# Petition — Stern v. Shouldice > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0460%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 464 U.S. 993 ## Text October Term, 1983 ROBERT STERN, Petitioner, VS. KENNETH SHOULDICE, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Nino E. Green GREEN, RENNER, WEISSE, RETTIG, RADEMACHER & CLARK, P.C. Counsel for Petitioner Business Address: 225 Ludington Street Escanaba, Michigan 49829 Telephone: (906) 786-3902 September 9, 1983 ————— am Se TE RENAISSANCE PRINTING, INC., 76 WEST ADAMS 8TH FLOOR, DETROIT, MICHIGAN 48226 (313) 964-3185 QUESTIONS PRESENTED FOR REVIEW 1. DOES A POST-JUDGMENT MOTION TO AWARD PRE-JUDGMENT INTEREST ON A CLAIM FOR LIQUIDATED DAMAGES UNDER 42 USC §1983 TOLL THE TIME FOR FILING NOTICE OF APPEAL? 2. DOES ACOMPLAINT FOR ‘‘ACTUAL DAMAGES’”’ FOR LOSS OF EMPLOYMENT, BROUGHT UNDER 42 USC §1983, STATE A CLAIM FOR BACK PAY AS LEGAL DAMAGES? TABLE OF CONTENTS PAGE IS 1 ee 3 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ................. STATEMENT OF THECASE ................. REASONS FOR GRANTING THE WRIT ...... 11 I. A post-judgment motion to award pre-judgment interest on a claim for liquidated damages under 42 USC §1983 does not toll the time for filing CE 11 II. A complaint for actual damages for loss of employment, brought under 42 USC §1983, states a claim for back pay as legal damages .. . 14 a See chess cess ees ceescee 19 TABLE OF AUTHORITIES Bituminous Casualty Co v Lynn, (CA6, 1974) 503 PR has ralgt vb Wa ates eee es Bricklayers’ Penston Trust Fund v Taiartol (CA6, POT EB POO Ges Rowdee ds sass Casto v Arkansas-Louistana Gas Co (CA10, 1977) Poa | | Re hee Oren vere rrts yer Chicago & Northwestern Railway Co. y Union Packing Gu(taen, TEM Der cin Nee cava. Furtado v Bishop (CA1, 1979) 604 F2d80 ....... Heritage Homes of Attleboro, Inc v Seekonk Water District (C1, 1981) 648 F2d 761 ............. Lodges 743 and 1746, International Association of Machinists and Aerospace Workers v United Aircraft Corp (CA2, 1975) 534 F2d 422, 446, fn.42, cert. A, Se 6 ch her Ree tes oc ek Lousiana & Arkansas Railway Co v Export Drum Co (CAS, 1966) 359 F2d 311, 316-317.......... Moore-McCormick Lines vy Amirault (CA1, 1953) 202 PRC Reiko epeeas ask es + ares Rodgers v United States (1947) 332 US 371, 68 SCT | LORD Se an aan aie Oni Royal Indemnity Co v United States (1941) 313 US 289, 61S Ct995, 85 LEd 1361............. Shirley v Chagrin Falls Exempted Village Schools Board of Education (CA6, 1976) 521 F2d 1329, 1334, Gh, Be, Cao 5 oo aks Sak ce ede eiales White v New Hampshire Department of Employment Security (1982) 455 US 445, 102 S Ct 1162, 71 Pe Sa ern) eer eee ree PAGE 16 14 PAGE U.S. Gonst., Amendment! ................. 3 U.S. Const., Amendment XIV .............. 3 PME MME MDD he seach an Sis. s 00% bw esa web + SRO oy: a pean ke can sas he bv is 3, 11, 14 PEs uae eco tee eens caus So weKcers $3, 15, 27 Rule 17, Rules of the Supreme Court.......... 18 cece ae. 4 SS ie poe cer ene eee 11 EOE S hf one Bs 5 Sanat aap Vana es 11 Fe eg ED EEN Ls Shee el 14 PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT The Petitioner, Robert Stern, respectfully prays that a Writ of Certiorari issue to review the Judgment and Opinion of the United States Court of Appeals for the Sixth Circuit entered in this cause on April 15, 1983. OPINIONS BELOW The Opinion of the Court of Appeals, reported at 706 F2d 742, appears in the Appendix to this Petition. Also appearing in the Appendix are the following: 1. District Court Opinion on Motion for Summary Judgment granting summary judgment to Defendants with respect to Plaintiff's procedural due process claims, deny- ing summary judgment to Defendants with respect to Plaintiff's First Amendment claims, and granting Defen- dant’s Motion to Compel Withdrawal of Plaintiff's Counsel, entered February 1, 1977; 2. District Court Opinion as to Plaintiff's entitlement to jury trial, entered August 29, 1977; 3. District Court Opinion on Motions for New Trial/ JNOV, granting Defendants’ motion for a new trial, entered June 16, 1978; 4. District Court Opinion denying Plaintiffs Motion to Add Parties Defendant, awarding back pay against the in- dividual Defendants in their individual capacities, and dismissing Plaintiffs Complaint as to Defendant Lake Superior State College, entered September 19, 1980; 5. District Court Judgment entered September 23, 1980; 6. District Court Opinion on Motions, denying Defen- dants’ Motion to Amend Judgment to Eliminate Back Pay, Granting Plaintiffs Motion for Attorney Fees, Costs and Pre-Judgment Interest, and denying Defendant Lake Superior State College’s Motion for Costs and Attorney Fees, entered January 15, 1981; 7. District Court amended Judgment entered Febru- ary 12, 1981; 8. Court of Appeals Order denying Plaintiff's Motion to Dismiss Defendants’ Appeal, entered July 15, 1981; 9. Court of Appeals Order granting Plaintiffs Motion to Dismiss Defendants’ Appeal, entered November 5, 1982; 10. Court of Appeals Order granting Defendants’ Mo- tion for Permission to File a Petition for Rehearing in Ex- cess of 15 Pages, entered January 20, 1983; 11. Court of Appeals Order granting Defendants’ Peti- tion for Rehearing, entered March 25, 1983; 12. Court of Appeals Order vacating its November 5, 1982 Order Dismissing Defendants’ Appeal, entered March 25, 1983; 13. Court of Appeals Opinion affirming in part and reversing in part the judgment of the District Court, entered April 15, 1983; 14. Court of Appeals Judgment entered April 15, 1983; and 15. Court of Appeals Order denying Plaintiffs Petition for Rehearing, entered June 20, 1983 JURISDICTION The judgment of the Court of Appeals for the Sixth Circuit was entered on April 15, 1983. A timely Petition for Rehear- ing was denied on June 20, 1983. This Petition for a Writ of Certiorari is filed within 90 days of June 20, 1983; and the jurisdiction of the Supreme Court of the United States is in- voked under 28 USC §1254(1). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ‘‘Congress shall make no law respecting an establish- ment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.’’ U.S. Const, Amendment I. ‘*All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.’’ U.S. Const, Amendment XIV, Section 1. ‘Every person who, under color of any statute, or- dinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdic- tion thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.’’ 42 USC §1983. STATEMENT OF THE CASE By Complaint filed in the United States District Court for the Western District of Michigan, Northern Division, Plain- tiff alleged that the termination of his employment in conse- quence of the failure of the Defendants to recommend and grant tenure was in retaliation for his exercise of First Amend- ment rights. Plaintiff also alleged that the manner of his ter- mination constituted a denial of his right to due process. Plaintiff's Complaint stated the following prayer for relief: WHEREFORE, the Plaintiff prays: (a) That a Judgment be entered ordering the Defen- dants, THE BOARD and THE COLLEGE to reinstate STERN, at least pending an administrative hearing, with retroactive pay at the rate that others with similar education, experience and responsibilities would have received at THE COLLEGE and prorated for the period of wrongful termination (since June 30, 1972). (b) That a Judgment be entered against the Defendants, THE BOARD and KENNETH SHOULDICE as an individual, jointly and severally, for $500,000.00 actual damages, plus attorney fees, and court costs. (c) That a Judgment be entered against the Defendants SHOULDICE and LINDEROTH, as individuals, jointly and severally, for $100,000.00 punitive ex- emplary damages. (d) That the Court order such other and further relief as is agreeable with equity and good conscience. On January 31, 1977, the District Court entered its Opin- ion granting the Defendants’ Motion for Summary Judgment in relation to Plaintiff's due process claim, but denying Defen- dants’ motion as to Plaintiff's First Amendment claim. In that same Opinion, the District Court granted the Defendants’ Motion to Compel the Withdrawal of Plaintiffs Counsel. Noting that Plaintiff had filed a timely demand for jury trial, the District Court directed counsel to submit memoranda ad- dressed to the issue of whether Plaintiff was entitled to a jury trial on the issues that remained. On August 29, 1977, the District Court issued its Opinion ordering that a jury be empaneled for the trial of this cause. On September 16, 1977, following four days of trial, a jury verdict was returned in Plaintiff's favor for reinstatement with back pay in the amount of $50,155.32 against Defendant Lake Superior State College, and for punitive damages of $1,000 each against the individual Defendants, Shouldice and Linderoth. On June 16, 1978, the District Court entered its Opinion denying Defendant's Motion tor Judgment Not- withstanding the Verdict, but granting Defendants’ Motion for a New Trial, for the reason that: ‘‘The verdict, however, was against the weight of the evidence, the damages awarded were excessive, and the circumstances indicate that the jury acted under a misapprehension of the law or in disregard of the Court’s instructions.”’ After a second jury had been empaneled, Defendants’ counsel raised, for the first time, the defense of Eleventh Amendment immunity and moved the District Court to dismiss Plaintiffs Complaint as to Lake Superior State Col- lege. In response to this motion, Plaintiff's counsel proposed the following: So what I would propose is that the trial court proceed, that the jury be allowed to determine liability in relation to the individual Defendants, and that the liability of the Defendant college be left for determination by the Court after a subsequent record can be made as to the nature of the entity with which we are dealing, and as to — so that we can deal with the question of whether or not the entity can appropriately claim Eleventh Amendment immunity. Now in conjunction with that suggestion, I would further suggest that no question of back pay be submitted to the jury, based upon the decision of the Court granting Defendant’s motion for a new trial after the conclusion of the last trial. I came to Court assuming that the question of back pay would be submitted to the Court, and based upon discussions with the Court prior to the time we commenced the trial, it was my understanding that the question of back pay would be decided by the Court upon a record made subsequent to the jury’s return of a verdict in relation to the individual Defendants, if indeed they found those Defendants liable. If the jury in fact finds the Plaintiff's First Amendment rights were not violated, there would be no need for this Court to entertain any future questions, I would presume. If they find that the Plaintiff's First Amendment rights were violated, they may then assess damages in accordance with the Court’s instructions in relation to the individual defendants, and I would ask the Court to subsequently entertain the ques- tion of back pay in the — and reinstatement in the con- text of the record that I feel needs to be made as a minimal effort to appropriately resolve the question of Eleventh Amendment immunity that was raised during this trial. Additionally, the last jury verdict was set aside in part, and I think in large part, because of this Court’s dissatisfaction with the way the jury treated the matter. Indeed the Court gleaned from the nature of the verdict awarded by the jury, some confusion as to their role and the meaning of the Court’s instructions, and I would wish to do everything possible to avoid injecting any such confusion into these proceedings that very well could lead us into the necessity of trying this case yet a third time, and so I would just assume no question, not even in advisory capacity to the jury, and in order to make their task as easy as possible, and to the extent that the Plain- tiffs request or demand for jury is addressed in this cause to the question of reinstatement and back pay, I would hereby withdraw the request for a jury trial to that ex- tent, and ask that on the question of a nominal, actual or compensatory, on [sic] punitive damages, as to the indi- vidual Defendants be submitted to the jury. Indeed, I can’t see how the Defendants can complain of the with- drawal of the issue of reinstatement or back pay from the jury, since it has stedfastly [sic] and consistently and repeatedly throughout these proceedings opposed all of the Plaintiff's requests for submission of questions to the jury, and has never entered a demand for jury trial. As I say, the Plaintiff's [sic] posture has throughout this pro- ceeding been open opposition to submission of any ques- tion to the jury, so I don’t see how the Defendant can complain if we now demand a nonjury trial as it affects the question of reinstatement and back pay. Indeed, by withdrawing the back pay and reinstatement from the jury, that would allow this Court upon whatever supplemental record is necessary or appropriate, to decide those issues, together with the issue of immunity, once we know the nature of the entity involved, and that basically is the position of the Plaintiff, and the reasons we have asserted in support of that position. (Reporter’s transcript, pp 1655-57) Defendants’ counsel responded to this proposal, in perti- nent part, as follows: If they think that the college should pay damages, that’s a finding of fact, and the other side of the coin, that Linderoth and Schouldice were not acting individually. Okay. Then I think if the Court is disposed to hold to it the question of back pay, then I think the jury ought to be told that the question of back pay will be decided by the Court after their decision is made, and they should recognize, if they are finding compensatory, nominal or punitive damages, that the Court may, and it will, decide what award to the Plaintiff will be given on the basis of any pay that may be due him. I don’t think the jury should have a shot at considering its determination of how much damages on the basis of, ‘‘Well, he was earn- ing $12,000 a year, and he has been out of work ten years, we ought to give him 12 time 10, and we'll just call it nominal or compensatory damages or punitive damages.”’ (Reporter's transcript, pp 1665-66) During the discussion of instructions prior to submission of the case to the jury, the trial judge advised counsel as follows: Now as to the jury verdict form number two, which had been agreed, and I do believe that it is the responsibility of the Court to consider what damages if any, by way of, quote, back pay, unquote, there are to be assessed against the college and the other Defendants — and/or the other Defendant, that the traditional, common law concept of damages is stated properly in the instructions. I’ve heard no complaint from anybody about it, and that of course is the subject of jury verdict form number two. (Reporter’s transcript, p 2004) The trial judge then proceeded to instruct the jury, in perti- nent part, as follows: You should include each of the following elements of damage for which you decide the Plaintiff should be com- pensated. Expenses of seeking other employment, stress, embarrassment and mental anguish, injury to profes- sional reputation. (Reporter's transcript, p 2036) The trial judge also charged the jury ‘‘that reinstatement of plaintiff to his former position, award of back pay, attorney’s fees and costs of bringing this suit are matters which the Court will resolve at a future time and you are not to be concerned with them in determining the amount of any damages which you may award.”’ (Reporter’s transcript, p 2037) On December 14, 1979, at the conclusion of a 14 day trial, the jury awarded the Plaintiff nominal damages in the amount of two dollars against Defendant Linderoth and one dollar against Defendant Shouldice. On September 19, 1980, the District Court entered its Opin- ion granting the motion to dismiss Plaintiff's Complaint as to Defendant Lake Superior State College on the ground of Eleventh Amendment immunity and denying Plaintiff's mo- tion to amend his Complaint to add the individual members of the college’s Board of Control as parties Defendant for the purpose of enabling the District Court to grant relief by way of reinstatement. In its Opinion, the District Court also deter- mined that back pay be awarded as damages against the in- dividual Defendants in the amount of $45,696. On September 23, 1980, judgment was entered in the District Court for the nominal damages found by the jury and the back pay awarded as damages by the District Court. Defendants Shouldice and Linderoth thereafter moved to amend the judgment so as to eliminate the District Court’s award of back pay as damages; and Defendant Lake Superior State College moved for an award of costs and attorney’s fees against the Plaintiff. The Plaintiff moved for an amended judgment allowing him to recover costs, pre-judgment in- terest, and attorney fees. In an Opinion and Order dated January 14 and filed January 15, 1981, the District Court denied all of the Defendants’ motions and granted Plaintiff's 10 motion; and on February 12, 1981, an amended judgment was entered in the District Court awarding Plaintiff $20,360 in attorney fees, $2,798.55 as other costs, and $15,585.22 as pre-judgment interest, in addition to the damages previously awarded. Defendants Shouldice and Linderoth filed their Notice of Appeal in the United States Court of Appeals for the Sixth Circuit on March 6, 1981; and Plaintiff moved to dismiss their appeal for lack of jurisdiction because of untimely filing. On July 15, 1981, Plaintiff's Motion to Dismiss was denied upon an initial determination ‘‘that the motion to dismiss is frivolous and entirely without merit.’ On November 5, 1982, following consideration of Plaintiffs motion by the Court of Appeals panel assigned to the cause, the motion was granted and the appeal was dismissed. On January 20, 1983, the Court of Appeals granted permission to the Defendants to file a Petition for Rehearing in Excess of 15 Pages; and on March 25, 1983, the Court of Appeals entered orders gran- ting Defendant’s Petition for Rehearing and vacating its order dismissing the appeal as being untimely filed. On April 15, 1983, the Court of Appeals entered its Opi- nion holding that Defendants’ Notice of Appeal was timely filed, reversing the District Court’s award of damages and pre-judgment interest, and affirming the District Court’s award of attorney fees and costs. Its judgment was entered on April 15, 1983; and on June 20, 1983, the Court of Appeals denied Plaintiff's Petition for Rehearing. 11 REASONS FOR GRANTING THE WRIT I. A Post-Judgment Motion to Award Pre-Judg- ment Interest On a Claim For Liquidated Damages Under 42 USC §1983 Does Not Toll the Time For Filing Notice of Appeal In Royal Indemnity Co v United States, (1941) 313 US 289, 61 S Ct 995, 85 L Ed 1361, the Supreme Court held that where no federal statute applies to a claim for pre-judgment interest in an action for money damages, ‘‘it is for the federal courts to determine, according to their own criteria, the appropriate measure of damage.’’ 313 US at 296. The Court determined: ‘*A suit upon a contractual obligation to pay money at a fixed or ascertainable time is a suit to recover damage for its breach, including both the principal amount and interest by way of damage for delay in payment of the principal after the due date.’’ 313 US at 295-96. In Rodgers v United States, (1947) 332 US 371, 68S Ct5,92L Ed 3, the Supreme Court found that the Agricultural Adjust- ment Act of 1938, 7 USC §§1981, et seg., neither allowed nor prohibited pre-judgment interest upon the award of a penalty. The Court wrote: ‘‘***[O]ne for whose financial advantage an obligation was assumed or imposed, and who has suffered actual money damages by another’s breach of that obligation, should be fairly compensated for the loss thereby sustained.’’ 332 US at 373. The Court rejected the suggestion that 28 USC §811, the statutory predecessor of 28 USC §1961, foreclosed an award of pre-judgment interest by providing on- ly for interest after judgment. This rule has been followed with regard to 23 USC §1961. Casto v Arkansas-Loutsiana Gas Co, (CA 10, 1977) 562 F2d 622, 624; Lodges 743 and 1746, Interna- tional Association of Machinists and Aerospace Workers vy United Air- craft Corp, (CA2, 1975) 534 F2d 422, 446, fn.42, cert. den., 429 US 825; Loutstana & Arkansas Railway Co v Export Drum Co, 12 (CA5, 1966) 359 F2d 311, 316-317; Moore-McCormick Lines v Amurault, (CA1, 1953) 202 F2d 893,895. Consistent with this authority, the Sixth Circuit Court of Appeals held, in Bituminous Casualty Corp v Lynn, (CA6, 1974) 503 F2d 636 645: ‘‘The general rule is that interest, at the legal rate, runs as a matter of right on a liquidated claim.”’ The Court went on to state: ‘‘When the amount of the claim can be readily ascertained by reference to a formula in a con- tract and none of the facts is in dispute or when the amount of the claim itself is not disputed, the claim is liquidated.’’ 503 F2d at 646. The First Circuit has allowed pre-judgment claims upon damages awarded under 42 USC §1983, but has treated the allowance of such interest as discretionary. Heritage Homes of Attleboro, Inc v Seekonk Water District, (CA1, 1981) 648 F2d 761, vac’d on other grounds, 454 US 807. See, also, Furtado v Bishop, (CA1, 1979) 604 F2d 80. In these cases, the First Circuit did not consider the distinction between liquidated and unlli- quidated claims. Subsequently, the Sixth Circuit, too, characterized pre- judgment interest in the absence of statutory authority as discretionary without addressing the distinction between li- quidated and unliquidated claims. Bricklayers’ Pension Trust Fund v Taiariol, (CA6, 1982) 671 F2d 988, 990. Following the entry of judgment in the District Court in the instant cause on September 23, 1980, Plaintiff moved for at- torney fees, costs and pre-judgment interest. His motion was granted by an order entered January 15, 1981. An amended judgment was entered on February 12, 1981; and Defendants filed their Notice of Appeal in the United States Court of Ap- peals for the Sixth Circuit on March 6, 1981, more than 30 days following entry of the District Court’s original judgment, but less than 30 days from entry of the amended judgment. 13 Plaintiff's motion to dismiss Defendants’ appeal as untime- ly was initially determined to be ‘‘frivolous and entirely without merit,’’ and was denied by order entered July 15, 1981; but by order dated November 5, 1982, following con- sideration by the panel to whom the appeal was assigned, Plaintiff's motion was granted and Defendnts’ appeal was dismissed. However, after granting rehearing to the Defen- dants, the Court of Appeals vacated its Novembr 2, 1982, order and, in its subsequent Opinion, entered April 15, 1983, held that Defendants’ Notice of Appeal was timely filed. 706 F2d at 746-47 The Court wrote: Though Stern’s argument is not without force, we must reject it. This court recently held in Bricklayers’ Pension Trust Fund v Taiariol, 671 F.2d 988, 990 (6th Cir. 1982), that ‘‘in the absence of a statutory provision the award of pre-judgment interest is in the discretion of the court.’’ As a result, whether or not a claim is liquidated is in- consequential. Moreover, even were the liquidated: unliquidated distinction applicable, the Tazario/ case in- volved a plaintiff's liquidated claim for money contrac- tually owed to a pension fund. In light of this court’s more recent authority, we hold that a grant of pre- judgment interest pursuant to a post-trial motion is discretionary with the trial court and requires an amend- ment of judgment under FRCP 59. See Chicago & North- western Railway Co. v Union Packing Co. , 527 F.2d 592 (8th Cir. 1976). Since defendants filed their notice of appeal within thirty days after entry of the amended judgment, this appeal is timely. 706 F2d at 747 A review of the authority cited herein, together with a review of the decisions of the Sixth Circuit Court of Appeals, discloses the existence of an important federal question which has not, but should be, settled by the Supreme Court: whether 14 pre-judgment interest on a claim for liquidated damages under 42 USC §1983 should be awarded as a matter of right. A similar, but different question, was decided in White v New Hampshire Department of Employment Security, (1982) 455 US 445, 102 S Ct 1162, 71 L Ed 2d 325. At the outset it should be noted that the District Court determined Plaintiff's claim for back pay to be a liquidated claim; and that determination was not challenged on appeal. Plaintiff's request for interest was not addressed to his “laims for nominal, compensatory or punitive damages, nor were compensatory or punitive damages awarded. Thus, the District Court’s award of pre-judgment interest was on a claim for liquidated damages under 42 USC §1983. The Supreme Court is urged to grant certiorari to deter- mine whether pre-judgment interest on liquidated damage claims under 42 USC §1985 should be awarded as a matter of right on the basis of federal policy of general application or whether the award of such interest is within the discretion of the District Court on an ad hoc basis. If pre-judgment interest is available under FRCP 60(a), as claimed by Plaintiff, the Defendants’ appeal to the Court of Appeals was untimely and should have been dismissed. II. A Complaint For Actual Damages For Loss of Employment, Brought Under 42 USC §1983, States a Claim For Back Pay As Legal Damages Following the second trial of this cause, the District Court entered judgment upon a jury verdict in Plaintiff's favor for nominal damages of two dollars against Defendant Linderoth and one dollar against Defendant Shouldice. The District Court’s judgment also assessed $45,696, representing back pay as damages against these Defendants in their individual 15 capacities, and subsequently awarded $15,585.22 as pre- judgment interest on the back pay award, together with $20,360 in attorney fees and $2,798.55 as other costs. By its decision of April 15, 1983, the United States Court of Appeals for the Sixth Circuit reversed the trial court as to the award of back pay as damages and pre-judgment interest. In doing so, the Court of Appeals wrote: ‘‘A fair reading of Stern’s complaint discloses that he demanded back pay only from the College. While the term ‘back pay’ appears in the prayer for relief against the College, it does not appear in the claim for compensatory and punitive damages against Shouldice and Linderoth.’’ 706 F2d at 750. In fact, the term ‘‘back pay’’ does not even appear in the prayer for relief set out in Plaintiffs Complaint. Rather, Plaintiff sought reinstatement with ‘‘retroactive pay’’ in rela- tion to the Defendant College. While it was accurate for the Court of Appeals to observe that the term ‘‘back pay’’ does not appear in the prayer for relief by way of compensatory and punitive damages against Defendants Shouldice and Linderoth, the Court of Appeals failed to consider the language of the second paragraph of Plaintiff's prayer: ‘‘(b) That a Judgment be entered against the Defendants, THE BOARD and KENNETH SHOULDICE as an individual, jointly and severally, for $500,000.00 actual damages, plus attorney fees, and court costs.’’ [emphasis supplied] It then went on to write: ‘‘Actual damages were limited at trial to claims for expenses of seeking other employment, injury to professional reputation, stress, embarrassment and mental anguish.’’ 706 F2d at 750. In so stating, the Court of Appeals ignored the explicit meaning of statements made by Defendants’ counsel and the District Court acknowledging Plaintiffs claim for back pay to include legal damages against the individual Defendants. 16 Thus, in response to Plaintiff's request to reserve ‘‘back pay’”’ as ancillary to the equitable relief of reinstatement for deter- mination by the District Court, Defendants’ counsel respond- ed by urging the Court to withhold from the jury any con- sideration of back pay as damages. Defendants’ counsel recognized that if the trial court were to reserve to itself the question of back pay only in relation to Plaintiff's request for equitable relief, while allowing the jury to consider back pay as legal damages against the individual Defendants, a double recovery might occur. In such event, it might be impossible to separate from the jury’s award of legal damages that portion representing back pay. Thus, the District Court was properly persuaded by Defendants’ counsel that ‘‘*** it is the respon- sibility of the Court to consider what damages if any, by way of quote, back pay, unquote, there are to be assessed against the college and the other Defendants — and/or the other Defendant, that the traditional, common law concept of damages is stated properly in the instructions.’’ It was with this mutual understanding that the Court proceeded to in- struct the jury that their consideration of damages should focus only upon the expense of seeking other employment, stress, embarrassment, mental anguish, and injury to profes- sional reputation. Although back pay sought in conjunction with reinstate- ment is considered part of a total, equitable remedy, back pay sought from school officials in their individual capacities is legal in nature ‘‘whether it is styled as such or not.’’ Shirley v Chagrin Falls Exempted Village Schools Board of Education, (CA 6, 1976) 521 F2d 1329, 1334, cert. den. 424 US 913. The second paragraph of the prayer for relief in Plaintiff's Complaint seeking ‘‘actual damages’’ from Defendant Shouldice was obviously sufficient in both style and substance to include and to notify the Defendant of the inclusion of back pay as an element of legal damages. Indeed, after two trials, it 17 was acknowledged by counsel for the Defendants and the Dis- trict Court that back pay as an element of legal damages was to be decided by the Court. The Court of Appeals’ suggestion that comments made by Plaintiff's counsel ‘‘demonstrate that Plaintiff was seeking back pay solely against the College,’’ and that the ‘‘clear in- ference from this proposal is that a claim for back pay against the individual Defendants was not in the case,’’ 706 F2d at 751, is inaccurate and unjustified. Plaintiff's suggestion that the District Court, and not the jury, determine back pay in conjunction with the equitable relief of reinstatement was not an election of remedies. That the District Court also withhold from the jury the question of back pay as legal damages was a suggestion adopted at the urging of Defendants’ counsel. The misinterpretation of fact and consequent misapplica- tion of law reflected in the decision of the Court of Appeals arises in consequence of its consideration of an issue that was never properly raised. The District Court had properly re- jected a post-trial argument that Defendants were denied their right to trial by jury on Plaintiff's legal damage claim. The argument was rejected for the reason that Defendants had never requested a jury trial and had opposed Plaintiffs re- quest in relation to each and every issue raised. Furthermore, Defendants had stipulated that all questions concerning Plain- tiffs entitlement to back pay, whether as equitable or legal relief, be determined by the District Court. It is not without significance that the question of Eleventh Amendment immunity was raised by Defendant Lake Superior State College after the second trial of this cause had com- menced, This circumstance prompted Plaintiff's counsel to urge the District Court to reserve its decision on this belatedly raised issue until after the jury returned a verdict. It was in this context that Plaintiff's counsel also requested the District 18 Court to reserve any questions as to what relief, if any, should be awarded against the Defendant College. This case has now been in litigation for more than a decade. Both in 1977, after three days of trial, and in 1979, after 14 days of trial, juries found the facts to be as claimed by the Plaintiff. The legal validity of those claims has been upheld by numerous rulings in the District Court and, in major mea- sure, by the Court of Appeals. Because of an ‘‘inference’’ drawn by the Court of Appeals from the words of Plaintiff's counsel, the Court of Appeals withdrew from Plaintiff the ma- jor portion of the relief that was won by his protracted and costly effort. An inference of such damning consequence should be based upon only the most compelling circum- stances, and only after examining those circumstances in the full context of the situation in which they arise. It is urged that it is a grievous miscarriage of justice to deny the relief awarded to Plaintiff in the District Court. It is urged that the Court of Appeals ‘‘has so far departed from the ac- cepted and usual course of judicial proceeding* ** as to call for an exercise of this Court’s power of supervision.’’ Rule 17, Rules of the Supreme Court. The Court of Appeals may have been correct in its reading of Plaintiff's Complaint as to Linderoth. It was clearly mistaken as to Plaintiff's claim against Shouldice, as demonstrated by the clear language of the second paragraph of his prayer for relief and the unequivocal acknowledgments made by counsel and the trial judge in the District Court. 19 CONCLUSION For the reasons stated herein, a Writ of Certiorari should issue to review the decision of the United States Court of Ap- peals for the Sixth Circuit in this cause. Respectfully submitted, Nino E. Green GREEN, RENNER, WEISSE, RETTIG, RADEMACHER & CLark, P.C. Counsel for Petitioner Business Address: 225 Ludington Street Escanaba, Michigan 49829 Phone: (906) 786-3902 September 9, 1983 APPENDIX la Opinion on Motion for Summary Judgment UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN RoBERT STERN, Plaintiff, VS. No. M 43-73 CA 3 KENNETH SHOULDICE, et al, Defendants. OPINION ON MOTION FOR SUMMARY JUDGMENT This action is yet another of the type now commonly referred to as Roth-Sindermann cases. See Board of Regents of State Colleges v Roth, 408 U.S. 564 (1972); Perry v Sindermann, 408 U.S. 593 (1972). Plaintiff, a former teacher at Lake Superior State Col- lege (hereinafter ‘‘LSSC’’), claims that defendants’ non- renewal of his employment contract violated his constitutional rights under the Fourteenth Amendment. 42 U.S.C. §§1983, 1985; 28 U.S.C. §§1331, 1343(3). More specifically, plaintiff contends that his termination was in retaliation for the exer- cise of his First Amendment rights.' He also challenges the procedural aspects of his termination, claiming that he was entitled to a hearing ‘‘to prove the legitimacy of his claim to entitlement in light of the policies and practices of the institu- tion where he had taught’? (Complaint, 419),? and ‘‘to challenge the sufficiency of the grounds for his nonretention”’ (Complaint, $20). An additional generalized allegation asserts that plaintiff was ‘‘not otherwise afforded due process, 2a as a matter of fact, prior to being fired’’ (Complaint, €21)', in- cluding the opportunity to confront the witnesses against him and to cross-examine them under oath, or to present witnesses on his own behalf.* Plaintiff seeks reinstatement with back pay for the period of wrongful termination, pending an administrative hearing, along with compensatory and punitive damages. Defendants here are the president of LSSC, the chairman of LSSC’s Board of Control, the chairman of the English Department at LSSC (plaintiffs most immediate superior), and LSSC itself, a state-supported institution of higher educa- tion. They are sued in both their individual and official capacities. Defendants originally filed a motion to dismiss (for failure to state a claim upon which relief can be granted, F.R.Civ.P. 12(b)(6)) or in the alternative for summary judgment (F.R.Civ.P. 56). That motion was denied in its entirety by then-District Judge Engel (predecessor of the writer). After extensive discovery, defendants have renewed their summary judgment motion. This Court has held a hearing on this mo- tion, and, having heard the arguments of counsel thereon and having duly considered the pleadings and other documents fil- ed in this case, hereby announces its decision. I PROCEDURAL DUE PROCESS Plaintiff claims that he was denied procedural due process in that he was not provided with a hearing prior to the defen- dants’ action in not renewing his employment. The Fourteenth Amendment's requirements of procedural due process apply only to the deprivation of ‘‘liberty’’ and ‘‘property”’ interests. Board of Regents of State Colleges v Roth, 408 U.S. 564, 569 (1972). 3a A. Facts. The following are the undisputed facts appearing in the record. Plaintiff, a teacher of speech, drama and theater, was recruited by LSSC while on the instructional staff of Michigan State University in the spring of 1967. He was hired as an assistant professor without tenure by separate one-year ap- pointments for the academic years of 1967-1968, 1968-1969, 1969-1970, 1970-1971, and 1971-1972. Under LSSC procedures, an assistant professor is automat- ically granted tenure if reappointed after 5 years of service. Notice of termination must be given in writing before Decem- ber 15 of the last academic year of employment. Dr. ' inderoth (now Chairman of the English Dept., former- ly Chairman of the Division of Arts and Letters) wrote plain- tiffon May 6, 1971 that he was unwilling to recommend Stern for tenure for specified reasons (primarily an inability to work with other faculty and administrative members in view of a planned liberal arts multi-disciplinary synthesis requiring much cooperation). Linderoth, on the same day, notified Dr. Light (Vice-President for Academic Affairs) of his recommen- dation concerning Stern. On the next day, May 7, Light offered plaintiff the oppor- tunity to personally discuss Linderoth’s recommendation. By letter of May 10, plaintiff requested an explanation of reasons for Linderoth’s recommendation. Three days later (May 13), Light wrote a memo confirming a phone call to Stern re- questing that he bring to the meeting or present subsequent to it any evidence of personal capability (transcripts and status of his doctoral program), and offering plaintiff the option of bringing along a neutral observer. 4a After the May 13, 1971 meeting, Light wrote Dr. Shouldice (LSSC President) that plaintiff felt it difficult to submit any in- formation until he had a more detailed list of charges from Linderoth. The latter argreed to provide such, but then plain- tiff indicated that he preferred not to respond to that list because he felt it would compromise his case to divulge data that he planned to present before he had an opportunity to be heard before an impartial hearing body. Plaintiff requested a hearing before the Tenure Committee, and Light again re- quested Stern to supply any current information to aid Light in his recommendation to Shouldice. By letter of May 17 to Shouldice, Light concurred in Linderoth’s recommendation to deny tenure to Stern. Linderoth, on May 17, wrote his pro- mised clarification oi his original letter to plaintiff. On May 18, in a letter to Shouldice, Light again concurred in Linderoth’s recommendation. Plaintiff was notified on May 19 by Shouldice that the Tenure Committee was being asked to meet in ad hoc capacity to review plaintiff's case (even though the Tenure Committee usually reviews only matters affecting the status of tenured faculty), and Shouldice promised to withhold further action on his decision until receiving the Commnittee’s report. The Tenure Committee hearing was held on May 24, 1971, and by letter of June 3, 1971, the Committee concluded that ‘‘there is an irrevocable conflict between Division Chairman Linderoth and Professor Stern; and the reasons given for Pro- fessor Stern’s non-reappointment have not been wholly refuted.”’ One June 11, Shouldice advised plaintiff of his decision not to recommend him for tenure, which also meant that his employment would terminate at the end of the 1971-1972 academic year. Plaintiff sent Shouldice a letter on June 17 re- questing further clarification of the latter’s June 11 letter. Shouldice responded on June 22 and again on July 15. 5a At its August 13, 1971 meeting, the Board of Control of LSSC considered the change of status recommendation re- garding Stern and approved the action recommended. On September 16, plaintiff and his attorney requested of Shouldice an opportunity to make a presentation to the Board of Control pursuant to Article I, Section 1.11 of the Board’s Bylaws and Statutes. Plaintiff on October 4 requested an op- portunity to make a presentation at the October 15 meeting. Shouldice advised plaintiff's attorney on October 9 that the Boerd’s Bylaws required such material to be submitted at least 10 day* in advance of a regular meeting. On Ovtober 12, plaintiff's attorney wrote to the Chairman of the Board of Control seeking to make a presentation to the October 15 Board meeting. The Board Chairman asked plain- tiff's attorney to follow the Board’s established procedures for presentation of material to the Board, which the attorney then agreed to do. Plaintiff submitted a written document to the Board on November 5, in anticipation of their scheduled meeting for November 19. A revised version was submitted on Novem- ber 13, entitled ‘‘Should the Board of Control of LSSC Modify the Decision to Fire Robert Stern.’’ It consisted of 10 pages of text and 28 pages of exhibits. The minutes of the November 19 Board meeting reflect that plaintiffs attorney declined an opportunity to present any additional informa- tion. Mr. Clevenger, attorney for the Board of Control, was asked to explain the procedures involved, and he presented a chronology of events roughly corresponding to the above recitation. The Board then voted to reaffirm its previous (August 15, 1971) action in this matter. B. Property Roth contains an extensive discussion of the ‘‘property’’ concept. 6a ‘*The Fourteenth Amendment’s procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits .... To have a property interest in a benefit, a person must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it .... Property interests, of course, are not created by the Constitution. Rather, they are created and their dimen- sions are defined by existing rules or understandings that stem from an independent source such as statelaw....”” Id. at 576-77. In that case, the terms of the teacher’s employment contract afforded him no interest in re-employment for the next year. Nor did any state statute or University rule or policy secure to him an interest in re-employment. Therefore, Roth, a non- tenured teacher, had no ‘‘property’’ interest protected by pro- cedural due process (a statement of reasons and a hearing), even though he surely had an abstract (and realistic) concern in being rehired. The companion case of Perry yv Sindermann, 408 U.S. 593 (1972), elaborated on certain aspects of ‘‘property’’ interests. The Supreme Court refined the notion that might have been implied by Roth, namely, that lack of a forme! contractual or tenure security in continued employment completely disposes of procedural due process claims. The teacher in Sindermann had alleged that his interest in continued employment (a ‘“‘property’’ interest), though not secured by a formal contrac- tual tenure provision, was secured by a no less binding under- standing fostered by the college administration. He claimed the college had a de facto tenure program, based on a provision 7a in the College’s Faculty Guide and certain guidelines promul- gated by the Coordinating Board of the Texas College and University System. The Court wrote: ‘‘A person’s interest in a benefit is a ‘property’ interest for due process purposes if there are such rules or mutu- ally explicit understandings that support his claim of en- titlement to the benefit . Yet absence of ... an explicit contractual provision may not always foreclose the possibility that a teacher has a ‘property’ interest in re-employment .... [T]he law of contracts ... long has employed a process by which agreements, thorugh not formalized in writing, may be ‘implied.’ ... Explicit contractual provisions may be supplemented by other agreements implied from ‘the promisor’s words and conduct in the light of the surround- ing circumstances.’ . . A teacher ... who has held his position for a number of years, might be able to show from the circumstances of this service — and from other relevant facts — that he has a legitimate claim of entit -ment to job tenure. Just as this Court has found there to be a ‘common law of a par- ticular industry or of a particular plant’ that may supple- ment a collective-bargaining agreement, ... so there may be an unwritten ‘common law’ in a particular uni- versity that certain employees shall have the equivalent of tenure. This is particularly likely in a college or univer- sity ... that has no explwit tenure system even for senior members of its faculty, but that nonetheless may have created such a system in practice.’’ Jd. at 601-02 (em- phasis added). With these principles in mind, this Court must now look to the specifics of plaintiff's claims. Stern has devoted six paragraphs of the complaint (€48-13) to ‘‘bases of entitlement 8a to continued employment.’’ He alleges (1) that President Shouldice induced him and his family to relocate to LSSC upon representations that the offered position was permanent rather than temporary; (2) that it has been the custom and practice of LSSC not to enter into a detailed written faculty employment contract, which purports to exhaustively set forth all of the terms of the contract, and that the only writing is a letter of appointment; (3) that LSSC’s regulations purport to encourage long-term faculty employment, and that the custom and practice of LSSC has been in the case of one recruited for long-term employment, such person’s employ- ment will not be terminated until or unless Shouldice decides that it will be terminatec\; (4) that he had faithfully performed his duties, and also had created, produced and directed plays outside of the LSSC community in such a manner so as to bring praise and recogniti6n to LSSC, including approbation from Shouldice; and (5) that he had met LSSC’s explicitly stated standards for promotion and tenure, not to mention continued employment which includes, but is not limited to, his obtaining his Ph.D. degree during his employment at LSSC. Initially, this Court observes that Stern was employed as a non-tenured assistant professor on a series of five one-year contracts. The portions of the Faculty Manuals in effect both when Stern was first hired and when his contract was not renewed make clear that non-tenured appointments are for the limited duration of one year. Stern has contended that the letter of appointment doesn’t exhaustively constitute his con- tract with LSSC, and that it has been the custom and practice of LSSC not to enter into a detailed written faculty employ- ment contract. The Court concludes, however, that this par- ticular point did not prevent the Supreme Court from deciding that the non-tenured teacher had no property in- terest in continued employment. See Board of Regents of State Col- Ga leges v Roth, supra, at 566 n.1 (‘‘The respondent had no con- tract of employment. Rather, his formal notice of appoint- ment wes the equivalent of an employment contract ....’’). Plaintiff has not adduced any evidence to support his allega- tion that LSSC’s custom and practice has been to provide ad- ditional unwritten conditions of employment, outside the let- ter of appointment (especially any dealing with the tenure concept). The Court finds that under the Roth guidelines, Stern possesses no property interest protected by due process. Even though a non-tenured professor, at the time he was hired by the university, might be informed that he could even- tually expect tenure if he met certain standards of professional competence, this fact does not give him a property interest in continued employment sufficient to require the procedural protections of the Fourteenth Amendment. Such notice is no doubt true of most neophyte members of university faculties. Stebbins v Weaver, 537 F.2d 939, 942 (7th Cir. 1976); cert. denied, 45 U.S.L.W. 3463 (1977). Stern has also claimed that he has met LSSC’s explicitly stated standards for promotion and tenure. However, it is clear that meeting any such published standards does not confer a property interest in advancement or continued employment, in the absence of some particular institutional regulation guaran- teeing reemployment. Burdeau v Trustees of California State Col- leges, 507 F.2d 770, 774 (9th Cir. 1974), cert. denied, 423 U.S. 989 (1975). ‘*Until tenure is obtained he may equal or exceed mini- mum requirements for evaluation and still the school may prefer to employ someone else for the position he seeks.’’ Jd. at 744. No such guarantee of reemployment in this case has been revealed. See Faculty Manual (1968) at F-3; Faculty Policies 10a Manual (1970) at 11-12. The fact that some or most teachers who are hired on a year to year basis are generally rehired does not give rise to a right of reemployment. Poddar v Young- stown State University, 480 F.2d 192, 194 (6th Cir. 1973). Plaintiff has also raised the issue of so-called ‘‘implied’’ or de facto tenure from Sindermann. That, however, is a heavy burden to meet. An explicit tenure system, as is the case at LSSC, weighs heavily against finding unwritten ‘‘rules’’ for governing employment. Ryan v Aurora City Board of Education, 540 F.2d 222, 227 and n.4 (6th Cir. 1976), cert. denied, 45 U.S.L.W. 3463 (1977); Cotten v Board of Regents of University System of Georgia, 395 F. Supp. 388, 393 (S.D. Ga. 1974), aff'd 515 F.2d 1098 (5th Cir. 1975); Megill v Board of Regents of State of Florida, 541 F.2d 1073, 1078 (5th Cir. 1976). Cf Sont v Board of Trustees of University of Tennessee, 513 F.2d 347, 351 (6th Cir. 1975), cert. denied, US. , 96 S.Ct. 2623 (1976); Watts v Board of Curators, University of Missouri, 363 F. Supp. 883, 888 (W.D.Mo. 1973), aff'd, 495 F.2d 384 (8th Cir. 1974); Toney v Reagan, 326 F. Supp. 1093, 1096 (N.D. Cal. 1971), aff'd, 467 F.2d 953 (9th Cir. 1972), cert. denied, 409 U.S. 1130 (1973) and the statement from Sindermann set forth hereinabove. Plaintiff has shown this Court nothing fac- tual (and defendants’ materials in the record virtually preclude any such showing) to support a claim of ‘‘implied’’ or de facto tenure that is necessary under Sindermann. At most, the evidence indicates a unilateral expectancy, which does not constitute a property interest in the constitutional sense. The facts here are distinctly different from Soni v Board of Trustees of University of Tennessee, 513 F.2d 347 (6th Cir. 1975), aff'g 376 F. Supp. 289 (E.D. Tenn. 1974), cert. denied, US. _______, 96 S.Ct. 2623 (1976), where the court found that the university objectively acted toward the professor in such a man- ner as to reasonably lead him to believe that he was a person lla with a relative degree of permanency, despite his being for- mally nontenured. Thus, plaintiff has not and cannot prevail on any claim of entitlement to a property interest under prin- ciples stated in Sindermann. C. Liberty. Roth also discussed the liberty interests protected by proce- dural due process. ‘The State, in declining to rehire the respondent, did not make any charge against him that might seriously dam- age his standi: g and associations in his community. It did not base the nonrenewal of his contract on a charge, for example, that he had been guilty of dishonesty, or im- morality. For ‘[w]here a person’s good name, reputa- tion, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.’’ ... In such a case, due pro- cess would accord an opportunity to refute the charge before University officials . Similarly, there is no suggestion that the State, in declining to re-employ the respondent, imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities ... . It stretches the concept too far to suggest that a person is deprived of ‘liberty’ when he simply is not rehired in one job but remains as free as before to seek another ....”’ Id. at 573-575. These principles have been amplified in subsequent cases. ‘In Weathers [v. West Yuma County School District R-]-1, 530 F.2d 1335 (10th Cir. 1976)] we held that even should the fact of nonrenewal and the reasons therefor be communi- cated, thus making the teacher ‘less attractive’ to future 12a employers, that this simply does not establish a liberty in- terest. We quoted with approval this language from Gray v Union County Intermediate Education District, 520 F.2d 803 (9th Cir. 1975): ‘Nearly any reason assigned for dismissal is likely to be to some extent a negative reflection on an indivi- dual’s ability, temperament or character (citation omitted). But not every dismissal assumes a consti- tutional magnitude. The concern is only with the type of stigma that seriously damages an individual’s ability to take advantage of other employment opportunities (citation omitted).’ 520 F.2d at 806.”’ Powers v Mancos School Distruct RE-6, Montezuma County, Colorado, 539 F.2d 38, 42-43 (10th Cir. 1976). Similarly, in Blair v Board of Regents of State University and Com- munity College System of Tennessee, 496 F.2d 322 6th Cir 1974), the Court stated: ‘*The District Court ... found that, under the rationale of Roth, appellee was deprived of a ‘liberty’ interest under the Fourteenth Amendment, in that the non-re- newal of his contract, on the charge of failure to meet minimum standards in his professional relationships with individual students, seriously damaged his reputation or imposed on him a stigma that foreclosed his freedom to take advantage of other employment opportunities. We do not construe Roth to support this conclusion. It can be argued that the failure of any school system to r. new the contract of any teacher on grounds of failure to meet minimum standards in his relationships with students may injure the reputation of the teacher in the academic community. We do not read Roth to mean that this situa- 13a tion requires a hearing under due Process Clause.’’ /d. at 324. The Sixth Circuit again discussed the liberty concept in Lake Michigan College Federation of Teachers v Lake Michigan Community College, 518 F.2d 1091 (6th Cir 1975), cert. denied, US. , 96 S.Ct. 3189 (1976): ‘*Thus it appears that due process safeguards would apply if the discharge of a teacher foreclosed future employment opportunities that otherwise would be open to him or if the grounds for the discharge tend to discredit the teacher’s honesty or integrity or to damage his stand- ing in the community. The federal courts have had many opportunities to refine and to apply the general guide- lines set forth in Roth. For example, liberty interests are not implicated when a teacher is charged with failure to meet minimum standards in his professional relationship with students. [citing Blair, supra.} Similarly, allegations of improper or inadequate performance do not constitute a deprivation of liberty within t.e meaning of the four- teenth amendment. [citation omitted] It has been held that in certain circumstances even the charge of ‘in- competence, neglect of duty and malfeasance in office’ does not amount to a deprivation of liberty under Roth. [citation omitted]’’ Jd. at 1096-1097. There is no evidence to support the allegation that there has been public disclosure of the reasons for the denial of tenure to the plaintiff and non-renewal of his contract. Cf Bishop v Wood, U.S. , 96 S.Ct. 2074, 2079-80 (1976) (even if the reasons are false); Stebbins v Weaver, 537 F.2d 959, 942 (7th Cir. 1976), cert. denied, 45 U.S.L.W. 3463 (1977); Ortwein v Mackey, 511 F.2d 696, 699 (5th Cir. 1975); Kaprelian v Texas Woman’s University, 509 F.2d 133, 137 (5th Cir. 1975); l4a Haron v Board of Education of City of New York, 411 F. Supp. 68, 71(E.D.N.Y. 1976); Griffin v Lancaster, 400 F. Supp. 421, 423 (W.D. La. 1975). The charges creating stigma must be con- siderably graver than mere charges of improper or inadequate job performance, or of failure to meet minimum standards of professional conduct, and must involve imputation of illegal, dishonest or immoral conduct calling into question one’s good name, honor or integrity, Connealy v Walsh, 412 F. Supp. 146, 159 (W.D. Mo. 1976). Denial of tenure because of poor or non-excellent professional performance is not a badge of in- famy. Keddie v Pennsylvania State University, 412 F. Supp. 1264, 1273-74 (M.D. Pa. 1976). Plaintiff claims that his ‘‘dismissal’’ has been harmful in terms of finding future employment, and that he has thus been foreclosed from taking advantage of other employment oppor- tunities by a stigma or other disability. In Roth the Supreme Court, in an important footnote, discussed this issue: The District Court made an assumption ‘‘that non-re- tention by one university or college creates concrete and practical difficulties for a professor in his subsequent academic career.’’ 310 F. Supp , at 979. And the Court of Appeals based its affirmance of the summary judg- ment largely on the premise that ‘‘the substantial adverse effect non-retention is likely to have upon the career in- terests of an individual professor’’ amounts to a limita- tion on future employment opportunities sufficient to in- voke procedural due process guarantees. 446 F.2d, at 809. But even assuming, arguendo, that such a ‘‘substan- tial adverse effect’’ under these circumstances would con- stitute a state-imposed restriction on liberty, the record contains no support for these assumptions. There is no suggestion of how nonretention might affect the respon- dent’s future employment prospects. Mere proof, for 15a example, that his record of nonretention in one job, taken alone, might make him somewhat less attractive to some other employers would hardly establish the kind of foreclosure of opportunities amounting to a deprivation of “‘libuity.’’ Cf. Schware v Board of Bar Examiners, 353 U.S. 232. 408 U.S. at 574 n. 13. While school officials may not deny a range of opportunities in a manner that denies the right to due process, this does not mean that they have a positive duty to determine whether the job market can absorb the professor; the borderland of liberty does not stretch that far; as long as the opportunity to pursue new employment persists, the school has not abridged the pro- fessor’s liberty. Perkins v Regents of University of California, 353 F. Supp. 618, 623-24 (C.D. Cal. 1973). Although plaintiff maintains that the deposition testimony of Creigton Holden (Clerk’s Item #44), a member of the LSSC Board of Control, shows that Stern’s nonretention by the college was a ‘‘black-ball’’ (and for all practical purposes an exclusion for future academic employment), an inspection of the questions and answers? do not yield any reasonable basis for such a strong interpretation, They are merely assumpuons, unsupported by an facts. Accord, Burdeau v Trustees of California State Colleges, 507 F.2d 770, 773 (9th Cir. 1974), cert. denied, 423 U.S. 989 (1975) (‘‘Appellant’s assumption that a ‘no-reason’ non-retention is subject to derogatory interpretation by third parties is an assumption not supported by any fact.’’). To generally interpret a non-retention as plaintiff argues would be to give with one hand what the other hand has taken away, and would make shambles of Roth. If a teacher is not tenured (formally or impliedly), he does not have a constitu- tionally protected property interest, and therefore has no right l6a to a prior hearing. To construe such a non-retention of a non- tenured teacher as inevitably constituting a foreclosure of future employment opportunities (implicating a liberty in- terest) thereby requiring a prior hearing, would be inconsis- tent with the property interest analysis. Difficulty in obtaining new employment does not constitute a stigma nor does it auto- matically result from the mere fact of not being rehired in a prior job. The national economic picture (inflation and unem- ployment rates) has a very significant impact on finding new employment. In any event, the Supreme Court has indicated that the mere record of nonretention in one job, although mak- ing one somewhat less attractive to some other employers, does not establish the kind of foreclosure of opportunities amounting to a deprivation of liberty. Roth, supra, at 574 n. 13. The Supreme Court was even more emphatic when it said: ‘*fi]t stretches the concept too far to suggest that a person is deprived of ‘liberty’ when he simply is not rehired in one job but rernains as free as before to seek another.’’ In all materials submitted to the Court for consideration on this summary judgment motion, there is no evidence to sup- port the claim that any constitutionally protected liberty in- terest of the plaintiff was infringed by the defendants. The conclusion that plaintiff had neither a property nor a liberty interest at stake in the circumstances of this case means that he was not entitled to any constitutional due process pro- tections, namely, a statement of reasons for nonretention and prior hearing. The record in this case, however, indicates that plaintiff was afforded very substantial procedural protections. There is a large amount of correspondence between plaintiff and Linderoth, Light, and Shouldice detailing reasons for non-retention. Plaintiff had a meeting with Light, the vice- president for academic affairs, at which he was given the op- portunity to present any information that he wanted. 17a Shouldice convened the Committee on Academic Tenure in an ad hoc capacity, since it did not have an official function in personnel matters concerning nontenured faculty members. This committee held a hearing at which plaintiff was present, and sent its report to President Shouldice. The Board of Con- trol permitted plaintiff to make a written submission to is as well as an oral presentation at a regular meeting. These op- portunities extended to plaintiff were far more than were owed to him by LSSC, either as a constitutional matter or as a mat- ter of the institution’s own regulations and practices. As we have found that plaintiff had no constitutional right entitling him to procedural due process, there is no right to substantive due process, that is, to challenge the action as being arbitrary or capricious. Stebbins vy Weaver, 537 F.2d 939, 942 (7th Cir. 1976), cert. denied, 45 U.S.L.W. 3463 (1977); Jeffres vy Turkey Run Consolicated School District, 492 F.2d 1, 4 (7th Cir. 1974); Williams v Day, 412 F. Supp. 336, 347 (E.D. Ark. 1976). The federal courts are not proper forums for con- testing (nor does the due process clause of the Fourteenth Amendment provide a guarantee against) even incorrect or ill-advised personnel decisions by public employers. Bishop v Wood, ___U.S. , 96 S.Ct. 2074, 2080 (1976).° The Court recognizes that the present motion is one for summary judgment, which is not to be granted unless there is no genuine issue as to the material facts, and one party is en- titled to a judgment as a matter of law. F.R. Civ.P. 56(c). The Court has read all sixteen (16) of the depositions filed in this case, all of the affidavits filed and has considered those documentary submissions which had been authenticated and would be admissible at trial.” The Court is convinced that the evidence brought forth is conclusive on certain of the issues raised by the pleadings. The plaintiff as the non-moving party is not entitled to hold back his evidence until trial, and is not 18a ! entitled to a trial on the possibility that an issue of material fact might turn up at the trial. 6 Pt. 2 Moore’s Federal Practice €56.22[2] at 56-1339 to -1340, and cases cited at nn. 20-21; id. €56.23 at 56-1391 and nn. 39-40. The Court is of the opinion that defendants, as the moving party, have discharged their burden under F.R.Civ.P. 56, and hereby makes the following findings of fact and conclusions of laws. Findings of Fact: 1. Plaintiff Robert Stern held a succession of five (5) one-year appointments to the faculty of Lake Superior State College covering the period of July 1, 1967 through June 30, 1972. 2. Under the tenure program established by LSSC’s regula- tions and Faculty Handbook, plaintiff did not have tenure. 3. Plaintiff did not have implied or de facto tenure under any unwritten customs and practices outside of the formal tenure program at LSSC. 4. Defendants did not make any charges against plaintiff that might seriously damage his standing and associations in his community. 5. Disclosure of the defendants’ reasons for nonretention of the plaintiff were made privately to him in letters during May and June 1971. As far as the evidence adduced here indicates, any public disclosure of the reasons were at plaintiff's behest, and are therefore his responsibility.* 6. Detendants did not, by declining to re-employ the plaintiff, impose on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities. Conclustons of Law: 1. Plaintiff does not have a constitutionally protected proper- ty interest in continued employment at LSSC. 19a 2. Plaintiff was not deprived of any constitutionally protected liberty interest. 3. Since no constitutionally protected property or liberty in- terests of the plaintiff were implicated in this case, he was not entitled to any of the procedural protections of the due process clause of the Fourteenth Amendment. Accordingly, defendants’ motion for summary judgment as to these claims is GRANTED. II FIRST AMENDMENT Plaintiff has claimed that the non-renewal of his employ- ment contract at LSSC was in retaliation for his exercise of his First Amendment rights of Free speech. He has called atten- tion to two series of events in particular, the *‘AAUP Letter”’ (American Association of University Professors) and the so- called ‘‘Freedman incident.’ The first of these occurred be- tween December 1969 and February 1970, and the latter set of events transpired between July and October 1970. Because of our disposition of defendants’ summary judgment motion as to these claims (set forth below), it is unnecessary to go into factual detail about the events. A teacher (or other government employee) may not be ter- minated or denied re-employment because of his exercise of constitutional rights. Perry v Sindermann, 408 U.S. 593, 597 (1972); Pickering v Board of Education of Township High School District 205, Will County, Illinois, 391 U.S. 563, 568 (1968); Amburgey v Cassady, 507 F.2d 728, 730 (6th Cir. 1974); Man- chester v Lewis, 507 F.2d 289, 290 (6th Cir. 1974); Hetrick v Martin, 480 F.2d 705, 708 (6th Cir. 1972), cert. denied, 414 20a U.S. 1075 (1973); Orr v Trinter, 444 F.2d 128, 134 (6th Cir. 1971), cert. denied, 408 U.S. 943 (1972). This is so irrespec- tive of any contractual or tenure right to re-employment (or lack thereof). Perry v Sindermann, 408 U.S. at 596-98; Bertot v School District No. 1, Albany County, Wyoming, 522 F.2d 1171, 1177 (10th Cir. 1975). Pickering v Board of Education, supra, is the most instructive Supreme Court opinion on First Amendment rights in the context of public employment, especially teaching. ‘*(T]he State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public ser- vices it performs through its employees.’’ 391 U.S. at 568. Before engaging in the balancing approach suggested in Pickering, it must first be shown that the teacher’s activities are in fact protected by the First Amendment. Pickering held that a teacher’s public criticism of his superiors on ‘‘matters of public concern’’ may be constitutionally protected. Amburgey v Cassady, supra, held that, although a teacher has a right to criticize internal school operations, the teacher’s conduct, particularly her disruption of a colleague’s classroom, her shoving of the superintendent, and her suggestion that he ought to be shot, were not protected by the First Amendment, and provided ample justification for the recommendation of the superintendent and for the decision of the school board not to rehire her. 2la In Manchester vy Lewis, supra, the Court agreed with the lower court’s finding that the reason why the teacher was not given tenure was the unsatisfactory level of his teaching per- formance, and not, as the teacher had alleged, because of his participation in the school visiting speaker program and his public comments criticing the school’s policy concerning visiting speakers. In Hetrick v Martin, supra, the Court held that a state university may discharge a teacher whose pedagogical style and philosophy did not conform to the pat- tern prescribed by the school administration. The teacher had claimed that she had not been rehired because she had made in-class statements about the Vietnam war and the military draft and because of her beliefs and ideas (all of which are at least arguably protected by the First Amendment). ‘Whatever may be the ultimate scope of the amor- phous ‘academic freedom’ guaranteed to our Nation's teachers and students, ... it does not encompass the right of a nontenured teacher to have her teaching style insulated from review by her superiors when they deter- mine whether she has merited tenured status just because her methods and philosophy are considered acceptable somewhere within ihe teaching profession.’ 480 F.2d at 709. In this connection, we find the following statement germane: Federal courts must be vigilant to protect the First Amendment rights of all of our citizens. But they must also be careful not to permit the use of speech to become a cloak for protection against the conse- quences of one’s misconduct or incompetency. In every teacher dismissal or nonrenewal case, elements of speech may be involved. The Court's obligation yo determine from all the evidence if the Nini 22a board’s decision was based in whole or in part on the teacher's exercise of his First Amendment rights. In other words, the Court must determine the real reason for the board’s action. See, ¢. g., Miller v Pulaski County Special School District, No. UR-72- C-249 (E.D.Ark.), aff'd 513 F.2d 637. The burden is on the teacher to show that the stated reasons for nonrenewal were pretexts, and that the actual reason was the exercise by the teacher of a constitu- tionally protected right. Watts v Board, 495 F.2d 384 (8th Cir. 1974). Willams v Day, 412 F. Supp. 336, 340 n. 1 (E.D. Ark. (1976). While the historical facts (what happened and when) of the events involved here are not disputed, the primary issue in this First Amendment retaliation claim is the real reason for the defendants’ action in not renewing plaintiffs contract (the why). As a general proposition, summary judgment is likely to be inappropriate when issues of motive, intent, and other subjective feelings and reactions are material. 6 Pt. 2 Moore’s Federal Practice §56.17([41.-1] at 56-930. In George v Conneaut Board of Education, Conneau City School District, 472 F.2d 132 (6th Cir, 1972), the Court reversed a summary judgment in favor of the defendants. The complaint alleged that the plain- tiff, a nontenured ‘ieacher, was not rehired because of his exer- cising First Amendment rights, and defendant school board's affidavit averred that the reasons for not rehiring related solely to job performance and not to the teacher's membership in and activities on behalf of the educational association. The Sixth Circuit held that factual issues were thereby raised, (namely, whether the failure of the board to renew. the teacher's contract was Because of his exercise of First Amend- ment rights) which precluded summary judgment. 23a George is quite similar to the instant case. This Court again observes that it has reviewed all sixteen of the depositions in this case, the exhibits and the proposed statements of facts by both sides. Since the plaintiff's activities, which he claims are the real basis upon which he was not rehired, are not clearly outside of the First Amendment's protection (nor do defen- dants so contend), the Court will assume, for the purposes of this motion only, that they are so protected. While the defen- dants, in support of their motion, rely heavily on the timing of certain events (which is not disputed by plaintiff) to prove their lack of an impermissible motive for not renewing the plaintiff's contract, the Court is of the opinion that the ques- tion of motive in this situation is one of inference from the established facts of the events involved.’ It is not the Court's function, on a motion for summary judgment, to make in- ferences from even undisputed facts unless the evidence is so one-sided as not to provide a reasonable basis for the opposite conclusion. We conclude that this case does not fall within this exception, but rather that the evidence submitted can reasonably support opposing inferences. Since this is the case, the defendants have not met their burden as moving parties to establish the absence of any genuine issue as to all the material facts. A genuine issue as to a material fact does exist. Accor- dingly, defendants’ motion for summary judgment is DENIED as to plaintiff's claim of retaliation for the exercise of his constitutional rights. To repeat this Court's ruling at the time of oral argument, defendants’ motion for withdrawal of plaintiff's counsel is GRANTED for the reasons specified in the motion, primarily Disciplinary Rule 5-102 of the Code of Professional Respon- sibility. Plaintiff's counsel, Mr. Dunchock, advised the Court during argument on the withdrawal motion that he had made arrangements for new counsel to take his place if withdrawal was ordered. He also indicated that this new counsel might 24a want to amend the complaint. This Court is of the opinion that the case is at such a stage that there is no absolute right to have new counsel add new claims. The Court will require good cause for any amendments at this late date. Therefore, plaintiff's new counsel will, if he desires to amend the com- plaint, submit to the Court, within 21 days from issuance of this opinion, any proposed amendments accompanied by reasons in support thereof, At the hearing on these motions, the Court also raised the issue of whether plaintiff has a right to a jury trial on the issues that might remain after disposition of the summary judgment motion. Plaintiff had filed a timely jury demand. Neither counsel was prepared for this question at that time, and the Court therefore invites memoranda from the parties to be sub- mitted to the Court according to the following time schedule: plaintiff has twenty-one (21) days from issuance of this opin- ion, and defendants have fourteen (14) days from the date plaintiff's memorandum is sent to them. The Court does not contemplate oral argument on this point. In summary, then, defendants’ motion for summary judg- ment is GRANTED with respect to the procedural due pro- cess claims of the plaintiff, and plaintiff's complaint is DISMISSED as to those issues. Defendants’ motion for sum- mary judgment is DENIED with respect to plaintiff’s First Amendment claims. Defendant's motion to compel with- drawal of plaintiff's counsel is GRANTED. IT ISSO ORDERED. /s/ WENDELL A. MILEs Wendell A. Miles, District Judge Dated: January 31, 1977 25a FOOTNOTES 1. Plaintiff has pleaded a cause of action under 42 U.S.C. §1985, apparently subsection (3), alleging a conspiracy to deprive him of his civil rights. However, this provision is limited to situations with some racial or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action. Crabtree v Brennan, 446 F.2d 480, 481 (6th Cir. 1972), citing Griffin v Breckenridge, 403 U.S. 88, 101-102 (1971). As there is no allegation of this type in the complaint, nor does it appear to the Court that any such allegation could be supported by any evidence, plaintiff's claim under 42 U.S.C. §1985(3) is DISMISSED. 2. Plaintiff has apparently lifted this language from the Sinder- mann opinion, See 408 U.S. at 603. However, a careful reading of that portion of the opinion indicates that such a hearing (‘‘an opportunity to prove the legitimacy of his claim of such entitlement in light of ‘the policies and practices of the institu- tion’’’) was not one for the educational institution to conduct. While the Supreme Court said that the teacher ‘‘must be given’’ such an opportunity, the context of this statement must be examined in order to clarify its meaning. The District Court had granted summary judgment in favor of the institu- tion. The Court of Appeals reversed, holding in part that the teacher’s lack of tenure did not deprive him of an opportunity for a hearing if he could show an ‘‘expectancy’’ of re- employment. The Supreme Court affirmed the Court of Ap- peals’ result, but disagreed ,..:h its reasoning. Mr. Justice Stewart wrote: “‘[wle disagree with the Court of Appeals insofar as it held that a mere subjective ‘expectancy’ is protected by procedural due process.’’ 408 U.S. at 603. 26a The Supreme Court did agree with the disposition to remand the case to the District Court, where the teacher would be given the opportunity to pursue his allegation that the college had a de facto tenure policy, and that he qualified [PRINTER CANNOT READ TOP LINE OF PAGE -24-] judgment against the teacher on the ground that he was non-tenured had foreclosed him from presenting any evidence on this issue. Thus it is clear that the District Court, and not the col- lege, is the site for this particular ‘‘hearing.’’ The hearing that is an element of procedural due process, where a teacher is permitted to respond to the statement of reasons for nonreten- tion (see €20 of Complaint), is what is conducted by the col- lege. In addition, the Supreme Court did not, and indeed can- not, remand to the college for the holding of such a hearing as plaintiff herein seeks; the Court can only remand to lower courts. In Sindermann. it is obvious that the Court was pro- viding the teacher with an opportunity to pursue his claim of de facto tenure in court. See Sindermann, 408 U.S. at 602 n. 7 (‘‘{w]e do not now hold that the respondent has any such legitimate claim of entitlement to job tenure ... Ifitis the law of Texas that a teacher in the respondent’s position has no contractual or other claim to job tenure, the respondent’s claim would be defeated.’’). Sindermann did not conclude that the teacher had proved his claim of implied tenure, only that he had an opportunity to show such in court. Thus, plaintiff’s contention that he was entitled as a matter of procedural due process to a college-level hearing on the legitimacy of his claim of entitlement to implied or de facto tenure is without merit. 3. Plaintiff has contended that the Board of Control members did not know what consequences their August 13, 1971 vote on plaintiff's change-of-status recommendation would have. The change-of-status recommendation form itself proves otherwise. The written minutes state: ‘*Mr. Somes, seconded by Mr. Glass, moved approval of a change of status for Robert I. Stern, from director of drama and assistant professor of speech, to assistant pro- fessor of speech. The change of status carries no tenure, with termination of employment at the end of the 1971-72 school year. Carried by voice vote, without dis- sent.’ Apparently the second last sentence of the above was not part of the oral proceedings at the August 1971 Board meeting. The undisputed deposition testimony of Frank Hoholik (pp. 7-11, Clerk’s Item #39) and John Matheson (pp. 5-8, Clerk’s Item #40) shows that the Board of Control members were sent the entire change-of-status recommendation forms a week prior to the official meeting, in order to familiarize them with details of the proposed changes and reasons therefor. Plaintiff's claim of a discrepancy between the written minutes of that Board meeting and a tape recording of the actual oral proceedings does not present any basis for relief. The record is clear that the customary procedure of the Board of Control at their regular meeting in acting upon personnel changes of status is to have an oral motion as to each individual on the agenda, but not to recite in the motion, every detail of the change-of-status recommendation forms, which are in front of each board member during the voting. This ‘‘shorthand’’ procedure is probably essential to having the Board complete its entire agenda for the meeting. Plaintiff's claim that this discrepancy constitutes a ‘‘fraud upon the public’’ is a baseless accusation. The Court knows of no legal requirement that the minutes of a Board of Control meeting be verbatim records of every word that was uttered at a meeting; they are usually considered a summary of action taken. The written 28a documents supplementing the official agenda constitute the basis or content of the official action which is recorded in the minutes. Any contention that the Board action was invalid because the oral rnotion did not fully refer to every item of in- formation in the change-of-status recommendation is frivolous. In any event, this type of claim is not cognizable in federal court in a suit under 42 U.S.C. §1983, for deprivation of constitutional rights. 4. Plaintiff makes two other subsidiary claims: (1) that his ‘*firing’’ was contrary to the best interest of LSSC, since a replacement for him had not yet been found, resulting in the curtailment in scope and quantity of speech/drama/theatre courses and activities offered by LSSC to its students; and (2) that the decision to ‘‘fire’’ him was made by defendant Shouldice, LSSC President, rather than by the Board of Con- trol, in violation of state law. See M.S.A. §15.1852(104); M.C.L.A. §390.394. As to(1), such a claim is not cognizable either in this type of suit (one for the deprivation of constitutional rights) or by courts in general. There is absolutely no support for an asser- tion that the best interests of an educational institution can be asserted by this plaintiff as being one of his constitutional rights. Additionally, in our governmental system of separa- tion of powers, courts do not function in quasi-executive or administrative capacities. Our task in a §1983 case is to deter- mine if a plaintiff's constitutional nghts were violated, and not to govern a college. ‘*The determination as to whether the quality of ser- vices of a particular teacher entitles him to continued employment beyord the probationary period, thereby qualifying him tor tenure status, or whether his contract of employment should not be renewed prior to attain- ment of tenure status, is the prerogative of the 29a employer ... Orryv Trinter, 444 F.2d 128, 135 (6th Cir. 1971), cert. denied, 408 U.S. 943 (1972). As to (2), this claim is frivolous and is not cognizable in a §1983 proceeding. See Michigan Constitution 1963, Article 8, §6 (providing for educational institution governing boards to elect presidents to serve as the institution’s principal executive officer); Bylaws and Statutes of the Board of Control of Lake Superior State College, Article II, Section 2.01 (specifying the president’s powers). Further, there is absolutely no possible dispute with the fact that the Board of Control actually voted (on two separate occasions) on the personnel action involving plaintiff Stern. This is not a case presenting an issue of whether the president can unilaterally and without Board of Control approval fire or not rehire a faculty or staff member. 5. “Q. Did you at that time or did [sic] you now understand that this is an effective black-balling of a man’s career for the rest of his life? A. I don’t interpret it as such but I know there are people who do. * e * Q. Who do you know that interprets it as such? A. I don’t know. I’m just telling — I don’t. Q. You indicated you knew that there were people who do. A. I assume that there are people who do.”’ Deposition of Creighton Holden, p. 7. 6. Chief Justice Burger’s suggestion in his concurring opi- nion in both Board of Regents of State Colleges v Roth, 408 U.S. 564 (1972) and Perry v Sindermann, 408 U.S. 593 (1972), that state courts should be considered a more siutable forum for this type of litigation is most sensible. See 408 U.S. at 603-604. 30a 7. With over 770 civil cases the mass of materials inundated this Court is so great that weekends and one day docket clearances have been utilized to accomplish this feat. 8. The general confusion concerning the exhausting hearings and re-hearings is understandable. The writer served as a col- lege counsel and was often perplexed by reason of conflicting statements emanating from the Courts. The only possible solution was to conduct hearings to the point that each judicial viewpoint could and should be satisfied. 9. The Supreme Court has just issued an opinion concerning the burden of proof in First Amendment retaliation cases. See Mt. Healthy City School District Board of Education y Doyle, U.S. , 45 U.S.L.W. 4079 (January 11, 1977). 3la Opinion UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN Rosert STERN, Plaintiff, VS. No. M 43-73 KENNETH SHOULDICE, individually and CA 3 as President of Lake Superior State Col- lege, et al, Defendants. OPINION This is a faculty tenure case brought under 22 U.S.C. §1983 and 42 U.S.C. §1985. Plaintiff alleges that his employ- ment with Lake Superior State College was terminated in retaliation for exercise of first amendment rights. In an earlier opinion, this Court dismissed plaintiffs procedural due proc- ess claims. In that opinion the Court raised the issue whether the remaining matters were properly triable to a jury, which has been demanded by plaintiff. The right to a jury trial lies only for ‘‘suits atcommon law.”’ U.S. Const. amend. VIII. Although the basic thrust of the seventh amendment was to preserve the right to a jury trial as it existed in 1791, the concept ‘‘common law’’ has evolved to embrace all suits not within equity or admiralty jurisdiction. Curtis v Loether, 415 U.S. 189, 193 (1974). Asa result, the right to a jury trial may extend to congressionally-created causes of action. Jd. at 193-94. When a statutory cause of action comes 32a before a court, it must be carefully analyzed to determine whether the issues raised are inherently legal or inherently equitable. Where distinct legal and equitable issues are involved, there may be a right to a jury on the legal issues, while the equitable issues are solely for the court. Dairy Queen, Inc. v Wood, 369 U.S. 469 (1962). There are three essential facets to the determination whether a jury trial is appropriate. First, it must be deter- mined whether the relief sought is “‘legal’’ or ‘‘equitable.’’ Secondly, it must be determined whether the issues are within the practical abilities and limitations of a jury. See Datry Queen, Inc. v Wood, 369 U.S. 469, 478 (1962). The final consideration is whether the issues are such as would have been tried by a jury at the time the Seventh Amendment was adopted. See generally Marr v Rife, 363 F. Supp. 1362, 1363 (S.D. Ohio 1973), citing Ross v Bernhard, 396 U.S. 531, 538 n.10 (1970); NLRB vy Jones & Laughlin Steel Corp., 301 U.S. 1 (1937); United States v Louisiana, 339 U.S. 699 (1950); Rodgers v Loether, 312 F. Supp. 1008 (E.D. La. 1970); 9 Wright & Miller, Federal Practice and Procedure: Civil §2302 (1971). The remedies sought by plaintiff are: 1. reinstatement with back pay, 2. actual damages and attorneys fees of $500,000, and 3. $100,000 punitive damages. The claim for reinstatement and back pay is essentially equitable — a claim in the nature of restitution for employ- ment wrongfully withheld. Cf EEOC v Detroit Edison Co. , 515 F.2d 301 (6th Cir. 1975), vacated and remanded on other grounds, 97 S. Ct. 2669 (1977). Plaintiff's complaint suggests three possible constituents of his claim for ‘‘actual damages’’: (1) expenses in seeking other employment, (2) a significant lowering of employability, and (3) stress and embarrassment to plaintiff and his family. Defendant cites Lynch v Pan 33a American World Airlines, 475 F.2d 764 (5th Cir. 1973), for the proposition that ‘‘unsupported allegations for compensatory and punitive damages’’ cannot unilaterally alter the nature of an inherently equitable claim. The Court cannot say in this instance, however, that the allegations of compensatory and punitive damages are so lacking in merit as to be ‘“‘unsupported.’’ Plaintiff's claim for expenses in seeking new employment appears to be a legal claim for consequential damages. Unlike the remedy of reinstatement and back pay, which is in essence a return of employment wrongfully taken away, the claim for expenses directly results from plaintiff's dismissal and is therefore a ‘‘legal’’ claim. Plaintiff's claim for diminished employability is, of course barred by the Court’s finding ina previous opinion that defendants’ failure to reemploy plaintiff did not foreclose his freedom to take advantage of other employment opportunities. Finally, plaintiff's claim for ‘‘stress and embarrassment’’ also states a theory for the recovery of consequential damages flowing from defendants’ alleged wrongful act. This sort of claim has traditionally been cognizable by courts of law. Plaintiff has also demanded punitive damages in the amount of $100,000. Although this claim may not have substantial support in the record, if plaintiff can establish that his nonretention was in retaliation for exercise of first amend- ment rights, punitive damages may be warranted assessment of punitive damages has traditionally been the function of the jury. For these reasons, the Court must conclude that the issues raised in this case are properly triable by a jury. With the abolition of the separation of law and equity, the distinction between issues triable as of right to a jury and those that must be tried to the court has necessarily blurred. In characterizing 34a issues as ‘‘legal’’ or ‘‘equitable’’ a court must consider that although there is a constitutional right to have ‘‘legal’’ issues determined by a jury, there is no correlative constitutional right to have ‘‘equitable’’ issues tried by the court. See The Supreme Court: 1958 Term, 73 Harv. L. Rev. 128, 191 (1959). Whether plaintiff's ‘‘legal’’ claims are mere ‘‘unsupported allegations’’ as in Lynch, supra, should await the close of plain- tiffs case and a motion for a directed verdict. A jury will be empaneled to hear this case. IT IS SO ORDERED. /s/ WENDELL A. MILES Wendell A. Miles, United States District Judge Dated: August 29, 1977 35a Opinion on Motions for New Trial/JNOV UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN (Filed June 16, 1978) Rosert STERN, Plaintiff, Vs. M-43-73 CA KENNETH SHOULDICE, et. al., Defendants. OPINION ON MOTIONS FOR NEW TRIAL/JNOV INTRODUCTION Plaintiff, a former professor at Lake Superior State College, brought suit against the College, Kenneth Shouldice (the president), and Leon Linderoth (the department chairman), contending that the decision not to renew his contract de- prived him of liberty and property without due process of law. In ruling upon defendants’ motion for summary judgment, the Court found that plaintiff had no fourteenth amendment property interest. Plaintiff's first amendment retaliation claim, however, raised issues of fact sufficient to preclude summary judgment. In addition, the court invited sup- plemental briefs on whether the case was properly tried to a jury. After receipt of these briefs, the Court ruled that planitiff’s claims for damages for mental anguish, lowering of employability, and expenses in seeking other employment were legal in nature and must be tried by a jury. After several days of trial the jury returned a verdict awarding’no compen- satory damages, awarding $1000 in punitive damages against 36a each individual defendant, and granting plaintiff reinstate- ment and back pay in the amount of $50,155.32. Defendants, who had moved for a directed verdict at the close of plaintiff’s case, thereupon timely moved for a new trial or, in the alternative, for a judgment notwithstanding the verdict. Defendants’ motions adress four basic areas: (1) the award of punitive damages, (2) the amount of back pay awarded, (3) the proprietary of a jury trial, and (4) the suffi- ciency of the evidence. The Court will discuss each of these areas after an initial consideration of the appropriate standard for assessing motions for new trials and motions for judgment notwithstanding the verdict. II. MOTIONS FOR A NEW TRIAL OR JUDGMENT NOV Federal Rule of Civil Procedure 59(a) provides that a new trial may be granted ‘‘for any of the reasons for which new trials have heretofore been granted ... in the courts of the United States.’’ A new trial is appropriate in instances where there has been a denial of the proper mode of trial — jury or court. Freeman Contractors v Central Surety & Ins. Corp., 205 F.2d 607 (8th Cir. 1953). A motion for a new trial is also properly granted where there are jury errors or inconsistencies, such as where the jury is ‘‘plainly confused,’’ Feeney v Stieringer, 162 F. Supp. 546 (W.D.N.Y. 1957), or where the jury disregarded the Court’s instructions. Pugh v Bluff City Excurston Co., 177 F. 399 (6th Cir. 1910); Hartman vy White Motor Co. , 12 F.R.D. 328 (W.D. Mich. 1952) (Starr, J.). In addition, where the jury’s verdict is against the weight of the evidence, the Court should exercise its discretion to grant a new trial. Fortenberry v New York Life Ins. Co, , 459 F.2d 117 (6th Cir.), cert. denied, 409 U.S. 981 (1972). Finally, a new trial is properly granted where the 37a damage award is excessive. Mooney v Henderson Portion Pack Co. , 359 F.2d 64 (6th Cir. 1964). The granting or denial of a motion for a new trial is within the discretion of the trial court, and is not reviewable except for abuse of discretion. 6A Moore’s Federal Practice §59.08[1], at 59-101. Although a motion for a new trial lies within the discretion of the Court, a motion for a judgment notwithstanding the verdict may be granted only where, without weighing the credibility of the witnesses, there can be but one reasonable conclusion as to the proper result. See 5A Moore’s Federal Practice §50.07[2]. In considering the motion the Court must view the evidence in the light most favorable to the nonmov- ing party. Thus in comparison to the motion for a new trial, the Court’s power is severely circumscribed. III. PUNITIVE DAMAGES Plaintiff’s complaint demanded $100,000 ‘‘punitive ex- emplary damages’’ against defendants Shouldice and Linderoth. The jury was instructed on punitive damages (see 3 Devitt & Blackmar, Federal Jury Practice and Instructions §85.11) and were informed ‘“‘that such extraordinary damages may be allowed only if the jury should first unanimously award the plain- tiff a verdict for actual or compensatory damages, even if such damages are nominal.”’ The jury verdict form was carefully read and explained to the jurors, who each had a copy of it so that they could follow and 38a fully understand the explanation. The jury returned its ver- dict against the individual defendants Shouldice and Linderoth as follows: ‘x For the plaintiff —_ nominal and/or compensatory damages X_ punitive damages $1,000.00.”’ Defendants contend that since there was no award of actual or nominal damages, the award of punitive damages must be set aside. Plaintiff contends that by finding for the plaintiff, the jury found that he was denied his constitutional rights. Plaintiff argues that this determination carries with it a presumption of nominal damages, and that nominal damages will support an award of punitive damages. This proposition, however, may also work in the opposite direction. If the jury specifically does not award even nominal damages, it may be inferred that they did not find any violation of constitutional rights, The court is tempted to grant the equivalent of a judgment notwithstanding the verdict by issuing a remittitur of punitive damages. The jury’s action with respect to punitive damages is clearly contrary to law and to their instructions. In addition, the evidence that defendants acted maliciously, wantonly, or oppressively was negligible, consisting primarily of somewhat tenuous inferences. The jury’s actions in this case, however, are indiciative of more serious problems not confined to the issue of punitive damages alone. The jury’s award of punitive damages implicates all four of the circumstances noted as proper for the granting of a new trial. Although the verdict form was clearly and carefully ex- plained to the jury while they held a copy of it in their hands, the jury either was confused about the verdict form or else 39a disregarded the Court’s instructions. In addition, the Court gave a very specific and approved instruction concerning punitive damages, which the jury also either misunderstood or disregarded. A further indication of the jury’s confusion is the fact that they failed to take the rather voluminous and complex instructions into the jury room to assist them in their deliberations, even though they were informed that the in- structions were available on request. In addition, the finding that defendants acted maliciously, wantonly, or oppressively, implicit in the award of punitive damages is against the weight of the evidence. As a result, the damage award was excessive. Since the Court finds that the jury was confused, that it disregarded the Court’s instructions, that the award of punitive damages was against the weight of the evidence, and that the damage award was excessive, a new trial is properly granted. IV. BACK PAY In his complaint plaintiff damanded that the College reinstate him and award him back pay from the time of his nonrenewal. The court, recognizing that the amount of back pay was for the Court (See Opinion, August 27, 1977), never- theless submitted the question to the jury in an advisory capacity. In making such a determination, the Court is bound by the factual findings of the jury as to the legal claims, and the Court therefore believed that the jury’s advice on this issue would be helpful. The only evidence from which back pay could properly be calculated was plaintiff's exhibit 141, which showed the salaries of five other faculty members for the years following plaintiff's nonrenewal. The jury, however, re- quested only one exhibit, although they were instructed that any and all exhibits would be supplied. That one exhibit, plaintiffs exhibit 155, showed plaintiff’s earnings since his nonrenewal. The jury completed the verdict form as follows: ‘‘Tf you find for the plaintiff against the defendand col- lege, you may award back pay to the plaintiff according to the following formula: _x Amount of earnings plaintiff would have earned in employment at defendant College from date of separa- tion to present date: $80,000.00. — (minus) amount of income, including unemploy- ment compensation benefits, paid to the plaintiff from date of separation to present date: $29,844.68. = (equals) back pay: $50,155.32. Defendants contend that the jury’s award of back pay is totally speculative. It is defendant’s argument that since the jury did not have exhibit 141 during their deliberations, its assessment of gross back pay at $80,000 must have been the product of sheer speculation. Plaintiff contends that there were factors that the jury was cognizant of justifying the award: (1) plaintiff’s earnings record, (2) plaintiff’s obtaining of a doctoral degree, and (3) the double digit rate of inflation. All these factors, plaintiff contends, could have properly in- fluenced the calculation of gross back pay. As the Court observed, assessment of back pay is a function of the Court, and the Court could simply reject the jury’s find- ing and make its own independent determination. As with the problem of punitive damages, however, the problem of back pay raises serious questions as to the jury’s actions with respect to the case as a whole, Exhibit 141 shown salary rates for five faculty members for the academic years 1970-71 to 1977-78. Plaintiff was still at the College in the years 1970-71 and 1971-72, and the academic year 1977-78 had not yet begun at the time of trial. Thus, only the years 1972-73, 4la 1973-74, 1974-75, 1975-76, and 1976-77 are relevant. The sum of the five highest salaries from each of the five years, without regard to the recipient of those salaries, is $70,163. The most received by any one individual during those years was $68,997, received by Professor Cullen. In addition, plain- tiff acknowledges in his brief that he had a ‘‘total salary expec- tation of $65,000.”’ The jury was instructed that the law required their decision to be based ‘‘solely upon the competent evidence before you.”’ Even considering plaintiff's proferred explanation for the amount of back pay awarded, an $80,000 award was un- justified by the evidence. Although the five faculty members had a similar ‘‘earnings record’’ to plaintiff’s, their earnings did not approach $80,000. Moreover, at least one of the five faculty members received a doctorate, but that entitled him to only a $500 annual increase. Furthermore, although con- sideration of inflation was conceivably proper, there was no evidence from which an informed and intelligent determina- tion of the impact of inflation could be made. The jury’s failure to follow the instruction that they were to find the facts from competent evidence, or their confusion regarding the role of the jury in determining back pay is a justification for a new trial. In addition, for the reasons «tated, the jury’s deter- mination of back pay was against we clear weight of the evidence, and, as a result, the damage award was excessive. For these reasons the court finds that a new trial is justified. V. MODE OF TRIAL Shortly before trial the Court solicited memorandum briefs from the parties to assist it in determining whether this case was properly tried by a jury or by the Court. In an opinion issued August 29, 1977, the Court found that plaintiff’s 42a claims for diminished employability, stress and embarrass- ment, expenses in finding a new job, and punitive damages were sufficient to render the case one for a jury. At the close of plaintiffs case, defendants moved to dismiss the jury, conten- ding that plaintiff had produced no evidence from which ac- tual or compensatory damages could be awarded. The Court held, however, that nominal or punitive damages could possi- bly be sustained, and consequently submitted the case to the jury. Defendants have reiterated their claims in their post-trial motions, Lynch vy Pan American World Airlines, 474 F.2d 764 (Sth Cir. 1974) stated that an unsupported claim for compensatory damages would not suffice to transform an essentially equitable claim into a ‘‘legal’’ claim properly tried by a jury. The court in Lynch did not elaborate on how unsupported a claim for legal relief must be to justify striking the jury de- mand. Because the constitutional right to a jury trial is involv- ed, however, it would appear that dismissal of the jury would be justified only where a directed verdict or motion for a judg- ment notwithstanding the verdict would be properly granted, because the limits on the granting of these motions also define the right to a jury trial. As a result, it must be determined whether the evidence, viewed in the light most favorable to plaintiff; leaves but one reasonable conclusion — that plaintiff was not entitled to compensatory and punitive damages. The Court cannot say that if the evidence is viewed in the light most favorable to plaintiff, there can be but one reasonable conclusion, Although the evidence was negligible, it is con- ceivable that reasonable persons could find that plaintiff suf- fered injury warranting compensatory or punitive damages on the basis of inference. As a result, the Court concludes that the case was properly tried betore a jury. 43a There is another approach to the problem not suggested by defendants. The jury did not award either compensatory or nominal damages, and the punitive damage award is conse- quently clearly improper. Since all of plaintiff's legal claims were found to be without merit, the right to a jury trial is either satisfied or not implicated. The troubling feature of this argument, however, is the jury’s advisory findings that plain- tiff was entitled to reinstatement and back pay and that plain- tiff was not renewed because of his participation in AAUP ac- tivities. The jury’s actions are perhaps better explained in terms of mistake than in terms of a conscious finding of plain- tiffs legal claims to be without merit. Professor Moore has criticized the actions of the Supreme Court in expanding the right to a jury trial ‘‘at a time at which the pressure of crowded dockets and long delay in tiral have prompted a reappraisal of the usefulness of jury trials in civil cases as instruments of justice.’’ 5 Moore’s Federal Practice 438.12[1], at 128.23. From the standpoint of judicial efficien- cy, it would certainly be more appropriate to approach the jury/nonjury question as a procedural matter rather than as a matter of constitutional right. Nevertheless, although the Supreme Court has been more than willing to recognize ‘‘the oractical and human limitations of the jury system’’ in criminal cases, see Bruton v United States, 391 U.S. 123, 135 (1968), it has been relatively insensitive to these same con- sideratians in civil cases. As a result, in many situations courts are faced with difficult assessments of claims to determine whether they are inherently equitable or inherently legal. With the abolition of the division between law and equity, this distinction in many cases becomes virtually a distinction without a difference. The deciding factor may be the nature of the respective rights to trial by the court and trial by jury. Although the right to a jury trial is a constitutional right, and 44a error in denying 2 jury trial constitutional error, trial by the court is not constitutionally mandated, and error in denying a bench trial will more often prove harmless. For the reasons stated the Court finds that plaintiff's ‘‘legal’’ claims were suf- ficient to properly submit the case to the jury, and that the Court’s action is not a basis for a new trial. VI. SUFFICIENCY OF THE EVIDENCE This case is governed by Mt. Healthy City School Dist. Bd. of Educ. v Doyle, 429 U.S. 274 (1977). The jury was instructed in accordance with Mt. Healthy that plaintiff must prove that defendants determined not to renew plaintiff's contract in retaliation for the exercise of first an.endment rights, and that the exercise of first amendment rights was a substantial and motivating factor in ‘he decision not to renew plaintiff. The jury was further instructed that if they found plaintiff had proven these elements, if defendants established that the Col- lege would have reached the same decision even if plaintiff had not exercised his first amendment rights, they must find for the defendants. Defendants contend that none of the evidence presented by plaintiff demonstrates that plaintiff's first amendment activity was a ‘‘substantial factor’’ in the decision not to renew his contract. Defendants also argue that even if plaintiff had shown that first amendment activity was a substantial factor in the decision, the evidence was over- whelming that plaintiff would not have been rehired anyway. In considering a motion for a judgment notwithstanding the verdict, the Court must consider all the evidence, without making credibility determinations, in the light most favorable to plaintiff. Dr. Shouldice stated he would be ‘“‘less than can- did’’ if he were to say that the first amendment incidents were not a part of his thinking in reviewing the recommendation 45a not to renew plaintiff's contract. The jury could, considering Dr. Shouldice’s testimony in conjunction with the testimony of plaintiff, taken in the light most favorable to plaintiff, reasonably find that the first amendment activity was a **substantial factor’’ in the decision not to rehire plaintiff. In addition, there was conflicting evidence as to whether plaintiff would have been non-renewed even if he had not engaged in first amendment activity. The testimony of plaintiff indicated that the other reasons offered by the College for not rehiring him were without substantial basis. There was also, however, the testimony of Dr. McCabe, Dr. Linderoth, Dr. Light, Dr. Shouldice, and Dr. McKinnon establishing substantial non-first amendment reasons for the College’s action. The Court concludes that there was more than a mere ‘“‘scintilla’’ of evidence that plaintiff would not have been rehired even in the absence of first amendment activity — but not much more. Asa result, the Court concludes that defendants are not entitled to a judgment notwithstanding the verdict. The jury’s implicit finding that plaintiff would have been rehired if he had not engaged in first amendment activity is, however, against the clear weight of the evidence, and thus warrants a new trial. In addition, there were certain other cir- cumstances ir.dicating that the jury was not properly consider- ing this issue, which, taken in conjunction with the weight of the evidence, renders a new trial proper. Mt. Healthy sets up a relatively complex chain of causation to be established in proof of a first amendment retaliation claim. Even though the in- structions were as clear and as simple as the Court and counsel could make them, it would be difficult for a jury to understand and apply these instructions properly without having them before them. The jury, however, did not request that the in- structions be sent in. The implicit finding that plaintiff would not have been rehired ‘‘but for’’ his first amendment activity and the jury’s award of punitive damages in the absence of an 46a award of compensatory or nominal damages indicates that the jury either disregarded, misunderstood, or forgot the Court’s instructions. Although the instructions framed the issues, it appears from certain communications with the Court, that they were attempting to reach a decision by considering mat- ters extraneous to the case. The jury’s first question was: ‘‘Can a person be dismissed if they have Tenure?’’ The third question was ‘‘How many members of the AAUP were on the Tenure Board?’’ All these circumstances indicate confusion or disregard of the Court’s instructions and further justify the granting of a new trial. 47a VII. CONCLUSION For the reasons stated, the Court finds that the evidence in the case was not such that a finding for the defendants was the only reasonable conclusion. As a result, defendants’ motion for a judgment notwithstanding the verdict is denied, The ver- dict, however, was against the weight of the evidence, the damages awarded were excessive, and the circumstances in- dicate that the jury acted under a misapprehension of the law or in disregard of the Court’s instructions. For these reasons the Court must grant defendants’ motion for a new trial. IT IS SO ORDERED. /s/ WENDELL A. MILES Wendell A. Miles, U.S. District Judge Dated: June 16, 1978 48a Opinion UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN (filed September 19, 1980) ROBERT STERN, Plaintiff, VS. No. M 43-73 CA KENNETH SHOULDICE, et al., Defendants. OPINION This is an action brought pursuant to 42 U.S.C. §1983 for damages, reinstatement and back pay by a former professor at Lake Superior State College (hereinafter ‘‘LSSC’’). In 1973, the plaintiff instituted this action, alleging that he was not reappointed to the faculty of LSSC in retaliation for actions or conduct protected by the First Amendment to the United States Constitution. The defendants herein are Kenneth Shouldice, president of LSSC; Leon Linderoth, Chairman of the depart- ment in which the plaintiff taught; and LSSC. The ‘‘Legal’’ claims presented by the plaintiff have been submitted to a jury. Initially, the jury returned a general ver- dict which was inconsistent with its answers to accompanying interrogatories. Specifically, the jury found that the plaintiff was terminated for reasons violating the First Amendment,' but also found that he would have been terminated even in the absence of his First Amendment actions. Based upon such fac- tual determinations, the jury should have returned a general verdict in favor of the defendants, Mt. Healthy School District v 49a Doyle, 429 U.S. 274 (1977), and the Court’s jury instructions so indicated. This notwithstanding, upon resubmission the jury found in favor of the plaintiff and against defendants Shouldice and Linderoth awarding nominal damages against them in the amount of $1.00 and $2.00 respectively. Pursuant to the provisions of Fed.R.Civ.P. 49(b), the Court, after additional instructions, ‘‘return[ed] the jury for further consideration of its answers and verdict ... .’’ Subse- quently, the jury returned its general verdict unchanged, but with answers to interrogatories indicating that the plaintiff would not have been terminated in the absence of his First Amendment actions. When legal and equitable claims are presented in the same action, the legal claims are tried first before the jury, and the equitable claims are resolved thereafter by the Court in light of the jury’s determination. Dairy Queen v Wood, 369 U.S. 469 (1962). Thus, presently before the Court are plaintiff's equi- table claims for back pay and reinstatement. Arguments were heard and evidence received with respect thereto on June 16, 1980. Uj Plaintiff's claims for back pay and reinstatement against LSSC face a fundamental obstacle. On the opening day of trial LSSC filed a motion to dismiss based upon the Eleventh Amendment. Despite plaintiff's assertions to the contrary, the motion is determined to be timely for the reason that the Eleventh Amendment is treated as jurisdictional and can be raised at any time, even when on appeal. Edelman v Jordan, 415 U.S. 651 (1974). » 50a The Eleventh Amendment provides as follows: The Judicial power of the United States shall not be con- strued 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. Although not barred by its own terms, the Eleventh Amend- ment has long been held to immunize unconsenting States from suits brought by its own citizens in federal courts. Hans v Loutsiana, 134 U.S. 1(1890). Moreover, the Eleventh Amend- ment applies not only to states as expressly named defendants, but also to officers, agencies, and institutions which are part of the state function. Alabama v Pugh, 438 U.S. 781 (1978); Mt. Healthy School District » Doyle, supra; Edelman v Jordan, supra; Ford Motor Company v Department of Treasury, 323 U.S. 459 (1945). LSSC is a state institution of higher learning created by an act of the Michigan legislature. Mich, Comp. Laws $390,391. Its charter explicitly declares it to be a ‘state institution’’ to be ‘‘maintained by the state’’ for the use of ‘‘all qualified residents of this state.’’ Id. Nothing in the charter of LSSC states or implies that it is anything other than a state institu- tion entitled to the privileges and immunities of the state. Cf, Korgich v Regents of the New Mexico School of Mines, 582 F.2d 549 (10th Cir. 1978); Martin v University of Louisville, 541 F.2d 1171 (6th Cir. 1976); Skehan v Board of Trustees, 590 F.2d 470, 486 (3rd Cir, 1978). It is therefore determined that an award of back pay against the college or its officers in their official capacities is barred by the Eleventh Amendment: Edelman made clear that, absent consent to suit by the state, a federal court may not award relief against state 5la officers or agencies that constitute 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, 94 5.Ct. 1347, Skehan, supra, at 486, Somewhat different considerations are involved in ruling upon the plaintiffs request for reinstatement. In the land- mark decision of Ex parte Young, 209 U.S. 123 (1908), the Court held that the Eleventh Amendment was not a bar to pro- spective relief against the Attorney General of Minnesota en- joining him from enforcing the provisions of a statute claimed to violate the Fourteenth Amendment. The Court reasoned that: [I]f the act which the state Attorney General seeks to en- force be a violation of the Federal Constitution, the of- ficer in proceeding under such enactment comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or represen- tative character and is subjected in his person to the con- sequences of his individual conduct, The State has no power to impart to him any immunity from responsibili- ty to the supreme authority of the United States, 209 U.S. at 160. It is concluded, therefore, that ‘‘a federal court, consistent with the Eleventh Amendment, may enjoin state officials to conform their future conduct to the re- quirements of federal law even though such an injunction may have an ancillary effect on the state treasury.’’ Quern v_ Jordan, 440 U.S. 332, 337 (1979). Howe [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0460%3A1. Public record. Not legal advice.