Doe v. Baum et al
Filing
157
OPINION AND ORDER granting in part and denying in part 107 Motion for an interim remedy on Count I of the second amended complaint, granting in part and denying in part 133 Motion to dismiss, denying 135 Motion for attorney fees, granting in part and denying in part 138 Motion for partial summary judgment, denying as moot 148 Motion for protective order, and setting date and time for status conference. Signed by District Judge David M. Lawson. (DPer)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOHN DOE,
Plaintiff,
v.
Case Number 16-13174
Honorable David M. Lawson
DAVID H. BAUM, SUSAN PRITZEL,
TABITHA BENTLEY, E. ROYSTER
HARPER, NADIA BAZZY, ERIK
WESSEL, UNIVERSITY OF MICHIGAN,
and THE REGENTS OF THE UNIVERSITY
OF MICHIGAN,
Defendants.
________________________________________________/
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION TO DISMISS, PLAINTIFF’S MOTION FOR PARTIAL
SUMMARY JUDGMENT, AND PLAINTIFF’S MOTION FOR INTERIM RELIEF, AND
DENYING PLAINTIFF’S MOTION FOR INTERIM ATTORNEY’S FEES
This case returns to this Court after remand from the court of appeals, reversing a dismissal
based on the defendants’ earlier-filed motion to dismiss. Plaintiff John Doe was forced out of the
University of Michigan business school in the second semester of his senior year when he was
found to have violated the University’s sexual misconduct policy. After Doe’s one-night stand
with a female freshman student, who filed a complaint with the University’s Office of Student
Conflict Resolution (OSCR), an appeal board concluded that Doe had sexual relations with the
freshman when Doe should have known that she was too drunk to be able to give consent. Doe
protested, filing a complaint with this Court alleging, among other things, that his due process
rights were violated because he was not given the chance to cross-examine his accuser. This Court
dismissed the case, not because it found that cross-examination was a dispensable procedural
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nicety, but because it would not have mattered when Doe had admitted that the woman’s version
of the events of that fateful evening was correct.
The court of appeals disagreed. It construed the pleadings and the administrative record in
the light most favorable to Doe and concluded that the plausibility of the due process claim was
not sufficiently rebutted by the purported confession. Doe v. Baum, 903 F.3d 575, 584 (6th Cir.
2018). It also found that one aspect of Doe’s Title IX claim should advance. The court remanded
the case for further proceedings.
After remand, Doe moved for interim relief, partial summary judgment on his due process
claim, and interim attorney’s fees. The defendants filed another motion to dismiss. The defendants
argue that the second amended complaint does not show that the individual defendants were
personally involved in any due process deprivation, and in any event, they should not be subjected
to damages on the due process claim because of qualified immunity. They do not question the
viability of the Title IX claim, but they contend that punitive damages are not available.
Doe believes that the court of appeals decision gave him a complete victory on the due
process claim, so he should have judgment as a matter of law on liability. He wants an order
requiring the University to vacate the finding that he violated the sexual misconduct policy and
the resulting sanctions, to expunge the documents concerning the investigation and findings, to
enjoin the defendants from disclosing information about the whole episode to third parties and
from commencing another appeal hearing, to award him the degree he was on his way to earning,
and to repay him the tuition he spent finishing his degree at another university.
The second amended complaint contains sufficient facts to establish the personal
involvement of some but not all the defendants. Qualified immunity protects them, though, from
a damage award (but not equitable relief) on the due process claim. Doe is not yet entitled to a
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judgment on that claim because the element of prejudice remains in play, although the other
elements of the claim are established as a matter of law. And because the results of the
constitutionally defective appeal procedure must be vacated, Doe is entitled to some, but not all,
of the interim equitable relief he seeks. The motions will be granted in part and denied in part.
I. Background
The facts of the case were covered at length in the Court’s prior opinions on the defendant’s
motion to dismiss and the plaintiff’s post-dismissal motion for relief, and in the opinion by the
Sixth Circuit reversing the dismissal. The amended complaint raised claims that (1) the applicable
definition of “incapacitated” in the University’s sexual misconduct policy (which since has been
revised) is “void for vagueness” (Count I); (2) the appeal process deprived Doe of his right to
procedural due process because he had no meaningful opportunity for a fair hearing and review of
his case by the appeal panel (Count II); (3) the University violated his rights under the First
Amendment by denying him the opportunity to set forth his “objections” in his response to the
penalty proposal (Count III); (4) the appeal panel discriminated against him on the basis of his sex,
contrary to Title IX, by refusing fully and fairly to consider his side of the story (Count IV); and
(5) the University’s policy regarding sexual misconduct appeals had a disparate impact on Doe
based on his sex, because students accused of sexual misconduct are not allowed to have an oral
hearing before the appeal board, to pose questions to the complainant on the record, or to have
certain other privileges inherent in a live hearing (Count V). The complaint also included trailing
claims for gender discrimination under Michigan’s Elliot-Larsen Civil Rights Act (Counts VI and
VII), on the same premises advanced in Counts IV and V. The Court dismissed all counts on the
defendants’ motion. The court of appeals reversed the dismissal of Count II and Count IV. After
remand, the plaintiff filed a second amended complaint alleging that the appeal board proceeding
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denied him due process of law by depriving him of his right to cross-examine his accuser (Count
I), and the appeal board discriminated against him on the basis of sex in violation of title IX when
it reached an erroneous outcome based on his gender (Count II).
The court of appeals held that the plaintiff’s procedural due process claim should not have
been dismissed at the pleading stage “[b]ecause Doe never received an opportunity to crossexamine Roe or her witnesses — not before the investigator, and not before the [University’s
Appeal] Board,” and, therefore, “there is a significant risk that the university erroneously deprived
Doe of his protected interests.” Doe, 903 F.3d at 582. The panel also flatly rejected three out of
four of the University’s arguments in defense of the propriety of its disciplinary appeal process,
which were that: (1) the purpose of cross-examination was fulfilled when the plaintiff was
permitted to review the complainant’s statement and submit a response identifying inconsistencies
in the complainant’s presentation for the investigator; (2) cross-examination was not required
because the university’s decision did not depend entirely on a credibility contest between the
plaintiff and the complainant; and (3) the plaintiff was not prejudiced by the denial of an
opportunity to cross-examine, because, after the disciplinary proceedings had concluded, the
complainant gave a deposition in her civil lawsuit against the plaintiff, and, according to the
University, her deposition testimony was “consistent with what she told the investigator.” Id. at
582-85. The University had raised all those same defenses before this Court, but prospectively
those issues now are dead letters.
The panel leveled a more reserved critique of the defendants’ argument that the failure to
allow cross-examination did not rise to the level of a due process violation because the plaintiff
admitted the conduct for which he was disciplined, concluding that Doe’s admission was
equivocal:
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Because the district court made [the appeal board’s] report part of the pleadings,
we must read it in the light most favorable to Doe. When we do, we cannot conclude
that Doe admitted to any of the critical facts in his case — i.e., that Roe was too
drunk to consent to sex, and that he knew or should have known as much. For one,
we would have to ignore Doe’s claim that the sex was “consensual.” And for
another, because Doe did not mention anything about Roe’s level of intoxication in
his own account of the night’s events, his concession that Roe was correct and that
he “got it all wrong” appears to relate only to the points on which the detective said
their two accounts actually diverged — the order of the sexual act. This alleged
confession thus does not sufficiently rebut the plausibility of Doe’s claim.
Id. at 584 (citations omitted).
After the case was remanded, the Court held a status conference with counsel. Doe’s
attorney took the position that the merits of the due process claim were resolved by the decision
of the court of appeals, and that equity demanded that the plaintiff receive prompt injunctive relief
on that claim, including expungement of all disciplinary consequences precipitated by the adverse
appeal of the OIE investigator’s findings, and an award of the degree for which the plaintiff was
lacking only 13.5 credits when he was forced to withdraw. The University insisted that it stands
ready to provide a “new hearing” on the appeal, in which it is prepared to offer the plaintiff the
opportunity for live cross-examination that he desires. The plaintiff also insisted that, whatever is
the resolution of the due process claim, discovery immediately should commence on the Title IX
claim, which the Sixth Circuit also allowed to proceed. Because the parties appeared unlikely to
reach an agreement on what should be the proper course forward, the Court directed the plaintiff
to file a motion for imposition of a remedy on the due process claim. The plaintiff subsequently
filed his motion for relief, which the Court views now as a motion for interim injunctive relief.
The Court heard oral argument on those motions on February 14, 2019. At the direction of the
Court, the plaintiff also subsequently filed a second amended complaint, referenced above,
realigning the claims and parties to account for the previous undisturbed rulings of the Court and
the impact of the Sixth Circuit’s ruling on the remand.
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After the hearing on those motions, the defendants filed a motion under Rule 12(b)(6) to
dismiss Count I of the Second Amended Complaint for failure to state a claim against Baum,
Pritzel, Bentley, Bazzy, Wessel, Walesby, Frumkin, and Sellers and the claims for monetary relief
against all the individual defendants, and to dismiss the claims for punitive and exemplary damages
on Count II. They do not raise any challenge to the Count I claims for injunctive and declaratory
relief against individual defendant E. Royster Harper, or to the claims for injunctive relief and
compensatory damages against the University under Title IX (Count II).
For his part, the plaintiff responded with a motion for partial summary judgment on Count
I, asking the Court to return him to the status quo before the defective appeal board hearing. He
also asks the Court to enter a permanent injunction vacating the findings against him that were
made by the appeal board and expunging the sanctions imposed upon him as a result of those
findings. Doe also filed a motion for an interim award of attorney fees under 42 U.S.C. § 1988(b)
of $326,824.50, plus costs of $9,986.23.
II. Motion to Dismiss
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007)). A
“claim is facially plausible when a plaintiff ‘pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.’” Matthew N.
Fulton, DDS, P.C. v. Enclarity, Inc., 907 F.3d 948, 951-52 (6th Cir. 2018) (quoting Iqbal, 556
U.S. at 678). The Court “must ‘construe the complaint in the light most favorable to the plaintiff[]
[and] accept all well-pleaded factual allegations as true.’” Id. at 951 (quoting Hill v. Snyder, 878
F.3d 193, 203 (6th Cir. 2017)).
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When deciding a motion under Rule 12(b)(6), the Court looks only to the pleadings. Jones
v. City of Cincinnati, 521 F.3d 555, 562 (6th Cir. 2008). But the Court also may consider the
documents attached to them, Commercial Money Ctr., Inc. v. Illinois Union Ins. Co., 508 F.3d 327,
335 (6th Cir. 2007) (citing Fed. R. Civ. P. 10(c)), documents referenced in the pleadings that are
“integral to the claims,” id. at 335-36, documents that are not mentioned specifically but which
govern the plaintiff's rights and are necessarily incorporated by reference, Weiner v. Klais & Co.,
Inc., 108 F.3d 86, 89 (6th Cir. 1997), abrogated on other grounds by Swierkiewicz v. Sorema, N.A.,
534 U.S. 506 (2002), and matters of public record, Northville Downs v. Granholm, 622 F.3d 579,
586 (6th Cir. 2010); see also Cates v. Crystal Clear Tech., LLC, 874 F.3d 530, 536 (6th Cir. 2017)
(instructing that “‘[w]hen a written instrument contradicts allegations in the complaint to which it
is attached, the exhibit trumps the allegations.’”) (quoting Williams v. CitiMortgage, Inc., 498 F.
App’x 532, 536 (6th Cir. 2012)). However, beyond that, assessment of the facial sufficiency of
the complaint ordinarily must be undertaken without resort to matters outside the pleadings.
Wysocki v. Int’l Bus. Mach. Corp., 607 F.3d 1102, 1104 (6th Cir. 2010).
A. Count I (Due Process)
Doe makes his due process claim in Count I via 42 U.S.C. § 1983, which imposes liability
on state actors who deprive a person of federal constitutional rights. Baynes v. Cleland, 799 F.3d
600, 607 (6th Cir. 2015) (citing Brosseau v. Haugen, 543 U.S. 194, 197-98 (2004)). The plaintiff
must establish the liability of each individual defendant by that person’s own conduct. Ashcroft v.
Iqbal, 556 U.S. 662, 676 (2009) (“Because vicarious liability is inapplicable to Bivens and § 1983
suits, a plaintiff must plead that each Government-official defendant, through the official’s own
individual actions, has violated the Constitution.”).
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The constitutional right Doe invokes is the protection conferred by the Fourteenth
Amendment not to be deprived of property without due process of law. To plead a procedural due
process claim, his complaint must contain facts establishing three elements: “(1) that [he has] a
property interest protected by the Due Process Clause; (2) that [he was] deprived of this property
interest; and (3) that the state did not afford [him] adequate pre-deprivation procedural rights.”
Cahoo v. SAS Analytics Inc., 912 F.3d 887, 900 (6th Cir. 2019). In addition, where the allegation
is that the plaintiff was denied a fair hearing, the “procedural due process claim requires a showing
of prejudice.” Mendoza-Garcia v. Barr, 918 F.3d 498, 508 (6th Cir. 2019) (citing Graham v.
Mukasey, 519 F.3d 546, 549 (6th Cir. 2008) (“In order to prevail on a procedural due process
challenge, Graham must also show prejudice. Indeed, we need not address the merits of a claim
if there is no demonstration of prejudice.”); Al Khouri v. Ashcroft, 362 F.3d 461, 466-67 (8th Cir.
2004); Agyeman v. INS, 296 F.3d 871, 884 (9th Cir. 2002)). “To prove prejudice, he must show
that his ‘claims could have supported a different outcome.’” Ibid. (quoting Sako v. Gonzales, 434
F.3d 857, 864 (6th Cir. 2006)). In order words, he must establish that the information or defense
that he wanted to present could have changed the outcome of the proceeding, if he had been
afforded the full benefit of the process to which he was entitled. Ibid. The Sixth Circuit has
observed that the language used to describe the prejudice standard has varied somewhat in its past
decisions, but in close cases the more permissive formulation first articulated in Sako controls.
Mendoza-Garcia, 918 F.3d at 508 n.1.
All those elements can be found in the second amended complaint in some form or another.
But the plaintiff must establish the liability of each individual defendant by that person’s own
conduct. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“Because vicarious liability is inapplicable
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to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through
the official’s own individual actions, has violated the Constitution.”).
1. Defendant Walesby
The plaintiff alleges nothing more about defendant Walesby beyond that he “reviewed and
approved the [OIE Investigator’s] Report.” But the OIE investigator concluded, and stated in her
report, that there was insufficient evidence to find that Doe violated the sexual misconduct policy.
In his original complaint and briefing in the earlier proceedings before this Court, Doe repeatedly
lauded the fairness of the OIE investigator and the propriety of her finding of no responsibility.
He never has alleged, or even suggested, that Walesby personally was involved in any way in the
defective appeal process.
The Court will dismiss the secomd amended complaint against
defendant Walesby.
2. Defendants Bazzy and Wessel
The lone allegations against defendants Bazzy and Wessel are that they “approved and
overs[aw]” the “resolution process” that ensued after the Appeal Board rendered its finding that
the plaintiff violated the sexual misconduct policy. The “resolution process” was the offer to the
plaintiff to either consent to voluntarily withdrawing from the University or face the inevitable
consequence of expulsion. However, the plaintiff has not alleged any facts to suggest that Bazzy
or Wessel had any personal involvement in the defective appeal procedure itself.
Doe’s attempts to frame any portion of his procedural due process claims as embracing the
“resolution” process after the finding of discipline cannot succeed, because the sole ground for
that claim remanded to this Court was the denial of the right to a live hearing with crossexamination during the appeal process. That also was the only ground on which Doe appealed the
denial of his due process claims. He has waived the right to pursue the claim on any basis other
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than the denial of a live hearing with cross-examination. Moreover, as discussed more fully below,
this Court is bound by the doctrine of the law of the case to address the surviving claim solely as
it was framed in the remand.
Doe also attempted to plead other various claims relating to the resolution process such as
a First Amendment claim based on the demand that he withdraw a statement of objections to the
disciplinary process if he wanted to accept the alternative of voluntary withdrawal. But, again, all
those claims were dismissed on the merits, and the plaintiff did not pursue any of them on appeal.
There are, therefore, no live claims in the case involving any conduct for which defendants Bazzy
and Wessel personally were responsible.
Bazzy and Wessel cannot be found liable for “overseeing” the disciplinary process without
attempting to rectify any constitutional injury. It is axiomatic that neither they (nor any of the
other individual defendants) may be held liable based on either a merely supervisory role, Ashcroft,
556 U.S. at 676, or inaction in the face of a known constitutional violation, absent some affirmative
endorsement or encouragement or direct participation in the misconduct, Hill v. Marshall, 962
F.2d 1209, 1213 (6th Cir. 1992) (“[T]he mere failure to act, even in the face of a statistical pattern
of misconduct, is an insufficient basis for holding a supervisor liable for the constitutional
violations of her employees.”). It is well established that mere knowledge and failure to act do not
suffice to establish the liability of a party under 42 U.S.C. § 1983. Rather, the plaintiff must show
that a defendant “encouraged the specific incident of misconduct or in some other way directly
participated in it.” Phillips v. Roane County, 534 F.3d 531, 543 (6th Cir. 2008). It is not enough
to show merely that a defendant knew of unconstitutional conduct and failed to act. Gregory v.
City of Louisville, 444 F.3d 725, 751 (6th Cir. 2006). Rather, the plaintiff must show that the
defendant “at least implicitly authorized, approved, or knowingly acquiesced in the
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unconstitutional conduct.” Sheehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999)). The second
amended complaint offers nothing to sustain the required showing as to these defendants, and the
case against them will be dismissed.
3. Defendants Frumkin and Sellers
Defendants Jeffery Frumkin, presently the University’s Associate Vice Provost for
Academic and Faculty Affairs, Senior Director of the OIE, and Title IX Coordinator, and Robert
Sellers, the University’s Vice Provost for Equity and Inclusion and Chief Diversity Officer, are
not even mentioned in the second amended complaint beyond the recitations of their job titles.
The plaintiff has not pointed to any facts to suggest that they were involved in any way with his
disciplinary process, or that they even were employed by the University in any capacity at the time
when the due process violation occurred. The fact that they presently hold positions that might in
some prospective sense be involved in compliance with any injunctive relief is immaterial to
whether they have any personal responsibility for the past violations. Moreover, any injunction
certainly would embrace all employees, agents, and representatives of the University in any
capacity, so there is no basis for their inclusion as parties where at least one other fully capable
and responsible official with the undisputed authority to redress the violations (see below) will
remain as a defendant. Because the plaintiff has not alleged any personal involvement by Frumkin
or Sellers in the constitutional torts at issue, the Court will grant the request to dismiss Count I
against them.
4. Defendant Harper
As an initial matter, the University does not challenge the claims for injunctive and
declaratory relief against defendant E. Royster Harper, who the plaintiff alleges “was at pertinent
times the Vice President for Student Affairs at the University,” and “oversaw the OIE and OSCR
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process and signed pertinent documents.” The plaintiff asserts that after “the Appeals Board issued
a decision, finding that Plaintiff had violated the Sexual Misconduct Policy . . . Defendant Harper
accepted the Board’s recommendations on June 13, 2016.” Second Am. Compl. ¶¶ 91-92, ECF
No. 121, PageID.4112-13. The allegation that Harper had the final sign-off on the improperly
imposed discipline certainly suffices to establish her personal involvement, and the University
apparently does not contest the plaintiff’s assertions that she has the power to grant most of the
injunctive relief sought, including expungement of the records and consequences of the discipline.
The second amended complaint states a claim in Count I against defendant Harper.
5. Defendants Baum, Pritzel, and Bentley
Doe sufficiently has alleged that the members of the Appeal Board personally were
involved in the injury to his rights, because it is undisputed that they rendered the finding of
misconduct without conducting any live hearing or allowing him an opportunity to cross-examine
the witnesses against him. All of the disciplinary consequences that followed were precipitated
by that finding, rendered personally by them after a constitutionally unsound process, for which
they personally were responsible. The Court will deny the motion to dismiss Count I against these
defendants.
6. Qualified Immunity
The individual defendants all argue that Doe’s claims for money damages (punitive,
exemplary, and otherwise) against the individual defendants must be dismissed because those
defendants are entitled to qualified immunity. The Court agrees.
“The doctrine of qualified immunity shields government officials performing discretionary
functions from civil liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.”
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Baynes, 799 F.3d at 609 (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Phillips v. Roane
County, Tenn., 534 F.3d 531, 538-39 (6th Cir. 2008)). “To determine whether a government
official is entitled to qualified immunity, [the court must] make two inquiries: ‘First, viewing the
facts in the light most favorable to the plaintiff, has the plaintiff shown that a constitutional
violation has occurred? Second, was the right clearly established at the time of the violation?
These prongs need not be considered sequentially.’” Id. at 609-10 (quoting Miller v. Sanilac Cnty.,
606 F.3d 240, 247 (6th Cir. 2010)). “The plaintiff bears the burden to show that the defendant is
not entitled to qualified immunity.” Id. at 610 (citing Untalan v. City of Lorain, 430 F.3d 312, 314
(6th Cir. 2005)).
“A right is ‘clearly established’ if ‘[t]he contours of the right [are] sufficiently clear that a
reasonable official would understand that what he is doing violates that right.’” Baynes, 799 F.3d
at 610 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). “The relevant inquiry is
‘whether it would be clear to a reasonable [official] that his conduct was unlawful in the situation
he confronted.’” Ibid. (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)); see also J. Endres v.
Ne. Ohio Med. Univ., --- F.3d ---, No. 18-3825, 2019 WL 4125263, at *14 (6th Cir. Aug. 30, 2019).
“The purpose of the ‘clearly established’ prong, clarified by the Supreme Court’s decision
in Hope v. Pelzer, is to ensure that officials are on notice that their alleged conduct was
unconstitutional.” Baynes, 799 F.3d at 610 (citing Hope v. Pelzer, 536 U.S. 730, 739, 741 (2002)).
“As Hope made abundantly clear: ‘the salient question . . . is whether the state of the law [at the
time of the action giving rise to the claim] gave respondents fair warning that their alleged
treatment of [the plaintiff] was unconstitutional.’” Ibid. (quoting Hope, 536 U.S. at 741).
“Although the focus of the clearly established prong is whether the official had notice that his
alleged conduct was improper, . . . qualified immunity is an objective rather than a subjective
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inquiry.” Id. at 610-11 (citing Caudill v. Hollan, 431 F.3d 900, 911-12 (6th Cir. 2005); Cope v.
Heltsley, 128 F.3d 452, 458 (6th Cir. 1997)). “In Hope, the Supreme Court established that, for
purposes of qualified immunity, the precise factual scenario need not have been found
unconstitutional for it to be sufficiently clear to a reasonable official that his actions violate a
constitutional right — that is, for the right to be ‘clearly established.’” Id. at 611 (quoting Hope,
536 U.S. at 739, 741). “[G]overnment officials can still be on notice that their conduct violates
established law even in novel factual circumstances.” Ibid
Here, the right that (now) indisputably was violated — the unconditional right to a live
hearing with the opportunity to cross-examine witnesses — was not clearly established in 2016.
Doe admits as much in his response, where he concedes that “[s]ince Plaintiff brought his case,
the Sixth Circuit has expanded the nature of Doe’s rights to include an additional right to crossexamination to be applied in conjunction with the inviolate, well-established rights to sufficient
notice and a meaningful opportunity to be heard.” Plf.’s Resp., ECF No. 143, PageID.4743
(emphasis in original).
The Sixth Circuit, as well, recognized that the right that it “reaffirmed” when it remanded
the case to this Court was clearly established, at the earliest, only in 2017, by the decision of the
court of appeals in Doe v. University of Cincinnati, 873 F.3d 393 (2017). The court of appeals
recited the evolution of the right to cross-examination at the outset of its opinion:
Thirteen years ago, this court suggested that cross-examination may be required in
school disciplinary proceedings where the case hinged on a question of credibility.
Flaim v. Med. Coll. of Ohio, 418 F.3d 629, 641 (6th Cir. 2005). Just last year, we
encountered the credibility contest that we contemplated in Flaim and confirmed
that when credibility is at issue, the Due Process Clause mandates that a university
provide accused students a hearing with the opportunity to conduct crossexamination. Doe v. Univ. of Cincinnati, 872 F.3d 393, 401-02 (6th Cir. 2017).
Today, we reiterate that holding once again: if a public university has to choose
between competing narratives to resolve a case, the university must give the
accused student or his agent an opportunity to cross-examine the accuser and
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adverse witnesses in the presence of a neutral fact-finder. Because the University
of Michigan failed to comply with this rule, we reverse.
Doe v. Baum, 903 F.3d 575, 578 (6th Cir. 2018). The plaintiff does not cite any authority holding,
nor does he even attempt to argue, that the unconditional right to a live hearing with crossexamination in disciplinary proceedings that could lead to expulsion was clearly established by
any controlling federal decision before 2017.
Instead, in an ambitious episode of revisionist fervor, the plaintiff attempts to recast his
entire case as focused on a supposed violation of the bedrock rights to “notice” and an “opportunity
to respond” that unquestionably have been clearly established for decades as fundaments of due
process jurisprudence. But no live claim of any such basic due process violation presently is before
the Court, nor has it ever been. To begin with, the sole ground on which the dismissal of the due
process claim was reversed and remanded to this Court from the court of appeals was the violation
of the right to cross-examination at a live hearing. Doe v. Baum, 903 F.3d at 588 (“[W]e
REVERSE the district court’s dismissal of John Doe’s procedural due process claim insofar as it
is based on the university’s failure to provide a hearing with the opportunity for crossexamination, we REVERSE the district court’s dismissal of John Doe’s Title IX claim insofar as
it is based on erroneous outcome, and we REMAND for further proceedings consistent with this
opinion.”) (emphasis added). Under the law of the case doctrine, this Court is constrained to
address only those claims that were remanded after appeal, within the bounds of the mandate.
Earlier this year, the court of appeals explained:
What we call law of the case has two parts. The first part, known as the “mandate
rule,” is vertical. A lower court “is bound by the decree [of a higher court] as the
law of the case, and must carry it into execution according to the mandate.” In re
Sanford Fork & Tool Co., 160 U.S. 247, 255 (1895). The rule springs from the
hierarchical structure of our judicial system and leaves no room for discretion. If
the U.S. Supreme Court resolves an issue in a case and remands the matter to us,
we are duty bound to follow the mandate of the superior court. So too at the trial
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level. If we decide an issue and remand the case, the trial court must carry out its
duties in accordance with that mandate.
The second part, the part implicated by this case, is horizontal. It expresses the
practice of courts generally to refuse to reopen what has been decided by an earlier
panel of the same court in the same case. Unlike its upward counterpart, the
sideways version of the law of the case is not a limit to a court’s power. A later
panel of an appellate court, like a district court, has the power to revisit prior
decisions of its own or of a coordinate court in any circumstance.
Medical Center at Elizabeth Place, LLC v. Atrium Health System, 922 F.3d 713, 733-34 (6th Cir.
2019) (Sutton, J., concurring) (citations and quotations omitted, emphasis added).
Moreover, this Court already has dismissed the due process claims framed by the plaintiff
on every other discernible basis besides the denial of a hearing with cross-examination, see Doe v.
Baum, 227 F. Supp. 3d 784, 797 (E.D. Mich. 2017), rev’d and remanded, 903 F.3d 575 (6th Cir.
2018) (“Doe does not criticize the notice given him by the OIE. His procedural due process claim
is predicated on the following allegations: (1) the review panel improperly conducted a ‘de novo
review’ of the record, rather than applying the ‘clearly erroneous’ standard of review called for
under the policy; (2) the definition of ‘incapacitated’ that was applied during investigation and
review of his case is ‘unconstitutionally vague’; (3) Doe was not given an opportunity to appear
personally before the appeal panel or confront or cross-examine the complainant or other
witnesses; and (4) at least one member of the appeal panel had a conflict of interest that rendered
him biased.”) (emphasis added), and the plaintiff has waived his right to advance any of the other
various theories of recovery articulated in his original pleadings by failing to pursue them in his
appeal. It is well settled that a party that fails to pursue a ground for relief on appeal from a claimdispositive ruling is barred from making any headway on that theory after remand. FCA US, LLC
v. Spitzer Autoworld Akron, LLC, 887 F.3d 278, 286-87 (6th Cir. 2018) (holding that “under the
doctrine of law-of-the-case, a party that fails to appeal an issue waives his right to raise the issue
before the district court on remand or before the Sixth Circuit on appeal after remand”) (citations
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and quotations omitted). The plaintiff was successful in his appeal of the dismissal of his denial
of hearing and cross-examination claim. All other grounds for litigation of the due process count
have been either foreclosed or waived by the disposition of that appeal.
The Sixth Circuit and the Supreme Court “have repeatedly told [the lower federal courts]
not to define clearly established law at a high level of generality.” Ashcroft v. al-Kidd, 563 U.S.
731, 742 (2011) (“The general proposition, for example, that an unreasonable search or seizure
violates the Fourth Amendment is of little help in determining whether the violative nature of
particular conduct is clearly established.”); Guertin v. State, 912 F.3d 907, 934 (6th Cir. 2019)
(citing Ashcroft). The right at issue here — and the only right at issue presently in the context of
the due process claim — is the right to “a hearing with the opportunity for cross-examination.”
Doe v. Baum, 903 F.3d at 588. That right, as the court of appeals held, unquestionably was violated
by the University when it disciplined the plaintiff. Equally unquestionably, it was not a right that
was clearly established under federal law at the time of the violations. Therefore, all the individual
defendants are entitled to dismissal of the plaintiff’s claims for money damages on Count I of the
complaint.
Notably, Count I was pleaded against the individual defendants only and not the University.
But any claim for money damages against the University would be barred anyway by Eleventh
Amendment sovereign immunity, since it is an organ of the State. The claims for money damages
on the Title IX claim, of course, counter no such obstacle, as the University concedes.
Nevertheless, the plaintiff admits that Title IX does not permit recovery of any sums for punitive
and exemplary damages. Based on those concessions and for the reasons discussed above, the
Court will dismiss the claims for money damages in Count I against all the individual defendants
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on the basis of qualified immunity and dismiss all the plaintiff’s demands for punitive and
exemplary damages on Counts I and II.
Of course, the qualified immunity defense implicates only the claims for money damages
and “does not bar actions for declaratory or injunctive relief.” Bible Believers v. Wayne County,
805 F.3d 228, 257 n.20 (6th Cir. 2015) (collecting cases). Thus, the claims under Count I for
declaratory and injunctive relief against defendants Harper, Baum, Pritzel, and Bentley, may
proceed notwithstanding the other dismissals.
III. Plaintiff’s Motion for Partial Summary Judgment
The plaintiff believes that he is entitled to a judgment of liability as a matter of law on
Count I under Rule 56(a) because the Sixth Circuit has established that his rights indisputably were
violated by the denial of a live hearing with cross-examination, there is no dispute that he was
denied such a hearing, and it was required because the disciplinary decision turned on a question
of credibility. The defendants respond that the question of prejudice is still in play, and fact issues
remain on that element to be decided.
“Summary judgment is proper ‘if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.’” Pittman v. Experian
Information Solutions, Inc., 901 F.3d 619, 627 (6th Cir. 2018) (quoting Fed. R. Civ. P. 56(a)).
“The moving party bears the burden of showing that no genuine issues of material fact exist,” and
it “must demonstrate the ‘basis for its motion, and identify[] those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,
which it believes demonstrate the absence of a genuine issue of material fact.’” Id. at 627-28
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)). Where the material facts are
mostly settled, and the question before the court is purely a legal one, the summary judgment
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procedure is well suited for resolution of the case. See Cincom Sys., Inc. v. Novelis Corp., 581
F.3d 431, 435 (6th Cir. 2009). But the Court cannot resolve material fact issues on a summary
judgment motion.
The record establishes conclusively that the plaintiff must prevail as a matter of law on
three of the elements of his procedural due process claim. See Cahoo, 912 F.3d at 900. The Sixth
Circuit’s ruling on the appeal, and the undisputed administrative record of the proceedings,
conclusively establishes the first three elements of the procedural due process claim. As the Court
previously ruled, and as affirmed by the court of appeals, the plaintiff had a protected interest in
his continued enrollment. He unquestionably was deprived of that interest when he was forced to
withdraw his enrollment in lieu of expulsion. The Sixth Circuit conclusively held that the plaintiff
was not afforded sufficient pre-deprivation rights when he was denied a live hearing with the
opportunity to cross-examine witnesses. Doe v. Baum, 903 F.3d at 578.
On the fourth element — prejudice — important questions of material fact remain. See
Mendoza-Garcia v. Barr, 918 F.3d at 508. The court of appeals held as much when it concluded
that the Appeal Board had to decide which version of the events to accept, Doe’s or the
complainant’s. It was because the Appeal Board had to decide credibility of the witnesses that
cross-examination became an essential element of due process in that particular OSCR complaint
resolution. The Sixth Circuit “made two things clear: (1) if a student is accused of misconduct,
the university must hold some sort of hearing before imposing a sanction as serious as expulsion
or suspension, and (2) when the university’s determination turns on the credibility of the accuser,
the accused, or witnesses, that hearing must include an opportunity for cross-examination.” Doe
v. Baum, 903 F.3d at 581. The court of appeals reversed the dismissal of the due process claim
because it found that the determination by the appeals board necessarily — and as stated by the
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Board itself in its report — concerned a determination of the credibility of the witness statements
and the resolution of conflicting narratives of the sexual encounter. Id. at 580 (“According to the
[University Appeal] Board, Roe’s description of events was ‘more credible’ than Doe’s, and Roe’s
witnesses were more persuasive.” (quoting Mot. for Prelim. Inj., Ex. D, Appeals Board Report
dated May 25, 2016, ECF No. 6-5, PageID.274-75 (“In light of all this, we find Complainant’s
description of the events leading up to and during her sexual encounter with Respondent to be
more credible than Respondent’s description.”)).
The court of appeals dismissed the defendant’s argument that the due process violation was
excused by the plaintiff’s admissions during his police interview, because it concluded that there
was a question of fact as to whether the plaintiff “admitted” the misconduct. Id. at 584 (“This
court has long held that cross-examination is unnecessary if a student admits to engaging in
misconduct. After all, there is little to be gained by subjecting witnesses to adversarial questioning
when the accused student has already confessed. But at the motion-to-dismiss stage, we cannot
conclude that Doe confessed to the misconduct in this case.”). That conclusion was based on the
ambiguity that the court discerned in the plaintiff’s interview statements. If there presently is a
question of fact before this Court about whether the plaintiff confessed to the misconduct, then
that same question of fact necessarily also was before the Appeal Board — as the Board itself
recognized when it characterized its determination as resolving a question of credibility. The
administrative record that was before the Board is a fixed and historical fact. Nothing that has
been or could be discovered will alter the fact that the question before the Board in the first instance
was one of witness credibility, and where credibility is the deciding factor, a live hearing and crossexamination must be employed to resolve the competing narratives.
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Nevertheless, to secure final relief on the due process claim, including declaratory and
injunctive relief, the plaintiff also must prove that he suffered prejudice from the denial of adequate
process. “To prove prejudice, he must show that his ‘claims could have supported a different
outcome.’” Mendoza-Garcia, 918 F.3d at 508 (quoting Sako v. Gonzales, 434 F.3d 857, 864 (6th
Cir. 2006)). In other words, he must establish that the information or defense that he wanted to
present could have changed the outcome of the proceeding, if he had been afforded the full benefit
of the process to which he was entitled. Ibid. The plaintiff must elicit sufficient proofs to support
a finding that he would not have been disciplined if he had been afforded all the process that he
was due, but the administrative record also discloses sufficient information for the University to
argue plausibly otherwise.
The University insists that it should be allowed to prove that it would have disciplined the
plaintiff anyway even if it had followed a sound process. That is an affirmative defense. The
University is entitled to argue that discipline was inevitable, if it can prove by a preponderance of
the evidence that the plaintiff in fact violated the sexual misconduct policy. Newsome v. Batavia
Local School District, 842 F.2d 920, 928 (6th Cir. 1988) (“To the extent that Newsome seeks
reparative relief aimed at restoring him to the position he would have occupied but for the due
process violation, he is entitled to such relief unless the school district can prove, by a
preponderance of the evidence, that, even had it not deprived Newsome of his right to procedural
due process, he would have still rightfully been expelled.” (emphasis added)). It will have a chance
to do so at trial. And the plaintiff is entitled to put on his own proofs to rebut that defense, which
will precipitate the outcome that he has sought from the outset of this case, that being in effect a
trial de novo on the question whether he violated the sexual misconduct policy.
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Doe is not entitled to summary judgment of liability on Count I of the second amended
complaint. But Rule 56 permits the Court to enter judgment as a matter of law on any material
fact at issue in the case, including on particular elements of a claim. Fed. R. Civ. P. 56(a) (“A
party may move for summary judgment, identifying each claim or defense — or the part of each
claim or defense — on which summary judgment is sought.”); Fed. R. Civ. P. 56(g) (“If the court
does not grant all the relief requested by the motion, it may enter an order stating any material fact
— including an item of damages or other relief — that is not genuinely in dispute and treating the
fact as established in the case.”). The Court will enter judgment as a matter of law in Doe’s favor
on all elements of the due process claim in Count I save one, reserving for trial the question of
whether the plaintiff was prejudiced by the established violation of his rights.
IV. Plaintiff’s Motion for Interim Attorney Fees
The plaintiff moves for an award of interim attorney fees, arguing that he is entitled to
collect them because he has “prevailed” on the due process claim. Under 42 U.S.C. § 1988(b), the
court “may allow the prevailing party” a reasonable attorney’s fee for civil actions brought under
section 1983. But that relief is not appropriate where the plaintiff has not yet prevailed because
substantial obstacles to the plaintiff’s final recovery remain, and where no final judgment has been
or can be entered on either of the surviving claims without the opportunity for discovery and
eventually a trial.
Sometimes preliminary relief will justify an attorney’s fee award under section 1988(b).
See Miller v. Caudill, 936 F.3d 442, 448 (6th Cir. 2019). But that may not occur unless there is “a
court-ordered, material, enduring change in the legal relationship between the parties.” Id. at 448
(citing McQueary v. Conway, 614 F.3d 591, 596 (6th Cir. 2010)). “[F]or the change to have been
enduring, it must have been irrevocable, meaning it must have provided plaintiffs with everything
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they asked for.” Id. at 448 (citing McQueary, 614 F.3d at 599). For Doe, that means that he must
not only survive a motion to dismiss, but he must obtain a court determination that he is entitled
to some sort of permanent relief, such as damages, or re-admission to the University, or an award
of the degree that he was not allowed to finish from that institution.
The plaintiff’s demand for interim attorney fees is inappropriate because he is not yet
properly regarded as a “prevailing party.” Buckhannon Board & Care Home, Inc. v. West Virginia
Department of Health & Human Resources, 532 U.S. 598, 605 (2001) (“[Surviving a motion to
dismiss for failure to state a claim] is not the type of legal merit that our prior decisions, based
upon plain language and congressional intent, have found necessary. Indeed, we held in Hewitt
that an interlocutory ruling that reverses a dismissal for failure to state a claim ‘is not the stuff of
which legal victories are made.’” (quoting Hewitt v. Helms, 482 U.S. 755, 760 (1987) (“[A]n
interlocutory ruling that [a] complaint should not have been dismissed for failure to state a
constitutional claim . . . is not the stuff of which legal victories are made.”)); see also Kiser v.
Reitz, No. 12-00574, 2018 WL 2937898, at *4 (S.D. Ohio June 12, 2018), aff’d sub nom. Kiser v.
Kamdar, No. 17-4041, 2018 WL 4958492 (6th Cir. Oct. 15, 2018) (“[T]he Sixth Circuit’s decision
in Kiser II to reverse the dismissal of Dr. Kiser’s First Amendment and Equal Protection claims
did not confer prevailing party status.”).
Based on those authorities, and because the plaintiff is not entitled to summary judgment
on Count I, the Court will deny the motion for interim attorney fees.
V. Plaintiff’s Motion for Imposition of Remedy on Due Process Claim
On the strength of the court of appeals opinion in this case, Doe also filed a motion for the
following interim relief:
(a)
Vacation and expungement of the finding of responsibility, sanctions and
other actions;
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(b)
Vacation and expungement of the no-contact and permanent suspension
orders issued June 22, 2016;
(c)
Expungement of all documents involving the investigation and findings;
(d)
Enjoining the University, the Defendants and their successors from
disclosing any information to third parties; and
(e)
Enjoining the University, the Defendants and their successors from
disclosing Plaintiff’s identity to third parties.
He also contends that it would be “appropriate” under the circumstances for the University of
Michigan, Ross School of Business, to award the undergraduate degree that he would have
completed if he was not forced to withdraw. And he argues that he should be awarded damages
of at least $30,000, representing the tuition that he paid when he was forced to complete a degree
program through other schools, which required him to complete an additional 55 credit hours of
work. The plaintiff also insists that the University should not be permitted to engage in any
“further process” to reimpose discipline, and the matter should be closed based on the OIE
investigator’s original findings.
Although many of these demands are not warranted unless Doe prevails on his claims in
full (the Sixth Circuit did not render judgment as a matter of law on either of the remanded claims),
other aspects of Doe’s requests can be characterized fairly as preliminary injunctive relief. And
when deciding whether to grant that, “courts balance four factors: (1) whether the movant has
demonstrated a strong likelihood of success on the merits; (2) whether he will suffer irreparable
injury in the absence of equitable relief; (3) whether the injunction will cause substantial harm to
others; and (4) whether the public interest is best served by issuing the injunction.” Miller v.
Parker, 910 F.3d 259, 261 (6th Cir. 2018). “[T]he four considerations applicable to preliminary
injunction decisions are factors to be balanced, not prerequisites that must be met.” In re DeLorean
Motor Co., 755 F.2d 1223, 1229 (6th Cir. 1985).
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“[T]he ‘purpose of a preliminary injunction [generally is] to preserve the relative positions
of the parties until a trial on the merits can be held.’” Benisek v. Lamone, --- U.S. ---, 138 S. Ct.
1942, 1945 (2018) (quoting University of Texas v. Camenisch, 451 U.S. 390, 395 (1981)).
However, “[t]he preliminary injunction serves [another] important purpose — to allow a victory
by [the plaintiff] to be meaningful.” McGirr v. Rehme, 891 F.3d 603, 614 (6th Cir. 2018)
(quotations omitted). “The scope of the remedy [imposed via preliminary injunction] must be no
broader and no narrower than necessary to redress the injury shown.” California v. Azar, 911 F.3d
558, 584 (9th Cir. 2018). “The scope of an injunction is ‘dependent as much on the equities of a
given case as the substance of the legal issues it presents,’ and courts must tailor the scope ‘to meet
the exigencies of the particular case.’” Ibid. (quoting Trump v. Int’l Refugee Assistance Project, -- U.S. ---, 137 S. Ct. 2080, 2087 (2017)). “The purpose of such interim equitable relief is not to
conclusively determine the rights of the parties, but to balance the equities as the litigation moves
forward.” Trump v. Int’l Refugee Assistance Project, 137 S. Ct. at 2087 (quotations and citations
omitted). “In awarding a preliminary injunction a court must also consider the overall public
interest[; it] need not grant the total relief sought by the applicant[,] but may mold its decree to
meet the exigencies of the particular case.” Ibid.
The present posture of the case favors a preliminary injunction imposing some of the
narrow restrictions that the plaintiff urges, with two exceptions. First, the expungement of “all
records” of the investigation is not appropriate where the plaintiff never has advanced, and does
not now have before this Court, any viable claims based on any impropriety in the initial
investigation that resulted in a finding that the plaintiff did not commit any misconduct. Second,
the demand for a permanent prohibition against any further disciplinary proceedings also would
be inappropriate, where there never has been any suggestion that the disciplinary appeal was
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improperly commenced, despite the fact that the ensuing process unquestionably was defective.
However, in order to preserve the status quo until the litigation is resolved, the University will be
enjoined from proceeding with any further disciplinary process until the proceedings on the
plaintiff’s presently pending claims have concluded. All of the pertinent factors weigh in favor of
imposition of narrowly tailored injunctive relief to vacate the consequences of the unconstitutional
administrative proceeding and otherwise preserve the status quo until the merits of the plaintiff’s
claims have been fully addressed.
The first factor weighs strongly in favor of early injunctive relief because, whatever else
may yet be in doubt, the ruling of the court of appeals in the plaintiff’s favor, and the Court’s
judgment as a matter of law on all but one of the elements of the due process claim, demonstrate
the plaintiff’s likelihood of success on the merits of at least his claims for declaratory and
injunctive relief in Count I of his second amended complaint.
The second factor also heavily weighs in favor of injunctive relief, because the risk to the
plaintiff’s reputation due to prospective disclosure of the wrongfully imposed disciplinary
sanctions readily suggests a prospect of irreparable harm. United States v. Miami University, 294
F.3d 797, 819 (6th Cir. 2002) (“[T]he harm suffered by the myriad number of students affected by
the continued release of student disciplinary records is irreparable, and by definition, not
compensable.”); Lucky’s Detroit, LLC v. Double L, Inc., 533 F. App’x 553, 555 (6th Cir. 2013)
(“[R]isk to the requesting party’s reputation satisfies the irreparable injury requirement.” (citing
Wynn Oil Co. v. American Way Service Corp., 943 F.2d 595, 608 (6th Cir. 1991)). The University
contends that the non-disclosure provision of the voluntary withdrawal agreement that was
executed by the parties suffices to assuage the plaintiff’s concern, but the protections of that
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agreement have no prospective value because the agreement must be vacated as the fruit of the
constitutionally unsound disciplinary appeal.
The third factor also weighs in favor of injunctive relief, since the University concedes that
the decision of the appeal board is constitutionally defective and must be set aside. The University
certainly cannot be regarded as suffering any discernible harm from an order merely setting aside
the consequences of an admittedly unconstitutional process that violated the plaintiff’s rights. The
University insists that it is ready to conduct a renewed appeal and wants to do so promptly. But it
has not identified any way in which it will suffer harm from delay of that proceeding during the
pendency of this case. Moreover, the University contends that, under its policies, the plaintiff’s
academic application for degree completion cannot be advanced while the disciplinary appeal
remains unresolved, and, in any event, the plaintiff has not been enrolled in the University for
years by now and already has completed his degree elsewhere.
The fourth factor also favors injunctive relief, because, although there is an obvious public
interest in allowing the University to enforce its sexual misconduct policy, there is a countervailing
interest in ensuring that the policy is implemented in a constitutional manner. When it is not,
equity favors ensuring just relief and compensation for any injury to the rights of students that may
result. If the University so ardently desired to reach a prompt and final resolution of the
disciplinary appeal, then it could have done so years ago simply by providing the plaintiff a
constitutionally sound process. The principal cause of the delay in the final resolution of the
dispute was the University’s stubborn resistance to providing the form of hearing that the plaintiff
deserved, and it will not be significantly harmed by further delay of that resolution until this
litigation reaches its conclusion.
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That leaves the question of what relief the Court should impose to redress the established
constitutional injury and preserve the status quo as this case proceeds. The injunction must be
narrowly tailored to relieve the plaintiff of the immediate consequences of the unconstitutional
appeal board decision and prospectively to prevent further harm and preserve the status quo while
this case is resolved. “It is well-established that federal courts possess broad discretion to fashion
equitable remedies,” Coalition for Government Procurement v. Federal Prison Industries, Inc.,
365 F.3d 435, 460 (6th Cir. 2004), but “[t]he scope of the remedy [imposed via preliminary
injunction] must be no broader and no narrower than necessary to redress the injury shown,”
California v. Azar, 911 F.3d 558, 584 (9th Cir. 2018). In this case, the equities favor a preliminary
injunction requiring the following: (1) the University must vacate the finding of misconduct by the
appeal board, expunge all sanctions and consequences of that finding, including the plaintiff’s
“voluntary withdrawal” and the no-contact directives imposed as a result of that withdrawal
agreement, and restore the plaintiff promptly and fully to the same academic status that he held
just after the favorable finding by the OIE investigator was published, but before the complainant’s
appeal was commenced; (2) the University must be prohibited from disclosing to any third parties
any information concerning the disciplinary appeal and its consequences, or the identity of the
plaintiff in any fashion connected with the disciplinary appeal and this litigation; and (3) the
University must be prohibited from proceeding in any way with any further disciplinary appeal
process until this litigation has concluded.
The first of those three provisions is uncontroversial, and the University concedes that the
finding of the appeal board should be set aside. Moreover, the restoration of the status quo ante
that was upset by the school’s illegal appeal procedure is just under the circumstances, particularly
in light of the real prospect that the plaintiff may prevail and be awarded, at the least, substantially
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the same equitable relief that he now seeks on his due process claim. That does not grant him all
of the final relief that he seeks; the reprieve may be temporary or permanent, depending on the
final outcome of the case. And in other cases, where the plaintiff has made a compelling showing
of likelihood of success on the merits, courts have included reversals of improper administrative
rulings as a component of early injunctive relief. E.g., Business Leaders in Christ v. University of
Iowa, 360 F. Supp. 3d 885, 895 (S.D. Iowa Feb. 6, 2019) (“[T]he Court [granted a motion for
preliminary injunction and] ordered Defendants to restore [the plaintiff’s registered student
organization] status for a period of ninety days. On June 28, 2018, the Court extended the
injunction until the Court renders a judgment in this matter.”).
The second provision prohibiting publication of information about the discipline is a
logical consequence of vacating that finding and all of the consequences of it, and it is necessary
to ensure continued confidentiality since the voluntary non-disclosure agreement must be vacated
along with all of the rest of the fruits of the improper discipline.
The third component is necessary to preserve the rights of the parties until this litigation
concludes, and to foreclose the University from muddling the record by, essentially, writing its
own verdict through a second disciplinary proceeding intended to foreclose the plaintiff’s recovery
of damages by demonstrating that he would have been expelled even after a constitutionally sound
hearing. The University contends that it should be permitted to prove that it would have disciplined
the plaintiff anyway even if it had followed a sound process. But it will have a chance to do so
here, before a factfinder at a trial to establish liability on Count I and liability and damages on
Count II (under Title IX). It certainly is entitled to argue that discipline would have been
inevitable, if it can prove by a preponderance of the evidence that the plaintiff in fact violated the
sexual misconduct policy. See Newsome, 842 F.2d at 928.
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The defendants insist that the proper remedy under the circumstances would be to allow
the University to forge ahead with a new appeal hearing, citing principally Doe v. Alger, No. 1500035, 2017 WL 1483577, at *2 (W.D. Va. Apr. 25, 2017) (“[T]he standard remedy in similar
cases is a new hearing that comports with due process.”). But that is a remedy which typically is
imposed — as it was in Alger — at the end of the litigation, not at the outset. The proceedings
here have not concluded in favor of any party, and no party has (yet) obtained a fully dispositive
ruling on any of the plaintiff’s claims that survived the remand. The University’s preferred course
of further remand to it for a renewed hearing is inappropriate, because the case has not reached its
conclusion.
Doe insists that no further disciplinary proceedings should be permitted at all, but the case
on which he principally relies, Doe v. George Mason Univ., 179 F. Supp. 3d 583 (E.D. Va. 2016),
readily is distinguishable from the mine run of cases in which a renewed hearing with proper
process was allowed to proceed eventually. In that case, the district court concluded that (1) the
appeal was improperly initiated with no proper grounds under the GMU’s policy in the first place;
and (2) there were no provisions in the policy for a renewal of the appeal after the extreme delay
that resulted from the ensuing litigation. For that reason, the district court explained, “the facts of
this case are not typical of cases in which a student is expelled without due process.” Id. at 588.
The court held that the school was not entitled to a redo where “(i) the granting of the appeal was
contrary to GMU procedures in the first instance and (ii) under GMU procedures the time to initiate
a new appeal of the . . . panel’s decision has long since passed.” Id. 588-89.
In this case, there never has been any suggestion that the disciplinary appeal was
commenced improperly. It remains to be seen whether, at the end of all this, the University’s
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policy may allow for its renewal. But whether that may occur is a question for another day, and
perhaps another court.
Finally, the plaintiff insists that the University should be directed immediately to grant him
a degree. His position is understandable in that he already has suffered irreparable harm due to
the expulsion that delayed and greatly enlarged the expense and time required for his education.
See Doe v. GMU, 179 F. Supp. 3d at 587 (observing that, because of the unlawful appeal procedure,
which should not have been undertaken at all, “[t]he clock cannot be turned back to December
2014 to allow plaintiff to resume his course of study on his preferred schedule [and], plaintiff will
complete his education at GMU, if at all, several months or years behind the majority of his peers
with whom he matriculated”). However, the harm due to the extra expense and delay already has
been done, and it cannot be undone by an order of this Court for an award of a degree. Nor has it
been established at this point that the plaintiff cannot be subjected to any further discipline. A
verdict in his favor would foreclose that result, but no verdict has been reached. And a verdict for
the University may allow it to pursue discipline again. If the plaintiff eventually is subjected to a
properly conducted appeal resulting in the same discipline previously imposed, then he could not
— and should not — be awarded a degree. Therefore, directing that remedy at this stage of the
case would be hasty and could work harm to the University by compelling it to award a degree to
a student who is not qualified to receive that honor.
VI. Conclusion
The second amended complaint contains sufficient facts to establish the personal
involvement of defendants David H. Baum, Susan Pritzel, Tabitha Bentley, and E. Royster Harper,
but not the other individual defendants. Qualified immunity shields the individual defendants from
a damage award on the due process claim. The plaintiff is not entitled to partial summary judgment
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of liability on the due process claim, but he is entitled to judgment as a matter of law on certain
elements of that claim. Doe is not yet a prevailing party and therefore is not entitled to attorney’s
fees under 42 U.S.C. § 1988(b). Doe is entitled to certain interim relief.
Accordingly, it is ORDERED that the second motion to dismiss (ECF No. 133) is
GRANTED IN PART AND DENIED IN PART.
The second amended complaint is
DISMISSED WITH PREJUDICE as to defendants Walesby, Bazzy, Wessel, Frumkin, and
Sellers, ONLY. The damage claim against all defendants is DISMISSED WITH PREJUDICE
as to all individual defendants on Count I of the second amended complaint, ONLY. The motion
is DENIED in all other respects.
It is further ORDERED that the plaintiff’s motion for partial summary judgment (ECF
No. 138) is GRANTED IN PART AND DENIED IN PART. The Court determines as a matter
of law that as to Count I of the second amended complaint, the plaintiff had a protected interest in
his continued enrollment, he was deprived of that interest when he was forced to withdraw his
enrollment in lieu of expulsion, and the plaintiff was not afforded sufficient pre-deprivation rights.
The motion is DENIED in all other respects.
It is further ORDERED that the plaintiff’s motion for interim attorney’s fees (ECF No.
135) is DENIED.
It is further ORDERED that the plaintiff’s motion for an interim remedy on Count I of the
second amended complaint (ECF No. 107) is GRANTED IN PART AND DENIED IN PART.
It is further ORDERED that the defendants, their agents, servants attorneys, employees,
and all those in active concert and participation with them who receive actual notice of this order,
are ENJOINED AND ORDERED to immediately do the following:
A. Vacate the finding of misconduct by the appeal board, expunge all sanctions and
consequences of that finding as to plaintiff John Doe, including the plaintiff’s “voluntary
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withdrawal” and the no-contact directives imposed as a result of that withdrawal
agreement, and restore the plaintiff promptly and fully to the same academic status that he
held just after the favorable finding by the OIE investigator was published, but before the
complainant’s appeal was commenced;
B. They are prohibited from disclosing to any third parties any information concerning the
disciplinary appeal and its consequences, or the identity of plaintiff John Doe in any fashion
connected with the disciplinary appeal and this litigation; and
C. They are prohibited from proceeding in any way with any further disciplinary appeal
process until this litigation has concluded.
The motion is DENIED in all other respects.
It is further ORDERED that the defendants’ motion for a protective order (ECF No. 148)
is DENIED as moot.
It is further ORDERED that counsel for the parties appear before the Court on October 3,
2019 at 11:30 a.m. for a status conference to discuss further case management deadlines.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Date: September 30, 2019
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was
served upon each attorney or party of record herein by
electronic means or first-class U.S. mail on September 30,
2019.
s/Susan K. Pinkowski
SUSAN K. PINKOWSKI
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