Appendix — Sakkararapope v. Gonzales (No. 06-1052)

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No.

IN THE

Supreme Court of the Gnited States

BENJAPON SAKKARAPOPE,

Petitioner,

V.

THE BOARD OF REGENTS OF

WASHINGTON STATE UNIVERSITY,

LEROY S. ROOKER, |

Director of Family Policy Compliance Office,

THE SECRETARY OF

THE UNITED STATES DEPARTMENT OF EDUCATION,

and

ALBERTO R. GONZALES, Attorney General,

Respondents.

On Petition For Writ Of Certiorari

To The Court of Appeals For The State of Washington, and

To The United States Court Of Appeals

For The Ninth Circuit

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

Benjapon Sakkarapope

714 South Jefferson Street,

Moscow, ID 83843-3030

Phone: (208) 882-2138

i

TABLE OF CONTENTS

No.

Titles

WA Court of Appeals’ decisions, entered

September 8, 2005, January 5 and February

2, 2006.

Order Granting Respondents’ Motion for

Summary Judgment (March 5, 2004)

Whitman County Superior Court’s

February 17, 2004 Memorandum Decision

U.S. Court of Appeals’ Judgment

(June 22, 2006) and MEMORANDUM

entered by UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

(February 22, 2006)

U.S.D.C Judgment and MEMORANDUM

OPINION AND ORDER GRANTING

DEFENDANT’S MOTIONS FOR

SUMMARY JUDGMENT AND

DIRECTING JUDGMENT OF

DISMISSAL (June 22, 2004)

Judgment and MEMORANDUM entered

by U.S. COURT OF APPEALS FOR THE

NINTH CIRCUIT ((December 13, 2006)

Decision of the Board of Immigration

Appeals (September 12, 2005)

Written Decision and Order of the

Immigration Judge (April 23, 2004)

WA Supreme Court’s and Court of

Appeals’ decisions Denying Stay

Enforcement of the Trial Court’s Order of

March 5, 2004.

10

WA Supreme Court’s and Court of

Appeals’ decisions Denying

Consolidation—Post-judgment Decision

il

No. Titles ” Pages

11 | SUBPOENA DUCES TECUM 74-81

(December 8, 2003 and January 12, 2004)

12 | ORDER ON OBJECTIONS TO 82-83

SUBPOENA DUCES TECUM AND

MOTION TO QUASH

13 | WA Supreme Court Order Denying Review | 84-87

(October 10, 2006) and Court of Appeals’

Mandate (October 26, 2006)

14 | U.S. Court of Appeals’ Order denying a 88

petition for panel rehearing and rehearing

en banc (June 8, 2006) :

15 | Thurston County Superior Court’s Order on | 89-90

Appeal (December 22, 2006)

16 | WSU’s decisions and actions in the case. 91-128

17 | Advisory Committee approval of the 129-138

Proposed Contents and Format of the IIDP

Preliminary Examination

18 | The IIDP Faculty/ Student HANDBOOK 139-152

19 | The Graduate Student Code 153-160

20 | POLICIES AND PROCEDURES OF THE | 161-170

GRADUATE SCHOOL, October 1998

21 | The Board of Regents Bylaw 171-178

22 | Emails correspondence between 177-187

Sakkarapope and his academic advisor

23 | Summary of Rules and Violations 188-197

24 | Summary of Events 198-206

25 | Sakkarapope’s appeal letters to WSU 207-331

26 | Petition for review in Whitman County 332-351

Superior Court (July 23, 2003)

27 | Brief of Appellant 352-389

28 | Motion for Reconsideration 390-422

29 | Petition for Review 423-442

30 | Brief for Petitioner in U.S. Court of 443-483

Appeals for Ninth Circuit

iil

FILED

JAN 5 2006

COURT OF APPEALS

DIVISION III

STATE OF WASHINGTON

COURT OF APPEALS, STATE OF WASHINGTON,

DIVISION III

BENJAPON SAKKARAPOPE,

Appellant, | No. 22708-1-III cons/w

v. No. 22881-7-III and

No. 22732-4-II]

STATE OF WASHINGTON,

THE BOARD OF REGENTS, | ORDER GRANTING

WASHINGTON STATE MOTION FOR IN PART;

UNIVERSITY, ORDER DENYING

Respondents. | MOTION TO STRIKE

OPINION; ORDER

DENYING MOTION TO

PUBLISH; AND

ORDER AMENDING

OPINION

THE COURT having considered respondent's motion

for reconsideration of this court's opinion dated September 8,

2005; appellant's motion for reconsideration/to strike the

opinion, appellant's objection, reply and motion to strike re:

respondent's answer to motion to publish; appellant's motion

to publish; and respondent's answer to motion to publish,

NOW, THEREFORE,

IT IS HEREBY ORDERED as follows:

1. The respondent's and the appellant's motions for

reconsideration are hereby granted in part based on Spokane

Research & Defense Fund v. City of Spokane, 121 Wn. App.

584, 590, 89 P.3d 319 (2004), reversed on other grounds, WL

1903555 (2005).

2. The court's opinion filed on September 8, 2005, is

amended by deletion on page 10, of the following first,

second and third paragraphs under B. Public Disclosure

Claims:

B. Public Disclosure Claims

The issue is whether the court erred in granting

summary judgment dismissal of Mr. Sakkarapope's PDA .

claim. The summary judgment standard of review applies.

Under RCW 42.17.340, a PDA action is brought by

‘motion of any person having been denied an opportunity to

inspect or copy a public record by an agency, . . . to show

cause why it has refused to allow inspection or copying of a

specific record or class of records.'. RCW 42.17.340(1).

Thus, '{w}here . . . a citizen makes a PDA request and the

agency refuses to provide the records, the requester may

obtain de novo judicial review of the agency's action by

proceeding under RCW 42.17.340.' Spokane Research &

Def. Fund v. City of Spokane, 121 Wn. App. 584, 590, 89

P.3d 319 (2004), reversed on other grounds, WL 1903555

(2005). ‘The statutory procedure serves the purpose of the

PDA, .. . to ensure speedy disclosure of public records. The

statute sets forth a simple procedure to achieve this.’ Id. at

591. This court has previously required litigants seeking

relief under the PDA to follow the statutory procedures under

RCW 42.17.340. See id.

Here, Mr. Sakkarapope attempted to bring his PDA

claims before the court by appending his public disclosure

requests to his APA petition for judicial review. He did not

follow the required PDA procedure. Although Mr.

Sakkarapope argues he brought a motion to show cause on

January 16, 2004, the court appropriately declined to

consider this tardy motion because Mr. Sakkarapope failed to

note it for hearing. Thus, the court did not err in dismissing

Mr. Sakkarapope’s PDA claims as a matter of law.

Moreover, the court dismissed the PDA claims without

prejudice, so Mr. Sakkarapope would presumably be able to

pursue these claims by following the statutory procedures

outlined in RCW 42.17.340.

The above paragraphs will be replaced by the

following:

The issue is whether the court erred in granting

summary judgment dismissal of Mr. Sakkarapope's PDA

claim. The summary judgment standard of review applies.

Under RCW 42.17.340, a PDA action may be brought

by 'motion of any person having been denied an opportunity

to inspect or copy a public record by an agency, . . . to show

cause why it has refused to allow inspection or copying of a

specific record or class of records. RCW 42.17.340(1).

However, this procedure is not mandatory. Spokane

Research & Def. Fund v. City of Spokane, 155 Wn.2d 89, 94-

95, 117 P.3d 1117 (2005). Rather, the Civil Rules dictate

procedure in a PDA case. Id.

Here, Mr. Sakkarapope attempted to bring his PDA

claims before the court by appending his public disclosure

requests to his APA petition for judicial review. This is

insufficient to claim relief under the Civil Rules. See CR

8(a). Although Mr. Sakkarapope may have been able to cure

his defective pleading in his later filed motion to show cause,

the court appropriately declined to consider this tardy motion

because Mr. Sakkarapope failed to note it for hearing. Thus,

the court did not err in dismissing Mr. Sakkarapope's PDA

claims as a matter of law. Moreover, the court dismissed the

PDA claims without prejudice, so Mr. Sakkarapope would

presumably still be able to pursue these claims.

3. Appellant's motion to strike opinion and objection

to the respondent's reply are hereby denied.

4. Appellant's motion to publish is hereby denied.

DATED: January 5, 2006.

FOR THE COURT:

s/ John A. Schultheis

JOHN A. SCHULTHEIS

ACTING CHIEF JUDGE

FILED

Feb 2, 2006

COURT OF APPEALS

DIVISION Il

STATE OF WASHINGTON

COURT OF APPEALS, STATE OF WASHINGTON,

DIVISION Ill

BENJAPON SAKKARAPOPE, | No. 22708-1-III] cons/w

Appellant, | No. 22881-7-IIl and

v. No. 22732-4-IIl

STATE OF WASHINGTON, ORDER DENYING

THE BOARD OF REGENTS, | (SECOND) MOTION FOR

WASHINGTON STATE RECONSIDERATION;

UNIVERSITY, ORDER DENYING

Respondents. | MOTION TO PUBLISH;

AND DENYING MOTION

TO CONSOLIDATE

THE COURT having considered appellant’s second

motion for reconsideration of this court’s opinion dated

September 8, 2005, and order dated January 5, 2006,

appellant’s motion to publish and appellants motion to

consolidate, NOW, THEREFORE,

IT IS HERE BY ORDERED:

1. Appellant’s second motion for reconsideration of

this court’s opinion dated September 8, 2005, and order dated

January 5, 2006, is hereby denied.

2. Appellant’s motion to publish is hereby denied.

3. Appellant’s motion to consolidate is hereby denied.

DATED: February 2, 2006.

FOR THE COURT:

s/ John A. Schultheis

JOHN A. SCHULTHEIS

ACTING CHIEF JUDGE

FILED

SEPT 8 2005

COURT OF APPEALS

DIVISION Ill

STATE OF WASHINGTON

COURT OF APPEALS, THE STATE OF WASHINGTON,

DIVISION III

BENJAPON SAKKARAPOPE,

Appellant, | No. 22708-1-II cons/w

Vv No. 22881-7-Iif and

STATE OF WASHINGTON, No. 22732-4-II]

THE BOARD OF REGENTS,

WASHINGTON STATE Division Three Panel Five

UNIVERSITY,

Respondents. | UNPUBLISHED

| OPINION

BROWN, J.--These consolidated appeals mainly stem

from Benjapon Sakkarapope's dismissal from Washington

State University (WSU) graduate programs. The trial court

summarily dismissed his petition for review because it

concluded it lacked jurisdiction due to Mr. Sakkarapope's

failure to file within the 30-day limit set by the

Administrative Procedure Act (APA) chapter 34.05, RCW.

Because the trial court did not err, and we reject Mr.

Sakkarapope's other claims, we affirm.

FACTS

In 1999, WSU approved Benjapon Sakkarapope's

petition to pursue entry into its Individual Interdisciplinary

Doctoral Program (IIDP). In February 2000, he failed the

required IIDP preliminary examination by unanimous vote of

the graduate studies committee. This resulted in his

dismissal from the program. Mr. Sakkarapope

unsuccessfully challenged that academic decision up to the

graduate school dean, Dr. Karen DePauw. In an October

2000 final academic decision, Dr. DePauw concurred with

the February decision and the review process

5

recommendations, but permitted Mr. Sakkarapope to

continue his studies for a Master of Science in Statistics. Dr.

DePauw told Mr. Sakkarapope he could appeal any

‘procedural irregularity’ to Interim Provost Dr. Ron Hopkins.

Certified Agency Record (CAR) at 184.

On February 1, 2001, Interim Provost Hopkins denied

Mr. Sakkarapope's appeal and informed him this was WSU's

‘final decision.' CAR at 273. Instead of then pursuing his

court remedy under the APA, Mr. Sakkarapope began writing

protest letters to various other WSU officials.

Meanwhile, Mr. Sakkarapope continued to pursue a

Master's degree. WSU made numerous exceptions to policy

and completion deadline extensions before Graduate School

Interim Dean Howard Grimes informed Mr. Sakkarapope the

deadline was lastly extended until, January 27, 2003, by

which time he was required to complete and defend his final

project and apply for graduation. Mr. Sakkarapope expressly

refused to complete his degree by this date. On January 31,

2003, WSU terminated his enrollment by letter and

apparently barred further registration in the spring.

Mr. Sakkarapope made repeated requests for copies

of his educational records*under fhe Family Education Rights

and Privacy Act of 1974 (FERPA)I. He received a brief

adjudicative hearing by the student records committee to

resolve the FERPA dispute. On April 5, 2002, the committee

issued an initial order, appending records that had not been

previously produced, and indicating that Mr. Sakkarapope

had then been provided his entire educational file. On

November 6, 2002, Provost Robert Bates upheld the

committee's findings, stating the decision was ‘final,’ and

informing Mr. Sakkarapope he had 30 days to appeal the

decision to the Whitman County Superior Court. CAR at

620-21.

Instead appealing to the superior court, Mr.

Sakkarapope tried to pursue his various grievances before the

WSU Board of Regents. On January 14, 2003, Provost Bates

responded for the University President and the Board

6

President, denying his appearance request and reminding Mr.

Sakkarapope he ‘had no further appeal rights at Washington

State University.’ CAR at 331.

During this same time, Mr. Sakkarapope made

numerous public records requests through the WSU public

records office. He was dissatisfied with the responses.

Finally, on July 23, 2003, Mr. Sakkarapope, pro se,

filed his APA petition for review in Whitman County

Superior Court. He disputed his dismissals from the ITDP

and Master's programs and the FERPA decisions. Further, he

sought Public Disclosure Act (PDA) relief by appending a

list of his public records requests to his petition. Mr.

Sakkarapope then initiated extensive discovery, ultimately

resulting in a protective order quashing certain subpoenas

and limiting discovery, except as approved by the court. Mr.

Sakkarapope moved for interlocutory discretionary review of

the trial court's protective order in this court.

WSU moved for summary judgment. On the hearing

day, the trial court denied Mr. Sakkarapope's newly filed

motions for change of venue and affidavit of prejudice

because of the prior discretionary discovery rulings. Mr.

Sakkarapope sought separate interlocutory discretionary

review of the venue and disqualification issues while the trial

court took the summary judgment under advisement.

On February 17, 2004, the trial court issued a

memorandum opinion dismissing Mr. Sakkarapope’s APA

claims for lack of jurisdiction because he failed to perfect

review within the 30-day time limit of RCW 34.05.542. Mr.

Sakkarapope's summary judgment appeal has _ been

consolidated with his prior petitions for discretionary review.

Preliminarily, we consider various motions.

MOTIONS

A. Discretionary Review of Discovery Orders

Mr. Sakkarapope first sought discretionary review of

the trial court's discovery rulings quashing his subpoenas and

limiting discovery. We review discovery rulings for an abuse

of discretion. Doe v. Puget Sound Blood Ctr., 117 Wn.2d

7

772, 778, 819 P.2d 370 (1991). An abuse of discretion

occurs when a decision is manifestly unreasonable or based

on untenable grounds or reasons. State v. Powell, 126 Wn.2d

244, 258, 893 P.2d 615 (1995).

The court did not abuse its discretion in determining

Mr. Sakkarapope's subpoenas were unnecessary in light of

the limited nature of an APA decision review. See RCW

34.05.570. A court may limit discovery for good cause ‘to

protect a party or person from annoyance, embarrassment,

oppression or undue burden or expense.’ CR 26(c). The

court found Mr. Sakkarapope had abused the discovery

process by propounding lengthy requests for unnecessary,

irrelevant and privileged information, reasonable grounds for

limiting discovery. The discovery order enabled the trial

court to ‘implement the goal of full disclosure of relevant

_ information and at the same time afford the participants

protection against harmful side effects.' See Rhinehart v.

Seattle Times Co., 98 Wn.2d 226, 232, 654 P.2d 673 (1982).

Discretionary review is denied.

B. Discretionary Review of Venue Request and Affidavit

of Prejudice

Mr. Sakkarapope's next motion for discretionary

review asked this court to overturn the trial court's denial of

his venue change request and refusal to give effect to his

affidavit of prejudice. In Mr. Sakkarapope's view, the venue

change was connected to the affidavit of prejudice and

necessary because the judge had entered the adverse

discovery orders.

We review a venue decision and denial of an affidavit

of prejudice for an abuse of discretion. State v. Boot, 89 Wn.

App. 780, 786, 950 P.2d 964 (1998); In re Marriage of Farr,

87 Wn. App. 177, 188, 940 P.2d 679 (1997). An affidavit of

prejudice must be timely. RCW 4.12.050; State v. Waters, 93

Wn. App. 969, 974, 971 P.2d 538 (1999). To be timely, the

affidavit must be filed and called to the attention of the judge

before that judge has made any rulings involving discretion.

RCW 4.12.050. Here, the ex parte venue request was

8

procedurally unacceptable and lacked a legal basis. The

affidavit of prejudice was untimely because the trial court

had previously exercised its discretion in the discovery

rulings. Therefore, we deny discretionary review.

C. Motion to Strike Appellant's Amended Brief

On October 21, 2005, WSU filed a motion to strike

Mr. Sakkarapope's 'amended' brief that apparently attempts to

supplement his appellate brief. Mr. Sakkarapope responded

by filing an ‘Answer, Objection and Motion to Strike

Respondent's Motion and Counsel's Misconduct Re: Motion

to Strike Amended Brief,’ 'Objection and Amendment re:

Answer, Objection and Motion to Strike Respondent's

Motion and Counsel's Misconduct,' and 'Motion to Determine

Mootness re: Respondent's Motion to Strike Amended Brief.’

Mr. Sakkarapope basically argues no rule disallows this type

of pleading, so his brief should be allowed.

RAP 10.1(b) allows Mr. Sakkarapope to file an

appellate brief and a reply brief. See RAP 10.1(b). The rules

do not provide for a supplemental brief as filed by Mr.

Sakkarapope. See id) Mr. Sakkarapope's argument is not

well reasoned. Considering the validity of WSU's argument,

we grant WSU's Motion to Strike Amended Brief and deny

Mr. Sakkarapope's related motions.

D. Motions to Recall and Transfer Case

In May 2005, Mr. Sakkarapope moved to recall and

transfer this case to Division One based upon his

dissatisfaction with the administrative orders of our

commissioner, clerk, and Chief Judge. Our review of the

record shows he received all process due under the appellate

rules. He is not entitled to a transfer to another court simply

because he is dissatisfied with administrative rulings. The

Supreme Court has denied interlocutory discretionary review

of his concerns. The motions are denied.

E. Additional Motions

Mr. Sakkarapope has filed additional motions which

have been referred to this Panel for resolution. On June 22,

2005, Mr. Sakkarapope filed a motion objecting to the

9

consolidation of proceedings and to transfer the case to

Division One. On July 25, 2005, Mr. Sakkarapope filed a

motion ‘renewing’ his objections to the trial court's rulings,

essentially consisting of additional briefing on the substantive

issues in this case. These motions are untimely under the

briefing schedule in this case, disallowed under the appeilate

rules, and are otherwise without merit. These motions are

denied.

ANALYSIS

A. Summary Judgment for Lack of APA Jurisdiction

The issue is whether the court erred in concluding it

lacked jurisdiction to review Mr. Sakkarapope's APA claims

and summarily dismissing them at WSU's request.

Under the APA, we sit in the same position as the

trial court. Postema v. Pollution Control Hearings Bd., 142

Wn.2d 68, 76-77, 11 P.3d 726 (2000). An APA appeal is

determined on the agency record and should be affirmed

unless it is unconstitutional, outside the authority of the

agency, arbitrary and capricious, or taken by agency officials

not lawfully entitled to take such action. RCW

34.05.570(4)(c). The party asserting the invalidity of an

agency action has the burden of demonstrating invalidity.

RCW 34.05.570(1 )(a).

Summary judgment is appropriate when ‘the

pleadings, affidavits, depositions, and admissions on file

demonstrate there is no genuine issue of material fact and the

moving party is entitled to judgment as a matter of law.'

Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301

(1998); CR 56(c). 'An appellate court engages in the same

inquiry as the trial court when reviewing an order for

summary judgment.’ Id. We view the facts and reasonable

inferences from the facts in the light most favorable to the

nonmoving party. See Mountain Park Homeowners Ass'n v.

Tydings, 125 Wn.2d 337, 341, 883 P.2d 1383 (1994).

Questions of law are reviewed de novo. Id.

A petition to review a final APA order must be filed

with the court within 30 days after service. RCW

10

34.05.542(2). 'A petition for judicial review of agency action

other than the adoption of a rule or the entry of an order ts

not timely unless filed with the court . . . within thirty days

after the agency action.’ RCW 34.05.542(3). After 30 days,

the court lacks jurisdiction to hear an APA appeal. City of

Seattle v. Pub. Relations Comm'n, 116 Wn.2d 923, 927, 809

P.2d 1377 (1991). 'An administrative decision is ‘final’ for

purposes of judicial review {under the APA} when it denies

a right, imposes an obligation, or fixes a legal relationship

between the parties.’ Lewis County. v. Public Employ.

Relations Comm'n, 31 Wn. App. 853, 862, 644 P.2d 1231

(1982).

Mr. Sakkarapope was dismissed from the IIDP

doctoral program after failing a required entrance

examination. On February 1, 2002, WSU sent Mr.

Sakkarapope a letter affirming his dismissal, stating it

'represent{ed} the University's final decision in this matter.’

CAR at 273. Thus, WSU's action was final for purposes of

the APA on February 1, 2002. See Lewis County, 31 Wn.

App. at 862-63. Mr. Sakkarapope failed to petition for

judicial review until July 23, 2003. Therefore, the court

lacked jurisdiction to hear this claim.

Regarding WSU's administrative responses to his

FERPA requests for his educational file, WSU reviewed the

matter and issued a 'final decision in the matter' on November

6, 2002. CAR at 621. WSU expressly informed Mr.

Sakkarapope that he had no further appeal rights within

WSU, and he had 30 days to appeal the decision to Whitman

County Superior Court. Although Mr. Sakkarapope

unsuccessfully attempted to secure further rulings from the

Provost, the WSU Board of Regents, and even the Governor,

his argument lacks support. Moreover, the board clearly

declined his invitation for review by January 15, 2003 and

Mr. Sakkarapope did not seek judicial review until July 23,

2003, well beyond the 30-day limit allowed. Therefore, the

court lacked jurisdiction to hear that claim under the APA.

1]

On January 31, 2003, WSU _ terminated Mr.

Sakkarapope's enrollment in his master's degree program by

letter informing him he was ‘dropped’ from the graduate

program, and his spring enrollment had been 'terminated.'

CAR at 350. Again, Mr. Sakkarapope inaptly argues the

decision was not final because he refused to accept the

finality of that decision and continued to seek relief within

the university. A decision is final when it ‘denies a right,

imposes an obligation, or fixes a legal relationship between

the parties.’ Lewis County., 31 Wn. App. at 862. WSU's

actions were final when it denied Mr. Sakkarapope the

opportunity to continue his graduate degree on January 31,

2003. See Lewis County, 31 Wn. App. at 862. Therefore,

when Mr. Sakkarapope filed for judicial review July 23,

2003, the court lacked jurisdiction. The trial court did not

err. Because our decision is dispositive of the summary

judgment issues, we decline to address WSU's alternative

arguments or Mr. Sakkarapope’s remaining theories.

B. Public Disclosure Claims

The issue is whether the court erred in granting

summary judgment dismissal of Mr. Sakkarapope’s PDA

claim. The summary judgment standard of review applies.

Under RCW 42.17.340, a PDA action may be brought by

‘motion of any person having been denied an opportunity to

inspect or copy a public record by an agency, . . . to show

cause why it has refused to allow inspection or copying of a

specific record or class of records.’ RCW 42.17.340(1).

However, this procedure is not mandatory. Spokane

Research & Def. Fund v. City of Spokane, 155 Wn.2d 89, 94-

95, 117 P.3d 1117 (2005). Rather, the Civil Rules dictate

procedure in a PDA case. Id.

Here, Mr. Sakkarapope attempted to bring his PDA

claims before the court by appending his public disclosure

requests to his APA petition for judicial review. This is

insufficient to claim relief under the Civil Rules. See CR

8(a). Although Mr. Sakkarapope may have been able to cure

his defective pleading in his later filed motion to show cause,

12

the court appropriately declined to consider this tardy motion

because Mr. Sakkarapope failed to note it for hearing. Thus,

the court did not err in dismissing Mr. Sakkarapope’s PDA

claims as a matter of law. Moreover, the court dismissed the

PDA claims without prejudice, so Mr. Sakkarapope would

presumably still be able to pursue these claims.

Affirmed.

A majority of the panel has determined this opinion

will not be printed in the Washington Appellate Reports, but

it will be filed for public record pursuant to RCW 2.06.040.

s/ Brown, J.

WE CONCUR:

s/ Schultheis, J.

s/ Kurtz, J.

1 20 US.C. sec. 1232(g).

FILED

MAR 5 2004

SHIRLEY BAFUS

WHITMAN COUNTY CLERK

IN THE SUPERIOR COURT OF THE STATE OF

WASHINGTON

BENJAPON SAKKARAPOPE, | No. 03-2-00168-4

Petitioner, :

vs. ORDER GRANTING

STATE OF WASHINGTON, RESPONDENTS’

THE BOARD OF REGENTS, MOTION FOR

WASHINGTON STATE SUMMARY

UNIVERSITY, JUDGMENT

Respondents.

THIS MATTER came before the Honorable David

Frazier, Judge of the Whitman County Superior Court, on

Respondents’ motion for Summary Judgment. The matter

13

was heard February 6, 2004. The Petitioner, Benjapon

Sakkarapope, appeared pro se. Respondents State of

Washington, the Board of Regents, and Washington State

University were represented by Sheryl L. Gordon, Assistant

Attorney General. The Court reviewed the pleadings, heard

oral arguments from both parties, and considered the

following documents and evidence:

1. Petition for Review and attachments;

2. Respondents’ Motion for Summary Judgment and

Memorandum in Support of Respondents’ Motion for

Summary Judgment;

3. Declaration of Counsel in Support of Motion for

Summary Judgment and attachments;

4. Declarations of Richard Beckes, Robert C. Bates,

Karen M. Fisher, Mary Furnari, Howard Grimes, and

Kristen Pauli certifying the records;

5. The Certified Records transmitted to the Court on

September 22, 2003;

Discovery submitted; and

Responsive pleadings of Petitioner filed February 5,

2004 (stricken as per memorandum opinion).

FINDINGS OF FACT

Based on the above-listed pleadings, arguments,

documents and evidence, the Court makes and enters the

following Findings of Fact.

1. In July of 1999, Mr. Sakkarapope began trying to obtain a

Master of Science in Statistics (M.S.) degree at Washington

State University (WSU or University).

2. WSU Graduate School policy requires all students to

complete master’s degrees within six years of the earliest

credits used to satisfy the degree requirements.

3. Mr. Sakkarapope obtained the Graduate School’s

permission to count the credits he earned at WSU in 1994

toward his M.S. degree. Allowing the 1994 credits gave Mr.

Sakkarapope until the end of the spring semester to complete

his M.S. degree.

sO

4

4. Mr. Sakkarapope was aware of the reed to complete the

M.S. degree on time and he used that requirement to apply

for financial aid for the spring 2001 semester, stating in his

application that “This Spring 2001 semester is my last

semester to complete a master[sic] degree in statistics.”

5. Mr. Sakkarapope did not complete his M.S. degree by the

end of the spring 2001 semester. The department in which he

was studying extended the deadline to August 2002.

6. The Dean of the Graduate School gave Mr. Sakkarapope

permission to enroll for less than full-time (under-enroll) for

one semester, fall 2000.

7. Mr. Sakkarapope was not given permission to under-enroll

for any other semester.

8. Mr. Sakkarapope did not enroll enough credits to be full-

time for several semesters, including fall 2002.

9. In fall 2002, Dr. Howard Grimes, Dean of the Graduate

School, became aware that Mr. Sakkarapope was under-

enrolled and had not completed his M.S. degree on time.

10. Dr. Grimes had the authority to decide whether Mr.

Sakkarapope was allowed an extension of time complete his

M.S. degree requirements.

11. Mr. Sakkarapope’s advisor asked Dr. Grimes for

additional extension of time for Mr. Sakkarapope to complete

his M.S. degree requirements. Dr. Grimes determined that

Mr. Sakkarapope was not making adequate progress toward

his M.S. degree and was under-enrolled, and thus was in

violation of Graduate School policy.

12. On December 18, 2002, Dr. Grimes granted the request

for extension and set a new deadline for completion of

January 27, 2003. The new deadline set by Dr. Grimes was

reasonable. In setting the deadline, Dr. Grimes considered

Mr. Sakkarapope’s statement that he had been in Thailand on

family business for part of the fall semester and the amount

of work Mr. Sakkarapope must do to successfully complete

the M.S. program.

13. Mr. Sakkarapope had the opportunity to complete the

work necessary for the M.S. degree and graduate.

15

14. Dr. Grimes informed Mr. Sakkarapope of his academic

deficiencies. Mr. Sakkarapope had an opportunity to respond

to Dr. Grimes regarding his academic deficiencies. Mr.

Sakkarapope was timely informed of the deadline and

requirements to correct those deficiencies and complete his

M.S. program.

15. Dr. Grimes granted and set reasonable conditions and

requirements for the extension and communicated those to

Mr. Sakkarapope. Dr. Grimes required that by January 27,

2003, Mr. Sakkarapope was to complete his M.S. program (a

short paper), apply for graduation in the M.S. program, and

schedule his project defense. Mr. Sakkarapope only needed

to successfully complete these tasks to be eligible to graduate

and receive the M.S. degree.

16. Mr. Sakkarapope refused to do any of the remaining tasks

for completion of his M.S. degree. He wrote letters to Dr.

Grimes indicating he would not comply with the deadline,

and stating that he did not think Dr. Grimes had the authority

to set a deadline. However, Dr. Grimes, acting in his

capacity as Dean of the Graduate School, had the authority to

make this decision and did so according to Graduate School

policies and procedures.

17. On January 28, 2003, Mr. Sakkarapope had not

accomplished any of the remaining tasks to earn his MLS.

degree. Dr. Grimes then directed the Graduate School and

Registrar to dismiss Mr. Sakkarapope from the MS.

program. He was not enrolled in any other program at WSU,

and on January 31, 2003, WSU terminated his enrollment at

the University.

18. WSU’s dismissal of Mr. Sakkarapope from his MLS.

program was an academic dismissal.

19. Dr. Grimes used his academic expertise and experience to

make a determination in accordance with WSU policy that

Mr. Sakkarapope was unlikely to successfully complete the

M.S. program. Dr. Grimes made his decisions honestly, in

good faith, and with due consideration of the facts and

circumstances regarding Mr. Sakkarapope.

16

20. Mr. Sakkarapope presented no admissible evidence

demonstrating a genuine issue of material fact concerning

whether WSU breached his educational contract or whether

WSU deprived him of due process of law when it dismissed

him from the M.S. program.

21. WSU did not breach its educational contract with Mr.

Sakkarapope by dismissing him from the M.S. program when

he refused to complete the program after having been given

an opportunity to do so.

22. On March 24, 1999, the Graduate School approved Mr.

Sakkarapope’s petition to attempt to obtain an Individual

Interdisciplinary Doctoral Degree. This particular doctoral

program is housed in the Graduate School.

23. The doctoral program required a candidate to take and

pass a preliminary examination. On February 11, 2000, Mr.

Sakkarapope had completed and failed both the written and

oral portions of the preliminary examination.

24. Mr. Sakkarapope protested the outcome of the

examination and requested the Graduate School review it.

The Graduate School Dean, Dr. Karen DePauw, had the

matter investigated and reviewed by the faculty and a faculty

committee. Based on that investigation and information, she

decided to affirm Mr. Sakkarapope’s failure and dismissed

him from the doctoral program.

25. Mr. Sakkarapope requested the decision be reviewed by

then Interim Provost Dr. Ronald Hopkins, as provided in the

Graduate School’s policies and procedures. Dr. Hopkins

reviewed the matter and issued a final decision letter based

on his review. That decision letter was provided to Mr.

Sakkarapope on February 1, 2001 by mailing it to Mr.

Sakkarapope at his proper address. It is undisputed that Mr.

Sakkarapope timely received that letter. The letter

specifically advised. Mr. Sakkarapope that this decision

represented the University’s final decision.

26. Mr. Sakkarapope did not present admissible evidence or

authority that he did not have to file a Superior Court appeal

17

of a final agency decision within 30 days after he received

the decision.

27. Mr. Sakkarapope filed the Petition for Review in

Whitman County Superior Court of WSU’s action dismissing

him from his doctoral program more than 30 days after he

received the final agency decision mailed February 1, 2001.

Mr. Sakkarapope’s appeal was filed more than 30 days after

he received the University’s written rejections of his efforts

to have the decisions reviewed by others, including the Board

of Regents.

28. On March 14, 2002, at Mr. Sakkarapope’s request, the

Unviersity scheduled a Student Records Committee (SRC) to

review the completeness and accuracy of his educational

record that had been provided for his review under the

Family Educational Rights and Privacy Act, 20 U.S.C.

§1232g; 34 C.F.R. pt. 99 (FERPA). The SRC held a Brief

Adjudicative Proceeding on March 27, 2002, and reviewed

M. Sakakrapope’s records pursuant to WAC 504-21-040.

29. On April 5, 2002, the SRC issued an initial order in the

matter and mailed that order to Mr. Sakkarapope at his proper

address. It is undisputed that Mr. Sakkarapope timely

received that letter. In that order, the SRC determined that

Mr. Sakkarapope had been provided his entire educational

record, except for some of his records from a Department of

Agricultural and Resources Economics file. The SRC

appended those records to its order. The decision letter stated

that “with the inclusions in his letter, the University has fully

complied with your request for the release of [your]

educational records under FERPA.” The decision also

contained an express statement that Mr. Sakakrapope could

come in and review his records. It also clearly informed him

that under WAC 504-21-080, he had the right to submit a

written view of the records to the Provost.

30. On September 23, 2002, Mr. Sakkarapope asked for

review of the decision by the current Provost, Dr. Robert

Bates. Dr. Bates reviewed the records and the initial order,

and issued a final decision letter that was mailed to Mr.

18

Sakkarapope at his proper address on November 6, 2002. It

was undisputed that Mr. Sakkrapope timely received that

letter. The November 6, 2002, final decision letter affirmed

that SRC’s initial decision and clearly informed Mr.

Sakkarapope that he could review his education record at the

Graduate School and the Department of Agriculture and

Resources Economics. The letter also contained an express

notice that this was the University’s final decision, and a

notice of Mr. Sakkarapope’s right to appeal WSU’s final

decision to the Superior Court within 30 days in accordance

with RCW 34.05.514 and .542.

31. Mr. Sakkarapope’s Petition for Review of that decision

was filed with the Whitman County Superior Court on July

23, 2003, more than 30 days after the received the decision

letter.

32. Mr. Sakkarapope, wishing to initiate a public records

dispute, included in public records dispute in his Petition for

Review of the agency’s actions, requesting relief under the

Administrative Procedures Act, RCW 34.05.

33. Mr. WSU is prejudiced by the public records dispute

before the Court as an administrative appeal because an

appeal of an agency action is based on the record, and WSU

is unable to present new evidence, including witness of

affidavits in defense of its actions and responses to Mr.

Sakkarapope’s public records requests.

CONCLUSION OF LAW

Based on the findings above, the Court makes and

entered the following Conclusions of Law:

1. No genuine issue of material fact exists in this action and

WSU is entitled to a judgment as a matter of law.

2. The Court can review only final agency actions or orders

under the Administrative Appeals Act. The only final agency

actions or decisions set forth in the Petition for Review are

the appeal of Mr. Sakkarapope’s dismissal from his doctoral

program, the appeal of Mr. Sakkarapope’s dismissal from his

M.S. program, and the order entered November 6, 2002 by

19

the agency regarding the accuracy and completeness of the

educational records provided to Mr. Sakkarapope.

3. This Court lack subject matter jurisdiction over the appeal

of the November 6, 2002, final decision following a Brief

Adjudicative Proceeding held March 27, 2002, to determine

the accuracy and completeness of the educational records as

provided to his pursuant to the Family Educational Rights

and Privacy Act, 20 U.S.C. §1232g; 34 C.F.R. pt. 99

(FERPA), aad WAC 504-21-040. Mr. Sakkarapope filed his

judicial appeal beyond the statute of limitations set forth in

RCW 34.05.

4. This Court lacks subject matter jurisdiction over the

February 1, 2001, final agency action dismissing Mr.

Sakkarapope on academic grounds from his doctoral

program. Mr. Sakkarapope filed his judicial appeal of that

agency action beyond the statute of limitation set forth in

RCW 34.05.

5. WSU’s decision dismissing Mr. Sakkarapope from his

M.S. program on academic grounds was not arbitrary and

capricious.

6. WSU afforded Mr. Sakkarapope all process due before

dismissing him on academic grounds from his M.S. program.

7. Mr. Sakkarapope did not meet his burden of demonstrating

the invalidity of WSU’s actions dismissing him from the

M.S. program. WSU’s academic dismissal of Mr.

Sakkarapope from the M.S. program should be affirmed.

8. Mr. Sakkarapope’s dispute regarding WSU’s responses to

his public records requests should be filed pursuant to RCW

42.17.340(1). It is therefore not properly before this Court

and should be dismissed without prejudice.

ORDER

IT IS ORDERED that:

1. Respondents’ Motion for Summary Judgment is granted;

2. The Petitioner’s appeal of his dismissal from his

Individual Interdisciplinary Doctoral Degree program on

February 1, 2001, is dismissed for lack of subject matter

jurisdiction.

20

The Petitioner’s appeal of the order of November 6, 2002,

determining that his educational record as provided to

him under FERPA was accurate and complete is

dismissed for lack of subject matter jurisdiction;

The Respondent’s action of January 28, 2003, dismissing

Mr. Sakkarapope from his Master of Science in Statistics

program on academic grounds is affirmed; and

The Petitioner’s causes of action against WSU regarding

the Public Records Act are dismissed without prejudice

as they are not properly before the Court.

This is a final decision on the issues that were raised i”

the Summary Judgment hearing. This court will hear no

further motions or applications from either party on these

issues. Any objection, dispute or disagreement with this

order must be addressed to the appellate court(s), not this

trial court’.

DATED this 5" of March, 2004

s/ David Frazier

Honorable David Frazier

* The item #6 of the order was originally in hand-written by the trial court

as additional to the proposed order after Sakkarapope’s objections to the

proposed findings of facts and conclusion of law were heard at the

presentment hearing of March 5, 2004.

21

FILED

FEB 17 2004

SHIRLEY BAFUS

WHITMAN COUNTY CLERK

IN THE SUPERIOR COURT OF THE STATE OF

WASHINGTON

BENJAPON SAKKARAPOPE, | No. 03-2-00168-4

Petitioner,

VS. MEMORANDUM

STATE OF WASHINGTON, DECISION ON

THE BOARD OF REGENTS, MOTION FOR

WASHINGTON STATE SUMMARY

UNIVERSITY, JUDGMENT

Respondents.

THIS MATTER came before the court on February 6,

2004 for a hearing on respondents’ motion for summary

judgment. Respondents (hereafter referred to as “WSU”)

appeared through Sheryl L. Gordon, Assistant Attorney

General: petitioner (hereafter referred to as “Sakkarapope”)

appeared pro se. At the conclusion of Argument, the court

took its decision under advisement for further review and

consideration. Based on that review, the court hereby enters

the following decision.

Procedural Background

The following procedural background is relevant to

the present motion for summary judgment:

1. On July 23, 2003, Sakkarapope filed a Petition for

Review seeking review of numerous actions, proceedings,

and decisions made by officials at WSU _ concerning

Sakkarapope and his status as a graduate student at the

university. The petition also sought review of WSU’s

responses to several public records requests made by

Sakkarapope, together with an award of monetary

compensation for personal injuries and damages to

Sakkarapope’s reputation.

22

2. Sakkarapope’s Petition for Review specifically

alleges that it is brought pursuant to RCW 34.05.510 et. seq.

and RCW 42.17.340. The petition consists of 19 pages,

together with 10 separate attachments consisting of a total of

approximately 150 pages. The various attachments itemize

and challenge the legality of numerous proceedings,

decisions and actions taken by WSU. Attachment I to the

petition, for instance, makes reference to 35 actions or

decisions made by WSU officials, Attachment II relates to 7

decisions and actions of the WSU Student Records

Committee, Attachment III pertains to 16 public records

requests made by Sakkarapope, and Attachment [V lists

WSU’s denials of his public record requests.

3. As illustrated in Attachment V and VI to the

Petition for Review, which are essentially timelines

Sakkarapope prepared of activities and decisions involved in

his appeal, almost all alleged action took place before June

15, 2003.

4. The casefile in this action presently consists of 17

separate court files that fill one large filing cabinet drawer in

the office of the Whitman County Clerk. Most of these

contain what WSU purports to be the certified record of

underlying agency proceedings, although a large portion of

the file pertains to discovery requests propounded by

Sakkarapope and WSUs’ responses thereto. This discovery

relates to Sakkarapope’s position that the certified record

filed by WSU in this action is not accurate and compietc, and

involves his attempts to amend and supplement this record.

5. WSU’s motion for summary judgment alleges that

Sakkarapope’s Petition for Review only addresses three final

actions by WSU that would be subject to appeal under th

Washington Administrative Procedure Act. RCW Ch wer

34.05. According to WSU, these three final decisions were

the following:

a. WSU’s decision to dismiss Sakkarapope on

academic grounds from _ the Individual

23

Interdisciplinary Degree Doctoral Program (IIDP),

citing page 2 of the Petition for Review, line 7-14.

b. WSU’s decision to dismiss Sakkarapope on

academic grounds from his Masters of Sciences in

Statistics program, citing page 3 of the Petition for

Review, lines 1-3.

c. WSU’s decision that Sakkarapope’s academic

records is accurate pursuant to Family Educational

Right and Privacy Act, 20 U.S.C. §1232g; 34 C.F.R.

Part 99 (FERPA), and WAC 504-21-040, citing page

2 of the Petition for Review, lines 7-14.

6. In its summary judgment motion, WSU asks this

court to dismiss the IIDP and FERPA challenges as untimely

because Sakkarapope failed to file his appeal of those

decisions within the statute of limitations or, in the

alternative, to affirm WSU’s_ decision dismissing

Sakkarapope from his IIDP and his Master of Science in

Statistics programs on merits and as a matter of law. In

addition, WSU seeks dismissal of Sakkarapope’s appeal if

WSU’s responses to his public records requests on the

grounds that such review is beyond the scope and authority

of the Superior Court in the context of an administrative

appeal under RCW Chapter 34.05.

7. Sakkarapope did not file his response to WSUs’

summary judgment motion until February 5, 2004, the day

immediately before the scheduled summary judgment

hearing. That response is entitled Memorandum In Support of

Petitioner's Defense. On February 6, 2004, he filed a

document entitled Index of Certified Records.

8. In his response to WSU’s summary judgment

motion, Sakkarapope claims that his Petition for Review was

timely filed, as he attempted to exhaust his administrative

remedies by cumulatively appealing decisions that were

made to various organizational levels at WSU, culminating in

an eventual attempt in January of 2003 to have his concerns

heard at a meeting of the WSU Board of Regents. When the

Board of Regents refused to consider his case, Sakkarapope

24

filed a petition with the Governor in May of 2003. He also

asserts, among other things, that he is not appealing or

seeking this court’s review of whether WSU fully complied

with his request for the release of education records under

FERPA, that the certified record filed by WSU in this matter

is not complete, and that he has separately and properly

joined his public records request issue under RCW 42.17.340

with his APA appeal of WSU’s administrative decisions and

actions.

Discussion

The court has spent considerable time reviewing the

lengthy casefile in this matter, and in reviewing the pleading

relating to the present motion. In all candor, the court finds

Sakkarapope’s original Petition for Review, his

Memorandum in Support of Petitioner’s Defense, and many

of his other pleadings poorly written, unreasonably lengthy,

confusing, and difficult to follow and understand. As stated

earlier, the memorandum in Support of Petitioner’s Defense,

which is Sakkarapope’s primary response to WSU’s motion

for summary judgment, was filed on day before the summary

judgment motion was scheduled for hearing. As such, it is

untimely under CR 56(c), and must therefore be stricken by

the court in its consideration of the issues presented.

Specifically, CR56(c) requires the party opposing summary

judgment to file and serve responsive pleadings and other

documentation “not later than 11 calendar days before the

hearing.” As a litigant appearing pro se, Sakkarapope is not

entitled to special treatment, but is bound by the same rules

of procedure and substantive law that apply to a litigant that

is represented by counsel. State v. Fritz, 21 Wash. App. 354

(1978); Bonney Lake v. Delany, 22 Wash. App. 193 (1978);

Bly v. Henry, 28 Wn. App. 469 (1980). Even if

Sakkarapope’s response were not stricken, however, the

court’s review of that document discloses that it presents

little evidence, if any, that would raise a genuine issue of fact

material to the issues presented, and no valid legal authority

25

that would support a denial of WSU’s motion for summary

judgment.

RCW 34.05.542(2) provides that a Petition for

Review of an agency order must be file with the court within

thirty days after service of the final order. Similarly, a

Petition for Review of an agency action must be filed within

thirty days after the agency action. RCW 34.05.542(3).

These time requirements are jurisdictional—if the time limits

are not met, the court lacks subject matter jurisdiction to hear

the appeal, and the petition must be dismissed. Tarabochia v.

Town of Gig Harbor, 28 Wn.App. 119 (1981).

Despite Sakkarapope’s arguments to the contrary,

WSU’s final decision to terminate him from the IIDP was

made and communicated to Sakkarapope on February 1,

2001. On that date, WSU Provost, Dr. Ronald Hopkins, sent

Sakkarapope a letter affirming Dean DePauw’s decision to

dismiss Sakkarapope from the doctorate program (CR 273).

The letter specifically advised Sakkarapope that this decision

represented the University’s final decision. Under RCW

34.05.542, therefore, Sakkarapope had thirty days from

February 1, 2001 to file his Petition for Review with the

Superior Court. His failure to file such a petition from

approximately 28 months after this date deprives the court of

jurisdiction to review WSU’s decision. The fact that

Sakkarapope disagreed with the provost and felt he was

entitled to repeated reconsideration and review within various

levels of WSU’s organizational structure, including the

Board of Regents, is without merit. Sakkarapope has

presented no valid legal authority to support a right to such

further review, or to consideration by the Governor’s Office,

and even if such right were found to exist, Sakkarapope’s

appeal is still untimely. In every instance where

Sakkarapope sought further administrative review of his

termination from the IIDP, WSU’s written rejections of these

efforts was received well over 30 days from the date of the

Petition for Review was filed.

26

Despite statements in the Petition for Review to he

contrary, Sakkarapope now asserts that he is not seeking

judicial review of WSU’s decisions relative to his

educational records under FERPA. Even if he had south such

review, the record undisputedly establishes that WSU’s final

decision on the accuracy and completeness of Sakkarapope’s

educational records was issued on November 6, 2002 (CR

620-21), and that the Petition for Review was not filed for

some eight month thereafter. Like the IIDP appeal, such

lengthy delay in seeking judicial review of this decision

deprives the court of jurisdiction to hear and determine this

case. The court will enter an order pursuant to both

Sakkarapope’s request and to WSU’s motion for summary

judgment, dismissing the FERPA questions as an issue for

this court’s review.

In his Petition for Review, Sakkarapope not only

sought review of administrative decisions made by WSU

under 34.05.510 et. seq., but he claimed that WSU violated

the Open Public Records Act, and he sought relief for this

violation pursuant to RCW 42.17.340. As WSU argues,

however, an appeal under the APA its a review on the record,

whereas an Open Public Records Act dispute is an original

action initiated by an order to show cause. An Open Public

Records Act Challenge is based not just on the agency

record, but also upon the presentation of new evidence.

RCW 34.05.558; RCW 42.17.340(1). Sakkarapope’s issues

pertaining to his public records requests are therefore not

properly before the court, and are subject to summary

dismissal without prejudice.

WSU additionally requests summary judgment

affirming its decision dismissing Sakkarapope from his

Master of Science in Statistics program. In support of this

request, WSU refers the court to the administrative record

that it filed and certified in this case. WSU argues that this

record supports a finding that Sakkarapope refused to

complete his Masters Degree after given a reasonable

opportunity to do so, and that it was this refusal that led to his

27

dismissal from the Masters program. Once the moving party

sustains the initial burden in a summary judgment proceeding

of coming forward with evidence that the case involves no

genuine issue of material fact, the burden then shifts to the

nonmoving party to show that a genuine issue of material fact

does exist. Fischer-McReynolds v. Quasim, 101 Wn. App.

801 (2000). If the nonmoving party cannot demonstrate that

factual issues exist, summary judgment is appropriate. Id.

The nonmoving party cannot simply rely on argument and

the pleadings, but must come forward with admissible

evidence. CR 56(c). Despite statements in the pleadings and

arguments to the contrary, Sakkarapope has presented no

admissible evidence to support his positions, and he as failed

to raise a genuine issue of fact as to his claim that WSU

breached his educational contract or that WSU deprived him

of due process of law. This is particularly true given the fact

that the court must strike his responsive pleading under CR

56(c). As a result. WSU is entitled to summary judgment

affirming Sakkarapope’s dismissal from his Master’s

program.

Decision and Order

Based on the foregoing discussion, it is hereby

Ordered as follows:

1. WSU’s motion for summary judgment dismissing

that portion of Sakkarapope’s Petition for Review seeking

judicial review of WSU’s decision to terminate Sakkarapope

from the if DP will be granted.

2. That portion of Sakkarapope’s Petition for Review

arguably seeking review of WSU’s decision relating to the

accuracy amd completeness of his educational records under

FERPA will be dismissed.

3. WSU’s motion for summary judgment dismissing

that portion of Sakkarapope’s Petition for Review seeking

review of WSU decisions under the Open Public Records Act

will be granted. Such dismissal will be without prejudice to

Sakkarapope’s right, if any, to bring an independent action

under RCW 42.17.340.

28

4. WSU’s motion for summary judgment affirming its

decision dismissing Sakkarapope from his Master of Science

in Statistics program will be granted.

5. Counsel for WSU shall prepare an order in

accordance with CR 56 that is consistent with this decision

and, if necessary, shall note the dame for presentment.

DATED: February 17, 2004.

s/David Frazier

JUDGE

FILED IN THE

U.S. DISTRICT COURT

Eastern District of Washington

JUN 30 2006

JAMES R. LARSEN, CLERK

DEPUTY

SPOKANE. WASHINGTON

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BENJAPON SAKKARAPOPE, | No. 04-35643

Plaintiff-Appellant,

v.

BOARD OF REGENTS,

WASHINGTON STATE

UNIVERSITY; ET AL.,

Defendants-Appellees.

D.C. No. CV-04-00074-JLQ

JUDGMENT

Appeal from the United States District Court FOR

THE Eastern District of Washington (Spokane).

This cause came on to be heard on the Transcript of

the Record from the United States District Court for the

Eastern District of Washington (Spokane) and was duly

submitted.

On consideration whereof, it is now here ordered and

adjudged by this Court, that the judgment of the said District

Court in this cause be, and hereby is

AFFIRMED.

Filed and entered 02,'22/06

A TRUE COPY

CATHY A. CATTERSON

Clerk of Court

ATTEST

JUN 27 2006

s/ Gabriela Van Allen

By Deputy Clerk

30

FILED

FEB 22 2006

CATHY A. CATTERSON, CLERK

U.S. COURT OF APPEALS

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BENJAPON SAKKARAPOPE, | No. 04-35643

Plaintiff-Appellant,

Vv. D.C. No. CV-04-00074-JLQ

BOARD OF REGENTS,

WASHINGTON STATE MEMORANDUM

UNIVERSITY; ET AL.,

Defendants-Appellees.

Appeal from the United States District Court

For the Eastern District of Washington

Justin L. Quackenbush, District Judge, Presiding

Submitted February 13, 2006"

Before: FERNANDEZ, RYMER, and BYBEE,

Circuit Judges.

Benjapon Sakkarapope appeals pro se from the

district court’s judgment dismissing his 42 U.S.C. §1983

action alleging violation of the Family Educational Rights

and Privacy Act (“FERPA”), 20 U.S.C. §1232g. We have

jurisdiction under 28 U.S.C. 1291. After de novo review,

Thompson v. City of Los Angeles, 885 F.2d 1439, 1442 (9"

Cir. 1989), we affirm.

The district court properly dismissed Sakkarapope’s

claims against defendant Board of Regents because the Board

is not a “person” within the meaning of 42 U.S.C. §1983. See

id. at 1443. Moreover, even if the State of Washington has

" This disposition is not appropriate for publication and may not be cited

to or by the courts of this circuit except as provided by 9" Cir. R. 36-3.

** The panel unanimously finds this case suitable for decision without oral

argument. See Fed. R. App. P. 34(a)(2).

31

waived its sovereign immunity to 42 U.S.C. §1983 actions in

its own courts, it has not done so in the federal courts. See

McConnell v. Critchlow, 661 F.2d 116, 117 (9" Cir. 1981).

The district also properly dismissed Sakkarapope’s

claims against the Secretary of Education because FERPA

does not create a private right of action. See Gonzaga

University v. Doe, 536 U.S. 273, 287 (2002).

Sakkarapope’s remaining contentions are

unpersuasive.

Sakkarapope’s pending motions are denied.

Appellee’s motion to strike is granted.

AFFIRMED

32

FILED IN THE

U.S. DISTRICT COURT

Eastern District of Washington

JUN 22 2004

JAMES R. LARSEN, CLERK

DEPUTY

SPOKANE. WASHINGTON

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

BENJAPON SAKKARAPOPE, JUDGMENT IN A CIVIL

Plaintiff, CASE

Vv.

THE BOARD OF REGENTS, CASE NUMBER: CV-04-

WSJ, et al., 00074-JLQ

Defendants.

Decision by Court. This action came to hearing the Court.

The issues have been heard and a decision has been rendered.

IT IS ORDERED AND ADJUDGED Washington State

University’s motion for Summary Judgment is GRANTED.

Plaintiff's Complaint and the claims therein are DISMISSED

WITH PREJUDICE.

June 22, 2004 JAMES R. LARSEN

Date Clerk

s/ Renea Ferrante

(By) Deputy Clerk

33

FILED IN THE

U.S. DISTRICT COURT

Eastern District of Washington

JUN 22 2004

JAMES R. LARSEN, CLERK

DEPUTY

SPOKANE. WASHINGTON

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

BENJAPON SAKKARAPOPE, | No. CV-04-00074-JLQ

Plaintiff,

v. MEMORANDUM

THE BOARD OF REGENTS, OPINION AND ORDER

WASHINGTON STATE GRANTING

UNIVERSITY, and DEFENDANT’S

THE SECRETARY, THE MOTIONS FOR

UNITED STATE SUMMARY

DEPARTMENT OF JUDGMENT AND

EDUCATION, DIRECTING

Defendants. JUDGMENT OF

DISMISSAL

BEFORE THE COURT is Defendant WSU’s Motion

for Summary Judgment (Ct. Rec. 16) and the issues raised in

this court’s prior Order to Show Cause (Ct. Rec. 21) and the

subsequent briefing of the parties (Ct. Rec. 36, 38, 44). A

teleconference was held regarding the Order to Show on May

25, 2004. The Motion for Summary Judgment was taken

under submission without oral argument on June 7, 2004.

Plaintiff, Benjapon Sakkarapope, is proceeding pro se in

this matter. Defendant, the Board of Regents of Washington

State University (“WSU”) is represented by Assistant

Attorney General Holly Vance. Defendant, the Secretary of

Education, is represented by Assistant United States Attorney

Rolf H. Tangvald.

BACKGROUND

Plaintiff is a national of Thailand and former WSU

student. Plaintiff was a candidate for a Ph.D program in

34

Agricultural Economics and a Masters degree student in

Statistics. Plaintiff failed the preliminary qualifying exam for

the Ph.D. program in January of 2000, and was notified in

April of 2000 that he would be dropped from the program.

While appealing his dismissal from the Ph.D. program

through the administrative process at WSU, Plaintiff

continued to be enrolled as a Masters degree students in

Statistics. Plaintiff failed to complete the requirements for the

Master degree program in. a timely manner and was

disenrolled in February 2003.

Plaintiff has contested his dismissal over the last four

years by sending numerous letters to WSU and involving the

Washington Attorney General’s Office in his public records

request. He also has allegedly filed a petition with the

Secretary of the U.S. Department of Education to enforce

compliance under the Family Education Rights and Privacy

Act (“FERPA”). The petition was denied. Plaintiff also filed

a petition for review of WSU’s actions in the Superior Court

of Whitman County on July 23, 2003. (Ct. Rec. 6). A hearing

for summary judgment was held in that case on February 6,

2004. On February 17, 2004, the Superior Court entered a

“Memorandum Decision On Motion For Summary

Judgment”. (Ct. Rec. 19, Deft. Ex. B). The memorandum

decision stated that summary judgment “will be granted” as

to WSU’s decision to dismiss Plaintiff from the Ph.D. and

Masters programs. (Id). It also stated that the portion of the

petition seeking, review of WSU’s actions under FERPA was

untimely and “will be dismissed”. (Id). The decision then

directed WSU to prepare and order in accordance with the

court’s decision.

Apparently while WSU was preparing this order,

Plaintiff decided to file a lawsuit in federal court on February

24, 2004. (Ct. Rec. 1). Plaintiff now brings a 42 U.S.C.

§1983 action alleging violation of his federal right under

FERPA and that disenrollment from the Masters in statistics

program at WSU violated his due process rights. (Ct. Rec. 1).

Plaintiff then filed a “Motion for Supplemental Jurisdiction”

35

on March 4, 2004, in which he represented that “the state

court has not yet entered any ruling in the case” (Ct. Rec. 5),

and apparently sought this court to stay the state court

proceeding and “take”_the case from the state court. A final

decision was entered by the Superior Court of Whitman

County on March 5, 2004. (Ct. Rec. 19, Deft. Ex. C). The

final decision dismissed Plaintiff's FERPA claim for lack of

subject matter jurisdiction and found that WSU’s decision to

dismiss Plaintiff from the Masters in statistics program on

academic grounds was not arbitrary and capricious and that

Plaintiff was afforded ‘all process due”. (Id). Plaintiff filed a

notice of appeal to the state of Washington Court of Appeals

on March 5, 2004. (Ct. Rec. 19, Deft. Ex. D).

I. Rooker-Feldman

This court issued an Order to Show Cause believing

that allocation of the Rooker-Feldman doctrine may result in

an absence of subject matter jurisdiction and dismissal of

Plaintiffs action. After reviewing the parties briefing,

holding a hearing and consultingy recent Ninth Circuit

caselaw, the court finds that the Rooker-Feldman doctrine

does not preclude subject-matter jurisdiction in this Case.

The Rooker-Feldman doctrine; so named fot theicases

of Rooker v. Fidelity Trust Co., 263 'U.S..49%8 (1923) and

District of Columbia Court of Appeals.v. Feldman, 460 U.S.

464 (1983), prohibits a losing plaintiff in state court from

bring a suit in federal court asserting as legal wrongs the

allegedly erroneous legal rulings of the state court and

seeking to set aside the judgment of the court. Such a suit is

a “forbidden de facto appeal”. Noel v. Hall, 341 F.3d 1148,

1156 (9" Cir. 2003). Although it could reasonably be argued

that Plaintiff's federal suit is a de facto appeals of his adverse

state court ruling, recent Ninth Circuit decisions dictate that a

district court use caution when determining whether the

doctrine applies. The Noel court observed it is

“commonplace” for district courts to complain that the

“doctrine is difficult to apply”. 341 F.3d at 1162. The Noel

court then stated, “where the federal plaintiff does not

36

complain of a legal injury caused by a state court judgment,

but rather of a legal injury caused by an adverse party,

Rooker-Feldman does not bar jurisdiction. “ /d. at 1163.

More recently in Maldonado v. Harris, F.3d

cg" Cir. June 4, 2004), the Ninth Circuit, relying on Noel,

reversed the district court’s determination that the doctrine

applied and cautioned that although a suit not barred by

Rooker-Feldman may nonetheless be claimed-precluded,

claim preclusion and Rooker-Feldman are distinct inquiries.

Id. at ___. The Maldonado court noted that even though

plaintiff's complaint sought relief from the injunction entered

by the state court, Rooker-Feldman did not apply. The court

stated that in order for Rooker-Feldman to apply, “a plaintiff

must seek not only to set aside a state court judgment; he or

she must also allege a legal error by the state court as the

basis for relief.” Jd. at___. These recent Ninth Circuit cases

leave the definite impression that the doctrine is to be applied

to dismiss an action only sparingly. Although Sakkarapope

may now raise the same claims he made in the state court, he

does not specifically seek to vacate the state court judgment

nor does he specifically allege a legal error by the state court

as the basis for his relief in federal court. Therefore, the

Rooker-Feldman doctrine does not apply.

Il. Eleventh Amendment Immunity

In its summary judgment motion, Defendant WSU

argues that it is an “arm of the state” entitled to immunity

from suit under the Eleventh Amendment. Additionally as an

“arm of the state’ WSU argues that the Washington State

University Board of Regents is not a “person” within the

meaning of 42 U.S.C. §1983, and is therefore not subject to

liability. The court finds merit with both arguments.

The Eleventh Amendment provides: “The Judicial

power of the United States shall not be construed to extend to

anv 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 States.” U.S. Const.

amend XI, and represents, “a real limitation on a federal

37

court’s federal-question jurisdiction,” /daho v. Coeur d'Alene

Tribe, 521 U.S. 261, 270(1997). Generally a state created and

funded university is considered an instrumentality, or arm, of

the state and is entitled to Eleventh Amendment immunity.

See Rounds v. Oregon State Bd. Of Higher Education., 166

F.3d 1032 (9" Cir. 1999)(finding University of Oregon was

“arm of the State” entitled to immunity); Goodisman v. Lytle,

724 F.2d 818 (9" Cir. 1984)(University of Washington is an

arm of the state).

WSU is similarly created, funded, and controlled by

the State and is therefore considered an arm of the state and

entitled to immunity under the Eleventh Amendment to the

same extent as the University of Washington. See Spaulding

v. University of Wash, 740 F.2d 686, 692 (9 Cir. ©

1984)(overruled on other grounds); Hontz v. State, 105 Wash.

2d 302 (1986)(University of Washington is state agency).

Additionally, the state and its agencies are not persons

subject to suit under 42 U.S.C. §1983. Will v. Michigan Dept.

of State Police, 491 U.S. 58, 65 (1989); Thompson v. City of

Los Angeles, 885 F.2d 1439, 1443 (9" Cir. 1989)(dismissal

of civil rights lawsuit was warranted against University of

California Board of Regents because is not a “person” within

the meaning of §1983).

lil. Collateral Estoppel/Res Judicata

WSU also contends that the doctrine of res judicata

prohibits Plaintiff from bringing claims that were raised, or

could have been raised, in the prior adjudication. WSU

contends that Plaintiff's FERPA and Due Process claims are

both precluded under the res judicata doctrine by reason of

the prior state court action. Alternatively, WSU contends

that the doctrine of collateral estoppel applies to the issue of

the alleged wrongful dismissal from the Masters statistics

program.

When the former judgment is a state court judgment,

as is the case here, this court must apply the res judicata and

collateral estoppel rules of the state that rendered the

underlying judgment. Migra v. Warren City School Dist. Bd.

38

Of Ed., 465 U.S. 75 (1984). Federal courts must give the

same preclusive effect to a state court judgment as another

court of that state would give. See 28 U.S.C. §1738; Palomer

Mobilehome Park Ass'n v. City of San Marcos, 989 F.2d 362,

364 (9" Cir. 1993). Under Washington law, res judicata bars

relitigation of claims that were or should have been decided

among the parties in an earlier proceeding. See Loveridge v.

Fred Meyer, Inc., 887 P.2d 898, 900 (Wash. 1995) Res

judicata occurs when a prior judgment has a concurrence of

identity in four respects with a subsequent action. There

must be identity of: 1) subject matter; 2) cause of action; 3)

persons and parties; and 4) the quality of the persons for or

against whom the claim is made. Rains v. State, 100 Wash.

2d 660, 665 (1983). Collateral estoppel applies if: i) the

issues decided in the prior adjudication is identical with the

one presented in the current action; 2) there was a final

judgment on the merits; 3) the party against whom the plea is

asserted was a party or in privity to the prior adjudication;

and 4) the application of the doctrine will not work an

injustice on the party against whom the doctrine is to be

applied. /d. at 664.

WSU and Mr. Sakkarapope were both parties to the

prior state court action. Mr. Sakkarapope alleged then, as he

does now in federal court, that WSU wrongfully dismissed

him from the Masters in statistics program without Due

Process and raised the issues of his FERPA request for

release of education records in his Petition for Review. Mr.

Sakkarapope later represented to the state court that he was

not seeking review of WSU’s FERPA compliance and the

state court ordered that Plaintiff's claims “arguably seeking

review of WSU’s decisions relating to the accuracy and

completeness of his educational records under FERPA will

be dismissed.” (Feb 17, 2004 Memorandum Decision, Ct.

Rec. 19, Ex. B). The state court entered a final judgment,

which Plaintiff appealed. The res judicata and collateral

estoppel doctrines apply to state trial court judgments even if

an appeal is pending. City of Des Moines v. $81,231, 943

39

P.2d 669, 674-76 (Wash. App. 1997)(“‘a judgment becomes

final for res judicata purposes at the beginning, not the end of

the appellate process” and “Similarly, with collateral

estoppel, a party is precluded from relitigating issues

previously determined while an appeal as to those issues is

pending.”). The same rule applies in federal court. Tripati v.

G.L.Henman, 857 F.2d 1366, 1367 (9" Cir. 1988)(“To deny

preclusion in these circumstances would lead to an absurd

result: Litigants would be able to refile identical cases while

appeals are pending, enmeshing their opponents and the court

system in tangles of duplicative litigation.”).

Application of the res judicata doctrine to this matter

is appropriate to prevent Sakkarapope from enmeshing the

Defendants and this court in the tangles of duplicative

litigation. Additionally, Plaintiff is collaterally estopped

from bringing a §1983 action against WSU alleging his

constitutional right to Due Process was violated when he was

dismissed from the Masters in statistics program. Both WSU

and Mr. Sakkarapope were parties to the state court action

and the identical issues were raised by Sakkarapope against

WSU. The state court entered a final judgment deciding the

issue and application of the collateral estoppel doctrine will

not work an injustice, therefore all four elements for the

application of collateral estoppel are met. Plaintiff had a full

and fair opportunity to argue his claim in state court, with the

court stating it had “spent considerable time reviewing the

lengthy casefile” and that Plaintiffs pleadings were

“unreasonably lengthy, confusing, and difficult to follow”.

This court concurs that Plaintiff has a tendency to submit

overlength pleadings and voluminous exhibits. The

Plaintiff's §1983 claim arising from his dismissal from the

Masters and Doctoral programs are barred by the adverse

decision of the Washington state superior court.

IV. FERPA Ciaim against Secretary of Education

With the disenrollment from the graduate program

claims against WSU dismissed on the basis of res

judicata/collateral estoppel, or alternatively on Eleventh

40

Amendment immunity, the only remaining claim is the

FERPA claim against the Secretary of Education. The

Secretary contends that Plaintiff does not have a private right

of action to bring a 42 U.S.C. §1983 suit based in violation of

FERPA. This contention is correct. The United States

Supreme Court has clearly held that the provisions of FERPA

create no personal rights to enforce under 42 U.S.C. §1983.

Gonzaga University v. Doe, 536 U.S. 273, 276 (2002).

Plaintiff contends that the statutory subsection at issues in

Gonzaga, §1232g(b), is not the same as the subsection he

asserts his claim under, §1232g(a), and therefore Gonzaga is

not controlling. However, this court does not read Gonzaga

so narrowly, nor do subsequent Circuit decisions support

Plaintiff's argument. See Desyllas v. Bernstine, 351 F.3d

934, 941 n.2 (9" Cir. 2003)(“The statutory scheme[20 U.S.C.

§1232g(b)(1)] does not create a private right of action for a

student to sue under 42 U.S.C. §1983.”); Taylor v. Vermont

Department of Education, 313 F.3d 768, 786 (2™° Cir.

2002)(“we find that Gonzaga compels the conclusion that

FERPA’s record-access provisions, §1232f(a)(1), do not

create a personal right enforceable under §1983”); Missouri

Child Care Ass'n v. Cross, 294 F.3d 1034, 1040 (9" Cir.

2002)(reading Gonzaga to hold that FERPA does not create

any private right to enforcement); United States v. Miami

Univ., 294 F.3d. 797, 809 (6" Cir. 2002)(reading Gonzaga to

hold FERPA does not creates that an individual may enforce

through §1983).

Plaintiff may not assert a §1983 against the Secretary,

or anyone else for that matter, based on the alleged violation

of FERPA provisions.

CONCLUSION

Although application of the Rooker-Feldman doctrine

is arguably appropriate in this matter, the court has

determined that it does have subject matter jurisdiction. The

court has made a separate inquiry and determined that

Plaintiff's claims against WSU are barred by the doctrines of

res judicata and collateral estoppel. Additionally, this court

41

finds that WSU is immune from suit under the Eleventh

Amendment to the extent Plaintiff seeks monetary damages.

WSU, as an arm of the state or state agency, is also not a

“person” for purposes of §1983 and accordingly cannot be

sued for damages under §1983. Plaintiff does not have a

private right of action to bring a 42 U.S.C. §1983 suit based

on violation of FERPA.

Accordingly, and for all the foregoing reasons,

IT IS HEREBY ORDERED:

1. WSU’s Motion fer Summary Judgment is

GRANTED. (Ct. Rec. 16).

2. Plaintiff's Complaint and the claims therein are

dismissed with prejudice. (Ct. Rec. 1)

IT IS SO ORDERED. The Clerk is hereby directed

to file this Order, enter Judgment in favor of Defendants

dismissing the Complaint and claims therein with prejudice,

furnish copies to Plaintiff and counsel, and close this file.

DATED this 21* day of June, 2004.

s/ Justin L. Quackenbush

JUSTIN L. QUACKENBUSH

SENIOR UNITED STATES DISTRICT JUDGE

42

FILED

DEC 13 2006

CATHY A. CATTERSON, CLERK

U.S. COURT OF APPEALS

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BENJAPON SAKKARAPOPE, | No. 05-75413

Petitioner,

V. Agency No. A72-571-155

ALBERTO R. GONZALES,

Attorney General, MEMORANDUM

Respondent.

On Petition for Review of an Order of the Board of

Immigration Appeals

Submitted December 4, 2006"

Before: GODDWIN, LEAVY, and FISHER,

Circuit Judges.

Benjapon Sakkarapope, a native and citizen of

Thailand, petitions pro se for review of the Board of

Immigration Appeals’ order dismissing his appeal from an

immigration judge’s (IJ”) decision findings Sakkarapope

removable. To the extent we have jurisdiction, it is conferred

by 8 U.S.C. § 1252. We review for substantial evidence an

IJ’s findings of fact. See Smolniakova v. Gonzales, 422F .3d

1037, 1044 (9" Cir. 2005),see also 8 U.S.C. § 1252(b)(4)(B).

We review de novo claims of due process violations. See

Sanchez-Cruz v. INS, 255 F.3d 775, 779 9" Cir. 2001). We

dismiss in part and deny in part the petition for review.

* This disposition is not appropriate for publication and may not be cited

to or by the courts of this circuit except as provided by 9" Cir. R. 36-3.

"* The panel unanimously finds this case suitable for decision without oral

argument. See Fed. R. App. P. 34(a)(2).

43

Sakkarapope was admitted as a nonimmigrant

student, and his status continued as he “pursufed] a full

course of study at an educational institution.” 8 C.F.R.

214.2(f)(5)(i). At his removal hearing in 2004, Sakkarapope

testified that he had not been enrolled at Washington State

University since 2003 and that he was not currently enrolled

as a student anywhere. Accordingly, the IJ’s finding that

Sakkarapope was no longer a student is supported by

substantial evidence, and Sakkarapope was removable

pursuant to 8. U.S.C. § 1227(a)(1)(C\(i) for failing to

maintain his status.

Sakkarapope’s conterition that he was denied due

process in his removal proceedings is not supported by the

record. See Colmenar v. INS, 210 F.3d 967, 971 cg" Cir.

2000) (due process claims require showing that proceedings

were “so fundamentally unfair that the alien was prevented

from reasonably presenting his case”).

We lack jurisdiction to review the agency’s decision

to commence proceedings. See 8 U.S.C. § 1252(g) (‘no court

shal! have jurisdiction to hear any cause of claim by or on

behalf of any alien from the decision or action by the

Attorney General to commence proceedings, adjudicate

cases, or execute removal orders against any alien under this

chapter”).

Sakkarapope’s remaining contentions lack merit.

We grant Sakkarapope’s motion file a late reply brief.

The Clerk shall file the reply brief received on April 28,

2006. 7

PETITION FOR REVIEW DISMISSED in part;

DENIED in part. .

44

U.S. Department of Justice

Executive Office for Immigration Review

Falls Church, Virginia 22041

Decision of the Board of Immigration Appeals

File: A72 571 155- Seattle Date: Sept 12, 2005

In re: BENJAPON SAKKARAPOPE

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Pro se

ON BEHALF OF DHS: Gregory E. Fehlings

Deputy Chief Counsel

CHARGE:

Notice: See 237(a)(1)(C)(i), I&N Act [8 U.S.C.

§1227(a)(1)(C)(@)]-Nonimmigrant-violated conditions

of status

APPLICATION: Termination of proceedings; cancellation of

removal’

ORDER:

PERCURIAM. The appeal is dismissed. The

Immigration Judge’s decision is adopted and affirmed as no

clear error has been shown with respect to the Immigration

Judge’s factual findings. See Matter of Burbano, 20 1&N

Dec. 872, 874 (BIA 1994); see also, 8 C.F.R. §

1003.1(d)(3)(i).

The central issue here concerns whether the

respondent properly maintained his “F-1” student-visa status.

See section 101(a)(15)(F) of the Immigration and Nationality

Act, 8 U.S.C. §1101(a)(15)(F). The respondent maintains

that Washington State University wrongfully disenrolled him,

* The respondent’s appellate suggestion, the Convention Against Torture

(“CAT”) prevents his removai is not a claim properly before us, as the

respondent did not apply for this below. Moreover, he has failed to show

he is newly prime facie eligible for CAT relief, as he merely asserts that

he was “tortured” by United States citizen in their alleged refusal to allow

him to continue his course of study. See Respondent’s Brief at 47. See 8

C.F.R. §§1208.16, 1208.18.

45

but he has conceded to the fact that his dis-enrollment

actually took place in January 2003 (Tr. At 41-43). No clear

error has been show with the factual finding, supported by

ample evidence, that the respondent was no longer enrolled

in a course of study. Thus, the Immigration Judge properly

determined that the respondent failed to maintain the

conditions of his status. Why an alien failed maintain status is

generally irrelevant with respect to removability. See Matter

of Teberen, 15 I&N Dec, 689, 690 (BIA 1976). Thus, we are

not concerned with the respondent’s collateral legal challenge

to the university’s action or the propriety of the action itself’

Accordingly, the Immigration Judge properly determined that

the respondent is removable as charged.’ See section

240(c)(3)(4) of the Act.

As the respondent has no qualifying relative for

purpose of cancellation of removal under section 240A(b) of

the Act, the Immigration Judge properly pretermitted his

application for this relief.

The _respondent’s _constitutional/fair _hearing-

arguments are meritless. We have no jurisdiction to review

the decision of the Department of Homeland Security (the

“DHS,” formally the Immigration and Nationalization

Service) to exercise its prosecutorial discretion to institute

removal proceedings. See, e.g., Matter of Bahta, 22 I&N

Dec. 1381 (BIA 2000). Neither this Board nor Immigration

Judge has authority to equitably estop the DHS from

undertaking a lawful course of action that it is empowered to

pursue by statute and regulation. Matter of Hernandez-

Puente, 20 I&N Dec. 335, 338 (BIA 1991) The respondent

failed to assert any Fifth Amendment right not to testify at

the hearing, thus he may not do so now. His testimony may

properly be considered. See Matter of Edwards, 20 1&N

* The respondent has reportedly lost a legal challenge to his dis-

enrollment at the state court trial level, even though it has been indicated

he appealed that decision.

* The respondent has not provided actual evidence that the Notice to

Appeal (Form 1-862, Exh. 1) is somehow defective.

46

Dec. 191, 196, n.4 (BIA 1990) Moreover, his relevant

testimony concerning his visa status doe not implicate

criminal prosecution and so it does not relate to self-

incrimination. See Wall v. INS, 722 F.2d 1442 (9" Cir. 1984).

Notwithstanding the respondent’s appellate contention to the

contrary, he was given an adequate opportunity to cross-

examine witnesses at his merits hearing. See Tr. At 83-99,

101-111. At the close of the witnesses’ respective testimony,

the respondent did not request to have additional questions

asked, nor has the respondent indicated on appeal what

additional information-materially related to his removal-he

would seek. We find that the respondent was provided a full

and fair hearing. See section 240(b)(4)(B) of the Act; see

also Matter of Santos, 19 1&N Dec. 105 (BIA 1984). We

deny the respondent’s motions for additional development or

to strike the DHS’s appellate brief, as these requests are

meritless.

While we find no error in the Immigration Judge’s

grant of voluntary departure to the respondent, he has

objected on appeal to being provided that form of relief. See

Respondent’s Briei at 20, 22, 44-45. We construe this as a

withdrawal, with prejudice, of any request for voluntary

departure.

FURTHER ORDER: The Immigration Judge’s order

removing the respondent to Thailand is affirmed, except for

the portion which granted the respondent voluntary

departure.

s/ Neil P. Miller

FOR THE BOARD

47

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

IMMIGRATION COURT

SEATTLE, WASHINGTON

In re:

BENJAPON SAKKARAPOPE,

Respondent.

Date: April 23, 2004

File Number: A72-571-155

IN REMOVAL PROCEEDINGS

Category: Alien admitted to U.S., but subject to removal.

Charge: 237(a)(1)(C)(i), I&N Act —Failed to maintain or

comply with conditions of nonimmigrant status under which

admitted.

Application: Termination of Proceedings and Cancellation of

Removal under INA § 240A(b)(2)

ON BEHALF OF RESPONDENT ON BEHALF OF DHS:

Benjapon Sakkardpope, Gregory E. Fehlings

Pro se Assistant Chief Counsel, ICE

430 NE Oak #2 1000 Second Avenue, Suite

Pullman, WA 99163 2900

Seattle, WA 98104

WRITTEN DECISION AND ORDER OF THE

IMMIGRATION JUDGE

ac und

This case began on September 16, 2003, when the

Immigration and Customs Enforcement, on behalf of the

Department of Homeland Security (Government), placed the

Respondent in proceedings by filing the Notice to Appear.

Exhibit 1. The Respondent is a 45 year old married male, a

native and citizen of Thailand.

At a master calendar hearing on December 15, 2003,

the Respondent was advised of his right to have an attorney

48

represent him. He declined a continuance for that purpose

and chose to represent himself. He was advised of his rights

to examine the government’s evidence, object to evidence,

provide his own evidence. He was further advised he could

present witness and cross examine any witnesses presented

by the government.

The Respondent admitted all allegations except that

he denied allegation 4, i.e., he denied he “did not carry a full

course of study from Spring 2003, semester to the present,

beginning on or about January 10, 2003.” The Respondent

also denied the charge of removability.

The Exhibits of the records of proceedings include:

Exhibit | Notice to Appear issued September 16, 2003

Exhibit 2 Records Deportadle/Inadmissible Alien (1-213)

Exhibit 3 Notice of Filing Certified Records and attachments

as described in Index of Records

Exhibit 4 Deposition Upon Written Questions

Exhibit 5 Deposition Upon Written Questions

Exhibit 6 Application for Issuance of Subopena, Taking

Deposition and Setting a Prehearing Conference

Exhibit 7 Not used

Exhibit 8 Defense and Motion for Cancellation of Removal

and Adjustment of Status

Exhibit 9 Application for Cancellation of Removal and

Adjustment of Status (EOIR 42B)

Exhibit 10 Table of Contents of Document Filed

Exhibit 11 Order dated April 6, 2004

Exhibit 12 Government’s Prehearing Statement

Exhibit 13 Objections to Government Prehearing Statement

and Evidences

Exhibit 14 Certification of Records and attachments as

described in Index of Records

The Respondent did not apply for, nor did no appear

eligible for adjustment of status, asylum, withholding of

removal, or relief under the Convention Against Torture.

Instead, the Respondent contends he is in compliance with

the conditions of his non-immigrant status. The other form of

49

relief he is seeking is cancellation of removal under

240A(b)(2) as a person abused by a spouse or parent who is a

lawful permanent resident or United States citizen. He was

also considered for voluntary departure.

S of Evidence

The Government called two witness in this case and

the Respondent called one additional witness. The

Government’s first witness was the Respondent, Benjapon

Sakkarapope.

The Respondent testified he is a native and citizen of

Thailand. He admitted that he has never been a citizen or

national of the United States. He possesses a valid Thai

passport.

The Respondent entered the United States more than

one time. One of those times was on January 16, 2002. He

entered at Seattle, Washington. When he came to the United

States in 2002, he entered as a student, with an F-1 visa. He

came to attend school at Washington State University in

Pullman, Washington. The Respondent explained that his last

entry into the United States occurred in October 22. He left

for Thailand on September 11, 2002, and stayed about a

month. When he returned, he returned using his F-1 student

visa.

He testified that in Thailand, prior to coming to the

United States, he had obtained a bachelor’s degree and two

masters’ degrees from three different Thai universities. He

was awarded his bachelor’s degree from Chiang Mai

University in 1981. His first master’s degree was received at

Kasertsart University in 1986. His second master’s degree

was awarded by Silpakorn University two or three years

later, in 1989.

The Respondent testified that he first came to the

United States in 1991 as an exchange scholar with a J visa.

He returned to the United States in 1992 as a student with the

F-1 visa. He attended Washington State University, but had

problems there. When he first arrived ‘ie was enrolled in an

50

American Intensive English program. He was in that

program for one semester. This program does not lead to a

degree.

He was enrolled in the department of business

administration at Washington State University between 1992

and 1995. He testified that he was forced to leave that

program and enrolled in a different program. An office mate,

Greg Brack, made allegations against him that the

Respondent planned to make a bomb. Brack said he

witnesses the Respondent making a threat to bomb a campus

building. Police picked up the Respondent and held him for

three or four hours. He asked for a lawyer and one was

provided. The attorney’s last name was Robinson and he

practices in Pullman, Washington. He did not remember his

first name or his office location. This attorney is now the

court commissioner. The Respondent contends he never

went to court or was charged with planning to make a bomb.

As a result of the bomb threat incident, he had to

change his program. The Respondent testified he is still in

the Ph.D program. He transferred to another program, 1.e.,

economics. Business administration and economics are

located in the same building. Greg Brack said he threatened

to bomb Todd Hall, which is the building where the business

administration and economics department are located. After

this incident, they withheld his registration. He then testified

that he transferred to an economics program. It was not clear

how switching to an economics program solved the bomb

threat issue.

The Respondent was asked if he ever attended any

schools other than Washington State University. He stated

he took a correspondence course in either 1995 or 1996. This

course was offered through a correspondence school, the

Southern California University for Professional Studies. He

obtained a Ph.D. in Business Administration through this

school. He obtained the degree by correspondence. He

believes the school is certified by the State of California. He

is not sure whether it has any national accreditation.

51

The Respondent enrolled in the economics program at

~ Washington State University in 1995 and obtained a master’s

degree in economics in 1997.

The Respondent denied he had been accused of

stalking a woman. He was not aware of any no-contact

orders or protection orders against him. He testified that the

police advised him not to contact faculty members. The

attorney advised him to agree and solve the problem through

university channels.

After he got his economics master’s degree in 1997,

he enrolled in another program. At that time, he applied to a

Ph.D. program in agricultural economics. He has not

obtained a Ph.D. The chairman who admitted him to the

program retired the same summer. The acting chair did not

want to admit him to, the program. The department chair

wanted the Respondent to take the exams to enter the

program. There were two exams but he only passed on

exam. The chair told him to pass one or both. After the

department chair retired that summer, Paul Barkley was the

acting chair. They sent him a memo and he talked to

somebody. He forced the Respondent to leave the program

the first semester. He took the qualifying exam that first year

of the program. He did not pass the exams.

When asked if he is currently enrolled in a program at

Washington State University, he responded they will not

allow him to enroll. He received a letter dated January 31,

2003, from Dean Howard Grimes. This is part of Exhibit 12,

page 4. He believes this letter is invalid. He says Dean

Grimes does not have authority to drop him from the

program. He says the department advisor has to recommend

that he be dropped. He did not receive anything from the

department advisor. The advisor had to make a

recommendation to the department and then the department

recommends to Dean Grimes to drop him.

The Respondent claimed to have proof that his

advisor did not recommend him be disenrolled. He referred

to Exhibit 8, Attachment 11, page 16. It says “Ben” (the

52

Respondent” passed the six year limit for completing his

degree. The Respondent stated that is wrong, there is no time

limit. From the hand writing, the author is Mr. Rob

Cassleman, the International Student advisor. He is the

student advisor for every international student. The

Respondent doe not have a_ specific advisor. The

Respondent’s advisor in economics was Hao Zhang. He is

the chair for the master’s program in statistics. He has emails

from his advisor.

When he says “appeal”, that refers to his appeal for

the Ph.D. Program. The last appeal is on February 2003 to

the Board of Regents. He has been out of the program since

2003. He was dropped, effective January 10, 2003. He

registered and paid tuition. He was dropped according to the

letter dated January 21, 2003 and it was retroactive to

January 10, 2003. The Respondent stated that is the question

in the court right now.

He filed a lawsuit in state court because he has been

dis-enrolled. He has not been allowed to enroll since January

2003. He is complaining about that. He filed a lawsuit in

Superior Court of Washington for Whitman County. Exhibit

12, page 6. The Superior Court dismissed his lawsuit on

March 5, 2004. He has taken an appeal of this order. On

page 7 of Exhibit 12, it states Washington State University

Graduate School requires all students to complete master’s

degree within six years of the earliest credits used to satisfied

the degree requirements. In 2003, he was pursuing the

master’s degree in Statistics. He does not have to take any

course anymore. He was auditing classes.

He is not currently attending school anywhere. He is

not employed anywhere. His wife is supporting him. She is

a Thai citizen. She is not a United States citizen or is she a

Lawful permanent resident.

Testimony of Howard grimes

53

The witness, Howard Grimes, is the dean of the

Graduate School at Washington State University. He is dean

of all the graduate programs and the professional programs.

He was referred to his letter dated January 31, 2003.

The Respondent earlier characterized this letter as one which

dis-enrolls him from the Washington State University. The

Respondent acknowledged the witness has the authority to

dis-enroll him but that the dean is required to receive a

recommendation from his advisor. Dean Grimes agreed that

the letter notified the Respondent he was dis-enrolled at the

university. He is not required to obtain a recommendation

from the Respondent’s advisor.

The Respondent also contends that there is mo

requirement that a program be completed within six years.

Dean Grimes states there is a university requirement that a

master’s degree program be completed within six years of the

first credits taken toward the degree. The Respondent was

enrolled in a master of science statistics program. At the

‘time he was disenrolled from the statistics program, he was

not entitled to pursuer any other courses of study at the

university. He stated the Respondent started in 1993 as a

PhD in business administration. He was not making progress

in that progrSam so he transferred to another program. The

Respondent failed his qualifying exam and was given a

second opportunity to take the exam. The witness testified

the Respondent is a nice guy and the faculty tried to keep

finding ways to work with him. The graduate school placed

him in the interdisciplinary program. He took the exam in

February 2002. He also miserably failed to pass that exam.

It was a unanimous decision by the faculty, which is

practically unheard of.

The witness said the Respondent then started a series

of appeals. These appeals go before a faculty panel. The

Respondent lost his appeals. Students have another second

line of appeals. An independent faculty panel is put together

and these are faculty members who do not know the student.

54

This second independent faculty panel also denied the

Respondent’s appeals.

Regarding the length of time the Respondent was in

the program, the Graduate School has 3,000 students so they

sometimes do not notice when a student is there beyond the

time. However, the Respondent presented himself regularly

with various questions. His academic folder kept appearing,

and it was during one of those times it was noticed that he

was over the time. He was also under-enrolled. Students are

required to carry a minimum number of hours. International

students are required to carry a minimum of ten credit hours

in order to maintain their status. The Respondent was

carrying less than ten hours. He was notified that he had

exceeded the time and also that he was under-enrolled, i.,e.,

taking too few credit hours. He was dis-enrolled in the fall of

2002. The Respondent was given a rather extraordinary

extension. This was this warning to be successful. The

witness said that all the Respondent’s course work had been

done for years. There was nothing to be gained from him

being in non-content courses.

He was dis-enrolled in 2002 and there was an appeal.

The Dean granted the appeal and extended it beyond that

semester. When the Respondent did not finish his course

work by the date set, he received his final dis-enrollment,

effective January 10, 2003. So, in 2002, he had both

exceeded the six year limit for obtaining his degree in

statistics, and he was taking less than the minimum number

of credits for maintaining enrollment.

There is also a letter dated July 21, 2003, from the

witness. It states that the Respondent has exhausted every

appeal available to him. It states finally that the Respondent

is not a student at Washington State University and there is

no further appeal process for him.

The Respondent asked the witness if he intentionally

issued the memoranda on November 25, 2002, December 18,

2002 and January 31, 2003. The witness answered yes. In

answer to the Respondent’s question if the witness issued

55

these memoranda in retaliation for the Respondent’s appeals,

the witness gave a resounding no.

Testimony of Mary Furnari

The witness, Mary Furnari, is Associate Director,

International Student Advisor. The Respondent asked her

questions listed in his Deposition Upon Written Questions.

Exhibit 5, page 7 through 9. She was asked about the bases

for her statements in a June 9, 2003, email to Daniel C.

Hanson. Ms. Furnari’s email statement were based upon the

fact that the Respondent was no longer enrolled in the

graduate program at Washington State University and no

longer eligible to continue at Washington State University.

She had a number of questions about the new procedures

which were being introduced as a result of the SEVIS

program. She stated she provided the Respondent with copies

of his records as required by the Public Records Act. She

indicated that approximately 200 SEVIS ID were created

without the students requesting them. The school had been

given a strict deadline for having all international students in

the database and they were trying to comply with that

deadline. Therefore, they created SEVIS records for some

students who had not submitted requests.

Statement of the Respondent

The Respondent was asked if he wished to make a

statement. He said he has a complicate story. He asked that

the Court look to his pleadings rather than an oral statement’.

The Respondent was asked questions regarding his

ability to voluntarily depart the United States and his

willingness to do so if he is ordered to leave the United

States. He equivocated, at first, then agreed that he would

* At the beginning of the hearing, I asked the Respondent if anyone

helped him in preparing the pleadings or the application in this case. He

was adamant that he prepared all the pleadings and application himself

and that no one helped him. I note that the pleadings in this case appear

to be the work of a person with some legal training.

56

obey the Court’s order when his immigration appeals have

been exhausted. The Respondent was given the warnings

regarding a failure to voluntary depart by the date set in a

final order. He stated he understood that he would no longer

be eligible for voluntary departure, cancellation of removal,

adjustment of status or change of status if he failed to

voluntarily depart by the date set in the final order.

Analysis of Law and Lact

The Respondent was admitted to the United States as

a non-immigrant under a visa program designed for foreign

students. His status was designated F-1. The pertinent

definition of non-immigrant is found at Section

101(a)(15)(F). That section states an alien is not an

immigrant who has

...a residence in a foreign country which he has no

intention of abandoning, who is a bona fide student

qualified to pursue a full course of study and who

seeks to enter the United States temporarily and

solely for the purpose of pursuing such a course of

study consistent with section 214(1)° at an established

college, university,...or other academic institution or

in a language training program in the United States,

particularly designated by him and approved by the

Attorney General...

Every non-immigrant must establish that he is

admissible to the United States, or that any ground of

inadmissibility has been waived. 8 C.F.R. § 214.1(a)(3). The

alien must have a valid passport and a valid visa. The alien

must agree to abide by the terms and conditions of his

admission and must depart the United States at the expir<tion

* Footnote 141 at Section 214(m) indicates there were previously two

sections, each lettered as (1). The now-lettered Subsection 214(m) is the

provision dealing with restrictions on foreign students attending certain

types of schools and is applicable here, notwithstanding the above-

mentioned reference to the contrary.

57

of the authorized period or upon abandonment of his

authorized non-immigrant status. 8 C.F.R. § 214.1(a)(3).

The requirements for status as a non-immigrant

student are set forth in 8 C.F.R. § 212.2(1). The alien must

have a SEVIS (Student and Exchange Visitor Information

System) form I-20 in his own name issued by an approved

school. He must also have documentary evidence of financial

support.

The alien’s F-1 status continues during the time he is

pursing a full course of study at an approved institution. The

alien is considered to be maintaining status if he is making

normal progress toward completing a course of study. 8

C.F.R. § 214(£)(5). A reduced course load may be authorized

by the designated school official (DSO) for academic

difficulties or for medical conditions.

An F-1 student who is admitted for duration of status

is not required to apply for an extension of stay as long as the

student is maintaining status and making normal progress

toward completing his educational objective. 8 C.F.R. §

214.2(f)(7). A student who is maintaining status and making

normal progress, but who is unable to complete the objective

by the program end date on the Form I-20, must apply for an

extension prior to the end date. /d. See also, Matter of Mehta,

14 I&N Dec. 451 (BIA 1973). eo

The Respondent in this case attempted to pursue

degree programs in three or four areas: business

administration, economics, agricultural economics and

Statistics. | He obtained one master’s degree but was

unsuccessful qualifying for the PhD program thereafter. He

enrolled in a master’s program in statistics and he was not

making normal progress. He was under-enrolled and he

testified that he sometimes audited course for the purpose of

maintaining immigration status.

All the Respondent needed to do to maintain his

student status was pursue a legitimate academic course load

and make normal progress. He failed to do so. He is not

now a Student in any school in the United States. He has

58

exhausted his administrative appeals. He filed am appeal to

the Superior Court of Washington and that appeal was

dismissed on summary judgment. The Respondent has taken

an appeal from that decision to the Washington Court of

Appeals. In addition, he has filed an action in ‘the U.S.

District Court against the Board of Regents, Washington

State University and the Secretary of U.S. Department of

Education. This Respondent has found a new way to remain

in the United States without being a student and that is to be a

litigant. His collateral attacks on the actions of the university

do not change the fact that the Respondent has failed to make

normal progress toward a degree and he is out of status.

Despite the Respondent’s shotgun approach, there is a

final agency decision regarding this student status. The

Respondent requested a stay of the Superior Court decision

while he pursued his appeals and this stay was denied.

Exhibit 14, page 11. He is not enrolled in Washington State

University and not entitled to be a student there.

Conclusion

Based upon the evidence presented, I find

removability has been established by clear and convincing

evidence. The Respondent is not eligible for cancellation of

removal as the battered spouse or child of a lawful permanent

residence of United States citizen. Neither his spouse nor his

parents are residents or citizens of the United States. In fact,

they live in Thailand, not in the United States.

The only other application made by the Respondent is

for voluntary departure. It appears that voluntary departure is

the only relief for which he is eligible. He meets the

requirements as set forth in Section 240B(b) of the I&N Act

and that relief will be granted.

Therefore, the following orders shall be entered:

ORDER

It IS ORDERED that the Respondent’s motion to

terminate is herby denied.

59

IT IS FURTHER ORDRED that the Respondent’s

application for cancellation of removal as a battered spouse

or child is pretermitted.

IT IS FURTHER ORDRED that the Respondent be

granted the privilege of voluntarily departing the United

States, without expense to the government, on or before June

22, 2004. This grant of voluntary departure is conditioned

upon the Respondent’s depositing with the Department of

Homeland Security within five business days of this Court’s

decision the sum of $500 or a bond in the amount of $500 to

secure his voluntary departure.

IT IS FURTHER ORDRED that if the Respondent

should not timely makes such a deposit or should otherwise

fail to obey this Court’s order to depart the United States

voluntarily on or before June 22, 2004, the privilege of

voluntary departure shall be withdrawn, without further

notice of proceedings, and the Respondent shall be removed

from the United States to Thailand on the charges contained

in the Notice to Appear.

IT IS FURTHER ORDRED that if the Respondent

should not depart the United States voluntarily on or before

June 22, 2004, he shall be subject to a civil penalty of not less

than $1,000 nor more than $5,000, and will be ineligible for a

period of ten years for any further relief under Sections

240A, 240B, 245, 248 and 249 of the Immigration and

Nationality Act, i.e., he will be ineligible for voluntary

departure, cancellation of removal, adjustment of status,

change of non-immigrant classification or recordation of

admission of permanent residence.

DATE: April 23, 2004.

s/ Victoria Young

VICTORIA YOUNG

U.S. Immigration Judge

60

FILED

FEB | 2005

SUPREME COURT OF

WASHINGTON

THE SUPREME COURT OF WASHINGTON

BENJAPON SAKKARAPOPE, ORDER

Petitioner,

V. No. 76027-6

STATE OF WASHINGTON, C/A No. 22708-1-III,

THE BOARD OF REGENTS, 22881-7-I] & 22732-4-Hl

WASHINGTON STATE (consolidated)

UNIVERSITY, Whitman County

Respondents. No. 03-2-00168-4

Department I of the Court, composed of Chief Justice

Alexander and Justices C. Johnson, Sanders, Chambers and

Fairhurst, considered this matter at its February 1, 2005,

Motion Calendar and unanimously agreed that the following

order be entered. ;

IT IS ORDERED:

That the Petitioner’s Motion to Modify the

Commissioner’s Ruling is denied.

DATED at Olympia, Washington this Ist day of

February, 2005.

For the Court

s/ Gerry L. Alexander

CHIEF JUSTICE

61

FILED

NOV 23 2004

SUPREME COURT OF

WASHINGTON

THE SUPREME COURT OF WASHINGTON

BENJAPON SAKKARAPOPE,

Petitioner, No. 76027-6

v.

RULING DENYING

STATE OF WASHINGTON, EXTENSION OF TIME

THE BOARD OF REGENTS, ;

WASHINGTON STATE

UNIVERSITY,

Respondents. af

Benjapon Sakkarapope sought judicial review of his

academic dismissal first from a doctoral program and then

from a master of science program at Washington State

University. The superior court denied relief by an order

entered March 5, 2004. Mr. Sakkarapope has appealed that

order to the Court of Appeals. Meanwhile, both the trial court

and the Court of Appeals have denied a series of various-

styled requests by Mr. Sakkarapope for relief pending a

decision on that appeal. Mr. Sakkarapope now moved for

discretionary review of an August 20, 2004, Court of Appeals

order addressing and denying such a request. Because the

Deputy Clerk advised Mr. Sakkarapope that the motion for

discretionary review was not timely filed, Mr. Sakkarapope

also moves for an extension of time. In addition, he moves to

strike the University’s answer to his motion for discretionary

review.

* The court’s order in part denied Mr. Sakkarapope’s motion to modify a

May 7, 2004, commissioner’s ruling. That ruling in turn declined to

disturb a superior court order dated March 19, 2004, denying Mr.

Sakkarapope’s motion to “stay enforcement” of that court’s decision. Mr.

Sakkarapope complaints about each of these decisions.

62

In his motion for an extension of time, Mr.

Sakkarapope first urges that his motion for discretionary

review was not in fact untimely. He is mistaken. The Court

of Appeals order was not subject to reconsideration, so his

“motion for clarification” did not operate to extend the time

to move for discretionary review. RAP 12.4(a);13.5(a). And

it is the date of receipt by the court, not the date of mailing,

that determines timeliness. RAP 18.6(c). Mr. Sakkarapope

thus need an extension of time. This means he must show

extraordinary circumstances and that an extension is

necessary to prevent a gross miscarriage of justice. RAP

18.8(b).

Mr. Sakkarapope does not make the requisite

showing. As to the extraordinary circumstances requirement,

either a misunderstanding of applicable court rules nor an

unintended failure to comply with those rules qualifies as an

unusual or unavoidable event. As to the miscarriage of justice

requirement, it 1s not clear how a “stay of enforcement” of

the trial court’s decision would have any practical effect on

Mr. Sakkarapope’s situation. What Mr. Sakkarapope really

seems to want is some sort of interim injunctive relief. But

he has not established a sufficient ground for either the Court

of Appeals or this court to afford such relief pending review

under RAP 8.3.

The motion for extension of time is accordingly

denied. This makes it unnecessary to separately address Mr.

Sakkarapope’s motion for discretionary review or his motion

to strike the answer to that motion.

s/ Geoffrey Crooks

. COMMSSIONER

November 23, 2004

63

FILED oat

AUG 20 2004 © «

COURT OF APPEALS

DIVISION III

STATE OF WASHINGTON

COURT OF APPEALS, DIVISION III, STATE OF

WASHINGTON

BENJAPON SAKKARAPOPE, | No. 22708-1-III cons/w

Appellant, | No. 22881-7-III and

v. No. 22732-4-II]

STATE OF WASHINGTON, ORDER GRANTING

THE BOARD OF REGENTS, | MOTION FOR EXTENSION

WASHINGTON STATE OF TIME TO FILE

UNIVERSITY, RESPONSE AND ORDER

Respondents. | DENYING MOTION TO

MODIFY COMISSIONER’S

RULING

THE COURT having considered appellant’s motion

to modify the Commissioner’s Ruling under date of Mat 7,

2004, motion for injunctive relief and declaratory judgment,

motion to consolidate and amend motion to modify. include

motion for injunctive relief and declaratory judgment arid

reply, and the respondent’s answer thereto and request for an

extension to file a response, NOW THEREFORE,

IT IS ORDERED, the motion for extension of time to

file a response is granted and the motion to modify the

Commissioner’s Ruling of May 7, 2004 is hereby denied.

IT IS FURHTER ORDERED the motion for

injunctive relief and declaratory judgment, motion to

consolidate and amend motion to modify to include motion

for injunctive relief and declaratory judgment are hereby

denied.

DATED: August 20, 2004

FOR THE COURT:

s/ Kenneth H. Kato

KENNETH H. KATO

CHIEF JUDGE

64

FILED

MAY 7 2004

COURT OF APPEALS

DIVISION III

STATE OF WASHINGTON

COURT OF APPEALS, DIVISION III, STATE OF

WASHINGTON

BENJAPON SAKKARAPOPE, COMMISSIONER’S

Appellant, RULING

Vv.

No. 22708-1-II] cons/w

STATE OF WASHINGTON, 22881-7-III and

THE BOARD OF REGENTS, 22732-4-Ill

WASHINGTON STATE

UNIVERSITY,

Respondents.

Having considered Mr. Sakkarapope’s motion for stay

of enforcement of the trial court decision, motion to strike the

declaration, motion to strike Respondent’s pleading, the

State’s counter motion to strike a declaration, the replies

thereto to these various motions, the record, file, and oral

argument of Mr. Sakkarapope and counsel for the State, and

being of the opinion that Mr. Sakkarapope has failed tocite

any authority to support his motion, nor does he meet the

criteria of RAP 8.1(b)(3) for a stay of enforcement of the trial

court order being appealed; now, therefore,

IT IS ORDERED, the motion for stay is denied. In

light of this decision, no action need to taken on the other

companion motions and counter motions pending and

considered at the same time as this motion for stay.

May 7, 2004.

s/ Joyce J. McCown

COMMISSIONER

IN THE SUPERIOR COURT OF THE STATE OF

WASHINGTON

IN AND FOR THE COUNTY OF WHITMAN

BENJAPON SAKKARAPOPE,

Petitioner, NO. 03-2-00168-4

VS.

STATE OF WASHINGTON, ORDER DENYING OF A

THE BOARD OF REGENTS, STAY OF PROCEEDING

WASHINGTON STATE TO ENFORCE A

UNIVERSITY, JUDGMENT

Respondent.

This matter came before the undersigned, ex parte, on

the motion of the petitioner for granting a stay of proceedings

to enforce a judgment pursuant to CR 60(c) and 62. The court

having considered the motion and the declaration being fully

advised, it finds that the cited court rules do not support the

relief requested or that this is not type of issue that can be

decided on an ex parte basis.

ORDERED as follows:

1. The notion is denied;

2. The Order Granting Respondent’s Motion for

Summary Judgment entered on March 5, 2004, is

a final decision of this court.

DATED this 19" day of March, 2004.

s/ David Frazier

JUDGE

66

FILED

OCT 10 2006

SUPREME COURT OF

WASHINGTON

THE SUPREME COURT OF WASHINGTON

BENJAPON SAKKARAPOPE, NO. 79007-8

Petitioner,

v. ORDER

STATE OF WASHINGTON, C/A No. 24892-5-IlI

THE BOARD OF REGENTS,

WASHINGTON STATE Whitman County

UNIVERSITY, No. 03-2-00168-4

Respondents.

Department I of the Court, composed of Chief Justice

Alexander and Justices C. Johnson, Sanders, Chambers and

Fairhurst, considered this matter at its October 10, 2006,

Motion Calendar and unanimously agreed that the following

order be entered.

IT IS ORDERED:

That the Petitioner's Motion to Modify the

Commissioner’s Ruling is denied. The Petitioner’s request

for refund of the $250.00 filing fee is also denied.

DATED at Olympia, Washington this 10" day of

October, 2006.

For the Court

s/ Gerry L. Alexander

CHIEF JUSTICE

FILED

AUG 24 2006

SUPREME COURT OF

WASHINGTON

THE SUPREME COURT OF WASHINGTON

BENJAPON SAKKARAPOPE,

Petitioner, No. 79007-8

V.

RULING DENYING

STATE OF WASHINGTON, REVIEW

THE BOARD OF REGENTS,

WASHINGTON STATE

UNIVERSITY,

Responden.s.

Benjapon Sakkarapope appealed a March 5, 2004,

order of the Whitman County Superior Court to Division

Three of the Court of Appeals. The Court of Appeals

affirmed the superior court. Mr. Sakkarapope filed a petition

for review. That petition is presently scheduled for

consideration by a department of this court on October 10.

2006. Meanwhile, Mr. Sakkarapope also filed in the superior

“court a motion for vacation of judgment and to recuse the

judge. The superior court, seemingly reasoning that it was

without jurisdiction until the appeal was mandate and

concluding that Mr. Sakkarapope’s motion was frivolous,

awarded attorney fees to defendants/respondents as a CR 11

sanction.

Mr. Sakkarapope them moved for discretionary

review by the Court of Appeals of that January 6, 2006,

Order for Sanctions. The Court of Appeals stayed

consideration of that motion pending this court’s decision on

Mr. Sakkarapope’s petition for review in the underlying case.

Mr. sakkarapope now moves for discretionary review by this

court of that Court of Appeals stay. He also asks that this

motion be consolidated with the pending petition.

68

Mr. Sakkarapope spends most of his motion arguing

his views of the merits of the Court of Appeals decision in

his appeal and attacking the competence of the trial judge and

counsel for defendants/respondents. But the only decision the

Court of Appeals has thus made in this case is to stay it. That

is altogether sensible, given that many of Mr. Sakkarapope’s

arguments are already before this court in his petition. Mr.

Sakkarapope fails to persuasively explain what a separate

new Court of Appeals review could accomplish at this point.

And he also fails to demonstrate how judicial efficiency

would be served by consolidating this stayed matter with the

petition for review.

The motion for discretionary review is denied.

s/ Geoffrey Crooks

COMMSSIONER

August 24, 2006

69

FILED

JUL 25 2006

COURT OF APPEALS

DIVISION III

STATE OF WASHINGTON

COURT OF APPEALS, DIVISION III, STATE OF

WASHINGTON

BENJAPON SAKKARAPOPE, | No. 24892-5-II

Appellant,

v. ORDER DENYING

MOTION TO MODIFY

STATE OF WASHINGTON, COMISSIONER’S RULING

THE BOARD OF REGENTS,

WASHINGTON STATE

UNIVERSITY,

Respondents.

THE COURT has considered appellant’s motion to

modify the Commissioner’s Ruling of May 2, 2006, and is of

the opinion the motion should be denied. Therefore,

IT IS ORDERED, the motion to modify the

Commission’s Ruling is hereby denied.

DATED: July 25, 2006

FOR THE COURT:

s/ Dennis J. Sweeney

DENNIS J. SWEENEY

CHIEF JUDGE

70

FILED

MAY 2 2006

COURT OF APPEALS

DIVISION III

STATE OF WASHINGTON

THE COURT OF APPEALS OF THE STATE OF

WASHINGTON, DIVISION Il

BENJAPON SAKKARAPOPE,

Appellant,

v.

STATE OF WASHINGTON,

THE BOARD OF REGENTS,

WASHINGTON STATE

UNIVERSITY,

Respondents.

COMMISSIONER’S

RULING

No. 24892-5-III

Having considered Mr. Sakkarapope’s Motion for

Discretionary Review, the records and file, this matter is

stayed pending the Washington State Supreme Court’s

decision and mandate on Mr. Sakkarapope’s Petition for

Review in Supreme Court Cause Number 78334-9 currently

pending that Court.

May 2, 2006.

s/ Joyce J. McCown

COMMISSIONER

71

IN THE SUPERIOR COURT OF THE STATE OF

WASHINGTON

IN AND FOR THE COUNTY OF WHITMAN

BENJAPON SAKKARAPOPE,

Petitioner, NO. 03-2-00168-4

VS.

STATE OF WASHINGTON, ORDER FOR SANCTIONS

THE BOARD OF REGENTS,

WASHINGTON STATE

UNIVERSITY,

Respondent.

This matter came before the Court on Sakkarapope’s

Motion To Fix Time and Place of the Hearing Re: Motion

For Vacation Of Judgment And A Recusal Of Judge.

The Court heard the oral argument of Benjapon

Sakkarapope and counsel for the Respondents, considered the

pleadings filed in this action, and considered the Whitman

County record in this action. Based on the argument of the

parties and the records in this matter, the Court finds:

FINDINGS

1. On March 5, 2004, this Court entered an order of

summary judgment in favor of the Respondents in this case.

On March 5, 2004, Mr. Sakkarapope filed a notice of appeal

of that order. This Court has received no mandate or order

from the Court of Appeals regarding Mr. Sakkarapope’s

appeals, and this office is award of no such mandate.

2. On October 7, 2005, Mr. Sakkarapope filed a

Motion To Fix Time and Place of the Hearing Re: Motion

For Vacation Of Judgment And A Recusal Of Judge. That

pleading was not in conformity with the requirements of CR

11 in that the motion is frivolous and was filed with the intent

to harass the Respondents. With reasonable inquiry, Mr.

Sakkarapope would know that this Court does not presently

have jurisdiction to hear this motion.

72

3. The Respondent incurred the reasonable attorney

fees of $1,377.50 in responding to this motion and appearing

for the hearing on the motion.

Based on the above, the Court entered the following:

ORDER

Benjapon Sakkarapope shall pay Washington State

University its reasonable attorney fees incurred in responding

to Mr. Sakkarapope’s Motion To Fix Time and Place of the

Hearing Re: Motion For Vacation Of Judgment And A

Recusal Of Judge, in the amount of $1,377.50.

DATED this 6" day of January, 2005.

s/ David Frazier

JUDGE

73

IN THE SUPERIOR COURT OF THE STATE OF

WASHINGTON

IN AND FOR THE COUNTY OF WHITMAN

BENJAPON SAKKARAPOPE,

Petitioner, NO. 03-2-00168-4

vs.

STATE OF WASHINGTON,

THE BOARD OF REGENTS, SUBPOENA DUCES

WASHINGTON STATE TECUM

UNIVERSITY,

Respondent.

The State of Washington to:

THE BOARD OF REGENTS,

WASHINGTON STATE UNIVERSITY

Address: 139 French Administration Building, Room

422, Stadium Way, Pullman, WA 99164

You are commanded to transmit the following documents to

the Court:

1. The records and related documents of the adjudication of

rights and responsibilities conducted by the CGSRR (Drs.

Howard Grimes, Sally Blank and James Harsh):

(a) The original documents of which Mr. Benjapon

Sakkarapope submitted to each member of the

CGSRR on September 1, 2000 (three sets of the

documents; one for each member of the CGSRR).

(b) ALL other handwnitten notes made by all

individual members of the CGSRR at the meeting

dated September 1, 2000, where the handwritten notes

were not made on the original documents of which

Mr. Benjapon Sakkarapope submitted to each

member of the CGSRR on September 1, 2000.

(c) All records and related documents of any

interviews, investigation, reviews, deliberation and/or

meetings conducted by Drs. Howard Grimes, Sally

74

Blank, and/or James Harsh in the capacity of the

CGSRR as to form the decision of September 19,

2000.

2. All records of communications (verbal, written or email or

other forms of actions) between Dr. Richard Shumway and

faculty members who have custody of the requested records,

and Public Records Officer responsive to the Mr.

Sakkarapope’s record requests of July 6' and November 12,

2002.

3. All records and related documents of the 1997 doctoral

qualifying examination (May-June) and the 1998 doctoral

quantitative methods qualifying examination (May-June),

Agricultural Economics Department. For the 1997

examination, the records include both Economic Theory and

Quantitative Methods qualifying examinations. The records

include, but not limit to, the following:

(a) Exam questions and answer keys.

(b) Individual students’ written answers with

evaluative comments and grades for each question.

The records include all individual students who took

the exams and all evaluative comments/grades by all

panel evaluators as well as all Exam Performance of

individual students. Any personal identification of

the other students may be removed.

(c) Academic criteria, rules and procedure of

determining an overall passing or failing grade.

(d) Records of the examination committee’s meetings

and decisions in regard to the doctoral qualifying

examinations.

4. All records and related documents of evidence, opinions

and recommendations obtained and/or used by Dr. Richard

Shumway as the basis of his decision of August 10, 1998.

The records also include all communications between Dr.

Shumway and faculty members in regard to the appeal of

July 22,1998.

5. All records and related documents of evidence, opinions

and recommendations obtained and/or used by Dr. Paul

75

Barkley (Interim Chair) in regard to his decision of Mr.

Sakkarapope’s admission to the doctoral program of the

department during June-August 1997.

6. All records and related documents of the 2000 IIDP

preliminary written examination—questions (January 12 and

14, 2000), student answers with evaluative comments,

answer keys, evaluation criteria, and other relevant

documents, administered by Drs. Kenneth Duft and Li-Ming

Han, including Harry Turtle.

7. All records and related documents of the February 11,

2000, ILDP preliminary oral examination--questions, student

answers with evaluative comments, answer keys, evaluation

criteria, and other relevant documents, administered by the

examination committee chaired by Dr. Kenneth Duft.

8. All records, observation handwritten notes and related

documents of the February 11, 2000, IIDP preliminary oral

examination created and administered by Dr. Alan Black in

the capacity of the Graduate School’s Representative.

9. As indicated in Dr. Kenneth Duft’s letter (no date)

responsive to Dr. Herbert Hill’s email dated 5/5/2000, the

records and related documents:

(a) As indicated in the answer to Question #1,

“personal copies of the text books and related

materials from which all my questions were

extracted.”

(b) As indicated in the answer to Question# 3,

“several portions of the written qualifying

examinations.”

10. All records and related documents of any interviews,

investigation, reviews, deliberation and/or meetings

conducted by the Student Records Committee and/or its

members in the brief adjudicative proceeding of March 27,

2002.

11. The record as indicated in the attachment of the Dr.

Howard Grimes’ memorandum of January 10, 2003, to the

Provost that “HDG See Sheet 2.”

76

The records and/or related documents above do not include

any portions of which were already filed with the Court on

September 22, 2003.

You are commanded to file the records and related

documents above by 3:00PM on January 2, 2004.

DATED this 8" of December, 2003.

s/Brenda G. Clonings

By Deputy Clerk

Whitman County Superior Court Clerk

Person Requesting subpoena:

Name: Mr. Benjapon Sakkarapope, Petitioner

Address: 430 NE Oak #2, Pullman, WA 99163

Telephone Number: 509-332-891 1

IN THE SUPERIOR COURT OF THE STATE OF

WASHINGTON

IN AND FOR THE COUNTY OF WHITMAN

BENJAPON SAKKARAPOPE,

Petitioner, NO. 03-2-00168-4

VS.

STATE OF WASHINGTON,

THE BOARD OF REGENTS, SUBPOENA DUCES

WASHINGTON STATE TECUM

UNIVERSITY,

Respondent.

The State of Washington to: oer

THE BOARD OF REGENTS,

WASHINGTON STATE UNIVERSITY

Address: 139 French Administration Building, Room

422, Stadium Way, Pullman, WA 99164

You are commanded to transmit the following documents to

the Court:

1. Records of a report from the WSU Police Department in

regard to the allegation with a Disruption and Violation

of Federal Law as indicated in Assistant Dean of Students

Joan E. Menzies of January 26, 1995. The records shall

include, but not limit to, the following:

a. Written statements or transcript of verbal

statements of the allegations made by Mr. Greg

Black and other faculty/staff members of the

Department of Marketing;

b. Any documentation prepared or witnessed by

Doug Robinsons, a court appointed attorney, on

January 12, 1995; and

c. A report of apartment search by WSU Police

Depaitment on January 12, 1995.

2. Records of a review of the allegation with a Disruption

and Violation of Federal Law as referred to in Assistant

78

Dean of Students Joan E. Menzies of February 14, 1995.

The records shall include, but not limit to, any records of

mediation by Mr. Oliver Bangera, the President of the

GPSA at that time.

Records of the matters in regard to Mr. Benjapon

Sakkarapope while he was a graduate student in the

Department of Marketing (1993-1995). The records shall

include, but not limit to, the following:

a. Documentation of any communication/transaction

between Mr. Sakkarapope and Dr. James

McCullough and Dr. Patriya Tansuhaj as well as

other faculty and staff members;

b. Documentation of Mr. Sakkarapope’s appeals

filed with the department and of reviews of the

appeal matters by the Department and Associate

Dean Emie Stromsdorfer, the College of Business

and Economics;

c. Documentation of communications among Drs.

James McCullough, Patriya Tansuhaj, Darrel

Muehling, and Ms. Kathleen M._ Bodley

(Associcate Director of the International Program

at that time) as well as other faculty members in

regard to Mr. Sakkarapope’s funding at WSU in

1994. The records shall include, but not limit to,

any documentation responsive to Mr.

Sakkrapope’s request dated June 6, 1994,

addressed to Ms. Bodley; and

d. Mr. Sakkarapope’s annual evaluations made by

the Department of Marketing.

Records of reviews of Mr. Benjapon Sakkarapope’s

appeals before the University Ombudsman, Mary

Gallwey, dated September 29, 1994, and subsequent

appeals through this office. The records shall include, but

not limit to, all correspondences and materials created,

obtained and reviewed by the Ombudsman.

Note: The original of appeal documents submitted by

Mr. Sakkarapope was returned to him, in which were

719 f

not included any other materials created, obtained and

used by the Ombudsman when it was returned.

5. Records an admission arrangement to the graduate

program in marketing for Mr. Benjapon Sakkarapope in

1992. The records shall include, but not limit to, the

following:

a. Any written communications among Dean

Thawee Dhanatrakul and Associate Dean for

Academic Affairs Benjapon Sakkarapope, Dr.

James McCullough and Dr. Patriya Tansuhaj as

well as other WSU faculty and staffs members in

regard to an admission arrangement for Mr.

Sakkarapope; and

b. An meeting minute of a student exchange

program between WSU and Prince of Songkla

University (PSU), Thailand. The meeting was

held on May 28, 1992, at the PSU. Dr. Patriya

Tanshuhaj was the WSU’s representative at the

meeting. The record may be either in Thai or

English version made by Dr. Tansuhaj or other

staffs; and

c. Any other memorandum of understanding

between WSU and PSU made in 1992, which is

related to Mr. Sakkarapope’s admission to a

graduate program in marketing at WSU.

6. Records of the disputed matters between the Department

of Marketing and Ms. Somdee Hongphisanvivat. The

records shall include, but not limit to, a police report on

the incident in Summer-Fall 1993.

7. Mr. Sakkarapope’s medical records at WSU’s Health and

Wellness Services. The records shall include, but not

limit to, the records of emergency unit.

8. Mr. Sakkarapope’s records of counseling service at

WSU’s Hotline Crisis.

9. A copy of a manuscript titled, “Advertising's Effect on

Brand-Switching Behavior: The Role of Top-of-Mind

Brand Awareness,” authored by Benjapon Sakkarapope

80

and Eric R. Spangenberg from Dr. Eric R. Spangenberg’s

annual or tenure review file in 1993-4.

The records and/or related documents above do not include

any portions of which were already filed with the Court.

You are commanded to serve upon the Petitioner and file the

records and related documents above by 3:00PM on January

1, 2004. The Court encourages you to serve the Petitioner

earlier to allow a pro se more time to prepare his responses to

the Motion for Summary Judgment for the hearing on

February 6, 2004.

DATED this_12" of January, 2004.

s/Brenda G. Clonings

By Deputy Clerk

Whitman County Superior Court Clerk

Person Requesting subpoena:

Name: Mr. Benjapon Sakkarapope, Petitioner

Address: 430 NE Oak #2, Pullman, WA 99163

Telephone Number: 509-332-891 1

81

FILED

JAN 16 2004

SHIRLEY BAFUS

WHITMAN COUNTY CLERK

IN THE SUPERIOR COURT OF THE STATE OF

WASHINGTON

IN AND FOR THE COUNTY OF WHITMAN

BENJAPON SAKKARAPOPE,

Petitioner, No. 03-2-00168-4

VS.

STATE OF WASHINGTON, ORDER ON

THE BOARD OF REGENTS, | OBJECTIONS TO

WASHINGTON STATE SUBPOENA DUCES

‘UNIVERSITY, TECUM AND MOTION

Respondents. TO QUASH

This matter came before the Court on Washington

State Universities motion for an order quashing the subpoena

issued December 8, 2003 (Subpoena), sealing the

examinations transmitted January 2, 2004 until further order

of the Court.

The Court heard the oral argument of the counsel for

Washington State University and Petitioner Benjapon

Sakkarapope, considered the pleadings filed in this action and

the content of the Subpoena, the Declaration of Richard

Shumway, the Declaration of Kirsten Pauli, the Declaration

of Counsel, the documents and records filed January 2, 2004

and the pages of the Certified Record cited in the

Declarations and pleadings.

The Court FINDS that:

(1) The Subpoena improperly reduced the time for

responding to discovery from 30 to 25 days;

(2) The Subpoena is discovery related solely to Petitioner’s

claims regarding the Public Records Act and called for items

that WSU has not released to Petitioner on his public request

82

for the documents dated July 6, 2003 based in part on

statutory exemptions in the Public Records Act.

(3) The Subpoena required WSU to produce and file with the

Court examinations and answer keys as well as information

on all individuals students who took preliminary doctoral

program examinations taken by the Petitioner in the

Agricultural and Resource Economics program, including the

students’ written answers, with evaluative comments ad

grades for each answer. The Subpoena did not require that

the students’ names be included, however, very few students

took the examination and those students may be easily

identifiable based on the information released.

Based on the above findings it is ORDERED:

(1) Respondent’s motion is granted;

(2) The Subpoena issued December 8, 2003 and the

Subpoena issued January 12, 2004 are quashed’.

(3) The examinations transmitted January 2, 2004 will remain

sealed until further order of the Court;

(4) Respondent need not provide to the Petitioner or file with

the Court records on individual students other than Mr.

Sakkarapope, examinations or answer keys until further order

of the Court.

DATED this 16" day of January, 2004.

s/ David Frazier

JUDGE

* The italic text is originally in hand-written.

83

FILED

OCT 26 2006

COURT OF APPEALS

DIVISION It

STATE OF WASHINGTON

COURT OF APPEALS, DIVISION III, STATE OF

WASHINGTON

BENJAPON SAKKARAPOPE, MANDATE

Appellant,

v. No. 22708-1-III cons/w

No. 22881-7-III and

STATE OF WASHINGTON, No. 22732-4-IIl

THE BOARD OF REGENTS,

WASHINGTON STATE Whitman County

UNIVERSITY, No. 03-2-00168-4

Respondents.

The State of Washington to: The Superior Court of the State

of Washington, in and for Whitman County.

This is to certify that the Opinion of the Court of Appeals of

the State of Washington, Division III, filed on September 8,

2005 became the decision terminating review of this court in

the above-entitled case on October 10, 2006. The cause is

mandated to the Superior Court from which the appeal was

taken for further proceedings in accordance with the attached

true copy of the Opinion.

In testimony where of, I have hereunto set my hand and

affixed the seal of said Court at Spokane, this 26" day of

October, 2006.

s/ Renee Townsley

Clerk of the Court of Appeals,

State of Washington, Division III.

cc: Benjapon Sakkarapope

Sheryl L. Gordon

Hon. J. David Frazier

84

FILED

OCT 10 2006

SUPREME COURT OF

WASHINGTON

THE SUPREME COURT OF WASHINGTON

BENJAPON SAKKARAPOPE, | NO. 78334-9

Petitioner,

v. ORDER

STATE OF WASHINGTON, C/A No. 22708-1-II],

THE BOARD OF REGENTS, | 22881-7-III & 22732-4-Ill

WASHINGTON STATE (consolidated)

UNIVERSITY,

Respondents.

Department I of the Court, composed of Chief Justice

Alexander and Justices C. Johnson, Sanders, Chambers and

Fairhurst, at its October 10, 2006, Motion Calendar,

considered whether review should be granted pursuant to

RAP 13.4(b), and unanimously agreed that the following

order be entered.

IT IS ORDERED:

That the Petition for Review is denied. The motion to

cite unpublished opinions is denied.

DATED at Olympia, Washington this 10" day of

October, 2006.

For the Court

s/ Gerry L. Alexander

CHIEF JUSTICE

85

THE SUPREME COURT

STATE OF WASHINGTON

TEMPLE OF JUSTICE

P.O.BOX 40929

OLYMPIA, WA 98504-0929

(360) 357-2077

Fax (360) 357-2102

October 27, 2006

Benjapon Sakkarapope Sheryl L.ynn Gordon

714 South Jefferson St. Attorney Gen Office-

Moscow, ID 83843 WSU Division

PO Box 641031

Renee Townsley, Clerk Pullman, WA 99164-1031

Court of Appeals,

Division III

PO Box 2159

Spokane, WA 99210-

2159

Re: Supreme Court No. 78334-9 — Benjapon Sakkarapope v.

State, The Board of Regents, WSU

C/A No. 22708-1-III, 2288 1-7-III & 22732-4-II1 (consol)

Clerk, Counsel & Mr. Sakkarapope:

This will acknowledge receipt on this date of the

Petitioner’s “MOTION FOR RECONSIDERATION.” The

pleading seeks reconsideration of this Court’s October 10,

2006 order denying the petition for review.”

A denial of a petition for review is not subject to

reconsideration. The RULES OF APPELLATE

PROCEDURE (RAP) provide that a party may file a motion

for reconsideration only of “a decision terminating review’,

—

"It is noted that the Department of the Court that unanimously denied the

petition for review was comprised of five of the nine justices of this

Court, a majority of the Court

86

see RAP 12.4(a). One element of “a decision terminating

review’ is that it must be an opinion, order or judgment of

the appellate court filed after review is accepted, see RAP

12.3(a). A denial of a petition for review is an act declining

to accept review. As such, the Court’s decision on the

petition for review is not subject to reconsideration.

Moreover, RAP 12.5(b)(3) provides that the Court of

Appeals will issues the mandate of its decision upon denial of

the petition for review. Pursuant to RAP 12.7(b) the

Supreme Court loses the power to change or modify a

decision of the Court of Appeals upon issuance of the

mandate, which occurred in this case on October 26, 2006.

Accordingly, although the pleading has been placed

in the closed file, this Court can take no further action on it.

Sincerely,

s/ Ronald R. Carpenter

RONALD R. CARPENTER

RRC;jlb

FILED

JUN 08 2006

CATHY A. CATTERSON, CLERK

U.S. COURT OF APPEALS

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BENJAPON SAKKARAPOPE, | No. 04-35643

Plaintiff-Appellant,

v. D.C. # CV-04-00074-JLQ

BOARD OF REGENTS, Eastern Washington

WASHINGTON STATE (Spokane)

UNIVERSITY; et al.,

Defendants-Appellees. | ORDER

Before: FERNANDEZ, RYMER, and BYBEE, Circuit Judges

The panel has voted to deny the petition for panel

rehearing.

The full court has been advised of the petition for

rehearing en banc and no judge has requested a vote on

whether to rehear the matter en banc. See Fed. R. App. P. 35.

The petition for panel rehearing and the petition for

rehearing en banc are denied.

No further fillings will be accepted in this closed

case.

88

FILED

DEC 22 2006

SUPERIOR COURT

BETTY J. GOULD

THURSON COUNTY CLERK

SUPERIOR COURT OF WASHINGTON

IN AND FOR THURSTON COUNTY

BENJAPON SAKKARAPOPE, | NO. 04-2-02084-8

Petitioner,

Vv. ORDER ON APPEAL

WASHINGTON STATE

UNIVERSITY

Respondent.

THIS MATTER having come on regularly before the

above-entitled court on Friday, October 6, 2006, for trial on

the Petitioner’s appeal of the certain decision of the

Personnel Appeals Board entered in PAB No. RULE-03-

0008 on October 5, 2004, said appeal being taken pursuant

to RCW 41.64.130, and the parties appearing again before

this court for presentment on December 1, 2006; Benjapon

Sakkarapope, Petitioner, appearing pro se and Washington

State University, appearing by and through its attorney,

Donna J. Stambaugh, Assistant Attorney General;

The Court having reviewed the records and files

herein, having considered the written and oral arguments of

the parties, and being otherwise fully advised in the premises;

the Court being of the opinion that the Personnel Appeals

Board committed an error of law in their decision when they

declined to consider WSU’s internal policy, Rule 60.26,

regarding tracking of student employees, now, therefore, it is

hereby

ORDERED that for the reasons set forth in the

Court’s Oral Opinion, dated October 6, 2006, a copy of

which has been filed, and which the Court incorporates

herein by reference, the decision of the PAB entered in this

89

matter on October 5, 2004, is reversed. This matter is

remanded back to the Department of Personnel to determine

whether WSU’s Business Policies and Procedures Manual,

Personnel Rule 60.26, is part of compliance by WSU with

WAC 251-19-120(7), and if so, whether under the terms of

Rule 60.26, Mr. Sakkarapope is a person qualified for

consideration of remedial action under WAC 251-12-600,

and if so, to consider whether a remedial action should be

offered to Mr. Sakkarapope.

It is further ORDERED that Petitioner is granted his

filing fee to the superior court, but that the remainder of

Petitioner’s requests for fees, costs, and sanctions are hereby

denied.

DONE IN OPEN COURT December 22, 2006.

s/ Wm. Thomas McPhee

JUDGE Wm. THOMAS McPHEE

90

WASHINGTON STATE UNIVERSITY

Office of the Dean, Graduate School

PO Box 641030,

Pullman, WA 99164-1030

January 31, 2003

Benjapon Sakkarapope

N.E. 430 Oak, #2

Pullman, WA 99163

Dear Mr. Sakkarapope:

On December 18, 2002, I granted an extension of the

completion date for the Master of Sciences in Statistics. The

extension required that you finish your project, apply for

graduation and schedule the defense of your project no later

than January 27, 2003. Because you did not satisfy these

conditions, you have been dropped from the gradate program

at Washington State University. In addition, your enrollment

for this spring semester will be terminated immediately.

Sincerely,

s/ Howard Grimes

Howard D. Grimes

Interim Dean of the Graduate School

cc: Program in Statistics,

Office of International Students and Scholars

91

WASHINGTON STATE UNIVERSITY

Office of the Dean, Graduate School

PO Box 641030,

Pullman, WA 99164-1030

MEMORANDUM

To: Hao Zhang Asst. Prof., Statistics

From: Howard Grimes, Interim Dean s/Howard Grimes

Date: 18 December 2002

Subject: Exception to Policy for Benjapon Sakkarapope

I will grant Mr. Sakkarapope an exception to policy for Fall

2002. During this time, and prior semesters as well. Mr.

Sakkarapope was underenrolled for student credit hours and

thus out of status as a graduate student. This exception

applies to his 702 credits for the Masters projects.

Furthermore, to facilitate his successful completion of the

non-thesis Masters, I will extend the use of the Fall, 2002

credits through January 27, 2003. Prior to that that, Mr.

Sakkarapope should a) finish the project, b) apply for the

degree, and c) schedule the defense on or before the 27" of

January. This unusual extension (coupled with the exception

to policy) demonstrates the Graduate School’s commitment

to assisting this student in finishing the Master’s degree.

There will be no further exceptions to policy or extensions

granted after January 27, 2003. The combined actions of the

Graduate School should allow the student more than ample

time to complete this non-thesis degree.

92

WASHINGTON STATE UNIVERSITY

Program in Statistics

413 Neil Hall, PO Box 643144,

Pullman, WA 99164-3244

To: Dr. Howard Grimes, Dean, Graduate School

From: Hao Zhang s/ Hao Zhang

Ce: Mike Jacroux s/ Mike Jacroux

Ben Sakkarapope has completed required course work for his

Masters in Statistics and its working on his project. I would

like to request exception to policy for Ben to be

underenrolled for the Fall semester of 2002. it is possible that

Ben cannot finish the project in the fall semester and might

need an extension to the Spring semester of 2003.

Please see the enclosed email from Ben that initiates the

request and explain his special circumstances. The thesis

committee of Ben supports this request. Should any questions

arise, please call me at 335-2958

I appreciate your consideration to this request.

93

From: Ben Sakkarapope [mailto:bsakkara@wsunix.wsu.edu]

Sent: Thursday, December 12, 2002 11:24 PM

To: "Hao Zhang" <"Hao Zhang"

Subject: Research project delay

Prof. Zhang,

I am writing you to ask for support and help. As I informed

you, I intended to complete my research project for my MS

and took a final exam in this Fall. Unfortunately, due to the

death of my father-in-law that I left the school for his funeral,

and some Gifficulties at home, I could not return soon to have

enough time to finish the project as planed. Thus, I would

like to postpone our schedule to this Spring instead. This

will give me some more time for both my MS research

project and another paper for publication (which I discussed

with you before).

In addition, since I already completed all coursework in

pursuing my MS degree program, I need to enroll under a

normal course load for an international student. I don’t have

any class to take. Thus, I would like you to help me on some

paper work with the Grad. School, or as you believe it is

appropriate, in regard to my enrollment in this Spring 2003,

including this Fall 2002 if necessary.

If you need additional information or if there is a problem in

this regard, please let me know.

Thank you very much for help and support.

Ben Sakkarapope

94

WASHINGTON STATE UNIVERSITY

Program in Statistics

413 Neil Hall, PO Box 643144,

Pullman, WA 99164-3244

To: | Benjapon Sakkarapope

From: Mike Jacroux

Date: April 23, 2002

Subject: Individual Graduate Student Status and

Progress Report

Each year, as required by the Graduate School, the Program

in Statistics does a review of each graduate student enrolled

in its M.S. Degree Program. This review is to make sure that

you, as a graduate student, are making “normal progress”

toward your intended degreed. “Normal progress” is usually

considered to be taking courses at a rate which will allow you

to complete all degree requirements within two years.

You should finish your M.S. Degree in Statistics by 8/02'

Satisfactory progress? Yes VY No _

If you have any questions, please see me. Otherwise please

sign and return one copy of this report to Nancy to indicate

that you have received this report.

s/ Mike Jacroux s/ B. Sakkarapope

Mike Jacroux, Director Student Signature indicating that

Program in Statistics this report has been received

* This date was the original intention of Sakkarapope planning to finish

his program in early Fall 2002 semester (not a program completion

deadline by any rule), but it was later rescheduled as agreed upon

between Sakkarapope and his academic advisor, Hao Zhang as to the

change in subject of research topic and the sickness of family member,

father-in-law, that Sakkarapope had planed to visit him shortly after

learning the sickness in that summer. However, his father had passed

away in September 2002, and Sakkarapope had to immediately return

home to attend his father-in-law funeral on September 1! 1, 2002.

95

RECEIVED

FEB 19, 2001

STATISTICS

WASHINGTON STATE UNIVERSITY

Program in Statistics

413 Neil Hall, PO Box 643144,

Pullman, WA 99164-3244

Memorandum

To: Karen DePauw

From: Mike Jacroux

Date: February 2, 2001

Subject: Exception to Policy for Benjapon Sakkarapope

On December 15, 2000, Benjapon Sakkarapope , ID

#99041329, filed his program for the M.S. degree in

Statistics with the Graduate School. However, on of the

courses he included in the program was Econ511 (State 53!)

which he took during Spring, 1994. Thus, according to

Graduate School policy, the course was one semester too old

to be counted as part of his M.S. degree program. The course

was taught by Wayne Joerding, who has been teaching the

course every year since 1994. The content of the course has

remained basically unchanged. Because the content of the

course has remained essentially unchanged over the past

several years and because the course was only one semester

beyond the Graduate School expiration date policy, we are

asking that he be allowed to count the course as part of his

program. If I can supply any additional information

concerning this request, please contact me.

Approved.

s/ H.H. Hill

2/12/01

96

RECEIVED

JAN 16 2003

PRESIDENT’S OFFICE

WASHINGTON STATE UNIVERSITY

Office of the Provost

PO Box 641046,

Pullman, WA 99164-1046

January 15, 2003

Mr. Benjapon Sakkarapope

N.E. 430 Oak, #2

Pullman, WA 99163

Dear Benjapon Sakkarapope:

I am responding to your correspondence of January 14, 2003,

on behalf of President Rawlins. In your letter, you request an

opportunity to pursue your academic appeals at the Board of

Regents’ regular meeting on January 24, 2003.

The University previously notified you that you had no

further appeal rights at Washington State University. (Please

see attached letter.) Pursuant to the Board’s Bylaws, Article

Il, Section K, the University President and the President of

the Board may approve public testimony regarding a special

issue. However, the President and the President of the Board

have denied your request to present this issue to the Board at

their meeting on January 24, 2003.

Sincerely,

s/ R. C. Bates

Robert C. Bates

Provost

cc: President Rawlins, The Board of Regents

WASHINGTON STATE UNIVERSITY

Office of the Provost

PO Box 641046,

Pullman, WA 99164-1046

January 10, 2003

Mr. Benjapon Sakkarapope

N.E. 430 Oak, #2

Pullman, WA 99163

Dear Mr. Sakkarapope:

On November 6, 2002, the Provost’s Office informed you of

the University’s final decision in your case. In two separate

letters you were explicitly told that you had no further appeal

rights within the University and all procedural remedies had

been exhausted at the administrative level.

I have received the correspondence you forwarded to

President Rawlins and the Graduate School. It is clear from

your letters that you understand that all your requests have

been denied. The letters of November 6, 2002, also informed

you of your right to appeal the University’s final decision to

the Whitman County Superior Court within 30 days. It is

evident by your subsequent correspondence that you

understand that legal right but continue to dispute the finality

of the University’s final action in this matter.

The University has no obligation to provide you with any

further explanation and will no longer respond to your letters

related to this matter. This matter is officially closed.

Sincerely,

s/ R. C. Bates

Robert C. Bates

Provost

98

WASHINGTON STATE UNIVERSITY

Office of the Dean, Graduate School

PO Box 641030,

Pullman, WA 99164-1030

October 22, 2002°

Benjapon Sakkarapope has been past his completion data as a

WSU graduate student since Summer, 200. He is officially

out of status and he is not making adequate progress towards

a graduate degree. Thus, we recommend that he not be

allowed to enter the US on a student visa.

If he returns to WSU by any mechanisms, he will need to re-

apply to the Graduate School for admittance.

Howard Grimes

Interim Dean

* This memorandum was later issued again on November 25, 2002, after

Sakkarapope returned to the United States on October 23, 2002 from

attending his father-in-law funeral. See Agency’s Certified Records at

288-9

99

Washington State University

Office of the Provost

P.O. Box. 641046

Pullman, WA 99164-1046

November 6, 2002

Benjapon Sakkarapope

430 NE Oak Street #2

Pullman, WA 99163

Dear Mr. Sakkarapope:

I am responding to your letters to me dated August 7 and

September 9, 2002, as well as your September 10, 2002,

letter to President V. Lane Rawlins. In those documents you

apparently request a procedural review of your preliminary

doctoral examination and the subsequent appeals of Dr.

Ronald Hopkins’ review of the procedural review that you

were granted, as well as request that I release public records.

First, as to the doctoral examination and the appeal process:

On February 1, 2001, Interim Provost Ronald Hopkins found

no procedural irregularities had occurred during your

preliminary examination and upheld the Graduate School’s

decision to disenroll you from the Interdisciplinary Doctoral

Program. In a letter dated December 7, 2001, you asked the

Interim Provost to reconsider his academic decision. Interim

Provost Hopkins informed you on December 13, 2001, that

he would not revisit your case. As a result, your University

appeal rights were exhausted. I will not reopen this final

decision and review this matter yet again. You have filly

exhausted your review of the University’s decision to drop

you from enrollment in the Interdisciplinary Doctoral

Program.

100

Second, as to your public records request: requests for public

records are handled by the University’s Public Records

Officer. To help facilitate your request, I have given a copy

of your September 9, 2002 letter to the Public Records

officer. She informs me that she has responded to your

request, and that she believes all administrative avenues for

relief as to the public records request have been exhausted.

I am replying to your September 23 request for further

review of the Student Records Committee’s FERPA hearing

and the FERPA hearing that occurred on march 27, 2002, by

separate letter.

Sincerely,

s/ R C. Bates

Robert C. Bates.

Provost and Academic Vice President

101

Washington State University

Office of the Provost

P.O. Box. 641046

Pullman, WA 99164-1046

November 6, 2002

Benjapon Sakkarapope

430 NE Oak Street #2

Pullman, WA 99163

Dear Mr. Sakkarapope:

Under The Family Educational Rights and Privacy

Act (FERPA) students may request amendment of their

educational records if they believe such records are

inaccurate or misleading. When you raised questions

regarding your educational records, the Vice President for

Student Affairs officially appointed the Student Records

Committee (Committee) and gave that Committee authority

to consider your request. Importantly, the Committee was not

authorized to review the University’s academic decision to

disenroll you from the doctoral program. WAC 504-21-

040(3)(d) provides: “The student records committee shall not

review any matter regarding the appropriateness of official

academic grades.” Additionally, the academic decision to

disenroll you wad finalized on February 1, 2001.

As to your concerns regarding your student records, it

appears that you did not directly dispute the accuracy or

truthfulness of your educational record, but alleged that WSU

had not disclosed certain student records to you upon request.

The Committee, pursuant to WAC 504-04-010(4), held a

brief adjudicative proceeding on March 27, 2002, to consider

your claims. Following that hearing, it investigated your

claims and was unable to locate records other than those that

had already been provided to you by the Public Records

Officer, the Graduate School, and the Agricultural

102

Economics Department’. It provided you with duplicate

copies of some of those documents, and noted that you are

welcome to peruse your own files at the Graduate School or

the Agricultural Economics Department at any time.

I have reviewed the records related to your appeal of

the FERPA hearing, including the tape of the hearing held on

March 27, and the decision issued by the Student Records

Committee on April 5, 2002. I find that the Committee was

properly constituted and that it had authority to hear and

decide your case. | find that the hearing was conducted in

accordance with the procedure authorized by WAC 504-04-

010(4). I also find that your educational file is accurate and

complete, and affirm the Committee’s decision as set forth in

its letter of April 5, 2002.

This letter is the University’s final decision in the

matter of your student records. You have not additional

nights to appeals this decision within Washington State

University. You may, within thirty days of the date your

receive this letter, appeal this decision to the Whitman

County Superior Court in accordance with RCW 34.05.514

and 34.05.542.

Sincerely,

s/ Robert C. Bates

Robert C. Bates.

Provost and Academic Vice President

* | understand that one additional document, a professor’s personal notes

upon your oral examination, we later located by the WSU Public Records

Office pursuant to your public records request, and that record has been

provide to you. You have not requested that document be made part of

your official University file. Accordingly, it will not be made part of that

file, unless you so request. Should any additional documents related to

your public records requests be located, they will be provided to you by

the Public Records Officer.

103

WASHINGTON STATE UNIVERSITY

Office of the Provost

PO Box 641046,

Pullman, WA 99164-1046

December 13, 2001

Mr. Benjapon Sakkarapope

N.E. 430 Oak, #2

Pullman, WA 99163

RE: December 7, 2001 request for reconsideration

Dear Mr. Sakkarapope:

This is in response to your request that I revisit my

February 1, 2001, decision regarding your appeal from the

Graduate School’s Academic Decision. As | indicated in my

decision letter at that time, I found no irregularity in the

procedures used by the Graduate School.

Your appeal of the academic decision was not

previously presented to me as a complaint against a faculty

member, but your letter of December 7, 2001, refers to this

matter as a complaint against a faculty member. The

irregularities that you alleged faculty has committed were,

however, considered as part of your appeal. They were

determined to be unsupported.

It has now been almost a full year since you were

notified of my final decision on your appeal. I find no reason

to reconsider that decision, particularly at this late date. |

agree, however, that there is one error in my February 1,

2001 letter: it referred to your program as the Individual

Interdisciplinary Design Program as opposed to the

Individual Interdisciplinary Doctoral Program.

As to your request for records: It is my understanding

that your educational records have been provided to you by

the Graduate School. If you have additional questions about

104

this, | encourage you to discuss the matter with Ms. Lori

Lamb, WSU’s public records officer.

Sincerely,

s/ Ronald H. Hopkins

Ronald H. Hopkins

Interim Provost

WASHINGTON STATE UNIVERSITY

Office of the Provost

PO Box 641046,

Pullman, WA 99164-1046

February |, 2001

Mr. Benjapon Sakkarapope

N.E. 430 Oak, #2

Pullman, WA 99163

Re: Appeal from Graduate School’s Academic Decision

Dear Mr. Sakkarapope:

I have reviewed the records of your appeal from the

Individual Interdisciplinary Design Program decision

denying your academic advancement. These records include

the CGSRR recommendation and Dr. Karen DePauw’s

decision. I find no irregularity in the procedures unused by

the Graduate School. You were afforded due process for this

review of an academic decision.

Your appeal also, on page eight, contains a request for

documents under FERPA, Dean Karen DePauw will ensure

that you receive copies of existing educational records.

FERPA does not require t

This text is long and has been trimmed here. Open the source document for the complete record.

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Appendix — Sakkararapope v. Gonzales (No. 06-1052) | Frix