UDC Chairs Chapter, American Ass'n of University Professors v. Board of Trustees of University of District of Columbia, 93-7249

• Decision Date: 20 June 1995
• Docket Number: No. 93-7249,93-7249
• Citation: 56 F.3d 1469
• Parties: , 101 Ed. Law Rep. 59 UDC CHAIRS CHAPTER, AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS, et al., Appellants, v. The BOARD OF TRUSTEES OF the UNIVERSITY OF the DISTRICT OF COLUMBIA, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1469

56 F.3d 1469

312 U.S.App.D.C. 399, 101 Ed. Law Rep. 59

UDC CHAIRS CHAPTER, AMERICAN ASSOCIATION OF UNIVERSITY

PROFESSORS, et al., Appellants, v. The BOARD OF TRUSTEES OF the UNIVERSITY OF the DISTRICT OF

COLUMBIA, et al., Appellees.

No. 93-7249.

United States Court of Appeals, District of Columbia Circuit.

Argued February 6, 1995.

Decided June 20, 1995.

Douglas B. Huron, Washington, DC, argued the cause and filed the briefs, for appellants.

David A. Splitt, Washington, DC, argued the cause, for appellees. With him on the brief was Robin C. Alexander, Washington, DC.

Before WALD, SILBERMAN, and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge:

Facing a serious financial crisis, the University of the District of Columbia, an independent agency of the D.C. government, implemented a number of cost-saving measures, including a plan to scale back its 1992 summer school program by not extending summer contracts to its department chairpersons. Protesting this sharp departure from a decade-long practice of issuing such contracts, thirty-three of the department chairs filed suit under 42 U.S.C. Sec. 1983 (1988). They claimed that the University had deprived them of a constitutionally protected property right without due process of law in violation of the Fifth Amendment and had breached their contractual rights as employees of the government of the District of Columbia. The district court granted summary judgment to the University with respect to the chairpersons' Fifth Amendment claim and dismissed their common law contract claim for failure to exhaust administrative remedies. We affirm the district court's grant of summary judgment. Even if the chairpersons had a constitutionally protected property interest in summer employment--an issue that we do not address--we hold that the University's grievance procedures, which the chairpersons did not pursue, would have accorded them all the process that they were due. We also affirm the district court's dismissal of the chairpersons' common law claim and decline to address their constitutional Contract Clause claim because they did not raise it in the district court.

I.

The University's fifty departments are headed by chairpersons chosen from among the regular faculty by the deans of the relevant colleges. Chairpersons perform administrative and supervisory duties, in addition to teaching. Like regular faculty members, chairpersons are employed by the University pursuant to nine-month "academic year" contracts. Until the summer of 1992, the University also offered chairpersons additional contracts covering the eight-week summer term with compensation set at twenty-two percent of their academic year faculty salaries.

In the autumn of 1991, the University began to address budget shortfalls that it anticipated would result from reduced government funding and depletion of its cash reserves. Dr. Tilden LeMelle, President of the University, proposed a wide range of initiatives designed to lower operating costs, such as hiring freezes, pay cuts and program restructuring. One of his recommendations led to a decision not to issue contracts to department chairpersons for the 1992 summer term.

On April 28, 1992, Acting Provost and Vice-President for Academic Affairs Marcellina Brooks formally announced the summer contract decision to the deans and instructed them to inform their respective chairpersons. Two weeks later, on May 14, she sent a written memorandum directly to the chairpersons, advising them that: "In the interest of expanding the course offerings during this time of fiscal limitations, the University will not employ department chairpersons this summer. You will resume your duties as chairperson effective August 16, 1992." Memorandum from Marcellina Brooks, Acting Provost and Vice-President for Academic Affairs, to Department Chairpersons (May 14, 1992), in Joint Appendix (J.A.) at 216. This decision became effective at the beginning of the summer term, a few days after the academic year ended on May 15.

Surprised by this change in the University's practice of issuing summer contracts, the chairpersons complained to their respective deans. The deans uniformly disclaimed any ability to alter the administration's decision. On behalf of a group of chairpersons, one chairperson wrote to President LeMelle requesting that he "direct[ ] immediate issuance of chairpersons' summer employment contracts" or "notify me ... of the appropriate procedures for bringing a formal grievance against the University on behalf of the departmental chairpersons." Letter from Dr. Wilmer L. Johnson to Dr. Tilden J. LeMelle 2 (June 9, 1992), in J.A. at 66. Although the President's response said that he had forwarded the letter to the University's General Counsel, Letter from Dr. Tilden J. LeMelle to Dr. Wilmer L. Johnson (July 7, 1992), in J.A. at 68, the chairpersons did not receive a formal response from the General Counsel's office. Nor did the chairpersons initiate a formal grievance.

In January of the following year, thirty-three of the department chairpersons brought this suit under 42 U.S.C. Sec. 1983 against the Board of Trustees of the University, President LeMelle and Acting Provost Brooks, alleging that they had been deprived of summer employment in 1992 without due process in violation of the Fifth Amendment. See Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884 (1954) (applying Fifth, rather than Fourteenth, Amendment to District of Columbia). Apart from a general claim for notice and a pre-deprivation hearing, the chairpersons did not specify the process they sought. They moved for partial summary judgment on liability, reserving the issue of damages for a jury. The University cross-motioned for a complete disposition of the case through summary judgment.

The district court rejected the chairpersons' claim that a property right to summer employment arose from the D.C. Municipal Regulations, D.C.Mun.Regs. tit. 8 (1988), or from the University's practice of issuing summer contracts to department chairs. In the absence of a "mutually explicit understanding," Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972), or "a legitimate claim of entitlement," Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972), the district court held that the chairpersons had no constitutionally protected property interest and granted summary judgment in favor of the University on the chairs' Fifth Amendment due process claim. The chairpersons also raised a common law contract claim that the district court dismissed for failure to exhaust administrative remedies. The chairpersons appeal both decisions of the district court, adding a third claim that the University violated the Contract Clause of the Constitution.

II.

We review de novo the district court's grant of summary judgment. See Propert v. District of Columbia, 948 F.2d 1327, 1331 (D.C.Cir.1991). We must decide whether a "genuine issue as to any material fact" exists and, if not, whether "the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). We give the party against whom summary judgment was granted "the benefit of all reasonable evidentiary inferences that can be drawn in his favor." Abourezk v. New York Airlines, Inc., 895 F.2d 1456, 1458 (D.C.Cir.1990) (internal quotation marks and citations omitted). And of significance for this case, we may determine whether summary judgment should be granted on different grounds than those upon which the district court relied. See Doe v. Gates, 981 F.2d 1316, 1322 (D.C.Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 337, 126 L.Ed.2d 282 (1993).

In order to assess whether the government has violated the Fifth Amendment's Due Process Clause, we engage in a "familiar two-part inquiry": we must determine whether the plaintiffs were deprived of a protected interest, and, if so, whether they received the process they were due. Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102 S.Ct. 1148, 1153-54, 71 L.Ed.2d 265 (1982); see also Reeve Aleutian Airways, Inc. v. United States, 982 F.2d 594, 598 (D.C.Cir.1993). The district court granted summary judgment for the University after deciding that the chairs had no constitutionally protected property interest to compensation for the 1992 summer term. We find it unnecessary to decide that issue because, even assuming that a property interest existed, we conclude that the chairpersons would have received adequate due process under the University grievance procedures had they used them.

In response to the question "what process is due," Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972), the Supreme Court has established a "general rule that individuals must receive notice and an opportunity to be heard before the Government deprives them of property." United States v. James Daniel Good Real Property, --- U.S. ----, ----, 114 S.Ct. 492, 499, 126 L.Ed.2d 490 (1993); see also Cleveland Board of Education v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 1493, 84 L.Ed.2d 494 (1985) ("essential principle" of Due Process Clause is prior notice and hearing). Due process, while "flexible" and determined by the particular circumstances of each situation, Morrissey v. Brewer, 408 U.S. at 481, 92 S.Ct. at 2600, requires, at a minimum, an "opportunity to be heard at a meaningful time and in a meaningful manner," Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976) (internal quotation marks and citation omitted).

The chairs claim that the notice they received was insufficient, but they do not support this assertion, nor could they: the department chairpersons received written notice of the administration's decision from Acting Provost Brooks on May 14. Brooks' memorandum clearly satisfies the due process requirement that notice be "reasonably...