Sears, Logar want to revive Bresch case
Steve Korris Oct. 28, 2011, 2:50am
CLARKSBURG – Former leaders of West Virginia University's business school seek to revive a suit claiming damage to their reputations from an investigation into a degree the school awarded to Heather Bresch, daughter of U.S. Senator Joe Manchin.
On Oct. 13, former dean Stephen Sears and former associate dean Cyril Logar asked U.S. District Judge Frederick Stamp to vacate his order dismissing the case.
They pleaded that a new complaint would overcome a two year statute of limitations that Stamp enforced against them on Sept. 15.
They argued that new damage occurred this year, when the university resumed an academic integrity investigation that another judge stopped for two years.
They also appealed to the Fourth Circuit in Richmond, Va., but the clerk declined to docket the case until Stamp decides whether to vacate the order.
The scandal broke in 2007 when news outlets reported that Bresch received a master's degree she hadn't earned.
An academic integrity screening committee identified Sears and Logar as potential respondents on July 17, 2008.
A discovery subcommittee brought misconduct charges against them on Dec. 3, 2008.
Former provost Gerald Lang, also facing charges, sued the university in Monongalia Circuit Court for an injunction to stop the proceedings.
He argued that conflicts of interest tainted the investigation.
Circuit Judge Susan Tucker agreed and halted the proceedings, not only against Lang but also against Sears and Logar.
On Dec. 3, 2010, Sears and Logar sued the Board of Governors, former university president Mike Garrison, and six other individuals.
They claimed defendants sabotaged their reputations and deprived them of liberty and property rights without due process.
They claimed they acted on advice of general counsel Alex Macia and lawyer Beverly Kerr without knowing Macia and Kerr wouldn't protect their interests.
They named Kerr and lawyer Mary Brandt as defendants, but didn't sue Macia.
Defendants moved to dismiss, arguing a two year statute of limitations started running when Sears and Logar received the screening committee's misconduct charges.
This July, while Sears and Logar proceeded in Stamp's court, Lang and the Board of Governors settled the dispute in Tucker's court.
The board agreed not to investigate Lang, and he agreed to drop his suit.
Tucker vacated her injunction, allowing the investigation to resume.
Back in federal court, Stamp ruled against Sears and Logar after converting the motions to dismiss into motions for summary judgment.
"This court concludes that the plaintiffs not only had reason to know, but also had knowledge of every alleged discriminatory act alleged in the complaint at the time they received the screening subcommittee report," he wrote.
"The actual bringing of misconduct charges is merely an effect or consequence of the alleged conflict of interest and alleged tainted investigation," he wrote.
Lawyers for Sears and Logar bounced back with a bid to vacate the order, offering three dates for Stamp to start the two year clock.
First, they repeated a prior argument that it started on Dec. 8 and 9, 2008, when Sears and Logar received the discovery committee's misconduct charges.
Until then, they wrote, Sears and Logar weren't aware that lawyers in the office of general counsel weren't protecting their interests.
Until then, they wrote, Sears and Logar didn't know which individuals might have inflicted injury on them.
"At no point before these events did plaintiffs have a reason to distrust the fairness of the procedure," they wrote.
Second, they argued that the clock started when Tucker stopped the investigation.
They wrote that university policy allows reparation if no misconduct is found.
They wrote that the language contemplates a final decision on misconduct charges.
They wrote, "Plaintiffs' right to bring a claim for that relief accrued no earlier than April 24, 2009, the date on which Judge Tucker entered her order terminating the conflict ridden misconduct proceedings."
Finally, they argued that the university breached their contracts by reviving the academic integrity proceedings after Tucker vacated the injunction.
"This change in circumstances requires that plaintiffs be permitted to amend their complaint," they wrote.
They wrote that the academic integrity process should have been completed in 210 days, but that there has been no determination in more than 1,200 days.
John Tinney Jr. of Charleston and Thomas Clare of Kirkland and Ellis in Washington signed the motion for Sears. Robert Ridge of Pittsburgh signed for Logar.
On Oct. 26, generic drug company Mylan Inc. announced Bresch will become chief executive officer on Jan. 1.