PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JAMES BROOKS; DONALD HAMLETTE; 

SAMUEL ST. JOHN,

Plaintiffs-Appellants,

v.  No. 09-1551

HOWARD R. ARTHUR, SR., In his

individual capacity; RANDAL

MITCHELL,

Defendants-Appellees. 

Appeal from the United States District Court

for the Western District of Virginia, at Lynchburg.

Norman K. Moon, District Judge.

(6:08-cv-00028-nkm-mfu)

Argued: September 21, 2010

Decided: November 19, 2010

Before NIEMEYER and KING, Circuit Judges, and

Robert J. CONRAD, Jr., Chief United States District Judge

for the Western District of North Carolina,

sitting by designation.

Vacated and remanded by published opinion. Judge King

wrote the opinion, in which Judge Niemeyer and Judge

Conrad joined.
COUNSEL

Richard F. Hawkins, III, HAWKINS LAW FIRM, Richmond,

Virginia, for Appellants. Sydney Edmund Rab, OFFICE OF

THE ATTORNEY GENERAL OF VIRGINIA, Richmond,

Virginia, for Appellees.

OPINION

KING, Circuit Judge:

In 2008, plaintiffs James Brooks, Donald Hamlette, and

Samuel St. John, who were correctional officers for Virginia’s

Department of Corrections (the "Department"), initiated these

since-consolidated civil actions in the Western District of Virginia, asserting retaliation claims under 42 U.S.C. § 1983.

Their respective complaints named as defendants Howard R.

Arthur, Sr., and Randal W. Mitchell — the plaintiffs’ supervisors — in their individual capacities. The defendants sought

dismissal of the complaints, asserting primarily that the doctrine of res judicata barred the plaintiffs’ § 1983 claims

because the allegations made therein had been resolved

administratively. The district court, deeming the Department

and the defendants to have been in privity in the relevant

administrative proceedings, ruled that the doctrine of res judicata mandated dismissal of the § 1983 claims. See Brooks v.

Arthur, 611 F. Supp. 2d 592 (W.D. Va. 2009) (the "Opinion"). As explained below, because there was no privity

between the Department and the defendants in their individual

capacities, we vacate and remand.1

1Significantly, on March 5, 2009, the defendants filed a notice of "Suggestion of Death," advising the district court that plaintiff St. John died on

February 6, 2009. Under Federal Rule of Civil Procedure 25(a)(1), St.

John’s successor or representative had ninety days from service of the

notice to file a motion for substitution. No such motion was made before

the court issued its Opinion of April 14, 2009, dismissing the plaintiffs’

claims. In these circumstances, the court should consider on remand

whether to dismiss St. John’s complaint under Rule 25(a)(1). 

2 BROOKS v. ARTHUR
I.

A.

The three plaintiffs were employed as correctional officers

at the Rustburg Correctional Unit #9 in Rustburg, Virginia

(the "Unit").2 At the Unit, plaintiffs Brooks and St. John, both

of whom were Senior Corrections Officers, were under the

direct supervision of plaintiff Hamlette, a Lieutenant. Hamlette, in turn, was supervised by defendants Arthur, the

Superintendant of the Unit, and Mitchell, a Major and

Arthur’s second-in-command. In April 2006, Hamlette visited

the equal employment opportunity ("EEO") office of the

Department and lodged a complaint, alleging that both Arthur

and Mitchell had discriminated against him on the basis of

race and religion. Brooks and St. John were identified as witnesses who would support Hamlette.

Arthur became aware of Hamlette’s EEO complaint in May

2006. The plaintiffs allege that Arthur immediately upbraided

Hamlette for violating the chain of command by going to the

EEO office instead of coming directly to Arthur. In July 2006,

the EEO office requested written responses from Arthur and

Mitchell with respect to Hamlette’s complaint. The EEO

office also sent letters to the witnesses identified in the complaint. Although the witness letters were marked "confidential," they were placed in open Unit mailboxes where they

could be viewed by others. Notably, Arthur’s and Mitchell’s

responses were to be filed by August 31, 2006.

Before any responses were filed, however, on August 30,

2006, Arthur issued three so-called Group III notices, one

2Because the district court resolved this dispute pursuant to Federal

Rule of Civil Procedure 12(b)(6), we must accept the facts alleged in the

complaints as true and view "them in the light most favorable to the plaintiff[s]." Am. Chiropractic Ass’n v. Trigon Healthcare, Inc., 367 F.3d 212,

228-29 (4th Cir. 2004). This factual recitation is set forth in that light. 

BROOKS v. ARTHUR 3
each to Brooks, Hamlette, and St. John, terminating their

employment with the Department.3 Brooks and Hamlette were

discharged effective September 1, 2006, and St. John was terminated effective September 5, 2006. The Group III notices

to Brooks and St. John alleged that they each failed to conduct

inmate counts and had falsified inmate count sheets. The

Group III notice against Hamlette accused him of failing to

properly supervise Brooks and St. John and of failing to follow a supervisor’s instructions.

B.

In September 2006, in response to what they deemed

unfounded Group III notices and pretextual terminations, the

plaintiffs each filed grievances with the Department of

Employment Dispute Resolution ("EDR"). The EDR grievances alleged that issuance of the Group III notices against the

plaintiffs was inconsistent, unfair, and harsh in light of how

other behavior by correctional officers had been theretofore

dealt with at the Unit, and that the notices were filed in retaliation for Hamlette asserting the EEO complaint and because

Brooks and St. John were willing to testify favorably on Hamlette’s behalf.4

The administrative hearings on the EDR grievances were

3Pursuant to regulations of the Department, unacceptable behavior of

correctional officers is divided into three groups, based on the severity of

such behavior. Group III behavior is the most severe and "include[s] acts

of behavior of such a serious nature that a first occurrence normally should

warrant removal." J.A. 84. Group II behavior "include[s] acts and behavior

that are more severe in nature and are such that an accumulation of two

Group II offenses normally should warrant removal." Id. Group I behavior

is the least serious, and "include[s] types of behavior less severe in nature,

but [which] require correction in the interest of maintaining a productive

and well managed work force." Id. (Citations herein to "J.A. __" refer to

the Joint Appendix filed by the parties in this appeal.) 

4The EDR grievances of Hamlette and Brooks are included in the

record, but the St. John grievance is not contained therein. 

4 BROOKS v. ARTHUR
conducted before a hearing officer in January 2007. On April

2, 2007, the hearing officer rendered his decision concerning

the grievance of Hamlette, setting forth his findings of fact

and conclusions of law (the "Hamlette Decision"). The Hamlette Decision found that six instances of misconduct had

occurred in the early morning hours of August 30, 2006.

• At 2:20 a.m., Hamlette was at a front gate post

where he was unable to observe other officers as

he was required to do.

• At 2:33 a.m., Brooks recorded that he had made

rounds when he had not.

• At 3:05 a.m., St. John recorded that rounds were

made when neither he nor Brooks had done so.

• At 4:05 a.m., St. John once again recorded that

rounds were made when neither he nor Brooks

had done so.

• Hamlette failed to observe inmates working in

the kitchen as he had been previously ordered to

do.

• At 4:45 a.m., Brooks and St. John filled out

"count sheets" — which list the number of

inmates in the facility and are typically completed every hour — without personally verifying

the presence of each inmate.

The Hamlette Decision concluded by reducing Hamlette’s

Group III notice to a Group II notice, and reinstating Hamlette

to his position as a correctional officer with an award of back

pay. The Hamlette Decision found that Hamlette "has not

presented evidence to show similarly situated employees were

treated differently from how he was treated." J.A. 86. In disposing of the retaliation claim, the Hamlette Decision conBROOKS v. ARTHUR 5
cluded that, although Hamlette "has established that he

engaged in protected activity and that he suffered a materially

adverse action because of his job loss[,] [he] has not established a connection between the protected activity and the

adverse action." Id. at 87. Hamlette did not appeal the Hamlette Decision and thereafter settled his EEO complaint.

Brooks and St. John appealed the initial EDR rulings on

their grievances to the Circuit Court of Campbell County, Virginia.5

 On August 2, 2007, the state court vacated those EDR

rulings and remanded for further proceedings. On October 10,

2007, the EDR hearing officer issued two reconsideration

decisions — one on the Brooks grievance and another on the

St. John grievance (collectively, the "Reconsideration Decisions"). The Reconsideration Decisions made essentially the

same findings theretofore made in the Hamlette Decision.

Additionally, the Group III notices of Brooks and St. John

were reduced to Group II notices with awards of back pay.

The Reconsideration Decisions also rejected the Brooks and

St. John allegations of having been treated differently from

similarly situated employees and terminated in retaliation for

their support of Hamlette’s EEO complaint. No further

administrative processes were pursued by either the plaintiffs

or the Department.

C.

1.

In September 2008, the plaintiffs filed their separate complaints in the district court — thereafter consolidated and

amended — seeking declaratory relief and damages against

defendants Arthur and Mitchell in their individual capacities.

The operative complaints recount Hamlette’s filing of the

EEO complaint and the issuance of the Group III notices of

5The initial EDR rulings relating to the Brooks and St. John grievances

are not found in the record. 

6 BROOKS v. ARTHUR
August 30, 2006, the day before the defendants’ EEO

responses were due. The complaints allege that the Group III

notices were issued in retaliation for Hamlette’s filing of his

EEO complaint and because Brooks and St. John were willing

to support him. Additionally, the complaints allege that the

defendants interfered with the grievance process itself, asserting that Arthur and Mitchell advised witnesses that their participation in the hearing was voluntary and threatened such

witnesses with retaliation if they testified favorably to the

plaintiffs.

The complaints specify two § 1983 retaliation claims, plus

a state law claim. First, Count I (a § 1983 claim) alleges that

Arthur initiated the Group III notices against the plaintiffs in

response to the EEO complaint. Second, Count II (another

§ 1983 claim) alleges that Arthur and Mitchell interfered with

the grievance process (i.e., by witness intimidation). Finally,

Count III (a state law claim) asserts that Arthur tortiously

interfered with the plaintiffs’ employment contracts with the

Department. In March 2009, the defendants moved the district

court, pursuant to Rule 12(b)(6), to dismiss the complaints,

contending, inter alia, that Counts I and II were barred by the

doctrines of collateral estoppel and res judicata. The thrust of

their Rule 12(b)(6) endeavor was that defendants Arthur and

Mitchell were in privity with the Department in the grievance

proceedings and that the Hamlette Decision and the Reconsideration Decisions barred the § 1983 claims under the doctrine

of res judicata. The plaintiffs responded that the rule of differing capacities — that defendants are not in privity with themselves in their official and individual capacities — applied,

and that there was a lack of privity between the Department,

on the one hand, and the defendants individually, on the other.

The plaintiffs relied primarily on our decision in Andrews v.

Daw, 201 F.3d 521 (4th Cir. 2000) (hereinafter "Daw II"),

asserting that it constituted controlling precedent on the res

judicata issue.

BROOKS v. ARTHUR 7
2.

By its Opinion of April 14, 2009, the district court granted

the defendants’ motion to dismiss, ruling that the § 1983

claims were barred by res judicata. See Brooks v. Arthur, 611

F. Supp. 2d 592 (W.D. Va. 2009).6 First and foremost, the

court rejected the plaintiffs’ reliance on Daw II and was

instead persuaded by our unpublished decision in Davani v.

Clement, 263 F. App’x 296 (4th Cir. 2008) (hereinafter

"Davani II"). Predicated on the court’s conclusion that Daw

II was distinguishable and that Davani II’s reasoning more

aptly applied, the court ruled that the Department and the

defendants were in privity during the EDR grievance proceedings. As part of its analysis, the court looked to see if the

Department’s and the defendants’ interests in the EDR hearings and the § 1983 suit were identical. See Brooks, 611 F.

Supp. 2d at 599 (recognizing that under Virginia law, "‘[t]he

touchstone of privity for purposes of res judicata is that a

party’s interest is so identical with another that representation

by one party is representation of the other’s legal right’"

(quoting State Water Control Bd. v. Smithfield Foods, Inc.,

542 S.E.2d 766, 769 (Va. 2001))). The court concluded that,

"[a]lthough the Plaintiffs’ grievance proceedings were

brought against the Department of Corrections, the interests

of the Department, Arthur, and Mitchell in the grievance pro6

In rendering its Opinion, the district court took judicial notice of the

plaintiffs’ EDR grievances, the Hamlette Decision, the orders of the Circuit Court of Campbell County vacating the initial EDR rulings on the

Brooks and St. John grievances, the EDR hearing officer’s Reconsideration Decisions, the EDR Grievance Procedure Manual, the EDR Rules for

Conducting Grievance Hearings, and the settlement agreement regarding

Hamlette’s EEO complaint — none of which had been filed with or incorporated into the complaints. The court explained that "‘[f]acts subject to

judicial notice may be considered by a court on a motion to dismiss. When

entertaining a motion to dismiss on the ground of res judicata or collateral

estoppel, a court may judicially notice facts from a prior judicial proceeding.’" Brooks, 611 F. Supp. 2d at 597 (quoting Briggs v. Newberry Cnty.

Sch. Dist., 838 F. Supp. 232, 234 (D.S.C. 1992)). 

8 BROOKS v. ARTHUR
ceedings and this action are effectively the same." Id. at 599.

The court further explained that 

[e]ach has or had a strong interest in the efficient and

effective operation of the Rustburg Unit, and in the

legitimacy and finality of disciplinary and management decisions. All of the allegations lodged against

the Defendants also arose out of their actions as

supervisors employed by the Commonwealth, which

may only act through its employees or its agencies.

Furthermore, the Department’s interest in defending

against Plaintiffs’ grievances was identical to the

individual Defendants’ interest in this action: proving, by a preponderance of the evidence, that the discipline issued was warranted and not a result of the

Plaintiffs engaging in protected civil rights activity.

Id. (citation omitted).7 The court thus dismissed the two

§ 1983 claims (Counts I and II) as barred by res judicata. The

court then dismissed the state law tortious interference claim

(Count III) by declining to exercise supplemental jurisdiction.

Timely notices of appeal have been filed, and we possess

jurisdiction pursuant to 28 U.S.C. § 1291.

II.

We review de novo a district court’s dismissal of a complaint on the basis of res judicata. See Q Intern Courier Inc.

v. Smoak, 441 F.3d 214, 216 (4th Cir. 2006). In assessing a

Rule 12(b)(6) ruling, we accept the factual allegations of the

complaint as true. See U.S. Airline Pilots Ass’n v. AWAPPA,

LLC, 615 F.3d 312, 317 (4th Cir. 2010). Additionally, however, we may consider facts on which the district court properly took judicial notice. See Daw II, 201 F.3d at 524 n.1.

7The district court also analyzed whether the issues in the EDR proceedings and the § 1983 action were identical, and concluded that they were.

See Brooks, 611 F. Supp. 2d at 601. 

BROOKS v. ARTHUR 9
("[W]hen entertaining a motion to dismiss on the ground of

res judicata, a court may take judicial notice of facts from a

prior judicial proceeding when the res judicata defense raises

no disputed issue of fact.").

III.

A.

In resolving this appeal, we first recognize that the EDR

grievance decisions may be accorded the same force as a state

court judgment because the parties were given an "adequate

opportunity to litigate." Univ. of Tenn. v. Elliott, 478 U.S.

788, 799 (1986) (explaining that "when a state agency acting

in a judicial capacity . . . resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, federal courts must give the agency’s fact

finding the same preclusive effect to which it would be entitled in the State’s courts" (internal quotation marks omitted)).

Second, because we are considering whether to give preclusive effect to state administrative decisions, we must adhere

to Virginia’s legal principles concerning res judicata. See

Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280,

293 (2005) ("The Full Faith and Credit Act, 28 U.S.C. § 1738,

. . . requires [a] federal court to give the same preclusive

effect to a state-court judgment as another court of that State

would give." (internal quotation marks omitted)).

The governing authority on privity and res judicata issues

in Virginia is set forth in State Water Control Board v. Smithfield Foods, Inc., where the Supreme Court of Virginia recognized that, "[t]o establish the defense of res judicata, the

proponent of the doctrine must establish identity of the remedies sought, identity of the parties, and identity of the quality

of the persons for or against whom the claim is made." See

542 S.E.2d 766, 769 (Va. 2001) (citation omitted). That decision also recognized that privity should be determined on a

case by case basis. Id. Of significance, the Supreme Court of

10 BROOKS v. ARTHUR
Virginia has emphasized that the federal and state tests governing privity issues are "virtually identical," specifically

invoking our Daw II decision. Id. at 769 n.4.8

The conclusion that Arthur and Mitchell in their individual

capacities were in privity with the Department in the EDR

proceedings would mean that the doctrine of res judicata bars

relitigation of any claims disposed of therein. Coming to such

a conclusion, however, requires a transitive theory of capacities. First, it must be concluded that the Department was in

privity with Arthur and Mitchell in their official capacities.

Second, it must be concluded that Arthur and Mitchell in their

official capacities were also in privity with themselves in their

individual capacities. And, based on these two conclusions,

the Department must then be deemed to have been in privity

with Arthur and Mitchell in their individual capacities. If

these three steps can appropriately be taken, the application of

res judicata would be proper and the district court should be

affirmed.

By contrast, if the Department was not in privity with

Arthur and Mitchell in their individual capacities, the § 1983

claims should not have been dismissed. In this regard, we

assume that the Department was in privity with the defendants

in their official capacities, leaving the question of whether the

defendants in their official capacities were in privity with

themselves in their individual capacities. Thus, this appeal

turns on the proper application of the rule of differing capacities. The theory behind that rule rests on a legal fiction about

individuals having two separate identities: one identity (or

capacity) as an official representative of either the government or a corporation; and a separate identity (or capacity) as

an individually autonomous human being. The rule of differing capacities is generally understood to mean that defendants

8Pursuant to the foregoing, in resolving this appeal we deem the Daw

II legal principles to be identical to those that would be applicable in the

Virginia courts. 

BROOKS v. ARTHUR 11
in their official and individual capacities are not in privity

with one another for the purposes of res judicata. See Restatement (Second) of Judgments, § 36(2) (1982) ("A party

appearing in an action in one capacity, individual or representative, is not thereby bound by or entitled to the benefits of the

rules of res judicata in a subsequent action in which he

appears in another capacity.").

B.

Our controlling precedent concerning the rule of differing

capacities — which we see as consistent with Virginia law —

is found in Daw II. The first Daw appeal (presented to us in

1997, three years prior to Daw II) involved a § 1983 suit

against, inter alia, North Carolina Highway Patrolman J.M.

Daw in his official capacity for allegedly violating a driver’s

constitutional rights during a traffic stop. See Andrews v.

Daw, No. 96-7664, 1997 WL 375096, at *1 (4th Cir. July 7,

1997) (unpublished decision) (hereinafter "Daw I"). The district court had dismissed the Daw I action in its entirety,

awarding summary judgment to Patrolman Daw on the basis

of qualified immunity. Id. On appeal, however, we concluded

in Daw I that the appropriate disposition as to Patrolman Daw

in the district court was not summary judgment, but rather

dismissal under Rule 12(b)(6). Id. In so ruling we reasoned

that, because Daw had been sued in his official capacity only,

he was shielded from monetary damages by the Eleventh

Amendment and, thus, entitled to Rule 12(b)(6) relief. Id.

Soon thereafter, in the Daw II proceedings, Patrolman Daw

was sued again under § 1983, but this time in his individual

capacity. Daw promptly moved to dismiss on the basis of res

judicata, arguing that the second § 1983 complaint was barred

by his dismissal in Daw I. See Daw II, 201 F.3d at 524. The

district court agreed and dismissed the second complaint on

res judicata grounds. Id. In Daw II, we reversed the court’s res

judicata disposition, explaining that the rule of differing

capacities means that a government official in his official

12 BROOKS v. ARTHUR
capacity is not in privity with himself in his individual capacity. Id. at 526.

Our Daw II decision explained the rationale behind the rule

of differing capacities in a manner that is highly pertinent

here. More specifically, we explained that, because "the real

party in interest in an official-capacity suit is the entity, a

plaintiff can only recover damages from the entity itself, in

contrast to a personal-capacity suit, in which a plaintiff can

seek a judgment against the official’s personal assets." Daw

II, 201 F.3d at 525. As Judge Williams emphasized in that

decision, "different legal theories of liability are required for

the plaintiff, and different defenses are available to the defendant, in a personal-capacity action than in an official-capacity

action." Id. Put simply, because the litigation landscape is

materially different in a personal-capacity suit — as opposed

to an official-capacity suit — the parties are not in privity.

Furthermore, the Daw II decision recognized that the district court had dismissed the Daw I action against Patrolman

Daw on Eleventh Amendment immunity grounds and had not

resolved any issues regarding Daw’s personal liability under

§ 1983. As Judge Williams emphasized, our "disposition [of

the first appeal] makes it clear that [Patrolman Daw] merely

served as a representative of the government when sued [in

Daw I] in his official capacity and did not represent ‘precisely

the same legal right’ as he did when sued in his individual

capacity." Daw II, 201 F.3d at 525-26. Daw II thus explicitly

concluded that "a government employee in his official capacity is not in privity with himself in his individual capacity for

the purposes of res judicata." Id. at 526.

C.

Here, in granting dismissal on res judicata grounds, the district court’s Opinion concluded that the Daw II precedent is

distinguishable on the issue of privity, because "the [Daw I]

court dismissed the plaintiff’s first suit [against Patrolman

BROOKS v. ARTHUR 13
Daw] on Eleventh Amendment grounds without reaching the

issue of [Daw’s] personal liability under § 1983." Brooks, 611

F. Supp. 2d at 599. The Opinion further distinguished this

matter from Daw II on the ground that "the Plaintiffs seek to

relitigate the same claims (retaliation) that were addressed in

the prior proceedings." Id. As such, according to the court,

"the state grievance proceedings cannot be easily analogized

to official capacity suits." Id. The Opinion, therefore, sought

to have it both ways on the privity issue. When it came to

concluding that Daw II did not apply because the EDR hearings could not be readily analogized to official-capacity suits,

there was no privity. But when it came to concluding that the

interests of the Department and the defendants were essentially identical, privity was deemed apparent.

Instead of applying our Daw II precedent concerning the

rule of differing capacities, the district court was persuaded by

our unpublished decision in Davani II.

9 Davani II concerned

an employee who had worked for but was later terminated by

Virginia’s Department of Transportation. See 263 F. App’x at

297. Davani alleged that, in being discharged, he had been

discriminated against on the basis of his race, religion, and

national origin. Id. In August 2003, Davani first challenged

his dismissal in an administrative hearing, but lost. Id. The

following year, in November 2004, Davani initiated federal

court proceedings challenging his dismissal, apparently under

Title VII, naming as defendants the Department of Transportation and his direct supervisors. In addressing the preclusion

issues litigated in Davani II, Davani argued that his federal

9Like Daw, the Davani litigation has been before us twice. In the first

Davani proceedings, the district court had held that it did not possess jurisdiction under the Rooker-Feldman doctrine. See D.C. Court of Appeals v.

Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413

(1923). On appeal, we reversed and remanded so that the parties could

supplement the record and the district court could fully consider the preclusion arguments. See Davani v. Va. Dep’t of Transp., 434 F.3d 712, 713-

14 (4th Cir. 2006) ("Davani I"). In Davani II, we resolved the post-remand

second appeal. 

14 BROOKS v. ARTHUR
court action was not barred by the adverse administrative rulings because the lawsuit was predicated on different facts than

those in the administrative hearing, specifically that the disciplinary notices leading to his dismissal by the Department of

Transportation had not all been considered previously. Id. at

299. 

Absent from our analysis in Davani II, apparently because

the action was pursued under Title VII, are any assessments

of the rule of differing capacities or the doctrine of privity.

See Lissau v. Southern Food Service, Inc., 159 F.3d 177, 180

(4th Cir. 1998) (concluding Title VII "foreclose[s] individual

liability"). Because the Davani II decision does not impact

either of those issues, it necessarily has limited applicability

here, and the Daw II decision controls.

Our explanation of why Daw II controls is primarily rooted

in the differences in the legal landscape when a defendant is

sued in his individual — as opposed to official — capacity.

The Daw II decision emphasized three relevant distinctions:

(1) damages are recovered from the entity in an officialcapacity suit, while they are recovered from an official’s personal assets in an individual-capacity suit; (2) different theories of liability are implicated in official- versus individualcapacity suits; and (3) different defenses are available in

official- versus individual-capacity suits. See 201 F.3d at 525

(citing Kentucky v. Graham, 473 U.S. 159, 165-66 (1985)).

The district court’s Opinion may be correct in concluding that

there is no material distinction between the theories of liability in the EDR hearings and this case. Nonetheless, Arthur’s

and Mitchell’s personal assets were not at stake in the EDR

hearings. See Va. Code Ann. § 2.2-3005.1(A) (designating

remedies EDR hearing officer may order: "(i) reinstatement,

(ii) back pay, (iii) full reinstatement of fringe benefits and

seniority rights, (iv) mitigation or reduction of the agency

disciplinary action, or (v) any combination of these remedies"). Furthermore, the non-availability of a qualified immunity defense in the EDR proceedings, in contrast to the

BROOKS v. ARTHUR 15
availability of such a defense here, constitutes a critical distinction between the EDR proceedings and the plaintiffs’

§ 1983 claims. We are thus compelled to follow our precedent

in Daw II and conclude that there was no privity between the

Department and the defendants.

IV.

Pursuant to the foregoing, we vacate the judgment of the

district court and remand for such other and further proceedings as may be appropriate.

VACATED AND REMANDED

16 BROOKS v. ARTHUR