Ohio State files rare legal appeal to maneuver Strauss survivors in court

Ohio State University filed an unusual court request Monday in an effort to overturn a recent appeals court decision that revived unsettled lawsuits against the university related to sexual abuse by former OSU doctor Richard Strauss.

Last September, U.S. District Court Judge Michael H. Watson dismissed multiple civil lawsuits involving more than 100 plaintiffs against Ohio State, ruling that the statute of limitations in their cases had expired and therefore could not be tried in court.

Two members of a three-judge panel of the 6th U.S. Circuit Court of Appeals that heard the appeal overturned that decision on Sept. 14, ordering that the cases could move to trial because of plausible evidence that Ohio State knew Strauss was abusing students and covered it up.

Ohio State filed an appeal of its own, seeking an "en banc" review of the case by all 16 judges of the 6th U.S. Circuit Court of Appeals, hoping to reverse the decision in its favor again.

What is an en banc review?

Cases in U.S. courts of appeals are heard and decided by three-judge panels. Those judges are randomly selected from the sitting appeals court judges of that circuit. Parties who lose before a circuit judge panel can file an appeal for a rehearing en banc.

An en banc review is a court proceeding in which a case is heard before all the active judges of a court rather than by a small panel of judges, according to the Federal Rules of Appellate Procedure.

En banc reviews are uncommon, but may take place to "maintain uniformity of decisions within the circuit" or if the case involves a question of “exceptional importance," according to the rules.

Ohio State disagrees with appeals court decision

U.S. Circuit Court Judge Karen Nelson Moore, writing for the majority decision of the panel, said that the plaintiffs "plausibly allege a decades-long cover up," and "adequately allege that they did not know and could not reasonably have known that Ohio State injured them until 2018."

"This alone provides sufficient grounds to delay the accrual of their Title IX claims," she wrote.

In its en banc appeal motion, Michael H. Carpenter, special counsel for Ohio State, said the appellate panel's decision was "replete with precedent-setting errors of exceptional public importance" and was "in direct conflict" with the Supreme Court and all federal circuit courts of appeal.

Ohio State sides with U.S. Circuit Judge Ralph B. Guy Jr.'s dissenting decision, in which he wrote that the clock on the claims ran out decades ago and that the court’s 2-1 panel decision “effectively nullifies any statute of limitations for Title IX claims based on sexual harassment.”

At the heart of these lawsuits is the question of time, specifically whether the plaintiffs' lawsuits fall within the state's statutes of limitations.

In Ohio, criminal rape charges can be filed up to 20 years after the offense in most cases, and up to 25 years for certain cases like those involving children. Adult victims of sexual assault must sue within two years of the attack, and abused children must sue before age 30. The average current age of victims in the Strauss case is 50.

Title IX actions do not have their own statute of limitations and thus defer to the state statute of limitations for personal injuries, which in Ohio is two years.

Ohio State sought to dismiss these lawsuits against the university in early 2019, arguing that the statute of limitations on the suits' Title IX claims prevents the university from being held liable.

The victim plaintiffs have argued that the statute of limitations clock didn't start ticking until the allegations against Strauss first came to light in the spring of 2018, when Ohio State announced an investigation into the former university doctor.

"The en banc Court should rehear this case to restore the statute of limitations in Title IX cases," Carpenter wrote.

Plaintiffs' attorney says Ohio State is "trying to delay justice"

Ilann Maazel, an attorney representing some of the plaintiffs, said the en banc review filing is "just another example of Ohio State University trying to delay justice."

"It's what they've done from the beginning of this case; It's what they've done for 40 years," he said.

The 6th U.S. Circuit Court of Appeals will now decide whether to rehear the case or to uphold the panel judges' decision, which would move the lawsuits back to the district court.

Maazel said Tuesday that he didn't have any comment to share from his clients, but added that "Ohio State should consider holding themselves accountable."

When asked if Ohio State had any comment, university spokesman Ben Johnson said: "We’ll let the filings speak for themselves."

shendrix@dispatch.com

@sheridan120

Sheridan Hendrix is a higher education reporter for The Columbus Dispatch. Sign up for her Mobile Newsroom newsletter here and Extra Credit, her education newsletter, here.

This article originally appeared on The Columbus Dispatch: Ohio State sex abuse scandal: Legal move to quash Strauss lawsuits