Doe v. Alger et al

Filing 173

MEMORANDUM OPINION. Signed by District Judge Elizabeth K. Dillon on 4/25/17. (kld)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
HARRISONBURG DIVISION
JOHN DOE,
Plaintiff,
v.
JONATHAN R. ALGER, et al.,
Defendants.

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Civil Action No. 5:15-cv-00035
By: Elizabeth K. Dillon
United States District Judge

MEMORANDUM OPINION
By memorandum opinion and order entered on December 23, 2016, the court granted
summary judgment in plaintiff John Doe’s favor as to liability. Specifically, the court ruled that
defendants deprived Doe of a property interest—his right to continued enrollment at James
Madison University—without due process of law. The court’s order required the parties to
submit memoranda concerning the appropriate remedy for the violation. That issue has been
fully briefed and argued and is now ripe for disposition. Given the court’s ruling as to liability,
the parties agree on many aspects of the relief to be granted and, at the court’s request, have
submitted proposed alternative orders (Dkt. No. 172) with their proposed formulations of that
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relief. Several primary areas of disagreement remain, however, and the court addresses those
herein.
I. BACKGROUND
The factual background of this case is set forth in detail in the court’s memorandum
opinion on the summary judgment motions, and the court will not repeat it here. In short, the

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Based on the court’s own observations of in-court appearances and the written submissions throughout
this case, the court commends all counsel for their professionalism in this case. All counsel have ably demonstrated
that it is possible to be a fierce advocate for one’s own client(s) and, at the same time, to remain respectful and work
cooperatively with opposing counsel.

court concluded that Doe did not receive adequate process at the appeal stage of the misconduct
charge against him. That finding necessitates certain declaratory and injunctive relief, and the
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parties agree as to much of the relief to be ordered. For example, the parties agree that the prior
finding of responsibility for sexual misconduct, as well as the sanctions imposed as a result of it,
should be vacated, and they agree that Doe should be reinstated as an undergraduate student at
JMU in good standing. They also agree that Doe should be permitted to elect, on or before June
30, 2017, whether to withdraw as a JMU student in good standing or to re-enroll as a student at
JMU. Other relief, on which the parties agree, includes the expungement of certain records and
certain injunctive relief to prohibit the disclosure of Doe’s identity and the now-vacated finding
that he was responsible for sexual misconduct.
There also remain some areas of disagreement. Doe and defendants have proposed
different language as to a number of items in their respective proposed orders to the court. With
regard to some of those disagreements, the court concludes that they do not require any
significant analysis. Instead, they are issues that fall squarely within this court’s broad discretion
to fashion an equitable remedy. The court will not discuss them further, but will craft the order
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to reflect its decisions on those issues. There are three issues, however, that merit further
discussion. The court will address each in turn, after a brief discussion of the legal standards that
inform the court’s analysis.

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By stating that the parties agree, the court acknowledges that defendants do not agree with the court’s
underlying ruling as to liability and they have not waived their ability to contest that ruling on appeal. The court
means only that, given the ruling as to liability, the parties agree that certain remedial relief is appropriate.
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  These other issues include the breadth of the injunction forbidding certain persons from participating in
any future proceeding against Doe as a result of Roe’s charge or any other charges; the breadth of the injunctive
relief prohibiting disclosure of Doe’s identity; the cut-off date for the documents to be expunged; and whether
plaintiff is entitled to an injunction prohibiting retaliation by defendants.  

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II. DISCUSSION
A. General Standards
In determining the proper remedy for the due process violations here, the court is guided
by several overarching principles. To begin with, the injunctive relief Doe seeks is an equitable
remedy, and, in granting equitable relief, the court has “broad” powers, “for breadth and
flexibility are inherent in equitable remedies.” Swann v. Charlotte-Mecklenburg Bd. of Educ.,
402 U.S. 1, 15 (1971). Indeed, “[i]n equity, as nowhere else, courts eschew rigid absolutes and
look to the practical realities and necessities inescapably involved in reconciling competing
interests . . . .” Lemon v. Kurtzman, 411 U.S. 192, 200–01 (1973) (plurality opinion).
As with all injunctions, an injunction to remedy a constitutional violation is an
“extraordinary remedy” and requires the plaintiff to demonstrate that (1) he has suffered an
irreparable injury, (2) damages are unavailable or inadequate to compensate him for that injury,
(3) an injunction is warranted based on the balance of hardships between the plaintiff and
defendants, and (4) the public interest will not be disserved by an injunction. Doe v. Rector &
Visitors of George Mason Univ., 179 F. Supp. 3d 583, 587 (E.D. Va. 2016) (citations omitted)
(hereinafter “Doe v. GMU”); see also eBay, Inc. v. MercExchange, LLC, 547 U.S. 388, 391
(2006) (applying the same test where “a plaintiff seek[s] a permanent injunction”); A Helping
Hand, LLC v. Baltimore Cty., 355 F. App’x 773, 775–76 (4th Cir. 2009) (applying same in
reviewing injunctive relief where plaintiff prevailed in a civil rights action). Defendants
concede, as they must, that Doe can establish the first two of these elements. As to the injunctive
relief to which they object, though, defendants dispute that the third and fourth elements are
satisfied. (Defs.’ Opp’n to Pl.’s Mem. Remedies 12, Dkt. No. 166.)

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B. Injunction Prohibiting a New Appeal Board Hearing
The first disagreement—and arguably the most important one—concerns whether further
proceedings should be permitted as to Roe’s charge against Doe. Doe argues that, if he elects to
re-enroll as a JMU student, defendants should not be permitted to conduct another appeal board
hearing on Jane Roe’s misconduct charge against him. Defendants counter that the proper
remedy for a violation of due process is a new hearing to receive the process due. They therefore
contend that Doe is entitled only to a new appeal board hearing with constitutionally adequate
process and that an injunction prohibiting them from conducting that appeal is not an appropriate
remedy.
The court has carefully considered the arguments of the parties and the authority on
which they rely. As even plaintiff acknowledges (Pl.’s Mem. Remedies 27, Dkt. No. 160), “the
typical remedy for a violation of due process in the university disciplinary context is more
process.” Doe v. GMU, 179 F. Supp. 3d at 588 & n.12. Indeed, defendants cite to a number of
cases (from both federal and state courts) in which that was the remedy ordered. (Defs.’ Opp’n
to Pl.’s Mem. Remedies 16–17 (citing, among others, Doe v. Brown Univ., No. 16-cv-017, 2016
WL 5409241 (D.R.I. Sept. 28, 2016); Furety v. Temple Univ., 884 F. Supp. 2d 223 (E.D. Pa.
2012); Huntsinger v. Idaho State Univ., No. 4:114-cv-00237, 2014 WL 5305573, at *2–3 (D.
Idaho Oct. 15, 2014)).) Thus, the standard remedy in similar cases is a new hearing that
comports with due process. That is true in the employment context as well. See, e.g., Detweiler
v. Va. Dep’t of Rehab. Servs., 705 F.2d 557, 562 (4th Cir. 1983) (explaining that if the plaintiff—
a terminated employee who alleged a due process violation in the hearing afforded him—could
prove his allegation, “he should be afforded a rehearing by the panel that comports with the due
process clause”). There are exceptions to the general rule, though, and this court recognizes that

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it has the broad authority to fashion a different remedy, including the one sought by Doe. But for
the reasons discussed herein, the court does not believe the remedy Doe seeks is appropriate.
In support of his request, Doe relies heavily on the decision in Doe v. GMU. 179 F.
Supp. 3d 583. There, after finding that a college student accused of sexual misconduct had been
denied due process, the court granted the plaintiff’s request, similar to Doe’s here, that the court
enjoin the university from pursuing any further hearings against him stemming from that charge.
There, like here, the plaintiff had been found not responsible at his initial hearing and the
plaintiff admitted that the first hearing satisfied the requirements of due process. Id. at 586. But
when the accusing student appealed, the university allowed the appeal to proceed, despite the
fact that it failed to state an acceptable ground for an appeal under GMU’s disciplinary
procedures. The defendants then committed additional due process violations in processing both
that appeal and another level of review, including ex parte meetings with the accusing student.
Id. After two levels of appeals, the plaintiff was found to have violated the student code of
conduct and was expelled. Id. The court ruled that the defendants violated plaintiff’s right to
due process by, among other things, “permitting [the accusing student], without a proper basis in
GMU’s internal disciplinary procedures, to appeal the finding of no responsibility.” Id.
As is evident from that factual background, there are significant differences between that
case and this one. Most notably, in that case, the court had held that the original appeal was not
proper under the university’s procedures and should not have been permitted. Thus, the plaintiff
should never have been subjected to an appeal in the first place. That factor was noted by the
court in enjoining further proceedings against the plaintiff arising from that same incident. Id. at
588–89. That crucial distinction sets Doe v. GMU apart from this case.

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Here, the court has not concluded that allowing the appeal itself was improper. Put
differently, the fact that the appeal occurred was not one of the due process violations alleged or
found by the court. Instead, the court found violations in the processing of the appeal and in the
appeal board’s lack of an explanation for its determination. The appropriate remedy for those
violations is to allow an appeal to proceed with constitutionally adequate process for Doe.
Doe contends, though, that where there was already one constitutionally adequate
hearing, the standard remedy of a new hearing does not apply. (Pl.’s Mem. Remedies 28.) For
support, he relies primarily on Barachkov. v. Lucido, 151 F. Supp. 3d 745 (E.D. Mich. 2015) and
footnote 6 of Shaw v. Gwatney, 604 F. Supp. 880 (E.D. Ark. 1985), vacated in part on other
grounds, 795 F.2d 135 (8th Cir. 1985). Neither case stands for such a broad proposition.
The Barachkov court ordered reinstatement of terminated employees, rather than a new
hearing, but in that case a jury had already determined that there was no just cause for the
termination, and the jury’s verdict had been upheld on appeal. 151 F. Supp. 3d at 748–49 (citing
Barachkov v. Davis, 580 F. App’x 288, 296 (6th Cir. 2014)). In rejecting the defendant’s
argument that the only remedy for a due process violation is a pre- or post-termination hearing,
the court referred repeatedly to the jury’s verdict. Id. at 755–56. It reasoned that the issue of
whether termination was proper had already been conclusively decided in court, so a new
hearing was pointless. Here, of course, there has been no judicial determination as to whether
Doe was responsible for sexual misconduct. Nor is that issue before the court.
Shaw is also not as helpful as Doe suggests. In footnote 6 of Shaw, the court stated that,
in cases where the merits have been resolved by other tribunals, “courts appropriately consider
the resolution of the merits when determining the relief due for any procedural due process
violations.” Shaw, 604 F. Supp. at 887 n.6. At first blush, this seems to support Doe’s argument.

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But in summarizing its own holding, the Shaw court made plain that the ultimate decision of
whether the plaintiff employee’s termination was proper was not a decision for the court:
In sum, the Court believes that the substantive decision of
continued employment for the plaintiff must be left in the hands of
those people with the authority and the expertise to make it. Upon
reinstatement, the employer may decide to pursue the matter and,
after being afforded due process, the employee might, or might
not, be terminated. Or, for any number of reasons, the employer
could decide not to pursue the matter. In any event, the decision
will not be that of the Court. The Court’s role will have been
properly limited to determining the requirements of due process.
Id. at 889. The court is not persuaded that a different result is warranted here. Instead, the
decision of whether Doe is responsible for misconduct and, if so, what sanctions should be
imposed, “will not be that of the [c]ourt.” See id.
Doe also challenges whether it is even possible for him to receive a “fair” hearing now.
(Pl.’s Mem. Remedies 30.) In particular, he points to the passage of time, the fading of
memories, and other practical realities, including that the two key witnesses to the credibility
issue (Roe’s roommate and her suitemate) are no longer JMU students. (Pl.’s Mem. Remedies
30–31.) If Doe elects to re-enroll at JMU, and if JMU determines that Roe’s appeal satisfies the
requirements for an appeal, then these facts admittedly may render adjudication of Roe’s appeal
more difficult. But the court cannot say, based on the information before it, that JMU is
incapable of providing constitutionally adequate process for a new appeal hearing. Indeed, JMU
has changed a number of its appeal procedures in response to the violations alleged or found in
this case. And again, it is not the court’s place to decide Roe’s appeal.
In his supplemental brief, Doe also argues that the appeal submitted by Roe does not state
grounds for an appeal under JMU’s new procedures, which the parties agree should govern any
new appeal allowed by the court. (Pl.’s Supp. Mem. 4–8, Dkt. No. 171.) That may well be the

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case. But again, this court’s role is not to process or decide Roe’s appeal, but to remedy the
violations it found with the appeal that was previously given. Accordingly, the court will allow
JMU to follow its new procedures and determine whether the appeal is proper under the new
policies that the parties agree should apply.
Doe’s due process rights were violated, and he should have a remedy. But vindication to
Doe, in terms of a final finding of “not responsible,” is not this court’s to give. As the Eleventh
Circuit has explained, “procedural due process does not guarantee a particular result.” Schiavo ex
rel. Schindler v. Schiavo, 403 F.3d 1289, 1295 (11th Cir. 2005); see also Collins v. City of
Harker Heights, 503 U.S. 115, 129 (1992) (“The Due Process Clause ‘is not a guarantee against
incorrect or ill-advised personnel decisions.’”) (quoting Bishop v. Wood, 426 U.S. 341, 350
(1976)). Particularly in this context, where Roe herself has certain rights in the processing of her
sexual misconduct charge and her appeal, and where defendants and JMU have substantial
interests in investigating any student accused of committing sexual misconduct and sanctioning
any student found responsible for such misconduct, the court does not believe that equity
warrants an injunction prohibiting further proceedings.
C. Expungement of Documents
The second area of disagreement focuses on the scope and nature of expungement the
court should order. The parties agree that certain records relating to the charge against Doe
should be expunged, but disagree as to exactly what “expunge” means in this case. Doe argues
that it should be defined as “to remove from, erase or destroy a record, document or an entry on a
list or in a database.” Defendants agree that records should be expunged, but contend that it
would violate Virginia law for them to actually destroy certain records that JMU is required to
maintain by the Commonwealth of Virginia. Thus, defendants request permission to maintain

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the documents in a locked office for the time period required for retention for public records in
Virginia, pursuant to the Virginia Public Records Act. See Va. Code § 42.1-76 et seq.; see also
http://www.lva.virginia.gov/agencies/records/retention.asp (setting forth the retention schedules
set by the Library of Virginia) (last visited Apr. 12, 2017). Defendants’ counsel represented at
the hearing that such records would be internally “sealed” and would not be subject to subpoena
or any other disclosure, although counsel did not explain exactly how that would be
accomplished.
The court concludes that the destruction of the records is appropriate here. The primary
definition of expunge is “[t]o remove from a record, list, or book; to erase or destroy.” Black’s
Law Dictionary 702 (10th ed. 2014). As a practical matter, moreover, it makes little sense to
maintain the records in a locked room as opposed to destroying them—their very existence
leaves open the possibility of disclosure. Such a possibility could be particularly damaging here,
given the great efforts that the parties and the court have taken to protect the identity of those
involved in this lawsuit. Furthermore, destruction of those records will assist, insofar as it is
possible, to place Doe in the same position he would have occupied had the due process
violations not occurred, one of the goals of equitable relief. N.C. State Conf. of NAACP v.
McCrory, 831 F.3d 204, 239 (4th Cir. 2016) (quoting United States v. Virginia, 518 U.S. 515,
547 (1996)).
Nor is the court convinced that defendants’ “version” of expungement should be ordered
so that they may comply with a record retention requirement of the Commonwealth. The
authority discussed in Section D infra makes plain that this court has broad equitable power to
direct a party to take an action that would otherwise be prohibited by state law.

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For all of these reasons, the court will order the destruction of the documents to be
expunged. Such destruction shall occur after the time for appealing from this court’s judgment
has expired, if no notice of appeal is filed. If a notice of appeal is filed, then the destruction shall
be stayed until final resolution of all direct appeals.
D. Injunction Prohibiting the Operation of Virginia Code § 23.1-900
Third, Doe requests that the court enjoin defendants, their successors, and JMU from
imposing any notation on his academic transcript that might otherwise be required by Virginia
Code § 23.1-900 as a result of any action taken on the allegations in Jane Roe’s charge against
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him or by virtue of his withdrawal as a student in good standing. Defendants agree that, if Doe
does not re-enroll, then no notation would be appropriate on his transcript. If, however, he reenrolls and is later determined to have violated the student conduct policy based on Roe’s charge
against him, then defendants suggest that such a notation might be required and should not be
enjoined.
Defendants offer two reasons why the injunction sought by Doe is inappropriate. First,
they contend that, because the court cannot know whether Doe will be found responsible
following a new sexual misconduct appeal hearing, the injunction would be based on
speculation. Second, they argue that Virginia law might require such a notation on Doe’s
transcript. (Defs.’ Opening Br. on Remedy 9, Dkt. No. 161.) The court is not persuaded that
these reasons preclude the injunction Doe seeks.
While the court does not know whether Doe will re-enroll or what the finding might
ultimately be against him if the appeal is pursued, the court concludes that the relief falls within

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At its core, the provision requires a “prominent notation on the academic transcript of each student who
has been suspended for, has been permanently dismissed for, or withdraws from the institution while under
investigation for an offense involving sexual violence [as defined in the statute].” Va. Code § 23.1-900. The statute
has been in effect since October 1, 2016.

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the court’s broad powers to remedy the due process violation. The parties agree that the notation
requirement went into effect after Doe’s misconduct case was decided. Thus, had Doe received
a constitutionally adequate appeal process, even if he had been found responsible for misconduct
that would otherwise require a notation, no notation would have been placed on his transcript at
the time of his suspension. Thus, his request falls squarely within the court’s obligation to shape
a remedial decree to place the plaintiff “in the position [he] would have occupied in the absence”
of the constitutional violation. N.C. State Conf. of NAACP, 831 F.3d at 239 (citation omitted).
As to defendants’ assertion that they are obligated by law to follow the notation
requirement, the court recognizes the ample authority cited in Doe’s supplemental memorandum
that establishes a federal district court’s ability to fashion an equitable remedy and to direct
compliance by a party before it, even if following the court’s directive would otherwise violate
state law. See, e.g., Washington v. Wash. State Commercial Passenger Fishing Vessel Ass’n, 443
U.S. 658, 695 (1979) (“It is also clear that [the state agencies], as parties to this litigation, may be
ordered to prepare a set of rules that will implement the interpretation of the rights of the parties
even if state law withholds from them the power to do so.”); Kirkland v. N.Y. State Dep’t of
Corr. Servs., 628 F.2d 796, 801 (2d Cir. 1980) (affirming district court’s remedy of requiring
that 250 points be added to the scores of all minorities that took a test, even if it violated state
law on the use of civil service exams, and concluding that there was “no need . . . to reach the
question of the compatibility of the 250-point addition with the New York Constitution” because
“the power of the district court to fashion a remedy is a matter of federal law under the
supremacy clause”). Thus, the court’s order will enjoin defendants from including any notation

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on Doe’s transcript pursuant to Virginia Code § 23.1-900 as a result of any outcome stemming
from Roe’s charge against him.

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III. CONCLUSION
The court will issue a separate order entering judgment in plaintiff’s favor and granting
the declaratory and injunctive relief the court has determined to be appropriate in this case.
Entered: April 25, 2017.

/s/ Elizabeth K. Dillon
Elizabeth K. Dillon
United States District Judge

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  The court recognizes and appreciates the important interests that are served by this statute, and it imposes
this aspect of the injunctive relief only after careful consideration. But the remedy here must, as much as possible,
place Doe in the place he would have been had there not been any violation of his due process rights. This portion
of the remedy is necessary to accomplish that end. 

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