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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_2100%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2006

## Text

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 =
pe: H. Hill, Coordinator, [}DP and Associate Dean
H. Grimes, Chair, GSC and Chair of CGSRR
S. Blank, member CGSRR
J. Harsh, member CGSRR
file

118

WASHINGTON STATE UNIVERSITY
Office of the Dean of the Graduate School
PO Box 641030,

Pullman, WA 99164-1030

July 14, 2000

Mr. Benjapon Sakkarapope
N.E. 430 Oak, #2
Pullman, WA 99163

Dear Mr. Sakkarapope:

I am in receipt of your letter dated July 12, 2000 in which
you request a formal appeal of the results of the your
preliminary examination. I consider this request to be the first
step in the formal appeal to the Dean of the Graduate School
in accordance with the procedures articulated on p. 8-9 of the
Graduate Student Code. As such, I will now refer this case to
the Committee on Graduate Student Rights and
Responsibilities (CGSRR) within 30 days of this letter.

The appeal process in which you have been engaged to date
is the appeal process at the department level. The diagram on
p. 10 indicates that the review process includes the Graduate
Coordinator, Department Chair and the Graduate School
Dean. The coordinator for he individual interdisciplinary
doctoral program is the Associate Dean of the Graduate
School and the Department Chair is the Dean of the Graduate
School. Therefore, the appeal process must first be heard by
the Coordinator, or in this case, Herb Hill, Associate Dean.
After his review and decision, an appeal is to be made to the
Department Chair. As Graduate Dean and Chair of the
Individual Interdisciplinary Doctoral Program, it seems
appropriate to bypass review as Chair and accept the appeal
as Dean of the Graduate School as indicated above.

119

In your letter, you indicate that your “case consists of a
combination of unusual academic matters and faculty
conduct.” In the Graduate Student Code, the “conduct”
aspect of the procedures refers to student conduct issues not
faculty conduct issues. I will accept your appeals as an
academic issue, which does not include student misconduct,

and J will request a CGSRR that includes members of the
graduate faculty as indicated in the Graduate Student Code. I

will confer with the chair of the Graduate Studies Committee

about the composition of the CGSRR committee. You will 4.
be notified once the committee has been formed and n@tified o~ .”
of the process and timelines to be followed in ne
your case.

Truly,
s/ Karen P. DePauw
Karen P. DePauw. Ph.D. .
Dean fe ee
pe: H. Hill, Coordinator, I[DP and Associate Dean

H. Grimes, Chair, GSC

120

WASHINGTON STATE UNIVERSITY
Office of the Dean of the Graduate School
PO Box 641030,

Pullman, WA 99164-1030

May 4, 2000

Mr. Benjapon Sakkarapope
N.E. 430 Oak, #2
Pullman, WA 99163

Dear Mr. Sakkarapope:

This letter is written in response to your letter of May 1,
2000. Please be advised that the first letter was sent in error
and a corrected letter was sent on April 27, 2000. I apologize
for any confusion the first letter caused.

In your letter of May 1* you raise several points to which |
will respond briefly. Yes, you were admitted to the Individual
Interdisciplinary Doctoral program in March 1999 and you
took preliminary examinations in January 2000. According
to our records, this was the only official preliminary
examination you took. The results of the preliminary
examination were communicated verbally to you by Dr. Duft.
The Representative of the Graduate Studies Committee is not
required to inform you of the decision if the decision has
been communicated to you by the committee chair.

I know that you disagree with the results and wrote a letter to
me dated February 15, 2000. When we met, I encourage °
you to follow the appeal process through Dr. Hill, Associate
Dean and Coordinator of the Individual Interdisciplinary
Doctoral Degree. I understand that the appeal process is
currently underway. Please refer to the Graduate Student
Code for the specifics of the appeal process (p. 8-9). Please
be informed that this process provides several steps including

121

review by the Dean of the Graduate School and the Provost
but does not include an appeal to the Board of Regents.

After the decision is made that the student has failed the
preliminary examination, the committee is allowed two
options: retake a second examination or terminate from
doctoral program. Your committee recommended that you be
terminated from the doctoral program. As a result, you
received the letter dated April 27" indicating that you would
be dropped from the Graduate School effective May 5, 2000.

Because you are also pursuing a masters degree in statistics, |
will allow you to continue your studies towards completion
of the masters degree but you will not be allowed to continue
in the doctoral program pending the outcome of the appeal
process.

Please continue to work with Dr. Hill in your appeal. He is
considering your appeal and will be making a
recommendation shortly.

Truly,

s/ Karen P. DePauw
Karen P. DePauw. Ph.D.
Dean

pe: K. Duft, H. Hill

122

WASHINGTON STATE UNIVERSITY
Office of the Dean of the Graduate School
PO Box 641030,

Pullman, WA 99164-1030

CORRECTED COPY’
April 27, 2000

Mr. Benjapon Sakkarapope
N.E. 430 Oak, #2
Pullman, WA 99163

Dear Mr. Sakkarapope:

In accordance with the polices established by the Graduate
Faculty at Washington State University, students who have
failed the preliminary examination and are not recommended
for a second examination can no longer pursue work leading
to the doctorate. Accordingly, I regret to inform you that you
are being dropped from Washington State University
effective May 5, 2000.

Please feel free to contact me with your concerns.

Truly,

s/ Karen P. DePauw

Karen P. DePauw. Ph.D.

Dean

pe: Kenneth D. Duft, H.H. Hill

* This letter was mailed and received a week later after the original dated
April 26, 2000.

123

WASHINGTON STATE UNIVERSITY
Office of the Dean of the Graduate School
PO Box 641030,

Pullman, WA 99164-1030

April 26, 2000

Mr. Benjapon Sakkarapope
N.E. 430 Oak, #2
Pullman, WA 99163

Dear Mr. Sakkarapope:

In accordance with the polices established by the Graduate
Faculty at Washington State University, students who have
failed the preliminary examination for the second time can no
longer pursue work leading to the doctorate. Accordingly, I
regret to inform you that you are being dropped from
Washington State University effective May 5, 2000.

Please feel free to contact me with your concerns.

Truly,

s/ Karen P. DePauw

Karen P. DePauw. Ph.D.

Dean

pe: Kenneth D. Duft, H.H. Hill

WASHINGTON STATE UNIVERSITY
Office of the Dean of the Graduate School
PO Box 641030,

Pullman, WA 99164-1030

June 28, 2000

Mr. Benjapon Sakkarapope
N.E. 430 Oak, #2
Pullman, WA 99163

Dear Mr. Sakkarapope:

As you requested in your letter of June 9, 2000, I have
reconsidered my denial of your appeal of April 19, 2000
requesting that the decision of your Ph.D. committee to fail
you on your Ph.D. Preliminary Exam be reversed. You asked
for a reconsideration because you felt that my interpretation
and understanding of the issues as well as the relevant rules
and policies do not answer the specific issues as presented in
the written materials of appeal.”

After re-reading your appeal of April 19, 2000, it still appears
to me that you were appealing on the basis of two primary
concems: That the “rule of the prelim examination was not
governed by clearly stated rules and procedures” and that
“Dr. Duft mislead and inhibited the advisory committee to
develop a fair evaluation of the preliminary examination.”
According to your proposed content and format document,
“The oral examination is conducted by the entire committee
and a representative of the Graduate Studies Committee.
The program coordinator of the Individual Interdisciplinary
Doctoral Program will also ordinarily be present. During the
oral examination, the student may be asked to address any
questions remaining after committee members have read the
written examination, any related scholarship, and if

125

appropriate, the student’s future research plans.” In my
review, | found no major infraction of the rules for the
preliminary exam sufficient to cause you to fail the exam.
Also, from the data that you submitted, I could find no
indication that Dr. Duft misled or inhibited the committee in
their evaluation of your exam. In fact, from the memos that
you have provided, it appears that he tired to e quite helpful
to you in preparing for your exam.

I know that this is not the result you desired and | am sorry.
Ph.D. preliminary exams are quire difficult and not all people
pass. Their primary purpose is to evaluate whether a student
is capable of integrating knowledge and discussing concepts
in a critical manner. If you still feel that you would like to
pursue this appeal further, the next step is to appeal my
decision to the Dean of the Graduate School.

Sincerely,

s/ H.H. Hill

Herbert H. Hill, Program Coordinator

Individual Interdisciplinary Doctoral Program and
Associate Dean of the Graduate School

WASHINGTON STATE UNIVERSITY
Office of the Dean of the Graduate School
PO Box 641030,

Pullman, WA 99164-1030

May 19, 2000

Mr. Benjapon Sakkarapope
N.E. 430 Oak, #2
Pullman, WA 99163

Dear Mr. Sakkarapope:

I have reviewed your letter of April 19, 2000
requesting that the graduate school overrule the decision of
your advisory committee with respect to your preliminary
exam and change your grade from a ‘fail” to a “pass”. Your
request was made on the basis that you believe that the
academic integrity of the written examination and your
“student right” had been violated.

According to your letter, the academic integrity of the
written examination was violated because the exam did not
follow exactly the content and format agreed upon by your
and your committee in May of 1999. In your letter, you
stated that the academic integrity of the exam was violated
because “Dr. Duft’s conduct mislead and inhibited the
advisory committee to develop a fair evaluation of the
preliminary examination.” I can find no evidence, from the
record or from communication with the advisory committee,
that Dr. Duft “mislead and inhibited” the advisory committee
from developing a fair evaluation of your preliminary
examination.

Also, according you your letter, your “student right”
was violated because your “right to be governed by clearly
stated and justifiable academic procedures, rules, and
regulations has been seriously violated.” As I understand
your argument, you believe that the “Proposed Content and
Format of the Examination” was a legal contract which

127

bound the advisory committee to specifics in developing the
prelim exam and that you must be given a full six months to
study for the exam as stated in the “Proposed Content and
Format of the Examination”.

There is no mention of a document called “Proposed
Content and Format of the Examination” in the IIDP
handbook and there is no statement that such a document
would be a legal contract between the student and his
committee. In fact, the IIDP handbook states that it is the
“prerogative” of the advisory committee to discuss the format
of the exam with the student. The handbook does not
encouraged the student to “initiate” conversations with his or
her advisory committee at least six months before the
preliminary examinations but the dynamic nature of research
and scholarship are exemplified by the useful strategies that
students may use in studying for exams.

The sold purpose of the preliminary examination is to
“determine the fitness of the student for pursuing a doctoral
program in the field in which a degree is desired.” In your
case, five graduate faculty at Washington State University,
all who are in good standing with the University and
Graduate School and all who have had extensive experience
in evaluating graduate students for their academic fitness to
pursue the PH.D. degree have unanimously judged you
academically unqualified to become a Ph.D. candidate in the
Individual Interdisciplinary Doctoral Program (IIDP). I can
find no sufficient basis on which to overturn the academic
judgment of these five WSU Professors.

Sincerely,
s/ H.H. Hill
Herbert H. Hill
Associate Dean of the Graduate School
Coordinator of the Individual Interdisciplinary Doctoral
Program
cc: Karen DePauw, Dean of the Graduate School
Ken Duft

128

Date: Wed, 19 May 1999 09:27:29-0500
From Ken D. Duftduftk@wsu.edu

To: inaba@wsu.edu, zhanghao@wsu.edu,
wanghong@wsu.edu, jkling@wsu.edu,
bsakkara@wsun:x.wsu.edu

Subject: Graduate Advisory Committee

First of all, I'd like to thank each of you for agreeing to serve
in Ben’s Graduate Advisory Committee. I look forward to
working with you. In an attempt to get Ben’s program
focused, and provide him with advice/direction, I’ve asked
that the attached materials be prepared. Please review this
proposal and respond with any comments/observations. In
particular, I would direct your attention to the requested
exemption relating to exams already passed, the proposed
contents of the written exam in Finance, the take-home exam
in Agribusiness Management and Marketing, and the
proposed time schedule. I solicite your approval and/or
comments and invite you to add or amend the proposed
materials as you judge appropriate. My goal is to afford Ben
some direction to his work and study over the next six
months, or that period of time leading up to the examinations.
Thank you again for your assistance and please feel free to
contact me if you have questions. My hope is that we can all
reach an agreement on this program of study/examination
before the end of June.

Ken D. Duft
Prelim~1.1.wpd

129

Date: Wed, 26 May 199913:31:33-0700(PDT)
To: Ken D. Duft duftk@wsu.edu

From: Hong Wang
Subject: Re: Graduate Advisory Committee

Ken,
Sorry for replying late, | was in Toronto the whole last week.

Thanks for preparing the document, it looks good to me.
(You might have noticed that the fonts are not consistent.) |
agree to the prelim exams you proposed. As I’m not familiar
wit some of the books in the reading list, | wonder if you
have included some readings on the Present Value models.
These are relevant in financial management and investment.
The book “Present Value Models and Investment Analysis”
by Robinson and Barry 1996, The Academic Page, is a good
one.

I will be gone frorn 6/1 to 7/9. Please let me know what I can
do next.

Holly

Hong Holly Wang, Asst. Professor, Phone (O)(509)335-8521
Dept. of Agricultural Economics (H))509(334-0344
Washington State University FAX (509(335-1173
P.O. Box 646210 Email: wanghong@vwsu.edu

Pullman, WA 99164-6210

130

Date: Thu, 03 Jun 1999 15:28:37-0500
From Ken D. Duftduftk@wsu.edu

To: bsakkara@wsunix.wsu.edu
Subject: Ben’s Prelim Proposal

Ben,

I’m not sure what Professor Inaba is asking here. Can you
assist?

Ken

From: inaba(@wsu.edu

Date: Thu, 20 May 1999 16:48:44-0700(PDT)
To: duftk@wsu.edu
Subject: Ben’s Prelim Proposal

Ken:

I received Ben’s Prelim Proposal for his IIDP. | have only
one question concerning the oral exam. Will Ben be
responsible for reviewing the material covered on the written
exams he took earlier (and are exempted in the IIDP)? In

particular, will he be responsible for material covered in the
Microeconomics Core Exam?

131

Proposed Content and Format of the Preliminary
Examination ,

Individual Interdisciplinary Doctoral Program (IIDP)
For Benjapon Sakkarapope

Advisory Committee:

Dr. Kenneth Duft: Chair, Dept. of Agricultural Economics
Dr. Hong Holly Wang: Committee, Dept. of Agricultural
Economics

Dr. Frederick Inaba: Committee, Dept. of Economics

Dr. John L. Kling: Committee, Dept. of Finance

Dr. Hao Zhang: Committee, Dept. of Statistics

Requirement:
The preliminary examination contains both written
and oral portions.

Schedule:
-Written examination: 2” week of December 1999
- Oral examination: 2™ week of January 2000

Written examination:

General requirement/format:

“The content, format and schedule for the written
examination will be determined by the student’s advisory
committee. The committee may be guided by an
examination format normally utilized in the chairperson’s
department, introducing alternations in that format as
appropriate for the individual student” (IIDP handbook, p.
15).

According to the [IDP handbook, page 15 (the blue-
cover handbook), the content of the questions should cover
three disciplines, Economics, Agricultural Economics, and
Finance. “The committee members may want to write

* This content and format of the examination was approved and agreed
upon by the committee members and the student in May 1999 as part of
the procedure subscribed in the IIDP Faculty/Student Handbook.

132

individual questions based upon their specific expertise,
dawn from the examination reading list the committee has
agreed upon for the student to study. The committee may
then gather (without the student), bring with them their
individual questions. The committee will then proceed to
select and/or compose questions for the examination,
ensuring all of the areas for which the student is responsible
are covered.”

Exemption requested:

Since the student already passed the microeconomic
core exam, Dept. of Economics and the theory preliminary
exam, Dept. of Agricultural Economics, the committee will
give credits for both portions. Each exam is a four-hour
exam drawn from fundamental theories of each discipline. It
is also required for doctoral students in the doctoral programs
and reflects a higher level of expertise of each discipline than
the IIDP expectation.

Proposed written exam:

The exam will contain two remaining portions: i)
Finance and ii) Agribusiness management and markcting.

i)Finance. The exam will be a four-hour-in-class

exam: (1) Financial management and investment:
three questions and choose two, and (2) Finance

Theory: three questions and choose two.

ii)Agribusiness management and marketing. The

exam will be a one-week-take-home exam and case
study format.

Oral Examination:

“The oral examination is conducted by the entire
committee and a representative of the Graduate Studies
Committee. The program coordinator of the Individual
Interdisciplinary Doctoral Program will also ordinarily be
present. During the oral examination, the student may be
asked to address any questions remaining after committee
members have read the written examination, any related

133

scholarship, and if appropriate, the student’s future research
plans” (IIDP handbook, p. 15).

Email address:

“Frederick Inaba” inaba@vwsu.edu, phone: 335-1940

“Hao Zhang” zhanghao@wsu.edu, phone: 335-2958

“Hong Holly Wang” wanghong@wsu.edu, phone: 335-8521
“John Lee Kling jkling@wsu.edu, phone: 335-093 1
“Kenneth D. Duft” duftk@wsu.edu, phone: 335-2972
“Benjapon Sakkarapope” bsakkara@wsunix.wsu.edu, phone:
332-8911

Suggested reading list for the preliminary examination:

Financial management and investment:

Brigham, Eugene F. 1995. Fundamentals of Financial
Management. 7”. The Dryden Press: Philadelphia.

Sharpe, William F., Gordon J. Alexander, and Jeffery V.
Bailey. 1995. Investment. Prentice Hall: New Jersey.

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Sharpe, W. 196

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_2100%3A2. Public record. Not legal advice.