159 F.3d 487 (10th Cir. 1998), 96-2121, Buchwald v. University of New Mexico School of Medicine

Docket Nº:96-2121, 96-2129.
Citation:159 F.3d 487
Party Name:Paula M. BUCHWALD, Plaintiff-Appellee, v. UNIVERSITY OF NEW MEXICO SCHOOL OF MEDICINE, University of New Mexico Board of Regents, University of New Mexico School of Medicine Committee on Admissions; Diane Klepper, M.D., individually and as Co-Chairperson, Committee on Admissions; Alonzo C. Atencio, Ph.D., individually and as Co-Chairperson, Committ
Case Date:October 20, 1998
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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159 F.3d 487 (10th Cir. 1998)

Paula M. BUCHWALD, Plaintiff-Appellee,



New Mexico Board of Regents, University of New Mexico School

of Medicine Committee on Admissions; Diane Klepper, M.D.,

individually and as Co-Chairperson, Committee on Admissions;

Alonzo C. Atencio, Ph.D., individually and as

Co-Chairperson, Committee on Admissions, Defendants--Appellants.

Nos. 96-2121, 96-2129.

United States Court of Appeals, Tenth Circuit

October 20, 1998

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Paul R. Ritzma (Paul M. Schneider on the briefs), New Mexico Legal Bureau/RMD, Santa Fe, NM, for Defendants--Appellants.

Christina J. Bruff, Law & Resource Planning Associates, Inc., Albuquerque, NM, for Plaintiff--Appellee.

Before BRISCOE, McKAY and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

The University of New Mexico School of Medicine ("UNMSM") has a stated policy that, all other things being equal, it will favor long-term residents over short-term residents in its admissions process. The district court first found this preference to violate "clearly established" law concerning the fundamental right to travel and therefore ruled that the individual defendants, Doctors Klepper and Atencio, were not entitled to qualified immunity. A week later, the district court issued an injunction prohibiting UNMSM from considering length of residency in future admission decisions. This interlocutory appeal followed. The questions before us on appeal are: (1) does Ms. Buchwald have standing to seek the injunction entered by the district court in its second order; (2) did the district court err in finding that no defendants are entitled to Eleventh Amendment immunity; and (3) did the district court err in finding that Klepper and Atencio are not entitled to qualified immunity in their individual capacities? We reverse in part and affirm in part.


The facts relevant to this appeal are undisputed. Paula Buchwald moved to New Mexico in 1991. She submitted an application to UNMSM seeking admission to the 1993-94 entering class. Unsuccessful, Buchwald re-applied the following year for the 1994-95 class. When that application was denied, she re-applied for admission to the 1995-96 class. Once again, she was rejected. After each denial, Buchwald interviewed with UNMSM to ascertain how she might strengthen a future application. At each interview, Buchwald's relatively short residency in the state of New Mexico was cited as an obstacle to her admission.

Defendants do not dispute that UNMSM uses duration of residency as a "plus factor" in evaluating applicants. In fact, according to UNMSM's "Admissions Policy Statement":

An important non-performance factor in considering students for admission ... is the residency status of the student. As a state-supported institution in a state where health care needs are great, the medical school feels strongly that most of the accepted applicants should be residents of New Mexico. Further, the Committee on Admissions tends to give preference to long-term residents of the state and graduates of New Mexico high schools, other qualifications being equal.

Appellants' App. at 91. The Policy Statement justifies favoring long-term residents in part by pointing to the "unique problems in the delivery of health care" present in the state of New Mexico. See id. at 92.

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After her third rejection, Buchwald filed the instant action against UNMSM, its Regents, the Committee on Admissions, and the two chairpersons of the admissions committee seeking compensatory damages as well as declaratory and injunctive relief. She claims that defendants' admissions policy violates the Commerce Clause of the United States Constitution, as well as her equal protection and due process rights. The focal point of Buchwald's claims is the alleged violation of her "fundamental right to interstate migration." Defendants filed for summary judgment, arguing that the official defendants are entitled to Eleventh Amendment immunity and the individual defendants, Klepper and Atencio, to qualified immunity. The plaintiff counterfiled for summary judgment as to her claim for declaratory relief.

On May 23, 1996, the district court ruled that UNMSM, its Regents, the Committee on Admissions, and the two individual defendants sued in their official capacity were immune from plaintiff's damages claim. However, the district court refused to extend qualified immunity to Klepper and Atencio in their individual capacities because it found, first, that UNMSM's consideration of length of residency in its admissions policy violated clearly established law and, second, that plaintiff raised a genuine issue of fact as to whether Klepper and Atencio violated that right. One week later, the district court found UNMSM's durational residency criterion constitutionally infirm and enjoined the school from any further use of that admissions factor. Defendants appeal.


Plaintiff challenges our jurisdiction to hear this case due to the absence of a final judgment. Appeal is not generally permissible until after the district court has issued a final decision, see 28 U.S.C. § 1291, but there are limited exceptions to that rule. A defendant may immediately appeal "[i]nterlocutory orders of the district courts of the United States ... granting ... injunctions." 28 U.S.C. § 1292(a)(1). Although the plaintiff's concerns about the potential for delay are understandable, we have jurisdiction to review the injunction issued on May 30, 1996.

We may also review the district court's denial of qualified immunity to Klepper and Atencio. When a plaintiff brings an action against a government official in his or her individual capacity, "that official is generally provided with a qualified immunity against civil damages liability." Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). In order to avoid summary judgment based on a defendant's assertion of qualified immunity, a plaintiff must show not only that the defendant violated her rights, but also that the rights violated were "clearly established" at the time of the violation. Id. at 639, 107 S.Ct. 3034.

A denial of qualified immunity may be immediately appealed because immunity protects defendants not only from liability but also from having to endure the "burdens of litigation." See Behrens v. Pelletier, 516 U.S. 299, 306, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996). The rule is not absolute; we have no jurisdiction to review a denial of qualified immunity when the interlocutory appeal focuses in whole or in part on the resolution of factual issues. See Johnson v. Jones, 515 U.S. 304, 313, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995); see also Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (holding denial of a claim of immunity "immediately appealable" to the extent that it turns on an issue of law). In this case, the district court denied qualified immunity because it found that the contours of the right to travel were "clearly established" and that plaintiff raised a genuine issue of material fact as to whether UNMSM had violated that right. Under Johnson, therefore, we may review the district court's finding that plaintiff has such a right or that such right was "clearly established." See Behrens, 516 U.S. at 313, 116 S.Ct. 834.


UNMSM argues on appeal that plaintiff lacks standing to seek her requested relief. "Standing is a jurisdictional issue that may be raised by the court at any time." Wilson v. Glenwood Intermountain Properties, Inc., 98 F.3d 590, 592-93 (10th Cir.1996). In order to satisfy Article III standing, plaintiff

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must establish three elements: (1) "injury in fact"--meaning "the invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical"; (2) "a causal relationship between the injury and the challenged conduct"--meaning that the "injury fairly can be traced to the challenged action of the defendant"; and (3) "a likelihood that the injury will be redressed by a favorable decision"--meaning that the "prospect of obtaining relief from ... a favorable ruling is not too speculative." Northeastern Fla. Chapter of the Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 663-64, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993) (internal citations and quotations omitted). We do not address the merits of plaintiff's claims in our determination of standing because "[t]he fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated." Flast v. Cohen, 392 U.S. 83, 99, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968).

  1. Relief Sought in Complaint

    Injury in fact in an equal protection case like this may simply be the existence of a government-erected "barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group." City of Jacksonville, 508 U.S. at 666, 113 S.Ct. 2297. It is not necessary for plaintiff to show that she would have received the benefit but for the operation of the policy, because the injury is the imposition of the barrier itself. See id. Here, defendants admit favoring long-term over short-term residents, all other qualifications being equal, which by itself is therefore a sufficient demonstration of injury in fact. Because it is clear that defendant's stated policy "caused" the plaintiff to compete at a disadvantage vis-a-vis long-term residents, we have little doubt that, were the district court to award damages, plaintiff's injury would likely be redressed. 1 In addition, given that the district court found a genuine issue of material fact as to...

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