Goodisman v. Lytle
| Decision Date | 24 January 1984 |
| Docket Number | No. 83-3822,83-3822 |
| Citation | 724 F.2d 818 |
| Parties | 15 Ed. Law Rep. 652 Leonard D. GOODISMAN, Plaintiff-Appellant, v. Scott LYTLE, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Michael W. Gendler, David A. Bricklin, Bricklin & Gendler, Seattle, Wash., for plaintiff-appellant.
James B. Wilson, Seattle, Wash., for defendants-appellees.
Appeal from the United States District Court for the Western District of Washington.
Before WRIGHT, TANG, and ALARCON, Circuit Judges.
This appeal presents three issues: (1) Does the Eleventh Amendment to the United States Constitution bar this civil rights suit against the University of Washington, a state university, and its officials? (2) Does an untenured university professor have a constitutionally protected interest in the University's compliance with its own procedural regulations regarding promotion and tenure? (3) Did the University deprive Goodisman of equal protection of the law by denying a formal hearing that was granted to others similarly situated?
Goodisman was a nontenured Assistant Professor at the University of Washington's Graduate School of Public Affairs (GSPA). When he was reviewed to determine whether to promote and grant tenure, the GSPA faculty voted 6 to 4 in favor. Hazleton, GSPA Dean, recommended to the University President that tenure be denied. The President denied tenure on the ground that Goodisman's research and publications were weak.
Goodisman filed a complaint with the University Tenure Committee, challenging the decision and the underlying procedure. The Committee refused his request for a formal hearing, scheduling instead an informal meeting. It invited Goodisman and a faculty supporter and agreed to allow Goodisman's counsel to attend only if he did not participate in the meeting. Goodisman, his counsel and supporter chose not to attend.
The Tenure Committee upheld the challenged decision and procedures. Its decision was upheld by the University's Board of Regents.
Goodisman filed a civil rights suit under 42 U.S.C. Sec. 1983 against the University, the Board of Regents, the Tenure Committee and its Chair, and the University President. He alleged deprivation of due process, equal protection, and his right to counsel. He sought actual and punitive damages, reinstatement with tenure, and other equitable relief.
The district court granted summary judgment to the Defendants. Goodisman does not appeal the holding that his right to counsel was not violated.
The defendants contend that the University and its officials enjoy sovereign immunity, based on the Eleventh Amendment, from federal civil rights suits seeking damages or injunctive relief. U.S. Const. amend. XI. The district court did not address this issue, although it was raised there.
Goodisman's argument that this issue is not before us because defendants did not cross appeal is without merit. Appellees may assert any matter on the record to support the judgment below, without taking a cross appeal. United States v. 101.80 Acres of Land, 716 F.2d 714, 727 n. 24 (9th Cir.1983).
Goodisman's prayer for reinstatement is not barred. The Eleventh Amendment does not prohibit an award of prospective relief that requires ancillary payment from the state treasury. Milliken v. Bradley, 433 U.S. 267, 288-90, 97 S.Ct. 2749, 2761-62, 53 L.Ed.2d 745 (1977).
Defendants' contention that Cory v. White, 457 U.S. 85, 102 S.Ct. 2325, 72 L.Ed.2d 694 (1982), recognized a jurisdictional bar to equitable relief against state officials under the Eleventh Amendment is without merit. That case held that suit to restrain actions of state officials can be prosecuted only if those actions are without authority of state law or violate federal law. Id. at 89-91, 102 S.Ct. at 2328-2329. Because Goodisman alleges violations of the United States Constitution, Cory does not bar equitable relief.
Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 1355, 39 L.Ed.2d 662 (1974), held that suits in form or reality seeking retrospective money damages from a state treasury are barred by the Eleventh Amendment. Goodisman is barred from seeking money damages from the state treasury through liability of University officials in their official capacities. Rutledge v. Arizona Board of Regents, 660 F.2d 1345, 1350 (9th Cir.1981), aff'd on other grounds sub nom. Kush v. Rutledge, --- U.S. ----, 103 S.Ct. 1483, 75 L.Ed.2d 413 (1983). The Eleventh Amendment does not bar his claims against University officials in their individual capacities. Id.
Because the Eleventh Amendment does not preclude all relief sought, we shall consider the merits of the claims.
Goodisman's principal argument is that University officials deprived him of procedural due process. U.S. Const. amend. XIV. Those due process requirements apply only to liberty and property interests protected by the Fourteenth Amendment. Board of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972).
Goodisman does not argue that he has more than a unilateral expectation of tenure. See Haimowitz v. University of Nevada, 579 F.2d 526, 528 (9th Cir.1978). He contends that he has a protected property interest in the procedures established for making decisions on promotion and tenure, as set out in the University Faculty Code and GSPA policy statements.
A protected property interest exists if there is a "legitimate claim of entitlement" to a specific benefit. Roth, 408 U.S. at 577, 92 S.Ct. at 2709. A subjective expectancy creates no constitutionally protected interest. Perry v. Sinderman, 408 U.S. 593, 601-02, 92 S.Ct. 2694, 2699-700, 33 L.Ed.2d 570 (1972).
Procedural requirements ordinarily do not transform a unilateral expectation into a constitutionally protected property interest. Jacobson v. Hannifin, 627 F.2d 177, 180 (9th Cir.1980). A constitutionally protected interest has been created only if the procedural requirements are intended to be a "significant substantive restriction" on the University's decision making. Id.; Parks v. Watson, 716 F.2d 646, 656-57 (9th Cir.1983). If the procedures required impose no significant limitation on the discretion of the decision maker, the expectation of a specific decision is not enhanced enough to establish a constitutionally protected interest in the procedures. Jacobson, 627 F.2d...
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