law determine whether Plaintiffs can maintain private right action under U.S.C.  1621. 287-288). 
Following this focus, Maryland's federal courts have engaged two-step inquiry determine whether Congress intended create implied private right action. First, the courts must determine whether the language the statute contains "rights-creating language." Board Trustees Montgomery College 
AUG 2011  Civil No. 342882 
31Grkof the Circuit Court
ontgomerv Crn1nh1 ,"' 

court must then inspect whether "the statute's remedial schemes entrust government agencies private parties with the primary responsibility statutory enforcement." 

700 F.Supp.2d 754. such, clear the Court that there must right-crealing language well rem edy for private party enforcement, there private right action. 
Plaintiffs move, Count their Complaint, enforce U.S.C.  1621, which provides, relevant part: 
Notwithstanding any other provision law and except provided subsections 
(b) and (d), alien who not: 
(1) qualified alien (as defined section 431 uses  1641]), 
(2) nonimmigrant under the Immigration and Nationality Act, 

(3) alien who paroled into the United States under section 212(d)(5) such Act USCS  1182(d)(5) for less than one year, not eligible for any State local public benefit (as defined subsection (c)). U.S.C.  162l(a). 
Subsection (c) includes payments assistance for postsecondary education State local public benefiL U.S.C.  1621(c)(l)(B). 
Focusing the text U.S.C. Section 1621, apparent that there rightscreating language conferring rights on, even mentioning taxpayers such Plaintiffs. Additionally, and most notably, U.S.C.  1103(a)(l) provides follows: 
The Secretary Homeland Security shall charged with the administration and enforcement this Act and all other laws relating the immigration and naturalization aliens, except insofar this Act such laws relate the powers, functions, and duties conferred upon the President, Attorney General, the Secretary State, the officers the Department State, diplomatic consular officers[.] U.S.C.  1103(a)(l). stated t}he express provision one method enforcing substantive rule suggests that Congress intended preclude others." Sandoval, 532 U.S. 290. The language employed Congress U.S.C.  1103(a)(l) indicates that the Secretary Homeland Security i!Rjutory enforcement U.S.C.  1621, not the AUG Z011  Philips Board a/Trustees Montgomery College 
Civil No. 342882 
Montgomery County, Md. 

COMAR 13.B.07 .02.03(c)(l) provides that out-of-state students shall pay tuirion accordance with 16-3 lO(a) the Education Article. Subsection (c)(l) provides that out-of
county out-of-region students shall pay tuition accordance with  16-3 lO(b) the 
Education Article. 
Plaintiffs move enforce Md. Code Ann. Educ. 16-310 and COMAR 13B.07.02.03, arguing that: 
Montgomery College required charge out-of-state tuition any student who 
attend5 commLmity college the State Maryland and not resident the 
State, and required charge out-of-county tuition any student who, although resident the State, attends community college not supported the county which the student resides. Complaint{ 39. 

However, the Court agrees with the Board's position that even this Court had the power recognize common law taxpayer-plaintiff claim for violation state statute, the 
Maryland legislature's existing statutory scheme entrusting enforcement Md. Code Ann. Educ. Section 16-310 and COMAR Section 13. B.07.02.03 the Maryland Higher Education Commission (MHEC) precludes the recognition any common law individual's dght bring 
such claim. dear that the Maryland Legislature entrusted government agencies, this 
case the MHEC, with the responsibility for statutory enforcement the provisions relating financial aid. GabeHi, 700 Supp. 754; See Md. Code Alll1. Educ.  l-l05(c) (charging MHEC with the responsibility "to assure that State funds for community colleges are spent prudently and accordance with State guidelines"). Further, Md. Code Ann. Educ.  11-107 gives MHEC the express authority seek injunction other judicial remedy for violations. The Court finds that would inconsistent with this legislative scheme for the Plaintiffs able proceed with private right 
action. Silkworth Tmck Inc., Md. App. 264, 270-271 (Md. Ct. Spec. App. 2009). Additionally, neither the statute nor the regulation has any "rights-creating" language, and thus they "create implication intent confer rights pa1ticular class person." 700 F.Supp.2