# Petition — Board of Trustees of Bloomsburg State College v. Skehan > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0636%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 429 U.S. 979 ## Text eee 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0636%3A1. Public record. Not legal advice.