Moreno v. University of Maryland

• Decision Date: 26 March 1981
• Docket Number: No. 80-1400,80-1400
• Citation: 645 F.2d 217
• Parties: Juan Carlos MORENO; Juan Pablo Otero; Clare B. Hogg; Renee Otero, Jr., Appellees, v. UNIVERSITY OF MARYLAND, and John S. Toll, President, University of Maryland, Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 217

645 F.2d 217

Juan Carlos MORENO; Juan Pablo Otero; Clare B. Hogg; Renee

Otero, Jr., Appellees, v. UNIVERSITY OF MARYLAND, and John S. Toll, President, University of Maryland, Appellants.

No. 80-1400.

United States Court of Appeals, Fourth Circuit.

Argued Jan. 8, 1981.

Decided March 26, 1981.

David H. Feldman, Robert A. Zarnoch, Asst. Atty. Gen., Baltimore, Md. (Stephen H. Sachs, Atty. Gen. of Maryland, Baltimore, Md., on brief), for appellants.

James R. Bieke, Washington, D. C. (R. James Woolsey, John Townsend Rich, Alfred L. Scanlan, Shea & Gardner, Washington, D. C., on brief), for appellees.

Before WINTER, RUSSELL, and ERVIN, Circuit Judges.

PER CURIAM:

The President of the University of Maryland appeals from the judgment of the district court ordering him to permit plaintiffs to demonstrate their entitlement to "In-State" status for purposes of tuition and other fees charged by the University and to refund the difference between the "Out-of-State" tuition and fees actually paid by plaintiffs and the "In-State" tuition and fees they would have paid had they been permitted to demonstrate their entitlement thereto since July 13, 1976, the date of the district court's original judgment in their favor. We affirm.

I.

Plaintiffs represent a class of individuals holding "G-4" visas who attend the University of Maryland. The named plaintiffs are dependents of foreign national employees of the Inter-American Development Bank and the International Bank for Reconstruction and Development. Employees of these development banks and other international organizations, together with their immediate families, are classified as nonimmigrant aliens in this country under 8 U.S.C. § 1101(a) (15)(G)(iv) (1976). Unlike most nonimmigrant aliens, employees of international organizations often reside permanently in the United States; the development banks, for example, are headquartered in Washington, D. C. Plaintiffs reside in the Maryland suburbs of Washington. Unlike most aliens holding immigrant visas, employees of international organizations are exempt from federal and state income taxation, either by treaty (e. g., Agreement Establishing the Inter-American Development Bank art. XI, § 9(b), (1959) U.S.T. 3029, T.I.A.S. No. 4397; Articles of Agreement of the International Bank for Reconstruction and Development art. VII, § 9(b), 60 Stat. 1440, T.I.A.S. No. 1502 (1945)), or by statute, 22 U.S.C. § 288 (1976). The exemption, however, applies only to "salaries and emoluments" paid by the international organizations. The plaintiffs are subject to federal and state taxation on all other income and to federal, state and local excise, motor vehicle, real estate, retail sales and other taxes and charges.

At the time plaintiffs originally brought this suit in 1975, the University of Maryland had a policy of charging "Out-of-State" students higher tuition and other fees than it charged "In-State" students. It based the determination of "In-State" status on the student's showing of Maryland "domicile." The policy was phrased such that plaintiffs, despite their Maryland residency, could not establish Maryland "domicile," because they were nonimmigrant aliens. Plaintiffs challenged the policy in the district court pursuant to 42 U.S.C. § 1983 (1976) on the grounds that it denied them due process of law and equal protection under the fourteenth amendment and that it interfered with federal prerogatives over international agreements and immigration in violation of the Supremacy Clause of article VI.

The district court granted summary judgment to the plaintiffs on July 13, 1976. Following Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973), it held that the University's policy of denying "In-State" status to "G-4" nonimmigrant aliens created an "irrebuttable presumption" inconsistent with due process of law because the presumption that the plaintiffs could not establish Maryland "domicile" was not universally true and because University officials refused to permit the plaintiffs to prove "domicile." The court ordered the University officials to allow students with "G-4" visas to demonstrate Maryland "domicile" and thereby to qualify for "In-State" status. It reserved for plenary consideration the question of whether in fact the named plaintiffs could establish "domicile," and determined that it need not consider the plaintiffs' equal protection and Supremacy Clause claims in view of the due process basis for relief. Moreno v. University of Maryland, 420 F.Supp. 541 (D.Md.1976). ¹

The University president obtained a stay of the district court order pending appeal. In lieu of granting "In-State" status to students with "G-4" visas who could demonstrate Maryland "domicile," the University agreed to refund the difference between the "Out-of-State" tuition and fees the students would actually pay and the "In-State" tuition and fees they would have paid "but for the stay" in the event the district court's order "were finally affirmed on appeal."

We affirmed the district court's order without opinion, Moreno v. Elkins, 556 F.2d 573 (4 Cir. 1977), and the University president sought and obtained a writ of certiorari from the Supreme Court. On the merits, the Supreme Court stated that if the plaintiffs could establish Maryland "domicile," Vlandis v. Kline would control, and the Court would have to overrule that case to deny them relief. It declined to do so, choosing instead to obtain a possibly dispositive authoritative interpretation of state law. The Court held that federal law did not prevent a "G-4" nonimmigrant alien from establishing "domicile" in this country, and that state law would thus determine the issue. In the absence of Maryland precedent, the Court certified the question of whether Maryland law prohibited "G-4" nonimmigrant aliens from establishing Maryland "domicile" to the Court of Appeals of Maryland. Elkins v. Moreno, 435 U.S. 647, 98 S.Ct. 1338, 55 L.Ed.2d 614 (1978).

The Court of Appeals of Maryland answered the question in the negative. It held that neither the exemption from state income taxation enjoyed by "G-4" aliens nor their inability to vote in state elections precluded them from becoming domiciled in Maryland, particularly in view of the Supreme Court's express holding that "G-4" aliens could establish permanent residence in the United States. Toll v. Moreno, 284 Md. 425, 397 A.2d 1009 (1979). ²

While the case was pending before the Maryland court, the University Board of Regents purported to "clarify" its "In-State" status policy by passing a resolution on June 23, 1978, precluding nonimmigrant aliens from qualifying for "In-State" status. The Supreme Court, supplementing its earlier opinion, recognized that the resolution "fundamentally altered the posture of the case," raising new constitutional issues. It remanded the case to the district court "for further consideration in light of our opinion and judgment in Elkins, the opinion and judgment of the Maryland Court of Appeals in Toll, and the Board of Regents' clarifying resolution of June 23, 1978." Toll v. Moreno, 441 U.S. 458, 461-62, 99 S.Ct. 2044, 2045-46, 60 L.Ed.2d 354 (1979).

II.

On remand, the district court first reviewed the status of the due process issue in the case. It concluded that the Supreme Court's original decision in Elkins and the Maryland Court of Appeals' decision in Toll established plaintiffs' ability to prove Maryland "domicile." The University's policy prior to June 23, 1978, thus created an impermissible irrebuttable presumption, denying due process of law to the plaintiffs. The district court further held that the University's policy after that date, expressed in the Board of Regents' resolution, no longer created an irrebuttable presumption, because under the University's more restrictive definition, nonimmigrant aliens could never prove "domicile" and qualify for "In-State" status. Moreno v. Toll, 480 F.Supp. 1116 (D.Md.1979). For reasons sufficiently stated in ...