Wards Corner Beauty Academy v. National Accrediting Commission of Career Arts & Sciences, No. 2:2016cv00639 - Document 140 (E.D. Va. 2017)

Court Description: 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, )
Download PDF
Wards Corner Beauty Academy v. National Accrediting Commission of Career Arts & Sciences UNITED Doc. 140 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 Dockets.Justia.com 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