James Brooks; Donald Hamlette; Samuel St. John v.  HOWARD R. ARTHUR, SR., In his individual capacity; RANDAL MITCHELL

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.

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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 Vir-
ginia, 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’ supervi-
sors — in their individual capacities. The defendants sought
dismissal of the complaints, asserting primarily that the doc-
trine 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 judi-
cata mandated dismissal of the § 1983 claims. See Brooks v.
Arthur, 611 F. Supp. 2d 592 (W.D. Va. 2009) (the "Opin-
ion"). 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 "Sug-
gestion 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).
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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. Ham-
lette, 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 wit-
nesses 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 com-
plaint. Although the witness letters were marked "confiden-
tial," 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 plain-
tiff[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.
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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 ter-
minated 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 fol-
low 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 griev-
ances 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 retali-
ation for Hamlette asserting the EEO complaint and because
Brooks and St. John were willing to testify favorably on Ham-
lette’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.
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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 Ham-
lette 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 com-
pleted 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 dis-
posing of the retaliation claim, the Hamlette Decision con-
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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 estab-
lished a connection between the protected activity and the
adverse action." Id. at 87. Hamlette did not appeal the Ham-
lette 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, Vir-
ginia.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 Deci-
sions"). 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 com-
plaints 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.
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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, assert-
ing that Arthur and Mitchell advised witnesses that their par-
ticipation 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 Reconsid-
eration Decisions barred the § 1983 claims under the doctrine
of res judicata. The plaintiffs responded that the rule of differ-
ing capacities — that defendants are not in privity with them-
selves 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.
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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 proceed-
ings. As part of its analysis, the court looked to see if the
Department’s and the defendants’ interests in the EDR hear-
ings 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 pro-
6In rendering its Opinion, the district court took judicial notice of the
plaintiffs’ EDR grievances, the Hamlette Decision, the orders of the Cir-
cuit Court of Campbell County vacating the initial EDR rulings on the
Brooks and St. John grievances, the EDR hearing officer’s Reconsidera-
tion 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 incor-
porated 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 proceed-
ing.’" Brooks, 611 F. Supp. 2d at 597 (quoting Briggs v. Newberry Cnty.
Sch. Dist., 838 F. Supp. 232, 234 (D.S.C. 1992)).
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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 manage-
ment 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: prov-
ing, by a preponderance of the evidence, that the dis-
cipline 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 com-
plaint 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, how-
ever, we may consider facts on which the district court prop-
erly took judicial notice. See Daw II, 201 F.3d at 524 n.1.
7The district court also analyzed whether the issues in the EDR proceed-
ings and the § 1983 action were identical, and concluded that they were.
See Brooks, 611 F. Supp. 2d at 601.
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("[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 prop-
erly before it which the parties have had an adequate opportu-
nity to litigate, federal courts must give the agency’s fact
finding the same preclusive effect to which it would be enti-
tled in the State’s courts" (internal quotation marks omitted)).
Second, because we are considering whether to give preclu-
sive 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. Smith-
field Foods, Inc., where the Supreme Court of Virginia recog-
nized that, "[t]o establish the defense of res judicata, the
proponent of the doctrine must establish identity of the reme-
dies 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 deci-
sion also recognized that privity should be determined on a
case by case basis. Id. Of significance, the Supreme Court of
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Virginia has emphasized that the federal and state tests gov-
erning 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 capaci-
ties. 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 capaci-
ties. 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 govern-
ment or a corporation; and a separate identity (or capacity) as
an individually autonomous human being. The rule of differ-
ing 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.
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in their official and individual capacities are not in privity
with one another for the purposes of res judicata. See Restate-
ment (Second) of Judgments, § 36(2) (1982) ("A party
appearing in an action in one capacity, individual or represen-
tative, 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 dis-
trict 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
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capacity is not in privity with himself in his individual capac-
ity. 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 defen-
dant, 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 dis-
trict 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 capac-
ity 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 dis-
trict 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
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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 hear-
ings 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 essen-
tially 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 Transpor-
tation 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 juris-
diction 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 pre-
clusion 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.
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court action was not barred by the adverse administrative rul-
ings because the lawsuit was predicated on different facts than
those in the administrative hearing, specifically that the disci-
plinary 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 official-
capacity suit, while they are recovered from an official’s per-
sonal assets in an individual-capacity suit; (2) different theo-
ries of liability are implicated in official- versus individual-
capacity 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 liabil-
ity 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 reme-
dies"). Furthermore, the non-availability of a qualified immu-
nity defense in the EDR proceedings, in contrast to the
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availability of such a defense here, constitutes a critical dis-
tinction 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 proceed-
ings as may be appropriate.
VACATED AND REMANDED
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