Appendix — Skehan v. Board of Trustees of Bloomsburg State College
Supreme Court brief1979
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APPENDIX
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IN THE
Supreme Court of the United States
October Term, 1978
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DR. JOSEPH T. SKEHAN,
Petitioner,
Vv.
BOARD OF TRUSTEES OF BLOOMSBURG STATE
COLLEGE, DR. ROBERT NOSSEN, DR. CHARLES
CARLSON, JOHN PITTENGER, Superintendent
of Education, Commonwealth of Pennsylvania, and
BLOOMSBURG STATE COLLEGE,
Respondents.
On Writ or CrertiorarR! TO THE Unrtrep States Court or
APPEALS For THE THIRD CIRCUIT AT
Nos. 77-2311 anp 77-2312.
APPENDIX TO PETITION FOR A
WRIT OF CERTIORARI
CLETUS P. LYMAN
RICHARD A. ASH
Attorneys for Petitioner
Lyman &AsH
1612 Latimer St.
Philadelphia, PA 19103
(215) 732-7040
—
oo
INDEX.
Page
Opinion of the Third Circuit Court of Appeals ...... l
ES RE ES ae 52
Order Enlarging Time to File Petition for Rehearing . 53
COPGOr Demyimes CMS WEONGAE... 2... cee 54
Order Further Staying the Mandate................. 54
Sur Petition for Rehearing—Third Circuit Court of Ap-
Ee ee RAS REA Ae 4 ak p40 ¥:0e 6059 se seces 55
Deny Stay Order Dated November 30, 1977—Third Cir-
ccc vee entcawsevewecss 56
Deny Stay Order Dated November 4, 1977—Third Cir-
ee I PN vs ses cbeveesvevcucens 58
Deny Stay Order Dated December 8, 1977—Third Cir-
EEE ee eee 60
8/2/77—Order—Deny New Trial w/o Prejudice....... 63
8/10/T7—Order Deny Pro Se... ... ccc cccc cc cceces 65
8/22/77—Order/Deny Withdrawal ................... 67
8/22/77—Order No. 2 Deny New Trial/Pro Se........ 69
8/31/77—Order—Grant Withdrawal ................. 71
9/12/77—Order Grant Pro Se ............ 00. cece eee 73
9/22/77—Order—Deny New Trial ................... 75
ak cass hae dee be sscc'eees 78
EEE TSU E Wack be ac earccvenrccvedsecees 99
5/18/77—Opinion (Se) Liability ..................... 101
ea ay h ages sh Vee ese cs cesenssces 127
I OS ee 128
3/24/77—Opinion/Order/J.—ist Amend. ............. 129
EE EO ee 145
1/10/77 Order—Deny Ist Amend. Test Grant Immunity
12/23/76—Order Deny Amend. Compl.
No. 76-409—Certiorari Denied
Opinion, Court of Appeals on Remand
Order of Remand
o) P-9 5-2 Se Oe OER Bie, Sh 6. 6 Se eo Oe
- 6 SE S.t 2 616.8 65
A ee ee ee ae oe
2 ee Se Cee Pee Be Ne ee eee
a ae A a
oe & 6 b-ee
Page
151 UNITED STATES COURT OF APPEALS
153 For tHe TxHirp Circuit
154 —
176 Nos. 77-2311 and 77-2312
177 sais
222 DR. JOSEPH T. SKEHAN
Vv.
BOARD OF TRUSTEES OF BLOOMSBURG STATE
COLLEGE and DR. ROBERT NOSSEN and DR.
CHARLES CARLSON and JOHN PITTENGER, Su-
perintendent of Education, Commonwealth of Pennsyl-
vania and BLOOMSBURG STATE COLLEGE.
DR. JOSEPH T. SKEHAN,
Appellant im No. 77-2311,
BOARD OF TRUSTEES OF BLOOMSBURG
STATE COLLEGE and DR. ROBERT NOSSEN
and DR. CHARLES CARLSON and JOHN PIT-
TENGER, Superintendent of Education, Common-
wealth of Pennsylvania and BLOOMSBURG
STATE COLLEGE,
Appellants in No. 77-2312.
On ApprkAL From THE Unirep Srates District Court
FOR 1HE Mipp.e District of PENNSYLVANIA
(Civ. No. 72-644, M.D. Pa.)
Argued September 29, 1978
Before Srirz, Chief Judge, Hunter, Circuit Judge, and
Lacey*, District Judge.
(Opinion filed December 21, 1978)
*The Honorable Frederick B. Lacey, United States District Court Judge
for the District of New Jersey, sitting by designation.
2
Opinion of the Third Circuit Court of Appeals.
Cletus P. Lyman, Esquire
Richard A. Ash, Esquire
Lyman & Ash
Philadelphia, Pa. 19103
Larry Glass, Esquire
Philadelphia, Pa. 19128
Attorneys for Appellant
in No. 77-2311
Howard M. Levinson
Denuty Attorney General
J. Justin Blewitt, Jr.
Deputy Attorney General
Director, Office of Civil Law
Gerald Gornish
Acting Attorney General
Department of Justice
Harrisburg, Pa. 17120
Attorneys for Appellants
in No, 77-2312
OPINION OF THE COURT
Seitz, Chief Judge.
Plaintiff, Dr. Joseph T. Skehan (appellant in No. 77-
2311), appeals from the following aspects of a final judg-
ment entered by the district court, embodied in three sep-
arate orders and opinions: 1) a denial of Skehan’s motion
for judgment in his behalf on a claim that his contract as a
‘aculty member of Bloomsburg State College was not re-
newed beyond the 1970-71 academic year for reasons viola-
tive of the first amendment; 2) a denial of Skehan’s request
for an award of monetary damages from either the College
or the individual defendants as a remedy for the defend-
3
Opinion of the Third Circuit Court of Appeals.
ants’ violation of his due process rights with respect to
both his nonrenewal and his later dismissal from the Col-
lege faculty; 3) a denial of Skehan’s request that he be
awarded equitable relief in the nature of full reinstatement
to the College faculty as a remedy for the defendants’
violations of his constitutional rights; and 4) a denial of
Skehan’s claim for attorney’s fees and expenses.
Defendants, Bloomsburg State College, its Board of
Trustees, Dr. Robert Nossen (President of the College dur-
ing the period in which the events culminating in this law-
suit transpired), Dr. Charles Carlson (acting President of
the College at the time Skehan filed his complaint) and
John Pittenger (Pennsylvania Superintendent of Educa-
tion) (appellants in No. 77-2312), cross-appeal from that
aspect of the district court’s judgment finding that Skehan
was contractually entitled to an ‘‘academic freedom”’ hear-
ing following his nonrenewal and that their failure to pro-
vide him with such a hearing violated his rights under the
due process clause of the fourteenth amendment.
Factual Background
The history of this litigation over the course of the
past eight years may be garnered from the two previous
opinions of this Court and the three opinions of the district
court at issue here. The facts essential to an appreciation
of the questions presented in this appeal are recounted
herein.
Dr. Skehan was appointed as a non-tenured Associate
Professor of Economics at Bloomsburg State College in
January, 1969. His contract was renewed for the 1969-70
academic year, but on February 27, 1970, the College’s
Board of Trustees, on the recommendation of defendant
Nossen, decided that Skehan should be notified that the
1970-71 academic year would be the terminal year of his
appointment. Skehan was notified of the Board’s action
through a letter from President Nossen, dated May 19,
1970.
4
Opinion of the Third Circuit Court of Appeals.
On September 21, 1970, Skehan wrote Nossen a letter
invoking Article 5e of the Statement of Policy for Con-
tinuous Employment and Academic Freedom at Blooms-
burg State College [hereinafter Article 5e]. In that letter
he alleged that the decision not to reappoint him after
1970-71 had been caused by considerations violative of his
academic freedom.' Nossen did not refer Skehan’s letter
to the Committee on Professional Affairs, the College body
charged with initiating proceedings under Article 5e to re-
solve such allegations, nor did Skehan take any further
action to secure an Article 5e hearing.
Contemporaneous with his invocation of Article 5e, Dr.
Skehan became embroiled in a dispute between the eco-
nomics department and the College’s administration con-
cerning the scheduling of classes. During that dispute
Skehan was warned that his failure to teach his classes as
scheduled by the College would result in the taking of im-
mediate and direct administrative action against him. On
or about October 1, 1970, Dr. Skehan was observed teaching
a course not assigned to him, and on October 9 Dr. Nossen
notified Skehan that he was relieved of all classroom re-
sponsibilities pending a final hearing. Nossen’s letter of
October 9 also demanded of Skehan a ‘‘full and complete
accountability’’ of his actions on campus since the start of
the semester. When Skehan failed to comply with this
1. The Statement of Policy for Continuous Employment and Academic
‘ Freecom at Bloomsburg State College went into effect on September 1, 1968.
It has since been superseded by a collective bargaining agreement, but was in
effect during the entire period of Skehan’s dispute with the College. Article
Se provided:
If a faculty member's service to the College is to be terminated during the
first two years of the probationary [pretenure] period, the President of the
College will feel free to explain to the faculty member the basis of the
decision, but he shall not be required to do so except in a situation where
there is an allegation of infringement of academic freedom. If a faculty
member of professorial rank, on probationary appointment, alleges that a
decision not to reappoint him has been caused by considerations violative
of academic freedom, his allegation shall be given preliminary consideration
by the Committee on Professional Affairs, and the procedures concerning
notification, appeal, hearing, and defense outlined in #9 of this document
will be followed.
Article 9 of the Statement, referred to in Article Se, set out the formal
procedures applicable to the dismissal of a tenured faculty member.
$
Opinion of the Third Circuit Court of Appeals.
demand, Dr. Nossen informed him that, effective October
17, 1970, he was removed from the College’s payroll, sub-
ject to final approval by the Board of Trustees. That ap-
proval was obtained at the Board’s regularly scheduled
meeting of October 23, 1970.
Skehan filed a complaint in district court on October
10, 1972. He alleged that his suspension and ultimate dis-
missal in the Fall of 1970 were in retaliation for his active
role in campus political issues, and hence were violative of
his rights under the first amendment. He also alleged that
the defendants suspended and dismissed him without com-
plying with the applicable College laws and regulations
governing faculty status, thereby depriving him of that
due process of law guaranteed by the fourteenth amend-
ment. He requested preliminary and permanent injunctive
relief in the nature of reinstatement and an award of at-
torney’s fees.
The district court held a hearing on Skehan’s request
for a preliminary injunction on January 11 and 12, 1973.
Preliminary injunctive relief was denied in an opinion and
order dated January 31,1973. Skehan v. Board of Trustees
of Bloomsburg State 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 pre-
liminary injunction hearing, and the district court issued
its opinion on the merits on May 9, 1973. Skehan v. Board
of Trustees of Bloomsburg State College, 358 F. Supp. 430
(M.D. Pa. 1973).
In that opinion, the district court held that Skehan’s
dismissal from the faculty had been a result of his actions
during the scheduling dispute. Thus, his dismissal was
found not to have been violative of the first amendment.
However, the district court did find that Skehan’s dismissal
during the term of his contract entitled him, under the due
process clause, to a prior hearing on the grounds of his
dismissal, and that such a hearing had not been afforded
Skehan by the College.
6
Opinion of the Third Circuit Court of Appeals.
On appeal this Court affirmed both findings with re-
spect to Skehan’s dismissal, but noted that Skehan had also
challenged the constitutionality of the Board of Trustees’
decision not to renew his contract beyond 1970-71. Thus,
this case was remanded to the district court for findings on
the questions whether the nonrenewal decision had been
motivated by the College administration’s disagreement
with Skehan’s stands on campus issues and whether
Article 5e had contractually entitled Skehan to a hearing
on the reasons for his nonrenewal. This Court also directed
the district court to consider whether the College shared in
the sovereign immunity of the Commonwealth of Penn-
sylvania so that it would be immune under the eleventh
amendment from Skehan’s claim for damages. We held
that the individual defendants were entitled to absolute
immunity from damages as executive officials exercising
discretionary governmental functions, and indicated that
Skehan might be entitled to an award of attorney’s fees
from the College as a private attorney general vindicating
a public interest. Skehan v. Board of Trustees of Blooms-
burg State College, 501 F.2d 31 (3d Cir. 1974).
Trial on the issues remanded to the district court was
postponed while Skehan’s petition for writ of certiorari to
the Supreme Court was pending. On May 27, 1975, the
Supreme Court granted his writ, vacated the judgment of
this Court, and remanded the case ‘‘for further considera-
tion in light of Alyeska Pipeline Service Co. v. Wilderness
Society, [421 U.S. 240 (1975)], and Wood v. Strickland,
420 U.S. 308 (1975).’’ 421 U.S. 983 (1975). This Court
reviewed the case en banc on remand from the Supreme
Court, and addressed itself to three issues respecting the
relief to which Skehan might be entitled for the defendants’
actions in bringing about his nonrenewal and termination.
Skehan v. Board of Trustees of Bloomsburg State College,
538 F.2d 53 (3d Cir. 1976).
First, we noted that Alyeska had overruled the cases
upon which this Court had earlier relied in determining
-
Opinion of the Third Circuit Court of Appeals.
that Skehan, as a ‘‘private attorney general,’’ was entitled
to an award of attorney’s fees. Thus, the attorney’s fees
aspect of the case was remanded to the district court for
findings on pre-litigation obduracy, and for consideration
of an award of fees based on the defendants’ future main-
tenance of this litigation in bad faith. This Court held that
only the latter ground could be the basis of a fee award
against the College given that it was a state agency for
which the Commonwealth of Pennsvlvania claimed sov-
ereign immunity. 538 F.2d at 55-59.
Second, we noted that the Supreme Court had demon-
strated in Wood v. Strickland that this Court’s earlier
holding that the individual defendants were absolutely im-
mune from liability as nonjudicial government officials
performing adjudicatory functions was inappropriate.
Thus, the question of official immunity was remanded to
the district court for findings of fact with respect to the
immunity of each defendant under the test articulated by
the Supreme Court in Wood. Id. 59-62.
Finally, this Court stated that an intervening decision
of the Pennsylvania Commonwealth Court, Brungard v.
Hartman, 12 Pa. Commw. Ct. 477, 315 A.2d 913 (1974),
holding that state colleges are agencies for which Penn-
sylvania claims sovereign immunity, was dispositive of the
eleventh amendment issue concerning the College’s liability
for damages. Thus, we held that a back pay award could
not be made out of the College’s treasury, and that an
award of attorney’s fees against the College could only be
based on the exception to the American rule for the main-
tenance of litigation in bad faith. 538 F.2d at 62.
In conclusion, this Court reiterated that on-remand
the district court was to make findings of fact on the
nature of the interest created by Article 5e and on whether
the decision not to renew Skehan’s contract beyond 1970-71
had been impermissibly based on his stands on campus
issues. The Supreme Court denied defendants’ petition
for a writ of certiorari on November 29, 1976. 429 U.S.
979 (1976).
&
Opinion of the Third Circuit Court of Appeals.
It is with this background in mind that we turn to the
parties’ challenges to the district court’s disposition of the
issues remanded to it by this Court.
I. Tue First AMENDMENT CLAIM
The district court issued its first opinion after remand
on plaintiff’s and defendants’ cross-motions for judgment
on Skehan’s claim that the decision not to reappoint him
after 1970-71 was fe reasons violative of the first amend-
ment. Skehanv “vard of Trustees of Bloomsburg State
College, No. 7> »-* (M.D. Pa., filed March 24, 1977) (un-
published opin. © The district court awarded judgment
to the defendants en that claim. Three aspects of that
ruling are at issue in this appeal. First, the defendants
contend that the district court erred in rejecting their argu-
ment that Skehan’s first amendment claim was barred by
the applicable Pennsylvania statute of limitations. Skehan
appeals from the court’s disposition of the merits of the
first amendment claim, and also contends that the court
abused its discretion in denying his motion to take addi-
tional testimony on that issue.
Before meeting those contentions we must address the
defendants’ argument that the district court’s disposition
of the first amendment claim should be affirmed because it
was not raised by Skehan in his complaint or in any court
proceedings, but rather was first raised by this Court sua
sponte in the 1974 panel opinion. We believe that Skehan’s
initial complaint did challenge the validity of the non-
renewal decision, and that the question whether that de-
cision was violative of the first amendment was litigated
by the parties at the preliminary injunction hearing held
in January, 1973. In fact, the district court iJecided not to
take additional testimony on the first amendment non-
renewal issue after remand precisely because the parties
had had a full opportunity to present all evidence concern-
ing the reasons which may have motivated the Board’s
decision not to renew Skehan’s contract at that earlier
9
Opinion of the Third Circuit Court of Appeals.
hearing. See Part I,B infra. Moreover, this Court’s
en banc opinion remanding the first amendment issue to
the district court represents the ‘‘law of the case’’ with
respect to that aspect of Skehan’s claim. We are bound
by the earlier determination of this Court, and thus reject
the defendants’ argument, raised at this late date, that the
issue should not have been remanded to the district court.
See Part IL,A infra.
A. Statute of Limitations
The district court found that Skehan’s nonrenewal
claim stated a cause of action under 42 U.S.C. § 1983. Be-
cause § 1983 does not contain its own statute of limitations,
the court turned to Pennsylvania law to determine the pe-
riod of limitations applicable to the most analogous state
law claim. The court held that the six year statute of lim-
itations established by the Act of March 27, 1713, 1 Sm. L.
76, §1, 12 P.S. §31, governed Skehan’s claim, as it gov-
erned the state law claim the court found to be most anal-
ogous to it, namely a claim of wrongful interference with
an employment contract. Defendants argue that the court
erred in holding the six year period of limitations appli-
cable to Skehan’s claim, contending that the two year period
of limitations established for personal injury actions in the
Act of June 24, 1895, P.L. 236, § 2, 12 P.S. § 34, should be
applied to a § 1983 action claiming a violation of the first
amendment. They further contend that Skehan’s nonre-
newal claim arose on the day he was notified of the Board’s
decision not to reappoint him beyond 1970-71, at the latest
May 19, 1970, and that his claim should thus be barred be-
cause he did not file his complaint in federal court until
October 10, 1972. |
Skehan counters that even if the two year period of
limitations established in 12 P.S. § 34 applies to his first
amendment claim, that claim is not barred because his
eause of action did not accrue until he was terminated on
October 19, 1970. He reasons that up unti] that time a
10
Opinion of the Third Circuit Court of Appeals.
final nonrenewal decision had not been made in his case,
because, until then, he was entitled to expect the College
to respond to his letter of September 21, 1970, invoking
the procedures of Article 5e to review the Board’s initial
decision not to renew his contract.
We need not resolve the parties’ dispute over the date
when Skehan’s nonrenewal claim accrued because we agree
with the district court’s determination that it was governed
by the six year period of limitations established in 12 P.S.
§ 31; thus, whether Skehan’s claim is deemed to have
accrued in May or in October of 1970, he filed his cor »laint
well within the period of limitations.
Two recent opinions of this Court compel our disposi-
tion of this question. In Meyers v. Pennypack Woods
Home Ownership Association, 559 F.2d 894 (3d Cir. 1977),
this Court faced the question whether a cause of action
under 42 U.S.C. §§ 1981 and 1982, alleging racial discrimi-
nation by a private home ownership association, was gov-
erned by Pennsylvania’s two: year or its six year statute
of limitations. The Court noted that the Pennsylvania
scheme of limitations is complex, due to the establishment
of a six year period for all actions in contract and all
actions of trespass by the Act of 1713, while the Act of
1895, without reference to the earlier statute, provides a
two year period for actions for personal injury not result-
ing in death. The Court noted that the Pennsylvania
Supreme Court has held (citing Walker v. Mummert, 394
Pa. 146, 146 A.2d 289 (1958) and Helmig v. Rockwell
Manufacturing Co., 389 Pa. 21, 131 A.2d 622 (1957)) that
the Act of 1713 still governs all actions in trespass not
involving personal injury. 559 F.2d at 902. Elaborating
further, this Court stated that 12 P.S. § 34 ‘‘by its terms
applies only to ‘actions brought to recover damages’
whereas [the plaintiff] seeks a broad range of equitable
relief,’’ and that the statutory phrase ‘‘ ‘injury wrong-
fully done to the person, in cases where the injury does
not result in death’ expresses a limitation only on actions
11
Opinion of the Third Circuit Court of Appeals.
for bodily injury whereas [plaintiff’s] claim is for tortious
interference with his right to contract for the purchase of
a house.’’ Jd. (footnote omitted).
In Davis v. United States Steel Supply, 581 F.2d 335
(3d Cir. 1978), this Court reversed a district court decision,
relied upon by the defendants here, that had held the two
year period of limitations in 12 P.S. {34 applicable to a
eause of action challenging racially discriminatory em-
ployment practices brought pursuant to 42 U.S.C. § 1981.
Relying on Veyers, supra, the Davis Court noted that § 34
is applicable only to actions seeking damages for bodily
injury. 581 F.2d at 339. The Court held that the plain-
tiff’s cause of action in Davis, alleging ‘‘an unlawful
breach of an existing at-will emplovment contract’’ was
within the precise terms of 12 P.S. §31, and was best
analogized to ‘‘those torts which involve the wrongful
interference with another’s economic rights or interests.”’
Id. 339 (footnote omitted) (emphasis supplied).
The district court properly noted that Skehan’s claim,
like the plaintiff’s in Davis, most resembled the state law
claim of wrongful interference with a contract, and that
it did not seek damages for a bodily injury but rather
for economic loss. In affirming the district court’s deter-
mination that 12 P.S. 431 provides the applicable statute
of limitations for Skehan’s claim, we also rely on the fact
that Skehan did not seek damages alone for the College’s
allegedly unlawful nonrenewal of his contract, but a broad
range of equitable relief as well. See Meyers, supra, at
902. We agree with the ruling of the district court denying
defendants’ motion for judgment on the ground that the
first amendment claim was barred by the statute of limi-
tations.”
2. We note that Pennsylvania has recently revised its statutes of limitations
through the enactment of the Judicial Code. See Act of July 9, 1976, P.L.
586, Act No. 142. §2, 42 Pa. C.S.A. §§5501-5574 (Purdon’s 1977 Supp.).
The new codification went into general effect on June 27, 1978; however, the
newly enacted periods of limitation have no effect on an action such as this
one that was already pending on the effective date of repeal. See Act of July
9, 1976, P.L. 586, Act'No. 142, § 25(a).
12
Opinion of the Third Circuit Court of Appeals.
As noted earlier, the district court, on remand, denied
Skehan’s motion to take additional testimony on the ques-
tion whether the College’s nonrenewal decision had been
based on considerations violative of the first amendment.
That order, dated January 10, 1977, was based on the
fact that Skehan had rested on all issues presented in his
complaint following the preliminary injunction hearing in
January, 1973, and that during that- earlier hearing he
had been presented with a full opportunity to introduce
evidence concerning the reasons that may have motivated
the nonrenewal decision. In the same order denying
Skehan’s motion the district court granted defendants’
motion to take additional testimony on the question of
their official immunity defenses, stating that this question
had not been before the court in 1973 and that the law in
this area had substantially changed in the interim. Skehan
contends that the court’s order was an abuse of discretion
for a variety of reasons: that it was inconsistent with this
Court’s remand for findings of fact on the first amendment
issue; was unjust given that the court applied a test to
the merits of the claim that had been formulated by the
Supreme Court in 1977; was inconsistent with the court’s
decision to allow additional testimony on the defendants’
official immunity defense; caused the court to decide the
issue on a stale record; was inconsistent with the court’s
earlier orders respecting pre-trial discovery; and pre-
vented plaintiff from -producing a great quantity of
probative evidence.
It is clear that ‘‘[g]enerally, whether a trial court will
reopen a case to take more testimony is discretionary with
that court.’’ Rochez Brothers, Inc. v. Rhoades, 527 F.2d
891, 894 n.6 (3d Cir. 1975), cert. denied, 425 U.S. 993
(1976) ; see Zenith Radio Corp. v. Hazeltine Research, Inc.,
401 U.S. 321, 331 (1971). The contention that Skehan
presses most vigorously in arguing that the trial court
abused that discretion in this instance is that by not taking
13
Opinion of the Third Circuit Court of Appeals.
additional testimony on the first amendment claim the dis-
trict court failed to comply with the mandate of this Court
to make findings of fact on the causes of Skehan’s nonre-
newal. To the contrary, however, neither opinion of this
Court specifically instructed the district court to take
further evidence on any issue remanded to it for findings
of fact. In fact, we feel that there was an assumption im-
plicit in those opinions that the trial court need not reopen
the record of this case for further testimony on the first
amendment issue in order to make the required findings.
This Court was fully aware that the parties had stipu-
lated that the district court could hold a final hearing on
the record developed at the preliminary injunction hearing
in January, 1973. See 501 F.2d at 37. Yet, it was only with
respect to the issue of the individual defendants’ official
immunity that this Court indicated that the record might
have to be reopened in order to make the required factual
determinations, and that decision was left to the district
court in the first instance. See 538 F.2d at 62. Thus, con-
trary to Skehan’s contention that the trial court’s denial
of his motion to take additional testimony was inconsistent
with the mandate of this Court, this Court’s failure to
specify that further evidence should be taken on remand
could, at most, be construed as leaving a decision on the
need to reopen the record to the sound discretion of the
trial court. See Rochez Brothers, supra at 894 (failure
of appellate court to instruct the district court to take
further evidence indicates that the question was left to the
sound discretion of the trial court).
Our scope of review on this question is quite limited.
As Professor Moore has stated:
A district court, then, should consider a motion
to take additional testimony in light of all the surround-
ing circumstances and grant or deny it in the interest
of fairness and substantial justice.... [T]he grant
or denial involves an exercise of discretion by the trial
court; and because this court has a feel for the case
14
Opinion of the Third Circuit Court of Appeals.
that an appellate court can seldom have, the trial
court’s ruling is subject to reversal only in a rare case
where abuse is clearly shown.
6A Moore’s Federal Practice § 59.04 [13] at 36-37 (2d ed.
1974) (footnotes omitted). In Rochez Brothers, supra at
894 n.6, this Court stated that the district court should be
concerned with several factors in deciding whether to re-
open a case, including the burden which would be placed on
the parties and their witnesses, undue prejudice which
might result by a refusal to take new testimony, and con-
siderations of judicial economy.
The district court was clearly concerned with the
burdens placed on the parties and the court system by the
failure of that system to dispose of the dispute in this case
promptly and fairly. That theme is prominent throughout
the court’s numerous pre-trial orders attempting to bring
the parties into court for resolution of the issues remanded
by this Court. Following a final pre-trial conference on
December 1, 1976, the court directed that the parties file
motions for the taking of such additional testimony on those
issues as they deemed advisable. In spite of Skehan’s con-
tention to the contrary, we do not find that the district court
in prior orders had indicated to the parties that there
would be further testimony taken on the first amendment
issue. In its order of January 10, 1977, the court, after
considering all the points raised here by Skehan, save one
that is discussed below, denied his motion to reopen the
record on the first amendment nonrenewal claim. The
court relied on the fact that Skehan had had a full op-
portunity to present evidence on the defendants’ motivation
in declining to renew his contract beyond 1970-71 at the
preliminary injunction hearing; any responsibility for in-
adequacies in that presentation was deemed to rest with
Skehan. Furthermore, the court determined that the real
thrust of Skehan’s request was to insure that he would
have an opportunity to rebut any evidence offered by the
defendants on the question of their official immunity from
15
Opinion of the Third Circuit Court of Appeals.
an award of damages arising from the alleged first amend-
ment violation. The court offered Skehan the opportunity
to present such rebuttal evidence if the issue of official im-
munity from liability were to arise.
We believe that the concerns raised here by Skehan,
and rejected by the district court, do not compel a conclu-
sion that the trial court abused its discretion in denying
his motion to take additional testimony on the first amend-
ment nonrenewal claim. This is not one of the exceptional
cases envisioned in Rochez Brothers, supra at 894-95, in
which a party failed to put into evidence all the necessary
elements of his claim because of a misunderstanding among
the parties and the trial court; nor was the trial court un-
able to make findings of fact on the nonrenewal claim with-
out the proffered testimony. See Pittsburgh Press Club v.
United States, 426 F. Supp. 553, 554 (W.D. Pa. 1977), aff’d
im relevant part, 579 F.2d 751, 755 (3d Cir. 1978). Rather,
as Skehan concedes, at the time of the preliminary injunc-
tion hearing, the district court and the parties probably
considered the question of the College’s motivation in its
nonrenewal of Skehan to be merged with the first amend-
ment challenge to his dismissal. Thus, Skehan did present
evidence with respect to his first amendment activities, and
the College’s reaction to them, relevant to the whole period
of his employment by the College. The district court in
no way hindered him from offering proof that the nonre-
newal decision was motivated by his engaging in conduct
protected by the first amendment. Skehan’s counsel made
a tactical judgment to rest on the record made at the pre-
liminary injunction hearing and, based on that record, the
district court was able to detail Skehan’s campus activism
prior to the nonrenewal decision in the Spring of 1970 in
twelve findings of fact contained in its opinion on the
merits of the first amendment claim, discussed below.
Skehan has presented one contention for the considera-
tion of this Court that, of necessity, he did not present to
the district court prior to its order of January 10, 1977.
16
Opinion of the Third Circuit Court of Appeals.
That contention is that the district court should have re-
versed its order denying his motion to present additional
testimony on the first amendment issue when it became
aware of the change in the law represented by the decision
of the Supreme Court in Mt. Healthy City School District
Board of Education v. Doyle, 429 U.S. 274 (1977). The
Mt. Healthy decision was issued by the Supreme Court on
January 11, 1977, one day after the district court’s order
denying Skehan’s motion, brt prior to the court’s ruling
on the merits of the first amendment claim on March 24,
1977, in which it relied on the test of causation formulated
in Mt. Healthy.
‘Skehan is correct in his assertion that a change in legal
standards may warrant the reopening of a case where addi-
tional testimony would be pertinent to the change of law.
See 6A Moore’s Federal Practice § 59.04[13] at 36 (2d ed.
1974). In fact, the district court relied on this ground in
deciding to grant the defendants’ request to take additional
testimony on the official immunity defense. However, we
believe that the Mt. Healthy decision did not reflect a
change in the law that would warrant the district court’s
reopening of the record in this case to allow Skehan to
‘present additional testimony on his claim that the defend-
ants’ decision not to reappoint him beyond 1970-71 violated
the first amendment.
Mt. Healthy did not substantially affect the affirmative
burden of a plaintiff in Skehan’s position to show by a
preponderance of the evidence that his first amendment
activities were a substantial or motivating factor in an
adverse employment decision. The standard of proof
adopted in Mt. Healthy is, if anything, more stringent than
the standard applied by the district court in its ruling in
1973 that Skehan had failed to prove he had been termi-
nated for reasons violative of the first amendment, 358 F.
Supp. at 434—a ruling affirmed by this Court, 501 F.2d at
39. To the extent the Wt. Healthy Court adopted a ‘‘new”’
formulation of the test of causation for claims alleging dis-
17
Opinion of the Third Circuit Court of Appeals.
missal from public employment for reasons violative of the
first amendment, the ‘‘new”’ aspect of that formulation was
the Court’s holding that the defendants in such a case must
be afforded an opportunity to rebut a prima facie case of
impermissible motivation by showing by a preponderance
of the evidence that they would have reached the same de-
cision even in the absence of the constitutionally protected
conduct of plaintiff. 429 U.S. at 284-87. Because Skehan
was permitted to adduce all testimony relevant to his first
amendment nonrenewal claim at the preliminary injunction
hearing, and because no evidence pertinent to his affirma-
tive case after Mt. Healthy would not have been equally
pertinent then, we cannot say that Skehan was prejudiced
by the court’s application of a ‘‘new’’ legal standard to
his first amendment claim.
We conclude that it was not an abuse of discretion for
‘ the district court to have declined to reopen that aspect of
the record of this case dealing with Skehan’s claim that
the College’s decision not to renew his appointment beyond
1970-71 violated the first amendment.
C. The Merits of the First Amendment Claim
The district court found that the evidence adduced by
Skehan at the preliminary injunction hearing failed to
establish by a preponderance of the evidence that his con-
stitutionally protected conduct was a ‘‘substantial’’ or
‘‘motivating’’ factor in the decision of the Board of Trus-
tees to offer him a terminal contract for the 1970-71 aca-
demic year. See Mt. Healthy, supra at 287. Furthermore,
the court went on to find that even if Skehan had met that
initial burden, the defendants had shown by a preponder-
ance of the evidence that Skehan’s contract would not have
been renewed beyond that year even if he had not spoken
out on campus issues. See id. Having concluded that the
court’s findings on Skehan’s failure to meet his initial
burden of proof are not clearly erroneous, we atfirm the
court’s judgment on the first amendment nonrenewal issue.
18
Opinion of the Third Circuit Court of Appeals.
The district court found as a fact that ‘‘Dr. Skehan
assumed an activist position on many of the issues raised
in the campus community, a position often grating to the
administration of Bloomsburg State College.’’ However,
the court also found:
There is no evidence on the record to establish that the
Board of Trustees based their decision not to renew
Skehan’s contract on his criticism of administrative
policies or his comments on campus issues. Skehan
has shown only that after he spoke out on campus
issues his contract was not renewed. No evidence es-
tablishing a relationship or nexus between the two
events has been presented.
Unpublished opinion of March 24, 1977, at 14.
Skehan argues that the district court’s finding that
there was no evidence connecting the College’s nonrenewal
decision with his first amendment activities should be set
aside as clearly erroneous. He relies on the following
passage from Dr. Nossen’s letter to him, dated October 9,
1970, informing him that he was being relieved of class-
room responsibilities for his actions during the scheduling
dispute, as proof of the nexus the district court found
lacking:
I hardly need remind you that you are, during this
current year, on terminal appointment. You were, at
the time that appointment was offered, advised that
your previous disruptive activities made your presence
on this campus unwelcome, and the hope was expressed
that you would not accept. [emphasis supplied].
Skehan contends that those ‘‘previous disruptive activi-
ties’? must have been a reference to activities protected by
the first amendment and that the foregoing passage proves
that the College’s nonrenewal decision was substantially
motivated by considerations violative of the Constitution.
19
Opinion of the Third Circuit Court of Appeals.
The district court found, however, that the phrase could
have been a reference to Skehan’s refusal to meet his
classes at the appointed times. There was testimony intro-
duced at the preliminary injunction hearing by Skehan’s
department chairman that prior to Skehan’s nonrenewal
he had arranged, without approval and contrary to past
instructions, to have other faculty members take charge of
his classes.
It is also possible that the ‘‘disruptive activities’’
referred to by Dr. Nossen in his letter of October 9 were
the same activities he mentioned in an earlier letter of
June 15, 1970, admitted into evidence at the preliminary
injunction hearing as defendants’ exhibit 12. In that
letter, reaffirming the Board of Trustees’ determination
that Skehan’s appointment for the 1970-71 academic year
was to be a terminal contract, Dr. Nossen stated:
The Board members have expressed deep concern
over your continued failure to cooperate with your
Department Chairman, to meet established depart-
mental deadlines, and to contribute to constructive
departmental operation. Your Chairman has, in
desperation, requested that you no longer attend de-
partmental meetings and that you report, should you
return for 1970-71, to the Dean of Instruction rather
than to him.
Whatever the true meaning of the phrase ‘‘disruptive
activities’? in the October 9 letter might be, we can find
no error in the district court’s determination that Skehan
failed to establish by a preponderance of the evidence that
Dr. Nossen acted to prevent the renewal of Skehan’s con-
tract because of his disagreement with Skehan’s avowed
positions on campus issues. Moreover, there is no evi-
dence that the members of the Board of Trustees were
-even aware of Skehan’s first amendment activities at the
time they approved the decision not to renew his contract.
Such a failure of proof requires that we credit the district
20
Opinion of the Third Circuit Court of Appeals.
court’s evaluation of the testimony and affirm, as not
clearly erroneous, its finding of fact that ‘‘Skehan’s criti-
cism and disagreement with the administration, specifically
Dr. Nossen and the Board of Trustees . . . concerning cer-
tain campus issues ... was not a motivating or substantial
factor in the decision not to renew his contract of employ-
ment beyond the 1970-1971 year.’’ Unpublished opinion
of March 24, 1977, at 7. See Franklin v. Atkins, 562 F.2d
1188, 1192 (10th Cir. 1977) ; cf. Mazaleski v. Treusdell, 562
F.2d 701, 716 (D.C. Cir. 1977) (Mt. Healthy requires that
a dismissed public employee’s first amendment claim be
supported by more than post hoc ergo propter hoc allega-
tions).
Having considered all of Skehan’s arguments perti-
nent to this aspect of his appeal, we concur in the con-
clusion of the district court that Skehan did not establish
that his first amendment activities were a substantial or
motivating factor in the College’s decision not to renew
his contract beyond 1970-71. We need not review the
district court’s determination that, even if Skehan had
established a prima facie case of a first amendment viola-
tion, the defendants proved by a preponderance of the
evidence that he would have been offered a terminal con-
tract based on reasons independent of his constitutionally
protected conduct.
Il. Tue Articte 5e Procepura, Due Process CLAm
On April 14 and 15, 1977, the district court heard
testimony without a jury concerning, inter alia, the nature
of the interest created by Article 5e of the College’s State-
ment of Policy for Continuous Employment and Academic
Freedom, and whether Skehan’s right to a hearing under
Article 5e had been violated by defendant Nossen’s failure
to institute the proceedings called for by that provision
upon receipt of Skehan’s letter of September 21, 1970.
In an opinion issued on May 18, 1977, the district court
held that Skehan possessed a contractual right to the
21
Opinion of the Third Circuit Court of Appeals.
procedures set forth in Article 5e, that he had invoked
that right within a reasonable time, and that the College’s
failure to afford Skehan those procedures violated the
due process clause of the fourteenth amendment. Skehan
v. Board of Trustees of Bloomsburg State College, 431
F. Supp. 1379, 1391 (M.D. Pa. 1977).
The defendants’ cross-appeal raises two challenges to
that holding: first, they assert that the district court
should not have considered the Article 5e claim, even
though this Court had specifically instructed that it do so,
because the claim was never raised by Skehan at any stage
of this litigation; second, they contend that Skehan did
not have a contractual right to the procedures set forth
in Article 5e because the College’s Statement of Policy
was not a contract supported by consideration nor one
whose obligations were set forth with sufficient certainty,
because it had not been practical for the College to adhere
to those procedures in Skehan’s case, because Skehan’s
behavior during the scheduling dispute had discharged the
College’s obligation to provide him with an Article 5e
hearing and because Skehan’s letter to President Nossen
was not a proper invocation of Article 5e. If we reverse
the district court’s finding that Skehan was contractually
entitled to the procedures set forth in Article 5e, the
defendants rightly conclude that Skehan would have no
property interest in those procedures rising ‘‘to the level
of a ‘legitimate claim of entitlement’ protected by the
Due Process Clause.’ Memphis Light, Gas & Water
Division v. Craft, 486 U.S. 1, 9 (1978).
A. Skehan’s Alleged Failure to Raise the Article 5e Claim
The defendants argue that the district court’s holding
in Skehan’s favor on the procedural due process claim
should be reversed because it was error for the court to
have addressed that issue in the first instance. The dis-
trict court noted in its opinion on this issue that the Article
5e claim was never set forth in Skehan’s complaint, never
22
Opinion of the Third Circuit Court of Appeals.
raised at the preliminary injunction hearing in January,
1973, never raised before this Court, and, in fact, ‘‘first
surfaced in the Opinion of the Court of Appeals.’’ 431
F. Supp. at 1382. The court also stated its view that
Skehan’s failure to raise the claim in his complaint ran
afoul of the requirement that facts be pleaded with spec-
ificity in civil rights actions, and that the ‘‘creation’’ of
the issue by this Court was inconsistent with our juris-
prudential system. Jd. Nonetheless, the court felt itself
bound by the directions of fhis Court to tully consider the
issue as though it had been initially raised by Skehan in
his complaint.
Defendants rely on the foregoing observations of the
district court as support for their argument here. Based
on our independent review of the record of the preliminary
injunction hearing, we decline to accept the validity of the
district court’s observations. Moreover, in the unanimous
panel opinion of this Court entered on May 3, 1974, we
stated that Skehan had presented a due process claim based
on the College’s failure to provide him with an Article 5e
hearing and that the district court had failed to make find-
ings of fact on that claim. 501 F.2d at 38. Thus, this
Court remanded the case to the district court for findings
‘‘as to the nature of the interest created under Pennsyl-
vania law by article 5(e) of the Statement of Policy for
Continuous Employment and Academic Freedom at Blooms-
burg State College... .’’? Id. 45. In our unanimous
en bane opinion on remand from the Supreme Court, we
again directed that findings be made on the Article 5e issue.
538 F.2d at 63. The defendants did not seek review of the
original order of this Court; their petition for certiorari to
the Supreme Court, filed after the issuance of our opinion
en banc, did not raise the contention they now press that
this Court impermissibly created the Article 5e issue sua
sponte. Thus, even if we were to agree with the defend-
ants’ contention and the district court’s observations, we
would have to rule that this Court’s prior opinions repre-
23
Opinion of the Third Circuit Court of Appeals.
sent the law governing this case with respect to the ques-
tion whether it was permissible to remand the Article 5e
claim to the district court.
B. The Merits of the Article 5e Due Process Claim
The district court held that the College’s Statement
of Policy ‘‘sets forth its purpose in terms that meet the
general requirement that a contract be supported by con-
sideration.’’ 431 F. Supp. at 1388. The court found that
the Statement had been adopted by the College to insure
the more effective services of faculty members, and that
during the period in which it was in effect each faculty
member was given a copy of the Statement at the start of.
his term of employment and was asked to acknowledge in
writing his familiarity with its provisions. Jd. 1387-88.
Thus, the court found the Statement to be an integral part
of the contractual structure defining the employment rela-
tionship between the College and its faculty.
The defendants dispute the district court’s characteri-
zation of the Statement as a contract, arguing that under
Pennsylvania law it was not an enforceable agreement, but
rather an ‘‘illusory promise,’’ lacking in certainty with
respect to the nature and extent of the obligations of the
parties thereto. They base this argument on a clause in
that section of the Statement’s preamble labeled ‘‘Pur-
pose,’’ which provides: ‘‘It is understood that this is a
statement of policy which will be honored in all practical
situations.’’ Because the College was required by the
Statement to follow its procedures only when ‘‘practical’’
they argue that it was a promise merely in form.
The district court held, to the contrary, that the
phrase ‘‘practical situations’’-can easily be interpreted by
a factfinder and, hence, its presence in the Statement did
not render its provisions unenforceable but rather per-
mitted the College to avoid its obligations only by estab-
lishing that compliance in a given case was impractical.
431 F. Supp. at 1588. We believe the district court’s ruling
24
Opinion of the Third Circuit Court of Appeals.
on this question to be consistent with applicable Penn-
sylvania law. See Kirk v. Brentwood Manor Homes, Inc.,
191 Pa. Super. Ct. 488, 159 A.2d 48, 51 (1960). ;
The holding of the district court that the College s
Statement of Policy was not an illusory promise, but a
binding agreement that permitted the College to avoid its
obligations thereunder only by establishing proof of im-
practicality, carries into effect the reasonable intention of
the parties, articulated in the preamble of the Statement,
that its provisions were adopted to protect the economic
security of the faculty members at Bloomsburg State.
That holding also comports with the determination of the
Pennsylvania Supreme Court that in the area of contract
enforceability the maxim ‘‘ ‘id certum est quod cornee
reddi potest’ (that is certain which can be made certain)
should be applied. Portnoy v. Brown, 480 Pa. 401, 243 A.2d
447 (1968).
ea The ah ats also argue that the College had, in
fact, determined that it would be impractical to comply
with Article 5e in Skehan’s case and that, absent proof that
they had abused their discretion in making that determina-
tion, the district court should have respected their de-
cision. They also defend the merits of their decision,
arguing that it would have been impractical to afford
Skehan an Article 5e hearing when he requested it on
September 21, 1970, because he was, at that time, embroiled
in the scheduling dispute with the College administration
that ultimately led to his dismissal.
Findings of fact made by the district court, and sup-
ported by the testimony of President Nossen, belie the
claim that the appropriate officers of the College made a
reasoned determination that emergency conditions caused
by Skehan’s refusal to comply with administrative direc-
tives concerning the scheduling of classes compelled them
not to comply with Article 5e in spite of Skehan ’s request
that they do so. Rather, President Nossen did not respond
to Skehan’s invocation of Article 5e because he assumed,
25
Opinion of the Third Circuit Court of Appeals.
without reading the Statement, that the College’s Commit-
tee on Professional Affairs was the appropriate body to
initiate such proceedings. 491 F. Supp. at 1385. The dis-
trict court also found that no evidence had been presented
by the defendants in support of their contention that, given
the scheduling dispute, it had been impractical for the
College to implement the procedures of Article 5e in Ske-
han’s case. Jd. 1388. Thus, we find no error in the dis-
trict court’s determination that the defendants did not
establish that proof of impracticality needed to avoid their
contractual obligation to provide Skehan an Article 5e hear-
ing.
Alternatively, the defendants argue that they were dis-
charged from performing their contractual obligations to
Skehan because he had materially breached his contract
with the College by his actions during the scheduling dis-
pute. This Court has already affirmed a prior holding of
the district court that Skehan’s participation in that dis-
pute was a valid substantive ground for his dismissal, at
least as a matter of constitutional law. 501 F.2d at 39.
Skehan’s dismissal is not at issue here, however; the claim
now before this Court is that he was contractually entitled
to a hearing into the reasons for his earlier nonrenewal.
He requested such a hearing on September 21, 1970, which
was found by the district court to be a reasonable time to
initiate a complaint concerning his nonrenewal given that
he was not formally notified of the Board’s nonrenewal
decision until May 19, 1970, and that the academic year
ended on May 24 of that year. (The defendants do not
challenge before this Court the reasonableness of the tim-
ing of Skehan’s invocation of Article 5e.) Dr. Nossen did
not deem it necessary to relieve Skehan of his classroom re-
sponsibilities because of his actions during the scheduling
dispute until October 9, 1970. His preliminary decision to
completely terminate the College’s contractual relationship
with Skehan was made on October 19, 1970, and affirmed
by the College’s Board of Directors on October 23. Thus,
the record establishes that the defendants did not decide
26
Opinion of the Third Circuit Court of Appeals.
that Skehan’s actions justified their termination of the Col-
lege’s contractual obligations to him until some four weeks
after he had requested an Article 5e hearing. Under such
circumstances we cannot agree that the defendants were
discharged from their contractual obligations with respect
to Skehan’s challenge to his nonrenewal at any time prior
to the date on which the College itself decided to treat his
contract as terminated. During the interval between Sep-
tember 21 and October 19, 1970, Dr. Nossen made no at-
tempt to set into motion the procedures of Article 5e. We
agree with the holding of the district court that the College
was not discharged from its obligation to do so by Skehan’s
failure to obey administrative directives during the sched-
uling dispute. We feel supported in this ruling by the
observation of the district court that the very purpose of
Article 5e would be defeated if the College were permitted
to deny a faculty member a hearing on the causes of his
nonrenewal whenever it asserted that his failure to perform
his obligations to the College discharged the College’s
obligation to comply with Article 5e. 431 F. Supp. at 1388.
Finally, the defendants contend that it was error for
the district court to hold that Skehan’s letter of September
21, 1970, served as a proper invocation of Article 5e. They
argue that the plain language of 5e and its context within
the Statement of Policy supports their position that its
proceedings were to be initiated by a letter to the College’s
Committee on Professional Affairs. The district court dis-
agreed, finding the language of 5e to be ambiguous on the
appropriate method of initiating its procedures, and hold-
ing that, although Skehan should have submitted a copy of
his letter to the Committee, his failure to do so did not
excuse the College’s failure to act upon his request for a
hearing. 431 F. Supp. at 1389. We believe that the dis-
trict court’s decision was amply supported by the terms of
Article 5e and Skehan’s letter.
Article 5e provided that the President of the College
was required to explain to a nontenured faculty member
27
Opinion of the Third Circuit Court of Appeals.
the basis of a nonrenewal decision if that faculty member
alleged an infringement of academic freedom. It also
provided that such an allegation ‘‘shall be given pre-
liminary consideration by the Committee on Professional
Affairs ... .’’ See note 1 supra. In his letter to Dr.
Nossen Skehan stated: ‘‘I hereby invoke article 5e .. .
affirming that the decision not to re-appoint me has been
caused by considerations violative of academic freedom.’’
There was testimony given at the preliminary injunction
hearing by a former dean of the College that upon receipt
of Skehan’s letter it would have been the President’s re-
sponsibility to refer the matter to the Committee on Pro-
fessional Affairs. Thus, there is evidence to support the
district court’s implicit holding that, given the ambiguity
in the language of Article 5e, Skehan’s pointed invocation
of its procedures by letter to the President of the College
was an appropriate means to initiate those procedures.
The district court held that Skehan had a property
interest in the procedures of Article 5e and that the failure
of the College to initiate those procedures upon his request
violated the due process clause of the fourteenth amend-
ment. The court’s conclusions are consistent with ap-
plicable Pennsylvania law and with the purpose of the
Statement of Policy to provide a procedural structure to
the College’s employment relationship with its faculty.
The district court’s finding that the College breached its
contractual obligations in Skehan’s case, and hence violated
procedural due process, is amply supported by the record.
Thus, we affirm that aspect of the district court’s judgment
and proceed to a consideration of whether the relief
awarded Skehan by the district court was appropriate.
III. Rewer
A. The Present Posture of this Case
In its en bane opinion this Court decided that any
award of back pay to which Skehan was otherwise entitled
28
Opinion of the Third Circuit Court of Appeals.
from the College itself was barred by the eleventh amend-
ment. This holding was based on the decision of the Penn-
sylvania Commonwealth Court in Brungard v. Hartman, 12
Pa. Commw. C(t. 477, 315 A.2d 913 (1974), that state col-
leges are agencies for which Pennsylvania claims sovereign
immunity. The College’s sovereign immunity status under
state law was deemed by this Court to be dispositive of the
eleventh amendment immunity issue as well. 538 F.2d at 62.
This Court did direct the district court to consider an
award of back pay against the individual defendants in this
ease; the availability of such an award would depend upon
each defendant’s ability to establish that he acted in good
faith and without malice under the official immunity doc-
trine. The period for which back pay could be awarded
was to depend upon the district court’s findings as to
Skehan’s constitutiona! challenges to his nonrenewal. Thus,
this Court directed that ‘‘[i]f 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 . . . covering the 1970-71 period, must be con-
sidered.’’ Jd. 63. On the other hand, ‘‘[iJf 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 defend-
ants, and also prospective reinstatement . . . at least until
appropriate college termination procedures have taken
place.’’ Jd.
We also directed that an award of attorney’s fees be
considered against the individual defendants for bad faith,
vexatious, wanton or oppressive conduct either prior to or
during the course of this litigation, and against the College
for such conduct during this litigation. Subsequent to our
en banc opinion, Congress enacted the Civil Rights Attor-
ney’s Fees Awards Act of 1976, and in the proceedings on
remand Skehan based his fee request on that statutory
provision.
i
|
'
|
‘
i
29
Opinion of the Third Circuit Court of Appeals.
The district court was not required to consider the
amount of back pay to which Skehan was entitled for the
violations of his right to procedural due process with re-
spect to either the nonrenewal or the termination decision
because Skchan was not successful in the proceedings below
in establishing the liability of any defendant for damages
arising from those violations. He was also unsuccessful in
his effort to recover attorney’s fees because the district
court held that sovereign immunity barred a fee recovery
from the College, and it exercised its discretion under the
Awards Act to deny Skehan an award of fees from the
individual defendants. The court did prospectively rein-
state Skehan to a suspended with pay status at the College,
pending the completion of nonrenewal and termination pro-
ceedings. Various aspecis of the district court’s award of
relief and this Court’s instructions with respect to that
award have been raised as grounds of appeal by the parties
here.
.B. Sovereign Immunity
In spite of this Court’s holding that Bloomsburg State
College is an entity of the Commonwealth of Pennsylvania
to which sovereign immunity attaches, Skehan asked the
district court to consider his claim for monetary relief
against the College. In its opinion on the remedial aspects
of this case, filed on July 20, 1977, the district court, deem-
ing itself bound by our earlier holding, refused to entertain
Skehan’s argument that this Court had erred. Skehan v.
Board of Trustees of 3loomsburg State College, 436 F.
Supp. 657, 665 (M.D. Pa. 1977). We, too, are bound by the
determination of this Court en banc unless intervening
decisions of the Supreme Court, acts of Congress, or
changes in applicable state law require us to reconsider
our prior holding.
Although Skehan was unable to present any arguments
based on the effects of intervening law on the sovereign
immunity issue to the district court, he argued before this
EO TE Le EN ET NT
30
Opinion of the Third Circuit Court of Appeals.
Court that the eleventh amendment immunity of the Col-
lege has been waived both by the effects of a recent decision
of the Pennsylvania Supreme Court and by recent decisions
of the United States Supreme Court. We shall consider
the effects of this intervening decisional law on our earlier
holding that the eleventh amendment bars an award of
monetary relief against the College in this case. We do so
in the light of the Supreme Court’s admonition that ‘‘ ‘an
appellate court must apply the law in effect at the time it
renders its decision.’’’ Bradley v. School Board of the
City of Richmond, 416 U.S. 696, 714 (1974), quoting Thorpe
v. Housing Authority of the City of Durham, 393 U.S. 268,
281 (1969).
1. Intervening State Law
We shall first address Skehan’s argument based on
changes in the applicable state law. He contends that the
decision of the Pennsylvania Supreme Court in Mayle v.
Pennsylvania Department of Highways, — Pa. —, 388 A.2d
709 (1978), entered on July 14, 1978, constituted consent by
the Commonwealth of Pennsylvania and all its agencies to
be sued in federal court. :
The eleventh amendment has been construed by the
Supreme Court not to bar an action in federal] court against
the state or its officers acting in their official capacities for
prospective injunctive relief from unconstitutional state
actions. See Ldélman v. Jordan, 415 U.S. 651, 664 (1974) ;
Ex parte Young, 209 U.S. 123 (1908). Thus, this Court
earlier held that the eleventh amendment presented no im-
pediment to Skehan’s request for prospective reinstatement
as relief for the constitutional violations he established.
' 538 F.2d at 63. However, Edeiman made it clear that, ab-
sent consent to suit by the state, a federal court may not
award relicf against state officers or agencies that consti-
tutes a compensatory money judgment payable out of the
state treasury, even if that relief is labeled as equitable in
nature. 415 U.S. at 666.
31
Opinion of the Third Circuit Court of Appeals.
Skehan does not challenge this Court’s earlier holding
that his request for a hack pay award from the College is
the type of retroactive monetary relief proserihed by Edel-
man; rather, he contends that the Pennsylvania Supreme
Court waived the Commonwealth’s immunity to such an
award in the Mayle decision. Although it cannot be gain-
said that a state may waive its constitutional protection
under the eleventh amendment, see Edelman, supra at 673,
events subsequent to the decision in Mayle make it clear
that Pennsylvania has not consented to the imposition of
the type of monetary relief sought by Skehan in this case.
In Mayle a divided Pennsylvania Supreme Court
‘‘abrogated’’ the doctrine of sover’ sn immunity, whereby
the Commonwealth had previously been immune from lia-
bility arising from the torts of its agents except where a
legislative act authorized recovery. — Pa. at — , 388 A.2d
at 709-10. The court held that sovereign immunity in Penn-
sylvania was a non-constitutional doctrine that had its
origins in judicial decisions, and that neither the state
constitution nor legislative enactments precluded the court
from abolishing the doctrine it had created and overruling
all prior inconsistent opinions. Jd. at — - — , 388 A.2d at
718-20.
Skehan argues that although the Mayle opinion did not
in terms address the applicability of its holding to the
Commonwealth’s eleventh amendment immunity from suits
for damages in federal court, it should be construed to
waive Bloomsburg State’s immunity here because the lan-
guage of Mayle rejects the sovereign immunity doctrine
and its justifications in broad terms, and because the opin-
ion relies in part upon the refusal of the Pennsylvania legis-
lature to ratify the eleventh amendment when it was pro-
posed by Congress in 1794. See — Pa. at — , — , 388 A.2d
at 712, 718.
The Supreme Court has held that ‘‘[i]Jn deciding
whether a State has waived its constitutional protection
under the Eleventh Amendment, we will find waiver only
32
Opinion of the Third Circuit Court of Appeals.
where stated ‘by the most express language or by such
overwhelming implications from the text as [will] leave
no room for any other reasonable construction.’ ’’? Edel-
man, supra at 673, quoting Murray v. Wilson Distilling
Co., 218 U.S. 151, 171 (1909). This rule has been applied
to cases in whieh a state has consented to suit in its own
courts by statute; consent to a similar suit in the federal
courts has not been inferred absent a clear declaration in
the statutory language that the state intended to waive its
eleventh amendment immunity as well as its sovereign
immunity under state law. See Kennecott Copper Corp. v.
State Tax Commission, 327 U.S. 5738, 577 (1946); Ford
Motor Co. v. Department of Treasury of Indiana, 323 U.S.
459, 465 (1945) ; Great Northern Life Insurance Co. v. Read,
322 U.S. 47, 54 (1944).
We would face an apparently novel application of this
rule were we required to interpret the effect of a state’s
abrogation of its state law sovereign immunity by judicial
decision on its eleventh amendment immunity from damage
actions in federal court. See Greenfield v. Vesella, 457
F. Supp. 316, 319-20 (W.D. Pa. 1978) (holding that the de-
cision in Mayle has waived the Commonwealth’s eleventh
amendment immunity). Recent action by the Pennsylvania
legislature has precluded our need to enter this thicket.
Cn September 28, 1978, the Pennsylvania legislature
enacted House Bill No. 2437, Act No. 1978-152, reaffirming
and preserving sovereign immunity as a bar to claims
brought against the Commonwealth and its agencies, offi-
cials, and employees. See 1978 Pa. Legis. Serv. 629-36.
Section 2 of that Act amends the Judicial Code, Act of
July 9, 1976, P.L. 586, Act No. 142, 42 Pa. C.S.A., by adding
new sections 5110 and 5111, limiting the scope of the Com-
monwealth’s waiver of sovereign immunity to particular
types of actions and limiting recovery to particular types
of damages. Section 5(a) of the Act, entitled ‘‘Construc-
tion and Application,’’ states the legislature's intent that
the Act ‘‘specifically respond to and prescribe limitations
33
Opinion of the Third Circuit Court of Appeals.
on the decision of Mayle v. Commonwealth ....’’ More-
over, section 5(b)(1) bars any cause of action against the
Commonwealth not permitted under 42 Pa. C.S.A. § 5110,
regardless of when it arose, unless it would not have been
barred by applicable statutory or decisional law prior to
the Mayle decision. Finally, section 5(e) provides that
‘*(njJothing contained in this act shall be construed to waive
the Commonwealth’s immunity from suit in Federal courts
guaranteed by the eleventh amendment to the United States
Constitution.’’ The Act went into effect on the date of its
enactment, September 28, 1978.
In enacting the foregoing statutory provision the Penn-
sylvania legislature has effectively overruled the decision —
of the Pennsylvania Supreme Court in Mayle. Thus, for
Skehan to prevail in his argument that intervening changes
in Pennsylvania law require us to disregard the earlier
determination of the en bane Court on the sovereign im-
munity issue he would have to demonstrate that state col-
leges like Bloomsburg State are no longer deemed tuo be
agencies cloaked with the Commonwealth’s sovereign im-
munity. Nothing in the new sovereign immunity statute
suggests such a result and recent decisions of the Pennsyl-
vania Commonwealth Court have reaffirmed the holding of
Brungard v. Hartman to the contrary. See Finkelstein v.
Shippensburg State College, — Pa. Commw. Ct. —, 370
A.2d 1259 (1977); Williams v. West Chester State College,
— Pa. Commw. Ct. —, 370 A.2d 744 (1977). Our previous
ruling that Bloomsburg State College cannot be made
liable to Skehan for an award of back pay will not be
disturbed on the ground of intervening changes in appli-
cable state law.
2. Intervening Decisions of the Supreme Court
Skehan also-.argues that the Supreme Court’s holding
in Monell v. Department of Social Services of City of New
York, — U.S. —, 98 S. Ct. 2018 (1978), that local govern-
mental units may be deemed ‘‘persons’’ within the mean-
34
Opinion of the Third Circuit Court of Appeals.
ing of 42 U.S.C. § 1983 compels the conclusion that § 1983
now must be construed as a valid Congressional waiver
of the states’ eleventh amendment immunity to suits for
damages in federal court. Thus, he requests this Court
to make a determination as to the College’s status as a
‘‘nerson’”’ liable to an award of damages under 4 1983.
Because we do not believe that the necessary implication
of the Monell decision is an overruling of prior Supreme
Court cases holding that § 1983 does not abrogate the
states’ eleventh amendment sovereign immunity, we find
it unnecessary to make the requested finding as to the
College’s status as a § 1983 ‘‘person.’’
In ruling on Skehan’s argument here it is necessary
to first review recent opinions of the Supreme Court touch-
ing upon the legislative authority of Congress to impose
upon the states consent to being sued in actions otherwise
barred by the eleventh amendment. Parden v. Terminal
Railway Co., 377 U.S. 184 (1964), is the seminal case in
this area. There the Supreme Court held that Alabama
had consented to a suit for damages under the Federal
Employers’ Liability Act brought by an employee of a
state-owned interstate railroad who had sustained injuries
in the scope of his employment. The Court’s holding was
based on the fact that the F.E.L.A. was a congressional
enactment which by its terms authorized suit against a
general class of defendants literally including states and
state instrumentalities, and the fact that Alabama began
to operate an interstate railroad twenty years after the
passage of the Act. See Edelman v. Jordan, supra at 672.
In Edelman, supra, the Court of Appeals had held
that Parden compelled a similar finding of consent to suit
waiving the eleventh amendment. There plaintiffs had
sued under 42 U.S.C. § 1983 for retroactive payment of
welfare benefits allegedly withheld from them by the IIli-
nois Department of Public Aid in violation of applicable
federal laws and the equal protection clause. The Court
of Appeals held, and three dissenters from the Supreme
35
Opinion of the Third Circuit Court of Appeals.
Court’s reversal of that holding agreed, that § 1983 created
a private cause of action to enforce the applicable provi-
sions of the Social Security Act, and that the state’s par-
ticipation in the federally assisted welfare program con-
stituted constructive consent to suits challenging the
state’s failure to comply with the terms of participation
in that program. See Edelman v. Jordan, supra at 688-96
(Marshall & Blackmun, JJ., dissenting) ; td. 678-87 (Doug-
las, J., dissenting).
The Court majority disagreed, however, holding that
a federal court’s remedial power under § 1983 was limited
by the eleventh amendment to awarding prospective in-
junctive relief against the state, absent ‘‘the threshold
fact of congressional authorization to sue a class of defend-
ants which literally includes States....’’ Jd. 672. Section
1983 was held by the Court not to be such an authorization
because it was not deemed to authorize suits against the
states themselves but only against state officers. Id. 675-77.
In Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), the
Court was faced with the question whether the eleventh
amendment proscribed Congress’ authorization of suits
for backpay awards brought by employees against state
governmental bodies found to have violated the antidis-
crimination provisions of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §§ 2000e et seq. Congress had
amended Title VII to include governmental bodies within
the Act’s definition of employers through passage of the
Equal Employment Opportunity Act of 1972. The Second
Circuit had held that insofar as the amendments to Title
VII authorized a private action for the recovery of dam-
ages against the states they were unconstitutional under
the interpretation of the eleventh amendment adopted by
the Supreme Court in Edelman.
The Supreme Court, in unanimously reversing that
judgment, noted that in Fitzpatrick ‘‘[o]ur analysis
begins where Edelman ended, for in this Title VII case
the ‘threshold fact of congressional authorization,’ .. .
36
Opinion of the Third Circuit Court of Appeals.
to sue the State as employer is clearly present.’’ 427 U.S.
at 452. The Court reiterated that neither the Social Se-
eurity Act nor § 1983 had provided that threshold predicate
to a finding of eleventh amendment waiver in Edelman.
The Court explained that § 1983 had not been read as such
an embodiment of congressional intent to abrogate sover-
eign immunity because ‘‘it had been held in Monroe v.
Pape, 365 U.S. 167, 187-191 (1961), to exclude cities and
other municipal corporations from its ambit; that being
the case, it could not have been intended to include States
as parties defendant.’’ 427 U.S. at 452 (emphasis sup-
plied).
- Having found the predicate of congressional authoriza-
tion that was absent in Edelman to be present in Fitz-
patrick, the Court went on to hold that Congress’ imposi-
tion of suit against the states in the Title VII amendments
was a valid exercise of its power under §5 of the four-
teenth amendment ‘‘to enforce, by appropriate legislation,
the provisions’’ of that amendment:
[W]e think that the Eleventh Amendment, and the
principle of state sovereignty which it embodies .. .
are necessarily limited by the enforcement provisions
of §5 of the Fourteenth Amendment. In that section
Congress is expressly granted authority to enforce
‘‘by appropriate legislation’’ the substantive provi-
sions of the Fourteenth Amendment, which themselves
embody significant limitations on state authority.
When Congress acts pursuant to $5, not only is it
' exercising legislative authority that is plenary within
the terms of the constitutional grant, it is exercising
that authority under one section of a constitutional
Amendment whose other sections by their own terms
embody limitations on state authority. We think that
Congress may, in determining what is ‘‘appropriate
legislation’’ for the purpose of enforcing the provi-
sions of the Fourteenth Amendment, provide for pri-
vate suits against States or state officials which are
37
Opinion of the Third Circuit Court of Appeals.
constitutionally impermissible in other contexts. See
Edelman v. Jordan, 415 U.S. 651 (1974) ....
427 U.S. at 456 (citations and footnote omitted).
Significantly, in this context of Congress’ exercise of
its enforcement powers under § 5 of the fourteenth amend-
ment, the Court did not even discuss the requirement earlier
expressed in Parden and Edelman that a valid waiver of
the state’s eleventh amendment immunity depends upon its
consent to congressional authorization of damage actions
by private parties against state defendants. See Field,
The Eleventh Amendment and Other Sovereign Immunity
Doctrines: Congressional Imposition of Suit Upon the
States, 126 U. Pa. L. Rev. 1203, 1235-37 (1978).
Justices Brennan and Stevens separately concurred in
the Court’s judgment in Fitzpatrick on grounds not ap-
plicable to our discussion here. See 427 U.S. at 457-58
(Brennan, J., concurring); id. 458-60 (Stevens, J., con-
curring).
Skehan’s argument is that the Supreme Court’s de-
cision in Monell last term, overruling Monroe v. Pape, re-
moved any distinction between Edelman and Fitzpatrick
and, in effect, overruled sub silentio the holding in Edelman
that § 1983 was not a congressional authorization of suits
against a class of defendants literally including states.
We need not review here the Supreme Court’s analysis
of the legislative history of § 1983 in Monell that led it to
its conclusion ‘‘that Congress did intend municipalities and
other local government units to be included among those
persons to whom § 1983 applies.’’ — U.S. at —, 98S. Ct.
at 2035 (footnote omitted; Court’s emphasis). However,
we should note that the Court also held that ‘‘the language
of § 1983, read against the background of the same legis-
lative history, compels the conclusion that Congress did not
intend municipalities to be held liable unless action pur-
suant to official municipal policy of some nature caused a
constitutional tort. [I]n other words, a municipality can-
not be held liable under § 1923 on a respondeat superior
38
Opinion of the Third Circuit Court of Appeals.
theory,’ Id. at —, 98 S. Ct. at 2036. Rather, the Court
concluded that ‘‘it is when execution of a government’s
policy or custom, whether made by its lawmakers or by
those whose edicts or acts may fairly be said to represent
official policy, inflicts the injury that the government as an
entity is responsible under § 1983.’’ Id. at —, 98 S. Ct. at
2038.
The possible effect of this holding on the eleventh
amendment sovereign immunity doctrine was not addressed
by the Court; the Monell holding was ‘‘limited to local
government units which are not considered part of the
State for Eleventh Amendment purposes.’’ Jd. at —, n.54,
98 S. Ct. at 2035 n.54. In the case before us today we are
confronted with a local government defendant that has
been held to share in the eleventh amendment sovereign
immunity of the Commonwealth of Pennsylvania. How-
ever, Bloomsburg State College’s status as a person under
§ 1983 has not been previously determined by this Court
or the district court; up until now subject matter juris-
diction over the College in this case has been affirmed only
under the general federal question jurisdiction of 28 U.S.C.
§ 1331. See 501 F.2d at 44. If we were to accept Skehan’s
contention that Monell overruled Edelman sub silentio on
the question of §1983’s effect on the state’s eleventh
amendment immunity it might first be necessary to remand
this case to the district court with instructions to determine
the College’s liability as a 41983 defendant under the
guidelines set forth in Monell. See Norris v. Frame, —
F.2d —, No. 78-1090, slip op. at 5 n.8 (3d Cir., filed Oct. 31,
1978).
Such a remand is unnecessary in this case because,
absent a much clearer statement by the Supreme Court to
the effect that § 1983 must now be construed as waiving the
states’ sovereign immunity from awards of monetary dam-
ages, this Court considers itself bound by the holding of
Edelman to the contrary. We note that of the present
members of the Supreme Court, Justice Brennan has ex-
pressed his view that it is at least an open question whether
39
Opinion of the Third Circuit Court of Appeals.
Edelman has been overruled by Monell. See Hutto v.
Finney, — U.S. —, —-—, 98 S. Ct. 2565, 2579-81 (1978)
(Brennan, J., concurring). Justice Powell, joined by the
Chief Justice and Justices White and Rehnquist, has
argued, to the contrary, that the vitality of the Edelman
holding has not been undermined sub silentio by Fitzpatrick
and Monell. See id. —n.6, 98 S. Ct. at 2583 n.6 (Powell, J.,
concurring in part and dissenting in part). Thus, the con-
clusion that Edelman is no longer good law is certainly not
an inescapable one. We feel that it would be inappropriate
for this Court to hold that Edelman has been overruled by
Monell, an opinion issued only four years later, when such
a result was not even intimated by the authors of the
majority, concurring and dissenting opinions in Monell.
We conclude that Skehan’s argument that the College’s
sovereign immunity has been waived by the congressional
imposition of suits upon the states in § 1983 is precluded
by the Supreme Court’s opinion in Edelman v. Jordan.
Thus, our prior determination that Skehan is not en-
titled to a back pay award against the College because of
its status as an agency of the Commonwealth to which
eleventh amendment sovereign immunity attaches will not
be disturbed.
C. Official Immunity
On remand from this Court the district court heard
additional testimony on the question of the defendants’
good faith in failing to comply with Skehan’s request for
an Article 5e hearing and in terminating his employment
with the College without a prior hearing. See Part IB
supra. That the defendants violated procedural due
process with respect to Article 5e has today been affirmed
by this Court, see Part II supra; we earlier affirmed that
the defendants violated procedural due process by terminat-
ing Skehan’s employment during the term of his contract
without a prior hearing, see 501 F.2d at 38.
In its opinion issued on May 18, 1977, the district court
concluded, based on its findings of fact, that defendant
40
Opinion of the Third Circuit Court of Appeals.
Nossen’s actions with respect to both violations of pro-\
cedural due process established by Skehan had been taken
in good faith and without malicious intention. The court
also concluded that he had acted in a reasonable manner
and had not violated clearly established constitutional
rights with respect to either denial of due process. 431
F. Supp. at 1391. In its later opinion, entered on July 20,
1977, the court stated that the only individual defendant
from whom Skehan had sought monetary damages was
President Nossen, and because he and the College were
both immune from liability, the court wads unable to award
Skehan any relief in the nature of backpay. 436 F. Supp.
at 659. Skehan challenges both the district court’s refusal
to address the question of the liability of each individual
defendant in this case, and its findings and conclusions with
respect to Nossen’s immunity from liability.
Language in this Court’s en bane opinion indicated
our belief that the district court would be required to
consider the availability of the official immunity defense
to each of the individual defendants. For example, we
stated:
The district court will be required to inquire into the
status and responsibility of each individual defendant
and to determine whether, for example, a trustee
should be held responsible for the same level of
knowledge of constitutional rights as a college presi-
dent or a commissioner of education. The determina-
tion 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.
538 F.2d at 62. In the concluding section of our opinion,
summarizing the directions to the district court on remand,
we included an instruction that ‘‘[t]he court should then
make findings of fact with respect to the immunity of each
defendant in conformance with this opinion.’’ Jd. 63.
4]
Opinion of the Third Circuit Court of Appeals.
Of course, if the district court was correct in its con-
clusion that Skehan was only seeking monetary damages
from one of the individual defendants, then this Court’s
assumption to the contrary could not alter that fact.
On December 1, 1976, the district court issued an
order reducing to writing certain agreements made be-
tween the parties at a pre-trial conference held that day.
Within that order the court stated: ‘‘The parties stipulated
at the final pre-trial conference that the Defendants Pit-
tenger and Carlson are not liable to the Plaintiff for
damages.’’ Skehan has not presented any challenge to
the accuracy of that statement, nor any reason why that
stipulation should not be binding. Thus, there was no
error in the district court’s failure to consider the ap-
plicability of the official immunity defense to defendants
Pittenger and Carlson.
Skehan did not name the individual members of the
College’s Board of Trustees as defendants in his complaint.
In his description of the parties therein he identified the
defendant Board of Trustees as ‘‘the official supervisory
body of deferidant, Bloomsburg State College.’? On De-
cember 1, 1976, Skehan filed a motion with the district
court for leave to file an amendment to his complaint
adding the names of the individual members of the Board
to the list of parties defendant. The district court denied
that motion in an order dated December 23, 1976, and
Skehan challenges that order.
The district court held that Skehan’s assumption that
the individual trustees had already been made parties to
this suit, and the fact that they had been made aware of
its institution and progress to date, did not override the
requirement that they be properly served as parties de-
fendant under Rule 4 of the Federal Rules of Civil Pro-
cedure. In ruling on Skehan’s motion, the court did not
reach the question whether the requested amendment would
be barred by the statute of limitations, or whether it might
‘trelate back’’ to the date of the original complaint under
Rule 15(c) of the Federal Rules of Civil Procedure.
42
Opinion of the Third Circuit Court of Appeals.
Rather, the sole basis of its decision denying Skehan’s
motion was that ‘‘justice requires that the amendment not
be allowed at this stage of the proceedings,’’ given that
the trustees had not been previously informed that they
were subject to individual liability, that portions of the
ease had already been decided on the merits and that trial
on the remaining portions was about to commence.
Skehan contends that the district court abused its
discretion in denying his motion to add the trustees as
defendants. He argues that basic fairness required the
court to grant his motion because he was not made aware
that he would have to name the trustees as individuals
in order to obtain back pay until this Court raised the
issue of the College’s possible sovereign immunity in its
panel opinion entered on May 3, 1974. See 501 F.2d at
41-43.
Like a motion to reopen the record for the taking of
additional testimony, see Part I,B supra, a Rule 15(a)
motion for leave to amend the pleadings is within the
sound discretion of the trial court. Zenith Radio Corp. v.
Hazeltine Research, Inc., 401 U.S. 321, 330 (1971) ; Foman
v. Davis, 371 U.S. 178, 182 (1962). Although district
courts are required to allow amendments freely under the
terms of the Rule, certain factors, such as undue prejudice
to the other party and undue delay by the movant, have
been found to establish sufficient justification for the
denial of such motions. See 3 Moore’s Federal Practice
1 15.08[4] at 91-94 (2d ed. 1978). Here, the district court
found that the trustees would be prejudiced by their addi-
tion as parties defendant in their individual capacities
because they had not been participants in the proceedings
that established Skehan’s right to recovery on the pre-
termination hearing claim. Moreover, Skehan’s motion
wa . filed unti! a short time prior to the scheduled date
of trial on his remaining substantive claims. In light of
the district court’s careful consideration of these factors
we cannot find the court’s denial of Skehan’s motion for
43
Opinion of the Third Circuit Court of Appeals.
leave to add the individual members of the Board of
Trustees as named defendants in his complaint to have
been contrary to the sound exercise of its discretion.
Thus, the district court was correct in its assertion
that Skehan had sought monetary damages from only one
of the individual defendants properly served as a party
to this action. The earlier assumption of this Court to
the contrary cannot alter that fact, and, therefore, there
was no error in the court’s failure to consider the ap-
plicability of the official immunity defense to any defendant
other than President Nossen.
This Court directed the district court to make findings
concerning ‘‘whether the defendants met their burden of
establishing (1) that they did not know and reasonably
need not have known that depriving Skehan of a pre-
termination hearing violated due process, and (2) that
they acted without malicious intention to deprive him of
his constitutional rights or cause him to suffer other
injury.’’ 538 F.2d at 62. Similar findings were to be
made if the district court found for Skehan on his Article
5e claim. Jd. 63. After hearing testimony on this issue
the district court concluded that defendant Nossen had
met his burden of proving both elements of the official
immunity test, as set forth by the Supreme Court in
Wood v. Strickland, 420 U.S. 308 (1975). The court fully
set forth the factual findings it relied upon in reaching
those conclusions.
Our review of the record does not support Skehan’s
conteution that the district court’s factual findings should
be set aside as clearly erroneous. In reviewing those find-
ings we must credit the district court’s evaluation of the
testimony, and that testimony clearly supports the court’s
findings that President Nossen did not act with malicious
intent or in knowing violation of Skehan’s constitutional
rights in failing to provide him with either the procedures
set forth in Article 5e or a hearing prior to his termination.
Additionally, we agree with the district court that at
the time these events occurred in the Fall of 1970, defend-
44
Opinion of the Third Circuit Court of Appeals.
ant Nossen did not have reason to know that his actions
would later he held to have violated Skehan’s constitutional
rights. As the district court pointed out, quoting an opinion
of the Seventh Circuit, ‘‘The first definitive holding that a
termination of teachers’ property interests in their em-
ployment contracts with state institutions required due
process hearings was Board of Regents of State Colleges
v. Roth, (408 U.S. 564 (1972)].’? 431 F. Supp. at 1391,
quoting Hostrop v. Board of Junior College District No.
515, 523 F.2d 569, 578 (7th Cir. 1975), cert. denied, 425 U.S.
963 (1976). The first definitive holding that Skehan was
contractually entitled, under Pennsylvania law, to the pro-
visions of Article 5e, and that the College’s failure to af-
ford him those procedures violated due process, was the
district court’s opinion in this case on the 5e issue. Para-
phrasing the Supreme Court’s opinion in Wood v. Strick-
land, supra at 321, we cannot say that President Nossen
acted in ‘‘ignorance or disregard of settled, indisputable
law’’ when he terminated Skehan’s employment with the
College without a prior hearing and without having acted
upon his request for an Article 5e hearing.
We agree with the district court’s findings and con-
clusions that defendant Nossen established by a preponder-
ance of the evidence that he was entitled to an official im-
munity defense from Skehan’s claims for monetary
damages arising from either his dismissal from the College
without a prior hearing or his failure to receive the aca-
demic freedom hearing set forth in Article 5e.5
D. Injunctive Relief
The distriet court issued a final order, unchallenged,
and indeed supported, by the defendants, granting Skehan
the following injunctive relief: he was reinstated to the
3. Because we have affirmed the determination that neither the College nor
any of the individual defendants are liable to Skehan for a back pay award,
we need not consider the defendants’ argument that the earlier directions of
this Court concerning the appropriate amount of such an award, see 538 F.2d
at 63; Part 1IT,A supra, must be reconsidered in light of the Supreme Court's
intervening decision in Carey v. Piphus, 435 U.S. 247 (1978).
45
Opinion of the Third Circuit Court of Appeals.
suspended with pay status he held at the College on October
15, 1970; the College was ordered to recreate for his case
the procedures of Article 5e; a reconstituted Committee on
Professional Affairs was to conduct the initial investigation
of Skehan’s allegation that his nonrenewal resulted from
considerations violative of his academic freedom; deadlines
were established for each stage of the nonrenewal proceed-
ings set out in Article 5e and Article 9, see note 1 supra;
and, following a final decision on Skehan’s renewal or non-
renewal, the President of the College was given the option
of holding a pretermination hearing within 30 days—failure
to hold that hearing within the stated time would result in
Skehan’s full reinstatement as a faculty member of the
College. 436 F. Supp. at 668-69.
Skehan contends that he should have been fully rein-
stated as a faculty member of the College pending the
appropriate proceedings. In spite of his assertion to the
contrary, nothing in this Court’s prior opinions in this
case required the district court to order Skehan fully rein-
stated to the position he held at the time prior to his sus-
pension from teaching responsibilities. Rather, in our
opinion en banc this Court directed that the district court
should consider prospective reinstatement as a remedy for
the College’s violation of Skehan’s right to the procedures
set forth in Article de ‘‘at least until appropriate college
termination procedures have taken place.’’ 538 F.2d at 63.
We did not instruct the district court that it had to award
Skehan prospective reinstatement as a remedy for the 5e
violation, nor did we define the terms of such reinstatement
with particularity.
The district court determined that Skehan’s reinstate-
ment to the suspended with pay status he held prior to his
termination from the College’s employment on October 19,
1970, was a grant of equitable relief appropriate to this
ease. We believe that the court’s order minimized the dis-
ruptive effects that would have resulted at the College had
it required the administration to provide classes for Skehan
46
Opinion of the Third Circuit Court of Appeals.
to teach pending the results of the mandated hearing pro-
ceedings. Additional disruption of scheduling would have
occurred had the College altered its teaching assignments
to accommodate Skehan’s reinstatement only to determine
some months later that its earlier decision to terminate
Skehan’s employment as a faculty member was to be
reaffirmed.
On the other hand, the court’s order enabled Skehan to
return to the College’s payroll pending the proceedings to
which he was entitled and, thus, he was not ‘‘unduly limited
in his ability to pursue the hearing remedy.’’ 436 F. Supp.
at 664. We believe that the relief afforded by the district
court presented an equitable accommodation of the interests
of both the College and Dr. Skehan. Noting the admoni-
tion of the Supreme Court that, ‘‘[i]n shaping equity
decrees, the trial court is vested with broad discretionary
power; appellate review is correspondingly narrow,”’’
Lemon v. Kurtzman, 411 U.S. 192, 200 (1973), we hold that
the district court’s failure to order the College to provide
Skehan with teaching responsibilities pending his Article
de and pretermination hearings did not constitute an abuse
of discretion.
Skehan has apprised this Court of proceedings that
have taken place at the College subsequent to the district
court’s order reinstating him to a suspended status. He
argues that this Court should fully reinstate him to his
former position at Bloomsburg State because the College
did not comply with that ‘aspect of the district court’s order
mandating his full reinstatement if no pretermination hear-
ing were held within 30 days of a final decision on the ques-
tion of his renewal or nonrenewal. We believe that any
questions concerning the College’s compliance with the
district court’s final order of July 20, 1977, should be ad-
dressed to that court in the first instance. Thus, we shall
deny the motion filed by Skehan in this Court for leave to
file a supplemental appendix detailing events that have
transpired at the College subsequent to the district court’s
order.
47
Opinion of the Third Circuit Court of Appeals.
During the proceedings below Skehan based his claim
for an award of attorney’s fees on the provisions of the
Civil Rights Attorney’s Fees Awards Act of 1976,‘ which
had been enacted subsequent to this Court’s en bane opin-
ion. The district court made factual findings, unchallengea
here, that would preclude a fee award based on the alterna-
tive grounés of the defendants’ bad faith either in the pre-
litigation stages of this case or in the pursuit of their de-
fense. See 436 F. Supp. at 663. The court also denied
Skehan’s request for attorney’s fees under the provisions
of the Awards Act. Skehan’s challenge to this aspect of the
district court’s order is governed by the opinion of the
Supreme Court in Hutto v. Finney, — U.S. —, 98 S. Ct.
2565 (1978).
The district court’s ruling denying Skehan’s request
for attorney’s fees under the Awards Act from either de-
fendant Nossen or from the College was multifaceted.
First, the court held that defendant Nossen was not
personally liable for such an award because Skehan was
not a ‘‘prevailing party’’ vis a vis Nossen. This followed
from the fact that Nossen had established immunity to
Skehan’s claim for damages. 436 F. Supp. at 665. Even
if Nossen’s successful official immunity defense could not
be viewed as preventing Skehan from characterizing him-
self as a prevailing party, the court held that it would have
denied Skehan’s request for fees from Nossen as an ex-
ercise of its discretion under the Act. The court stated
that an award of fees against Nossen in his individual
capacity would be grossly unjust, and would tend to ‘‘se-
4. The Civil Rights Attorney’s Fees Awards Act of 1976, Pub. L. No.
94-559, 90 Stat. 2641, amending 42 U.S.C. § 1988, was enacted on October 19,
1976. It provides:
In any action or proceeding to enforce a provision of sections 1981, 1982,
1983, 1985, and 1986 of this title, title IX of Public Law 92-318, or in any
civil action or proceeding, by or on behalf of the United States of America,
to enforce, or charging a violation of, a provision of the United States
Internal Revenue Code, or Title VI of the Civil Rights Act of 1964, the
court, in its discretion, may allow the prevailing party, other than the
United States, a reasonable attorney's fee as part of the costs.
48
Opinion of the Third Circuit Court of Appeals.
verely undermine the policies which motivated the Supreme
Court to fashion [the official immunity] defense.’’ Id.
665-66.
The Supreme Court, in its opinion in Hutto v. Finney,
stated that, absent a finding that individual defendants had
litigated in bad faith, they would not be held liable to a
fee award under the Awards Act. — U.S. at —, 98 S. Ct.
at 2579. Thus, the district court’s refusal to award fees
to Skehan against defendant Nossen in his individual ea-
pacity could be affirmed on the basis of the court’s factual
finding that the defendants in this case had not pursued
their defense in bad faith. Moreover, language in the
Hutto opinion also suggests that the district court soundly
exercised its discretion in refusing to award fees against
a defendant who had been deemed immune from liability
for damages under the official immunity doctrine. In a
footnote disputing the dissenters’ suggestion that the
Awards Act should be construed to provide for fee awards
only against individual defendants, the Hutto majority
stated:
This is manifestly unfair when, as here, the individual
officers have no personal interest in the conduct of the
State’s litigation, and it defies this Court’s insistence
in a related context that imposing personal liability
in the absence of bad faith may cause state officers to
‘fexercise their discretion with undue timidity.’’
Wood v. Strickland, 420 U.S. 308, 321....
Id, at —, n.32, 98 S. Ct. at 2578, n.32 (citation omitted).
The Supreme Court’s opinion in Hutto is dispositive of
Skehan’s challenge to the district court’s refusal to grant
an award of attorney’s fees against Nossen. That refusal
must be viewed as a valid exercise of the court’s discretion
under the Act, given its previous determinations that Nos-
sen was Officially immune from damage liability and that he
had not pursued his defense in bad faith.
49
Opinion of the Third Circuit Court of Appeals.
The district court also held, however, that Skehan was
not entitled to a fee award against the defendants in their
official capacities. The Court stated that ‘‘[i]n the absence
of explicit statutory language [in the Awards Act] sub-
jecting the states to liability for damages and attorney’s
fees, this Court will not imply a limit to the state’s im-
munity to suit under the Eleventh Amendment.’’ 436
F. Supp. at 667. Thns, the court held that Skehan was con-
stitutionally barred from recovery of a fee award against
the College. The Supreme Court’s opinion in Hutto re-
quires us to reverse that holding.
In Hutto the Court held that under the Awards Act
fees may be recovered from governmental entities other-
wise entitled to immunity under the eleventh amendment.
This holding was based on the Act’s legislative history,
clearly indicating Congress’ intent to allow recovery of
attorney’s fees from the states or local governments, and
on the fact that attorney’s fees ‘‘as a part of the costs’’
have traditionally been awarded without regard for the
states’ sovereign immunity. — U.S. at —-—, 98 S. Ct.
at 2575-79. The Court also made clear that the Awards
Act applies to cases, such as this one, that were pending
on the date of its enactment. Id. at —, n.23, 98 S. Ct. at
2576, n.23. See generally Bradley v. School Board of City
of Richmond, 416 U.S. 696, 710-11 & n.14 (1974). Moreover,
the Court held that whether or not state agencies are named
as defendants in a § 1983 action, the Awards Act contem-
plates that the prevailing plaintiff may recover fees from
the individual defendants in their official capacities or di-
rectly from the state agencies. — U.S. at —, 98 S. Ct. at
2578-79. Thus, the district court need not determine
whether the College is a person subject to liability under
§ 1983 in order to grant Skehan’s request for attorney’s
fees from the College. See Part III,B,2 supra.
The Hutto opinion necessitates that we remand this
case to the district court for consideration of an award of
attorney’s fees to Skehan from the College under 42 U.S.C.
§ 1988. The district court suggested in its opinion on the
50
Opinion of the Third Circuit Court of Appeals.
attorney’s fees aspect of this case that even if the eleventh
amendment did not bar a recovery of fees from the College,
the court, in its discretion, would only have awarded fees
to Skehan for time expended on the Article 5e claim.
There is no need for us to rule on that suggestion at this
time. Nonetheless, we refer the district court to the legis-
lative history of the Awards Act, which offers some guid-
ance as to Congress’ intent with respect to the standards
governing the diseretion of district courts in making fee
awards. The Senate Report accompanying the Act states:
It is intended that the standards for awarding
fees be gencrally the same as under the fee provisions
of the 1964 Civil Rights Act. A party seeking to en-
force the rights protected by the statutes covered by
[§ 1988], if successful, ‘‘should ordinarily recover an
attorney’s fee unless special circumstances would
render such an award unjust.’’ Newman v. Piggie
Park Enterprises, Inc., 390 U.S. 400, 402 (1968).
S. Rep. No. 94-1011, 94th Cong., 2d Sess. 4, reprinted in
[1976] U.S. Code Cong. & Ad. News 5908, 5912 (footnote
omitted).
The computation of an appropriate fee award in this
case should, of course, conform to the general standards
formulated by this Court in prior opinions. See Hughes
v. Repko, 578 F.2d 483 (3d Cir. 1978).
F.. Costs
' Skehan’s final ground for appeal questions the district
court’s award of court costs. In its final opinion the dis-
trict court stated that, ‘‘[b]ecause each party was at fault
in this case, it seems appropriate that each party shall bear
his own costs.’’ 436 F. Supp. at 667. In its original opinion
on the merits of this case, entered on May 9, 1973, the dis-
trict court stated that ‘‘the Clerk will be directed to enter
judgment in favor of the Plaintiff . . . together with
costs.’’ 358 F. Supp. at 436. We shall assume that
51
Opinion of the Third Circuit Court of Appeals.
Skehan’s entitlement to costs connected with the earlier
proceedings in the district court, which were taxed against
defendants on June 4, 1973, was not meant to be rescinded
by the district court’s order directing that each party bear
his own costs with respect to the proceedings after remand.
Given that assumption, we find no basis to alter the dis-
trict court’s determination as to costs.
IV. ConcLusion
We shall deny defendants’ motion to dismiss Skehan’s
appeal or, alternatively, to strike his brief and appendix
and to require that they be refiled.
The judgment of the district court will be affirmed,
except that the case will be remanded to the district court
for consideration of an award of attorney’s fees to plain-
tiff Skehan against the defendants in their official capac-
ities, pursuant to the Civil Rights Attorney’s Fees Awards
Act of 1976.
Each party shall bear his own costs with respect to this
appeal and cross-appeal.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
52
Judgment
This cause came on to be heard on the record from the
United States District Court for the Middle District of Penn-
sylvania and was argued by counsel on September 29, 1978.
On consideration whereof, it is now here ordered and ad-
judged by this Court that the orders of the said District Court,
filed March 24, 1977, May 18, 1977 and July 20, 1977, be, and |
the same are hereby affirmed, except that the cause is re-
manded to the said district court for consideration of an
award of attorney's fees to plaintiff Skehan against the defen-
dants in their official capacities, pursuant to the Civil Rights
Attorney's Fees Awards Act of 1976, all in accordance with
the opinion of this Court. Each party sMall bear his own costs
with respect to this appeal and cross-appeal.
ATTEST:
M. ELIZABETH FERGUSON,
Chief Deputy Clerk.
December 21, 1978
53
Order Enlarging Time to File Petition
for Rehearing
Present: SEITZ, Chief Judge
1. Motion by appellant-cross-appellee, Joseph T. Skehan,
for an extension of time to file petition for rehearing from its
present due date of January 4, 1979, to and including January
29, 1979, in the above-entitled cases. The opinion was filed
and the judgment entered on December 21, 1978.
Respectfully,
T. F. QUINN/ags,
Clerk.
ags
enc,
P.S.-If any answer, due by January 15, 1979, is received it will
be forwarded immediately to you.
The foregoing Motion is granted.
By the Court,
SEITZ,
Chief Judge.
Dated: January 9, 1979
S4
Order Further Staying the Mandate.
Order Staying the Mandate
Pursuant to Rule 41(b) of the Federal Rules of Appellate
Procedure, it is ORDERED that issuance of the certified
judgment in lieu of formal mandate tn the above cause be,
and it is hereby stayed until March 23, 1979.
SEITZ,
Chief Judge.
Dated: February 23, 1979
Order Further Staying the Mandate
Pursuant to Rule 41(b) of the Federal Rules of Appellate
Procedure, it is ORDERED that issuance of the certified
judgment in lieu of formal mandate in the above cause be,
and it is hereby further stayed until May 15, 1979.
SEITZ,
Chief Judge.
Dated: April 6, 1979
55
Sur Petition for Rehearing—Third Circuit
Court of Appeals
UNITED STATES COURT OF APPEALS
For the Third Circuit
Nos. 77-2311 and 77-2312
DR. JOSEPH T. SKEHAN,
v.
BOARD OF TRUSTEES OF BLOOMSBURG STATE
COLLEGE, ET AL.,
DR. JOSEPH T. SKEHAN,
Appellant in No. 77-2311,
BOARD OF TRUSTEES OF BLOOMSBURG STATE
COLLEGE, ET AL., ETC., -
Appellants in No. 77-2312.
SUR PETITION FOR REHEARING
Present: SEITZ, Chief Judge, ALDISERT, ADAMS, GIB-
BONS, ROSENN, HUNTER, WEIS, GARTH, HIGGIN-
BOTHAM, Circuit Judges and LACEY, District Judge.
The petition for rehearing filed by Plaintiff-Appellant in
the above entitled case having been submitted to the judges
who participated in the decision of this court and to all the
other available circuit judges of the circuit in regular active
service, and no judge who concurred in the decision having
asked for rehearing, and a majority of the circuit judges of the
SO
Deny Stay Order Dated November 30, 1977—
Third Circuit Court of Appeals.
circuit in regular active service not having voted for rehearing
by the court in banc, the petition for rehearing is denied.
By the Court,
(ILLEGIBLE) SEITZ,
Chief Judge.
Dated: February 14, 1979.
Deny Stay Order Dated November 30, 1977—
Third Circuit Court of Appeals
UNITED STATES COURT OF APPEALS
For The Third Circuit
Nos. 77-2311/12
——-
DR. JOSEPH T. SKEHAN,
Appellant, No. 77-2311,
VS.
BOARD OF TRUSTEES OF BLOOMSBURG STATE COL-
LEGE and DR. ROBERT NOSSEN and DR. CHARLES
CARLSON and JOHN PITTENGER, Superintendeni of
Education, Commonwealth of Pennsylvania and BLOOMS-
BURG STATE COLLEGE,
a
(D.C. Civil No, 72-644)
Appellants, No, 77-2312.
57
Deny Stay Order Dated November 30, 1977—
Third Circuit Court of Appeals.
November 21, 1977
Present!) ROSENN and VAN DUSEN, Circuit Judges.
1. Motion by Dr. Joseph T. Skehan, appellant in No. 77-
2311, to reconsider this Court's order dated November 4
1977, which order denied appellant's motion for Stay of part
of the order of the District Court of July 20, 1977.
2. Appellees’ letter-answer, dated November 15, 1977. to
appellant's motion, ;
3. Copy of this Court’s order dated November 4, 1977 sent
by the undersigned for the Court's information,
in the above-entitled cases.
Respectfully,
(ILLEGIBLE) QUINN fm,
Clerk.
enc.
FM: jg
The foregoing Motion is/are denied
By the Court,
(ILLEGIBLE) ROSENN,
Judge.
Dated: November 30, 1977
SX
Deny Stay Order Dated November 4, 1977—
Third Circuit Court of Appeals
UNITED STATES COURT OF APPEALS
For The Third Circuit
No. 77-2311-12
DR. JOSEPH T. SKEHAN,
Appellant, No. 77-2311,
VS.
BOARD OF TRUSTEES OF BLOOMSBURG STATE
COLLEGE and DR. ROBERT NOSSEN and DR.
CHARLES CARLSON and JOHN PITTENGER, Superin-
tendent of Education, Commonwealth of Pennsylvania and
BLOOMSBURG STATE COLLEGE,
Appellants, No. 77-2312.
(D. C. Civil No. 72-644).
October 21, 1977
Present. ROSENN and VAN DUSEN, Circuit Judges.
1. Motion by Dr. Joseph T. Skehan, appellant in No. 77-
2311, to stay part of District Court order of July 20, 1977,
pending final determination of all motions and appeals chal-
lenging it,
sy
Deny Stay Order Dated November 4, 1977—~
Third Circuit Court of Appeals.
2. Appellees’ brief in o i
Oct. 31st. 1977 Pposition to the above motion filed
in the above-entitled Cases.
Respectfully,
(ILLEGIBLE) QUINN fm.
Clerk.
enc.
tm
The foregoing Motion is/are denied.
By the Court,
(ILLEGIBLE) ROSENN,
Judge.
Dated: November 4, 1977
OO
Deny Stay Order Dated December 8, 1977—
Third Circuit Court of Appeals
UNITED STATES DISTRICT COURT
For the Middle District of Pennsylvania
DR. JOSEPH T. SKEHAN,
Plaintiff,
VS.
BOARD OF TRUSTEES OF BLOOMSBURG
STATE COLLEGE, FET AL.,
Defendants.
Civil No. 72-644
(Complaint Filed 12/22/72)
(Judge Muir)
ORDER
December &, 1977
THE BACKGROUND OF THIS ORDER IS AS
FOLLOWS:
On July 20, 1977, this Court entered an Order directing that
Skehan be reinstated to the suspense status he held as a
faculty member at Bloomsburg State College on October 15,
1970 and that certain administrative procedures be afforded
him. The purpose of this action was to remedy certain
violations of due process which had occurred in the ter-
mination of Skehan as a professor, at Bloomsburg State
College in 1970 and a decision not to renew his contract of
()]
Deny Stay Order Dated December 8, 1977—
Third Circuit Court of Appeals.
employment at Bloomsburg State College beyond the 1970-71
academic year. On October 11, 1970, Skehan submitted to the
Court a motion for a rule to show cause why part of the Order
of July 20, 1977 should not be stayed pending final deter-
mination of all motions and appeals challenging it. On Oc-
tober 31, 1977, this Court denied that motion because it found
that Skehan had not met the standards required for a stay of
an order.
By Order dated November 4, 1977, the United States Court
ot Appeals for the Third Circuit similarly denied Skehan's
motion for a stay pending appeal. On or about November 15,
1977, Skehan filed a second motion for a stay pending appeal
with the United States Court of Appeals for the Third Circuit.
The United States Court of Appeals has denied this second
motion for a stay pending appeal. On November 22, 1977
Skehan filed a motion in this Court to reconsider the Court's
Order denying his motion to stay the proceedings ordered by
this Court on July 20, 1977. On November 29, 1977, Defen-
dants filed a brief in opposition to Skehan's Motion.
When Skehan filed his motion for reconsideration this
Court lacked jurisdiction to consider it because Skehan filed
a motion for a stay with the United States Court of Appeals. If
this Court had jurisdiction to decide Skehan’s motion it
would affirm its Order of October 31, 1977. The grounds set
forth in Skehan’s motion and the affidavits accompanying it
do not cause this Court in any way to change its view that
Skehan has failed to meet the standards required for a stay to
issue. Determining whether a stay should be granted, the
moving party must show the following:
6?
Deny Stay Order Dated December 8, 1977—
Third Circuit Court of Appeals.
(1) that his success on the merits of the appeal is likely,
(2) that unless the stay is granted he will suffer
irreparable harm,
(3) that no substantial harm will come to other interested
parties and
(4) that the granting of a stay will do no harm to the
public interest.
Belcher vs. Birmingham Trust National Bank, 395 F.2d 685,
686 (Sth Cir. 1968), Long vs. Robinson, 432 F.2d 977, 979 (4th
Cir. 1970). 7 Moore’s Federal Practice, 62.05, page 62-24, 2d
Edition, 1974. For the reasons stated in the background to its
Order of October 31, 1977, this Court finds that Skehan has
not shown that he will suffer irreparable harm if the stay is
not granted and that the Defendants have shown that sub-
stantial harm will result to them if the stay is granted and that
the granting of the stay will do harm to the public interest.
In the light of the foregoing, the Court will affirm its Order
denying Skehan’s motion for a stay of this Court’s Order of
July 20, 1977.
NOW, THEREFORE, IT IS ORDERED THAT:
Skehan’s motion to reconsider the Court's Order of October
31, 1977 is denied.
MUIR,
U.S. District Judge.
03
8/2/77 - Order - Deny New Trial w/o Prejudice
UNITED STATES DISTRICT COURT
For the Middle District of Pennsylvania
DR. JOSEPH T. SKEHAN,
Plaintiff,
VS.
BOARD OF TRUSTEES OF BLOOMSBURG
STATE COLLEGE, ET AL.,
Defendants.
Civil No. 72-644
Complaint Filed 12/22/72
(Judge Muir)
ORDER
August 2, 1977
THE BACKGROUND OF THIS ORDER IS AS
FOLLOWS:
On August 2, 1977; the Plaintiff himself filed a motion for a
new trial and an affidavit and documents in support thereof.
The Plaintiff is represented in this case by able counsel, Bruce
J. Terris, Suellen T. Keiner, and Eleanor M. Granger, of
Washington, and Louise O. Knight of Lewisburg. It is the
practice of this Court not to accept motions prepared and
filed by litigants who are represented by counsel. In cases
where there are counsel of record, all motions must be signed
by counsel. Therefore, the motion and affidavit and
documents in support thereof will be denied without
64
8/2/77—Order—Deny New Trial wo Prejudice.
prejudice. There may well be some doubt as to whether the
motion has been timely filed in accordance with F.R.Civ.P.
5(9). The Court is not ruling at this time on whether the
motion has been timely filed.
NOW, THEREFORE, IT IS ORDERED THAT:
The motion of Plaintiff for new trial filed August 2, 1977 be
and the same is hereby denied without prejudice.
MUIR,
U.S. District Judge.
65
8/10/77—Order Deny Pro Se
UNITED STATES DISTRICT COURT
For the Middle District of Pennsylvania
DR. JOSEPH T. SKEHAN,
Plaintiff,
VS.
BOARD OF TRUSTEES OF BLOOMSBURG
STATE COLLEGE, ET AL.,
Defendants.
Civil No. 72-644
Complaint Filed 12/22/72
(Judge Muir)
ORDER
August 10, 1977
THE BACKGROUND OF THIS ORDER IS AS
FOLLOWS:
On August 2, 1977, Skehan himself filed a motion for a new
trial and an affidavit and documents in support thereof.
Because Skehan is represerted in this case by able counsel,
Bruce J. Terris, Suellen T. Keiner, and Eleanor M. Granger
of Washington, and Louise O. Knight of Lewisburg, the Court
would not accept motions prepared by Skehan and denied his
motion for new trial without prejudice by Order of August 2,
1977. On August 8, 1977, Skehan filed with the Court a
petition to plead and conduct his own case during post-trial
and appellate proceedings. His counsel have submitted no
motion to the Court to withdraw from this case. According to
Hb
8/10/77—Order Deny Pro Se.
Skehan, his counsel have told him that they will only act on
his behalf on matters concerning attorney's fees. The Court
will not allow a situation to develop where Skehan is
represented by counsel on one issue and represents himself on
the remaining issues. This will lead to confusion and frustrate
any expeditious resolution of this case. Until such time as his
counsel files a motion to withdraw from this case, the Court
will require that all motions submitted by Skehan be signed
by his counsel. Skehan’'s petition to plead and conduct his
own case during the post-trial and appellate proceedings will
be denied.
NOW, THEREFORE, IT IS ORDERED THAT:
Skehan’s petition to plead and conduct his own case during
the post-trial and appellate proceedings is denied.
MUIR,
U.S. District Judge.
oe
(7
8/22/77—Order/Deny Withdrawal
UNITED STATES DISTRICT COURT
For the Middle District of Pennsylvania
DR. JOSEPH T. SKEHAN,
Plaintiff,
VS.
BOARD OF TRUSTEES OF BLOOMSBURG STATE
COLLEGE, ET AL.,
Defendants.
Civil No. 72-644
Complaint Filed 12/22/72
(Judge Muir)
ORDER
August 22, 1977
THE BACKGROUND OF THIS ORDER IS AS
FOLLOWS:
On August 18, 1977, Bruce J. Terris, Suellen T. Keiner,
Eleanor M. Granger, and Louise O. Knight filed a motion to
withdraw as counsel for Plaintiff “in present proceedings
before this Court.” At the conclusion of the motion, counsel
requested that the “Court grant their motion for leave to
withdraw”. The Court cannot tell whether this is a motion for
a general withdrawal of appearance or a limited withdrawal.
This Court does not permit withdrawal of counsel for one
purpose and not for another. There is also no indication that
a copy of the motion to withdraw as counsel has been for-
warded to the Plaintiff.
Ox
8,22/77—Order/Deny Withdrawal.
NOW, THEREFORE, IT IS ORDERED THAT
1. The motion of Bruce J. Terris, Sueilen T. Keiner,
Eleanor M. Granger, and Louise O. Knight to withdraw as
counsel “in present proceedings before this Court” filed
August 18, 1977 be and the same is hereby denied without
prejudice.
2. The Clerk shall send a copy of this Order to counsel
and to Plaintiff.
MUIR,
U.S. District Judge.
OE —————————<——
9
8/22/77—Order No. 2 Deny New Trial/Pro Se
UNITED STATES DISTRICT COURT
For the Middle District of Pennsylvania
DR. JOSEPH T. SKEHAN,
Plaintiff,
VS.
BOARD OF TRUSTEES OF BLOOMSBURG STATE
COLLEGE, FET AL.,
Defendants.
Civil No. 72-644
Complaint Filed 12/22/72
(Judge Muir)
ORDER NO. 2
August 22, 1977
THE BACKGROUND OF THIS ORDER IS AS
FOLLOWS:
On August 19, 1977, shortly before 5:00 P.M. the Plaintiff
filed in Lewisburg his motion to reinstate Plaintiff's motion
for new trial and to plead and conduct his own case. He refers
therein to advice received by him from his attorneys that they
had filed their praecipe to withdraw. The motion for with-
drawal was ambiguous and has been denied by this Court.
Since Plaintiff is still represented of record by able counsel,
such counsel must execute all motions. The Plaintiff also on
August 19, 1977 filed a copy of his motion to extend time ad-
dressed to the Court of Appeals, a notice of appeal, and a let-
ter to the undersigned judge stating in part “It sets forth the
70
8/22;77—Order No. 2 Deny New Trial/Pro Se.
data permitting, it would appear, two interpretations: that no
‘final judgment’ be present: that ‘final judgment’ be present.
“Thank you for your views on this matter.”” This Court does
not give any litigant any advisory views on any matter.
NOW, THEREFORE, IT IS ORDERED THAT:
1. The Plaintiff's motion filed August 19, 1977 to reinstate
Plaintiff's motion for new trial and to plead and conduct his
own case is denied without prejudice.
2. The Plaintiff's request dated August 19, 1977 for the
views of the undersigned judge is rejected.
MUIR,
U.S. District Judge.
cai a atk cecum alae
7\
8/31/77—Order—Grant Withdrawal
UNITED STATES DISTRICT COURT
For the Middle District of Pennsylvania
DR. JOSEPH T. SKEHAN,
Plaintiff,
VS.
BOARD OF TRUSTEES OF BLOOMSBURG STATE
COLLEGE, ET AL.,
Defendants.
Civil No. 72-644
Complaint Filed 12/22/72
(Judge Muir)
ORDER
August 31, 1977
THE BACKGROUND OF THIS ORDER IS AS
FOLLOWS:
On August 30, 1977, counsel for Skehan, Bruce J. Terris,
Suellen T. Keiner, Eleanor M. Granger, and Louise O.
Knight, filed with the Court a motion to withdraw as counsel
for Skehan in this case. The motion is for a total withdrawal
as counsel. Counsel also submitted a brief in support of the
motion, According to the brief, the reason for the withdrawal
is a breakdown of confidence and communication between
counsel and Plaintiff. Skehan has requested that counsel with-
draw from the entire case. The Court will grant the motion
for withdrawal.
72
8/31/77—Order—Grant Withdrawal.
73
9/12/77—Order Grant Pro Se
UNITED STATES DISTRICT COURT
For the Middle District of Pennsylvania
NOW, THEREFORE, IT IS ORDERED THAT:
The motion of Skehan’s counsel to withdraw as counsel
from the above-captioned case is granted.
MUIR,
U.S. District Judge. JOSEPH T. SKEHAN,
Plaintiff,
Vv
BOARD OF TRUSTEES OF BLOOMSBURG STATE
COLLEGE, ET AL.,
Defendants.
Civil No. 72-644
(Judge Muir)
ORDER
September 12, 1977
THE BACKGROUND OF THIS ORDER IS AS FOL-
LOWS:
On August 2, 1977 Skehan filed pro se a motion for a new
trial. On August 6, 1977 Skehan filed pro se a motion to plead
and conduct his own case. On August 2 and August 10, 1977
the Court denied those motions without prejudice because
Skehan had counsel and they had not signed them. Skehan’s
counsel had been given, at their motion, leave to withdraw
from representing Skehan in this case.
* On September 1, 1977 Skehan filed with the Court a motion
to reinstate his motions for new trial and to plead and con-
duct his own case. Reinstatement is not the proper procedure
and this Court will in the future deny motions for reinstate-
74
4/1 2/77—Order Grant Pro Se.
ment unless unusual circumstances are present. Skehan
should have filed a new motion for a new trial and a new
motion to plead and conduct his own case. Because Skehan is
not a lawyer the Court will not require him to submit new
motions. Skehan will be permitted to represent himself be-
cause his counsel has withdrawn. The Court will not wait for
a responsive brief because Skehan at this point in the proceed-
ings has a statutory right to represent himself. 28 U.S.C.
§ 1653
NOW, THEREFORE, IT IS ORDERED THAT:
Skehan’s motion to plead and conduct his own case is
granted.
MUIR,
United States District Judge.
75
9/22/77—Order—Deny New Trial
UNITED STATES DISTRICT COURT
For the Middle District of Pennsylvania
DR. JOSEPH T. SKEHAN,
Plaintiff,
VS.
BOARD OF TRUSTEES OF BLOOMSBURG STATE
COLLEGE, ET AL.,
Defendants.
Civil No. 72-644
Complaint Filed 12/22/72
(Judge Muir)
ORDER
September 22, 1977
THE BACKGROUND OF THIS ORDER IS AS
FOLLOWS:
On August 2, 1977, Skehan filed with this Court a motion
for a new trial. On that same day, the Court denied his
motion for new trial without prejudice because his counsel of
record had not signed it. On August 18, 1977, Skehan’s coun-
sel filed with the Court a motion to withdraw from this case.
On August 22, 1977, the Court denied his motion without
prejudice. On August 19, 1977, Skehan moved to reinstate the
motion for a new trial. On the same day, Skehan filed a notice
of appeal to this Court’s Orders of August 30, 1976, October
22, 1976, November 10, 1976, November 16, 1976, December
22, 1976, December 23, 1976, January 10, 1977, March 24,
—
716
9/22/77—Order—Deny New Trial.
1977, May 18, 1977, and July 20, 1977. On August 22, 1977,
the Court denied Skehan’s motion to reinstate his motion for
a new trial and denied his counsel's motion to withdraw, On
August 30, 1977, Skehan’s counse! submitted a second motion
to withdraw. On September 1, 1977, this Court granted that
motion. On that same day, Skehan filed a second motion to
reinstate his motion for a new trial. On September 8, 1977,
Skehan submitted a brief in support of that motion, On that
same day, the Defendants filed a brief in opposition to that
motion,
The Court is of the view that when Skehan filed a notice of
appeal from this Court's various orders to the United States
Court of Appeals for the Third Circuit on August 19, 1977,
this Court lost jurisdiction to rule upon Skehan’s motion for
reinstatement of his motion for a new trial filed on September
1, 1977. Filing a notice of appeal generally immediatéiy trans-
fers jurisdiction of the case from the District Court to the
Court of Appeals. Hovey vs. McDonald, 109 U.S. 150 (1883);
Plant Economy, Inc. vs. Mirror Insulation Company, 308
F.2d 275, 276-277 (3d Cir. 1962); United States vs. Lafko, 520
F.2d 622, 627 (3d Cir. 1975). An Appeal from an inter-
locutory order does not divest the trial court of jurisdiction
to continue deciding other issues involved in the case. United
States vs. City of Chicago, 534 F.2d 708 (7th Cir. 1976). But
Skehan has in addition to appealing from the various inter-
locutory orders appeated from the final order in the case. No
issues remain to be decided by this Court. If Skehan’s motion
for a new trial had been filed before August 19 and had not
been acted upon by the Court before August 19, then the
notice of appeal would not have divested this Court of
jurisdiction, because the motion for a new trial would have
prevented the judgment of the Court from being final, Sykes
77
9/22/77—Order—Deny New Trial.
vs. United States, 392 F.2d 735, fn. 1, 738 (8th Cir. 1968). But
the Court had already denied Skehan’s motion for a new trial
before notice of appeal was filed. Skehan’s motion to rein-
state his motion for a new trial filed on August 19, 1977 did
not prevent the notice of appeal from depriving this Court of
jurisdiction because a motion for reinstatement does not pre-
vent a judgment from becoming final. Because this Court has
no jurisdiction over Skehan’s motion to reinstate his motion
for a new trial, that motion will be denied.
NOW, THEREFORE, IT IS ORDERED THAT:
Skehan’s motion to reinstate his motion for a new trial is
denied.
MUIR,
U.S. District Judge.
__—
78
Opinioa—July 20, 1977
UNITED STATES DISTRICT COURT
For the Middle District of Pennsylvania
DR. JOSEPH T. SKEHAN,
Plaintiff,
VS.
BOARD OF TRUSTEES OF BLOOMSBURG
STATE COLLEGE, ET AL.,
Defendants.
Civil No. 72-644
Complaint Filed 12/22/72
(Judge Muir)
APPEARANCES:
For Plaintiff—Bruce J. Terris, Esq., Suellen T. Keiner,
Esq., Eleanor M. Granger, Esq., Terris, Needham, Keiner,
Black & Hostetler, 1526 18th St., N.W., Washington, D.C.
20036.
Louise O. Knight, Esq., Clement & Knight, 118 Market St.,
Lewisburg, Pa. 17837.
For Defendants—Howard M. Levinson, Esq., J. Justin
Blewitt, Jr., Esq., Dept. of Justice, State Capitol, Harrisburg,
Pa. 17120.
79
Opinion—July 20, 1977.
OPINION
MUIR, District Judge.
. I. Introduction.
Skehan, formerly an Associate Professor at Bloomsburg
State College, has brought this action alleging that the Defen-
dants violated his constitutional rights by terminating his em-
ployment as a professor at the College in October, 1970 and
by failing to renew his contract for the 1971-1972 academic
year. The history of this case is set forth in this Court's
Opinion of May 18, 1977, .... F.Supp. ..... In 1973, this
Court found that Skehan’s constitutional rights pursuant to
the Fourteenth Amendment were violated by his termination
as a member of the faculty without a prior hearing. 358
F.Supp. 430 (M.D. Pa. 1973). In its opinion of May 18, 1977,
this Court concluded that the decision not to renew Skehan’s
contract for the academic year 1971-1972 without affording
him the procedures prescribed by Article Se! of the Statement
of Policy of Bloomsburg State College violated the due
process clause of the Fourteenth Amendment. The Court also
stated in its opinion that the only Defendant from whom
Skehan sought monetary damages had acted in good faith and
in a reasonable manner and therefore was protected by the
doctrine of official immunity as set forth in Wood vs.
Strickland, 420 U.S. 309 (1975). The only issues remaining in
this litigation are whether Skehan is entitled to any equitable
relief as the result of the two violations of his constitutional
rights, whether his attorneys should be awarded part or all of
the $87,288.50 claimed as attorney’s fees and whether Skehan
should recover expenses and costs from the Defendants. The
' Se conforms to the numbering system in the Statement of Policy. The Ar-
ticle is referred to as S(e) in the Circuit Court opinion.
80
Opinion—July 20, 1977.
following are the Court’s findings of fact, its discussion of
these issues, and its conclusions of law concerning these mat-
ters.
Il. Findings of Fact.
1. On October 10, 1972, Plaintiff filed a complaint against
the Defendants with a claim that they had violated his con-
stitutional rights by their failure to provide him a hearing
prior to his termination on October 17, 1970.
2. One of the statutes under which Plaintiff brought suit
was 42 U.S.C. § 1983 (Undisputed).
3. Plaintiff prevailed in this Court in 1973 on his claim
that Defendants violated his due process rights by their
failure to provide him a hearing prior to his termination (Un-
disputed).
4. Plaintiff was represented in these initial proceedings in
this Court by Harry Lore (Undisputed).
5. Plaintiff appealed the decision of this Court of May 9,
1973 to the United States Court of Appeals for the Third
Circuit (Undisputed).
6. Plaintiff prevailed in the Court of Appeals in that the
case was remanded to this Court for findings as to whether
Defendants had violated his First Amendment and due
process rights in the course of their decision not to renew his
contract and in that the Court of Appeals upheld this Court’s
ruling that Plaintiff’s due process rights had been violated by
Defendants’ failure to provide him with a hearing prior to
termination.
7. The Court of Appeals also determined that Defendants
were immune from liability to Plaintiff in damages because
they were engaged in discretionary functions (Undisputed).
a
81
Opinion—July 20, 1977.
8. Piaintiff was represented in the proceedings in the
Court of Appeals in 1973-1974 by Michael H. Gottesman who
was assisted by his associate, Dennis D. Clark.
9. Plaintiff filed a petition for a writ of certiorari in 1974
on the issues of sovereign immunity, official immunity and at-
torneys’ fees (Undisputed).
10. The Supreme Court, which granted Plaintiff's petition
for a writ of certiorari, vacated the judgment of the Court of
Appeals and remanded for further consideration on the issues
of official immunity and attorney’s fees.
11. Plaintiff was represented in the proceedings in the
Supreme Court in 1974 and 1975 by Bruce J. Terris.
12. Plaintiff prevailed in the Court of Appeals in 1976 in
that the Court of Appeals ruled that Plaintiff was entitled to
an award of damages if the individual defendants did not
meet their burden of proof on official immunity and that
Plaintiff was entitled to an award of attorney’s fees if Defen-
dants had litigated in bad faith.
13. Michael H. Gottesman and Dennis D. Clark
represented Plaintiff in 1975-1976 in the proceedings on
remand to the Court of Appeals from the Supreme Court (Un-
disputed).
14. Plaintiff prevailed in the proceedings in this Court on
remand in 1976 and 1977 in that this Court has determined
that Defendants violated Plaintiff's due process rights by
failing in the course of their decision not to renew his contract
beyond the 1970-1971 academic year to provide him with the
procedures to which his contract entitled him.
82
Opinion—Juiy 20, 1977.
15. Robert B. Elion and Robert B. Wayne represented
Plaintiff initially in proceedings in this Court in 1976 on
remand from the Court of Appeals (Undisputed).
16. After Plaintiff's case was remanded to this Court in
1976, Defendants filed a petition for a writ of certiorari to the
Supreme Court on the questions whether the Court of Appeals
had ruled correctly on the issues of the sovereign immunity,
official immunity and attorney’s fees (Undisputed).
17. Defendants’ petition for a writ of certiorari was
denied by the Supreme Court on November 29, 1976.
18. Dennis D. Clark represented plaintiff-respondent
before the Supreme Court in response to Defendants’ petition
for a writ of certiorari (Undisputed).
19. Bruce J. Terris represented Plaintiff during
proceedings in this Court after the withdrawal of. Robert B.
Elion and Robert B. Wayne as counsel for Plaintiff; associates
of Mr. Terris who assisted him during these proceedings were
Eleanor M. Granger, Zona F. Hostetler, Nathalie V. Black,
Lonnie C. Von Renner, Edward C. Comer and Suellen T.
Keiner (Undisputed).
20. Mr. Terris undertook representation of Plaintiff
before this Court in 1976 because passage of the Civil Rights
Attorney’s Fees Awards. Act was imminent and Plaintiff’s
right to recover attorney’s fees under the Act was contingent
on Plaintiff prevailing (Undisputed).
21. Plaintiff claims to have incurred legal expenses, other
than the fees and expenses of his attorneys, including the cost
of travel to and from conferences with his attorneys and the
cost of telephone calls to his attorneys in order to assist them
in his case.
83
Opinion—July 20, 1977.
22. Plaintiff has submitted an application for an Award of
Costs and Attorney’s Fees to this Court (Undisputed).
23. Plaintiff’s application was prepared by Bruce J. Terris
and his associates Eleanor M. Granger and Peter J. Eglick
(Undisputed).
24. Prior to May 1, 1977, Mr. Terris and his associates
conferred with and assembied materials from all of the at-
torneys who have represented Plaintiff from the time the
complaint was filed up to the conclusion of the proceedings in
this Court, after May |, 1977, they prepared the application,
researched and prepared a trial brief on the award of at-
torney’s fees, prepared findings of fact and conclusions of
law, attended a pre-pretrial conference, and represented
Plaintiff at the hearing on the application (Undisputed).
25. At the present time there is no Committee on
Professional Affairs at Bloomsburg State College (BSC).
26. The Statement of Policy of Continuous Employment
and Academic Freedom at Bloomsburg State College has been
superseded by a collective bargaining agreement between the
Association of Pennsylvania State College and University
Faculties and the Commonwealth of Pennsylvania.
27. The collective bargaining agreement mentioned in the
preceding paragraph went into effect on September 1, 1974,
and is in effect at the present time.
28. Defendants were the prevailing party with respect to
the venue issue raised in the United States District Court for
the Eastern District of Pennsylvania, where this case was
originally brought (Undisputed).
29. Defendants were the prevailing party at the
preliminary injunction stage of this case (Undisputed).
84
Opinion—July 20, 1977.
30. This Court has found that Plaintiff was not discharged
from his employment at BSC in October of 1970 for reasons
violative of the First Amendment. Thus, as to this First
Amendment issue, the Defendants are the prevailing parties
(Undisputed).
31. This Court has found that Plaintiff was discharged
because of his refusal to follow administrative directives and
specific orders from his superiors relating to the scheduling
and teaching of classes in the fall of 1970.
32. Plaintiff-Appellant designated the following issues for
review by the Court of Appeals:
1) “Having found that plaintiff was wrongfully
discharged in mid-term without a proper prior hearing
under the Due Process Clause of the Fourteenth Amend-
ment should not the lower Court, having found a con-
tract of employment, awarded plaintiff his salary for the
remainder of the academic year, as well as damages for
lost salary in the ensuing years, counsel fees and rein-
statement?”
2) “Was the suspension and subsequent discharge a
nullity, in view of the failure to provide a due process
hearing before the body mandated in the college's
‘Statement of Policy?’ ”
3) ‘Was the plaintiff's dismissal as a college professor
grounded upon constitutionally impermissible reasons
under the First and Fourteenth Amendments?”
4) “Did the lower Court err in finding that plaintiff
disobeyed an administrative directive on class
scheduling?”
5) “Is the failure to provide a due process hearing prior
to discharge where such is clearly required by the Four-
teenth Amendment of the U.S. Constitution as well as the
College’s regulations, a mere ‘technical deprivation’
85
Opinion—July 20, 1977.
warranting damages in the nominal amount of one
dollar?”
6) “Whether the lower Court erred in failing to take
judicial notice of the censure report on Bloomsburg by
the AAUP and of its own dockets in connection with the
suit brought by Professor Maxwell Primack against
defendants in connection with his discharge in violation
of the First and Fourteenth Amendments?” (Undisputed).
33. Plaintiff-Appellant did not raise in this Court prior to
1976 or in the Court of Appeals the issue as to whether the
decision not to renew Plaintiff after the 1970-1971 academic
year was in violation of the First Amendment.
34, Plaintiff-Appellant did not raise in the district court
in 1972 or in the Court of Appeals the issue of whether his
constitutional rights had been violated by not being afforded
the procedures of Se of the Statement of Policy of Blooms-
burg State College.
35. Article Se provides, in part, that, “[i]f a faculty mem-
ber of professional (sic) rank, on probationary appointment,
alleges that a decision not to reappoint him has been caused
by considerations violative of academic freedom, his
allegation shall be given preliminary consideration by the
Committee on Professional Affairs . . .” (Undisputed).
36. Plaintiff did not show by a preponderance of the
evidence that his stands concerning campus issues at Blooms-
burg State College were a substantial factor in the non-
renewal of his contract by either the then President of the
college, Nossen, or the Board of Trustees.
37. Assuming arguendo that Plaintiff had shown by a
preponderance of the evidence that his protected speech was a
substantial factor in the decision not to renew his employment
86
Opinion—July 20, 1977.
contract, Defendants Nossen and the Board of Trustees have
established by a preponderance of the evidence that they
would have reached the same decision as to his reemployment
even in the absence of the protected conduct.
38. This Court has found that Defendant Nossen acted in
good faith in not affording Plaintiff the procedures set forth
under Article Se of the Statement of Policy. Thus, as to this
issue of official immunity, defendants are the prevailing party
(Undisputed).
39. This Court has found that Nossen acted in good faith
and in a reasonable manner in not affording Plaintiff a due
process hearing prior to Plaintiff’s termination on October 19,
1970. Thus, as to this issue of official immunity, defendants
are the prevailing party (Undisputed).
40. In its second opinion in this case, the Third Circuit
held as follows: “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 op-
pressiveness in Defendants’ response on appeal to those issues
on which Skehan has been successful.”’ (Undisputed).
41. Since this case was remanded by the Third Circuit in
June of 1976, Plaintiff has filed with this Court three requests
for the production of documents and one set of in-
terrogatories (Undisputed).
42. Each of the discovery requests identified in the
preceding paragraph was accompanied by a motion to reduce
time and a brief in support thereof (Undisputed).
43. This Court denied all of Plaintiff's motions to reduce
time in connection with discovery requests (Undisputed).
87
Opinion—July 20, 1977.
44. As to each of the four discovery requests referred to
in | 41 above, Plaintiff filed a motion to compel discovery
under Rule 37 (Undisputed).
. 45. This Court denied all four of the Rule 37 Motions
filed by Plaintiff (Undisputed).
46. In connection with one of the Rule 37 motions, this
Court, in an opinion filed on November 16, 1976, held as
foliows:
“Except for pro se civil rights actions by state prisoners
the Court has not witnessed a more flagrant misuse of the
discovery procedures provided by the Federal Rules of
Civil Procedure. Discovery, when properly employed, is
a worthwhile device for the preparation and fair
disposition of cases. However, its continued vitality as a
legitimate instrument of legal inquiry is threatened by
misuse. The technique of litigation by exhaustion
through discovery makes a mockery of the process. If
discovery in all cases were conducted as in this particular
request, the legal system would collapse under its own
weight.”’ (Undisputed).
47. The individual defendants did not act vexatiously or
oppressively in the pre-litigation stages of this case.
48. The defense of this case has not been pursued in bad
faith, or vexatiously, wantonly or oppressively.
49. Plaintiff was a probationary employee with the
Department of Economics during his employment at Blooms-
burg State College (Undisputed).
50. The Article 5(e) issue was not raised in either of the
Supreme Court proceedings in this case (Undisputed).
of. Defendants’ motion for Leave to File an Amended
Answer Raising the Defense of the Statute of Limitations was
granted (Undisputed).
88
Opinion—July 20, 1977.
52. Defendants’ Motion to Take Additional Testimony on
the Issue of Official Immunity was granted (Undisputed).
53. Plaintiff's Motion to Take Additional Testimony on
His First Amendment Claim was denied (Undisputed).
Ill. Discussion.
Skehan contends that he is entitled to reinstatement as a
remedy for the Defendants’ violation of his constitutional
right to a pretermination hearing. Two competing factors
must be considered by the Court in fashioning a remedy in
this case. One is that if Skehan’s constitutional rights are to be
protected, adequate remedies should be afforded him. The
other factor is that Skehan bears an extremely large measure
of responsibility for the violation of his constitutional right to
a pretermination hearing. The Court has set this forth in its
findings of fact of May 18, 1977. Skehan’s conduct in refusing
to teach his classes at assigned times created confusion among
his students and caused disrespect for the college ad-
ministration. The administration repeatedly warned Skehan
that action would be taken against him if he did not meet his
classes at the assigned times. In spite of these warnings,
Skehan refused to comply with the directions of his superiors.
As a result, he was suspended on October 9, 1970. Even after
suspension, Skehan continued to meet with classes, informing
students that they would receive credit for attending courses
taught by him despite the fact that the administration advised
Skehan’s students that they should not attend courses taught
by him, and that they would not receive credit for such at-
tendance. As a result of his conduct, Skehan was terminated
on October 19, 1970, effective October 17, 1970. The ter-
mination brought no peace to the college. Skehan continued
to attempt to hold classes. Finally, the college administration
89
Opinion—July 20, 1977.
applied to the Court of Common Pleas of Columbia County to
enjoin Skehan from further disrupting the campus. A consent
decree was ultimately entered. To reinstate Skehan with full
teaching duties after his blatant disregard for administrative
directives would seriously undermine respect for the college
administration at Bloomsburg State College, would have the
potential of impairing the college’s ability to operate its own
affairs and would result in a grave miscarriage of justice.
Federal court interference with the administrative
procedures of state institutions should be kept to a minimum.
Rizzo vs. Goode, 423 U.S. 326 (1976). Prospective rein-
statement is an equitable remedy. The requirements of the law
of equitable remedies clearly applies to § 1983. Gurmankin
vs. Costanzo, .... F.2d .... (3d Cir. 4/25/76). Equity has
traditionally only offered its relief to those who have clean
hands. Precision Instrument Manufacturing Company vs.
Automotive Maintenance Machinery Company, 324 U.S. 806
(1945). Consequently, the clean hands doctrine should in my
view be considered when equitable relief is sought pursuant to
42 U.S.C. § 1983. Brown vs. Greer, 296 F.Supp. 595 (S.D.
Miss. 1969). The clean hands doctrine bars Skehan from full
reinstatement as a faculty member.
The appropriate remedy in this case is reinstatement of
Skehan to the suspended status that he held on October 15,
1970. Because Skehan has not contended that his suspension
was invalid, reinstatement of Skehan to the position that he
held before the unconstitutional termination is sufficient.
Horton vs. Orange County Board of Education, 464 F.2d 536
(4th Cir. 1972). The Court would have reached this con-
clusion even if Skehan had acted with clean hands. His con-
duct only reinforces the Court’s view that reinstatement to the
status he held on October 15, 1970 is the appropriate remedy.
90
Opinion—July 20, 1977.
Skehan has not claimed that his suspension violated the
United States Constitution. No reason exists to place him ina
position superior to that which he possessed when the illegal
conduct of the Defendants commenced. Skehan’s rein-
statement to a suspended status may be ended either by his
full reinstatement or a termination. The College will be
required to afford him a hearing comporting with due process
at which he will have an Opportunity to refute any charges
relating to his conduct in 1970,
Reinstating Skehan to the status that he heid on October 15,
1970 alleviates the disadvantages which, according to the
Court of Appeals for the Third Circuit, occur when a public
employee is terminated prior to a hearing. Skehan vs. Board
of Trustees of Bloomsburg State College, 501 F.2d 31 (3d Cir.
1974). Skehan will be on the payroll and will not be unduly
limited in his ability to pursue the hearing remedy. The con-
cern of the Court of Appeals that after an employee is ter-
minated an institution will make substitute teaching
arrangements, thus increasing whatever tendency may already
exist for the hearing officials to defer to the administration’s
decision is not present in this case. Any substitute teaching
arrangements have already been made and will not be altered
by a full reinstatement of Skehan.
Skehan also maintains that the proper remedy for the
failure of Bloomsourg State College to provide him with the
administrative procedures of Se of the Statement of Policy is
his reinstatement. Because Skehan has not contended in any
proceedings before this Court, or the United States Court of
Appeals or the United States Supreme Court that his suspen-
sion with pay on October 9, 1970 was illegal, the Court con-
cludes that he should be placed back in the position he held
after his suspension and before his termination. In addition,
91
Opinion—July 20, 1977.
reinstating Skehan to his full status as a faculty member
because of the Bloomsburg College’s officials’ failure to af-
ford him the appropriate procedures before deciding not to
renew his employment would also vitiate this Court’s deter-
mination to limit Skehan’s equitable remedies because of his
violation of the clean hands doctrine. Full reinstatement is
not the required remedy for failure to provide due process
prior to a. final determination of the renewal of an em-
ployment contract. In Perry vs. Sindermann, 408 U.S. 593,
603 (1972), the Supreme Court concluded that proof of an in-
dividual’s property interest in continued public employment
did not entitle him to reinstatement.
Because the procedures under Se of the Statement of Policy
are no longer in effect at Bloomsburg State College, the
Defendants must recreate them for Skehan. He is entitled to
those procedures, no more, no less. Establishing special
hearing boards as suggested by the Defendants could result in
Skehan not being afforded protection equivalent to that
provided by Se. The Court will order that Bloomsburg State
College and the other relevant Defendants afford Skehan the
first tier of applicable procedures of Article se within 90
days. A decision by the Committee on Professional Affairs
should be rendered within 30 days of the date on which it
completes its proceedings concerning Skehan.
Skehan contends that the Court of Appeals was in error
when it ruled that the state Defendants, acting in their official
capacities, were protected from an award of damages by
sovereign immunity. This Court is bound by the decision of
the United States Court of Appeals and therefore will reject
this argument.
92
Opinion—July 20, 1977.
Next, Skehan seeks $87288. 50 in attorney’s fees pursuant to
the Civil Rights Attorney’s Fees Awards Act of 1976, Pub.L.
94-559 enacted October 19, 1976,” from the Defendant Nossen
in his individual capacity and from Nossen and the other
Defendants in their official capacities as state officials. In or-
der to be entitled to attorney’s- fees from Nossen in his in-
dividual capacity, Skehan must establish that he was the
prevailing party in this litigation. Although Skehan did prove
by a preponderance of the evidence that Nossen violated his
Fourteenth Amendment rights by failing to accord him a
hearing prior to termination and by failing to provide him
with the procedures contained in Se of the Statement of Policy
of Bloomsburg State College, Nossen showed by a prepon-
derance of the evidence that he had committed these
violations without malicious intent to deprive Skehan of his
constitutional rights or injure him in any other way and that
* 42 U.S.C.A. § 1988 (1976)
“The jurisdiction in civil and criminal matters conferred on the district
courts by the provisions of this chapter and Title 18, for the protection of
all persons in the United States in their civil rights, and for their vin-
dication, shall be exercised and enforced in conformity with the laws of the
United States, so far as such laws are suitable to carry the same into effect:
but in all cases where they are not adapted to the object, or are deficient in
the provisions necessary to furnish suitable remedies and punish offenses
against law, the common law, as modified and changed by the constitution
and statutes of the State wherein the court having jurisdiction of such civil
or criminal cause is held, so far as the same is not inconsistent with the
Constitution and laws of the United States, shall be extended to and govern
the said courts in the trial and disposition of the cause, and, if it is of a
criminal nature, in the infliction of punishment on the party found guilty.
In any action or proceeding to enforce a provision of sections 1981, 1982,
1983, 1985, and 1986 of this title, title IX of Public Law 92-318, or in any
civil action or proceeding, by or on behalf of the United States of America,
to enforce, or charging a violation of a provision of the United States In-
ternal Revenue Code, or title VI of the Civil Rights Act of 1964, the court,
in its discretion, may allow the prevailing party, other than the United
States, a reasonable attorney’s fee as part of the costs.”
93
Opinion—July 20, 1977.
his actions were reasonable. Because Nossen prevailed on the
issues of good faith and the reasonableness of his failure to
provide Skehan with a prior termination hearing and the
procedures of Se, Nossen is immune to a damage action by
Skehan. Consequently, as to Skehan’s claim for damages,
Nossen is the prevailing party and is not liable in his personal
capacity for attorney’s fees pursuant to the Civil Rights At-
torney’s Fees Awards Act of 1976.
Even if Skehan were to be viewed as having prevailed
against Nossen, this Court would not direct Nossen to pay
Skehan’s attorney’s fees in his individual capacity. The Civil
Rights Attorney’s Fees Awards Act of 1976 permits the Court
to exercise its discretion as to whether to award attorney S
fees. Awarding attorney’s fees against Nossen in his in-
dividual capacity would be grossly unjust. Nossen acted in
good faith and in a reasonable manner when he failed to ac-
cord Skehan his constitutional rights. To penalize Nossen for
conduct which was neither malicious nor negligent would
violate the standards of common decency. In addition,
awarding attorney’s fees against Nossen personally after he
has prevailed on the official immunity issue would severely
undermine the policies which motivated the Supreme Court to
fashion this defense. Unlimited personal liability of public
officials for attorney’s fees pursuant to 42 U.S.C. § 1983
would inhibit public officials from performing their duties in
an efficient and prompt manner. Sheuer vs. Rhodes, 416 U.S.
232, 242 (1973). The amount of the attorney’s fees requested
in this case is so great that requiring a state official to pay it
would have the same tendency to cause hesitation in the per-
formance of vital public functions as a damage award. In the
absence of express statutory language, this Court will net
assume that Congress intended the Civil Rights Attorney's
94
Opinion—July 20, 1977.
Fees Awards Act to undercut the doctrine of limited official
immunity. Consequently, Skehan’s claim for attorney’s fees
from Nossen in his individual capacity will be denied.
Skehan also seeks attorney’s fees from the Defendants in
their official capacities. In effect, he is attempting to recover
attorney’s fees from the Commonwealth of Pennsylvania
through the state officials whom he has sued. Defendants
contend that this claim of attorney’s fees from the Com-
monwealth of Pennsylvania is barred by the Eleventh Amend-
ment of the United States Constitution.* Although that
amendment appears only to prevent suits against states in
federal court brought by citizens from other states or by
citizens or subjects of any foreign state, the federa! courts
have consistently interpreted it to bar actions for monetary
damages brought by a citizen of a state against his own state.
Hans vs. Louisiana, 134 U.S. | (1889); Fialkowski vs. Shapp,
405 F.Supp. 946 (E.D. Pa. 1975). In Fitzpatrick vs. Bitzer, 427
U.S. 445 (1976), the Supreme Court concluded that Congress
possesses the power pursuant to § 5 of the Fourteenth Amend-
ment to limit the application of the Eleventh Amendment. It
is clear that Congress derives the authority to implement the
Attorney’s Fees Awards Act from the Fourteenth Amend-
ment. The purpose of the Civil Rights Attorney’s Fees Awards
Act is to compensate counsel who represent prevailing
litigants in various claims brought pursuant to several dif-
ferent civil rights statutes. But the Civil Rights Attorney’s
Fees Awards Act contains no langua‘e expressly allowing the
recovery of attorney’s fees from the states.
* Amendment XI of the United States Constitution reads:
“The Judicial power of the United States shall not be construed to extend
to any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or Subjects of any
Foreign State.”
95
Opinion—July 20, 1977.
In Fitzpatrick vs. Bitzer, supra, the Plaintiffs sought
damages from the State of Connecticut pursuant to Title VII
of the Civil Rights Act of 1964. In 1972, Congress amended
the language of that statute to permit an employee of a stat
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