John J. Tofano v. Supreme Court of Nevada

Appellant John J. Tofano filed an action in the District of Nevada challenging grading procedures for the essay portion of the Nevada Bar Examination. Appellant contends that the raw score system — whereby a particular raw score is picked to equal a passing grade of 75 — is unconstitutionally vague. Appellant also contends that the examiners’ failure to use a pre-set or model answer for grading essay questions vests unconstitutional discretion in the licensing officials, and results in an unconstitutionally vague standard of a passing grade. The district court dismissed Appellant’s complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction, and pursuant to Rule 12(b)(6) for failure to state a claim. We affirm.

Unsuccessful bar applicants may pursue .two different constitutional challenges; they may assert that the state has unlawfully denied their own individual application, or they may attack a state’s rules and procedures generally, as the rules apply to all applicants. Tofano makes both kinds of challenges, and we deal with each challenge separately.

I. The District Court Lacked Subject Matter Jurisdiction Over…