Blum v. Schlegel

• Decision Date: 04 March 1994
• Docket Number: No. 811,D,811
• Citation: 18 F.3d 1005
• Court: U.S. Court of Appeals — Second Circuit
• Parties: 90 Ed. Law Rep. 21 Jeffrey M. BLUM, Plaintiff-Appellant, v. John H. SCHLEGEL, in his personal & official capacity as Associate Dean of the State University of New York at Buffalo School of Law, David B. Filvaroff, in his personal & official capacity as Dean of the State University of New York at Buffalo School of Law, William R. Greiner, in his personal & official capacity as Provost & President of the State University of New York at Buffalo, Kenneth J. Levy, in his personal & official capacity as Acting Provost of the State University of New York at Buffalo, Alan S. Carrel, in his personal & official capacity as Associate Dean of the State University of New York at Buffalo School of Law, Elizabeth B. Mensch, Professor of Law, Alan D. Freeman, Professor of Law, Charles P. Ewing, Professor of Law, D. Bruce Johnstone, in his official capacity as Chancellor of the State University of New York, John Doe, Officer of the State University of New York at Buffalo, Jane Doe, Officer of the State University of New York at Buffalo, Defendants-Appellees, Dianne Avery, Movant, Daniel Harris, Petitioner. ocket 93-7689.

Page 1005

18 F.3d 1005

90 Ed. Law Rep. 21

Jeffrey M. BLUM, Plaintiff-Appellant, v. John H. SCHLEGEL, in his personal & official capacity as Associate Dean of the State University of New York at Buffalo School of Law, David B. Filvaroff, in his personal &amp official capacity as Dean of the State University of New York at Buffalo School of Law, William R. Greiner, in his personal & official capacity as Provost & President of the State University of New York at Buffalo, Kenneth J. Levy, in his personal & official capacity as Acting Provost of the State University of New York at Buffalo, Alan S. Carrel, in his personal & official capacity as Associate Dean of the State University of New York at Buffalo School of Law Elizabeth B. Mensch, Professor of Law, Alan D. Freeman Professor of Law, Charles P. Ewing, Professor of Law, D Bruce Johnstone, in his official capacity as Chancellor of the State University of New York, John Doe, Officer of the State University of New York at Buffalo, Jane Doe, Officer of the State University of New York at Buffalo, Defendants-Appellees, Dianne Avery, Movant, Daniel Harris, Petitioner.

No. 811, Docket 93-7689.

United States Court of Appeals, Second Circuit.

Argued Dec. 7, 1993.

Decided March 4, 1994.

Jeffrey M. Blum, Williamsville, NY, pro se.

Douglas S. Cream, Asst. Atty. Gen., Buffalo, NY (Robert Abrams, Atty. Gen., Peter H. Schiff, Deputy Sol. Gen., Nancy A. Spiegel, Asst. Atty. Gen., of counsel, David Koepsell, student legal aide, on the brief), for defendants-appellees.

Before: NEWMAN, Chief Judge, OAKES and CARDAMONE, Circuit Judges.

OAKES, Senior Circuit Judge:

This appeal is from the denial of a motion for a preliminary injunction by the United States District Court for the Western District of New York, William M. Skretny, Judge. Appellant Jeffrey Blum's amended complaint alleges that his rights under the First, Fifth and Fourteenth Amendments were violated by the handling of his tenure and promotion review at a State university law school. Because he has shown neither a likelihood of success on the merits nor sufficiently serious questions going to the merits to make them a fair ground for litigation together with a balance of hardships "tipping decidedly" toward him, Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979) (per curiam), we affirm.

I. BACKGROUND

A. Factual History

Plaintiff/Appellant Jeffrey M. Blum joined the faculty of the State University of New York at Buffalo School of Law (the "Law School") as an associate professor in September, 1985. Blum was appointed to a six-year "tenure track" position, with tenure review available in the academic year 1990-1991. Blum's appointment provided that if Blum were denied tenure in his sixth year, his appointment would be extended for another year.

On September 13, 1989, defendant David Filvaroff, then Dean of the Law School, informed Blum that Blum's chances of receiving tenure were poor. Filvaroff repeated this prognosis to Blum during a meeting on October 1, 1990. Following that meeting, Blum and Filvaroff exchanged a series of letters. In the first of this series, a six page letter to Filvaroff dated October 16, 1990, Blum, inter alia, requested that his tenure and promotion review be scheduled for March 15, 1991. Joint Appendix at 16. In a four page reply dated November 1, 1991, Filvaroff acknowledged this request but also advised Blum that, in exceptional cases, tenure review could be deferred from the sixth to the seventh year. Filvaroff suggested that Blum avail himself of this option, deferring his tenure review until the academic year 1991-1992. During that time, Filvaroff further suggested that Blum accept a reduced teaching load and endeavor to improve his scholarship. Joint Appendix at 19.

Blum appeared receptive to Filvaroff's suggestions. In a letter to Filvaroff dated November 13, 1990, Blum wrote:

Your suggestion that I defer coming up for promotion until next fall may be a step in the right direction.... However, I cannot commit to this option at the present time. Before it can be realistically evaluated two things must occur. First, I will need you to specify what the half-load option would involve specifically in terms of courses.... Second, I will need to obtain copies of fully proper appointment papers for academic year 1991-1992.

Joint Appendix at 24. While negotiating these conditions, Blum stressed in the same letter that he had already "come to rely" on the suggestion that he defer tenure review while accepting a reduced teaching load:

I have come to rely on the option of coming up for promotion next fall in order to take advantage of the half-load option in the Spring as you suggest.

Id. Though Blum asserts that this letter referred only to his interest in deferring consideration for promotion to an elevated faculty rank, its reference to the "half-load option," which the dean had offered as a means of enhancing Blum's prospects for gaining tenure, permitted the district court to infer that Blum had indeed "come to rely" on the option to defer tenure review. Filvaroff acknowledged Blum's November 13 letter in a letter to Blum dated November 15, 1990. Filvaroff wrote I think you have made an appropriate choice in deciding to defer your tenure consideration until next fall. I will, accordingly, proceed with arranging for your appointment for the 1991-92 academic year and will supply you with the relevant confirmation.

Joint Appendix at 634.

On November 15, 1990, Blum sent Filvaroff a "brief supplement" to his letter of November 13. ¹ Joint Appendix at 25. In that letter, Blum discussed "two matters [that] have occurred to me" since the November 13 letter. Blum explained that his request for "fully proper appointment papers" was a request for an appointment letter identical to his last appointment letter with some revisions to reflect the new period of appointment and any salary increases to which Blum might be entitled. Blum attached a copy of his last appointment letter. ²

On November 16, 1990, Filvaroff responded to Blum's November 15 letter. He indicated that he was seeking both to resolve the specifics of Blum's spring course load and to obtain "appropriate written confirmation of your status for next year." Filvaroff indicated, however, that he believed such written confirmation to be unnecessary:

You will recall, I am sure, that you already have my letter of September 13, 1989, which makes it clear that if tenure were not granted during the current academic year, your contract would be extended to cover the 1991-92 academic year.

Joint Appendix at 28. Blum responded to the November 16 letter, writing:

My understanding from your letter is that we are in accord as to the continuing validity of your September 19, 1989 promise to extend my current contract through August 31, 1992, that you will seek to provide me with President Sample's written confirmation of this as quickly as reasonably possible, that the official appointment form I requested will be forthcoming, except that it may take some time for complete approval and processing. Nevertheless, you do continue to guarantee the bottom line result. Please inform me by letter immediately if any of these understandings is incorrect. Obviously, it is a matter of some personal urgency that I be able to rely on these things.

Letter of Blum to Filvaroff dated November 16, 1990, Joint Appendix at 30 (emphasis added).

In a letter to Blum dated December 21, 1990, Filvaroff wrote:

As you are aware, your present appointment to the faculty is now scheduled to terminate on August 31, 1991, the sixth year of your appointment. In accordance with our earlier conversations, I have recommended to the Provost that you be reappointed for an additional one-year term beginning September 1, 1991, and extending to August 31, 1992. This will allow you additional time to continue work on your scholarship and allow presentation of your candidacy for promotion and tenure sometime next fall; it is my understanding that this complies with your wishes.

Joint Appendix at 635. The letter continued to apprise Blum of the fact that:

[because] you will have already served for three years as an Associate Professor, SUNY rules require that your reappointment be effected with a change of title. Thus, the formal documents will designate your status as that of a Visiting Associate Professor.

Id. Filvaroff apparently was referring to provisions of the University Handbook governing continuing appointments. Title B, Sec. 3(a) of that Handbook provides:

Except as provided in subdivision (c) of this section, further employment as ... Associate Professor ... after the third consecutive year of service in any one or any several of these ranks at any one college must be on the basis of continuing appointment; provided, however, such appointment shall not be effective until made so by the Chancellor....

Joint Appendix at 31. Filvaroff appears to have been concerned that if Blum had been appointed to a fourth year as an Associate Professor, he would claim that he had been awarded a continuing appointment. This concern appears to have been well-founded for Blum, in a letter to Filvaroff dated January 5, 1991, ³ wrote:

your plan of separating the tenure from the promotion part of the process was a good way of making clear that I could not be gotten rid of through backstabbing and petty conspiracies.

Joint Appendix at 38.

In a letter dated February 1, 1991, Filvaroff responded to this letter and a letter from Blum dated January 21, 1991. In that letter, Filvaroff reviewed the extensive correspondence between him and Blum and responded "to the main substance of [Blum's] communication." Filvaroff characterized Blum's position in this way:

you now assert that you were assured not only that you would be reappointed for the 1991-1992 academic year, but that you would simultaneously be awarded tenure by administrative action--without any faculty...