Petition — Heyn v. Louisiana State University, Agricultural & Mechanical College

;

1

;

Supreme Court, U. & — f

SFP 2 1977

M N., CLERK

—

In te ;

Supreme Court of the Anited States

OCTOBER TERM, 1977

No. 77 344

ANTON N. J. NE VN,

Petitioner

BOARD OF SUPERVISORS OF LOUISIANA STATE

UNIVERSITY AND AGRICULTURAL AND

MECHANICAL COLLEGE; HOMER L. HITT;

GEORGE C. BRANAM; WILLIAM B. GOOD;

and MANUEL L. IBANEZ,

Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

Robert Edward Barkley, Jr.

Sessions, Fishman, Rosenson,

Snellings & Boisfontaine

2100 Bank of New Orleans Building

1010 Common Street

New Orleans, Louisiana 70112

Telephone: (504) 581-5055

September 1, 1977 Counsel for Petitioner

ä — — —̃ — — — — — — —

A B Letter Service, las., 327 Chertres ., Mew Orleans, Le. (504) 581-5555

i

INDEX

o FePeD, PP ere

Ss !«²?³Bð;ͤũ ⁵ĩ ence hes 00 aeKe>

Questions for Review .............00005:

Constitutional and Statutory Provisions +

/ ĩ˙²˙•miirt: Ü 1 “˙²˙2 553

— V ²˙ ²³ · cece sees

Reasons for the Allowance of the Writ ......

1. Statute of Limitations ..............

2. Summary Judgment................

3. Amended Complaint ...............

Gc ²˙²˙ a enn

Certificate of Service... ........cccceceees

APPENDIX A: - Order of the United States

District Court for the Eastern District of

APPENDIX B: - Memorandum and Order of

the United States District Court for the

PAGE NO.

ii

IN DE X (Continued)

PAGE NO.

APPENDIX C: - Judgment of the United States

District Court for the Eastern District of

APPENDIX D: - Memorandum and Order of

the United States District Court for the

APPENDIX E: - Opinion of the United States

Court of Appeals for the Fifth Circuit affirm-

ing the decisions of the United States District

Court for the Eastern District of Louisiana A-16

CITATIONS

PAGE NO.

CASES:

Agnew v. City of Compton, 239 F.2d 226 (9th

Cir. 1956), cert. denied, 353 U.S. 959, 76

r / Puree 16

Baker u. F & F Investment, 420 F. 2d 1191

r e eeees 16

Bernstein v. Commercial National Bank,

116 La. 38, 108 So. 117 (19260) 24

Boshell v. Alabama Mental Health Board,

473 F.2d 1369 (5th Cir. 1973)............... 15

Boudreaux v. Baton Rouge Marine Contract-

ing Co., 437 F.2d 1011, n. 16 (Sth Cir. 1971).... 16,19

Brown v. Blake & Bane, Inc., 409 F.Supp. 1246

r i th ii ie eel 18

Bryan u. Jones, 519 F.2d 44 (Sth Cir. 1975)....... 13

Cartwright v. Chrysler Corp., 255 La. 598,

rr i a eee tek nes nies 24

Chevron Oil Co. v. Huson, 404 U.S. 97,

r = „„ eae

Conard v. Stitzel, 225 F.Supp. 244 (E. D. Pa.

— ̃ ˙ beenseneéeesekbeeein 13

iv

CITATIONS (Continued)

PAGE NO

Cox u. Stanton, 529 F.2d 47 (4th Cir. 1975) ...... 15

Crawford u. Zeitler, 326 F.2d 119

e ̃ Ü.. ... 14

Dudley v. Textron, Inc., Burkart - Randall

Division, 386 F. Supp. 602 (E. D. Pa. 1975) 19

Duncan v. Nelson, 466 F.2d 939 (7th Cir. 1972) ... 15

Edgerton v. Puckett, 391 F.Supp. 463

,, ͤ ;LK‚L˙²i1¹iwm .. 22 18

Foster v. Breaux, 263 La. 1112, 270 So. 2d

(c. eee 18

Franklin u. City of Marks, 439 F. 2d 665

, ] ’T⁵ßÜ Ä 15

Franks v. Bowman Transportation Co.,

495 F.2d 398 (5th Cir. 1974), reversed and

remanded on other grounds, 424 U.S. 747, 96

D ͥͤ¹r» 5 19

Freeman u. Motor Convoy, Inc., 409 F.Supp.

F 19

Funk v. Cable, 251 F.Supp. 598

Er ee 13

v

CITATIONS (Continued)

PAGE NO.

Garner v. Stephens, 460 F.2d 1144

Z UsbdbeGasceneeccccscecenes 15

Glasscoe v. Howell, 431 F.2d 863

SE RECA GabGhdcbcetecctscednces 15

Gore v. Veith, 156 So. 823 (La. App. 1934)....... 17

Goss v. Lopez, 419 U.S. 565, 95 So.Ct. 729

yyy B AGS chadekecéece 23

Heyn u. Board of Supervisors, 417 F.Supp.

. s ob Sb eSsvedecciets ceces 1

Holmberg v. Armbrecht, 327 U.S. 392,

r ˙ *. 5 . ese 24

Hughes v. Smith, 389 F. 2d 42 (3d Cir. 1968) 13

Jamison v. Olga Coal Co., 335 F. Supp.

SN cbdebctescccccceses 19

Johnson v. Goodyear Tire & Rubber Co.,

Synthetic Rub. N., 491 F.2d 1364

, ccc „„ „ 19

Johnson u Railway Express Agency, Inc.,

421 U.S. 454, 95 S.Ct. 1716 (1975))j ;ỹ1ꝗ// 18,19

Kaiser v. Cahn, 510 F.2d 181

D èꝶÄiöſ . ²˙ b 15

vi

CITATIONS (Continued)

PAGE NO.

Kissinger v. Foti, 544 F.2d 1257

an. . „„ 13

Lazard v. Boeing Co., 322 F.Supp. 343

eee 16

Louisiana Sportservice u. Monsour,

59 So. 2d 499 (La. App. 1952)))) 17

Macklin v. Spector Freight Systems, Inc.,

478 F.24 979 DL. Gir. ... 15,17,18

Mason v. Owens-Illinois, Inc., 517 F.2d 520

rr „„ 15,16

Mills v. Small, 446 F. 2d 249 (9th Cir. 1971) 15

Mixson u Southern Bell Telephone and

Telegraph Co., 334 F.Supp. 525 (N.D. Ga.

h.... „ „%„%„%%„%„%„6„ „„ 19

Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473

...es eee „„ 14

Nevels u. Wilson, 423 F.2d 691

(Sth Cir. 1970) .. cc ccccccccccccccccsccvecs 15

Ortiz v. LaVallee, 442 F.2d 912

. cbecccecdcciccenescccess 15

vii

CITATIONS (Continued)

O Sullivan u Felix, 233 U.S. 318, 34 S.Ct.

/ ⁰wu ; ˙— Ä ·˙ .

Pittman u. Anaconda Wire & Cable Co.,

408 F.Supp. 286 (E. D. N. C. 1976)

Reed u. Hutto, 486 F. 2d 534 (8th Cir. 1973)

Smith v. Cremins, 308 F.2d 187 (9th Cir. 1962)... .

Swan v. Board of Higher Education of City of

New York, 319 F.2d 56 (2d Cir. 1963)

Taliaferro u Dykstra, 388 F. Supp. 957

c .

United Carbon Co. u. Mississippi River Fuel

Corp., 230 La. 709, 89 So. 2d 209 (1956)

United States u Georgia Power Co., 474 F.2d

neee

Van Horn u. Lukhard, 392 F.Supp. 384

Te ee eee

Wakat v. Harlib, 253 F.2d 59 (7th Cir. 1958)

Warren v. Norman Realty Co., 513 F.2d 730

Se ST 004 6h us ncdhoasnesncnane

Waters v. Wisconsin Steel Wks. of Int.

Harvester Co., 427 F.2d 476 (7th Cir. 1970). .

CITATIONS (Continued)

PAGE NO

Watkins v. Scott Paper Co., 530 F.2d 1159

SE ea re 17

White v. Padgett, 475 F.2d 79 (Sth Cir. 1973) 15

Wisconsin v. Constantineau, 400 U.S. 433,

e ̃ͤ 5L—¼ ... 23

NOTES:

Choice of Law Under Section 1983, 37 U. CHI.

L. REV. 494, 503-504 (1970))ʒuy . 12

A Limitation on Actions for Deprivation of

Federal Rights, 68 COLUM. L. REV. 763

% ²ĩ 7% /—!. „... 12

OTHER AUTHORITIES

UNITED STATES CONSTITUTION,

BT ee Ges CN ho oc cc cece cccccens: 4

UNITED STATES CONSTITUTION,

e ˙ A bs bvessus 5

UNITED STATES CONSTITUTION,

AMENDMENT XIV, SECTION 1............. 5

r bees ee 16

, ]⁊ĩxů:d! .. 5,12

LOUISIANA CIVIL CODE, ARTICLE 3536. 6,16

LOUISIANA CIVIL CODE, ARTICLE 35444 6,16

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

NO.

ANTON N. J. HEYN,

Petitioner

BOARD OF SUPERVISORS OF LOUISIANA STATE

UNIVERSITY AND AGRICULTURAL AND MECHANI-

CAL COLLEGE; HOMER L. HITT; GEORGE C.

BRANAM; WILLIAM B. GOOD; and MANUEL L. IBANEZ

Kespondents

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

The petition of Anton N. J. Heyn respectfully prays that

a Writ of Certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the Fifth

Circuit entered in this proceeding on March 31, 1977, a

rehearing of which was denied by the United States Court

of Appeals for the Fifth Circuit on June 6, 1977.

OPINIONS BELOW

The judgment and per curiam opinion of the United

States Court of Appeals for the Fifth Circuit, which is not

reported, appears as Appendix E' hereto.

2

The opinions of the United States District Court for the

Eastern District of Louisiana, reported at 417 F.Supp. 603

(E.D. La. 1976), appear respectively as Appendix B' and

“D” hereto.

JURISDICTION

The judgment of the United States Court of Appeals for

the Fifth Circuit was dated and entered on March 31, 1977.

A Petition for Rehearing En Banc or, Alternatively, for Re-

hearing by Assigned Panel was filed in the United States

Court of Appeals for the Fifth Circuit on April 14, 1977.

The Petition for Rehearing was denied on May 9, 1977. On

May 23, 1977 the United States Court of Appeals for the

Fifth Circuit vacated its May 9, 1977 order denying the

Petition for Rehearing. On June 6, 1977 the United States

Court of Appeals for the Fifth Circuit denied the Petition

for Rehearing.

28 U.S.C. $1254(1) confers jurisdiction on this Court to

review the judgment in question by writ of certiorari.

QUESTIONS FOR REVIEW

This suit was filed pursuant to 42 U.S.C. §1983 as a re-

sult of discriminatory employment practices carried out

against the plaintiff, a college professor, by the defendant

university and certain of its administrators as reprisals for

the plaintiff’s exercise of his constitutional freedom of

speech and to stifle his further exercise of that freedom.

The discriminatory practices spanned a period of several

years and continued even into the plaintiff’s mandatory re-

tirement at the age of 70 in May, 1976. Plaintiff attempted

unsuccessfully to obtain non-judicial relief from the dis-

—

3

criminatory practices through university channels and other-

wise before resorting to the filing of this suit on July 30,

1973. The discrimination continued even after the filing of

this suit.

In 1966 and 1967, certain of the defendant administra-

tors made serious written charges against the plaintiff,

which were false, including accusations of incompetence,

neglect of duty, and forgery, and based upon those charges

recommended to plaintiff's superiors that he be discharged

for cause. Those false written charges were placed in plain-

tiff’s personnel file maintained by the university and were

never made known or disclosed to plaintiff. Plaintiff first

learned of the existence of those false charges during dis-

covery in this suit. Those false charges were known to

university officials and were relied upon by them in denying

plaintiff relief from the discriminatory practices against

him.

The district court dismissed the suit upon the ground that

all actions against the plaintiff prior to July 31, 1972 were

barred by the Louisiana one-year statute of limitations ap-

plicable to tort actions and granted summary judgment up-

on the ground that there were no allegations of actions

taken against plaintiff after July 31, 1972. The district

court denied as moot plaintiff's motion for leave to file an

amended complaint with respect to the false written accusa-

tions against him which were concealed by defendants un-

til unearthed during discovery in this action. The court

of appeals affirmed without oral argument on its summary

calendar in a one word per curiam.

The questions presented for review are:

4

1. What statute of limitations is applicable to this case of

unconstitutional discriminatory employment practices.

2. Whether the Louisiana one-year statute of limitations

can constitutionally be applied to this case under the su-

premacy clause.

3. If the one-year statute is applicable does it begin to

run before the discriminatory practices cease or before the

employment relationship terminates.

4. If the one-year statute is applicable, was it tolled by

plaintiff’s efforts to obtain non-judicial relief and is John-

son v. Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct.

1716 (1975), to apply prospectively only or retroactively

also.

5. Whether plaintiff alleged any discriminatory prac-

tices after July 31, 1972.

6. Whether plaintiff's amended complaint, which alleged

that the false written accusations concealed from him were

reprisals for the exercise of his First Amendment freedom

of speech and denied him due process and equal protection

of the law, was moot.

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

The United States Constitution, Article VI, Clause 2 pro-

vides:

“This Constitution, and the Laws of the United

States which shall be made in Pursuance thereof ;

5

and all Treaties made, or which shall be made,

under the Authority of the United States, shall be

the supreme Law of the Land; and the Judges in

every State shall be bound thereby, any Thing in

the Constitution or Laws of any State to the Con-

trary notwithstanding.”

The United States Constitution, Amendment I, provides

in pertinent part:

Congress shall make no law . . . abridging the

freedom of speech, or of the press.

The United States Constitution, Amendment XIV, Sec-

tion 1 provides in pertinent part:

„ .. nor shall any State deprive any person of

life, liberty or property, without due process of

law; nor deny to any person within its jurisdiction

the equal protection of the laws.”

42 U.S.C. § 1983 provides:

“Every person who, under color of any sta-

tute, ordinance, regulation, custom, or usage, of

any State or Territory, subjects, or causes to be

subjected, any citizen of the United States or

other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immuni-

ties secured by the Constitution and laws, shall be

liable to the party injured in an action at law, suit

in equity, or other proper proceeding for re-

dress.

6

Louisiana Civil Code Article 3536 provides in pertinent

part:

The following actions are also prescribed by one

year:

That for injurious words, whether verbal or

written, and that for damages caused by animals,

or resulting from offenses or quasi offenses.”

Louisiana Civil Code Article 3544 provides:

In general, all personal actions, except those be-

fore enumerated, are prescribed by ten years.

STATEMENT OF CASE

Plaintiff is an errinent biophysicist with an international

reputation among scientists as one of the foremost authori-

ties in the world in his areas of specialization, cytology and

molecular biology. His research is funded by the National

Science Foundation (NSF) and others. Linus Pauling, the

only man who has been awarded two Nobel prizes, has

acclaimed that plaintiff is the world’s leading authority”

in the study of the molecular structure of cellulose. Plain-

tiff’s works are widely published and cited.

Plaintiff commenced employment as a fuli professor of

biology and as Chairman of the Department of Biology at

the University of New Orleans (UNO), which is a state

university, in September 1963. His work has highly praised

by his superiors at UNO and he received an $1,800 raise for

the 1964 school year. In 1964 plaintiff's superior wrote

that it would be a gross waste of talent“ and a “misuse of

7

ability” for plaintiff to teach freshman biology.

Shortly thereafter in late 1964 and early 1965, plaintiff

began to express his opposition to what he considered to be

ruthless personnel practices in the firing of qualified but not

tenured young teachers at UNO. In protest of those person-

nel practices, plaintiff voluntarily resigned as Chairman of

the Biology Department effective June 1, 1965.

During the same period of time there was strong senti-

ment by the UNO administration to separate UNO from the

Louisiana State University system. Plaintiff openly express-

ed his opposition to that movement.

On June 9, 1965, plaintiff wrote a memorandum through

channels to the Vice-Chancellor of UNO, defendant Bran-

am, criticizing the ruthless firing practices which he oppos-

ed. He was severely criticized the next day by Branam for

having so expressed his opinion and Branam has testified in

depositions that it was unwise and “‘ill-advised” for plain-

tiff to express his opinions. Immediately thereafter the re-

tributions began. Plaintiff received no raise for the 1965

school year. In fact, his salary was effectively frozen for 5

years as he received only two raises totalling $550 between

1965 and 1970. Plaintiff made many attempts within the

university system to have his salary adjusted but was un-

successful. He finally obtained a small measure of relief

with regard to his salary through the American Associa-

tion of University Professors (AAUP), which forced UNO to

give Mr. Heyn a raise for the 1970 school year. It was

recognized, however, that plaintiff’s salary has remained

at a level unusually low for a man of his rank and service

and since the retributions began, plaintiff's salary has al-

ways remained far below (as much as $4,600 per year)

8

the average salary of other UNO professors.

The retributions taken by UNO against plaintiff for the

free exercise of his speech took other forms as well, and, in

fact, permeated every aspect of his employment by UNO up

to and even after his retirement in 1976. The reprisals in-

cluded, for example, teaching assignments, sabbatical leave,

travel expenses and many unfounded and abusive accusa-

tions against plaintiff. With regard to teaching assignments,

plaintiff was assigned to teach exclusively freshmen courses

and has been required to teach 50% more freshmen courses

at UNO than any other professor. More than half of the

professors at UNO have never taught any freshmen courses.

Similarly, plaintiff has been required to teach more fresh-

men lab courses than any other professor at UNO while

more than 80% of the professors have not taught any such

courses. In addition, the services of a graduate assistant

were not made available to the plaintiff for his freshmen lab

courses as was customarily done with other faculty mem-

bers required to teach those courses. Plaintiff was assigned

a much greater teaching load than the other professors at

UNO and was not afforded the customary reduction given

to other faculty members who, like plaintiff, were engaged

in funded research programs. UNO refused to allow plain-

tiff to continue to teach the courses in his areas of special-

ization, which he had always previously taught. Plaintiff

was assigned to teach more Saturday morning classes than

any other professor at UNO.

Plaintiff was invited to teach during his sabbatical leave at

the University of Bern in Switzerland as a visiting professor

which was a great honor. Although plaintiff was entitled to

the sabbatical leave under UNO regulations, it was refused

9

to him by UNO without any reason. Plaintiff, unlike other

professors, was not allowed travel expenses for presenting

papers at out-of-state symposia and seminars.

Plaintiff was also repeatedly harrassed by numerous abu-

sive accusations which were completely unfounded. For

example, the then 30 year old defendant Ibanez, who be-

came Chairman of the Biology Department when Dr. Heyn

resigned that position, repeatedly accused plaintiff in writ-

ten memoranda, without even consulting him beforehand,

of “erratic action“, an arrogant attitude, “irresponsibility

and negligence in [his] every-day affairs”, “irresponsible

behavior”, “flagrant violation of university regulations

and other similar characterizations. Plaintiff was compelled

and did establish the falsity of each and every such accusa-

tion but, of course, he received no apology.

In October 1966, plaintiff appealed to the AAUP for re-

lief with regard to being required to teach exclusively fresh-

men courses. The AAUP forced UNO to make adjustments

in that regard, but other UNO reprisals against plaintiff

quickly followed his appeal to the AAUP. In November

1966, defendant Ibanez and defendant Good (Dean of the

College of Sciences) collaborated to fabricate the most

serious charges against Dr. Heyn. A written memorandum

was prepared charging Dr. Heyn with incompetence, neglect

of duty, conduct seriously prejudicial to the university, for-

gery and making false statements to the Selective Service

System. That memorandum, dated November 16, 1966,

recommended plaintiff’s discharge for cause. Defendant

Branam, recognizing the memorandum for what it was, re-

fused to act upon it, but it was nevertheless placed in plain-

tiff’s personnel file. A similar memorandum and recom-

mendation were written one year later and were also placed

10

the Chancellor of UNO with regard to his teaching assign-

ments; in October 1966 he obtained temporary relief with

regard to teaching assignments from the AAUP; in Decem-

ber 1968 and October 1969 plaintiff sought relief without

avail from the Chancellor of UNO with regard to his salary;

in January 1970 plaintiff obtained some relief from the

AAUP with regard to his salary; in June 1970 plaintiff

sought relief without avail from the LSU Board of Super-

visors with regard to his salary; in February 1971 plaintiff

sought relief without avail from the Governor of Louisiana

with regard to his various grievances; in July 1972 plain-

tiff expressed his grievances to the Louisiana Attorney Gen-

eral’s Office which conducted an investigation and which

advised plaintiff in March 1973 that they were without

power to act and recommended that plaintiff seek private

counsel. Plaintiff did so and this lawsuit was filed in July

1973. Jurisdiction of the district court was founded on 28

U.S.C. 81348.

11

After discovery was largely completed a pre-trial confer-

ence was held on October 28, 1975, and a lengthy pre-trial

order submitted by the parties. Plaintiff listed 77 witnesses

in the pre-trial order and submitted several hundred uncon-

tested exhibits to be introduced at the trial. The trial was

scheduled to commence on Monday, December 15, 1975.

On November 12, 1975, defendants filed a motion for

dismissal and, alternatively, for summary judgment. On the

same date plaintiff filed a motion for leave to file an

amended complaint as the pre-trial order stated he would

do. The amended complaint did not raise any new factual

issues, but merely sought to incorporate into the complaint

matters brought out in discovery, particularly with respect

to the two previously concealed memoranda discussed a-

bove and these matters were already included as issues in

the pre-trial order. The motions were argued in the district

court on November 18, 1975, but the district court did not

rule on the motions and the parties prepared for trial. On

the Friday afternoon before the trial was to begin, and

when plaintiff was fully prepared for trial with witnesses

subpoenaed, documents and charts prepared, proposed find-

ings of fact and conclusions of law and a trial brief filed,

etc., the district court advised the parties that the trial was

continued. On March 12, 1976, the district court issued an

order granting defendants’ motions to dismiss and for sum-

mary judgment, discussed above, and dismissed plaintiff's

motion to amend as moot (attached as Appendix ‘‘A”’).

The district court did not issue its reasons until June 7,

1976. Plaintiff's post-hearing motion for a reconsideration

was denied on July 26, 1976 (Appendix D'). Plaintiff

appealed to the Fifth Circuit which placed the case on its

summary calendar, refused oral argument, issued a one-word

decision ‘‘Affirmed,’’ and refused rehearing.

12

REASONS FOR THE ALLOWANCE OF THE WRIT

1. Statute of Limitations

did not e a statute of limitations for

— * 42 ah In O Sullivan u Felix, 233

U.S. 318, 34 S.Ct. 596 (1914), this Court established that

state limitation periods are to be applied in § 1983 actions.

The lower courts have grappled with the problem of the ap-

plicable state statute of limitations with inconsistent and

unsatisfactory results. The status of the law has been des

cribed and criticized by the law review commentators.

Note, Choice of Law Under Section 1983, 37 U. CHI.

L. REV. 494, 503-504 (1970); Note, A Limitation on

Actions for Deprivation of Federal Rights, 68 COLUM. L.

REV. 763 (1968).

There are conflicts between the circuits and even between

different panels within the same circuit as illustrated in this

case. For example, in Warren v. Norman Realty Co., 515

F.2d 730 (8th Cir. 1975), the Eighth Circuit stated:

‘“The federal courts have not reached uniform

results in determining which state statute of

limitations should be applied to various civil

13

case has characterized the federal civil rights

action as similar to a state tort or contract action,

and the appropriate state tort or contract limita-

tions period has been applied to the federal

civil rights suit. See, eg., Johnson v. Dailey,

479 F.2d 86 (8th Cir.), cert. denied, 414 U.S.

1009, 94 S.Ct. 371, 88 L.Ed. 2d 246 (1973);

Savage v. United States, 450 F.2d 449 (8th Cir.

1971), cert. denied, 405 U.S. 1043, 92 S.Ct.

1327, 31 L.Ed. 2d 585 (1972). The court in

another case, however, declined to apply the state

limitations period applicable to a tort or contract

action, stressing that a federal civil rights action

involves more than a tort or breach of contract,

and applied alternatively the state statute of

limitations for statutorily created liabilities or the

limitation for actions not otherwise covered by a

statute of limitations. See Glasscoe v. Howell,

supra. See also Smith v. Cremins, 308 F.2d 187

(9th Cir. 1962); Lazard v. Boeing Co., 322 F.

Supp. 343 (E.D. La. 1971).”

Id. at pp. 733-734.

actions under the federal civil rights statutes.

*

“Conclusions as to which state cause of action

is analogous to a particular type of federal civil

rights action have varied, as evidenced by this

court’s treatment of § 1983 actions. In spme in-

stances the court on the facts of the particular

The approach of the Third Circuit is to apply the state

statute of limitations applicable to the state tort action

which is most analogous to the § 1983 claim. Hughes v.

Smith, 389 F.2d 42 (3d Cir. 1968); Funk v. Cable, 251 F.

Supp. 598 (M.D. Pa. 1966); Conard v. Stitzel, 225 F.Supp.

244 (E.D. Pa. 1963). Indeed, this approach has been

adopted by some panels in the Fifth Circuit. Kissinger v.

Foti, 544 F.2d 1257 (5th Cir. 1977); Bryan u. Jones, 519

F.2d 44 (Sth Cir. 1975). The same approach has also been

adopted by some decisions of the Sixth and Seventh Cir-

14

cuits as well. The Eighth Circuit has stated in Reed v.

Hutto, 486 F.2d 534 (8th Cir. 1975):

“Third Circuit decisions and some decisions in

the Fifth, Sixth, and Seventh Circuits have ap-

plied the statute of limitations of the underlying

tort as in Savage. THIRD CIRCUIT: Howell v.

Cataldi, 464 F.2d 272 (1972); Thomas v. Ho-

ward, 455 F.2d 228 (1972); Orlando v. Baltimore

& Ohio Ry., 455 F.2d 972 (1972); Hileman v.

Knable, 391 F.2d 596 (1968); Hughes v. Smith,

389 F.2d 42 (1968); Henig v. Odorioso, 385 F.

2d 491 (1967), cert. denied, 390 U.S. 1016, 88

S.Ct. 1269, 20 L.Ed. 2d 166 (1968). FIFTH

CIRCUIT: Shank v. Spruill, 406 F.2d 756

(1969); Beard v. Stephens, 372 F.2d 685 (1967).

SIXTH CIRCUIT: Madison v. Wood, 410 F.2d

564 (1969); Mulligan v. Schlachter, 389 F.2d

231 (1968); Mohler v. Miller, 235 F.2d 153

(1956). SEVENTH CIRCUIT: Jones v. Jones,

410 F.2d 365 (1969), cert. denied, 396 U.S.

1013, 90 S.Ct. 547, 24 L.Ed. 2d 505 (1970).”

Id. at p. 537, n. 2.

This approach, however, has been criticized by other cir-

cuit court decisions which recognize, as Justice Harlen did

in his concurring opinion in Monroe v. Pape, 365 U.S.

167, 196, 81 S.Ct. 473, 486 (1961), that a claim for the

denial of constitutional rights is significantly different from

and more serious than a common law tort action. Crawford

v. Zeitler, 326 F.2d 119 (6th Cir. 1964): Smith v. Cremins,

308 F.2d 187 (9th Cir. 1962).

15

Many states, unlike Louisiana, have statutes of limita-

tions specifically applicable to liabilities created by statute.

The Second, Fourth, Eighth, and Ninth Circuits and some

cases in the Fifth and Sixth Circuits have applied those

statutes of limitations to §1983 claims. Kaiser v. Cahn,

510 F.2d 282 (2d Cir. 1974); Ortiz v. LaVallee, 442 F.2d

912 (2d Cir. 1971); Swan v. Board of Higher Education of

City of New York, 319 F.2d 56 (2d Cir. 1963); Cox u.

Stanton, 529 F.2d 47 (4th Cir. 1975); White v. Padgett,

475 F.2d 79 (Sth Cir. 1973); Nevels v. Wilson, 423 F.2d

691 (Sth Cir. 1970); Mason v. Owens-Illinois, Inc., 517 F.2d

520 (6th Cir. 1975); Garner v. Stephens, 460 F.2d 1144

(6th Cir. 1972); Reed v. Hutto, supra; Glasscoe v. Howell,

431 F.2d 863 (8th Cir. 1970); Mills v. Small, 446 F.2d 249

(9th Cir. 1971); Smith v. Cremins, supra. In states, such as

Louisiana, which do not have a specific statute of limita-

tions applicable to actions for liabilities created by statute,

the District of Columbia Circuit, and some cases in tne

Fifth and Seventh Circuits apply the state’s general or

“catch-all” statute of limitations. Macklin u. Spector

Freight Systems,Inc., 478 F.2d 979, 994 (D.C. Cir. 1973);

Boshell v. Alabama Mental Health Board, 473 F.2d 1369

(Sth Cir. 1973); Franklin v. City of Marks, 439 F.2d 665

(Sth Cir. 1971); Duncan v. Nelson, 466 F.2d 939 (7th Cir.

1972); Waters u Wisconsin Steel Wks. of Int I. Harvester

Co., 427 F.2d 476 (7th Cir. 1970); Wakat v. Harlib, 253 F.

2d 59 (7th Cir. 1958).

Conflict in the decisions of the courts of appeals a-

bounds, even within decisions of the same circuit. No

measure of uniformity can be achieved on this very impor-

tant issue without guidance and direction from this Court.

No doubt part of the problem arises from the fact that

the states have diverse statutes of limitations. Louisiana,

16

unlike many states, has not adopted a statute of limitations

specifically applicable to civil rights suits or to actions for

liabilities created by statute. Defendants here contend

that the Louisiana one-year statute applicable to tort ac-

tions (La. C.C. Art. 3536) is applicable whereas plaintiff

contends that the applicable period of limitations is ten

years, as provided in Louisiana’s general or “catch-all’’

statute (La. C.C. Art. 3544). There are no Louisiana state

court decisions on point. The only Louisiana federal court

decisions on point are Boudreaux v. Baton Rouge Marine

Contracting Co., 437 F.2d 1011, 1017 n. 16 (5th Cir.

1971), and Lazard v. Boeing Co., 322 F.Supp. 343 (E.D.

La. 1971). In both Boudreaux and Lazard, claims were pre-

sented for discriminatory employment practices for racial

reasons pursuant to 42 U.S.C. § 1981. In both Boudreaux

and Lazard, the courts held that the applicable period of

limitations is the 10-year period provided in Louisiana

Civil Code Article 3544. The difference between claims

under 8 1981 and those under 81983 is that 8 1981 claims

apply only to racial discrimination, e. g., Agnew v. City of

Compton, 239 F.2d 226 (9th Cir. 1956), cert. denied,

353 U.S. 959, 76 S.Ct. 868. For statute of limitation pur-

poses there is no difference between § 1981 and $1983

claims, Mason v. Owens-Illinois, Inc., supra; Baker v. F & F

Investment, 420 F.2d 1191 (7th Cir. 1970), and the de-

cision in this case is therefore contrary to the decisions in

Boudreaux, supra, and Lazard, supra. The result in this

case is to create a different period of limitations depending

upon whether the victim deprived of civil rights is white or

black. No court has ever said that, but if that is to be the

law, as it is in this case, the Court should be required to

state it.

The decisions in Boudreaux, supra, and Lazard, supra, are

17

consistent with the District of Columbia Circuit’s approach

of applying the general statute of limitations to cases of dis-

criminatory employment practices, Macklin v. Spector

Freight Systems, Inc., supra, and to the Fifth Circuit's

approach to every other discriminatory employment prac-

tices case (except this one) which has come before it.

Watkins v. Scott Paper Co., 530 F.2d 1159 (5th Cir. 1976)

(rejecting the Alabama statutes of limitations applicable to

torts and applying Alabama’s general statute of limitations,

Code of Alabama Title 7, Section 26); United States v.

Georgia Power Co., 474 F.2d 906, 924 (5th Cir. 1973)

(stating at p. 924 civil rights statutes have generally been

held governed by the limitations on liabilities created by

statutes.). Since the Fifth Circuit did not deem it appro-

priate to issue an opinion in this case, it is impossible to

determine on what basis the Fifth Circuit decided to deviate

from the rule in the Fifth Circuit in this case. Further, if

the Fifth Circuit has decided to change the rule as to the

applicable statute of limitations, which it did in this case,

the rule should be applied prospectively only under Chevron

Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349 (1971), which

would preclude its application to this case.

Other reasons mandate the application of the ten-year

statute to this case. Plaintiff’s claims are founded in part,

as recognized by the district court, on defendants’ violation

of plaintiff’s contractual tenure rights. In Louisiana, actions

for contractual violations are governed by the 10-year

period provided in Civil Code Article 3544. Louisiana

Sportservice v. Monsour, 59 So.2d 499 (La. App. 1952);

Gore v. Veith, 156 So. 823 (La. App. 1934). Further, the

Louisiana law is settled that its statutes of limitations are to

be strictly construed and, if there are two possibly appli-

cable statutes, the one which will permit the action will be

18

adopted over the one which would bar the action. Foster

v. Breaux, 263 La. 1112, 270 So.2d 526 (1972); United

Carbon Co. v. Mississippi River Fuel Corp., 230 La. 709,

89 So.2d 209 (1956).

Plaintiff also contends that the one-year statute cannot

constitutionally be applied in this case. In Johnson v. Rail-

way Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716

(1975), this Court noted at footnote 7 that the limited

grant of certiorari in that case precluded this Court from

considering whether a one-year statute of limitations in

Tennessee could be constitutionally applied to a civil rights

action. That issue is here presented to the Court. The Vir-

ginia federal courts have repeatedly held that the one-year

Virginia statute of limitations cannot constitutionally be

applied to § 1983 cases, as it would be violative of the

supremacy clause (Article VI of the United States Constitu-

tion.) Van Horn v. Lukhard, 392 F.Supp. 384 (E.D. Va.

1975); Brown v. Blake & Bane, Inc., 409 F.Supp. 1246

(E.D. Va. 1976); Edgerton v. Puckett, 391 F.Supp. 463

(W.D. Va. 1975). The imposition of a one-year statute of

limitation unduly burdens the vindication of constitu-

tionally protected rights and defeats the congressional pur-

pose in enacting the statute.

Even if the one-year statute is applicable, this suit is still

not barred by it because under decisions of the District of

Columbia Circuit and the Fifth Circuit, as well as other dis-

trict courts, the statute of limitations does not begin to run

in cases involving discriminatory employment practices ofa

continuous nature until the employment relationship ceases

or until the discriminatory practices have ended. Macklin

v. Spector Freight Systems, Inc., supra; United States v.

19

Georgia Power Company, supra; Dudley v. Textron, Inc.

Burkart-Randall Division, 386 F.Supp. 602 (E.D. Pa. 1975);

Jamison v. Olga Coal Co., 335 F.Supp. 454 (S.D.W.Va.

1971); Mixson u Southern Bell Telephone and Telegraph

Co., 334 F.Supp. 525 (N.D. Ga. 1971). As will be pointed

out below, the discriminatory practices in this case continu-

ed up to the time of plaintiff's retirement in May 1976 and

even thereafter. The decision in this case, therefore, repre-

sents an extreme departure from existing jurisprudence.

At issue here also is whether this Court’s decision in

Johnson v. Railway Express Agency, Inc., supra, which held

that non-judicial efforts to obtain relief from discriminatory

employment practices did not toll the statute of limita-

tions in a $1981 suit, is to be applied retroactively or pros-

pectively only. Prior to the Johnson decision, the Fifth

Circuit, as other courts, recognized the doctrine of tolling in

civil rights suits. Franks v. Bowman Transportation Co.

495 F.2d 398 (5th Cir. 1974), reversed and remanded 2

other grounds 424 U.S. 747, 96 S.Ct. 1251 (1976); Johnson

v. Goodyear Tire & Rubber Co., Synthetic Rub. H., 491 F.

2d 1364 (5th Cir. 1974); Boudreaux v. Baton Rouge Marine

Contracting Co., supra; Taliaferro u. Dykstra, 388 F.Supp.

957 (E.D. Va. 1975). Some lower courts have held that

Johnson will not be applied retroactively but rather will be

applied prospectively only. Pittman v. Anaconda Wire &

Cable Co., 408 F.Supp. 286 (E.D.N.C. 1976), and cases

cited therein; Freeman v. Motor Convoy, Inc., 409 F.Supp.

1100, 1114 (N.D. Ga. 1976). Under the principles estab-

lished by this Court in Chevron Oil Co., v. Huson, supra,

Johnson should not be applied retroactively to this case

and yet it apparently was by the courts below.

20

If the one-year statute is applicable and if Johnson is not

to be applied retroactively, the issue presented, an impor-

tant one, is whether plaintiff's non-mandatory non-judicial

efforts to obtain relief from the discriminatory employment

practices tolled the statute of limitations. The plaintiff here

filed suit only after first exhausting all other possible aven-

ues of relief within the system. His restraint from suing

should be commended by fasioning an appropriate doctrine

of tolling and not penalized when so many people in our

society rush to the courthouse upon the slightest provoca-

tion. Not only is the rule of the district court in this case,

which was apparently approved of by the Court of Appeals,

unworkable, but it is also burdensome to the courts and to

society. The rule is unworkable because in many instances

of discriminatory employment practices the victim cannot

even be certain he has been victimized unless and until the

discriminatory practices persist over a period of time.

Further, the rule is burdensome in that it would require per-

sons who suspect they have been victimized to file suit im-

mediately within one year whenever their suspicions are

aroused. This would culminate in litigation over many mat-

ters which can and should be adjusted amicably between the

parties and should never be in court. Dr. Heyn attempted

to do this, going all the way up to the Attorney General and

Governor of the State of Louisiana to obtain relief without

litigation. The penalty imposed upon him by the courts be-

low for his efforts should not be tolerated. The purpose of

the statute of limitations, repose of stale claims, if the one-

year statute is to be applied in this case, will in no way be

disturbed because the defendants were well aware of plain-

tiff’s claims and grievances through his repeated protests to

them and others about the very abusive treatment he was

receiving as a result of his courage in voicing his opinions

of the university’s personnel practices.

—— ——

21

2. Summary Judgment

It is absolutely impossible to justify the summary judg-

ment granted by the district court and affirmed by the

court of appeals. It was granted by the trial court because

“there exists no allegation of wrongdoing on the part of

defendants on or after July 31, 1972, and that all of the

alleged violations of plaintiff's civil rights occurred well be-

fore July 31, 1972.” The district court simply ignored all

of the discriminatory employment practices which occurred

after July 31, 1972:

(a) Defendants continued to pay plaintiff a salary sub-

stantially less than the average salary paid to other full

professors;

(b) Plaintiff was assigned to teach five freshmen courses

in the fall of 1972, four in the fall of 1973, and one in the

fall of 1974;

(c) Plaintiff was assigned to teach three freshmen lab

courses in the fall of 1973, and did not receive the custom-

ary assistance of graduate assistants provided to other pro-

fessors;

(d) Plaintiff was not allowed to teach his course of

specialization, cytology, in 1972, 1973, 1974, 1975, or

1976;

(e) Plaintiff continued to be discriminated against even

through 1975 in chat he was not reimbursed for his travel

expenses for giving lectures or presenting papers as other

faculty members were:

22

(f) Defendants kept the existence of the malicious, false

and defamatory documents about plaintiff in his person-

nel file without his knowledge or opportunity to be heard

and they are still maintained in his file today;

(g) Plaintiff never even discovered the existence of

those false and defamatory documents until 1975;

(h) Other abusive accusations made by defendants

against plaintiff and proven by plaintiff to be false are

still maintained in his personnel files;

(i) Plaintiff's retirement benefits are lower today than

they should be because of the prior retributions with re-

gard to his salary;

(j) Defendants have discriminatorily refused to allow

plaintiff during his retirement to use university facilities

to continue his research even though all other emeritus

professors who desire are allowed to do so.

These facts were before the district court and were at

issue at the time of the decision below. The district court

did not hold that there was no issue of fact, but rather that

there were no allegations of wrongdoing after July 31,

1972. The district court’s decision was totally and squarely

wrong and completely unsupported by the record in this

respect as was the Fifth Circuit's affirmance. The only ex-

planation for the district court’s decision is the trial judge’s

opinion as to the merits of the case which was formed with-

out hearing any evidence. The trial judge expressed to

counsel in conference that he thought that plaintiff's

“problems” were simply the result of a “personality con-

23

flict.” (Plaintiff thereafter moved for a trial by jury which

was denied.) That is a completely improper basis upon

which to grant summary judgment.

Even if the application of the one-year statute of limita-

tions was correct, the grant of summary judgment was

totally inappropriate and a completely unprecendented de-

parture from established law with regard to the claims of

discriminatory treatment after July 31, 1972, and requires

the exercise of this Court’s power of supervision.

3. Amended Complaint

In Wisconsin u. Constantineau, 400 U.S. 433, 437, 91 8.

Ct. 507, 510 (1971), this Court stated:

“Where a person’s good name, reputation,

honor, or integrity is at stake because of what the

government is doing to him, notice and an oppor-

tunity to be he d are essential.

Again, in Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729 (1975),

this Court recognized that the liberty interest in reputation

is to be afforded constitutional protection and that school

administrators cannot make charges which may damage

one’s reputation without affording due process safeguards.

The false and malicious written accusations against the

plaintiff, which were placed in his personnel file in 1966

and in 1967 and which were concealed from him but which

were relied upon for sanctioning the conduct taken against

him, were made the basis for the amended complaint when

they were discovered during discovery in this action in

24

1975. Those accusations were part of the reprisals taken

against plaintiff for the exercise of his freedom of speech

and they also deprived plaintiff of due process of law as

they were used to justify actions against him without his

ever being afforded even notice of the charges, much less

the opportunity to be heard. This, therefore, presents a

classic case of due process violations. Yet the trial court,

without discussion, dismissed plaintiff's motion for leave to

file the amended complaint as moot. There is nothing what-

soever that was moot about those claims.

The district court dismissed those claims as moot when

they were not and their dismissal cannot be justified even if

the Louisiana one-year tort statute of limitations is appli-

cable. The rule is well established in Louisiana that the

statute does not even begin to run with respect to defama-

tory statements which are concealed from the plaintiff

until after he learns about them. Cartwright v. Chrysler

Corp., 255 La. 598, 232 So.2d 285 (1970); Bernstein v.

Commercial National Bank, 161 La. 38, 108 So. 117

(1926). See also Holmberg v. Armbrecht, 327 U.S. 392, 66

S.Ct. 582 (1946).

There was simply gross error of constitutional dimen-

sions by the courts below in denying plaintiff the oppor-

tunity to vindicate his constitutional rights with respect to

the matters claimed in the amended complaint.

CONCLUSION

The issues involved here are serious and important

enough in the administration of civil rights claims to justify

this Court’s consideration of this case. Further, irreconcil-

able conflicts exist among the circuits and even in cases

4

25

wit hin the same circuit as to the applicable statute of limi-

tations. The conflict can be resolved only by the interven-

tion and direction of this Court. Moreover, with respect to

the granting of summary judgment and denying the amend-

ed complaint, the lower courts in this case have departed so

far from established and accepted judicial proceedings that

the exercise of this Court's power of supervision is entirely

warranted.

Transcending these considerations is the fact that justice

requires that Anton Heyn be allowed his day in court to vin-

dicate the deprivation of his constitutional rights. This

Court offers the very last opportunity for him to do that.

The Court has before it in his case a distinguished and dedi-

cated teacher who had the courage, when no one else did,

to criticize what he considered to be the ruthless firing

practices of the university. For having that courage and

exercising his constitutional right, he fell from the graces of

the demi-gods at the university and suffered the severest

persecution. In addition to being denied the salary and

other remuneration which he should have received, he was

villified and abused in every way possible. The most repre-

hensible action taken against him was the vicious maligning

of his good name and reputation which was done in secret

conspiracy behind his back withou is knowledge and with-

out affording him any opportunity to refute the false accu-

sations. He sought relief in every way possible through the

system and even obtained a meager measure of relief. It

was only after he had exhausted his non-judicial avenues

that he sought relief in court, but the door to the court has

been slammed in his face and locked tightly. This is a

classic free speech and due process case but plaintiff has

been told, unlike others, that he waited too long, even

25

though the persecution continued. This Court must inter-

vene to avoid the mockery of justice which has occurred in

this case.

Respectfully submitted,

ROBERT EDWARD BARKLEY, JR.

SESSIONS, FISHMAN, ROSENSON,

SNELLINGS & BOISFONTAINE

2100 Bank of New Orleans Building

1010 Common Street

New Orleans, Louisiana 70112

Telephone: (504) 581-5055

COUNSEL FOR PETITIONER

September 1, 1977.

27

PROOF OF SERVICE

I, ROBERT EDWARD BARKLEY, JR., Attorney for

Petitioner and a member of the Bar of the Supreme Court

of the United States, hereby certify that, on the lat day of

September, 1977, I served three (3) copies of the Petition

for a Writ of Certiorari in the above-captioned case on Res-

pondents, Board of Supervisors of Louisiana State Universi-

ty and Agricultural and Mechanical College; Homer L. Hitt:

George C. Branam; William B. Good; and Manuel L. Ibanez,

by depositing such three copies in the United States Postal

Service, first class postage ‘prepaid, in a sealed envelope ad-

dressed to Counsel for Respondents: Rutledge C. Clement,

Phelps, Dunbar, Marks, Claverie & Sims, Hibernia Bank

Building, New Orleans, Louisiana 701 12.

It is further certified that all parties required to be served

have been served.

This is the Ist day of September, 1977, at New Orleans,

Louisiana.

ROBERT EDWARD BARKLEY, JR.

SESSIONS, FISHMAN, ROSENSON,

SNELLINGS & BOISFONTAINE

2100 Bank of New Orleans Building

1010 Common Street

New Orleans, Louisiana 70112

Telephone: (504) 581-5055

COUNSEL FOR PETITIONER

A-1

APPENDIX A - Order of the United States District Court

for the Eastern District of Louisiana

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

FILED: March 12, 1976

ANTON N. J. HEYN CIVIL ACTION

VERSUS NO. 73-2027

BOARD OF SUPERVISORS OF SECTION “H”

LOUISIANA STATE

UNIVERSITY ET ALS

ORDER

The plaintiff in the present case has brought actions

under 42 U.S.C. § 1983 and $1985(3), alleging discrimina-

tion, harassment, abuse, intimidation, reprisals, and system-

atic professional indignities on the part of the defendants

against plaintiff, allegedly as a result of the plaintiff's exer-

cising his constitutionally protected right of freedom of

speech.

I. MOTION TO DISMISS

The defendants have filed a motion to dismiss both the

§ 1983 claim, in regard to all aspects of the suit previous to

July 31, 1972, and the§ 1975(3) [sic] claim.

For reasons which will follow the motion of defendants

to dismiss the plaintiff's 5 1983 claim, in regard to all

A-2

aspects of the suit previous to July 31, 1972 and the plain-

tiff's 8 1985(3) claim is hereby GRANTED.

II. MOTION FOR SUMMARY JUDGMENT

The defendants’ motion for summary judgment in re-

gard to all aspects of the plaintiff's claim under § 1983,

beginning July 31, 1972 and ending July 31, 1973, is here-

by GRANTED. Reasons will follow.

III. MOTION FOR LEAVE TO FILE AMENDED

COMPLAINT AND MOTION FOR TRIAL BY

JURY

In light of the above rulings, the motion for leave to file

amended complaint and the motion for trial by jury are

DISMISSED AS MOOT.

New Orleans, Louisiana, this 11th day of March, 1976.

s/ R. Blake West

United States District Judge

A-3

APPENDIX B - Memorandum and Order of the United

States District Court for the Eastern District of Louisiana

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

FILED: June 7, 1976

ANTON N. J. HEYN CIVIL ACTION

VERSUS NO. 73-2027

BOARD OF SUPERVISORS OF SECTION H“

LOUISIANA STATE UNIVERSITY

ET ALS.

MEMORANDUM AND ORDER

In this matter, the plaintiff, a professor of biology at the

University of New Orleans, brought suit based upon 42

U.S.C. §1983 and 1985(3).

On March 11, 1976, the Court issued a judgment grant-

ing defendants’ motions to dismiss and for summary judg-

ment. The motions were granted for the following reasons:

I. $1983 Cause of Action

Because the defendants brought both a motion to dismiss

and a motion for summary judgment as to the plaintiff's

§ 1983 claim, it is necessary to discuss each motion separ-

ately.

A-4

A. Motion to dismiss § 1983 claim

The defendants sought to dismiss all claims alleged to

have occurred prior to July 31, 1972 on the ground that

such claims had prescribed. Because § 1983 makes no pro-

vision for a limitation period, the Court must apply the

statute of limitations which governs the most analogous

claim under appropriate state law. Scott v. Vandiver,

476 F.2d 238 (C. 4, 1973); Waters v. Wisconsin Steel Works

of International Harvester, 427 F.2d 476 (C. 7, 1970);

Smith v. Olincraft, 404 F.Supp. 861 (W.D. La., 1975).

Plaintiff argues that there is no analogous statute under

state law, and therefore the general statute of limitation of

ten years, provided by Louisiana Civil Code Article 3544

(1870), is applicable.

Defendants, on the other hand, contend that plaintiff's

action sounds in tort and that the one-year prescriptive

period of Civil Code Articles 2315 and 3536 (1870) applies.

The fact that §1983 should be read against the back-

ground of tort liability” has been recently restated by the

Fifth Circuit in Bryan v. Jones, 519 F.2d 44, 45 (C. 5,

1975), and is well established law. Pierson v. Ray, 386

U.S. 547, 87 S.Ct. 1213, 18 L.Ed. 2d 288 (1967); Monroe

v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed. 2d 492 (1961).

A careful review of the facts in the present case, as sum-

marized by plaintiff in Paragraph 8, page 4, of the final pre-

trial order, makes it clear that plaintiff sought damages

1. “(8) immediately following, and as a result of, the above exercises

of plaintiff's constitutionally protected freedom of speech, plaintiff

began to experience harrassment, intimidation, abuse, oppression, sys-

tematic professional indignities, reprisals, invidious discrimination,

A-5

for violation of his civil rights. Plaintiff did not file a claim

under § 1981, which is the section of the Civil Rights Act

which affords protection of contractual rights. Plaintiff's

claim sounds in tort, and his contention that his civil rights

were violated by a breach of any contractual rights is with-

out merit.

Plaintiff’s First Amendment rights are in n> way depen-

dent upon the existence of any rights he may possess as a

result of breach of his contractual relationship with the de-

fendants. This simple distinction was drawn in Holden v.

Boston Housing Authority, 400 F.Supp. 399 (D. Mass.,

1975), wherein the Court held:

“If the plaintiff seeks to enforce rights under

the First Amendment against deprivations by

state officials, he would have that claim regard-

less of his contractual relationship with those

officials or the agency for which they work.”

Id. at 402.

The fact that a contractual relationship existed between

plaintiff and defendants is only incidental; the alleged vio-

lation of plaintiff's civil rights is no more or less serious be-

cause of it. The alleged wrongful acts occurred and the

(Footnote 1 continued from previous page)

aware actions taken against plaintiff and in num-

—— —— 8 conduct and in all instances acquiesced

therein and condoned same. The defendant Board of Supervisors was

also aware of many of the actions taken against plaintiff but did noth-

ing to correct them.

A-6

alleged injurious words were spoken before July 31, 19722

Furthermore, plaintiff’s claim that he is entitled to back

pay, asserted under the Civil Rights Act, sounds in tort, not

in contract. Watkins v. Scott Paper Co., F.2d. (C.5,

1976).

For the foregoing reasons, the Court concluded that the

elements of plaintiff’s claim which was based on events

which occurred prior to one year before this suit was filed

were barred by the one year statute of limitations of Ar-

ticles 2315 and 3536. Accordingly, all aspects of the suit

dealing with events which occurred prior to July 31, 1972

were dismissed with prejudice.

B. Motion for Summary Judgment

Defendants’ motion to dismiss the cause of action under

$1983 for claims which accrued prior to July 31, 1972

having been granted, the only remaining §1983 claim the

plaintiff has is for events which allegedly occurred during

the period beginning July 31, 1972, and ending July 31,

1973. A thorough review of the record reveals that, as de-

fendants contend, there exists no allegation of wrong-doing

on the part of defendants on or after July 31, 19728 and

that all of the alleged violations of plaintiff's civil rights

occurred well before July 31, 1972. The fact that actions on

the part of defendants (ie., the wrongful denial of pro-

motion) were allegedly still causing plaintiff injury after

July 31, 1972 is not relevant to a determination of the date

2. See plaintiff's deposition of April 25, 1975, particularly pgs. 19,

21, 23, 26, 37, 62, 73, 87, 114, 121, and 133.

3. See (1) plaintiff’s original complaint, (2) plaintiff's note of evi-

dence, and (3) the final pre-trial order.

A-7

on which the one-year limitation period began to run. Pre-

scription began to run from the date the alleged act which

caused the alleged injury took place. Plaintiff himself ad-

mits that he had been planning to bring this suit for over 10

years.* Indeed, if it were otherwise, once injured, a plain-

tiff’s suit would never prescribe.

Hence, in the absence of any genuine issue as to any

material fact, the defendants’ motion for summary judg-

ment was granted in regard to any remaining claims the

plaintiff asserted under § 1983.

Il. § 1985 (3) Cause of Action

Plaintiff has asserted a claim under 42 U.S.C. 8 1985

(3), which was enacted by Congress in 1871 as the enforce-

ment vehicle for the 13th Amendment. The original in-

tent of the Congress in passing the Act, then commonly

known as the Ku Klux Klan Act, was to provide to black

persons equal protection of the laws of the United States

and to rectify pre-existing moral and physical inhumanities.

The legislative intent is clearly evident from the terms of the

statute itself, which states:

“If two or more persons in any State or Territory

conspire or go in disguise on the highway or on

A-8

under the laws; or for the purpose of preventing

or hindering the constituted authorities of any

State or Territory from giving or securing to all

persons within such State or Territory the equal

protection of the laws; or if two or more persons

conspire to prevent by force, intimidation, or

threat, any citizen who is lawfully entitled to

vote, from giving his support or advocacy in a

legal manner, toward or in favor of the election of

any lawfully qualified person as an elector for

President or Vice President, or as a Member of

Congress of the United States, or to injure any

citizen in person or property on account of such

support or advocacy; in any case of conspiracy

set forth in this section, if one or more persons

engaged therein do, or cause to be done, any act

in furtherance of the object of such conspiracy,

whereby another is injured in his person or pro-

perty, or deprived of having and exercising any

right or privilege of a citizen of the United States,

the party so injured or deprived may have an

action for the recovery of damages, occasioned by

such injury or deprivation, against any one or

more of the conspirators.”

the premises of another, for the purpose of de-

priving, either directly or indirectly, any per-

son or class of persons of the equal protection of

The United States Supreme Court in Griffin v. Brecken-

ridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed. 2d 338 (1971),

formulated four elements necessary to establish a cause of

action under § 1985(3). These elements are:

the laws, or of equal privileges and immunities

4. See p. 88, plaintiff's deposition of April 25, 2975, wherein plain-

tiff, when questioned about bringing suit, stated:

“| have waited a long time, ten years, to decide

to do it, when all the channels were exhausted.

1. Aconspiracy by the defendants,

2. With a purpose of depriving the plaintiff of

equal protection of the law or equal privileges

A-9

or immunities under the law,

3. A purposeful intent to discriminate, i.e., there

must be some racial or perhaps otherwise

class based invidiously discriminatory animus

behind the conspirators’ action, and

4. Injury to the person or property of the plain-

tiff or his deprivation of a right or privilege

as a citizen of the United States resulting from

actions in the furtherance of the conspiracy.

See also, Jacobson v. Industrial Foundation of the Permian

Basin, 456 F.2d 258 (C.5, 1972); Kletsunka v. Driver, 411

F.2d 436, 447 (C.2, 1969).

Plaintiff asserts that he is a member of a class of univer-

sity professors who were discriminated against in the ex-

ercise of their First Amendment privileges, and, therefore,

that 8 1985(3) should apply. The Court does not agree.

The mere allegation that Professor Heyn was discriminated

against does not of itself make § 1985(3) applicable. The

courts have consistently ‘“[r]ejected complaints containing

mere conclusory allegations of deprivations of constitution-

al rights protected under 8 1985(3). A conspiracy claim

based upon § 1985(3) requires a clear showing of invidious,

purposeful and intentional discrimination. Robinson

v. McCorkle, 462 F.2d 111, 113 (C. 3, 1972); see also Byrd

v. Local Union #24, IBEW, 375 F.Supp. 545, 552 (D. Md.,

1974). Furthermore, the requisite invidiously discrimina-

tory intent must be shown to be class-based. O Neill v.

Grayson County War Memorial Hospital, 472 F.2d 140,

(C.6, 1973).

eee 2 — ˙² —— AO ANE Pee

A-10

As the Fifth Circuit succinctly stated in Westberry v.

Ginan Paper Company, 507 F.2d 206, 210 (C.5, 1975;

reh. en banc granted, March 18,1975); opinion withdrawn,

May 23, 1975 (based on mootness):

“Plaintiff's 1985(3) action cannot be sustained

under the Griffin Court’s Thirteenth Amendment

rationale. The aim of the amendment is to pro-

vide protection for racial groups which have

historically been oppressed, Jones v. Mayer, 1968,

392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189

or those chafing under the hands of involuntary

servitude. Clyatt v. United States, 1905, 197 U.S.

207, 25 S.Ct. 429, 49 L.Ed. 726. Haintiff is

neither in a racially oppressed group nor serving

involuntarily.’’

See also Dombrowski v. Dowling, 459 F.2d 190, 196 (C.7,

1972); Jones v. Bales, 58 F.R.D. 453, 457-58 (N.D. Ga.,

1972), aff'd 480 F.2d 805 (C.5, 1973); Furumoto u Ly-

man, 362 F Supp. 1267 (N.D.Cal., 1973).

The Civil Rights Act of 1871 was not designed to furnish

relief for every injury.® As stated, plaintiff has failed to

demonstrate the class-based animus necessary to maintain

this action. Additionally, plaintiff has failed to establish

a class which is a proper recipient of the protections con-

ferred by 42 U.S.C. § 1985. He is neither a member of a

racially oppressed group, nor is he a member of a group

serving involuntarily. For this reason, the plaintiff has

failed to state a claim under 42 U.S.C. § 1985 (3).

5. There can be no doubt that personal dislike is a strong factor in

—

1985 (03).

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III. JUDGMENT

Therefore, IT IS HEREBY ORDERED that judgment be

entered accordingly.

New Orleans, Louisiana, this 4th day of June, 1976.

s/ R. Blake West

UNITED STATES DISTRICT

JUDGE

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APPENDIX C - Judgment of the United States District

Court for the Eastern District of Louisiana

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

FILED: June 16, 1976

ANTON N. J. HEYN, CIVIL ACTION

Plaintiff

VERSUS NO. 73-2027

BOARD OF SUPERVISORS OF SECTION “H”

LOUISIANA STATE UNIVERSITY

AND AGRICULTURAL AND MECHANICAL

COLLEGE, HOMER L. HITT, GEORGE C.

BRANAM, WILLIAM B. GOOD, and MANUEL

L. IBANEZ,

Defendants

JUDGMENT

On Motions of defendants, Board of Supervisors of

Louisiana State University and Agricultural and Mechanical

College, Homer L. Hitt, George C. Branam, William B.

Good, and Manuel L.Ibanez, to dismiss and, alternatively,

for summary judgment,

IT IS ORDERED, ADJUDGED AND DECREED that

there be Judgment herein in favor of defendants, Board of

Supervisors of Louisiana State University and Agricultural

and Mechanical College, Homer L. Hitt, George C. Branam,

William B. Good, and Manuel L. Ibanez, and against plain-

tiff, Anton N. J. Heyn, dismissing with prejudice plain-

A-13

tiff’s action on the merits, each party to bear their own

costs.

New Orleans, Louisiana, this 16th day of June, 1976.

s/ Nelson B. Jones

CLERK OF COURT

APPROVED AS TO FORM:

S/ R. Blake West

UNITED STATES DISTRICT JUDGE

Date of Entry June 16, 1976

ĩVA— 0 —_éz/,£,

A-14

APPENDIX D - Memorandum and Order of the United

States District Court for the Eastern District of

Louisiana

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

FILED: July 27, 1976

ANTON N. J. HEYN CIVIL ACTION

VERSUS NO. 73-2027

BOARD OF SUPERVISORS OF SECTION H“

LOUISIANA STATE UNIVERSITY

ET ALS

MEMORANDUM AND ORDER

Plaintiff filed suit in July, 1973, alleging certain viola

tions by Defendants of his civil rights under Title 42 United

States Code Sections 1983 and 1985(3). Defendants filed

motions to dismiss and for summary judgment, which mo-

tions were argued, taken under advisement, and finally

granted. On June, 1976 a judgment dismissing Plaintiff's

action was entered. Subsequently, Plaintiff filed a motion

to reconsider, alter, amend, vacate, and satisfy judgment.

This motion was argued July 7, 1976 and taken under

advisement.

After having carefully reviewed the extensive memoranda

submitted by the parties, it is the opinion of the Court that,

for the following reasons, the motions should be denied.

A-15

Plaintiff's motion challenges the granting of Defendants’

motion for summary judgment, and the granting of the

motion to dismiss the Section 1983 claim. Plaintiff does

not attack the dismissal of his Section 1985(3) claim.

Plaintiff's underlying contentions are two-fold. First,

Plaintiff argues that the so-called catch all” statute of

limitations should be applied, as opposed to the statute of

limitations Louisiana courts have applied to delictual claimc;

secondly, Plaintiff argues that, if his claim does indeed

sound in tort, the actions taken by Defendants span a

period of ter years, and because Defendants have persisted

in their course of wrongful action during that time and to

the present? , the “tort” is continuous in nature and there-

fore the cause of action has not prescribed. However,

Plaintiff has cited no authority supportive of his conten-

tions which was not previously argued to the Court on the

motions to dismiss and for summary judgment. Recent

decisions by the United States Supreme Courts and the

United States Court of Appeals for the Fifth Circuit“ lend

further support to the Court’s position. The motion for a

new trial is, therefore, DENIED.

New Orleans, Louisiana, this 26th day of July, 1976.

s/ R. Blake West

UNITED STATES DISTRICT

JUDGE

1. La. Civil Code Art. 3356.

2. Although it is doubtful whether actions of the defendants which

took place subsequent to the filing of this suit are relevant, the ques-

tion is mooted by the Court's decision.

3. imbler v Pachtman, 44 U.S. L. W. 4250; Bishop v. Wood, 44 U.S. L.

W. 4820.

4. Watkins v. Scott Paper Company, 530 F.2d 1159 (C. 5, 1976).

—ͤ—ñ——ä— — ʒDJ— eon

f

WWW

A-16

APPENDIX E - Opinion of the United States Court of

Appeals for the Fifth Circuit affirming the decisions of the

United States District Court for the Eastern District of

Louisiana

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 76 - 3488

Summary Calendar*

ANTON N. J. HEYN,

Plaintiff-Appellant

versus

BOARD OF SUPERVISORS OF LOUISIANA STATE

UNIVERSITY AND AGRICULTURAL AND MECHANI-

CAL COLLEGE; HOMER L. HITT; GEORGE C.

BRANAM; WILLIAM B. GOOD; and MANUEL L. IBANEZ

Defendants- Appellants

Appeal from the United States District Court for the

Eastern District of Louisiana

(March 31, 1977)

BEFORE GOLDBERG, CLARK and FAY, Circuit Judges.

PER CURIAM: AFFIRMED. See Local Rule 21.1

*Rule 18, 5 Cir., see isbell Enterprises, Inc. v. Citizens Casualty Co.

of New York, et al., 5 Cir. 1970, 431 F.2d 409 Part |.

1. See N. L. R. B. . Amalgamated Clothing Workers of America, 5

Cir. 1970, 430 F.2d 966.