Petition — Board of Trustees of Bloomsburg State College v. Skehan

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Supreme Court, U. $.

FILED

SEP 20 1976

oe eeeg ene

in the Supreme : er

Unjted States

seca! ry 6- 4 0 9

BOARD OF TRUSTEES OF BLOOMSBURG

STATE COLLEGE; DR. ROBERT NOSSEN; DR.

CHARLES CARLSON; JOHN PITTENGER, SU-

PERINTENDENT OF EDUCATION, COMMON-

WEALTH OF PENNSYLVANIA; and BLOOMS-

BURG STATE COLLEGE,

Petitioners

Vv.

DR. JOSEPH T. SKEHAN,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

J. JUSTIN BLEWITT, JR.

Deputy Attorney General

Chief, Civil Litigation

JEFFREY COOPER

Deputy Attorney General

ROBERT P. KANE

Attorney General

Attorneys for Petitioners

Capitol Annex

Harrisburg, Pa. 17120

a

Murrelie Printing Co., Law Printers, Box 100, Sayre, Pa. 18840

TABLE OF CONTENTS

GE ioe oe ee ee

NR Ne ad ined» bin oss iy clk oak det molec

Te ee at

Reasons for Granting the Writ:

I. The opinion of the Circuit Court that the

Eleventh Amendment does not bar an award

of attorneys’ fees against a state agency for

bad faith in the conduct of litigation is in di-

rect conflict with opinions rendered by other

Circuit Courts and raises a substantial con-

stitutional. question ..............e.00.

II. The holding of the Circuit Court allowing

an award of attorneys’ fees as an element of

damages for vexation or oppression prior to

litigation exceeds the holding of this Court

in Alyeska Pipeline Service Company v. Wil-

derness Society, 421 U.S. 240 (1975) ....

Ill. The failure of the Circuit Court to deter-

mine the immunity of defendants exceeds

this Court’s previous order and raises a sub-

stantial question of public policy and judi-

Se GE 5 w bdW ome c thane aetbarecece

ea A. tiedoes deecsdundds tdbdilan &

13

15

18

Appendix:

Opinion on Remand, United States Court of Ap- .

peals for the Third Circuit, Dated June 21,

ED one, a eats ee UOC 65% 2b WNT KOSS la

Judgment on Remand .........---++++++5 23a

Order of Remand, Supreme Court of the United

States, Dated May 27, 1975 .........---+-- 25a

Opinion, United States Court of Appeals for th

Third Circuit, Dated May 3, 1974 ......:. 26a

Judgment .........- eee ceee rece eeeecees 53a

Opinion, United States District Court for the Mid-

dle District of Pennsylvania, Dated May 9,

SE. ve cunbevenbonceseehetbenaseea 55a

Order Dated June 12, 1973 ........--++5-- 67a

TABLE OF CITATIONS

CASES:

Alyeska Pipeline Service Co. v. Wilderness Society,

421 U.S. 240 (1975) ........... 7,10, 12, 13, 14

Amos v. Sims, 409 U.S. 942 (1972) .......... 11

The Appollon, 22 U.S. [9 Wheat.] 362 (1824) .. 13

Board of Regents v. Roth, 408 U.S. 564 (1972) .. 16

Bond v. Stanton, 528 F.2d 688 (7th Cir. 1976),

cert. granted —— U.S. ——, 96 S.Ct. 2224

(9GTED cc cc cccccocccgecenenngeceseses 8,9

Brungard v. Hartman, 12 Pa. Commonwealth Ct.

477, 315 A.2d 913 (1974) .....---- eee eee 8

Edelman v. Jordan, 415 U.S. 651 (1974) ...6,9, 10, i1

F. D. Rich Co. v. Industrial Lumber Co., 417 US.

11GB CIDTE) 2. cc ccccccccccccccesscccese 14

Fairmont Creamery Co. v. Minnesota, 275 U.S. 70

a SPEER ict. Atel 10, 11

Fitzpatrick v. Bitzer, —— U.S. —— ,

eg A ede eat ee ae cr eee $59 12

Fleischer v. Paramount Pictures Co i

F.2d 424 (2nd Cir. 1964) , cert. ge oy hey

Fleischer v. A.A.P., Inc., 379 U.S. 835 (1964) 11

Fleischmann Distilling Corp. v. Mai i

386 U.S. 719 (1967). ra ae eee 10

Hallmark Clinic v. North Carolina Departmen

t

Human Resources, 519 F.2d 1315 (4th oe.

SPE ab Fue a ab aks bck ddnc couel, O3 8,9

Imbler v. Pachtman, —— U.S. ——

ng are al ceili ' on ; ms mn 17

Jordan v. Gilligan, 500 F.2d 701 (6th Cir. 1974) 9

O’Connor v. Donaldson, 422 U.S. 563 (1975) ..16, 17

Perry v. Sindermann, 408 U.S. 593 (1972) .... 16

Pierson v. Ray, 386 U.S. 547 (1967) .......... 16

Safeguard Mutual Insurance Co. v. Miller

if : 3 Beier sae _ 17

Sanford Research Co. v. Eberhard Faber P

Pencil Co., 379 F.2d 512 (7th Cir. 1967) - 11

Scheuer v. Rhodes, 416 U.S. 232 (1974) ...... 15

Sims v. Amos, 340 F. Supp. 691 (M.D. Ala. 1972) 11

Sprague v. Ticonic National Bank

BS RE spe : aed — 11

Thonen v. Jenkins, 517 F.2d 3 (4th Cir. 1975) .. 8,9

Vaughan v. Atkinson, 369 U.S. 527 (1902) ....13, 14

Wood v. Strickland, 420 U.S. 308 (1975) ....6, 15, 16

iii

STATUTES:

26 UBL. GUSBL ..ccccccveceséavecnesverees 8

2B USL. BIGED onc cccccscccveseessustesnes 10

2B USC. SIGBS CE) .nncccccccccccscccescess 10

42 USC. BIGBS .nccviccccccsceccccccsecscogs 8,12

42 U.S.C. §2000e-5 (1) (Cc) .. 6... ee eee eee eee eee 12

OTHER AUTHORITIES:

Comment, Court Award of Attorney’s Fees and

Equal Access to the Courts, 122 U. Pa. L. Rev.

A it) 14

iv

Petition 1

IN THE SUPREME COURT OF THE UNITED STATES

No.

BOARD OF TRUSTEES OF BLOOMSBURG STATE

COLLEGE; DR. ROBERT NOSSEN; DR. CHARLES

CARLSON; JOHN PITTENGER, SUPERINTENDENT

OF EDUCATION, COMMONWEALTH OF PENNSYL-

VANIA; AND BLOOMSBURG STATE COLLEGE,

Petitioners

Vv.

DR. JOSEPH T. SKEHAN,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

The petitioners, Board of Trustees of Bloomsburg

State College, Dr. Robert Nossen, Dr. Charles Carlson,

John Pittenger, Superintendent of Education, Common-

wealth of Pennsylvania and Bloomsburg State College

hereby petition that a writ of certiorari issue to review the

opinion of the United States Court of Appeals for the Third

Circuit entered in this case on June 21, 1976.

2 Opinions Below

OPINIONS BELOW

The opinion and judgment of the Court of Appeals

of June 21, 1976, has not been published but is printed

in the Appendix, pp. 1a-24a. The initial opinion of the

United States District Court for the Middle District of

Pennsylvania of May 9, 1973, as amended May 14, and

May 17, 1973, is reported at 358 F. Supp. 430 and is

printed in the Appendix, pp. 55a-66a. The order of the

District Court of June 12, 1973 denying plaintiff’s mo-

tions to amend judgment and allowance of attorney’s fees

and costs is not reported but is printed in the Appendix,

67a-69a. The earlier opinion and judgment of the Court

of Appeals of May 3, 1974, as amended June 11, 1974,

is reported at 501 F.2d 31 and are printed in the Appen-

dix at 26a-54a. The previous order of this Court is re-

ported at 421 U.S. 983 (1975) and is printed in the Ap-

pendix at 25a.

Jurisdiction and Questions Presented 3

JURISDICTION

The opinion of the Court of Appeals for the Third

Circuit was issued on June 21, i976. This petition for a

writ of certiorari was filed within ninety (90) days of

that date. The jurisdiction of this Court is invoked under

28 U.S.C. §1254(1).

QUESTIONS PRESENTED

1. Does the Eleventh Amendment to the Constitu-

tion of the United States prohibit the award of attorneys’

fees against an agency of a State, absent statutory authori-

zation for the award pursuant to Section 5 of the Four-

teenth Amendment?

2. May attorneys’ fees be awarded against state

officials in their individual capacities for pre-litigation

obduracy?

3. Should the irnmunity of defendant state officials

from a damage action have been determined as a matter

of law on the existing record?

4 Constitutional Provision Involved

CONSTITUTIONAL PROVISION INVOLVED

The Eleventh Amendment to the Constitution of the

United States provides as follows:

“The judicial power of the United States shall

not be construed to extend to any suit in law or equi-

ty, commenced or prosecuted against one of the Unit-

ed States by citizens of another state, or by citizens

or subjects of any foreign state.”

Statement of the Case ° 5

STATEMENT OF THE CASE

Plaintiff-respondent was appointed an Associate Pro-

fessor of Economics at Bloomsburg State College in Jan-

uary, 1969. In May, 1970, respondent was offered a ter-

minal one year contract with the College for the 1970-71

academic year. Respondent appealed his one year termi-

nation contract to the Board of Trustees, and was subse-

quently informed by petitioner Nossen, then President of

Bloomsburg, that the Board had determined that his ap-

pointment for the 1970-71 school year would be terminal.

During the 1970 fall semester a class scheduling dis-

pute arose in the Department of Economics, causing peti-

tioner Nossen to dismiss respondent from his employment.

On October 23, 1970, the Board of Trustees terminated

respondent’s employment effective October 17, 1970. On

December 1, 1970, a post-termination hearing was held

and the Hearing Committee confirmed the decision to dis-

miss respondent.

This suit was filed October 10, 1972 in the United

States District Court for the Eastern District of Penn-

sylvania and was subsequently transferred to the Middle

District of Pennsylvania. The complaint alleged a viola-

tion of respondent’s First and Fourteenth Amendment

rights. The relief sought included reinstatement, back

pay, costs, and attorneys’ fees.

On May 9, 1973, the District Court, after hearing,

issued its final decision. The court held that respondent’s

mid-year discharge did not violate his rights under the

6 Statement of the Case

First Amendment and that the sole reason for the dis-

charge was the class scheduling dispute (61a). The

court also held that the mid-contract dismissal without a

prior hearing violated respondent’s right to procedural due

process (62a). Based on its finding that the depriva-

tion of respondent’s constitutional right was technical in

nature (65a), the District Court awarded respondent

nominal damages. Respondent’s motions to amend judg-

ment and for the allowance of attorneys’ fees were denied

by the District Court on June 12, 1973, because of the

technical nature of the constitutional violatiofl; petition-

ers’ lack of bad faith, and because of the fact that the vin-

dication of respondent’s right did not confer a benefit on

any group (69a).

On May 3, 1974, the Court of Appeals for the Third

Circuit affirmed the findings of the District Court that re-

spondent’s right to due process had been violated by the

failure of the College to give respondent a hearing prior

to his mid-year dismissal (36a-37a). The Third Circuit va-

cated and remanded for further findings as to whether the

decision to offer respondent a terminal year appointment

for the 1970-71 school year violated his contractual rights

or rights under the First Amendment.

The Court of Appeals further held, on the basis of

Edelman v. Jordan, 415 U.S. 651 (1974), that the Elev-

enth Amendment barred the award of damages against

the Commonwealth, and that if Bloomsburg State College

shared the Commonwealth’s Eleventh Amendment pro-

tection, the District Court could not order that it pay at-

torneys’ fees (47a). Finally, the Circuit Court held that

respondent could not recover damages from the indi-

vidual defendants, protected by official immunity, be-

Statement of the Case 7

cause they exercised discretionary governmental func-

tions and had not acted in bad faith (48a-49a).

Respondent thereafter filed a petition for certiorari.

This Court on May 27, 1975, granted respondent’s peti-

tion, vacated the Third Circuit’s opinion and remanded

the case to the Third Circuit for further consideration in

light of Alyeska Pipeline Service Co. v. Wilderness So-

ciety, 421 U.S. 240 (1975), and Wood v. Strickland, 420

U.S. 308 (1975) (25a).

On remand from the Supreme Court, the Third Cir-

cuit, en banc, held that despite this Court’s holding in Al-

yeska, supra, attorneys’ fees could be awarded against a

fendant for obduracy prior to litigation (10a). The

Court also ruled that although Bloomsburg State Col-

lege, under state law, shared the Commonwealth’s Elev-

enth Amendment protection (20a), nevertheless attor-

neys’ fees could be awarded against the College, and

therefore the Commonwealth, for bad faith in the conduct

of litigation (11a-12a). Finally, upon consjderation of

Wood v. Strickland, supra, the Court below ruled that

the District Court should reconsider the qualified im-

munity afforded the individual defendants. Petitioners

herein seek a writ of certiorari for this Court to review

the decision of the Third Circuit Court of Appeals.

$ Reasons for Granting Writ

REASONS FOR GRANTING THE WRIT

1. The Opinion of the Circuit Court That the Eleventh

Amendment Does Not Bar an Award of Attorneys’ Fees

Against a State Agency for Bad Faith in the Conduct of

Litigation Is in Direct Conflict With Opinions Rendered

by Other Circuit Courts and Raises a Substantial Consti-

tutional Question

The Court below held that although Bloomsburg

State College’ shares the Commonwealth’s immunity,

Brungard v. Hartman, 12 Pa. Commonwealth Ct. 477,

315 A.2d 913 (1974), an award of attorneys’ fees against

the College would nevertheless be proper if the College

was found to be obdurate in the course of this litigation

(20a). This holding squarely conflicts with the opin-

ion of a panel of the Fourth Circuit in Hallmark Clinic v.

North Carolina Department of Human Resources, 519

F.2d 1315 (4th Cir. 1975). The court in Hallmark held

that the Eleventh Amendment barred the award of attor-

neys’ fees against a state agency. *

1 Although Bloomsburg State College is not a person within

the meaning of 42 U.S.C. §1983, the Cireuit Court in first con-

sidering this case held it a proper party under the invocation of

28 U.S.C. §1331 jurisdiction. ;

2In Thonen v. Jenkins, 517 F.2d 3 (4th Cir. 1975), a dif-

ferent panel of the Fourth Circuit held that the Eleventh Amend-

ment did not bar an award of attorneys’ fees against state of-

ficers sued in their individual capacities. That precise issue, not

present in this petition is before this Court in Bond v. Stanton,

Reasons for Granting Writ 9

The opinion of the Third Circuit in this case also

squarely conflicts with the view of the Sixth Circuit as

expressed in Jordan v. Gilligan, 500 F.2d 701 (6th Cir

1974) , cert. den. 421 U.S. 991 (1975):

“. .. [T]he Eleventh Amendment prohibits the

awarding of attorneys’ fees against unconsenting sov-

ereign states.” 500 F.2d at 701. *

There is no way in which the opinion of the Third

Circuit can be reconciled with the opinions of the Fourth

and Sixth Circuits.- Had this action been brought in ei-

ther the Fourth or Sixth Circuit, the Eleventh Amendment

would have been held to bar an award of attorneys’ fees

against Bloomsburg State College. Only by granting this

petition and reviewing the Third Circuit’s holding can

this conflict in the circuits be resolved.

Both the Fourth and Sixth Circuits relied on this

Court’s opinion in Edelman v. Jordan, 415 U.S. 651

528 F.2d 688 (7th Cir. 1976), cert. granted, —~ U.S. ——. 96

S.Ct. 2224 (1976) (Mr. Justice Stevens not partici ting).

The holdings of the Fourth Circuit in Hallmark, supra, and

Thonen, indicate that this Court’s consideration of Bond, will not

be dispositive of the question presented here, whether the Elev-

enth bars an award of attorneys’ fees against a state agency

Therefore, in addition to the reasons presented in the text infra,

pp. 9-17 for granting this Petition, petitioners assert that the

complete question of the effect of the Eleventh Amendment on

the award of attorneys’ fees can only be fully adjudicated by

consideration of this case in conjunction with Bond.

* The Jordan v. Gilligan, 500 F.2d at 708-09, court relied

heavily on the Third Circuit's initial opinion in this case, 501 F.2d

31 (3d Cir. 1974), holding that “Edelman [v. Jorden, 415 US

ms A, vas |, while not ruling on the matter specifically, agpears

o bar the award of a ,

ane Geaatna ttorneys’ fees from the state treasury as

10 Reasons for Granting Writ

(1974), in holding that the Eleventh Amendment prohib-

ited an award of attorneys’ fees against a State or state

agency. Edelman teaches that a federal court may require

the expenditure of state funds if the expenditure is a nec-

essary consequence to future compliance with prospec-

tive injunctive relief. The Eleventh Amendment however

operates as a jurisdictional bar to a retroactive award of

monetary compensation from a State treasury.

The Third Circuit attempts to circumvent the Eleventh

Amendment and Edelman, supra, by analogizing an award

of attorneys’ fees for bad faith in the course of litigation

to an award of costs against the State, permitted by Fair-

mont Creamery Co. v. Minnesota, 275 U.S. 70 (1927).

That case held that the then current rules of the Supreme

Court, as well as section 254 of the Judicial Code (28

U.S.C. §352), authorizing the taxing of the cost of print-

ing of the record against the losing party in a Supreme

Court action, was sufficient authority for the costs taxed

to be paid by the State of Minnesota. The Eleventh

Amendment is not specifically discussed by the Court. Nor

does that opinion lend support to the lower Court’s propo-

sition that attorneys’ fees for bad faith litigation are analo-

gous to costs.

In Alyeska Pipeline Service Co. v. Wilderness So-

ciety, 421 U.S. 240 (1975), this Court considered wheth-

er Congress has changed the general statutory rule that

allowances for counsel fees are limited to the sums speci-

fied in the costs statutes (28 U.S.C. §§1920 and 1923 (a)).

The principle enunciated in Fleischmann Distilling Corp.

v. Maier Brewing Co., 386 U.S. 719 (1967), that the costs

statutes are a general exception to the “American rule” re-

garding taxation of attorneys’ fees was reaffirmed. Since

Reasons for Granting Writ 11

the authority to tax costs is limited to specified items, not

including attorneys’ fees for bad faith litigation practices,

there is simply no authority upon which the Circuit Court

could rely in concluding that attorneys’ fees for bad faith

litigation practices are analogous to costs. See, Fleischer

v. Paramount Pictures Corporation, 329 F.2d 424 (2d Cir.

1964) , cert. den. sub nom. Fleischer v. A.A.P., Inc., 379

U.S. 835 (1964); cf. Sanford Research Co. v. Eberhard

pra Pen and Pencil Co., 379 F.2d 512, 517 (7th Cir.

1967).

Moreover, this Court in Sprague v. Ticonic National

Bank, 307 U.S. 161 (1939) , recognized the inherent power

of an equity court to award attorneys’ fees in particular

situations. But the Sprague Court clearly indicated that at-

torneys’ fees are not within the ambit of ordinary taxable

costs, “They [costs between solicitor and client] are not

of a routine character like ordinary taxable costs,” 307

U.S. at 168. See also, id., 307 U.S. at 164. Thus, attor-

neys’ fees, awarded for whatever reason, are not costs, and

the Third Circuit improperly relied on Fairmont Creamery

Co. to authorize an award of attorneys’ fees against a State

agency.

The Third Circuit also suggests that this Court’s sum-

mary affirmance of Sims v. Amos, 340 F. Supp. 691 (M.D.

Ala. 1972), in Amos v. Sims, 409 U.S. 942 (1972), is au-

thority to grant attorneys’ fees against a State for bad faith

litigation (12a). The strength of that authority however

is severely tested by this Court’s statement in Edelman, su-

pra, that summary affirmances, particularly on constitu-

tional questions, are not of controlling precedential value.

415 U.S. at 671. Reliance on Sims is therefore misplaced.

That the Third Circuit improperly evaded the

Eleventh Amendment bar to the award of attorneys” fees

12 Reasons for Granting Writ

amply demonstrates the confusion of the Courts over this

issue. That the application of the Eleventh Amendment

to such awards is a substantial constitutional question has

been recognized by this Court on at least two occasions.

Recently, in Fitzpatrick v. Bitzer, US. , 96 S.Ct.

1666 (1976), this Court held that Congress, pursuant to-~

its power under Section 5 of the Fourteenth Amendment,

properly authorized an award of attorneys’ fees against a

State by statute (42 U.S.C. §2000e-5(1) (c).* This Court

specifically refused to determine the application of the

Eleventh Amendment to cases where there is no statutory

authority for awarding attorneys’ fees against a State. That

is the precise issue presented in this petition.

And, in Alyeska, supra, the Court noted:

“TA Jn award [of attorneys’ fees] against a state

government would raise a question with respect to its

permissibility under the Eleventh Amendment, a ques-

tion on which the lower courts are divided.” (Cita-

tions omitted.) 421 U.S. at 269, n. 44.

The question, whether the Eleventh Amendment bars

an award of attorneys’ fees against a State or State agency,

raises a substantial constitutional question and divides the

circuits. The impasse can be resolved by granting this Pe-

tition and issuing the requested writ.

* The Third Cireuit properly found no statute authorizing at-

torneys’ fees in this civil rights action brought under 42 U.S.C.

§1983.

Reasons for Granting Writ 13

Il. The Holding of the Circuit Court Allowing an Award

of Attorneys’ Fees as an Element of Damages for Vexa-

tion or Oppression Prior to Litigation Exceeds the Holding

of This Court in Alyeska Pipeline Service Company v.

Wilderness Society, 421 U.S. 240 (1975)

In Alyeska Pipeline, supra, this Court recognized four

exceptions to the American rule which ordinarily prevents

a prevailing litigant from collecting reasonable attorneys’

fees from the loser. The four recognized exceptions are:

(1) when there is specific statutory or contractuai authori-

ty for the award of attorneys’ fees; (2) when a common

fund has been created as a result of litigation, (3) when

a party wilfully disobeys a court’s order, and (4) when

the losing party acts in bad faith or for oppressive reasons

during the course of litigation.

Exceeding the bounds of Alyeska, the Court below

created a new fifth exception to the American rule. The

Third Circuit held that attorneys’ fees may be awarded

against individual defendants as an element of damages

for bad faith or obduracy prior to the initiation of suits

(8a-10a).

Vaughan v. Atkinson, 369 U.S. 527 (1902), was cit-

ed by the lower Court for the proposition that prelitiga-

tion bad faith is a proper basis for the award of attorneys’

fees. Vaughan, however, is a case in admiralty and this

Court’s opinion in that case, although it does speak broad-

ly of the inherent powers of a court in equity, is specific

.__in limiting the applicability of its holding to admiralty

cases, 369 U.S. at 530. The allowance of attorneys’ fees

in The Appollon, 22 U.S. [9 Wheat.] 362 (1824), and

14 Reasons for Granting Writ

Vaughan, simply reflects the long held view that, “in ad-

miralty suits . . . attorney’s fees have historically been

viewed as an item of compensatory damages. (footnote

omitted) .”” Comment, Court Award of Attorney’s Fees and

Equal Access to the Courts, 122 U. Pa. L. Rev. 636, 645

(1974).

The citation of Vaughan, in F. D. Rich Co. v. Indus-

trial Lumber Co., 417 U.S. 116 (1974), and the later ci-

tation of F. D. Rich, in Alyeska, only indicates the con-

tinued vitality of Vaughan in its limited context. In nei-

ther F. D. Rich nor Alyeska did this Court hold historic

admiralty considerations to be applicable to actions in eq-

uity. The mere citation of Vaughan in F. D. Rich, along

with nonadmiralty cases, found so important by the Court

below (10a), is an insufficient basis upon which to ap-

ply traditional admiralty considerations to civil rights dam-

age actions. Otherwise, a previously unrecognized excep-

tion to the “American rule” would be applicable to civil

actions generally.

If the allowance of attorneys’ fees for obduracy prior

to litigation is to become a new judicial exception to the

American rule, the exception should be defined by this

Court. Without guidance or authority, the Third Circuit

applied admiralty considerations to this action. This Court

should review that holding and find that the Court below

exceeded this Court’s mandate on remand by grafting a

further exception onto the “American rule” governing at-

torneys’ fees—an exception not recognized by this Court

in Alyeska.

Reasons for Granting Writ 15

III. The Failure of the Circuit Court To Determine the

Immunity of Defendants Exceeds This Court’s Previous

Order and Raises a Substantial Question of Public Policy

and Judicial Economy

The District Court, finding a technical violation of

plaintiff’s constitutional rights held, as a conclusion of law

(65a), that the defendants were not guilty of bad faith

in improperly discharging the plaintiff (65a, 69a). The

Third Circuit, applying Scheuer v. Rhodes, 416 U.S. 232

(1974), initially held the individual defendants officially

immune from damages. This Court remanded the case for

reconsideration in light of Wood v. Strickland, 420 U.S.

308 (1975) (25a).

The only new element injected into this case by Wood

is the immunity standard applicable to school officials:

“[A] school board member is not immune from

liability for damages under §1983 if he knew or rea-

sonably should have known that the action he took

within his sphere of official responsibility would vio-

late the constitutional rights of the student affected,

or if he took the action with the malicious intention

to cause a deprivation of constitutional rights or other

injury to the student.”

The ijatter requirement for the imposition of damages was

held by the District Court not to be present in this action.

The constitutional deprivation “was not the product of bad

faith on the part of Defendants.”” (69a) Therefore, the

only issue before the Circuit Court on remand was wheth-

er defendants knew or reasonably should have known that

their actions violated plaintiff’s constitutional rights.

16 Reasons for Granting Writ

This Court should make clear that a state official—

as a matter of law—cannot know nor reasonably be pre-

sumed to know that his actions are violative of the Con-

stitution until this Court itself has announced that that

particular type of action is constitutionally impermissible.

Where the law which will govern a public official’s

action has not been specifically determined by this Court

prior to the time the official acts, that official—as a mat-

ter of law and logic—is immune from liability insofar as

the “know or reasonably should have known” criterion of

Wood v. Strickland is concerned. This Court should an-

nounce that as a matter of judicial economy, lower courts

in civil rights damage actions should make such immunity

determinations at the earliest opportunity. Here, that is-

sue was ripe for decision on remand from this Court.

As a matter of law, defendants could not have known

that their actions would violate plaintiff’s constitutional

rights. This Court’s opinions in Board of Regents v. Roth,

408 U.S. 564 (1972), and Perry v. Sindermann, 408 U.S.

593 (1972), were not issued until almost two years after

plaintiffs dismissal. The defendants are not ‘charged with

predicting the future course of constitutional law. Pierson

v. Ray, 386 U.S. 547, 557 (1967); Wood v. Strickland,

supra, 420 U.S. at 322; O’Connor v. Donaldson, 422 US.

563,577 (1975). And indeed, Roth and Sindermann, both

subsequent to the actions complained of, were the primary

cases on which the District and Circuit Courts initially re-

lied (61a-62a, 37a). Thus, the Third Circuit should have

confined its opinion to the new issue presented by Wood

v. Strickland and found, as a matter of law, that defend-

ants were entitled to their conditional immunity.

While the Circuit Court may have believed that im-

munity is an affirmative defense to be decided on an evi-

Reasons for Granting Writ 17

dentiary record, Imbler v. Pachtman, US. , 96

S.Ct. 984 (1976) ; cf. O’Connor v. Donaldson, supra, Safe-

guard Mutual Insurance Co. v. Miller, 472 F.2d 732 (3d

Cir. 1973), petitioners submit that the question of a de-

fendants knowledge, when possible, should be made on

the pleadings. As with other affirmative defenses, such as

the statute of limitations and res judicata, the public policy

encouraging judicial economy compels an immunity deter-

mination at the earliest possible time. If the ruling of the

Third Circuit is followed, valuable judicial time and effort

will be wasted. In civil rights actions, such as this, where

damages are sought, a full trial must first be had to deter-

mine the existence of a constitutional deprivation. If the

deprivation occurred, further evidence would then be re-

quired to determine the scope of a defendant’s immunity.

An opinion from this Court holding that when immunity

is patently obvious as a matter of law on the pleadings or

existing record further evidentiary proceedings are not nec-

essary would avoid this potential misuse of judicial re-

sources. This important question of judicial economy and

public policy can be determined by reviewing the opinion

of the Third Circuit in this case.

18 Reasons for Granting Writ

CONCLUSION

For the above stated reasons, petitioners respectfully

request that the petition for a writ of certiorari to the

United States Court of Appeals for the Third Circuit be

granted.

Respectfully submitted,

J. JUSTIN BLEWITT, JR.

Deputy Attorney General

JEFFREY COOPER

Deputy Attorney Gene/al

ROBERT P. KANE

Attorney General

Attorneys for Petitioners

Opinion, Court of Appeals on Remand la

UNITED STATES COURT OF APPEALS

For the Third Circuit

No. 73-1613

DR. JOSEPH T. SKEHAN,

Appellant

v.

BOARD OF TRUSTEES OF BLOOMSBURG STATE

COLLEGE AND DR. ROBERT NOSSEN AND DR.

CHARLES CARLSON AND JOHN PITTENGER,

SUPERINTENDENT OF EDUCATION, COMMON-

WEALTH OF PENNSYLVANIA AND BLOOMSBURG

STATE COLLEGE,

Appellees

(D.C. Civil Action No. 72-644)

Rehearing In Banc Argued May 13, 1976

Before SE1Tz, Chief Judge, Biccs, VAN DUSEN, ALDISERT,

ADAMS, GIBBONS, ROSENN, HUNTER, WEIS and

GARTH, Circuit Judges

2a Opinion, Court of Appeals on Remand

OPINION ON REMAND FROM THE SUPREME

COURT OF THE UNITED STATES

(Filed June 21, 1976)

Michael H. Gottesman, Esquire

Dennis D. Clark, Esquire

Bredhoff, Cushman, Gottesman &

Cohen

Suite 1300

1000 Connecticut Avenue, N.W.

Washington, D.C. 20036

Harry Lore, Esquire

Cohen & Lore

1420 Walnut Street

Philadelphia, Pennsylvania 19102

_ Attorneys for Appellant

J. Justin Blewitt, Jr.,

Deputy Attorney General

Norman P. D’Apolito,

Deputy Attorney General

Lawrence Silver,

Deputy Attorney General,

Chief, Civil Litigation

Robert P. Kane,

Attorney General

Department of Justice

_ Capitol Annex Building

Harrisburg, Pennsylvania

Attorneys for Appellees

Opinion, Court of Appeals on Remand 3a

GIBBONS, Circuit Judge

This case is before us on remand from the Supreme

Court. In August 1972 Joseph Skehan, formerly a non-

tenured Associate Professor of Economics at Bloomsburg

State College in Pennsylvania, sued in the district court

seeking preliminary and permanent injunctive relief of

reinstatement and back pay to that position, declaratory

relief that his termination from the position was unconsti-

tutional, punitive damages and attorney’s fees. The de-

fendants in the action were Bloomsburg State College; its

Board of Trustees; Dr. Robert Nossen, its President; his

successor to the presidency, Dr. Charles Carlson; and John

Pittenger, Pennsylvania’s Superintendent of Education.

The district court found that Skehan’s one year em-

ployment contract was an interest in the nature of prop-

erty; that its termination without an adequate hearing

violated due process; and that the termination was not, as

alleged, in retaliation for engaging in activity protected by

the first amendment.’ The court did not decide whether

the college’s prior decision not to renew Skehan’s contract,’

which had the effect of preventing him from achieving

1 Skehan alleged in his complaint that the college terminated

him for his controversial stand on political issues, and especially

for his trenchant criticism of the Vietnam War. The district

court found that Skehan had been fired for disregarding directives

from the college administration relating to the scheduling of

classes.

2Skehan had been employed in January of 1969. This con-

tract extended through the 1969-70 school year. In May, 1970

Skehan was notified that his contract would be renewed for the

following academic year, but would not be renewed beyond that

date. Skehan resumed his teaching duties for the terminal year

of his contract in September, 1970. President Nossen fired

4a Opinion, Court of Appeals on Remand

tenure, was made in reprisal for activities protected by the

first amendment. Nor did it decide whether Skehan had

a contractual right to a so-called “academic freedom” hear-

ing prior to the college’s decision not to renew his appoint-

ment.®

On appeal we affirmed the district court’s determina-

tions that the termination of Skehan’s one year contract

violated due process and that the termination was not in

retaliation for the exercise of first amendment rights. We

concluded that the court should have considered his claim

that the non-renewal decision was so motivated, and should

have decided his claim to a contractual ‘‘academic free-

dom” hearing prior to termination. We held that the in-

dividual defendants, exercising discretionary governmental

functions, were immune from suits for money damages.

We instructed the district court to determine whether the

college was an entity as to which Pennsylvania asserted

sovereign immunity. If the college did not share the Com-

monwealth’s immunity, the district court was instructed

to consider making an award of back pay and an award of

attorney’s fees. Otherwise it was to deny an award of

back pay or attorney’s fees.“ Skehan filed a petition for

certiorari. On May 27, 1975 the Supreme Court ordered

that the judgment of this court be vacated and the case be

remanded to this court for further consideration in light

of Alyeska Pipeline Service Co. v. Wilderness Society, 421

U.S. 240 (1975), and Wood v. Strickland, 420 U.S. 308

Skehan on October 19, 1970; the dismissal was confirmed by the

Board of Trustees of the college on October 23.

3 Skehan v. Board of Trustees of Bloomsburg State College,

353 F. Supp. 542 (M.D. Pa. 1973).

*Skehan v. Board of Trustees of Bloomsburg State College,

501 F.2d 31 (3d Cir. 1974).

Opinion, Court of Appeals on Remand 5a

(1975).° We decided to review the case in banc, and re-

quested supplemental briefing. We now turn to a con-

sideration of our prior decision in light of the Supreme

Court’s mandate.

I. Alyeska Pipeline Service Co.

v. Wilderness Society

We previously held that Skehan, as a private attorney

general vindicating a public interest in having state-related

institutions act in compliance with the fourteenth amend-

ment, was entitled to an award of attorney’s fees from

Bloomsburg State College provided the college did not

share the sovereign immunity of the Commonwealth of

Pennsylvania.* Alyeska Pipeline Service Co. v. Wilder-

ness Society, supra, overrules the cases on which we relied

and which recognized that basis for the award of attorney’s

fees. It holds that absent (1) a contract or statute grant-

ing a right to attorney’s fees; (2) the conferring of a com-

mon benefit by the recovery of a fund or property; (3)

willful disobedience of a court order; or (4) a finding that

the losing party has acted in bad faith, vexatiously, wan-

tonly or for oppressive reasons, federal courts must apply

the American rule requiring each party to pay from his

own pocket for the services of his attorney. Skehan points

to no statute which would justify an award of attorney’s

fees,’ but he urges that because primary emphasis was

5 Skehan v. Board of Trustees of Bloomsburg State College,

421 1.8. 983 (1975).

5a In Part III of this opinion we hold that Bloomsburg State

College does enjoy the Commonwealth’s immunity.

® Skehan brings this action under the Civil Rights Act, 42

U.S.C. §1983, and admits in his brief that this section does not

6a Opinion, Court of Appeals on Remand

placed on the now-discredited but once-respectable private

attorney general theory, we should still remand for ap-

propriate findings by the district court on both the com-

mon benefit and bad faith exceptions to the American rule.

The common benefit theory will not avail Skehan in

this case. While it is true that the public at large bene-

fits from making public institutions act in accordance with

the demands of due process, Skehan is not attempting to

assess against those benefited members a fair share of the

reasonable value of the attorney’s services which created

the benefit. Compare Lindy Brothers Builders, Inc. v.

American Radiator & Standard Sanitary Corp., 487 F.2d

163 (3d Cir. 1973); Merola v. Atlantic Richfield Co., 493

F.2d 292 (3d Cir. 1974) ; City of Detroit v. Grinnell Corp.,

495 F.2d 448 (3d Cir. 1974); Grunin v. International

House of Pancakes, 513 F.2d 114 (8th Cir. 1975). In-

stead, he is attempting to charge the losing party for the

reasonable value of attorney’s fees which conferred that

intangible benefit on an unascertainable class not within

the court’s jurisdiction. In Hall v. Cole, 412 US. 1

(1973), the Court applied the common benefit theory to

justify a fee award for conferring a common but intangi-

ble benefit—the protection of first amendment rights. But

there the Court could assess the fee against a union trea-

sury, and thus shift the cost of litigation to an ascertainable

class of union members who had been benefited. Skehan

would have us analogize a union treasury to the treasury

of the college. But the analogy between union dues in a

union treasury and public funds in the college treasury is

remote at best. Moreover, in Hall v. Cole it was quite clear

allow for the recovery of attorney’s fees. See Brief for Plaintiff-

Appellant on Remand from the Supreme Court at 10.

Opinion, Court of Appeals on Remand 7a

who were the beneficiaries of increased union democracy

and fairer operation of the union. In this case there would

be no way of telling whether, if attorney’s fees were as-

sessed against the college, the cost would ultimately be

borne by those parts of the college’s several constituencies

—students, faculty, and the tax-paying public—which ac-

tually benefited. We share Judge Wright’s view that to ap-

ply the common benefit theory to assess attorney’s fees

against a losing party “would . . . stretch it totally outside

its basic rationale. . . .” Wilderness Society v. Morton,

495 F.2d 1026, 1029 (D.C. Cir. 1974) (en banc), rev’d

on other grounds sub nom. Alyeska Pipeline Service Co. v.

Wilderness Society, supra. To hold that we could charge

the college for a common benefit to an undefined public

would be to apply in other words the private attorney gen-

eral theory which the Alyeska Court proscribed. And the

inapplicability of the common benefit theory to an assess-

ment of attorney’s fees against the individual defendants

is even more obvious. Thus we conclude that a remand

for findings with respect to this theory is not appropriate.

Skehan also urges that on remand he would be able to

show that all of the defendants, but in particular, President

Nossen, acted in bad faith, vexatiously, wantonly, or for

oppressive reasons, states of mind which Skehan contends

permit an award of attorney’s fees under the American

rule. The particular reference to Nossen, a prime mover

in his termination but hardly a prime mover in carrying

on this litigation, suggests the need for distinguishing be-

tween the bad faith which may have led to the termination

of employment with bad faith, vexatiousness or oppression

in litigating. It is the latter which comprises the pred-

icate for the well-recognized fourth exception to the Ameri-

can rule on fee awards. The fee is awarded in the nature

8a Opinion, Court of Appeals on Remand

of costs for vexatiously bringing or maintaining an un-

founded action or defense.’ 6 J. Moore, Federal Practice

154.77[2], at 1079 (2d ed. 1974). It can hardly be said

that on those issues on which the defendants have thus far

prevailed the defense has been maintained in bad faith,

vexatiously, wantonly or for oppressive reasons. Nor can

we find evidence of oppressiveness in the defendants’ re-

sponse on appeal to those issues on which Skehan has been

successful. On the other hand, since we are remanding

and we cannot predict the future course of this litigation,

we cannot foreclose consideration of the award of attor-

ney’s fees as costs based upon any lack of good faith in

maintaining the litigation in the future.

Skehan, relying on Vaughan v. Atkinson, 365 U.S.

527, 530-31 (1962), urges that there is a fifth exception to

the American rule, which allows the recovery of fees as an

element of damages for pre-litigation vexation or oppres-

sion in resisting a just claim. In Vaughan v. Atkinson,

7 The Judiciary Act of 1789, 1 Stat. 73, gave federal courts

discretionary authority to tax in favor of one party and against

another expenses occasioned by delay in litigation. Section 22,

governing the writ of error in civil actions, provided in part:

‘‘And every justice or judge signing a citation on any

writ of error as aforesaid, shall take good and sufficient

security, that the plaintiff in error shall prosecute his writ to

effect, and answer all damages and costs if he fail to make

his plea good.”’

1 Stat. 85.

Section 23 provided :

‘‘fA]nd whereupon such writ of error the Supreme

Court or a cireuit court shall affirm a judgment or decree,

they shall adjudge or decree to the respondent in error just

damages for delay, and single or double costs at théir dis-

eretion.”’

Id. Cf. The Perserverance, 3 U.S. [3 Dall.| 336 (1797).

Opinion, Court of Appeals on Remand 9a

a suit in admiralty for maintenance and cure and for in-

jury from the withholding of maintenance and cure when

it was due, the seaman could show no injury caused by the

withholding of the payments other than the cost of attor-

ney’s fees in the suit. The Fourth Circuit, applying the

American rule, refused to award fees as an item of com-

pensatory damages.* The Supreme Court, with seven

Justices participating and two dissenting, held that at-

torney’s fees could be recovered as damages suffered for

failure to pay maintenance. Authority for this departure

from the American rule was found in The Appollon, 22

U.S. [9 Wheat.] 362 (1824), an admiralty suit for the

recovery of damages for the illegal seizure of a vessel.

Justice Story wrote:

It is the common course of admiralty, to allow

expenses in this nature [cousel fees], either in the

shape of damages, or as part of the c sts. 22 US.

[9 Wheat.] at 379.

Vaughan v. Atkinson has frequently been cited in non-

admiralty contexts. Since the ringing reaffirmation of the

American rule in Alyeska Pipeline Service Co. v. Wilder-

ness Society, supra, its authority in non-admiralty con-

texts is not entirely clear. We can glean something of the

Court’s attitude perhaps from the reference to the case

in F. D. Rich Co. v. Industrial Co., 417 U.S. 116, 129 n. 17

(1974). There the text reads “We have long recognized

that attorneys’ fees may be awarded to a successful party

when his opponent has acted in bad faith, vexatiously, wan-

tonly, or for oppressive reasons . . .”, and the footnote

cites Vaughan v. Atkinson, but also three circuit court

® Vaughan v. Atkinson, 291 F.2d 813, 815 (4th Cir. 1961).

10a Opinion, Court of Appeals on Remand

non-admiralty cases® in which attorney’s fees were

awarded for pre-litigation obduracy or oppression in equi-

table actions. Alyeska, in turn, cites the F. D. Rich Co.

reference to Vaughan v. Atkinson with approvel. 421 U.S.

at 259. It would seem, then, that the Vaughan v. Atkinson

exception to the American rule is not restricted to ad-

miralty cases and survives Alyeska. See Bond v. Stanton,

528 F.2d 688 (7th Cir. 1976), cert. granted, 44 U.S.L.W.

3685 (U.S. June 1, 1976) (No. 75-1413); Thonen v. Jen-

kins, 517 F.2d 3, 6 (4th Cir. 1975); Handler v. San

Jacinto Junior College, 519 F.2d 273, 280 (5th Cir. 1975);

Class v. Norton, 505 F.2d 123, 127 (2d Cir. 1974); Tay-

lor v. Perini, 503 F.2d 899, 904 (6th Cir. 1974), vacated

on other grounds, 421 U.S. 982 (1975); Comment, Court

Awarded Attorney’s Fees and Equal Access to the Courts,

122 U. Pa. L. Rev. 636, 689 (1974); Note, Attorneys’

Fees and the Eleventh Amendment, 88 Harv. L. Rev.

1875, 1882 (1975) (citing Hall v. Cole, 415 U.S. 1, 15

(1973)). Compare Potter v. Gardner, 30 U.S. [5 Pet.]

718, 725-27 (1831) (Baldwin, J., dissenting) . Whether

the facts of this case warrant its application against any

of the defendants is a matter on which the district court

should pass in the first instance.

One issue tendered to the Supreme Court by Skehan’s

petition for certiorari was whether the Commonwealth

may be required to pay attorney’s fees as part of an order

granting prospective relief for violation of the fourteenth

® McEnteggart v. Cataldo, 451 F.2d 1109 (1st Cir. 1971) ;

Bell v. School Bd. 321 F.2d 494 (4th Cir. 1963) ; Rolax v. Atlantic

Coast Line R.R., 186 F.2d 473 (4th Cir. 1951); MeEnteggart v.

Cataldo, is particularly signifieant since it involved the award of

attorney’s fees to a dismissed college teacher suing to obtain a

statement of reasons for his dismissal.

Opinion, Court of Appeals on Remand lla

amendment."® The Court in the Alyeska Pipeline case did

not purport to decide the question, see 421 U.S. at 269-70

n. 44, and found it unnecessary to do so in its summary

disposition of Skehan’s petition for certiorari.

In our prior opinion we concluded that Edelman v.

Jordan, 415 U.S. 651 (1974), precluded a private attorney

general fee award against the college if under Pennsylvania

law it was a state agency for which the Commonwealth

claimed sovereign immunity. 501 F.2d at 42. In that opin-

ion we were not dealing with a fee award against the Com-

monwealth for obduracy in carrying forward the defense

of a weak case, an issue which, as we said above, may arise

in the future course of this litigation. Although the issue

is not free from doubt, it seems likely that since such an

award is considered to be an award of costs, it would be

governed by the established rule that state sovereign im-

munity is no bar to an award of costs. Fairmont Creamery

Co. v. Minnesota, 275 U.S. 70 (1927). A number of

courts of appeals have allowed awards of attorney’s fees

against instrumentalities of the state on this ground. See,

e.g., Thonen v. Jenkins, supra, 517 F.2d at 7; Souza vy.

Travisono, 512 F.2d 1137 (ist Cir.), vacated on viher

grounds, 423 U.S. 809 (1975); see also Gates v. Collier,

522 F.2d 81 (5th Cir. 1975) (en banc) (per curiam) , on

remand, 44 U.S.L.W. 2405 (N.D. Miss. Feb. 3, 1976);

Taylor v. Perini, supra (Edwards J., dissenting). Since the

obduracy ground for a fee award may still arise in this case

we hold that attorney’s fees may be awarded as costs

against a sovereign otherwise immune, if it pursues

1° See Petitioner’s Brief for Certiorari at 2, Skehan v. Board

of Trustees of Bloomsburg State College, 421 U.S. 983 (1975) ;

43 U.S.L.W. 3366 (U.S. Nov. 8, 1974) (No. 74-558). |

12a Opinion, Court of Appeals on Remand

a bad faith, vexatious, wanton or oppressive course of liti-

gation, but may not be awarded against an immune =

ereign as damages because of pre-litigation obduracy on oe

authority of Vaughan v. Atkinson, supra. We call to the

district court’s attention, however, that the issue of attor-

ney’s fee awards against a state is pending on certiorari in

Fitzpatrick v. Bitzer, 519 F.2d 559 (2d Cir. 1975), en

granted, 44 U.S.L.W. 3358 (U.S. Dec. 16, 1975) (No. 75-

251). The opinion in that case, when it is decided, may

require a decision at variance with our holding.

11 We held in our prior opinion in this case that Edelman

v. Jordan had tacitly overruled the summary affirmance in “res

vy. Sims, 409 U.S. 942 (1972), of a fee award to be paid a 7

state treasury. See 501 F.2d at 42-43, n. 7; see also Alyes : a

line Service Co. v. Wilderness Soc’y., supra, 421 U.S. at . : .

n. 46. The district court award in that case had been er po e

upon both the private attorney general theory and wa . “seit

exception to the American rule. See Sims vy. Amos, a —

691, 693-95 (M.D. Ala. 1972) (per curiam). It nae 4 ree

be argued that in view of this court’s interpretation i) rye

v. Jordan, the theory of recovery upon which we reman oo

case to the district court is now foreclosed. In our “en ”

opinion, however, the only question before us involved "9 bh on

of Edelman v. Jordan upon the pte ge ye nears

of attorney’s fees from the state.

a the selon of Edelman v. Jordan upon the qed =

Amos v. Sims reeurring in this ¢ase—whether a fee oe .

be assessed as costs against a state that has vexatiously prolong

of litigation. ta ¥

me Pétepetrich followed a prior Second Cireuit gn oe

vy. Norton, 505 F.2d 123, rag Mag nog ge Saye eosin er

against the state. e court held 1 EB

pg by Edelman v. Jordan where it was a Hey raged

results of attempts to gain compliance with a decree oe » Mae

terms was prospective in nature’’ and had but an anci ral ~s

on the state treasury. See also Souza v. Travisono, supra.

Opinion, Court of Appeals on Remand l3a

Summarizing, the theory upon which we suggested

that the district court could award attorney’s fees—the

private attorney general theory—has been foreclosed by

Alyeska Pipeline Service Co. v. Wilderness Society, supra,

and the obduracy ground was not previously considered.

We therefore remand this aspect of the case to the district

court for additional findings on the obduracy issues.

Il. Wood v. Strickland

Skehan’s petition for certiorari also tendered to the

Supreme Court the question whether we applied a proper

standard in determining that the individual defendants

were immune from civil damage actions because of official

immunity.” The mandate on remand directs us to recon-

sider that determination in light of Wood vy. Strickland,

supra. Upon such consideration we conclude that Wood

v. Strickland significantly modified the law of immunity

upon which we relied in affirming the district court, and

that a remand for additional findings of fact is now

‘ required.

In our prior opinion we assumed that the Supreme

Court had thus far interpreted 42 U.S.C. §1983 as having

left intact the existing common law respecting immunity

from damage claims for actions arising out of the per-

formance of duty of legislators, Tenny v. Brandhove, 341

U.S. 367 (1951) , judges, Pierson v. Ray, 386 U.S. 547, 554

(1967), and government officials. See Bauers vy. Heisel,

court did not attempt to justify the fee award as an element of

costs, so it is conceivable that the Supreme Court will decide the

case On narrower grounds than are encompassed by this proceeding.

Petitioner’s Brief for certiorari, supra, note 10, at 2; 43

U.S.L.W., 3366.

14a Opinion, Court of Appeals on Remand

361 F.2d 581 (3d Cir. 1966) (en banc) ; Fidtler v. Rundle,

497 F.2d 794, 797-98 (3d Cir. 1974). We also assumed

that federal law determines the scope of any such immunity

when the defendant is charged with a federal statutory or

constitutional wrong. Fidtler v. Rundle, supra, at 798-800.

We recognized that not all government officials are at com-

mon law covered by official immunity. We held that

whether or not a particular official enjoyed immunity for

his conduct depended upon whether the action complained

of was performed in the discharge of a discretionary gov-

ernmental function. We also held that all defendants’ ac-

tions of which Skehan complained occurred in the exer-

cise of discretionary governmental functions. It was our

view that if the governmental officials performing discre-

tionary government duties acted within the scope of their

official responsibilities, they were immune from damage

actions although they were charged with having acted mis-

takenly or even maliciously. The theory justifying immuni-

ty from damage claims, we thought, was that the public

interest in the unfettered exercise of discretionary duties

such as legislating, adjudicating, rule-making or budgeting

was so paramount that it should be performed free of the

fear that either the motivation of the responsible officials

or the correctness of their decisions could later be called

into question in a suit for damages.

We recognized that not all government officials en-

joyed such an unqualified immunity, and that some govern-

mental officials were immune when performing certain du-

ties but not immune when performing others. In this case

the acts complained of resulted in Skehan’s discharge dur-

ing the term of his contract. Each defendant acted within

the scope of his official statutory authority, and the deci-

sion to terminate Skehan’s employment was in essence ad-

Opinion, Court of Appeals on Remand 15a

judicatory. In making the adjudication the defendants com-

mitted a procedural legal error of constitutional dimen-

sions. But we believed that neither that error nor their

motivation could be called into question in damage actions

because governmental officials entrusted with adjudicatory

responsibilities enjoyed, when discharging such duties, and

unqualified immunity. See Spalding v. Vilas, 161 US. 483

(1896) ; Barr v. Matteo, 360 U.S. 564 (1959).

We did not believe that Scheuer v. Rhodes

232 (1974) , had overruled what we thought was abn

principle that the immunity of some governmental officials

and specifically nonjudicial government officials perform-

ing adjudicatory functions, was unqualified. It was our

impression that Scheuer v. Rhodes recognized a qualified

immunity for governmental officials generally. Even gov-

ernmental officials not performing discretionary duties

such as legislating, adjudicating, rule-making or budgeting

were immune if they acted within the scope of their official

responsibilities in good faith and with probable cause. We

perceived the purpose of the remand in Scheuer v. Rhodes

to be two-fold. First, the Court needed a record to deter-

mine the nature of the duties being performed by each of

the defendants. Second, if those duties were not such as

would cloak a given defendant with an unqualified immu-

nity, the Court needed a record to determine whether the

defendant acted within the scope of his official responsi-

bility in good faith and with probable cause.

Wood v. Strickland, supra, demonstrates that we erred

in assuming that there still existed an unqualified, common

law immunity covering nonjudicial state government offi-

cials performing adjudicatory functions. The question be-

fore the Court was the immunity of school board members

16a Opinion, Court of Appeals on Remand

for a disciplinary suspension. The defendants had the offi-

cial responsibility for making the adjudication, and they

made a procedural error of constitutional dimensions. The

Court held:

“[I]n the specific context of school discipline,

we hold that a school board member is not immune

from liability for damages under §1983 if he knew or

reasonably should have known that the action he took

within his sphere of official responsibility would vio-

late the constitutional rights of the student affected,

or if he took the action with the malicious intention

to cause a deprivation of constitutional rights or other

injury to the student. 420 U.S. at 322.

Functionally, the school board members adjudicating a stu-

dent discharge and the state college officials adjudicating

a faculty termination are identically situated. In the light

of Wood v. Strickland, supra, we must now recognize that

what we thought was an unqualified privilege is in truth

something less broad. While we can determine on the

present record that the defendants were performing non-

judicial adjudicatory functions within the scope of their

official responsibilities, we cannot determine that they met

the Wood v. Strickland test.

The defendants urge that the district court finding,

referred to in our prior opinion, 501 F.2d at 43 n.8, that

the constitutional deprivation was technical in nature and

not the product of bad faith, suffices to establish a quali-

fied immunity. We reject this contention because at best

the finding would satisfy only one of the two conditions of

immunity established by Wood v. Strickland. A nonjudi-

cial adjudicating official must act without malice. But the

inquiry does not end there. He can be held liable for dam-

Opinion, Court of Appeals on Remand 17a

ages if he knew or reasonably should have known that the

action he took would violate the constitutional rights of the

party affected. There was no finding with respect to the

defendants’ knowledge or the reasonableness of their be-

lief in the legal necessity for a pre-termination hearing.

Moreover, in our prior review, since we assumed that we

were dealing with an unqualified privilege, we had no oc-

casion to pass upon the strength of the evidence support-

ing the district court’s finding of good faith. Finally, since

the Supreme Court has announced what we consider to be

a departure from the settled prior law on governmental

immunity in this circuit, we deem it appropriate that the

district court be given an opportunity to reconsider both

qualifications to the defendants’ immunity.

Several questions not addressed by the Supreme Court

in Wood v. Strickland will of necessity arise on remand in

this case. These include which side has the burden of go-

ing forward with evidence and which side has the burden

of proof on the two qualifications to the defendants’ im-

munity. We find guidance on these issues in the Court’s

opinion in O’Connor v. Donaldson, 422 U.S. 563 (1975),

vacating and remanding 493 F.2d 507 (5th Cir. 1974).

There the Court tacitly approved in part a charge submit-

ting to the jury the issue of a governmental official’s im-

munity." The Court held that the jury was improperly

instructed with respect to petitioner O’Connor’s reasonable

belief in the constitutionality of his actions,’ but implied

that the malice instruction was correct. The charge on

This charge applied both to the common law defense of

good faith raised by O’Connor and to the question of official

immnnity. See 493 F.2d at 527, 530 & n. 57.

** This error induced the Court to vacate the judgment and

remand for reconsideration in light of Wood v. Strickland.

18a Opinion, Court of Appeals on Remand

malice is set forth in full in Judge Wisdom’s opinion for

the Fifth Circuit, 493 F.2d at 527. The issue was submit-

ted to the jury not as an element of the plaintiff’s case, but

as a defense which O’Connor, the official, had by a pre-

ponderance of the evidence the burden of sustaining. Al-

though O’Connor v. Donaldson is not definitive, it suggests

that the qualifications to immunity announced in Wood v.

Strickland are matters of defense. See 422 U.S. at 576-

77; Glasson v. City of Louisville, 518 F.2d 899 (6th Cir.),

cert. denied, 423 U.S. 930 (1975); Bryan v. Jones, 44

U.S.L.W. 2521 (5th Cir. Apr. 30, 1976) (en banc).

Following the remand in Bivens v. Six Unknown

Named Agents, 403 U.S. 388 (1971), in which the Court

did not reach the issue of official immunity, the Second

Circuit held that federal police officers were not immune

from suit, but had a defense, on which they would have

the burden of proof, that they acted with probable cause,

or in good faith and with a reasonable belief in the legality

of their actions. See 456 F.2d 1339, 1347-48 (2d Cir.

1972). In Safeguard Mutual Insurance Co. v. Miller, 472

F.2d 732 (3d Cir. 1973), this court adopted the same ap-

proach, holding that since good faith was a matter of de-

fense it could not be determined on a Rule 12 (b) (6) mo-

tion. Accord, Fidtler v. Rundle, 497 F.2d 794 (3d Cir.

1974). Wood v. Strickland and O’Connor v. Donaldson

appear not to have made any change in the law in this re-

spect. We therefore hold that in §1983 actions the burden

is on the defendant official claiming official immunity to

come forward and to convince the trier of fact by a pre-

ponderance of the evidence that, under the standards of

Wood v. Strickland, official immunity should attach. On

remand the district court must determine whether the de-

fendants met their burden of establishing (1) that they

Opinion, Court of Appeals on Remand 19a

did not know and reasonably need not have known that

depriving Skehan of a pretermination hearing violated due

process, and (2) that they acted without malicious inten-

tion to deprive him of his constitutional rights or cause him

to suffer other injury. Whether those determinations can

be made on the present record, or can be made in a motion

for summary judgment under Rule 56, Fed. R. Civ. P., are

questions we leave to the district court in the first instance.

See Economou v. United States Department of Agriculture,

No. 75-6050, at 3410 (2d Cir. Apr. 23, 1976).

While we can give guidance to the district court as to

where various burdens lie on the Wood v. Strickland quali-

fications, we are less confident of our ability to suggest

by what criteria the reasonableness of the several defend-

ants’ lack of knowledge of due process requirements should

be measured. The district court will be required to inquire

into the status and responsibility of each individual de-

fendant and to determine whether, for example, a trustee

should be held responsible for the same level of knowledge

of constitutional rights as a college president or a com-

missioner of education. The determination may turn on

the relative availability to each defendant of counsel, as

well as the relative certainty of the legal issue, a criterion

to which the Wood v. Strickland Court expressly adverted.

420 U.S. at 322. The federal courts will be entering large-

ly unchartered waters here, for the pre-existing rule of un-

qualified official immunity meant that very little if any case

law was developed with respect to standards of liability for

negligent mistakes of law by persons making nonjudi-

cial adjudications. Cf. Paton v. LaPrade, 524 F.2d 862,

872-73 (3d Cir. 1975).

O’Connor v. Donaldson describes Wood v. Strickland

as a “decision on the scope of the qualified immunity pos-

20a Opinion, Court of Appeals on Remand

sessed by state officials ....”” 422 U.S. at 577. Since that

decision, however, the Court clarified the picture by its

holding in Imbler v. Pachtman, 44 U.S.L.W. 4250 (U.S.

Mar. 2, 1976) , that the common law unqualified immunity

of judicial officers remains undisturbed. Thus Bauers v.

Heisel, 361 F.2d 581 (3d Cir. 1966) (en banc), which

overruled Picking v. Pennsylvania R.R., 151 F.2d 240 (3d

Cir. 1945), still governs with respect to judicial officers.

But non-judicial, executive branch state officials can be

sued for damages and must, if a violation of constitutional

rights is found, defend on the grounds announced in Wood

v. Strickland.”

Ill. The Status of Bloomsburg State College

In our earlier opinion we directed the district court

on remand to determine the governmental status of Blooms-

burg State College. 501 F.2d at 43, 45. Between the date

of argument in this court and the date our opinion was

filed, the Pennsylvania Commonwealth Court decided

Brungard v. Hartman, 12 Pa. Commw. 477, 315 A.2d 913

(1974) , which holds that state colleges such as Bloomsburg

State College are agencies of the Commonwealth for which

it claims sovereign immunity. That case was not called

to our attention before our opinion was filed. It appears

dispositive of the sovereign immunity issue. Thus it is

clear in a case of this type that a back pay award cannot

be made out of the college treasury, and that an award

of attorney’s fees against the college can only be made as

costs for obduracy in this litigation.

1 Whether an executive branch official enjoys judicial im-

munity will of course be determined by the nature of his fun--

tions, and not by the label that is attached to them.

Opinion, Court of Appeals on Remand 21a

IV. Conclusion

Our prior judgment will be vacated. The judgment

of the district court will be vacated and the case will be

remanded for findings of fact:

1. As to the nature of the interest created un-

der Pennsylvania law by article 5(e) of the Statement

of Policy for Continuous Employment and Academic

Freedom at Bloomsburg State College:

2. As to whether the decision not to renew

Skehan’s contract after 1970-71 was based on his

stands on campus issues with which the administra-

tion disagreed.

If Skehan’s only contract right expired by its terms at the

end of the 1970-71 academic year, and there was no first

amendment violation, a back pay award against the indi-

vidual defendants, covering the 1970-71 period, must be

considered. The court should then make findings of fact

with respect to the immunity of each defendant in con-

formance with this opinion. If either the article 5(e)

claim or the first amendment claim should be decided in

Skehan’s favor, the court should consider the award of

back pay to date against the individual defendants, and

also prospective reinstatement (as to which there is no

immunity problem), at least until appropriate college ter-

mination procedures have taken place. We also call the

district court’s attention to the Supreme Court’s recent

decision in Bishop v. Wood, 44 U.S.L.W. 4820 (U.S. June

10, 1976) , a decision considering or perhaps reconsidering

the scope of the protection afforded public employment by

the due process clause. We leave it to the district court in

"T See 501 F.2d at 45.

22a Opinion, Court of Appeals on Remand

the first instance to decide whether or to what extent that

decision bears upon this litigation. We also instruct the

district court to consider whether an award of attorney’s

fees would be appropriate against any of the individual

defendants for bad faith, vexatious, wanton or oppressive

conduct both prior to and during the course of this litiga-

tion, and against the college for such conduct subsequent

to the commencement of the litigation.

A True Copy:

Teste:

Clerk of the United States Court of

Appeals for the Third Circuit.

Judgment on Remand 23a

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

No. 73-1613

Dr. Joseph T. Skehan,

Appellant

vs.

Board of Trustees of Bloomsburg State College and Dr.

Robert Nossen and Dr. Charles Carlson and John Pit-

tenger, Superintendent of Education, Commonwealth of

Pennsylvania and Bloomsburg State College

(D. C. Civil Action No. 72-644)

Present: Seitz, Chief Judge, Biggs, Van Dusen, Aldisert,

Adams, Gibbons, Rosenn, Hunter, Weis and Garth,

Circuit Judges

JUDGMENT ON REMAND FROM THE SUPREME

COURT OF THE UNITED STATES

This cause came on to be heard on the record from the

United States District Court for the Middle District of

Pennsylvania and was argued by counsel and reargued by

asa 78) ta eae

tates.

24a Judgment on Remand

On consideration whereof, it is now here ordered and

adjudged by this Court that the prior judgment of this

Court, filed May 3, 1974, be, and the same is hereby va-

cated; and it is further ordered that the judgment of the

said District Court filed May 11, 1973, be, and the same

is hereby vacated and the case is remanded for further

proceedings in accordance with the opinion of this Court.

Attest:

Thomas P. [Illegible]

Clerk

June 21, 1976

Order of Remand 25a

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, D.C. 20543

May 27, 1975

Bruce J. Terris, Esq.

1908 Sunderland Place, N.W.

Washington, D.C. 20036

Re: Skehan v. Board of Trustees of Bloomsburg State

College, et al., 74-558

Dear Sir:

The Court today entered the following order in the

above-entitled case:

The petition for a writ of certiorari is granted.

The judgment is vacated and the case is remanded to

the United States Court of Appeals for the Third Cir-

cuit for further consideration in light of Alyeska Pipe-

line Service Co. v. Wilderness Society, 421 U.S. —

(1975), and Wood v. Strickland, 420 U.S. 308

(1975). Mr. Justice Douglas took no part in the con-

sideration or decision of this case.

Encl.—cc opins.

mentioned.

Very truly yours,

Michael Rodak, Jr., Clerk

By

Helen Taylor

Helen Taylor (Mrs.)

Assistant Clerk

J. Justin Blewitt, Jr., Esq.

Deputy Attorney General of Pennsylvania

Dept. of Justice

Capitol Annex Bldg.

Harrisburg, Pa. 17120

26a Opinion, Court of Appeals, May 3, 1974

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

No. 73-1613

Dr. Joseph 1. Skehan,

Appellant,

V.

Board of Trustees of Bloomsburg State College and Dr.

Robert Nossen and Dr. Charles Carlson and John Pittinger,

Superintendent of Education, Commonwealth of Pennsyl-

vania and Bloomsburg State College,

Appellees.

(D.C. Civil Action No. 72-644)

On Appeal from the United States District Court for the

Middle District of Pennsylvania

Argued January 25, 1974

Before Biggs, Gibbons and Garth, Circuit Judges

Opinion, Court of Appeals, May 3, 1974 27a

Michael H. Gottesman, Esq.

1000 Connecticut Avenue, N.W.

Washington, D.C. 20036

Harry Lore, Esq.

Suite 1420 Walnut Street

Philadelphia, Pennsylvania 19102

Attorneys for Appellant

Justin Blewitt, Esq.

Deputy Attorney General

Department of Justice of the

Commonwealth of Pennsylvania

Capitol Annex

Harrisburg, Pennsylvania 17120

Attorney for Appellees

OPINION OF THE COURT

(Filed May 3, 1974)

[501 F.2d 31 (1974) ]

Gibbons, Circuit Judge

Plaintiff appellant, Joseph Skehan, a doctor of eco-

nomics, seeks redress for his midcontract dismissal with-

out a hearing as a nontenured college professor at Blooms-

burg State College. The defendant-appellees are Blooms-

burg State College, its Board of Trustees, Dr. Robert Nos-

sen, its President at the time of Skehan’s dismissal, Dr.

Charles Carlson, its current acting President, and John

Pittinger, Superintendent of Education of the Common-

wealth of Pennsylvania. Although the College is joined as

a defendant, and has a Board of Trustees responsible for

its management, Pa. Stat. Ann. tit. 71, §62, tit. 24, §20-

28a Opinion, Court of Appeals, May 3, 1974

2008.2, it is not a separately chartered corporation, as in

the case of many universities, but a subdivision of the Com-

monwealth Department of Education, Pa. Stat. Ann. tit.

24, §§20-2002 (7), 20-2003.1. All the individual defend-

ants are state officers. Skehan was employed as Associate

Professor of Economics in January 1969 under the con-

tract extending through the academic year 1969-70. In

May of 1970 he received a letter from Nossen offering him

a contract for the 1970-71 school year, but indicating that

he would be required to acknowledge in writing notice that

this would be a terminal year contract. He accepted the

offer of employment for the 1970-71 academic year, but

protested that the nonrenewal decision had been made with-

out affording him the procedures due him before a non-

renewal decision could be made. In that protest he invoked

article 5(e) of the Statement of Policy for Continuous Em-

ployment and Academic Freedom at Bloomsburg State Col-

lege, which provides:

“If a faculty member’s service to the College is

to be terminated during the first two years of the pro-

bationary [pretenure] period, the President of the

College will feel free to explain to the faculty mem-

ber the basis of the decision, but he shall not be re-

quired to do so except in a situation where there is an

allegation of infringement of academic freedom. If

a faculty member of professional rank, on probation-

ary employment, alleges that a decision not to reap-

point him has been caused by considerations violative

of academic freedom, his allegations shall be given

preliminary consideration by the Committee on Pro-

fessional Affairs, and the procedures concerning noti-

fication, appeal, hearing, and defense outlined in #9

of this document will be followed.”

Opinion, Court of Appeals, May 3, 1974 29a

Article #9 outlines the notice, hearing and a

procedures applicable to the dismissal of saad —

members. Thus Skehan’s position in May 1970 was that

the nonrenewal decision reflected in the terminal year no-

tice was caused by considerations violative of academic

freedom and that he was entitled to the hearing procedures

referred to in article #9. Nossen replied on June 1, 1970:

“I cannot accept your letter of May 29, 1970 as

an acceptance of your position for the coming aca-

demic year... .

If you do not sign the offer of reappointment

sent you [with the acknowledgment of notice that it

was a terminal year contract ], you may consider your-

self terminated for the coming academic year. . . .

This is my final letter on this matter.”

Skehan protested to the Board of Trustees that Nossen was

violating the Statement of Policy for Continuous Employ-

ment and Academic Freedom. On June 15

wrote Skehan: rp te gore: mer

“Your appeal to the Board of Trustees, bypass-

ing this office and other avenues of College govern-

ance, was reviewed at the Board of Trustees meeting

on June 12, 1970. The Board has requested that |

advise you as follows:

. The Board restates its firm and inviolable posi-

tion of nonrenewal past the 1970-71 academic year.

In doing so, it reaffirms its position that the offer to

you reflects simply its wish to conform fully with ac-

cepted notice procedures. The offer is neither a state-

ment of confidence in you nor a wish that you remain

30a

Opinion, Court of Appeals, May 3, 1974

during this period. On the contrary, the Board has

expressed every hope that you will find it both per-

sonally and professionally advantageous to offer your

resignation at this time.

* * *

The College has prepared a contract form which

is applicable to all persons offered appointment. Your

refusal, to this point, to return the contract in accord

with their prescribed procedures continues to indicate

to them your disregard for College procedures. Never-

theless, in view of the original intention to provide

due notice, they will accept the alternative letter as

an indication of your acceptance of the 1970-1971 ap-

pointment as terminal.

I must, however, in all honesty and fairness, join

with the Board of Trustees in the hope that you will

reject the appointment.”

Thus the College administration in effect rejected Skehan’s

request for an article 5(e) hearing on the reasons for the

terminal year decision, but rehired him for the academic

year 1970-71. Skehan entered into the performance of his

academic duties in September. How he performed them

is a matter of dispute between him and the defendants.’

On October 9, 1970 Nossen wrote Skehan:

1Tt is common ground that there was a dispute between

Skehan and other members of the economics department and the

College administration over whether the department or the adminis-

tration controlled class scheduling. Skehan contends this dispute

provided a subterfuge for his termination because of Nossen’s hos-

tility over his previous exercise of first amendment rights. The

defendants contend Skehan’s intransigence in the scheduling dis-

pute caused intolerable disruption.

Opinion, Court of Appeals, May 3, 1974 31a

= appointment in mid year.

failed to cooperate, to fulfil]

are cage fore, has been reprehensible. ny.

to the welf member of the profession, and inimi I

are of this college. ca

32a Opinion, Court of Appeals, May 3, 1974

of your actions on this campus since the start of this

semester. Your salary will be continued until a final

determination is made.”

Although this letter demanded from Skehan within five

days, “a complete accountability of your actions on this

campus since the start of this semester,” it was not received

by him until October 12, 1970. On October 14 Skehan re-

plied that the suspension had not been preceded by the

procedures called for in the College’s policy. On October

19, 1970 Nossen wrote Skehan:

“Once again you have willfully and flagrantly

failed to respond to my directive; this time an ac-

countability requested on October 9, 1970. You were

given five (5) days in which to make your response

detailing your professional actions since the start of

this semester.

You have failed to comply and I have no alterna-

tive but to remove you from the payroll effective Oc-

tober 17, 1970 subject to final approval by the Board

of Trustees.”

Skehan promptly wrote to the Board requesting a hearing.

On October 24, 1970 Nossen wrote Skehan:

“The Board of Trustees, at its regularly scheduled

meeting on October 23, 1970, confirmed prior dis-

missal action taken by this office; you are, therefore,

fully and finally terminated at this College effective

October 17, 1970.”

Skehan went off the College payroll as of October 17,

1970. On December 1, 1970 the Committee on Academic

Affairs convened to hold a hearing concerning Skehan’s

dismissal. He appeared but declined to participate. On

the basis of correspondence and records submitted by the

Opinion, Court of Appeals, May 3, 1974 33a

ae the Committee approved the dismissal ac-

on. ,

The defendants do not now dispute that Skehan had

a contract of employment for the 1970-71 academic year

Skehan contends, but the defendants dispute, that he had

a contract right to a hearing, pursuant to article 5 (e) , with

respect to the reasons for the terminal year decision, which

had the effect of depriving him of the opportunity for

tenured faculty status after three years. The parties agree

that the contract for the academic year 1970-71 was such

as under Perry v. Sindermann, 408 U.S. 593, 92 S.Ct

2694, 33 L.Ed.2d 570 (1972), gave Skehan a property in-

terest which could not be terminated without a due process

hearing. The defendants contend, but Skehan disputes

that the December 1, 1970 meeting satisfied the require-

ments of Perry v. Sindermann, supra. The report of the

hearing committee on the December 1, 1970 hearing dis-

closes that it dealt only with the October 17, 1970 dis-

missal, and not with the May 1970 demand for an article

5 (e) hearing on the reasons for the terminal year decision

Finally Skehan contends, but the defendants dispute, that

both the terminal year decision and his discharge were mo-

tivated by the administration’s dislike of his exercise of

first amendment rights. Violations of these rights, Skehan

contends, entitle him to relief despite the limitation of any

property interest in his contract. See Perry v. Sindermann

supra at 598; Keyishian v. Board of Regents, 385 US.

589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); Shelton v.

Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960).

Skehan filed his complaint in the district Court in

August 1972, seeking preliminary and permanent injunc-

tive relief of reinstatement and back pay, declaratory relief

34a Opinion, Court of Appeals, May 3, 1974

that his dismissal violated the Constitution, punitive dam-

ages, and attorneys fees. A preliminary injunction was de-

nied on January 31, 1973. Skehan v. Board of Trustees

of Bloomsburg College, 353 F. Supp. 542 (M.D. Pa.

1973). Subsequently, the parties stipulated that a final

hearing could be held on the record developed at the

hearing on the preliminary injunction. The district court

filed its opinion on May 9, 1973, 358 F. Supp. 430, and

a final judgment “that the Plaintiff recover of the Defend-

ants the sum of one dollar ($1.00), together with costs.”

Timely motions to amend the judgment to award more than

nominal damages and to assess counsel fees were denied.

This appeal followed.

The District court found:

(1) that Skehan had a contract of employment

for the 1970-71 academic year which was a property

interest within the meaning of Perry v. Sindermann,

supra, and Board of Regents v. Roth, 408 U.S. 564,

92 S.Ct. 2701, 33 L.Ed.2d 548 (1972);

(2) that the December 1, 1970 hearing before

the Committee on Academic Affairs, held a month

and a half after termination, did not fulfill the con-

stitutional due process requirements for the termina-

tion of his property right in the 1970-71 contract;

(3) that Skehan was discharged because of his

refusal to follow directives of the administration with

respect to scheduling disputes, and not for the prior

exercise of his first amendment rights.

The district court made no finding:

(1) as to whether Skehan had a contractual

right to an article 5(e) hearing to determine the rea-

son for the terminal year decision; or

Opinion, Court of Appeals, May 3, 1974 35a

(2) as to whether the terminal year decision

was made in retaliation for his exercise of first amend-

ment rights.

In considering the remedy for the due process violation

which it found, the district court concluded that it would

not be appropriate to order reinstatement and back pay,

either to the end of the 1970-71 academic year or to the

date of a hearing. The Court reasoned:

“While Plaintiff was deprived of his constitu-

tional right to a hearing prior to dismissal, the depri-

vation was technical in nature. By such a classifica-

tion I do not wish to demean a state employee’s right

to procedural due process. However, the circum-

stances surrounding this particular case indicate that

had Plaintiff been afforded a hearing prior to his dis-

charge, in all probability the outcome would have

been the same. Plaintiff’s discharge was based upon

facts rationally determined and for reasons unrelated

to Plaintiff’s exercise of constitutional rights. The

Plaintiff has not proven any actual damages arising

from Defendant’s failure to give him a hearing. How-

ever, nominal damages are proven by proof of a depri-

vation of a right to which the Plaintiff is entitled. . . .”

358 F. Supp. at 436.

We reverse and remand for further proceedings.

I. GOVERNING LEGAL PRINCIPLES

(1) In Board of Regents v. Roth, supra, and Perry

v. Sindermann, supra, the Supreme Court considered the

various Constitutional rights which might be affected by

the dismissal of a college teacher, and the source of those

rights. It recognized a dichotomy between employment

36a Opinion, Court of Appeals, May 3, 1974

rights of property based upon a contract between the insti-

tution and the teacher, the source of which is the state

law of contracts, and rights of liberty based upon provi-

sions of the federal constitution such as the first amend-

ment. As to property rights the appropriate analysis is to

determine, under applicable state law, the nature and ex-

tent of the contract right and, if the contract right has

been terminated other than by expiration of its term, to

consider whether the method of termination comported

with fourteenth amendment procedural due process. If a

procedural due process violation has occurred, the court

proceeds to fashion a remedy. With rights of liberty, such

as the right of a faculty member to be free from disability

imposed for engaging in speech protected by the first

amendment, the analysis starts with an inquiry into the

substantive reasons for whatever action is complained of.

If it is found that either termination or nonrenewal was

because of the exercise of protected speech (as an exam-

ple) , the procedural due process of the decision is irrele-

vant because the substantive decision is illegal as a matter

of federal constitutional law. If such a substantive viola-

tion of a right of liberty has occurred, the court proceeds

to fashion a remedy which, depending on the circum-

stances, may be the same as or different from the remedy

for a procedural due process violation in the property con-.

text.

Il. THE PROPERTY PROCEDURAL DUE PROCESS

CLAIM

(2) As we pointed out above, the defendants do not

dispute that Skehan’s contract for the academic year 1970-

71 gave him such a state law property interest as required

procedural due process for termination. They urge, how-

Opinion, Court of Appeals, May 3, 1974 37a

ever, that the district court erred in concluding that the

December 1, 1970 hearing did not suffice. If we were to

accept that position, there would be no occasion to reach

Skehan’s claim that the district court remedy was inade-

quate. But there is a substantial difference in the position

of the parties once termination has actually occurred. First,

the employee, cut off from the payroll, is greatly disadvan-

taged in his ability to pursue the hearing remedy. He may

be forced by the necessity for survival to seek other em-

ployment which will foreclose the pursuit of reinstatement.

Second, the institution will have made substitute teaching

arrangements, thus introducing into the hearing considera-

tion of the interests of other faculty members. This in-

evitability will increase whatever tendency may already

exist for the hearing officials to defer to the administra-

tion’s decision. We agree with the district court, therefore,

that a hearing after the fact is not the due process equiva-

lent of the pretermination hearing required by Perry v. Sin-

dermann, supra. See 358 F. Supp. at 434-435. The termi-

nation of Skehan’s 1970-71 contract violated procedural

due process.

(3) Skehan presented another contractual claim up-

on which the district court made no finding—that under

article 5(e) he was entitled to a hearing on the reasons for

the decision to make the 1970-71 contract his terminal

year. The court did make a finding that the October 17,

1970 termination was not the result of Skehan’s earlier

constitutionally protected speech.’ This finding does not

dispose of the claim that the terminal year decision was

made for reasons prohibited by principles of academic free-

dom. Within the meaning of the Statement of Policy for

2 See page 39 [39a] infra.

38a Opinion, Court of Appeals, May 3, 1974

Continuous Employment and Academic Freedom, academic

freedom may have a meaning broader than, the equivalent

of, or narrower than, the protection afforded by the first

amendment. That meaning must be determined under

Pennsylvania law. It must also be determined whether, as

a matter of interpretation, article 5(e) confers a contrac-

tual right or is solely a matter of administrative grace, or

is a noncontractual administrative procedure designed to

avoid the possibility of violation of the first amendment.

Certainly for tenured faculty the Statement of Policy for

Continuous Employment and Academic Freedom of

Bloomsburg State College appears to confer contract rights

with respect to the hearing outlined in article

9. The cross-reference from article 5(e) to article 9, while

ambiguous, could well support a finding that even non-

tenured faculty members have a contractual right to have

the renewal decision made without the taint of considera-

tions violative of academic freedom, whatever that term

means. If article 5(e) does grant a contract right, Skehan

has been deprived of it since the October 17, 1970 ter-

mination took place before any article 5(e) hearing was

held, and the December 1, 1970 hearing was not addressed

to the article 5(e) issue. In the absence of district court

findings on the scope of article 5(e) under Pennsylvania

law we must, as did the Supreme Court in Perry v. Sinder-

mann, supra at 599-603, remand. If the district court finds

that article 5(e) gave Skehan a contractual interest of some

kind, an appropriate remedy for its breach must be fash-

ioned.

Ill. THE LIBERTY-FIRST AMENDMENT CLAIM

(4,5) It is clear that nonrenewal of a nontenured

public school teacher’s one-year contract, or midyear ter-

Opinion, Court of Appeals, May 3, 1974 39a

mination of that contract, may not be predicated even in

part on his exercise of first amendment rights. Perry v.

Sindermann, supra at 596-598; Simard v. Board of Educa-

tion, 473 F.2d 988 (2d Cir. 1973). It is also clear that con-

tract rights aside, the allegation that nonrenewal or mid-

year termination was based on the teacher’s exercise of

first amendment rights does not give him a right to a hear-

ing by the institution. Rather, such an allegation of a sub-

stantive violation of federal constitutional rights is heard

and determined by the court in the first instance. See Per-

ry v. Sindermann, supra at 599 n. 5; Clark v. Holmes, 474

F.2d 928, 932 n. 4 (7th Cir. 1972), cert. denied, 411 U.S.

972, 93 S.Ct. 2148, 36 L.Ed.2d 695 (1973). The district

court found that Skehan had not proven by a preponder-

ance of the evidence his allegation that

“. .. he was discharged . . . because of his stands

on campus issues which were contrary to the adminis-

tration’s positions, in violation of his First and Four-

teenth Amendment rights to free speech. . . . On the

contrary, I find that Plaintiff was discharged because

of his refusal to follow administrative directives re-

lating to the schedule of classes in the Fall of 1970.”

358 F. Supp. at 434.

Skehan contends this finding is clearly erroneous. But

while there is ample evidence which would have support-

ed a contrary finding,’ there is evidence supporting the

district court finding *. We cannot say that it is clearly er-

* Skehan points to his activist position on the Vietnam War,

the administration’s displeasure with his extracurricular activities,

the trivial nature of the scheduling dispute, and Nossen’s intem-

perate utterances toward him.

* The district court points out, for example, that there is no

evidence suggesting that his views on Vietnam differed from those

40a Opinion, Court of Appeals, May 3, 1 974

roneous and we cannot substitute our evaluation of the

evidence for that of the district court. Thus whatever

rights Skehan has with respect to the October 17, 1970

discharge depend upon the termination of his contract with-

out procedural due process.

(6) The terminal year decision, however, presents

a separate issue. The district court finding that the Octo-

ber 17, 1970 termination was caused by the scheduling in-

cident rather than by Skehan’s prior stands on campus is-

sues does not dispose of his claim that the terminal year

decision, made several months before the scheduling dis-

pute arose, was similarly motivated. On that issue the dis-

trict court made no finding. If it were to find that the .de-

cision not to renew his contract was based on stands on

campus issues with which the administration disagreed, the

nonrenewal decision would be substantively defective un-

der the first amendment and the court would have to fash-

ion an appropriate remedy.

IV. THE DISTRICT COURT’S REMEDY

(7) The district court rejected Skehan’s claim for

reinstatement and back pay, and awarded nominal dam-

ages for the property-procedural due process violation

which it found. Since we have already determined that

additional findings are required with respect to the article

5(e) contract claim and the first amendment claim on the

terminal year decision, the district court obviously will

have to reconsider the remedy problem with respect to

those claims. Even with regard to the termination claim,

of the administration, or that the administration was even aware

of the extracurricular activities. 358 Supp. at 432 n. 1. Certainly

there was a scheduling dispute.

Opinion, Court of Appeals, May 3, 1974 4la

however, the district court’s award of nominal dama

ne The court reasoned that “had Plaintiff “oe

~ ed a hearing prior to his discharge, in all probability

outcome would have been the same.” 358 F Supp. at

436. This conclusion was thought to follow hae te

court’s finding on the liberty-first amendment claim, that

the termination resulted from the scheduling dispute. But

while it was proper for the court to consider that claim

in the first instance, it was not proper to substitute the

finding it made for the in-house hearing which the insti-

tution should have afforded prior to terminating the 1970-

71 contract. Such a retrospective substitution of the dis-

trict court ’s judgment for that of the administrative hear-

ing officers seriously undermines the hearing requirement

A district court cannot exercise the discretion which is

vested in an administrative hearing board, nor can it brin

to the dispute the same expert knowledge of the ~

environment which should enlighten the deliberations of

an academic hearing agency. A board of his academic

peers might regard Skehan’s scheduling imbroglio as far

more trivial than would a district judge. A board of his

academic peers might say he is guilty of misconduct, but

he should not be fired for that kind of misconduct. The

district judge could not exercise such discretion. Further-

more, if we countenance the practice of making findings

which the institution should have made, a substantial in-

centive toward affording procedural due process prior to

contract termination will be removed. The result will be

to place considerable unreviewable discretion in the hands

of the administrators by permitting discriminatory appli-

cation of the availability of pretermination hearings. Those

discriminated against will be forced to the expense. incon-

venience and delay of a lawsuit to get what remains of

42a Opinion, Court of Appeals, May 3, 1974

the due process hearing which should have been provided

by the state at the administrative level in the first instance.

If the due process protection of contract rights mandated

by Board of Regents v. Roth, supra, and Perry v. Sin-

dermann, supra, is to be meaningful, the sanction for depri-

vation of that protection must be something more than was

awarded in this case. See, e.g., Greene v. United States,

376 US. 149, 84 S.Ct. 615, 11 L.Ed.2d 576 (1964) ; Sil-

ver v. New York Stock Exchange, 373 U.S. 341, 365-366

n. 18, 83 S.Ct. 1246, 10 L.Ed.2d 389 (1963); Vitarelli v.

Seaton, 359 U.S. 535, 545-546, 79 S.Ct. 968, 3 L.Ed.2d

1012 (1959); Service v. Dulles, 354 US. 363, 77 S.Ct.

1152, 1 L.Ed.2d 1403 (1957).

V. THE APPROPRIATE REMEDY

Skehan seeks what has sometimes been characterized

as the equitable remedy of reinstatement with back pay.

The reinstatement remedy has been awarded frequently for

terminations unlawful for procedural defects, see, ¢.g.,

Vitarelli v. Seaton, supra; McNeill v. Butz, 480 F.2d 314

(4th Cir. 1973); Cooley v. Board of Education, 453 F.2d

282 (8th Cir. 1972); Olson v. Regents of University of

Minnesota, 301 F. Supp. 1356 (D. Minn. 1969); Lucia

v. Duggan, 303 F. Supp. 112 (D. Mass. 1969), or sub-

stantive defects, see, e.g., Stolberg v. Members of the

Board of Trustees, 474 F.2d 485 (2d Cir. 1973); Rauls

yv. Baker County, Georgia, Board of Education, 445 F.2d

825 (5th Cir. 1971). Application of that remedy is com-

plicated in this case by the fact that the 1970-71 contract

year had already expired by the time the suit started, by

the absence of a finding with respect to the article 5(e)

claim which might have extended Skehan’s contract rights

past June of 1971, and by the absence of a finding on the

Opinion, Court of Appeals, May 3, 1974 43a

claim that nonrenew ibi

first amendment. ey ra latin 0 rg —

ess violation which the district court found, back - f

October 17, 1970 to the end of the contract ior aneaa

seem appropriate. Skehan also seeks attorneys fees. We

a —_ determine, however, from which of the defend-

yea i remedies, or any other retrospective remedies

strict court may deem appropriate, may be obtained.

A. The College

(8-11) Bloomsburg State College is named

fendant. The Attorney General of Saetieinenaae ~

peared for it and all other defendants, filing a common C

sect of he Cole in ern

he nwealth is somewhat ambi .

Pinte, 477 9241.07 Od Ge tty ee

’ , ir. 197 i

2 the status of the University of Siciamenameinn

oomsburg State College, is a part of the Commonwealth

— of higher education. But unlike the University of

a Bloomsburg State College apparently has no

— eng existence. Compare Pa. Stat. Ann. tit.

of Phashangh—Commenwusits Ast, Pa fan haan

$§2510-201 to 2510211. In tite ae de “

= rea pe aarp tion, 453 Pa. 584, 305 A.2d 877 (1973),

our opinion in Braden, the Supreme Court

of Pennsylvania abolished governmental immunity for lo-

cal government units—in that case a school board That

holding would seem to apply to separately chartered edu

cational institutions such as the University of Pittsburgh

— out the governmental function of public higher

ucation. And if under Pennsylvania law: Bloomsburg

44a Opinion, Court of Appeals, May 3, 1974

State College is a subsidiary governmental unit, it too, is

amenable to suit. Thus there would be no state sovereign

immunity problem with respect to back pay award assum-

ing, as we do, subject matter jurisdiction to make such an

award.” If under Pennsylvania law Bloomsburg State Col-

lege is in effect merely an agency of the Commonwealth

rather than a subsidiary governmental unit, the Ayala case

does not apply, for in Brown v. Commonwealth of Penn-

sylvania, 453 Pa. 566, 305 A.2d 868 (1973) the Supreme

Court of Pennsylvania made clear that the Commonwealth

still claimed immunity. See also Pa. Stat. Ann. tit. 17,

§211.401. The district court did not decide into which

category Pennsylvania would fit Bloomsburg State College.

Assuming that it would fall within Brown rather than

Ayala, Skehan urges that the Commonwealth has, by not

pleading sovereign immunity in the district court, waived

that defense. It is well established that the defense of sov-

ereign immunity from suit in a federal court may be

waived. E.g., Missouri v. Fiske, 290 U.S. 18, 24, 54 S.Ct.

18, 78 L.Ed. 145 (1933). A general appearance in litiga-

tion in a federal court may be such a waiver. Clark v.

Barnard, 108 U.S. 436, 447-448, 2 S.Ct. 878, 27 L.Ed.

780 (1883). But while the Attorney General did not plead

sovereign immunity on behalf of the College in the district

court he vigorously asserted it here. In Edelman v. Jordan,

415 US. 651, 94 S.Ct. 1347, 39 L.Ed. 2d 662 (1974) the

Supreme Court held “that the eleventh amendment defense

sufficiently partakes of the nature of a jurisdictional bar

so that it need not be raised in the trial court.” That hold-

ing would seem to have overruled the Ninth Circuit deci-

sion in Lidie v. State of California, 478 F.2d 552 (9th

5 See page 44 [52a] infra.

Opinion, Court of Appeals, May 3, 1974 45a

Cir. 1973) upon which Skehan relies, and to imi

the applicability of cases such as Clark v. stn pon

See Jordan v. Gilligan, 500 F.2d 701 (6th Cir. 1974), va.

cating as void under rule 60(b) a judgment awarding at-

torneys fees against the state. But see Jordan v. Fusari. 496

F.2d 646 (2d Cir. 1974). Edelman v. Jordan, supra, also

reversed Jordan v. Weaver, 472 F.2d 985 (7th Cir. 1973)

which had held that in connection with equitable relief

against individual defendants a retroactive monetary award

could be made from state funds.* Thus if under Pennsy!-

vania law the College is an agent of the Commonwealth

state sovereign immunity would preclude the award of any

relief against it directly and any but prospective monetary

relief, equitable or legal, in an order directed against the

individual defendants. Edelman, while not ruling on the

* The Court approved the Second Cireuit’s decision i

ay ne Wyman, 467 F.2d 226 (2d Cir. 1972), cert. denied, mon

921, S.Ct. 1552, 36 L.Ed.2d 315 (1973), [94 S.Ct. 1347], which

had been followed in recent decisions of the Fourth and Eighth

sewer | Dawkins v. Craig, 483 F.2d 1191 (4th Cir. 1973) and

os v. Carter, 486 F.2d 552, 554 (8th Cir. 1973), petition for cert.

iled sub nom. Burns v. Doe (U.S. Sept. 11, 1973) (No. 73-406)

The Court overruled its decisions in Sterrett v. Mothers’ and Chil.

dren’s Rights Organization, 409 U.S. 809, 193 S.Ct. 68, 34 L.Ed 2d

70 (1972), aff'g 2 CCH Pov. L. Rptr. $15,384 (N.D. Ind. 1972)

(3-judge court) ; State Dep’t of Health and Rehabilitative Services

v. Zarate, 407 U.S. 918, 92 S.Ct. 2462, 32 L.Ed.2d 803 (1972)

aff’g 347 F. Supp. 1004 (S.D. Fla. 1971) (3-judge court); Wy.

man v. Bowens, 397 U.S. 49, 40 S.Ct. 813, 25 L.Ed.2d 38 (1970)

aff’g 304 F. Supp. 717 (S.D. N.Y. 1968) (3-judge court) (sec

order at [1968-71 transfer binder] CCH Pov. L. Rptr. 10,506) ;

and Shapire v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d

600 (1969), aff’g 270 F. Supp. 331, 338 n. 5 (D. Conn. 1967) (3-

judge court), to the extent payment of retroactive benefits was

ordered in these cases. See also note 7 infra.

46a Opinion, Court of Appeals, May 3, 1974

matter specifically, appears to bar the award of attorneys

fees from the state treasury as well.’ But if the College is

7 The contention could be made that, by failing to expressly

overrule its summary affirmance in Sims v. Amos, 409 U.S. 942,

93 S.Ct. 290, 34 L.Ed.2d 215 (1972), aff’g 336 F.Supp. 924 (M.D.

Ala. 1972) (3-judge court) of an award of attorneys fees against

state officers which was to be satisfied from the state treasury, the

Court meant to leave the issue open. See Gates v. Collier, 489 F.2d

298 (5th Cir. 1973), following Sims and quoting the jurisdictional

statement raising the elevcath amendment issue before the Court.

Such a conclusion would, however, be inconsistent with the Edel-

man Court’s rationale. We attribute the Court’s omission to in-

advertence. For a listing of other decisions overruled, see note 6

supra. See also Jordon v. Gilligan, supra, finding, after Edelman,

an eleventh amendment bir to the award of attorneys fees. But ef.

Jordan v. Fusari, supra.

Skehan, pointing to language in Justice Marshall’s dissent in

Edelman v. Jordan, supra, contends that the liability of the Com-

monwealth for retroactive benefits in his case is still open. Justice

Marshall wrote :

‘“It should be noted that there has been no determination

in this ease that state action is unconstitutional under the Four-

teenth Amendment. Thus, the Court necessarily does not de-

cide whether the States’ Eleventh Amendment sovereign im-

munity may have been limited by the later enactment of the

Fourteenth Amendment to the extent that such a limitation

is neecssary to effectuate the purposes of that Amendment,

an argument advanced by an amicus in this case. In view of

my conclusion that any sovereign immunity which may exist

has been waived, I also need not reach this issue.’’ 42 U.S.L.W.

at 4432 n. 2 [94 S.Ct. at 1371].

An appreciation of this eryptic comment requires some refined

analysis of the issues dealt with in Justice Rehnquist’s majority

opinion. Claims for money against a state can arise in three sepa-

rate legal frameworks. First, the claim may be based upon state

law, purely and simply; breach of contract, for example. Second,

it may be based upon federal law made binding upon the states by

Opinion, Court of Appeals, May 3, 1974 47a

monetary relief is i

S.Ct. 1547]. We do not deer ah aetna pop pe

: rec-

ra make @ determination into which category Penneyl

Thus Justice Marshall is technically

prs ne a third category. But the majority ae ambos -

~ ‘spiro v. Thompson, supra, State Department of Health

Rehabilitative Services v. Zarate, supra, and Wyman v Bowens,

ment pays cases. We think Edelman must

losing the door on any money award from a state

on

48a Opinion, Court of Appeals, May 3, 1974

B. The Individual Defendants

(12) The individual defendants are not protected by

sovereign immunity. Even if the College is immune, they

may be ordered to reinstate Skehan at least until such

time as he has been afforded such hearing as the court finds

is required. As Edelman v. Jordan makes clear, that relief

may include the payment of his salary prospectively out of

College funds even though the College itself may be found

to enjoy state sovereign immunity. As to back pay and at-

torneys fees, even if the College is immune there remains

the question whether the individual defendants should be

held liable. Such a recovery against individual defendants

would be in the nature of damages, rather than as a part

of the equitable remedy of reinstatement. Such a recovery

of damages, as distinguished from reinstatement, must be

predicated upon conduct deemed to be tortious under fed-

eral law, Bell v. Hod, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed.

939 (1946), 42 U.S.C. §1988, or state law, 42 USC.

§1988. The Attorney General on behalf of the individual

defendants pleaded official immunity. We have held that

a resolution of that defense requires the development of

the facts as to whether the defendants in question are in

positions where they exercise such discretionary govern-

mental functions as to entitle them to official immunity.

Safeguard Mutual Insurance Co. v. Miller, 472 F.2d 732,

734 (3d Cir. 1973); Lasher v. Shafer, 460 F.2d 343, 348

(3d Cir. 1972); see Bauers v. Heisel, 361 F.2d 581 (3d

Cir. 1966) , cert. denied, 386 U.S. 1021, 87 S.Ct. 1367, 18

L.Ed.2d 457 (1967). The district court made no findings

on whether the individual defendants exercise such discre-

tionary governmental functions, but unlike Scheuer v.

Rhodes, 42 U.S.L.W. 4543, 416 U.S. 232, 94 S.Ct. 1685,

40 L.Ed.2d 90 (1974), Safeguard Mutual Insurance Co.

Opinion, Court of Appeals, May 3, 1974 49a

v. Miller, supra and Lasher v. Shafer, supra iti

of each defendant is clear in the record, ae sone

vania Statutes defining their duties establish that they exer-

cise discretionary governmental functions.’ Pa. Stat. Ann.

tit. 24, §20-2008.2 (Board of Trustees); Pa. Stat. Ann

tit. 24, §§20-2003.1, 20-2003.2, 20-2004 (Secretary of

Education) ; Pa. Stat. Ann. tit. 24, §§20-2004, 20-2004.1

(President) . Of course, as indicated above, this official

immunity from claims for damages and attorneys fees does

not preclude injunctive relief. Ex parte Young, 209 U.S.

203, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Safeguard Mu-

tual Insurance Co. v. Miller, 472 F.2d at 734-735. Thus

to the extent that the order appealed from denied recovery

of back pay and attorneys fees from the individual defend-

ants, we affirm, though for different reasons tha

on by the district court. sy

C. Attorneys Fees

(13) Although it found that a due process violation

had taken place and awarded nominal damages, the court

refused to award Skehan attorneys fees. Such awards have

repeatedly been held to be appropriate in suits seeking re-

dress for improper dismissal. E.g., Stolberg v. Members

of the Board of Trustees, 474 F.2d 485 (2d Cir. 1973);

Donahue v. Stauton, 471 F.2d 475, 482-483 (7th Cir.

1972), cert. denied, 410 U.S. 955, 93 S.Ct. 1419, 35

L.Ed.2d 687 (1973); Jinks v. Mays, 350 F. Supp. 1037

(N.D. Ga. 1972). See Cooper v. Allen, 467 F.2d 836, 840

(5th Cir. 1972). Attorneys fees have also been awarded

: The district court did find, as required by Scheuer, that the

constitutional deprivation was technical in nature and ‘‘not the

product of bad faith on the part of Defendants.’’ Order of June

12, 1973 (unreported), at 2.

50a Opinion, Court of Appeals, May 3, 1974

frequently in civil rights cases not involving dismissals from

employment. E.g., Knight v. Auciello, 453 F.2d 852 (ist

Cir. 1972); Lee v. Southern Homes Sites Corp., 444 F.2d

143 (5th Cir. 1971); N.A.A.C.P. v. Allen, 340 F. Supp.

703 (M.D. Ala. 1972); Dyer v. Love, 307 F. Supp. 974

(N.D. Miss. 1969). See Newman v. Piggie Park Enter-

prises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263

(1968). The district court refused to make such an award

because “the constitutional deprivation was technical in

nature; it was not the product of bad faith on the part of

the Defendants.” Order of June 12, 1973 (unreported) ,

at 2. Undoubtedly this conclusion was reinforced by the

district court’s ruling, which we have reversed, that it could

substitute its decision for the due process which the Col-

lege should have afforded. Withholding an award of at-

torneys fees in a case where a constitutional violation has

been established removes a substantial incentive toward

efforts looking to vindicate Constitutional rights. It is

true, as the district court points out, that Skehan was pur-

suing an individual, not a class remedy. But the public

has an interest in having its state-related institutions act

in compliance with the fourteenth amendment. We there-

fore disapprove the reasons advanced by the district court

for rejecting the attorneys fees request.

That does not end the inquiry, however. We have

held that the individual defendants are covered by official

immunity. If an attorneys fees award is to be made it must

be made against the College. Whether such an award can

be made against it will, as we pointed out above, depend

upon its status.

Opinion, Court of Appeals, May 3,1974 Sia

VI. JURISDICTION

(14) Skehan asserts jurisdiction under 28 U.S.C.

§1331 and under 28 U.S.C. §1343(3), (4) and the Civil

Rights Acts. The jurisdictional amount requisite to sup-

port jurisdiction under §1331 is pleaded, and the claim for

recovery in excess of $10,000 clearly is not frivolous. Ju-

risiction over the individual defendants is clear both under

§1331 and under §1343 and 42 U.S.C. §1983. Because

the requisite jurisdictional amount for §1331 is pleaded,

the fact that the College is not a “person” within the mean-

ing of 42 U.S.C. §1983 is not significant. Thus we have

no occasion in this case to determine whether, in view of

the Commonwealth’s abandonment of state sovereign im-

munity with respect to subgovernmental units in the Ayala

case, those units may be sued in a federal court where, be-

cause the claim is less than $10,000, jurisdiction must be

predicated on 28 U.S.C. §1343(3), (4). But see 42 U.S.C.

$1988. There is §1331 jurisdiction to award relief against

the College if under Pennsylvania law it is not an agency

of the Commonwealth covered by the Commonwealth’s

immunity.

VII. CONCLUSION

The judgment of the district court will be vacated and

the case will be remanded for findings of fact:

1. as to the governmental status of Bloomsburg

State College;

2. as to the nature of the interest created under

Pennsylvania law by article 5(e) of the Statement of

Policy for Continuous Employment and Academic

Freedom at Bloomsburg State College;

52a -- Opinion, Court of Appeals, May 3, 1974

3. as to whether the decision not to renew Ske-

han’s contract after 1970-71 was based on stands on

campus issues with which the administration dis-

agreed. |

Since we have held that the individual defendants are en-

titled to official immunity, if the court should find that

the College is covered by the Commonwealth’s state sov-

ereign immunity neither back pay nor attorneys fees could

be awarded. If the court should find that the College is

within the Ayala rather than the Brown case an award of

back pay should be considered. The extent of such an

award will depend upon the court’s findings as to the ar-

ticle 5(e) claim and as to the reason for nonrenewal. If

Skehan’s only contract right expired by its terms at the

end of the 1970-71 academic year, and there was no first

amendment violation, the back pay award should cover

the 1970-71 period only. The claim for reinstatement

would then be moot. But if either the article 5(e) claim

or the first amendment claim should be decided in Ske-

han’s favor, the court should consider the award of back

pay to date if the College is not immune, and also prospec-

tive reinstatement, as to which there is no immunity prob-

lem, at least until appropriate college procedures have

taken place. If the College is not immune the court should

also reconsider its ruling on the award of attorneys fees.

To the Clerk of the Court

Piease file the foregoing opinion.

Circuit Judge

Judgment 53a

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

No. 73-1613

Dr. Joseph T. Skehan,

Appellant

vs.

Board of Trustees of Bloomsburg State College and Dr.

Robert Nossen and Dr. Charles Carlson and John Pittenger,

Superintendent of Education Commonwealth of Pennsyl-

vania and Bloomsburg State College

(D.C. Civil Action No. 72-644)

On Appeal from the United States District Court for the

Middle District of Pennsylvania

Present: Biggs, Gibbons and Garth, Circuit Judges

JUDGMENT

This cause came on to be heard on the record from

the United States District Court for the Middle District of

Pennsylvania and was argued by counsel.

On consideration whereof, it is now here ordered and

adjudged by this Court that the judgment of the said Dis-

54a Judgment

trict Court, filed May 11, 1973, be, and the same is here-

by vacated and the cause is remanded for findings of fact

and further proceedings consistent with the opinion of this

Court.

Attest:

(s) Thomas F. Quinn

Clerk

(Seal)

May 3, 1974

A True Copy:

(s) Thomas F. Quinn

Thomas F. Quinn

Clerk

(Received & Filed May 3, 1974, Thomas F. Quinn, Clerk)

*.

Opinion, District Court, May 9, 1973 55a

UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

Civil Action No. 72-644

Dr. Joseph T. Skehan,

Plaintiff

vs.

Board of Trustees of Bloomsburg State College, et al.,

Defendants

OPINION

[358 Fed. Supp. 430 (1973) ]

Muir, District Judge.

This suit, brought pursuant to 28 U.S.C. §§1343,

2201, 2202, and 42 U.S.C. §§1981, 1983 and 1985, al-

leges deprivations of Plaintiff’s constitutional rights in con-

nection with the termination of his employment at Blooms-

burg State College in October, 1970. Plaintiff requests

damages and injunctive relief, including reinstatement. On

January 11 and 12, 1973, a hearing was held to consider

Plaintiff’s request for a preliminary injunction. This re-

quest was denied by the court in an Opinion dated Janu-

ary 31, 1973, — F. Supp. —, because the nearly two-year

delay in instituting this suit indicated that speedy action

was not required. The case was placed on the April trial

56a Opinion, District Court, May 9, 1973

list for a hearing on final injunction and damages. Sub-

sequently, the parties waived a further hearing on the

merits and rested on the record developed at the January

11 and 12, 1973 hearing.

Plaintiff Joseph T. Skehan was appointed Associate

Professor of Economics at Bloomsburg State College in

January, 1969. His contract was renewed for the 1969-

1970 and the 1970-1971 school years. At no time did

Dr. Skehan have tenure rights to continued employment.

Dr. Skehan did not confine himself to strictly aca-

demic duties. He assumed an activist position on many of

the issues raised in the campus community, a position often

grating to the administration at Bloomsburg. During the

Spring of 1969, Dr. Skehan urged the formation of inde-

pendent faculty and student organizations. In November

and December, 1969, he strongly protested against the dis-

missal of Professor Deake Porter of the Economics Depart-

ment, and acted as Porter’s academic advisor in the mat-

ter. Dr. Skehan was also active in the protest over the fir-

ing of Dr. Maxwell Primack, and was appointed to the

American Association of University Professors’ Committee

established to investigate that incident. In April, 1970,

Dr. Skehan served as faculty advisor to students at

Bloomsburg who expressed their dissatisfaction with the

appointment of Defendant Nossen as President of the col-

lege.’

In addition to the administration’s apparent dis-

pleasure with Dr. Skehan’s extra-curricular activities, there

1 Dr. Skehan also actively protested against United States

policy in Vietnam. However, there was no evidence suggesting that

his views differed from those of the administration, or that the ad-

ministration was aware of Dr. Skehan’s activities.

Opinion, District Court, May 9, 1973 57a

was some criticism of the manner in which he performed

his teaching duties. When Dr. Skehan was hired to teach

at Bloomsburg in January, 1969, he was given a six-month

“trial” contract because he came to Bloomsburg as a result

of the non-renewal of his contract at Seton Hall Universi-

ty, the institution by which he was employed from 1965

until the Spring of 1968. Soon after he began teaching at

Bloomsburg, Dr. Saini, the Chairman of the Economics De-

partment, discussed with Dr. Skehan the impropriety of

absenting himself from Friday afternoon classes by making

arrangements with the students to meet at some other time

or with other colleagues to take charge of his classes. Also

discussed was the difficulty students were having in seeing

Dr. Skehan about problems relating to course work. Dr.

Skehan assured Dr. Saini that he would adhere to the ap-

plicable regulations at Bloomsburg. Despite these assur-

ances, he arranged, without proper approval, to have some

other faculty members take charge of his class during an

examination in May, 1969.

Dr. Skehan’s contract was renewed for the 1969-1970

academic year. However, as early as February, 1970, he

was verbally advised by Dr. Hoch, Vice-President and

Dean of Faculties, that his services would no longer be

required after May, 1971. This administration position

was formalized on May 19, 1970, when Defendant Nossen

sent to Dr. Skehan an offer of reappointment for the 1970-

1971 academic year with the understanding that 1971 was

to be the terminal year of his employment at Bloomsburg.

Dr. Skehan did not execute the offer of reappointment,

but on May 28, 1970 he sent to Defendant Nossen a letter

which stated in part:

“According with provisions on page three of

Bloomsburg State College’s ‘Statement of Policy for

58a Opinion, District Court, May 9, 1973

Continuous Employment and Academic Freedom’ |

have re-appointment for the Academic year 1970-71.

Your letter confirms the 1970-71 re-appointment. I

intend to fulfill the 1970-71 appointment.”

By letter dated June 1, 1970, Defendant Nossen informed

Dr. Skehan that failure to execute the offer of reappoint-

ment by June 8, 1970, would be interpreted as a refusal

of the offer. Dr. Skehan apparently appealed directly to

the Board of Trustees. On June 15, 1970, Defendant Nos-

sen sent to Dr. Skehan a letter which stated in part:

“The College has prepared a contract form which

is applicable to all persons offered appointment. Your

refusal, to this point, to return the contract in accord

with [the Board’s] prescribed procedures continues

to indicate to [the Board] your disregard for College

procedures. Nevertheless, in view of the original in-

tention to provide due notice, [the Board] will accept

the alternative letter as an indication of your accept-

ance of the 1970-1971 appointment as terminal.”

On September 18, 1970, Dr. Skehan was sent a standard

memorandum advising him that his salary for the 1970-

1971 school year was $13,680.00. I find that Dr. Skehan

had a contract of employment for the 1970-71 academic

year.

The events giving rise to Dr. Skehan’s midterm dis-

charge occurred in the Fall of 1970. In February, 1970,

the Economics Department met and adopted a proposed

schedule of courses to be given in the 1970 Fall semester.

Pursuant to this proposed schedule, Dr. Skehan was to

teach one advanced course in micro economics, and three

principles courses in micro and macro economics. Shortly

before August 27, 1970, the College Registrar issued a

Opinion, District Court, May 9, 1973 59a

memorandum to all department chairmen stating that any

desired changes in the proposed schedules should be sub-

mitted on or before August 27, 1970. No changes were

submitted by the Economics Department prior to that dead-

line. However, on September 12, 1970, three days before

classes began, the Economics Department met and approved

several proposed schedule changes involving Dr. Skehan

and other members of the Department. The request to

change the schedule was denied by Vice-President Hoch on

September 14, 1970, and the denial was communicated to

Dr. Skehan on September 15, 1970. Nevertheless, Dr.

Skehan and Professor Porter followed the schedule as

changed at the September 12, 1970 Department meeting.

Following receipt on September 22, 1970, of a letter from

Dr. Hoch directing him to follow the official class sched-

ule, Dr. Skehan began meeting with his classes under the

official schedule and with his classes under the requested

pated in the advanced micro economics course, officially

assigned to Dr. Skehan. Professor Porter prepared the

course materials and led the classroom procedures.

Pursuant to a request by Dr. Skehan, Vice-President

Hoch arranged a meeting on September 29, 1970, to dis-

cuss the scheduling problems. At the meeting, attended by

the members of the Economics Department and Vice-Presi-

dent Hoch, Dr. Skehan and Professor Porter were given

an Opportunity to present their views. Vice-President Hoch

stated that he denied the requested schedule changes be-

cause he felt that the changes were requested for purely

personal reasons, and because the changes were not sub-

SaaS es Saar eaeee

Economics Department, including the acting

chairman, Mr. Ross, stated that the Department had

60a Opinion, District Court, May 9, 1973

sought schedule adjustments and that in light of the Vice-

President’s veto of the proposed schedule changes, the of-

ficial schedule should be adhered to. At the conclusion

of the meeting, Vice-President Hoch read a statement

which provided in part:

“ .. Dr. Skehan and Mr. Porter are hereby di-

rected to follow the official class schedule, which

appears in the Master Class Schedule for the fall se-

mester of the college year 1970-71, beginning Wednes-

day, September 30, 1970, at 8:00 A.M.

“It is only fair to warn each of you gentlemen

that immediate and direct administrative action will

follow your failure to teach your classes as scheduled

in the official schedule book.”

A similar directive and warning was provided to Dr. Ske-

han in a letter to him from Vice-President Hoch dated Sep-

tember 30, 1970.

On or about October 1, 1970, Dr. Skehan was ob-

served teaching courses not assigned to him under the

official schedule. Apparently, Dr. Skehan and Professor

Porter utilized a procedure similar to the one employed

between September 22, and September 29, whereby both

professors participated jointly in the disputed courses.

However, it does appear that Dr. Skehan was principally

in charge of the Labor Economics course officially assigned

to Professor Porter. This was in violation of Vice-Presi-

dent Hoch’s directive, in spirit if not in letter. As a result

of Dr. Skehan’s actions, he was notified by President Nos-

sen by letter dated October 9, 1970, that he was relieved

of teaching duties pending a final hearing. Dr. Skehan

was given five days in which to account for his actions

by letter to President Nossen. Dr. Skehan refused to make

Opinion, District Court, May 9, 1973 6la

an accounting, and on October 19, 1970, was removed

from the payroll effective October 17, 1970. On October

23, 1970, the Board of Trustees approved Dr. Skehan’s

lismissal

On December 1, 1970, the Committee on Academic

Affairs conducted a hearing concerning the dismissal of

Dr. Skehan. Dr. Skehan appeared only to state that he

would not participate in the hearing. On the basis of cor-

respondence and records submitted by the administration,

the Committee unanimously approved the dismissal action.

Dr. Skehan submitted no material for consideration at the

hearing.

(1) Plaintiff first alleges that he was discharged

from his employment with Bloomsburg State College be-

cause of his stands on campus issues which were contrary

to the administration’s positions, in violation of his First

and Fowrteenth Amendment rights to free speech. How-

ever, the Plaintiff has not shown by a preponderance of

the evidence that this allegation is true. On the contrary,

I find that the Plaintiff was discharged because of his

refusal to follow administrative directives relating to the

schedule of classes in the Fall of 1970. He was not dis-

charged for reasons prohibited by the Constitution.

(2) Next, Plaintiff contends that he was deprived

of his right to procedural due process when he was denied

a hearing prior to discharge. The Supreme Court has held

that a nontenured professor has a constitutional right to

a statement of reasons and a hearing on a university’s de-

cision not to renew his contract if he can show that the

nonrenewal deprives him of an interest in “liberty” or a

“property” interest in continued employment. Board of

Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d

62a Opinion, District Court, May 9, 1973

548 (1972); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct.

2694, 33 L.Ed.2d 570 (1972). Likewise, a college pro-

fessor dismissed during the term of his contract possesses

a property interest safeguarded by due process. Board of

Regents v. Roth, supra, 408 U.S. at pp. 576-577, 92 S.Ct.

2701. See Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct.

215, 97 L.Ed. 216 (1952). This is precisely the situation

in the case at bar. Therefore, Plaintiff's dismissal during

the term of his contract for the 1970-71 academic year at

Bloomsburg State College entitled him to a hearing on the

reasons for his dismissal.

(3) The Defendants contend that Plaintiff was, in

fact, afforded a hearing at the September 29, 1970 meet-

ing with Vice-President Hoch. The September 29 meet-

ing was called to discuss the scheduling controversy which

ultimately gave rise to Plaintiff's discharge effective Oc-

tober 17, 1970. However, the meeting was concerned with

events which transpired prior to September 29. It was

Plaintiff’s subsequent failure to abide by the directive pro-

pounded at the meeting which precipitated his discharge.

Although Plaintiff was not constitutionally entitled to re-

argue his position on the question of which schedule was

controlling, he was entitled to a hearing at which he might

have attempted to justify his actions after September 30,

1970, or to have presented reasons why dismissal was not

the appropriate sanction.

(4,5) The hearing on December 1, 1970 before the

Committee on Academic Affairs did not fulfill the consti-

tutional requirements of procedural due process in this

case. The hearing was held 14% months after Plaintiff's

discharge. Absent special circumstances, due process re-

quires that one who is deprived of a protected interest be

Opinion, District Court, May 9, 1973 63a

given a hearing prior to the deprivation. Board of Regents

v. Roth, supra, 408 U.S. at p. 570, n. 7, 92 S.Ct. 2701;

Commonwealth of Pennsylvania ex rel. Rafferty v. Phila-

delphia Psychiatric Center, 356 F. Supp. 500 (E.D. Pa.

1973). See Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983,

32 L.Ed.2d 556 (1972). The case at bar does not repre-

sent the kind of extraordinary situation in which the re-

quirement of a prior hearing is relaxed. See Phillips v.

Commissioner, 283 U.S. 589, 597, 51 S.Ct. 608, 75 L.Ed.

1289 (1931); Central Union Trust Co. v. Garvan, 254

U.S. 554, 566, 41 S.Ct. 214, 65 L.Ed. 403 (1921); Citta

v. Delaware Valley Hospital, 313 F. Supp. 301

(E.D. Pa. 1970). =

(6) Having decided that Dr. Skehan was ved

of tis constttinnnh hte 0 atti banteds Lema tom

eth sevemet ha sanaery Plaintiff asks for rein-

temen wages damages. In my view, re-

instatement with back wages would be inappropriate in

the case at bar in light of (1) the Court’s finding that the

Plaintiff was not discharged for exercising his constitu-

tional rights, and (2) Plaintiff's two-year delay in insti-

tuting this action.’ Cases in which courts have ordered

reinstatement because of a lack of procedural due process

presented situations where either the court found that the

Plaintiff was discharged for constitutional impermissible

reasons, see, ¢.g., Commonwealth of Pennsylvania ex rel.

Rafferty v. Philadelphia Psychiatric Center, 356 F. Supp.

500 (E.D. Pa. 1973), or where the Plaintiff instituted the

action shortly after the constitutional deprivation, see, e.g.,

* Plaintiff was discharged on October 19, 1970, effective Oc-

tober 17, 1970. The complaint was filed October 10, 1972 in the

Eastern District of Pennsylvania. '

64a Opinion, District Court, May 9, 1973

Karstetter v. Evans, 350 F. Supp. 209 (N.D. Tex. 1971);

Newcomer v. Coleman, 323 F. Supp. 1363 (D. Conn.

1970); Lafferty v. Carter, 310 F. Supp. 465 (W.D. Wis.

1970). Furthermore, the recent Supreme Court pronounce-

ments concerning procedural due process in the context of

the dismissal of a state employee indicate that reinstate-

ment is not an appropriate remedy. In remanding the case

to the lower courts, the Court in Perry v. Sindermann, su-

pra, stated that Plaintiff's proof of a property interest

would entitle him to a hearing prior to dismissal, but

“. . . would not, of course, entitle him to rein-

statement. But such proof would obligate college of-

ficials to grant a hearing at his request, where he

could be informed of the grounds for his nonreten-

tion and challenge their sufficiency.” 408 U.S. at 603,

92 S.Ct. at 2700.

(7) It appears from the above statement in Perry

that an appropriate remedy would be to order the Defend-

ants to give Dr. Skehan a hearing at this time. Under nor-

mal circumstances, I would take such a course. However,

this is not the usual case, and there are numerous consid-

erations militating against ordering a hearing to be held

2% years after Plaintiff's discharge. Most important, I

feel that a hearing at this time would be fruitless. I have

found that Plaintiff's dismissal was not grounded upon con-

stitutionally impermissible reasons. Therefore, were a hear-

ing to be held at this time, Plaintiff could only attempt to

justify his refusal to obey the administrative directive on

class scheduling after September 30, 1970. I have heard

Plaintiff's testimony on this matter, and I find it highly

unlikely that a hearing committee, considering the same

evidence, would reverse the administration’s decision to

SS

Opinion, District Court, May 9, 1973 65a

discharge the Plaintiff. That decision was eminently rea-

sonable under the circumstances. It has been held that

where the Plaintiff was deprived of his right to procedural

due process the court should not refer the case back for

a due process hearing when such a hearing would not re-

sult in altering the action taken against the Plaintiff. Fer-

guson v. Thonias, 430 F.2d 852 (5th Cir. 1970). See

Stevenson v. Board of Education of Wheeler County, 426

F.2d 1154 (5th Cir. 1970). The following factors have

also affected my decision not to order a hearing at this

time: (1) Plaintiff's failure to request, in his complaint or

elsewhere, that he now be given a hearing by the college

on the reasons for his dismissal; (2) Plaintiff's failure to

participate in the postdismissal, December 1, 1970 hear-

ing, which from all appearances, would have been a fair

and impartial one; and (3) Plaintiff's long delay in insti-

tuting this action.

discharge was

based upon facts rationally determined and for reasons un-

related to Plaintiff's exercise of constitutional rights. The

Plaintiff has not proven any actual damages arising from

Defendant's failure to give him a hearing. However, nomi-

nal damages are proven by proof of a deprivation of a

s

right to which the Plaintiff is entitled. Basista v. Weir,

F.2d 74 (3d Cir. 1965). Therefore, the Clerk will be

ee

66a Opinion, District Court, May 9, 1973

rected to enter judgment in favor of the Plaintiff for one

dollar, together with costs.

An appropriate order will be entered.

This opinion shall constitute the court's findings of

fact and conclusions of law under F.R.Civ.P. 52 (a).

(s) Muir

Muir

United States District Judge

Dated: May 9, 1973

Order, District Court, June 12, 1973 67a

UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

.Civil Action No. 72-644

Dr. Joseph T. Skehan,

Plaintiff

vs.

Board of Trustees of Bloomsburg State College, et al.,

Defendants

ORDER

June 12, 1973

The background of this order is as follows:

By Opinion and Order dated May 9, 1973, — F.

68a Order, District Court, June 12, 1973

do it, as he would have been had the Defendants’ breach

of duty not occurred. See Milwaukee and St. P. R. Co.

v. Arms, 91 U.S. 489 (1875). In the May 9, 1973 Opin-

ion, the Court found that while Plaintiff was deprived of

his right to a hearing prior to discharge, his dismissal was

not based upon constitutionally improper reasons, that the

decision to discharge Plaintiff was eminently reasonable,

and that in all probability the outcome would have been

the same had Plaintiff been given a prior hearing. In other

words, any damage sustained by Plaintiff resulted from

his refusal to follow administrative directives relating to

class scheduling, Opinion at p. 8, not from the Defendants’

failure to provide him with a proper due process hearing.

Under these circumstances, it would be unjust for the Court

to award more than nominal damages.

In regards to Plaintiff’s motion for the allowance of

attorney’s fees, the Court is aware that it has the discre-

tionary authority to award attorney’s fees in civil rights

cases when justice so requires. Lee v. Southern Home Sites

Corporation, 429 F.2d 290 (5th Cir. 1970). Generally,

attorney’s fees may be awarded when either (1) the De-

fendants have acted unreasonably or in bad faith, see Wil-

liams v. Kimbrough, 415 F.2d 874 (5th Cir. 1969); (2)

the result of Plaintiff’s efforts has been the creation of a

fund or other economic benefit to be shared by members

of a represented class, see Guardian Trust Co. v. Kansas

City Southern Ry. Co., 28 F.2d 233 (8th Cir. 1928) , rev’d

on other grounds, 281 U.S. 1 (1930); or (3) the result

of Plaintiff’s efforts has been the enforcement of a right,

or the enjoinment of a constitutional deprivation, which

directly benefits a large segment of the community, see

Bradley v. School Board of City of Richmond, Virginia, 53

F.R.D. 28 (E.D. Va. 1971). This later category almost

Order, District Court, June 12, 1973 69a

uniformly involves racial desegregation cases. The facts

in the case at bar fit none of these categories. As pointed

out in the May 9, 1973 Opinion at p. 12, the constitution-

al deprivation was technical in nature; it was not the prod-

uct of bad faith on the part of the Defendants. Nor can

this suit be deemed directly to benefit a large segment of

the community. Plaintiff brought the action to vindicate

his personal rights under his contract and under the U.S.

Constitution. To the extent that Bates v. Hinds, 334 F.

Supp. 528 (N.D. Tex. 1971), would compel a different

conclusion on the question of the appropriateness of an

award of counsel fees in this case, I decline to follow it.

NOW, THEREFORE, IT IS ORDERED THAT:

1. Plaintiff’s motion to amend the judgment is de-

nied.

2. Plaintiff’s motion for the allowance of attorney’s

fees and costs is denied.