Wards Corner Beauty Academy v. National Accrediting Commission of Career Arts & Sciences
Filing
140
OPINION AND ORDER re: Denying 63 Motion for Summary Judgment; and Granting in part and Denying in part 70 Motion for Summary Judgment. The Court will conduct a bench trial/evidentiary hearing to begin on November 28, 2017. IT IS SO ORDERED. (SEE ORDER FOR DETAILS). Signed by District Judge Mark S. Davis and filed on 11/24/17. Copies distributed to all counsel of record 11/24/17. (ldab, )
UNITED
STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
Norfolk Division
WARDS CORNER BEAUTY ACADEMY,
Plaintiff,
Civil No.
V.
2;16cv639
NATIONAL ACCREDITING COMMISSION
OF CAREER ARTS & SCIENCES,
Defendant.
OPINION AND ORDER
This
matter
summary
is
judgment
withdrawal
of
before
the
associated
Plaintiff's
Court
with
("Wards
the
limited
accreditation
judicial
action,
Accreditation All,
Cir.
2015),
case
proceeding"
withdrawal
that
be
of Career Sch.
20,
was
2017,
& Colleges,
to
a
Ctr.,
in
an
Inc.
v.
781 F.3d 161
(4th
the Court issued an
that
"trial
a
In light
permissible
Training
concluding
subject
decision
decided
advisement.
Massage
70.
as
the
or
only
other
issue
in
evidentiary
is Plaintiff's claim that Defendant's accreditation
decisionmaker."
must
legally
63,
for
("NACCAS")
accreditation
and the record before the Court,
Order on October
this
Defendant's
ECF Nos.
review
Prof'l
cross-motions
Corner")
barbering and cosmetology academy.
of
on
Id.
was
ECF No.
based
As
113,
only
to
the
not
at
on
made
4-5.
the
bias
by
an
"impartial
All other issues,
record,
issue,
were
the
taken
Court
which
under
requested
additional briefing on whether Plaintiff had a
trial
and
Plaintiff
at
raised
succeed
questions
at
the
as
to
conclusion
the
of
right to a
proper
the
remedy
trial
on
jury-
should
bias.
Id.
7-8.
The
Court
has
now
received
supplemental
briefs
from
both
parties, ECF Nos. 123, 125, and has conducted extensive research
on
the
issues
of
remedies
accreditation context.
and
jury
trial
rights
factfinder,
the
Having considered Plaintiff's contention
that the Court should conduct a full damages trial,
as
in
as well as Defendant's
with a
jury
legal opposition to such
request, the Court has determined that the scope and form of the
trial
is best interpreted and explained after first
the previously reserved summary judgment issues.
set
forth below are
the
Court's
rulings
as
to;
resolving
Accordingly,
(A)
the cross-
motions for summary judgment on all issues other than bias;
(B)
whether money damages are an available remedy in this case if
Plaintiff demonstrates at trial that i t was denied the right to
an
impartial
decisionmaker;
and
(C)
whether
Plaintiff
is
dispute
on
entitled to a jury trial on the issue of bias.
A.
Cross Motions for Summary Judgment
1. Summary of Issues
Excluding
the
issue
of
bias,
the
parties'
summary judgment centers on whether Plaintiff:
correct
remediation
period
to
demonstrate
that
(1)
received the
its
graduation
rate
was
compliant
with
NACCAS
adequate
notice
regarding
its
accurate
internal
records;
requirements;
alleged
and/or
(3)
(2)
received
to
maintain
full
and fair
failure
received a
opportunity to pursue an administrative appeal of the withdrawal
decision.
Defendant
actual
As
did
to
not
rate
accreditation
accurate
records
second
withdraw
graduation
withdrew
the
point,
Plaintiff's
deficiency,
based
without
on
Plaintiff
accreditation
but
rather,
Plaintiff's
notifying
argues
in
to
an
improperly
failure
Plaintiff
due
that
to
maintain
advance
that
accreditation could be withdrawn on such basis.
2.
Standard of Review
a. Summary Judgment Standard
The
Federal
Rules
of
Civil
Procedure
provide
that
a
district court shall grant summary judgment in favor of a movant
if such party "shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law."
Fed. R. Civ. P. 56(a).^
"[T]he mere existence of some
alleged factual dispute between the parties will not defeat an
otherwise
properly supported motion for
summary
judgment;
the
^ The Court incorporates herein its prior discussion of the summary
judgment standard, as applied in analogous Administrative Procedures Act
cases.
See
October
20,
2017
Memorandum
Order,
ECF
No.
113,
at
2
(explaining that when reviewing an agency action, ordinarily, a district
court's role is similar to an appellate tribunal)
(citing Rempfer v.
Sharfstein, 583 F.3d 860, 865 (D.C. Cir. 2009);
Commerce for Intellectual Prop., 129 F. Supp.
2015)).
Haley v.
3d 377,
Under Sec'y of
381 (E.D. Va.
requirement is that there be no genuine issue of material fact."
Anderson v. Liberty Lobby Inc., 477 U.S. 242,
When
confronted
with
cross-motions
247-48
for
(1986).
summary
judgment,
"the court must review each motion separately on its own merits
to determine whether either of the parties deserves judgment as
a matter of law."
Cir.
to
2003)
each
Rossignol v. Voorhaar,
316 F.3d 516,
523
(internal quotation marks and citation omitted).
motion,
the
Court
must
resolve
factual
disputes
competing rational inferences in favor of the non-movant.
b.
As
(4th
As
and
Id.
Accreditation Review Standard
acknowledged
by
both
parties,
the
Fourth
Circuit's
recent opinion in Prof'l Massage provides the standard governing
this
Court's
Corner's
while
review
accreditation.
accreditation
therefore
of
NACCAS's
As
decision
explained
agencies
are
not
by
to
the
state
withdraw
Fourth
actors,
Wards
Circuit,
and
are
"not subject to the strictures of constitutional due
process requirements," because such agencies are "quasi-public"
and
"wield
enormous
power,
some might
employ
fair
members."
omitted).
power
say,"
procedures
Prof'l
over
institutions—life
they owe a
when
Massage,
"common law duty
making
781
decisions
F.3d
at
Distilled to the simplest terms,
and
...
affecting
169-70
death
to
their
(citations
the common law duty
applicable to accreditation agencies requires decisionmakers "to
play i t straight."
Id. at 170.
In
addition
to
establishing
accreditation agencies,
the
legal
duty
owed
by
Prof'l Massage defines the scope of the
Court's inquiry and the degree of judicial deference owed to an
accreditation decision.
Importantly,
"recognition that
...
a
common law duty exists does not authorize courts to undertake a
wide-ranging
review
agencies."
Id.
authorizes
of
Rather,
reviewing
decisionmaking
unreasonable
decision
is
or
courts
based
an
on
(citations omitted).
from
substituting
"to
consider
agency and may not
abuse
of
substantial
judgment
whether
[NACCAS]
is
the
is arbitrary
and
whether
the
Id.
evidence."
for
"conduct a ^
only
discretion
A district court
its
accreditation
the proper scope of the fairness review
decision of an accrediting agency such as
and
by
171
at
therefore prohibited
that
of
the
novo review."
accrediting
Id.
(citations
omitted).
When performing this deferential
should
generally
confine
itself
review,
"to
of
bad
Id.
faith
cautioned
at 174-75.
or
district
improper
judges
record
the
time of
In the absence of a
behavior,
not
to
district court
the
considered by the accrediting agency at
decision."
a
the
extend
was
the final
strong showing
Fourth
the
that
Circuit
judicial
has
review
beyond the "procedural fairness" of the accreditation process.^
' As noted in this Court's prior rulings in this case, the Fourth Circuit
has acknowledged that "an impartial decisionmaker is an essential element
of due process" regardless of whether the claim before court is "a common
See id. at 172 ("When adjudicating common law due process claims
against accreditation agencies, courts should focus primarily on
whether
and
the
accrediting
impartial
body's
procedure
and
reaching its decision.")
internal
whether
it
rules
provided a
followed
its
fair
rules
in
{internal quotation marks and citation
omitted).
3. Summary Judgement Analysis
a. Factual Summary
With
the
exception
of
the
bias/pecuniary
interest
issue,
the parties are largely in agreement as to the relevant facts,
which are established by the record before NACCAS at the time of
its
withdrawal
decision.
"undisputed facts"
entered
in
this
This
Court
incorporates
case.
November 28,
as
2014,
the
set forth in the agreed final pretrial order
ECF
No.
131,
at
1-7.
In
instant case arises out of Defendant's withdrawal of
accreditation
herein
a
cosmetology
and
barbering
short,
the
Plaintiff's
academy.
On
Wards Corner submitted its 2013 Annual Report
to NACCAS, self-reporting that its graduation rate was below the
required
length
threshold
of
the
of
longest
50%,
and
program
further
taught
by
indicating
Wards
that
Corner
was
the
40
law due process claim . . . [or] a constitutional one."
Prof 1 Massage,
F.3d at 177.
Therefore, in limited circumstances, a district court
"may be justified in conducting a more searching inquiry into the
motivations of administrative decisionmakers."
Id.
When performing such
781
inquiry,
"[a]n administrative decisionmaker is entitled to a
of honesty and integrity"; however,
through evidence establishing that
interest in the outcome.
Id.
at 178.
presumption
such presumption can be overcome
a
decisionmaker had a pecuniary
weeks
in length.
December
of
ECF No.
2014,
Plaintiff
followed by a letter,
the
required
report
its
In late November and early
received
an
email
from
rate,
longest
and
program
that
was
based
40
on
Plaintiff's
weeks
in
Plaintiff had twelve months to rectify the deficiency.
72-3,
72-4.
Defendant
Around
provide
NACCAS,
indicating that Wards Corner did not meet
graduation
that
72-2.
the
it
same
with
time.
Plaintiff
information
on
length.
ECF Nos.
requested
the
that
process
and
requirements for correcting Wards Corner's 2013 graduation rate,
and Defendant
responded with an email
the process.
ECF No 72-5.
written
notice
of
the
through
demonstrating
include submitting a
15,
2015.
ECF No.
The
record
attempted,
but
same day outlining
NACCAS also provided Plaintiff with
steps
a
that
necessary
successful
to
2014
achieve
compliance
graduation
rate,
"Preliminary 2014 Annual Report"
to
by April
72-4.
documents
according
that,
to
during
Defendant
2015,
failed,
to
Plaintiff
effectively
revise its reported 2013 graduation rate to reflect that i t was
actually
however,
numbers
72-9.
compliance.
ECF
Nos.
again encouraged Plaintiff
and even extended
Notwithstanding
submit
2014
in
report
was
to
the deadline
such
such data to NACCAS.
annual
72-8,
submit
for
extension.
ECF No.
submitted
by
73-2.
73-1.
Defendant,
preliminary
doing
so.
Plaintiff
ECF No.
failed
Moreover,
Plaintiff
in
2014
the
to
when the
fall
of
2015,
and
NACCAS
compliant
2014
additional
time
determined
graduate
to
submit
that
it
rate,
failed
NACCAS
supplemental
notifying Plaintiff, in boldface text,
one,
opportunity to submit a
identified deficiencies.
After receiving a
2016,
NACCAS made
72-1.
determined
annual
report
allowed
ECF No.
information,^
further
that it had one, and only
76-1.
supplement from Plaintiff in February of
Corner's
that
data,
a
Plaintiff
the decision to withdraw accreditation,
Wards
NACCAS
demonstrate
supplement seeking to correct the
affirming such decision after a
64-3,
to
accreditation
Wards
failed
full appeals process.
Corner
failed
to maintain
was
to
later
ECF Nos.
withdrawn after
submit
internal
accurate
documentation
that can be verified in support of its annual report, and failed
to
demonstrate
within the
5;
77-1,
compliance
the
minimum
timeframes established by NACCAS.
graduation
ECF Nos.
rate
64-5,
at
at 6.
b.
Under
can
with
the
succeed
deferential
only
by
Discussion
Prof'l
proving
Massage
that
the
standard,
record
Plaintiff
from
the
accreditation review process demonstrates that NACCAS's decision
^ The letter allowing the supplement is dated January 4,
2016, with the
date of such letter demonstrating that Defendant did not strictly enforce
the 12 month remediation period that began in late November or early
December of 2014, but rather, provided Wards Corner an additional "notice"
and an additional "opportunity to be heard" before the withdrawal decision
was made.
Moreover, at Wards Corner request, NACCAS subsequently allowed
Wards Comer a
"26 day" extension to submit its supplement.
8
ECF No. 76-3.
to withdraw accreditation was "arbitrary and unreasonable or an
abuse
of
discretion,"
evidence";
when
or
was
not
"based
on
analyzing Plaintiff's arguments,
substantial
this Court is
expressly prohibited from substituting its judgment for that of
NACCAS.
Prof'l
Massage,
781
F.3d
at
171
(citation
omitted).
Applying such deferential standard in this case,
for the reasons
stated in Defendant's summary judgment filings,
the Court finds
that
the notice period,"*
* During
extended
the
one-year
beyond
Defendant
that
reason for withdrawal,^ and the
remediation
one-year,
because
the
period,
Plaintiff
Plaintiff's
never
which
Defendant
communicated
institution offered a
its
ultimately
concern
curriculum
to
that
was longer than one year, it "should" have received 18 months, rather than
12 months, to demonstrate a compliant graduation rate. Moreover, in light
of
the
fact
that
Wards
Corner
utilized
its
one
opportunity
to
provide
supplemental information documenting long past events (i.e., its 2014
graduation rate), it is questionable that being afforded additional time
would have benefited Wards Corner; rather, it appears that Wards Corner's
position turns on whether it should have been afforded a third bite at the
apple to demonstrate 2014 compliance.
Cf. Bristol Univ. v. Accrediting
Council for Indep. Colleges & Sch., 691 F. App'x 737, 743 (4th Cir. 2017)
("Although the Accreditation Criteria provide that two years is the
maximum amount of time ACICS would give an institution like Bristol to
come into compliance, ACICS was not required to provide Bristol any
minimum amount of time to remedy its deficiencies.
Even so, after finding
Bristol
noncompliant,
ACICS
did
not
promptly
withdraw
Bristol's
accreditation but instead provided Bristol with clear deadlines within
which to fix deficiencies.").
® To the extent Plaintiff makes the assertion on summary judgment that the
withdrawal
decision
was
not
based
on
the
"noticed"
non-compliant
graduation rate, even after construing the facts in Plaintiff's favor, the
record plainly establishes that three compliance failures were identified
as reasons for the withdrawal decision, including Wards Corner's failure
to demonstrate a compliant graduation rate.
In light of the deference
owed to NACCAS's decision, the Court rejects Wards Corner's contention
that NACCAS acted improperly by placing the onus on Wards Corner to
demonstrate a compliant graduation rate, particularly in light of the fact
that Wards Corner elected to submit backup documentation for only a
sampling of its 2014 students when it submitted its final supplement to
avoid losing accreditation.
NACCAS
appeals
process,®
principles of fairness.
without mistake
all
conformed
with
fundamental
This is not to say that Defendant acted
throughout
the process,
nor
to say that
this
Court would reach the same accreditation decision if called upon
to perform a de novo adjudication of Ward's Corner's compliance;
those questions, however, are simply not before this Court.
In light of the potential for remand in this case for a de
novo accreditation review based on Wards Corner's allegations of
bias,
this Court finds
it appropriate to avoid a
summary judgment analysis
prejudicing any future
more detailed
in order to limit the possibility of
remand proceeding.
The Court
therefore
reiterates that its ruling is based on the accreditation record
currently
before
deferential
Based
the
on
review
such
Court
the
standard
record,
finds
Court,
and
that
reviewed
established
the
deferential
NACCAS
provided
under
by
the
Prof'l
standard
Ward's
of
highly
Massage.
review,
Corner
with
"significant procedural opportunities to make its case over the
course of
[approximately 15 months]
prior to the revocation of
accreditation," and that it required Wards Corner to comply with
"discernible substantive standards."
172-73.
Defendant's
summary
' Given the appropriate deference,
Prof'l Massage,
judgment
motion
is
781 F.3d at
GRANTED,
in
based on NACCAS's appeals procedure,
which in some ways is similar to a judicial appeals procedure, Wards
Corner fails to demonstrate that "new" evidence advanced by Plaintiff for
the first time on appeal should have been considered by the NACCAS
appellate panel.
10
part,
to the extent that Plaintiff challenges the length of the
remediation
period
afforded
by NACCAS,
whether
the
withdrawal
decision was predicated on Plaintiff's failure to demonstrate a
compliant
adequate
graduation
appeal
rate,
whether
consistent
with
NACCAS's
other claim or subclaim unrelated
See Sojourner-Douglass
& Sch.,
do
685
not
App'x 209,
undertake
credibility
that
F.
of
to
v.
administrative
agency";
law
or
2017)
the
marks
the
their
"elementary
significant,
citations
on
disputes
and conflicting
relevant
facts,
trial/evidentiary
below.
issue
of
for
principles
of
not
rational
is
the
Court
hearing
on
the
Plaintiff's
motion
(internal
for
DENIED in its entirety.
11
DENIED
will
issue
partial
and
the
quotation
motion
inferences
and
total,
"procedural fairness
Defendant's
bias
make
judgment
though
decision.")
omitted).
judgment
the
the
agency's
any
bias.
evidence,
to decisionmaking by accreditation agencies"
accreditation
and
of
an
("Federal courts
conflicting
reviewing Court's emphasis must be on the
in
and
allegations
substitute
rather,
for
afforded
procedures,
the
(4th Cir.
re-weigh
call
to
was
Middle States Ass'n of Colleges
210
determinations,
the
deference
Coll.
Plaintiff
for
summary
based
on
factual
to be
drawn
proceed
of
bias
summary
from
to
a
bench
as
outlined
judgment
is
B. Damages at Trial/Hearing on Bias
1.
Plaintiff's
Parties'
supplemental
Positions
brief
should be permitted to proceed to a
monetary damages
impartial
Corner
resulting
decisionmaker.
contends
conclusion of
that
trial
by a fair tribunal,
including
ruling
from
"lost
by
"a
ECF
if
that
asserts
Plaintiff
jury trial on its claim for
the
denial
of
right
to an
123.
No.
the
that
Specifically,
Wards
factfinder
the
determines
the accreditation decision was
at
the
not made
"Wards Corner would be entitled to damages,"
revenues"
biased
which
decision
are
the
maker."
direct
ECF
result
No.
123,
Defendant's supplemental brief disputes such assertion,
of
at
a
6.
arguing
that "[a]ssessing damages at this stage" would be inappropriate
even
if
Plaintiff
appropriate
its
remedy would
on
its
individuals
whether the
with
a
should be
claim,
remand
without
pecuniary
February 2016
accreditation
bias
instead be
Commission to determine anew,
any
at
succeeds
to NACCAS
interest
or
that
the
to allow
the participation of
in
record demonstrates
continued,
and
the
that
withdrawn.
outcome,
Plaintiff's
ECF No.
125,
7-10.
The parties'
legal
positions
demonstrate
caused
an
briefs on summary judgment reflect conflicting
as
that
injury.
to
whether
any
alleged
See
ECF
Wards
Corner
has
the
burden
conflict
of
interest
No.
at
10-13
12
99,
to
actually
(reflecting
Plaintiff's
cited
assertion
"fair
tribunal"
accreditation
challenge
cases
decision";
the
support of
that Wards
Corner is
order
in
not
"challenge
rather,
fairness
of
the
to
the
cases
decision
Plaintiff's assertion that
relying on
are
making
the
NACCAS's
cited
"to
process"
in
the conflict of interest
alleged in this case resulted in a potential for bias that is
impermissibly
high);
ECF
No.
71,
at
27-28
(reflecting
Defendant's argument that, even if a conflict existed, it had no
effect on the outcome);
cf.
Ass'n of Colleges & Sch.,
Ga.
2009)
St. Andrews Presbyterian Coll.
Inc.,
v.
679 F. Supp. 2d 1320, 1333
(finding that the plaintiff
S.
(N.D.
"failed to show that the
alleged conflict caused it any injury or otherwise affect[ed]
the
accreditation process");
Ct.
1899,
1909
(2016)
Williams
v.
Pennsylvania,
136
S.
("The Court has little trouble concluding
that a due process violation arising from the participation of
an interested judge is a defect 'not amenable'
review,
regardless
dispositive.")
whether
(citation omitted).
law on this issue,
prove an
of
the
to harmless-error
judge's
vote
was
Having surveyed the relevant
the Court finds that whether a plaintiff must
injury stemming
from
the
bias
turns
on whether such
plaintiff seeks to prove only a procedural due process violation
(that
also
it was
seeks
violation
denied an
to
prove
(that
the
a
impartial decisionmaker)
substantive
denial
of
13
a
harm
fair
or whether it
resulting
hearing
from
resulted
such
in
a
different outcome than would have been reached by an impartial
decisionmaker).
damages trial,
Here,
because Plaintiff asserts the right to a
the distinction between a procedurally defective
proceeding that produces a substantively defective result, and a
procedurally defective proceeding that produces a substantively
valid result,
supported by substantial evidence,
is critical to
resolving the parties' conflicting positions.
2. Procedural Deprivation Insufficient to Prove Damages
As
summarized in an administrative
law treatise discussing
remedies for constitutional due process violations:"'
[W]ith respect
to procedural due
process violations,
th[e] opportunity [for damages] may be more apparent
than real.
The Supreme Court in Carey v. Piphus, 435
U.S. 247 (1978), affirmed the availability of damages
for procedural due process violations but limited
damages to compensatory damages.
That is [,] one must
prove
injury
from
the
failure
to
provide
the
constitutionally mandated procedures.
Usually this
requires
proof
that
one
would
have
prevailed
had
an
adequate hearing been conducted.
1 Admin.
L.
& Prac.
§ 2:25
Court's decision in Carey,
(3d ed.).
Subsequent to the Supreme
the Fourth Circuit expressly extended
Carey's application to all cases where "the only constitutional
deprivation suffered is procedural in nature."
F.2d
613,
Circuit
616
went
(4th
on
to
Cir.
1978)
explain
(emphasis
that
even
certainly informs an analysis of the former.
14
added).
when
constitutional due process violation that
The
instant
case
involves
common
law
constitutional due process rights; however,
Burt v. Abel, 585
is
due
the
The
dealing
Fourth
with
a
"actionable under
process
rights,
not
scope of the latter
§ 1983,"
if
the
record
being challenged was
there
was
an
determination
only.
Id.
demonstrates
in fact based on
inadequate
was
that
made,
proven
adverse
"just cause,"
hearing
the
the
before
but
such
deprivation
is
action
that
adverse
procedural
Although a procedural violation can support a § 1983
claim for damages in certain limited circumstances,
"[i]n order
for a plaintiff who has suffered a deprivation of procedural due
process to recover more than nominal damages,
that the procedural deprivation
compensable harm."
Id.
[itself]
he must also prove
caused some independent
(emphasis added).
Accordingly,
and emotional distress stemming from the denial of
due
process,
but
substantive
compensable
not
right,
harm
.
from
are
.
."
the
[ordinarily]
in a
process violation.®
Id.
"in
plaintiff
most
cases,
a
justified
case
who
suffers
of
the
items
of
procedural
due
only
involving
(emphasis added).
[procedural]
deprivation
the
a
"mental
Stated another way,
only
a
procedural
deprivation will recover no more than nominal damages."®
Id.
® The instant case does not involve an individual plaintiff, as contrasted
with an entity, that could conceivably suffer emotional distress stemming
directly from the asserted bias/conflict of interest.
Moreover, the
instant case does not involve a statute providing for damages.
'
In
Burt,
and
other cases
that
follow
herein,
the
respective
court
addresses the denial of a constitutional due process claim, and the
concomitant right to nominal damages, in the absence of actual damages, as
compensation for the constitutional violation.
Cf. Dawkins v. Huffman, 25
F. App'x 107, 107 (4th Cir. 2001) (explaining that Supreme Court precedent
requires an award of nominal damages when a constitutional violation is
there are not otherwise compensable damages).
In contrast,
here, the right at issue is the judicially recognized common law right to
procedural due process in an accreditation decision, and Plaintiff has not
proven but
15
Such rule
recognizes
that
if
a
procedurally defective
process
and a procedurally proper process would yield precisely the same
result,
the consistency in the outcomes eliminates any proximate
harm from
526
F.3d
the procedural
981,
989
deprivation.
{7th Cir.
2008)
See Dargis v.
(" [W] here
a
Sheahan,
plaintiff would
have suffered the same fate had the required hearing been held,
he
is
not
entitled
to
recover
damages
caused
by
the
suspension.").
3. Trial/Hearing Limited to Procedural Violation Claim
Turning back to the instant matter,
the
standard provided by
Prof'l Massage,
administrative decisionmaker
[is]
honesty
federal
and
look behind
"strong
Massage,
integrity,"
and
the motivations of
showing
of
bad
faith
781 F.3d at 177-78
primary contention appears
decisionmaker
to
courts
a
are
or
improper
authorized
"an
to
only upon a
behavior."
(alteration in original)
improperly
that
presumption of
such decisionmakers
to be that
accreditation review process
which holds
entitled
quotation marks and citations omitted).
biased
this Court begins with
Prof'1
(internal
Although Wards Corner's
it was harmed because a
participated
in
the
(along with more than ten unbiased
cited any case law suggesting that nominal damages are available in such
context. Moreover, as the Court concludes below, because the remedy for a
procedural harm resulting from any common law procedural due process
violation (versus a constitutional or civil rights violation) is remand,
nominal damages are not available.
See Gibson v. BSA, 163 Fed. Appx. 206,
211 (4th Cir. 2006); Bailey v. Wash. Area Council of Eng'g Labs., Civ.
Action No. 5:14-cv-59, 2017 U.S. Dist. LEXIS 97805, at *36-37, 41-42 (W.D.
Va.
June 23,
2017).
16
decisiontnakers) ,
Plaintiff also advances,
as a
secondary basis,
the largely speculative contention that the claimed bias had an
actual
While
impact
on
expansion
the
of
outcome
the
record
accreditation review cases,
case,
and
of
such discovery
accreditation
is
not
proceedings.
typically
available
in
some discovery was permitted in this
revealed
that
reasonable
minds
could
differ as to whether the alleged bias resulted in the denial of
procedural
due
process;
therefore,
Plaintiff's primary assertion.
a
trial
is
warranted
on
As "the burden of establishing a
disqualifying interest rests on the party making the assertion,"
Schweiker
v.
McClure,
Plaintiff will have
several
was
"potential
NACCAS's
involved
actually
for
own
bias
[that]
rules
absence
of
on
such
proof
accreditation.
V.
Liaison Comm.
See
188,
in
biased,
196
the
or
is
precluded
withdrawal decision.
successful
U.S.
(1982),
at
trial.
the opportunity to demonstrate that one of
individuals
process
456
accreditation
that
such
from
that
remand
the
bias
is
Educ.,
such
participation
a
that
in
the
If
appropriate
caused
Escuela de Medicina
on Med.
high"
had
781 F.3d at 178.^°
Prof'l Massage,
claim,
individual
impermissibly
him
withdrawal
NACCAS
even
to
in
withdraw
San Juan Bautista,
820 F. Supp.
2d 317,
319
the
Inc.
(D.P.R.
Even in the absence of proof that the asserted pecuniary interest drove
the accreditation decision,
it
is well-established that such a
conflict,
if proven, is a type of bias or potential bias of the highest order.
See
Prof'l Massage, 781 F.3d at 178 (noting that "the potential for bias is
impermissibly high" in cases involving an adjudicator with a pecuniary
interest in the outcome);
see also Williams,
17
136 S.
Ct.
at 1909.
2011)
(recognizing
that
opportunity to have a
"the
essence
fair hearing,"
of
appeals
panel
"could
process
is
the
and that even where there
"is no evidence of improper conduct,"
accreditation
due
the biased member of the
have
tainted
the
decision
process," rendering the proper remedy remand for an "ab initio"
appeals proceeding) ,*
(4th
Cir.
Virginia
Cf.
Gibson v. BSA,
2006)(noting
courts
award
in
the
163 Fed. Appx.
analogous
injunctive
relief
state
206,
context
rather
than
211
that
nominal
damages to vindicate violation of the common law right to fair
procedure).
Although
the
record,
as
supplemented,
warrants
a
trial/evidentiary hearing on Plaintiff's primary contention that
it
was
harmed
participated
similarly
in
because
the
support
a
biased
decisionmaker
accreditation review process,
a
trial/evidentiary
hearing
improperly
it
on
does
not
Plaintiff's
secondary contention that such bias had an actual impact on the
outcome of
of
the
the accreditation review process.
"presumption of
honesty
and
Rather,
integrity"
of
in light
all
of
the
other non-biased decisionmakers that participated in the review
process,
the
lack
of
integrity into question,
any
allegedly
decision,
and
biased
the
whatsoever
calling
such
the somewhat modest pecuniary interest
that forms the alleged bias,
the
evidence
the fairly limited participation of
individual
documentary
18
in
the
evidence
actual
supporting
withdrawal
NACCAS's
decision
to
withdraw
documents
created
by
accreditation,
unbiased
to
NACCAS'
include
staff
long
numerous
before
the
allegedly biased individual played any role in the accreditation
process,
the
Court
finds
that
it
would
exceed
judicial review authorized by Prof'l Massage
bench trial,
jury trial,
afforded
the
rare
administrative
record
review
Wards
action.
which a
reasonable
biased
i t conducted a
Stated simply,
opportunity
through
Corner
to
discovery
has
failed
to
steered,
rather
the
having
supplement
in
an
the
accreditation
uncover
factfinder could conclude
adjudicator
limited
or any other further expansion of
record as to this secondary contention.
been
if
the
evidence
on
that the allegedly
than
impermissibly
participated in, the withdrawal decision.
The
"were
Court
the
therefore
[factfinder]
rejects
to
rule
Plaintiff's
that
Wards
was violated by the conflict of interest,
entitled to
No.
123.
Plaintiff
[monetary]
Instead,
damages,"
remand
demonstrate
a
is
contention
Corner's
that
due process
Wards Corner would be
including "lost revenues."
the
only available
procedural
due
process
remedy
ECF
should
violation
t r i a l . S e e Escuela de Medicina San Juan Bautista,
820 F.
at
Supp.
Notwithstanding Plaintiff's contention that monetary damages are
available in the rare case where an accreditation agency "run[s] off the
rails" and proven bias drives such agency to withdraw accreditation
without any valid substantive basis,
present
such scenario.
the record before this Court does not
Prof'l Massage,
781
F.3d at
169.
First,
this
Court
concluded
above
that,
at
least
within
the
dictates
of
the
deferential Prof'l Massage review standard, the withdrawal decision was
19
2d at 319;
3 Admin.
L.
& Prac.
§ 8:31
(3d ed.)
(noting that,
proceedings governed by the APA,
on occasion,
the
an
proceeding,"
and
agency
to
particular,
hearing
Burt,
of
if
conduct
a
a
court
might
it
finds
a
injury"
stemming
constituting
actionable
under
2011)
42
an
U.S.C.
Williams v.
(concluding
inclined
to
Court orders
order
that
"[i]n
corrective
due
procedural
a
process");
(explaining that in the absence of proof
discharge
available);
be
violation of
585 F.2d at 616
"actual
"new
in
a
procedurally
independent
§
Hobbs,
that
from
1983,
662
nominal
constitutional
only
nominal
F.3d 994,
damages
defective
damages
1010-11
are
the
tort
are
(8th Cir.
only
proper
recovery for a constitutional violation that is not accompanied
by any actual provable injury and that one dollar is the maximum
award for each hearing conducted in a constitutionally defective
manner).
ruling
Such finding is consistent with the Seventh Circuit's
in
Dargis
v.
Sheahan,
a
§
1983
action
involving
due
process violations and alleged violations of the Americans with
Disabilities Act.
Dargis,
526 F.3d at 982-83.
The plaintiff in
Dargis appealed to the Seventh Circuit after the district court
declined
to
conduct
a
damages
trial
on
the
proven due
process
not arbitrary or unreasonable or an abuse of discretion.
Second, after
some expansion of the record was permitted, the evidence on the issue of
bias, which takes the form
insufficient to demonstrate
the outcome, particularly
unbiased individuals who -
of
any
in
the
a somewhat modest pecuniary interest, is
likelihood that the bias had an impact on
light of the participation of numerous
Court is required to presume - acted in
good faith.
20
violation,
with the district court instead remanding the case to
allow the Defendant's former employer the opportunity to perform
the previously denied hearing.
court's ruling,
Id.
In affirming the district
the Seventh Circuit explained as follows:
[The plaintiff] next argues that after finding that
his procedural due process rights . . . were violated,
the district court ordered the wrong remedy by merely
directing the Sheriff's Office to hold a Merit Board
hearing . . . .
[The plaintiff instead] claims that
the
appropriate
course
would
have
been
for
the
district court to proceed to trial on his claim for
damages,
attorney's
fees,
and
other
appropriate
relief.
We
.
.
.
conclude
that
the
district
court
acted
appropriately in directing the Sheriff's Office
conduct a hearing instead of proceeding to trial
to
on
damages.
"Procedural due process rules are meant to
protect persons not from the deprivation, but from the
mistaken or unjustified deprivation of life, liberty,
or property." Carey v.
Piphus,
435 U.S. 247,
259
(1978)
(emphasis added).
For this reason, where a
plaintiff would have suffered the same fate had the
required hearing been held, he is not entitled to
recover damages caused by the suspension.
Id. at 260
(agreeing with the court of appeals that to award
damages for injuries caused by a justified suspension
imposed without a hearing would amount to a windfall
rather than compensation). If the placement of [the
plaintiff] on involuntary unpaid leave was justified
based on his physical condition, then awarding him the
damages sought would result in the type of windfall
discussed in Carey.
Dargis,
526 F.3d at 988-90.
Summarizing the above,
held
in
this
case,
on
the
the "trial/evidentiary hearing"
issue
of
whether
Defendant
to be
followed
its own policies and procedures regarding conflicts of interest,
21
will
therefore
be
limited
to determining whether Plaintiff has
demonstrated a procedural due process violation because a biased
decisionmaker
improperly
participated
in
the
accreditation
review process.
C. Trial by Jury
1.
Parties'
Positions
Wards Corner asserts that it has the right to a
jury trial
on the claim that it was denied the common law due process right
to an impartial decisionmaker.
case
law
law,
Plaintiff
trial
in
by
the
argues
jury
argument
in
fields
of
123.
accreditation
that
the
Seventh
in
this
of
such
assertion
Without citing to
and/or
case."
applies
support
ECF No.
administrative
Amendment
right
Plaintiff's
is
the
to
a
primary
contention
that
Plaintiff's due process claim sounds in tort and seeks monetary
damages,
and is therefore a
"legal" claim that warrants a
Defendant asserts that no jury right attaches.
set
forth
the
right
"
below,
to
a
the
Court
jury
trial
finds
to
that
to NACCAS
for a
does
whether
The Court agrees with Defendant's position that,
process violation is proven,
For the reasons
Plaintiff
determine
this Court should both:
jury.
not
NACCAS,
have
an
if a procedural due
(1)
de novo review before unbiased members of
remand the case
the Commission;
and (2) retain jurisdiction over the disputed issues until after the
remanded issue is resolved by the NACCAS Commission.
ECF No. 125.
Accordingly, Plaintiff may have the ability to renew its claim for damages
in this Court at a
"
l a t e r time should i t succeed on remand.
Plaintiff concedes
that
the requested declaratory and/or
injunctive
relief sought in Count Two of its Amended Complaint must be determined by
the
Court.
22
accreditation
agency,
committed
a
procedural
due
process
violation.
2. APA Cases Provide Compelling Guidance
Critically,
Court
is
in
Plaintiff's pending cause of action before this
the
nature
of
an
administrative
appeal,
and
the
primary factfinder in the underlying dispute being reviewed was
not a
jury,
[APA]
but
instead,
a
quasi-public agency.
does not specifically apply to
[accreditation agencies],
principles of administrative law are useful
standard"
by
which
decision-making
federal
process.
(second alteration
in original)
Sch.
V. Am.
Bar Ass'n,
law
under
both
procedure
act
courts
Prof'l
the
counterparts
review
Massage,
in determining the
such
781
APA
712
and
repeatedly
an
M.
(6th Cir.
2006)).
state
recognizes
that,
no
a
N.L.R.B.
V.
(concluding
jury
trial
in
administrative
Jones
& Laughlin Steel Corp.,
that
the
"statutory
Case
in
in
1,
that
the
there is
proceedings.
301 U.S.
proceeding"
170
administrative
specific statutory grant to the contrary,
to
at
Cooley Law
absence of a
right
agency's
F.3d
(quoting Thomas
459 F.3d 705,
federal
"[W]hile the
48
See
(1937)
case,
an
unfair labor practices claim before the National Labor Relations
Board,
was a
special proceeding
"unknown to the common law"
at
the time the Seventh Amendment was adopted for which a right to
a jury trial did not attach,
Amendment
further explaining that the Seventh
"has no application to cases where
23
recovery of money
damages
might
is an incident
have
added);
been
Curtis
Laughlin
recovered
v.
merely
Amendment
in
Loether,
stands
is
proceedings,
to ecpjitable relief
for
jury
action
U.S.
415
189,
the
generally
where
an
even though damages
at
law")
194
(1974)
proposition
inapplicable
trials
would
be
that
in
{emphasis
("Jones
the
Seventh
administrative
incompatible
with
whole concept of administrative adjudication");
W.
Co.
{9th Cir.
V.
U.S.
Forest
Serv.,
578
F.3d
1116,
1123
("The APA does not provide for monetary damages,
allow 'specific relief,'
a
individuals or provide a
right to a
Benjamin v.
688
909
V.
903,
Traffic Exec.
("The
seventh
enforce
law.
rights
.
.
amendment
.
1988),
Railroads,
requires
remedies
However,
trial by jury.")
869 F.2d 107
a
jury
seventh
particular expertise
inappropriate.");
2709237,
a
at *3
federal
(E.D.
agency
administrative
Mayes
v.
Tenn.
decision
record
Sept.
.
pursuant
20,
.
to
24
2006)
the
a
in
1989)
actions
is
at
to
common
generally
where the factfinder
jury determination
3:05cv478,
2006
WL
("Judicial review of
review
APA"
Benjamin
(2d Cir.
amendment
No.
is
Railroads,
enforced
that makes
E.P.A.,
.
trial
traditionally
the
(internal
aff'd sub nom.
inapplicable in administrative proceedings,
possesses a
2009)
though it does
Traffic Exec. Ass'n-E.
(S.D.N.Y.
Ass'n E.
and
Radio Servs.
Nor does the APA allow claims against
citation omitted);
Supp.
the
including the payment of money to which
plaintiff is entitled.
F.
&
and
of
the
agency's
"[s]uch
claims
are
not
subject
Pers.
Mqmt. ,
Sept.
18,
to
No.
trial
3:llCV405,
2012)
case) ;
City of
Engineers,
No.
Sept.
2012)
25,
because
jury.");
2012
{finding that
trial is not available"
APA
by
Pellicano
WL 4103891,
"it is well
v.
*3
at
Office
(M.D.
settled that a
as part of the "judicial review"
Dania Beach,
12-60989-CIV,
(granting
"it is apparent
Florida v.
U.S.
2012 WL 12864329,
a
that
motion
to
Pa.
jury
in an
Army Corps of
at *2
strike
of
a
(S.D.
jury
Fla.
demand
Plaintiffs are not entitled to a
jury trial under the APA"); Dep't of Transp. v. Del-Cook Timber
Co. ,
248 Ga.
734,
742,
285 S.E.2d 913,
no constitutional right to a
proceedings."); Jones v.
6,
12-14
trial
(1979)
Reed,
called statutory
not
'appeal'
only an adaptation,
(1982)
("There is
jury trial in these administrative
267 Ark.
(finding that a
"certainly does
919-20
237,
248-49,
590 S.W.2d
statutory right to a
require
a
jury
trial,"
"de novo"
as
"the
so-
from administrative agency action is
or perhaps extension,
of judicial review of
such proceedings which has always been available by certiorari,
quo warranto,
Labor,
("We
or other such writs");
Unemployment Ins.
hold
that
.
.
.
Div.,
Carr v.
S. Dakota Dep't of
355 N.W.2d 10,
administrative
appeals
12-13
(S.D.
1984)
under
the
[South
Dakota] APA are special proceedings, not a case at law protected
by
the
Velour
constitutional
Corp.
(explaining
v.
that
guarantee"
Durfee,
"no
637
of
A.2d
jury-trial
25
a
trial
375,
right
by
381
jury);
Nat' 1
(R.I.
1994)
adhered
at
the
administrative-agency
power
to
create
right
to
an
requires
the
a
level
right
because
and
administrative
conclusion
the
Legislature
had
the
then assign adjudication of
forum,"
that
the
and
that
Legislature
the
"same
has
the
that
logic
power
to
place appellate review of that adjudicated violation in Superior
Court
sitting without
al. ,
9 Fed.
that
when Congress
judicial,
jury");
& Proc.
Civ.
determines
see
also Wright
§ 2302.2
that
("[I]t appears
administrative,
rather
than
it may so
jury trial
proceedings.");
Sunshine
Co.
U.S. Citizenship & Immigration Servs.,
2010)
(explaining
that
the
Food
Distrib.,
Inc.
362 F. App'x 1, 4-5
Declaratory
v.
(11th
Judgment
Act
jury trial but does not create a
preserves the right to a
right,
et
adjudication and remedies are appropriate,
those
Cir.
(3d ed.)
& Miller,
and the Seventh Amendment will not compel a
provide,
in
Prac.
a
jury
and the district court therefore did not err in striking
the jury demand predicated on the Declaratory Judgment Act in a
"suit for judicial review over an agency");
710-11
enforce
Cooley,
(explaining that there is no private right of action to
the
HEA,
but
that pursuant
to
the
exclusive
federal jurisdiction over accreditation cases,
be
resolved
"through
a
common
adequate judicial review")
Here,
to
take
459 F.3d at
law
claim
for
grant
of
such disputes can
due
process
and
(emphasis added).
the Fourth Circuit has not only instructed this Court
guidance
from
APA
cases
26
when
evaluating
accreditation
decisions,
review
of
under
but
federal
accreditation
the
[APA] ."
Accordingly,
courts
decisions
Cooley,
Wards
have
459
Corner
recognized
is
more
F.3d at
fails
to
that
limited
713
"judicial
than
(emphasis
demonstrate
review
added).
a
Seventh
Amendment right to a jury trial in conjunction with the judicial
review of NACCAS's withdrawal decision,
as the limited right to
judicial review of an accreditation action is not
civil
and
action
in
remedies
of
law."
Curtis,
Court
is
during
that
the
district
sort
415 U.S.
called
an
on
to
at 195.
perform
administrative
and
courts
typically
"administrative"
made
policies
the
even
if
predicated
in
part
on
.
involv[ing]
enforced
requires
factual
avoiding conflicts of interest.
.
inquiry
the
not a
an
action
into
findings
procedures
at
this
whether,
accreditation
followed
entity
its
associated
own
with
The resolution of such issue,
disputed
facts
developed during the administrative process,
Court,
in
rights
The deferential analysis
process,
procedures—here,
.
"an ordinary
that
were
not
is a matter for the
jury.
3. Plaintiff's Cause of Action is Equitcdsle
Further supporting the above finding,
although Plaintiff's
due process claim is properly labeled as grounded in the "common
law,"
the
law underlying such claim is not traditional
"common
law" in place at the time the Seventh Amendment was adopted, but
rather,
is federal common law formulated in the last century for
27
the purpose of operating as an equitable check on entities that
operate
in an arena of
781 F.3d at 169
as
early
("Courts
check
as
1938.")
areas of public
of
nom.
Va.
the
cases);
right
that
to
Cooley,
common
exercise
law
459
due
F.3d
at
process
significant
712
as
authority
a
in
concern such as accreditation and professional
(WACEL) ,
Apr.
28,
Bailey v.
5560545
Prof'l Massage,
(emphasis added); Bailey v. Washington Area Council
Eng'g Labs.
(W.D.
(citing
organizations
licensing.")
See
("Courts began to recognize this common law duty
developed
on
"public concern."
No.
2015),
5:14cv59,
2015 WL 5560544,
Va.
*5-*7
report and recommendation adopted sub
Washington Area Council
(W.D.
at
Sept.
21,
of
2015)
Eng'g Labs.,
(explaining
2015
that
WL
the
judicially developed rule permitting courts to "intervene in the
operations"
of non-public entities and
"require
them to employ
basic due process or fair procedure when making decisions"
doctrine that
that
courts
membership
(emphasis
"represents a
do
added).
reality
departure from the traditional rule
interfere
decisions
federal statute
the
not
of
This
with
private,
equitable
the
internal
voluntary
check
has
both
degree/certificate to a
federal
funding
and
affairs
underpinnings
the
("HEA")),
value
in
and
of
a
former student are critically linked to
the institution's ability to maintain its accreditation.
Massage,
or
organizations")
(the Higher Education Act of 1965,
that
is a
781 F.3d at 170-71.
Prof'1
Opinions like Prof'l Massage,
28
from
within
and
outside
this
Circuit,
demonstrate
that
this
circumscribed form of judicial review is grounded in equity.
This Court's
interpretation of
administrative and equitable
the claim at
is bolstered by
issue as both
the
fact
that
no
private cause of action exists under the HEA, nor is the instant
case a § 1983 action;^" rather, to promote the public interest in
fair
accreditation
circumscribed
standards,
judicial
federal
review
of
courts
an
permit
greatly
administrative-like
accreditation decision to ensure that accreditation bodies
it straight."
Id.
3.08 [11] [a]
(2017)
intervention
("Courts
is
to
have
[accreditation]
not
at 170;
abuse
see James A.
("The
ensure
made
primary
fairness");
the
policy
Education Law §
function
Cooley,
decision
of
459
judicial
F.2d
to
at
ensure
their
power,
but
judicial
review
is
Of.
of
city of
action
Monterey v.
at
Del
law
to
in a rare
"incident to"
such fact alone would not appear
to convert the available "judicial review" process into a
cause
that
limited
Even assuming that,
a plaintiff could recover monetary damages
the equitable relief obtained,
like
713
organizations act in the public interest and do
protecting the public interest").
case,
Rapp,
"play
requiring
Monte
Dunes
at
a
jury
Monterey,
tort
trial
on
the
Ltd.,
526
U.S.
687, 709 (1999) (explaining that although there was no equivalent to a
§ 1983 action when the Seventh Amendment was adopted,
the Seventh
Amendment jury right extends to newly formulated statutory private rights
of action that "sound in tort," and § 1983 actions plainly "sound in
tort"); 42 U.S.C. § 1983 (expressly creating a personal cause of action
that allows an individual to bring "an action at law" to rectify the
deprivation of rights).
29
equitable
relief-here,
therefore,
does
not
remand.
provide
the
The
right
Seventh
to
a
Amendment,
trial
by
jury
in
these circumstances.^^
Alternatively,
the
Court
finds
that
even if
a
jury
trial
were available on certain fact patterns involving the ruling of
an accreditation body,
the
case where
Court suggests substantive harm flowing
being
does
such as a
withdrawn without
not present
any colorable
such a
the
from accreditation
basis,
circumstance.
record before
the
instant
Drawing a
case
parallel
to
cases involving a statutory cause of action:
In
Tull
V.
United
States,
481
U.S.
412
(1987)
the
Supreme
Court
articulated
a
two-part
test
for
determining whether a statutory cause of action is a
suit
at
purposes.
common
. . .
law
for
Seventh
Under this two-part test,
Amendment
the trial
court first must compare the statutory actions to 18th
century actions brought in the courts of England prior
to the merger of law and equity. . . .
Under the
second part of the two-part test developed in Tull,
the trial court must examine the remedy sought and
determine whether it is legal or equitable in nature.
. . .
Justice Brennan, writing for the Supreme Court
in Tull, emphasized that the characterization of the
relief sought was more important to the historical
test than finding a precise historical analog to the
cause of action.
o t h e r cases.
That view has been pressed in many
.
.
.
9
Fed.
Wright
& Miller,
Prac.
& Proc.
Civ.
§
2302.2
added)
(emphasis
(internal quotation marks and footnotes omitted).
In response to the Court's request for additionally briefing on the
issue of whether Plaintiff had the right to a jury trial, the parties
failed to cite to any cases holding that a right to a jury trial attaches
to the judicial review of an accreditation body and/or cases holding that
a jury trial right attaches to a claim seeking to enforce common law due
process.
30
Considering
Tull,
as
the
indicated
first
above,
agency's action is a
review of
APA.
a
similarities
second
can
and
of
judicial
the
test
review
of
articulated
an
in
accreditation
special proceeding similar to the judicial
ruling
Moreover,
prong
by
an
even
be
administrative
if
drawn
arguably
Wards
to
more
a
body pursuant
Corner
is
historical
important
prong
to
correct
tort
of
the
that
action,
the
Tull
the
test
demonstrates that the only question that this Court may properly
reach on these case-specific facts,
and still remain within the
confines of the limited review authorized by Prof'l Massage,
whether
Plaintiff
is
entitled
to
remand
both of which are remedies in equity.
& Helpers,
Local
No.
391
("The
Seventh Amendment
issue
to
action."
be
this
of
trial
a
if
ordering,
for
disagree
at
least
in
they
prior
were
in
494
than
the
U.S.
on
as
on
order
to
See Griggs v.
to
the
view
a
to
character
396 U.S.
E.I.
precise
prevails,
return
entry
the
of
531,
the
parties
of
(1970))).
a
would
the
the
to
remand
include
reinstatement
to
the
overall
parties
of
position
procedurally
DuPont de Nemours & Co.,
31
(1990)
setting aside
relief
basis,
the
538
contours
the
569
of
and although
temporary
the
558,
the nature of
Plaintiff would involve
Plaintiff's
accreditation
ruling.
rather
reinstatement—
Cf. Chauffeurs, Teamsters
question depends
"quasi-public body,"
action
order,
Terry,
(quoting Ross v. Bernhard,
Success at
ruling
tried
v.
and/or
is
faulty
237 F.3d
371,
385
{4th
Cir.
2001)
(discussing
general equitable concept");
(noting
Virginia
nominal
damages
law right
and not
to
a
courts
cf.
Gibson,
award
to vindicate
163 Fed.
injunctive
which
or civil
is
a
otherwise
U.S.
App.
D.C.
proposition
procedure
at *42-43
available,
that
23,
and
165
it
allowed
violation);
cf.
21,
only
Bailey,
reinstatement
or
a
23
than
claim
2017
in
U.S.
legal right is
v.
(D.C.
relief
Accordingly,
renewed
the
Pollitzer,
Cir.
1947)
equity
for
Dist.
LEXIS
83
for
fair
97805,
claim,
and
the
nature
"injunctive relief,
disciplinary
Court
Wards Corner is not entitled to a
the
rather
(noting that typical remedy for violation of Virginia
procedure").
of
at 211
common law tort
Berrien
common law right to fair procedure is
as
a
rights deprivation claim or
citing
F.2d
as
the Virginia common
common law tort claim for which vindication of a
not
Appx.
relief
violation of
fair procedure,
constitutional
"reinstatement,
or
alternatively
finds
such
appeal
that
jury trial based on the nature
of available
relief,
with respect
to the only issue to be tried in this case.
D.
For
the
reasons
set
Summary
forth
above,
partial summary judgment is DENIED,
ECF No.
motion for summary judgment is GRANTED,
part,
ECF No.
70.
32
Plaintiff's
63,
in part,
motion
for
and Defendant's
and DENIED in
The Court will conduct a bench trial/evidentiary hearing to
begin on November 28,
evidence
directly
2017,
relevant
which will be limited to receiving
to
Plaintiff's
claim
that
it
was
denied procedural due process based on the denial of the right
to an
"impartial decisionmaker."
Evidence of
alleged monetary
the short time before trial,
the parties are
damages will not be permitted.
In light of
not required to submit proposed findings of fact and conclusions
of
law prior to the commencement of the bench trial,
they
are
certainly
inclined.
permitted
to
submit
such
filings
conclusions of
law,
regarding
Court's
the
Plaintiff's
is
if
so
The Court reserves the right to order both parties to
submit post-trial/hearing briefing and/or findings
remand
although
of
fact and
outlining their factual and legal position
finding
accreditation
ordered.
The
on
should
Clerk
bias,
be
is
as
restored
REQUESTED
well
in
to
the
as
whether
event
send
a
that
copy of
this Opinion and Order to all counsel of record.
IT
IS
SO
ORDERED.
/s
Mark S.
/ifn^
Davis
UNITED STATES DISTRICT JUDGE
Norfolk, Virginia
November
,
2017
33
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