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