Petition for Writ of Certiorari — de Llano v. Berglund

Supreme Court, U.S.

FILED

02 242 Avuc 1 3 2002

: — OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

MANUEL DE LLANO,

Petitioner,

V.

DUANE BERGLUND, Davip DANBOoM, ALLAN G. FISCHER, MICHAEL

GarRISON, Rick D. JoHNSON, ANDY KEOGH, Jim L. OzsBun, JIMMIE

RICHARDSON, CHARLES A. SAWICKI, AND SHARON A. SIVERTS,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES Circuit CouRT

FOR THE EIGHTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

en

————

JOHN J. GOSBEE

Counsel of Record

GosBEE LAw OFFICE

103 3rd Avenue, N.W.

Mandan, ND 58554-3129

(701) 663-2225

Attorneys for Petitioner

au

Question Presented for Review

A tenured state university professor is fired. At

the first hearing in the firing process, a process defined

under state law, the hearing body decides there is no

allegation of an offense justifying the firing. The firing

Process provides for no further action. The professor

contends that should have been the end of the matter.

Despite the deficiency, the university president

overrules the first hearing body, and the firing mechanism

Proceeds to its ultimate conclusion — the professor is

fired.

Under Cleveland Board of Education v. Loudermill,

470 U.S. 532 (1985), and its progeny, violation of a state

created procedure is not a deprivation of civil rights, if a

meaningful opportunity to be heard is provided.

Question: If all actions taken after the decision of

the first hearing body were taken ultra vires, has the

process been so fundamentally unfair that the professor

was denied due process? Put differently, can federal

constitutional standards ever be met in an ultra vires

proceeding?

TABLE OF CONTENTS

Question Presented for Review .......-.-.-.+0+5+5 i

TABLE OF CONTENTS..........---2eeeeeee- oe

TABLE OF AUTHORITIES ..........-------eeee: Vv

CITATIONS OF THIS CASE ..... 2... c eee en eeee. 1

BASIS FOR JURISDICTION IN THIS COURT ...... 1

CONSTITUTIONAL AND OTHER

PROVISIONS INVOLVED IN THE CASE .... 2

I IR oo eid. cee cece as. 2

NN 71/5. ck oss: 2

NORTH DAKOTA STATE UNIVERSITY

POLICY MANUAL, SECTION 350

[ Also SBHE Policy Manual Section 605}

(1992 Edition) ..............-- 3

STATEMENT OF THE CASE ..........-.--+-++-- 5

SE ee er oe 9

L Conspiracy Under the Civil Rights Act. 9

iv

Il. Jurisdiction - The Core of Fundamental

EE 4-06 Wa saweeueeeeeakesneees 11

Il. The SRC’s Important Role in 1994 — Later

Diluted and Finally Eliminated. ...... 14

IV. Reasons for Granting Certiorari. ..... 17

V. + Relief Requested .................. 20

HPO Shae Ree Cadi becca dcbecudiestannenes la

OPINION OF CIRCUIT COURT OF APPEALS

Vie CORNEA Os 0 ee ub eee soe e REE EOS la

DISTRICT COURT MEMORANDUM AND

Ns ch cashaeen bans Sb ca oun 13a

DISTRICT COURT JUDGMENT .......... 45a

ORDER DENYING HEARING EN BANC AND

PANEL REHEARING............. 46a

TITLE 42, UNITED STATES CODE, Section

PECs C4 ASG AS shee dee ans Keeawn 47a

TITLE 42, UNITED STATES CODE, Section

eg Pe ee 47a

NORTH DAKOTA STATE UNIVERSITY POLICY

MANUAL, SECTION 350

[Also SBHE Policy Manual Section 605]

TN as cS0.0 ss ucnenaspae 48a

TABLE OF AUTHORITIES

Page(s)

Cases:

Cleveland Board of Education v. Loudermill, 470 U.S. 532,

542; 105 S.Ct. 1487, 84 L.Ed.2d 494, (+ oe 3

de Llano v. Berglund, 282 F.3d 1031 (8th Cir. 2002) ..9,

10, 18

de Llano v. North Dakota State University, 951 F.Supp. 168

LaChance v. Erickson, 522 U.S. 262 (1998) ..-.------ 12

Mudge v. Macomb County, 210 Mich.App. 436 (1995)

5) es oe aS ee Se eh Oe ee Ee Rae Or eee On 19

Phillips Exeter Academy v. Howard Phillips Fund, 196 F.3d.

6 eth. MN AHR as 11

State ex rel. SCA Chemical Services, Inc. v. Sanidas, 681

S.W.2d 557 (Term.App. 19064). ........ccceccccees 13

World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297

Co Pe ee ee rere ye eee rye Pore srt ee 11

Statutes:

Se es PEED 8 0:0 0-0 hake eiew dann neces eke 12

EUG Be kate ei ce 4 9, 10, 18, 49a

eR ee PP eee 2, 10, 49a

Rules:

Seay CME TE TD «oo nn sc cacncevestaceas 8

Supreme Court Rule 19(b) (1979) ..............44. 13

State Regulations:

SBHE Policy Manual §605(8)(c) ............... passim

NDSU Policy Manual, §350(I) ............05. passim

CITATIONS OF THIS CASE

de Llano v. Berglund, 142 F.Supp.2d 1165, (D.N.D. 2001),

affirmed, 282 F.3d 1031 (8th Cir.2002), petition for

rehearing and rehearing en banc denied.

de Llano v. Berglund, 282 F.3d 1031 (8th Cir.2002), petition

for rehearing and rehearing en banc denied May 16, 2002.

BASIS FOR JURISDICTION IN THIS COURT

Judgment in the United States District Court for

the District of North Dakota was entered on March 19,

2001. App., 45a. On appeal to the United States Court of

Appeals for the Eighth Circuit, judgment on appeal was

entered on March 13, 2002. App., p. 1a. On denial of the

petition for rehearing en banc and rehearing by the panel,

judgment was entered on May 16, 2002. App., p. 46a.

This Court has jurisdiction to hear the Petition

under 28 U.S.C. §1254(1).

CONSTITUTIONAL AND OTHER

PROVISIONS INVOLVED IN THE CASE

42 U.S.C. §1983.

Civil action for deprivation of rights. Every person

who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District

of Columbia, subjects, or causes to be subjected, any

citizen of the United States or other person within the

jurisdiction therecf 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 U.S.C. §1985(3).

Conspiracy to interfere with civil rights.

(3) | Depriving persons of rights or privileges. If two

or more persons in any State or Territory conspire

... for the purpose of depriving, either directly or

indirectly, any person or class of persons of the

equal protection of the laws, or of equal privileges

and immunities under the laws; ... in any case of

conspiracy set forth in this section, if one or more

3

persons engaged therein do, or cause to be done,

any act in furtherance of the object of such

conspiracy, whereby another is injured in his

person or property, or deprived of having and

exercising any right or privilege of a citizen of the

United States, the party so injured or deprived

may have an action for the recovery of damages

occasioned by such injury or deprivation, against

any one or more of the conspirators.

NORTH DAKOTA STATE UNIVERSITY POLICY

MANUAL, SECTION 350

[Also SBHE Policy Manual Section 605]

(1992 Edition)

I. OTHER REQUIREMENTS FOR’ TERM-

INATION OR DISMISSAL. A termination of a

tenured faculty member [or] a dismissal during the

contract period of any faculty member will not

become final until the following steps (unless

waived by mutual consent of the faculty member

and President) have taken place, in the order listed:

6. A faculty member may ... request an

informal and confidential inquiry and

report from a Special Review Committee.

The Special Review Committee shall

provide such report within thirty days of

receiving the request; and

If requested by the faculty member within

fifteen calendar days after receipt of the

report of the Special Review Committee,

formal hearing by the Standing Committee

on Faculty Rights shall be provided under

Section J.

STATEMENT OF THE CASE

In 1985, the Petitioner, Manuel de Llano

(Professor), was hired by North Dakota State University

(NDSU) as a Professor of Physics and chairman of the

department. App., p. 14a. A few years later he was

awarded tenure. Ibid. In 1990, he was removed from the

chairmanship, although he was allowed to keep his

tenured professorship. Ibid

The Respondents, collectively referred to as NDSU

Administrators, had various roles in the events that

followed. In February 1994, Respondents Charles

Sawicki and Allan Fischer, then respectively chairman of

the department and Dean of the College of Arts and

Sciences, sent Professor a “Notice of Intent to Terminate,”

advising Professor that they intended to fire him and

referring him to the NDSU Policy Manual for information

on his rights. App., p. 3a. See also Defendants’ Brief in

Support of Their Motion for Summary Judgment, Exh. 25,

p. 2 (District Court Docket Item 45). On March 9, 1994,

Respondent Jim Ozbun (Ozbun), then president of NDSU,

sent Professor a Notice of Dismissal. App., p. 3a. See also

Defendants’ Brief in Support of Their Motion for

Summary Judgment, Exh. 26 (District Court Docket Item

45). Ozbun explicitly referred Professor to NDSU Policy

Manual Section 350(1)(6), stating Professor had 15 days to

6

“request an inquiry from a Special Review Committee.”

Ibid., p. 2. ;

In accordance with the NDSU Policy Manual in

effect at the time, Professor requested a hearing before the

Special Review Committee (SRC). That committee found

in Professor's favor, namely that Ozbun's "Notice of

Dismissal’ did not include specific allegations that

warranted dismissal.” App., p. 4a. See also, “Final

Report”, Exh. I to Defendants’ Supplemental Brief in

Support of Their Motion for Summary Judgment (District

Court Docket Item 61).

Reserving objection over the need to do so,

Professor asked for a hearing before the Standing

Committee on Faculty Rights (SCFR), the committee that

had jurisdiction over appeals by a professor from an

unfavorable SRC decision. See, NDSU Policy Manual,

§350(1)(7) (1994). Lodging, p. 6. Professor reserved his

objection by stating, “As I have not heard from President

Ozbun rescinding his ‘Notice of Dismissal’ letter dated

March 9, 1994, I reluctantly ask you to convene the

[SCFR].” Letter, Manuel de Llano to Jay Leitch, Presiding

Officer of NDSU University Senate, September 9, 1994.

Plaintiff's Supplemental Brief Opposing Defendants’

Motion for Summary Judgment, Exh. MdL-58 (District

Court Docket Item 62).

7

In the event that forms the basis for this Petition,

Ozbun wrote to Professor, advising Professor that Ozbun

had “decided to reject the [SRC’s] conclusion that

sufficient grounds for dismissal were not established.”

Defendants’ Brief in Support of Their Motion for

Summary Judgment, Exh. 32 (District Court Docket Item

45). The SCFR was composed of Respondents Duane

Berglund, David Danbom, Michael Garrison, Andy

Keogh, and Jimmie Richardson. Letter, Garrison to

Ozbun, May 12, 1995, including report of SCFR, at 5

(reciting members of committee). Defendants’ Brief in

Support of Their Motion for Summary Judgment, Exh. 35

(District Court Docket Item 45).

On May 12, 1995, the SCFR approved the firing,

and Ozbun followed through with the final steps in the

process, firing Professor three days later. App., p. 4a.

Professor appealed that decision to the North Dakota

State Board of Higher Education (State Board), which

upheld the firing. Ibid.

On October 20, 1997, Professor filed suit in the

United States District Court for the District of North

Dakota, asserting various violations of his constitutional

rights by Ozbun, Fischer, Sawicki, and the SCFR

members. Complaint, District Court Docket Item 1. The

suit alleged that all defendants, including Respondents

ee eens

Rick D. Johnson (who was University Counsel) and

Sharon Siverts (who was Vice President for Academic

Affairs) had conspired to deprive him of constitutionally

protected rights. Ibid., {{7-9. The NDSU Administrators

were all sued in their individual capacities. Amended

Complaint, {21, District Court Docket Item 33.

Among the asserted violations, and the one that

forms the basis of this Petition, is that all actions taken

after the SRC decision were ultra vires, and that the

process should have stopped as soon as the SRC decided.

Amended Complaint, 9, District Court Docket Item 33.

NDSU Administrators moved to dismiss the

lawsuit on the grounds that it was barred, under res

judicata, by an earlier discrimination lawsuit between

Professor and NDSU. de Llano v. North Dakota State

University, 951 F.Supp. 168 (D.N.D. 1997). The District

Court, the Honorable Rodney S. Webb presiding,

dismissed the case. District Court Docket Item 19.

Professor appealed, and that decision was reversed,

because "res judicata, in the form of claim preclusion, is

not a bar to de Llano's section 1983 claims.” de Llano v.

Berglund, 183 F.3d 780, 782, 80 Fair Empl.Prac.Cas. (BNA)

719 (8th Cir. 1999), rehearing denied (citations omitted).

On remand, NDSU Administrators moved for

9

summary judgment. Without deciding whether NDSU

Administrators had acted ultra vires, the District Court,

the Honorable Rodney S. Webb presiding, granted the

motion. District Court Docket Item 63. Professor

appealed that decision, and the Eighth Circuit affirmed. de

Llano v. Berglund, 282 F.3d 1031 (8th Cir. 2002). App., pp.

la-12a. Professor requested rehearing en banc and by the

panel. That request was denied. App., p. 46a.

Professor now petitions this court for a writ of

certiorari, asking that the case be remanded to the Court

of Appeals with directions to remand to the District Court

with instructions to decide whether Respondents acted

ultra vires and, if so, to vacate the order granting

summary judgment.

ARGUMENT

I. Conspiracy Under the Civil Rights Act.

Under the Civil Rights Act, it is unlawful to

“conspire ... for the purpose of depriving ... any person ...

of the equal protection of the laws, or of equal privileges

and immunities under the laws.” 42 U.S.C. §1985. App.,

p. 47a. A party injured by such a conspiracy “may have

an action for the recovery of damages occasioned by such

10

injury or deprivation, against any one or more of the

conspirators.” Ibid., emphasis added.

It is undisputed that the SRC ruled in Professor's

favor and that the NDSU Administrators proceeded to

fire Professor after the SRC’s decision. Neither the

District Court nor the Eighth Circuit decided whether

NDSU Administrators acted ultra vires. Rather, citing

Loudermill, each decided it makes no difference. "Without

deciding whether [ ] NDSU violated its own procedures, the

Court concludes that it must reject de Llano’s argument.

... ‘[O}nce a liberty interest has been found, federal law,

not state law, determines what constitutes adequate

procedural due process."” District Court Opinion, at 12-13.

emphasis added. App., pp. 25a-26a.

Likewise, the Court of Appeals declined to decide

the point. "Therefore, even if de Llano is correct that

internal procedures were violated, this would at most

provide him with a state law cause of action, and not a

federal constitutional claim." 282 F.3d at 1035, App., p.

8a.!

: Professor recognizes that NDSU Administrators

dispute whether the matter should have stopped at the

SRC. Defendants’ Reply to Plaintiff's Brief in Opposition

to Defendants’ Motion for Summary Judgment, at 9-11

11

II. Jurisdiction - The Core of Fundamental Fairness.

/f

It is axiomatic that, before a tribunal can hear a

controversy, it must have jurisdiction to do so. “The Due

Process Clause prohibits a court from imposing its will on

persons whose actions do not place them in a position

where they reasonably can foresee that they might be

called to account in that jurisdiction.” Philltps Exeter

Academy v. Howard Phillips Fund, 196 F.3d. 284, 288 (1st

Cir. 1999), citing World-Wide Volkswagen Corp. v. Woodson,

444 U.S. 286, 297 (1980). Although those cases involve

jurisdiction over out-of-state defendants, their lessons are

helpful nonetheless. A tribunal without jurisdiction can

accomplish nothing.

The ultra vires conduct of NDSU Administrators is

what this case is about. "The core of due process is the

right to notice and a meaningful opportunity to be heard."

LaChance v. Erickson, 522 U.S. 262, 266; 118 S.Ct. 753; 139

L.Ed.2d 695 (1998), citing Cleveland Board of Education v.

(District Court Docket Item 60). However, since both the

District Court and the Eighth Circuit decided that matter

as one of law, certiorari is appropriate to resolve the issue

of whether, assuming the matter should have stopped at

the SRC, its continuation beyond that point violated

Professor's constitutionally protected rights.

12

Loudermill, 470 U.S. 532, 542; 105 S.Ct. 1487, 84 L.Ed.2d

494, (1985), emphasis added. How can any hearing, or

any number of hearings, be considered a “meaningful

opportunity to be heard,” if all of those hearings are ultra

vires? Professor submits the proper answer is that they

cannot be. Even a dozen hearings before panels acting

ultra vires cannot cure the fundamental defect in the

mechanism by which Professor was fired.

This case is rare because it involves ultra vires

actors — namely the NDSU Administrators once the SRC

decided in Professor's favor. It defies the notion of due

process to contend that an ultra vires act, an act beyond

the powers of the actor, could ever constitute due process.

Although hundreds of cases have cited Loudermill,

research has not found one holding that an ultra vires

panel can possibly provide due process. Such an action

should be void ab initio.

The argument that an ultra vires act of itself

violates due process has been accepted in the relatively

rare occurrences of such an event. For example, the

Michigan Court of Appeals held that, in seizing

prisoners’ bail deposits, and applying those deposits to

costs of incarceration, a sheriff acted ultra vires. "In light

of [the sheriff's] ultra vires acts, resulting in plaintiffs

being deprived of procedural due process of law, ... we...

13

order defendant Macomb County to return the ... bond

monies." Mudge v. Macomb County, 210 Mich.App. 436,

534 N.W.2d 539, 543 (1995), bold-face emphasis added.

Significantly helpful to our analysis is that Tanya Mudge

was allowed to go forward with her Section 1983 case and

address issues of qualified immunity on remand. 534

N.W.2d at 546.

The Tennessee Court of Appeals made a similar

comment: "Procedural requirements are considered by

the courts to be safeguards against arbitrary exercise of

power. Failure to comply with such procedural

requirements has been regarded not only as an ultra vires

act on the part of municipal legislators, but also as a denial

of due process of law." State ex rel. SCA Chemical Services,

Inc. v. Sanidas, 681 S.W.2d 557, 564 (Tenn.App. 1984),

emphasis added. See also Hutcherson v. Criner, 11 S.W.3d

126 (Tenn. App. 1999).

Professor respectfully submits that, as a matter of

law, by proceeding after the SRC’s decision, the NDSU

Administrators denied Professor due process and he is

entitled to relief under the Civil Rights Act.

o4

III. The SRC’s Important Role in 1994 - Later

Diluted and Finally Eliminated.

Professor's basic premise — that the SRC’s decision

should have been final — can be demonstrated by

applying tenets of statutory construction. Later changes

to the NDSU Policy Manual prove the point. As already

noted, the version used in 1994 did not allow the

University president to ignore an SRC decision in favor of

the faculty member. The Policy Manual simply contained

no provision for such a possibility. NDSU Policy Manual,

§350(I)(6),(7), limiting appeal of SRC’s decision to faculty

member. Lodging, p. 6. (With minor variations not

relevant to this petition, SBHE Policy Manual §605 and

NDSU Policy Manual §350 are identical. References to

Sections 605 and 350 are interchangeable.)

Discerning the change is a bit difficult because it

was part of an extensive rewriting of the Policy Manual.

Accordingly, the 1994 version and the 1995 amendments

are reproduced in the Lodging. Lodging, pp. 1-7, 8-18,

respectively.

The substantive mechanism for firing a tenured

faculty member appeared in subsection 350(I) of the 1994

version. Lodging, p. 6. The reference to appeal to the SRC

is in subsection 350(1)(6). Ibid., p. 6, lines 5 to 9 from the

15

bottom. The reference to an appeal by the faculty

member from the SRC’s decision is in subsection 350(I)(7).

Ibid., p. 6, last 4 lines. Significantly, the Manual makes no

mention of the opposite situation - appeal by the

institution.

Apparently the State Board thought better of this

procedural void, filling it the next year. The firing

mechanism was moved :o subsection 8 (apparently as

part of a change to numerals instead of letters for

subsections) in the 1995 amendment. Lodging, pp. 13-15,

especially new material added in item (c) on Lodging, pp.

14-15, and deletion of old material starting at Lodging, p.

17, 9 lines from the top.

The 1995 amendment reduced the SRC to an

advisory role. This was accomplished by an explicit

provision allowing the institution to reconsider the SRC’s

decision: “The institution shall make its decision upon

reconsideration and provide written notice to the faculty

member of that decision within fifteen days of receipt of

the report and recommendation of the Special Review

Committee.” SBHE Policy Manual §605(8)(c). Lodging, p.

14, last 5 lines. Then the faculty member was allowed to

appeal to the SCFR: “The faculty member may, within

thirty days of receipt of the decision of the institution

upon reconsideration, file an appeal and request for a

16

formal hearing before the Standing Committee on Faculty

Rights, pursuant to section 605.4.” SBHE Policy Manual

§605(8)(c). Lodging, pp. 14 [last word] -15 [first 5 lines].

Obviously, if Ozbun had authority to ignore the

SRC in 1994, there would have been no need to amend

the Manual in 1995 to explicitly give him the authority to

decide “upon reconsideration.” SBHE Policy Manual

§605(8)(c). Lodging, p. 14, last 5 lines. Further, the

faculty member's right to appeal to the SCFR was

expressly based on “receipt of the institution’s decision

upon reconsideration.” SBHE Policy Manual §605(8)(c).

Lodging, p. 15, first 2 lines. The version used in 1994 had

no such language. NDSU Policy Manual, §350(I)(7).

Lodging, p. 6, last 4 lines.

About four years later, the SRC was removed from

the picture entirely. All references to the SRC were

stricken from the rules. For example, subsection 605.1(c),

dealing with appeals to the SRC by probationary faculty

dismissed without cause, was repealed entirely. Lodging,

pp. 19-20. Likewise, subsection 605.4, dealing with

dismissal of probationary faculty for cause, was amended

to remove references to the SRC. Lodging, p. 21,

overstrikes of “Special Review Committee.” Finally,

subsection 605.6(c), dealing with dismissal of tenured

faculty (such as Professor) was so amended. Lodging, p.

17

23, overstrikes of “Special Review Committee.”

These changes to the Board rules show that, in

1994 at least, the SRC had an important role that was

later diminished and finally eliminated altogether.

However, since this case involves the 1994 rules, it cannot

be rationally denied that in 1994 Ozbun acted ultra vires

by ignoring the SRC, that the SCFR members acted ultra

vires by sitting on Professor's case, and that the

remaining NDSU Administrators acted ultra vires by

participating in Professor's firing.

IV. Reasons for Granting Certiorari.

Under Rule 10(a), an accepted reason for granting

certiorari is that “the Court of Appeals has so far

departed from the accepted and usual course of judicial

proceedings, or sanctioned such a departure by a lower

court, as to call for an exercise of this Court’s supervisory

power.” Supreme Court Ruie 10(a). Professor recognizes

the high burden borne by a petitioner invoking this

provision. With all due respect, Professor submits this is

such a case.

As noted, neither the District Court nor the Court

of Appeals decided whether the process should have

stopped with the SRC. This was not because the parties

18

had failed to develop or argue the issue. NDSU

Administrators vigorously argued that it needn’t have

done so. Defendants’ Reply to Plaintiff's Brief in

Opposition to Defendants’ Motion for Summary

Judgment, at 9-11 (District Court Docket Item 60).

The Court of Appeals stated, “We reject this

argument because federal law, not state law or NDSU

policy, determines what constitutes adequate procedural

due process.” App., at p. 7a. de Llano v. Berglund, 282 F.3d

1031, 1035 (8th Cir. 2002). The District Court held,

“Without deciding whether or not NDSU violated its own

procedures, the Court concludes that it must reject de

Llano's argument. ... the law used to evaluate the process

that is due is exclusively federal.” App., at p. 28a.

Thus, it cannot be denied that Professor has yet to

have a ruling on whether things should have stopped at

the SRC.

This Court has described the factors leading it to

grant certiorari under what is presently Rule 10(a):

The New York City Transit Authority

refuses to employ persons who use

. methadone. The District Court found that

this policy violates the Equal Protection

19

Clause of the Fourteenth Amendment. Ina

subsequent opinion, the court also held that

the policy violates Title VII of the Civil

Rights Act of 1964. The Court of Appeals

affirmed without reaching the statutory

question. The departure by those courts ©

from the procedure normally followed in

addressing statutory and constitutional

questions in the same case, as well as

concern that the merits of these important

questions had been decided erronecusly,

led us to grant certiorari.

New York Transit Authority v. Beazer, 440 U.S. 568, (1979),

citing Supreme Court Rule 19(b) (1979), the predecessor

to present Rule 10(a).

This Court implicitly decided that it was

important to decide whether methadone users can be

denied a job. Professor believes his case is even more

compelling for supervisory action. This case presents an

issue of fundamental fairness — whether a tribunal can act

when it lacks jurisdiction to do so. Proceeding in the

absence of jurisdiction is so fundamentally unfair that

it impugns federal constitutional protections.

Accordingly, issuance of a petition for certiorari is

appropriate.

20

V. Relief Requested.

Because fundamental fairness requires that a

tribunal have jurisdiction to decide, and that decision by

a tribunal acting ultra vires is a denial of due process,

Professor asks that this court grant his petition for

certiorari.

Respectfully submitted on August 14, 2002.

JOHN J. GOSBEE

Gosbee Law Office

103 3rd Avenue, N.W.

Mandan, ND 58554-3129 ©

(701) 663-2225

Counsel for Petitioner

APPENDIX

wy

la

APPENDIX

OPINION OF CIRCUIT COURT OF APPEALS

282 F.3d 1031

(March 13, 2002)

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

No. 01-2012

Manuel de Llano, Appellant,

V.

Duane Berglund; David Danbom; Allan G. Fischer;

Michael Garrison; Rick D. Johnson; Andy Keogh; Jim L.

Ozbun,; Jimmie Richardson; Charles A. Sawicki; Sharon A.

Siverts, Appellees.

Appeal from the United States District Court for the

District of North Dakota.

Submitted: November 13, 2001

Filed: March 13, 2002

Before BYE, HEANEY, and BEAM, Circuit Judges.

sce ee MAORI AR SUN stl eR ec AE l sRN Aat

2a

[282 F.3d 1033]

BEAM, Circuit Judge.

Manuel de Llano ("de Llano"), formerly an

employee of North Dakota State University ("NDSU"),

filed this 42 U.S.C. § 1983 suit against several NDSU

administrators (collectively, the defendants), alleging that

his termination as a tenured physics professor violated his

First Amendment and procedural due process rights.

The district court’ granted the defendants’ motion for

summary judgment, and we affirm.

’ The Honorable Rodney S. Webb, Chief Judge, United

States District Court for the District of North Dakota.

Ip. 2]

I. BACKGROUND -

In 1985, de Llano was hired by NDSU to be a

professor of physics and chairman of the department. He

was awarded tenure in 1988. Thus began several years of

acrimonious relations between de Llano, the NDSU

administration and his physics department colleagues. In

January 1990, de Llano was removed as chairman at the

request of the physics faculty, "to improve the morale of

the department and to strengthen the program in

physics." After his chairmanship was revoked, de Llano

authored a series of derogatory letters concerning various

NDSU faculty members. de Llano received several letters

from NDSU administrators urging him to cease his

3a

disruptive conduct. In response, de Llano wrote more

letters — to the local newspaper, the school newspaper,

and the Chancellor and President of the university system.

The letters expressed his dissatisfaction with a variety of

ongoing conflicts he was having with the department.

During the 1992 fall semester, over ninety percent of de

Llano's introductory physics class transferred out of his

section to a new section opened by the department chair,

complaining about de Llano’s poor teaching. On

November 26, 1993, de Llano was censured by his

department for verbally harassing the department

secretary. de Llano was also censured for failing to attend

faculty meetings.

On February 23, 1994, Science Dean Fischer and

Physics Department Chairman Sawicki sent de Llano a

“Notice of Intent to Terminate." On March 9, 1994, [282

F.3d 1033] President Ozbun sent de Llano a "Notice of

Dismissal." The dismissal notice identified six grounds for

de Llano's dismissal: (1) complete and utter lack of

collegiality and cooperation with peers resulting in three

censures making de Llano's [p. 3] continued

effectiveness in the department impossible; (2) harassed

physics department staff; (3) refused to present

complaints through proper channels after repeated

warnings and misrepresented facts to other university

employees; (4) libeled the physics department chair and

dean with false accusations; (5) failed to correct deficient

4a

behavior even after receiving two letters of reprimand;

and (6) excessive filing of frivolous grievances with the

intent to harass employees and supervisors.

Pursuant to NDSU procedure, de Llano requested

a hearing before a Special Review Committee ("Review

Committee"). On August 15, 1994, the Review Committee

found in de Llano's favor, concluding that the Notice of

Dismissal did not include specific enough allegations to

warrant dismissal. President Ozbun rejected the Review

Committee's findings. de Llano asked for a hearing in

| front of the Standing Committee on Faculty Rights

| ("Standing Committee"), and on May 12, 1995, the

Standing Committee concluded that there was adequate

cause for de Llano's dismissal. On May 15, 1995, Ozbun

officially fired de Llano, prompting de Llano to appeal to

the North Dakota State Board of Higher Education ("the

Board"). The Board affirmed de Llano's firing and this

lawsuit commenced.

de Llano argues that his firing violated his

constitutional rights. He argues that his right to

procedural due process was violated because President

Ozbun had no authority to reject the Review Committee's

findings. de Llano also claims that standards of due

process were not met by the dismissal proceeding because

he was accused of general violations of university policy

and not specific acts. In addition, de Llano argues that the

administrators who terminated him conspired to deny

5a

him an impartial opportunity to be heard. de Llano also

claims his First Amendment rights were violated because,

he [p. 5] avers, his firing was the result of the many letters

he wrote publicly criticizing NDSU.

II. DISCUSSION

We review the grant of summary judgment de

novo. Calvit v. Minnesota Pub. Schs., 122 F.3d 1112, 1116

(8th Cir. 1997). All evidence and reasonable inferences

from the evidence are viewed in the light most favorable

to the nonmoving party. Id.

Summary judgment is appropriate only if there are

no genuine issues of material fact and the moving party is

entitled to judgment as a matter of law. Fed. R. Civ. P.

56(c).

A. Procedural Due Process Claim

Procedural due process claims require a two-step

analysis. First, a plaintiff must prove that as a result of

State action the plaintiff was deprived of some life,

liberty, or property interest. Second, the plaintiff must

prove that the state's deprivation of that interest was

done without due process. Krentz v. Robertson Fire Prot.

Dist., 228 F.3d 897, 902 (8th Cir. 2000). Here, the

defendants concede that de Llano has a property interest

in his job; therefore, the only issue is whether he received

ri Ase that was _— in connection with his firing.

F.2d 707, 710 (8th Cir. 1986).

6a

Ip. 6]

The Supreme Court has held that due process

requires, prior to termination, that public employees with

a property interest in their job must be given notice of the

charges against them, an explanation of the evidence, and

an opportunity to respond. Cleveland Bd. of Educ. v.

Loudermill, [282 F.3d 1035] 470 U.S. 532, 542 (1985). "It

should be an initial check against mistaken

decisions—essentially, a determination of whether there

are reasonable grounds to believe that the charges against

the employee are true and support the proposed action."

Id. at 545-46.

In this case, the defendants accorded de Llano the

three elements of pretermination due process specifically

outlined by Loudermill. de Llano was not only given

notice of the charges against him and an explanation of

those charges in the Notice of Dismissal sent by the

President, he was also given notice several times before

the final termination notice that he was treading on thin

ice and advising him to reform his disruptive conduct.

While these pretermination warnings may not be

sufficient, by themselves, to provide de Llano due

process, two hearings were also held prior [p. 7] to his

termination where evidence was introduced supporting

the reasons for his termination. See Young v. City of St.

Charles, 244 F.3d 623, 627 (8th Cir. 2001) (two hearings

adequate notice under Due Process Clause). These

7a

hearings provided de Llano with an adequate opportunity

to present his case before termination. In fact, during a

fifteen-hour hearing before the Standing Committee, de

Llano's counsel was given the opportunity to question

NDSU's witnesses and call his own. “In contrast, the

Supreme Court found a violation of procedural due

process in Loudermill because the plaintiffs had had no

chance to rebut the charges against them before they were

fired." Riggins, 790 F.2d at 711. We find de Llano's

contention that the Notice of Dismissal only alleged

vague accusations to be without merit. The dismissal

notice specifically outlined that de Llano's lack of

collegiality, harassment of department personnel, refusal

to heed prior warnings regarding his conduct, and the

excessive filing of grievances were the reasons for his

termination. ~

de Llano contends that President Ozbun had no

authority to reject the Review Committee's decision to

retain [p. 8] him. He also claims that the Standing

Committee was improperly constituted. He argues that

these two actions violated the internal rules prescribed by

NDSU for termination proceedings. We reject this

argument because federal law, not state law or NDSU

policy, determines what constitutes adequate procedural

due process. Loudermill, 470 U.S. at 541. Minimum

procedural requirements are a constitutional guarantee

and they cannot be enlarged or reduced by the internal

8a

NDSU handbook outlining termination procedures. Id.

Therefore, even if de Llano is correct that internal

procedures were violated, this would at most provide him

with a state law cause of action, and not a federal

constitutional claim.

Once it is determined that de Llano was afforded

with notice and an opportunity to [p. 8] be heard in

accordance with Loudermill, the constitutional

requirement is satisfied. We find that de Llano was

provided with more than the basic Loudermill guarantees.

Finally, de Llano argues that his right to due

process was violated because the defendants were biased

and the hearings provided were a sham because the

decisionmakers had already made up their minds to

terminate him [p. 9] regardless of the evidence

presented. However, de Llano has not come forward with

any evidence to support this assertion. "We begin with a

presumption that decision-makers are honest and

impartial. [The plaintiff| offers no evidence of vindictive

behavior beyond his mere statements of belief that the

Board members acted in this manner. . . . [The plaintiff's]

beliefs have no effect and do not create a genuine issue of

material fact [282 F.3d 1036] that would preclude

summary judgment." Marler v. Missouri State Bd. of

Optometry, 102 F.3d 1453, 1457 (8th Cir. 1996) (internal

citations omitted). de Llano cites Brady v. Gebbie, 859

F.2d 1543 (9th Cir. 1988) to support his contention that if

iii a ete ee Rage no ceTt mnogu: Geomace me icici SE EL EET

°

9a

decisionmakers have already made up their minds, a due

process violation occurs. However, in Brady the plaintiffs

presented evidence that the decision-maker stated, "I

don't know what in heaven's name you can tell me...

that would make me change my mind." Id. at 1554. There

is no evidence that any kind of similar comment was

made here by any of the several individuals that reviewed

the decision to terminate de Llano. In short, de Llano

provides no evidence [p. 10] of bias, he merely provides

his own unsupported allegations.

B. First Amendment Claim

de Llano contends that he was terminated in

violation of his First Amendment rights because of several

letters he wrote to the local newspaper, President Ozbun,

and the student newspaper criticizing the NDSU

administration. The First Amendment is violated when a

public employee is terminated as a result of his speech if

the employee's speech can be characterized as speech

about a matter of public concern. Connick v. Myers, 461

U.S. 138, 146 (1983). This inquiry is a question of law for

the court to decide. Id. at 148 n.7. If the speech at issue is

found to be constitutionally protected, the plaintiff then

bears the burden of showing that the protected speech

was a substantial or motivating factor in the decision to

terminate him. Mt. Healthy City Sch. Dist. Bd. of Educ. v.

Doyle, 429 U.S. 274, 287 (1977). This is a question of fact,

but the sufficiency of the evidence to create an issue of

10a

fact is a question of law. Cox v. Miller County R-I Sch.

Dist., 951 F.2d 927, 931 (8th Cir. 1991). [p. 11] "In

reviewing a sufficiency of the evidence determination, an

appellate court must view the facts and all reasonable

inferences to be drawn therefrom in the light most

favorable to the non-moving party." Id. de Llano

authored six letters prior to his termination that he claims

were constitutionally protected because they pertained to

matters of public concern. To determine whether speech

addresses matters of public concern, we examine the

content, form, and context of the speech as revealed by

the entire record. Connick, 461 U.S. at 147-48. "The form

and context are examined to determine whether the

public employee speaks as a concerned citizen informing

the public that the government is not properly

discharging its duties, or merely as an employee speaking

about internal practices relevant only to fellow

employees." Calvit, 122 F.3d at 1117. An examination of

the content of de Llano's letters reveals that most of his

commentary, although couched in general terms, related

specifically to the ongoing feuds he was having with the

defendants. His letters essentially amounted to publicly

airing his dissatisfaction with his removal as chair of the

physics [p. 12] department and the department's

undervaluation of his strong commitment to research. de

Llano's letters indicated that he was unhappy with several

personnel decisions made by NDSU, ranging from which

APH SF perasegnce

‘

lla

people were chosen as department chairs, to the failure of

NDSU to rehire a Gulf War veteran. These are precisely

the type of "[s]tatements that deal with personnel matters

[that] are not generally protected by the First

Amendment." Belk v. City of Eldon, 228 F.3d 872, 879 (8th

Cir. 2000). One of de Llano's letters criticized the

allocation of travel money within departments, although

the letter failed to disclose that de Llano himself had been

prohibited from travel that [282 F.3d 1037] overlapped

with one of his classes as a sanction for his inappropriate

conduct within the department. Another of de Llano's

letters aired his complaint that he was not allowed to

bring in a Brazilian scientist to work with him. These are

just a few examples of de Llano's pattern of publicly

complaining about private disputes that were unique to

him and not a matter of public concern.

After thoroughly reviewing de Llano's letters, it

appears there are occasional references to comments that

are properly [p. 13] characterized as issues of public

concern. For instance, in one of his letters de Llano

criticized the growing percentage of nonacademic staff at

N DSU. In addition, in one of his letters he cited the rising

salaries of NDSU administrators as evidence that money

was being poorly spent. "We generally have held that

speech about the use of public funds touches upon a

matter of public concern." Kincade v. City of Blue Springs,

64 F.3d 389, 396 (8th Cir. 1995). However, there is no

12a

evidence in the record that these few comments on

matters of public concern were a substantial or motivating

factor in the decision to terminate him. Doyle, 429 U.S. at

287. We are unable to ascertain any evidence that he was

terminated because of the letters he wrote to the various

venues. The

dismissal notice given to de Llano outlines a number of

reasons for his termination and those reasons were

substantiated in two separate hearings. Not one of the

reasons stated for his termination related to de Llano's

letters. The fact that de Llano publicly criticized NDSU

administrators, and that some of the criticism is

constitutionally protected, is insufficient to carry his

burden [p. 14] of establishing that the letters were a

substantial factor in the termination decision. Cox, 951

F.2d at 932. We conclude that as a matter of law, even

when viewed in the light most favorable to the plaintiff,

the record establishes that de Llano failed to meet his

burden of showing that his letters were a substantial

factor in the decision to terminate him.

Ill. CONCLUSION

For the reasons stated, the judgment of the district

court is affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

13a

DISTRICT COURT MEMORANDUM AND ORDER

(March 19, 2001)

(142 F.Supp.2d 1165)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NORTH DAKOTA

SOUTHEASTERN DIVISION

Manuel de Llano,

Plaintiff,

)

)

)

)

VS. ) A3-97-133

)

Duane Berglund, David Danbom, )

Allan G. Fischer, Michael )

Garrison, Rick D. Johnson, )

Andy Keogh, Jim L. Ozbun, )

Jimmie Richardson, Charles )

A. Sawicki, and Sharon A. )

Siverts, )

| )

)

Defendants.

D ORDER

I. Introduction

Before the Court is defendants’ motion for

14a

summary judgment and motion in limine (doc.’s # 45, 49).

Plaintiff has resisted the motions (doc.’s # 56, 60). For the

reasons set forth below, defendants’ motion for summary

judgment is GRANTED. Therefore, defendants’ motion in

limine is rendered MOOT.

II. Background

Dr. Manuel de Llano, the plaintiff in this action,

was employed as a professor in the physics department of

North Dakota State University (NDSU) from 1985 until

1994; he was tenured in 1989. (1) He was originally hired

to chair the department, and he [p. 2] served in that

capacity until 1989 or 1990, when he was removed

following a request by other members of the department.

Without reviewing the details, it is clear that, preceding

this request, plaintiff had been involved in a series of

disagreements with colleagues over various matters

relating to the operation of the department. (2) These

disagreements continued after his replacement as chair by

Dr. Sawicki, one of the defendants to this action,

culminating in a series of written warnings from Sawicki

to de Llano concerning his behavior in the department.

These conflicts continued for several years, coming

to ahead in 1992. On December 3 of that year, Dean Allan

G. Fischer, [p. 3] another defendant in this case, issued a

Letter of Reprimand to de Llano, criticizing his "poor

performance in the classroom and lack of respect for your

15a

fellow faculty members which leads to tension and poor

collegial relationships . . . ." Dr. de Llano challenged this

letter to the NDSU Special Review Committee ("SRC"),

which ultimately found the letter justified. (3) Relations

between de Llano and his colleagues apparently did not

improve: In November 1993 the physics department

censured him for verbally harassing the department

secretary. Then, in December 1993, de Llano received a

second Letter of Reprimand from Dean Fischer,

indicating that, if matters did not improve, de Llano faced

“sanctions which may include but are not limited to, zero

salary raises and seeking your dismissal . . . ." This also

apparently did not stem the tide, however; on February

23, 1994, Dr. Sawicki and Dean Fischer provided de Llano

with a notice of intent to terminate, and NDSU President

Jim L. Ozbun - another defendant here - provided de

Llano with a notice of dismissal on March 9.

Dr. de Llano then appealed his dismissal to the

SRC by letter dated April 8, 1994. On August 15, 1994, the

SRC issued a report recommending that sufficient

grounds for his dismissal did not exist. President Ozbun

decided to ignore the recommendation and dismissed de

Llano despite it on September 22, 1994. Plaintiff Ip. 4]

strenuously argues that Ozbun did not have the power to

do so; this issue will be addressed later. In any case, de

Llano appealed Ozbun’s decision to the Standing

16a

Committee on Faculty Rights ("SCFR"), which held a

two-day hearing on April 10-11, 1995. Twelve witnesses

testified at the hearing, the transcript of which numbers

over 500 pages; de Llano was represented by counsel,

who cross-examined NDSU’s nine witnesses and called

three himself. On May 12, 1995, the SCFR issued its

recommendation, which found NDSU had adequate

grounds to dismiss de Llano. Ozbun adopted these

recommendations on May 15, 1995; de Llano’s salary and

benefits were then terminated.

Dr. de Llano further appealed this determination

to the North Dakota Board of Higher Education. A

hearing officer issued recommended findings on

December 3, 1996, in which she recommended that the

SCFR’s determination be upheld. On February 20, 1997,

the Board of Higher Education adopted the

recommendations, thus completing de Llano’s journey

through the administrative process. He then filed this

lawsuit, alleging that various NDSU officers - sued solely

in their personal capacities - violated his Fourteenth

Amendment Due Process and First Amendment freedom

of speech rights.

The First Amendment claim stems from a series of

letters to the editor de Llano published in the Fargo

Forum and the NDSU Spectrum, NDSU’s student

newspaper, from June 1993 to July 1995.

17a

[p. 5] In these letters, he expressed his concerns with his

treatment as well as other matters. The precise contents of

the letters will be discussed in greater detail below, but it

is clear that they dealt, at least generally, with de Llano’s

perceptions of problems at NDSU generally and in the

physics department specifically.

Ill. Analysis

A. Summary judgment standard

Summary judgmentis appropriate only when there

is no genuine issue of material fact and the moving party

is entitled to judgment as a matter of law. Fed. R. Civ. P.

96(c). A fact is “material” if it might affect the outcome of

a case, and a factual dispute is “genuine” if the evidence

is such that a reasonable jury could return a verdict for the

nonmoving party. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986); Churchill Bus. Credit, Inc. v. Pacific

Mut. Door Co., 49 F.3d 1334, 1336 (8th Cir. 1995).

The basic inquiry for summary judgment purposes

is “whether the evidence presents a_ sufficient

disagreement to require submission to a jury or whether

it is So one sided that one party must prevail as a matter

of law.” However, the nonmovant must do more than

merely restate earlier pleadings. See McLaughlin _v.

Esselte Pendaflex Corp., 50 F.3d 507, 510 (8th Cir. 1995).

Thus, mere arguments or allegations are insufficient to

defeat summary judgment; the nonmoving party must

18a

advance specific facts to [p. 6] create a genuine issue of

material fact for trial. See, e.g.. F.D.LC. v. Bell, 106 F.3d

258, 263 (8th Cir. 1997). This requirement is not satisfied

by “mere speculation, conjecture, or fantasy”; rather, it

requires sufficient probative evidence to allow a finding

in its —— assuming ans remgsaiia is ene at trial.

F.3d 237, 241 (8th Cir. .. 1995),

B. Plaintiff's claims

1. Due process

Plaintiff first claims that defendants violated his

rights protected by the Due Process Clause of the

Fourteenth Amendment. As the Eighth Circuit recently

explained:

The Due Process Clause of the Fourteenth

Amendment prohibits state governments

from depriving “any person of life, liberty,

or property, without due process of law . .

. .” This clause has two components: the

procedural due process and the substantive

due process components. “Analysis of

either a procedural or substantive due

process claim must begin with an

examination of the interest allegedly

violated,” and “[t]he possession of a

protected life, liberty, or property interest is

19a

- 4 condition precedent” to any due

process claim. “[W]here no such interest

exists, there can be no due process

violation.” Merely labeling a governmental

action as arbitrary and capricious, in the

absence of the deprivation of life, liberty, or

property, will not support a substantive due

process claim.

Singleton v. Cecil, 176 F.3d 419, 424 (8th Cir. 1999)

(internal citations omitted) (en banc). Since it is not clear

whether plaintiff claims a violation of substantive or

procedural due process, the Court will examine both

claims.

[p. 7]

a. Substantive due process

Applying these rules, it is readily apparent that

plaintiff cannot make out a claim under substantive due

process theory. As the Eighth Circuit explained in

Singleton, substantive due process “specifically protects

those fundamental rights and liberties which are,

objectively, ‘deeply rooted in this Nation’s history and

tradition,’ and ‘implicit in the concept of ordered liberty,’

such that ‘neither liberty nor justice would exist if they

were sacrificed.’” Id. at 425 (citing Washington v.

Glucksberg, 521 U.S. 702). Thus, substantive due process

has generally been limited to “matters relating to

20a

marriage, family, procreation, and the right to bodily

integrity.” Albright v. Oliver, 510 U.S. 266, 272 (1994).

Plaintiffs claim for substantive due process based on his

job fails to meet this high standard; indeed, the Eighth

Circuit has squarely rejected that there is any

“occupational liberty” in continued state employment

protected by substantive due process, at least for at-will

employees. See Singleton, 176 F.3d at 427 (declining to

extend substantive due process protection to an at-will

state employee).

Further, other circuits have arrived at the same

conclusion when considering tenured university

professors, such as plaintiff. For example, the Third

Circuit has explicitly rejected a claim by a tenured

professor that his job conveyed a “fundamental property

interest entitled to substantive due process [p. 8]

protection.” Nichols v. Pennsylvania State University, 227

F.3d 133, 142 (3d Cir. 2000). In so doing, it noted that

[TJenured public employment is a wholly

state-created contract right; it bears little

resemblance to other rights and property

interests that have been deemed

fundamental under the Constitution... Nor

does public employment approach the

interests “implicit in the concept of ordered

liberty like personal choice in matters of

21a

marriage and family.”

Id. at 143. This is in accord with the vast majority of

circuits which have considered the question. Id. at 142

(citing cases in accord from the Second, Fourth, Sixth,

Seventh, Eighth, Ninth, and Eleventh Circuits). Thus,

there is a clear majority rule that state-created contract

rights are not, in and of themselves, entitled to the

protections of substantive due process. Id. Therefore, to

the extent plaintiff here relies on substantive due process

as the basis for his action, he must fail.

b. Procedural due process

The analysis of procedural due process claims is

quite different than that for substantive due process. As

the Eighth Circuit has recently explained, “Procedural due

process claims require a two-step analysis. Initially, a

plaintiff must demonstrate that the state deprived him of

some ‘life, liberty, or property’ interest. If successful, the

plaintiff must then establish that the state deprived him of

that interest without sufficient ‘process.”” Krentz v.

Robertson, 228 F.3d 897, 903 (8th Cir 2000).

[p.9] Unlike substantive due process, the property right

allegedly deprived in a procedural due process claim must

be “created not by the Constitution, but by an

independent source such as state law.” Riggins v. Board

of Regents of the University of Nebraska, 790 F.2d 707,

710 (8th Cir. 1986) (citing Cleveland Board of Education

22a

v. Loudermill, 470 U.S. 532 (1985)). However, while the

property right must derive from state law, the amount of

process due is judged not by reference to state law, but

the Federal Constitution. Loudermill, 470 U.S. at 541.

Thus, while de Llano must prove a protected property

right by reference to state law, the amount of process he

must be accorded is judged by federal, not state, law. Id.

The Court has little trouble finding that plaintiff

had a protected property right in his job. As the Eighth

Circuit has explained, “For a property interest to arise, a

government employee must have a ‘legitimate claim of

entitlement’ to continued employment, as opposed to a

mere subjective expectancy.” Batra v. Board of Regents of

University of Nebraska, 79 F.3d 717, 720 (8th Cir. 1996).

Here, plaintiff became tenured in his position in 1989.

Courts have generally agreed that tenure gives a college

professor an expectation of continued employment

sufficient to confer on the job the status of a property

right. See Geddes v. Northwest Mo. State Univ., 49 F.3d

426, 429 (8th Cir. 1995) (“Absent unusual circumstances,

a teacher in a [p. 10] position without tenure or a formal

contract does not have a legitimate entitlement to

continued employment.”) Indeed, defendants appear not

to dispute that de Llano had a property interest in his job

that entitled him to due process. The issue thus becomes

whether plaintiff received the process he was due.

23a

_ The Supreme Court has made clear that “{t}he

essential requirements of due process . . . are notice and

an opportunity to respond.” Lowdermill, [sic] 470 U.S. at

546. Thus, under the Constitution, irrespective of what

rights he or she may enjoy under state law, “[t]he tenured

public employee is entitled to oral or written notice of the

charges against him, an explanation of the employer’s

evidence, and an opportunity to present his side of the

story.” Id. It is clear that de Llano enjoyed these

opportunities here.

Simply reviewing the facts makes clear that de

Llano received ample due process. He clearly had

knowledge of the background problems between him and

his colleagues based on the letters from Dr. Sawicki in

July and August 1992. He then received a letter of

reprimand from Dean Fischer in December 1992, which he

contested to the SRC. He was censured by the physics

department in November 1993, and he received a second

letter of reprimand in December of that year. Clearly,

then, he had a general background of the problems that

ultimately led to his dismissal.

Then, in February 1994, he received a notice of

intent to [p. 11] terminate, a notice which included six

separately numbered bases for the decision. The March

1994 dismissal letter from President Ozbun reiterated

these six points. Thus, there can be no question that he

24a

had notice of the specific charges against him. He then

obtained counsel, who represented and assisted him

throughout the remainder of the process. He also has had

three separate appeals: The SRC, the SCFR, and the North

Dakota Board of Higher Education. Before the SCFR, he

was able to call and cross-examine witnesses and present

evidence on his behalf. Surely, this qualifies as an

“opportunity to be heard” under any sensible definition

of the phrase.

Eighth Circuit opinions have rejected procedural

due process complaints in instances in which less process

than de Llano received here was afforded. For example,

in Riggins, the court denied a procedural due process

claim when the employee was allowed to read a report

alleging misconduct on her part and received an hour and

forty minute oral hearing with her supervisor. Riggins,

790 F.2d at 709-11 (“The pretermination process given

Riggins, while it did not amount to a formal hearing,

satisfies the due process requirements of Loudermill”).

Similarly, the Eighth Circuit has upheld against

procedural due process attack the dismissal of a tenured

university professor who “received prior notice of the

charges against him and was represented by counsel in all

subsequent proceedings,” at which [p. 12] he “took full

advantage of his rights to present evidence and to call and

25a

f iversi 788 F.2d 504, 508

(8th Cir. 1986). In light of these and similar proceedings,

it is apparent that because de Llano unquestionably had

ample notice of the charges against him and several

opportunities to be heard, he received procedural due

process. Id.

Dr. de Llano argues, however, that he was denied

procedural due process because NDSU violated its own

Procedures during the administrative review process.

Specifically, he argues President Ozbun had no authority

to decide not to follow the recommendation of the SRC

that de Llano should not be terminated and that the

SCFR, which ultimately found against de Llano, was

improperly constituted. Pl.’s Resp. Br. at 10-11, 13. Thus,

he maintains that NDSU violated its Own procedures,

which worked to deprive him of procedural due process.

Without deciding whether or not NDSU violated its own

procedures, the Court concludes that it must reject de

Llano’s argument. 3

Initially, this argument simply misses the crucial

division in this area of law: While state law controls

whether a public employee has a property interest in

continued employment protected by procedural due

process, the law used to evaluate the process that is due

is exclusively federal. See Loudermill, 470 U.S. at 541. In

short, as the Eighth Circuit has explained:

26a

[p. 13] “[O]}nce a liberty interest has been found, federal

law, not state law, determines what constitutes adequate

procedural due process.” Franco v. Moreland, 805 F.2d

798, 801 (8th Cir. 1986) (citing Loudermill). Thus, this

Court must apply federal standards to determine whether

de Llano received sufficient due process, most

importantly notice and an opportunity to be heard. The

Court has concluded that he did. Therefore, de Llano has

received procedural due process, irrespective of whether

NDSU followed its internal procedures.

Eighth Circuit precedent, while not answering

squarely the question de Llano poses, reinforces this

conclusion. For example, in a case dealing with a student

dismissal from a graduate program, the Eighth Circuit

held that the “University’s noncompliance with its own

grievance appeal procedures would not violate

[plaintiff's] right to procedural due process, because the

hearing she received at the department er — the

process constitutionally required . ” Schuler _v.

University of Minnesota, 788 F.2d 510, 515 (8th Cir. 1986).

While the amount of process due and afforded is different

in Schuler than in the instant case, the point stands that

deviation from an internal process is only a procedural

federal due process violation if it has the effect of denying

the aggrieved party the process due under federal

standards. Id.

27a

Other courts that have considered this very

argument within [p. 14] the context of universities have

reached a similar conclusion. For example, the First

Circuit has held that, even if a university deviates from its

procedures, it is not subject to a procedural due process

attack so long as “the procedures the University actually

follows are fair ones.” Newman v. Burgin, 930 F.2d 955,

960 (1st Cir. 1991). Thus, the focus is on evaluating what

actually happened in light of federal standards, not the

policy allegedly violated. Id.; accord Silva v. University of

New Hampshire, 888 F.Supp 293 (D.N.H. 1994). Similarly,

the Fifth Circuit has rejected a procedural due process

attack based on a claimed violation of university policy,

emphasizing that the controlling question was compliance

with federal due process standards, which the court found

were met. Levitt v. University of Texas at El Paso, 759

F.2d 1224, 1229 (5th Cir. 1985).

These cases support the Court’s conclusion that,

assuming de Llano is right that NDSU violated its

Procedures, this cannot help him, since he did in fact

receive all the process to which he was due under the

Constitution. Rather, the issue is whether de Llano

received notice and an opportunity to be heard, [sic] the

Court concludes he did. Further, the Court notes that de

Llano received at least one more hearing after each stage

of the proceedings he claims was tainted; he went before

the North Dakota Board of Higher Education after the

SCFR’s decision, and to both of them after Ozbun’s

decision. Courts have suggested that flawed hearings [p.

15] may be cured by a later, constitutionally adequate

procedure. See Agarwal, 788 F.2d at 508 (noting that the

fact the protections of the Fourteenth Amendment may

not have been observed before one committee did not

establish a violation “in light of the formality of the later

proceedings”). Thus, even assuming that there was a

violation of NDSU’s procedures, de Llano received

constitutionally adequate process, both overall and after

each alleged violation. In light of these facts, de Llano’s

contention that his rights were violated must be rejected.

Plaintiff cites Brady v. Gebbie, 859 F.2d 1543 (9th

Cir. 1988) for his contention that he should be allowed to

show the process accorded him was a sham. Pl.’s Resp.

Br. at 9. Plaintiff misreads this case, however. The plaintiff

in Brady was held not to have any property interest in his

job. Rather, he went to the jury on the theory that his

firing deprived him of a liberty interest, a theory which

has not been so much as alleged here. Brady, 859 F.2d at

1547. Thus, the case is distinguishable and does not help

plaintiff. Id.

In conclusion, then, the Court GRANTS

defendants’ motion for summary judgment as to

plaintiff's procedural due process claim. Plaintiff received

29a

all the process due him under federal constitutional

standards: He clearly had notice of the charges against

him, and he had several Opportunities to be heard.

Further, his allegation that NDSU violated its own

procedures in [sic] [p. 16] unavailing, since the standard

remains whether he received sufficient process under

federal standards.

2. First Amendment

Plaintiff next claims his firing was retaliation for

exercise of his First Amendment rights, mainly through a

series of letters to the editors in local newspapers. In his

complaint, he identifies the following letters as leading to

his firing:

1. Letter to the Fargo Forum, “It's a crisis of

leadership at university,” 6/20/93;

2. Open letter sent to President Ozbun,

“Questions for an NDSU dean from a

concerned state taxpayer,” 9/11/93;

3. Letter to the Spectrum, NDSU’s campus

paper, “Will SU faculty be consulted for its

new leadership,” 9/28/93;

4. Letter to the Fargo Forum, “University

should reinstate Specht,” 12/31/93;

5. Letter to the Fargo Forum, “NDSU must

pursue standards of excellence,” 2/18/95;

6. Letter to the Fargo Forum, “No one at

university is above accountability,” 5/5/95;

y: Letter to the Fargo Forum, “Free speech

rights quashed by NDSU dean,” 7/27/95;

The standards for evaluation of § 1983 First

Amendment claims are well established. Plaintiff must

“establish the First Amendment protects the speech and

the protected speech was a substantial factor in the

adverse employment action.” Bausworth v. Hazelwood

School District, 986 F.2d 1197, 1198 (8th Cir. 1993). The

Eighth Circuit recently explained this first step:

Whether the First Amendment shields a

public employee from discharge as a result

of her speech requires a two-step judicial

inquiry. First, we determine whether the

employee’s speech can be “fairly

characterized as constituting speech on a

matter of public concern.” Second, if the

speech addresses a matter of public

concern, we balance the “interests of the

[employee], as [p. 17] a citizen, in

commenting upon matters of public

concern and the interests of the State, as an

employer, in promoting the efficiency of the

public services it performs through its

employees.”

See Belk v. City of Eldon, 228 F.3d 872, 878 (8th Cir. 2000)

3la

(citations omitted).

Thus, de Llano must establish that his speech

addressed matters of Public concern. Id. “Matters of

Public concern include matters of political, social, and

other concern to the community.” Id. In employing this

framework, derived from Connick v. Myers, 461 U.S.

138(1983), courts must examine the “content, form, and

context of the speech as revealed by the entire record.” Id.

(citing Connick). Only if speech meets this standard does

the court perform the balance mandated by Pickering v.

Board of Educ., 391 U.S. 563 (1968). Then, if the plaintiff

prevails, he must demonstrate that the speech was a

motivating factor in his discharge. See Bausworth, 986

F.2d at 1198. Finally, the defendant has a chance to show

it would have made the same decision regardless of the

Educ. v. Doyle, 429 U.S. 274 (1977).

Initially, the Court notes the July 27, 1995 letter to

the Forum entitled “Free speech rights quashed by NDSU

dean” cannot, under any circumstances, be considered in

this analysis. The final decision by President Ozbun to

terminate de Llano was made on May 15, 1995, following

the SCFR report of May 15, 1995. Clearly, a letter

published two months after a final termination [p. 18]

decision cannot have been the basis for that decision. See

Bausworth, 986 F.2d at 1198 (noting that plaintiff must

(ca aa i

32a

prove the speech was a motivating factor in the adverse

employment action). The Court will therefore not

consider this letter. (4) This leaves six letters, which the

Court addresses below.

a. “It’s a crisis of leadership at university,” Fargo

| Forum, 6/20/93

| This letter is typical of the themes that will define

| this analysis. Clearly, it contains elements which appear

| to address matters of public concern. It is couched in

generalities, which further seems to suggest that it is of

| public concern. At bottom, however, it is not of public

concern; rather, it is devoted to airing de Llano’s personal

grievances with NDSU, containing the speech of an

employee, not a member of the public. See Bausworth,

986 F.2d at 1198 (“[S}peech is a matter of public concern

when a public employee speaks as a concerned citizen,

but not when the employee speaks as an employee.”)

The Court must examine the content, form and

context of the speech at issue. Id. The form and context

weigh in favor of a [p. 19] finding of public concern: A

| newspaper is a public forum and letters to the editor are

| traditional means of communicating with the public. It is

the content of the letter, however, which undercuts its

| claim to address matters of public concern. Though it

begins with an invocation of concern for the future of

NDSU generally, it becomes a series of complaints about

33a

low salaries, research policies, and the relationship

between research, publications, and tenure.

These are all matters about which de Llano had

long complained: He had a long-running dispute with

others in his department and the university on the subject

of research and publication, as he believed they - and

accordingly he - were undervalued. The letter also

complains about “removal of department chairmen with

exceptional credentials in mid-academic year, in violation

of their contracts”; de Llano himself had been removed as

chairman in mid year three years earlier. The letter further

contains an indictment of NDSU’s Equal Employment

Opportunity Services office, with which de Llano had a

running feud. In short, then, the letter is a series of

long-running complaints de Llano had with various issues

at NDSU, complaints not of public concern but rather

peculiar to him.

These are the kinds of complaints courts have

consistently held not to be matters of public concern.

Several of the issues raised by the letter - the relationship

between research and [p. 20] tenure, the replacement of

department chairs - relate to personnel matters, and

“[s]tatements that deal with personnel matters are not

generally protected by the First Amendment.” See Belk,

228 F.3d at 879. Much of the speech also relates to

“internal policies relevant only to fellow employees,”

34a

which the Eighth Circuit has held is not generally

protected. See Calvit v. Minneapolis Pub. Schs., 122 F.3d

1112, 1117 (8th Cir. 1997). Finally, the Court notes that de

Llano clearly had a personal stake in the issues he raised,

a fact which often cuts against a finding of public concern.

See Belk, 228 F.3d at 879 (“[S]tatements of ‘purely

academic interest’ to the speaker will be given more

protection than those in which she has a personal

interest”); see also Tuttle v. Missouri Dep't. of Agric., 172

F.3d 1025, 1034 (8th Cir. 1999) (concluding that plaintiff

spoke only as an employee and not as a citizen).

In short, this letter was an expression of de Llano’s

idiosyncratic concerns and problems with NDSU. These

concerns may be couched in terms of generalities, but they

remain, ultimately, his concerns. Further, these are the

concerns of an aggrieved employee, not those of a

member of the public. Therefore, the letter does not

address matters of public concern within the meaning of

Connick, and it is hence unprotected by the First

Amendment. This fact is not altered by the letter’s general

references to funding and the overall direction of NDSU.

Ip. 21]

b. “Questions for an NDSU dean from a

concerned state taxpayer,” open letter to

Ozbun, 9/11/93

Many of the above concerns are equally - if not

35a

more - true for this letter. While it begins couched in

generalities, it soon becomes merely a lading list of de

Llano’s complaints. In it, he takes issue with, among other

issues, the allocation of travel money within departments,

rewards for research, and the criteria for department

chairmen - all longstanding complaints of de Llano’s,

recitation of which is not protected for the reasons cited

above. See, e.g., Calvit, 122 F.3d at 1117 (noting internal

complaints of interest only to other employees are not

generally matters of public concern). It also contains a

series of complaints about poor treatment of the physics

department, an internal complaint which is not a matter

of public concern. Id.

Finally, it degenerates into a series of accusations

against the dean, suggesting that a student letter seeking

a course alternative to one of de Llano’s classes - another

personal sore point - was fabricated by the dean and that

the dean altered minutes of meetings. These criticisms of

a supervisor in his role as supervisor - especially when the

speaker has a strong interest in the subject - are not

generally matters of public concern. See generally Belk,

228 F.3d at 879 (distinguishing between criticism of a

supervisor as a supervisor and as a public official). Thus,

the content of the letter suggests it is not of public

concern.

[p. 20] Further, the form of the speech weighs against it.

36a

It is clear that private communications are not

automatically exempt from the First Amendment and

must receive the same analysis as public communications.

See Buazard v. Meredith, 172 F.3d 546, 549 (8th Cir. 1999).

However, “the internal nature of [an employee's] speech

is . .. a factor to be considered.” Id. Thus, the fact that the

speech was conveyed solely to two university officials,

especially when coupled with the Court’s analysis of its

content, undercuts its claim to address a matter of public

concern. In light of these factors, the Court concludes the

letter does not address a matter of public concern and is

hence unprotected.

c. “Will SU faculty be consulted for its new

leadership,” The Spectrum, 9/28/93

The Court recognizes that this letter may be a

closer call than the last two. It also recognizes that these

kinds of calculations cannot be done with arithmetic

precision. However, the Court concludes that, on balance,

this letter does not address matters of public concern.

Again, it is replete with individualized complaints: de

Llano’s perception that research was not sufficiently

rewarded by NDSU; his view that he was unfairly treated

when he was not allowed to bring a Brazilian scientist to

NDSU,; and his dissatisfaction with the NDSU affirmative

action office. These complaints are reflections of de

Llano’s personal grievances and relate mostly to internal

37a

policies, both facts that undercut his public concern claim.

See Calvit, 122 F.3d at [p. 23] 1117 (noting speech on

internal employment matters generally not public

concern); Belk, 228 F.3d at 879 (noting that statements of

“academic interest” to the speaker are given more

protection).

The letter then embarks on a three-paragraph

condemnation of the “lack of trust, confidence - and,

hence, communication - between faculty and

administrators.” The letter accuses administrators of

“formulating and imposing their own pet policies, rather

than implementing the university's.” He calls on the

administration to give the faculty a larger role in campus

policy generally, and he concludes by calling for the

prompt selection of a university president.

These themes appear at first blush to address

matters of public concern. However, the Court concludes

the letter overall is not entitled to protection. The first half

is not of public concern - see above - and this changes the

context of the later speech. See Bausworth, 986 F.2d at

1198 (noting that courts must examine the “content, form

and context” of speech). Further, the second half revolves

around de Llano’s perception of the presidential selection

process from his perspective as a faculty member, and

thus as an employee, not as a member of the public. It is

well established that “speech is a matter of public concern

38a

when a public employee speaks as a concerned citizen,

but not when the employee speaks as an employee.” Id.

This undercuts his argument, leading the Court to find the

letter is not protected.

[p. 24]

d. “NDSU must pursue standards of excellence,”

Fargo Forum, 2/18/95

Much of the foregoing analysis applies with equal

force to this letter. Though devoid of personal attacks, it

too is written from a uniquely faculty perspective, thus

suggesting it is spoken as an employee and not as a

member of the public. Id. Further, it reflects de Llano’s

underlying grievances with perceived weak academic

standards and his view that research is “currently

undervalued at NDSU.” These are internal and faculty

complaints, not those of a concerned citizen. Id; see also

Calvit, 122 F.3d at 1117. Therefore, the Court concludes it

is not protected.

é. “University should reinstate Specht,” Fargo

Forum, 12/31/93 and “No one at university is

above accountability,” Fargo Forum, 5/5/95

The Court addresses these letters together because

they suffer the same flaw: Lack of connection to the

underlying issues presented in this litigation. Therefore,

assuming without deciding that plaintiff could pass both

the Connick public concern requirement and the Pickering

39a

balance on these letters, the Court holds that he could not

show that the letters were a motivating factor in the

defendants’ decision to terminate him. See Bausworth,

986 F.2d at 1198.

The first letter (“University should reinstate

Specht”) is generally critical of the university, but it

criticizes a university decision with regard to another

faculty member, not de Llano. Further, the Court cannot

find any trace of the issue [p. 25] raised by this letter

anywhere else in the record, at least not as a major issue;

it appears only in this letter and does not appear to be

mentioned again. Thus, it is a bare incident of speech

unconnected to the claim, and plaintiff cannot show it

was a motivating factor in his discharge. See Bausworth,

986 F.2d at 1198. Even at the summary judgment stage, a

nonmoving party must advance specific facts to create a

genuine issue of material fact for trial, not “mere

speculation, conjecture, or fantasy.” See Wilson, 62 F.3d

at 241, Bell, 106 F.3d at 263. This plaintiff has failed to do

with regard to this letter.

The same holds true with regard to the second

letter (“No one at university is above accountability”), so

the Court will not repeat its analysis. The Court does note

briefly, however, that this letter is not even vaguely

critical of NDSU; rather, it is an attack on the editorial

position of the newspaper in which it was published.

40a

Thus, there is not even a general suggestion that it led to

a retributive attack on de Llano from NDSU, and this

letter thus cannot support the position that plaintiff was

fired for writing it. See Bausworth, 986 F.2d at 1198.

In conclusion, therefore, the Court holds that none

of these letters pass the Connick public concern

requirement. Therefore, they are not entitled to First

Amendment protection. This obviates the need to

perform the Pickering balancing test - in which de Llano’s

interest in speaking would be weighed against [p. 26]

NDSU’s interest in workplace efficiency - since he has not

passed the public concern threshold. See Belk, 228 F.3d at

878 (reviewing analytical framework). Therefore, this

issue will not be addressed further.

Assuming that the Court concluded that de Llano

could pass both Connick and Pickering, however, it

would likely conclude both that the speech was not a

motivating factor in his discharge and that the NDSU

would have terminated de Llano irrespective of his

speech. The Court notes that de Llano has pointed to

nothing in the record that would support his contention

that these six letters led to his termination. While the

nonmovant’s burden at summary judgment is not a heavy

one, it is not satisfied by “mere speculation, conjecture, or

fantasy.” See Bell, 106 F.3d at 263. Rather, he must at least

point to specific facts to create a genuine issue of material

4la

fact for trial. Wilson, 62 F.3d at 241. This plaintiff has

singularly failed to do.

Second, the Court notes NDSU could likely prove

it would have terminated de Llano regardless of the

speech at issue. (5) NDSU offered six reasons for

terminating de Llano in the notice of intent to terminate,

reasons reiterated in the ultimate notice of dismissal.

These reasons do not reflect, on their face, a concern for

de Llano’s speech, and the record would seem to

substantiate [p. 27] several of them. This at least suggests

that the actions by NDSU were not driven entirely by de

Llano’s speech.

More important, perhaps, is that a review of the

events in this case - not performed in detail here -

indicates that de Llano’s problems with NDSU developed

in part over the four-year period between his removal as

chair in 1989 and his first speech in 1993; while it may

have gone downhill from that point, it was already in

serious decline. Thus, this is not a case in which a model

employee speaks out and is suddenly beset by problems;

rather, the speech and the problems seem to be separate

or, at most, concurrent. This provides further support for

the Court’s conclusion that summary judgment is

appropriate.

IV. Conclusion

For the reasons set forth above, the Court

42a

GRANTS defendants’ motion for summary judgment.

Therefore, defendants’ motion in limine is rendered

MOOT.

IT IS SO ORDERED.

Dated this 19th day of March, 2001,

ls/_

Rodney S. Webb, Chief Judge

1. As required at the summary judgment stage, the

following recitation of facts is drawn from those the

parties agree are undisputed or, where there is a dispute,

is presented in the light

[footnotes, p. 2] most favorable to plaintiff. See generally

Anderson v. Liberty Lobby, Inc, 477 U.S. 242 (1986). The

Court notes that its efforts to identify those facts which

are disputed and thus must be resolved in favor of

plaintiff is made more difficult by the fact that plaintiff

did not comply with Local Rule 7.1(B)(2), which requires

a party resisting a dispositive motion to file, “separate

from the brief, a short and concise statement of the

material facts as to which it is contended there exists a

genuine issue to be tried.” As plaintiff points out,

43a

however, “[mJost of the critical facts in this case are not in

dispute.” PI.’s Resp. Br. at 1.

2. The file in this case makes clear that de Llano was

involved in a number of disputes with various individuals

at the university for a whole host of reasons. The Court

declines to review the precise details of these conflicts,

however, because they do not ultimately affect the legal

issue before it on summary judgment: Whether there are

genuine issues of material fact requiring a trial. Therefore,

the Court will refer simply to “conflicts,” without

attempting to parse the parties’ differing explanations of

the reasons for them or, frankly, attempting to determine

what “really happened” and why. These questions -

which veer dangerously close to determining whether the

university was justified - are simply outside the scope of

this Order.

(footnotes, p. 3]

3. The SRC’s determination has apparently not been

submitted to the Court, but there seems to be no

disagreement that it did not uphold de Llano’s challenge.

[footnotes, p. 18]

4. It is tempting, in fact, to ignore all letters after March

9, 1994, when NDSU President Ozbun issued the initial

44a

letter of termination, as it is unlikely the later reviews of

this decision considered new information. However, the

Court will not do so, since the termination did not

become final until over a year later, and de Llano was an

active speaker in the interim. Further, while the

defendants urge the Court to ignore the final letter - as it

will do - they seem to agree that the letters between

March 9, 1994 and May 15, 1995 are relevant.

[footnotes, p. 26]

5. The Court asked the parties to submit additional

briefing on this point.

DISTRICT COURT JUDGMENT

JUDGMENT

(March 19, 2001)

Pursuant to the Court s Memorandum and Order

of the __19th day of March, 2001,

IT IS ADJUDICATED THAT defendants’ motion

for summary judgment is GRANTED.

ITISFURTHER ADJUDGED that plaintiff's claims

and causes of action are DISMISSED WITH PREJUDICE.

Dated this__19th _ day of March, 2001.

Edward J. Klecker, Clerk

United States District Court

/s/ Lois Clark

By Deputy Clerk

46a

ORDER DENYING HEARING EN BANC AND

PANEL REHEARING

(May 16, 2002)

UNITED STATES COURT OF APPEALS FOR THE

EIGHTH CIRCUIT

No. 01-2012

Manuel De Llano,

Appellant, v.

Duane Berglund, et al.,

Appellees.

Order Denying Petition for Rehearing and for

Rehearing En Banc

The petition for rehearing en banc is denied. The

petition for rehearing by the panel is also denied.

(5128-010199)

May 16, 2002

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit

47a

TITLE 42, UNITED STATES CODE, Section 1983

Civil action for deprivation of rights. Every person

who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District

of Columbia, subjects, or causes to be subjected, any

citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights,

privileges, or 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,

TITLE 42, UNITED STATES CODE, Section 1985

Conspiracy to interfere with civil rights.

+ + &

(3) Depriving persons of rights or privileges. If two

or more persons in any State or Territory conspire

... for the purpose of depriving, either directly or

indirectly, any person or class of persons of the

equal protection of the laws, or of equal privileges

and immunities under the laws; ... in any case of

conspiracy set forth in this section, if one or more

persons engaged therein do, or cause to be done,

any act in furtherance of the object of such

conspiracy, whereby another is injured in his

— =e

person or property, or deprived of having and

exercising any right or privilege of a citizen of the

United States, the party so injured or deprived

may have an action for the recovery of damages

occasioned by such injury or deprivation, against

any one or more of the conspirators.

NORTH DAKOTA STATE UNIVERSITY POLICY

MANUAL, SECTION 350

[Also SBHE Policy Manual Section 605]

(1992 Edition)

OTHER REQUIREMENTS FOR’ TERM-

INATION OR DISMISSAL. A termination of a

tenured faculty member [or] a dismissal during the

contract period of any faculty member will not

become final until the following steps (unless

waived by mutual consent of the faculty member

and President) have taken place, in the order listed:

*s%

6. A faculty member may ... request an

informal and confidential inquiry and

report from a Special Review Committee.

The Special Review Committee shall

49a

provide such report within thirty days of

receiving the request; and

If requested by the faculty member within

fifteen calendar days after receipt of the

report of the Special Review Committee,

formal hearing by the Standing Committee

on Faculty Rights shall be provided under

Section J.