Skehan v. Board of Trustees of Bloomsburg State College

Decision Date21 December 1978
Docket NumberNos. 77-2311,No. 77-2311,77-2312,No. 77-2312,B,77-2311,s. 77-2311
Citation590 F.2d 470
PartiesDr. Joseph T. SKEHAN v. BOARD OF TRUSTEES OF BLOOMSBURG STATE COLLEGE and Dr. Robert Nossen and Dr. Charles Carlson and John Pittenger, Superintendent of Education, Commonwealth of Pennsylvania and Bloomsburg State College. Dr. Joseph T. Skehan, Appellant inoard of Trustees of Bloomsburg State College and Dr. Robert Nossen and Dr. Charles Carlson and John Pittenger, Superintendent of Education, Commonwealth of Pennsylvania and Bloomsburg State College, Appellants in
CourtU.S. Court of Appeals — Third Circuit

Cletus P. Lyman, Richard A. Ash, Lyman & Ash, Larry D. Glass, Philadelphia, Pa., for appellant in No. 77-2311.

Allen C. Warshaw, Howard M. Levinson, J. Justin Blewitt, Jr., Deputy Attys. Gen., Gerald Gornish, Atty. Gen., Dept. of Justice, Harrisburg, Pa., for appellants in No. 77-2312.

Before SEITZ, Chief Judge, HUNTER, Circuit Judge, and LACEY *, District Judge.


SEITZ, Chief Judge.

Plaintiff, Dr. Joseph T. Skehan (appellant in No. 77-2311), appeals from the following aspects of a final judgment entered by the district court, embodied in three separate orders and opinions: 1) a denial of Skehan's motion for judgment in his behalf on a claim that his contract as a faculty member of Bloomsburg State College was not renewed beyond the 1970-71 academic year for reasons violative of the first amendment; 2) a denial of Skehan's request for an award of monetary damages from either the College or the individual defendants as a remedy for the defendants' violation of his due process rights with respect to both his nonrenewal and his later dismissal from the College faculty; 3) a denial of Skehan's request that he be awarded equitable relief in the nature of full reinstatement to the College faculty as a remedy for the defendants' violations of his constitutional rights; and 4) a denial of Skehan's claim for attorney's fees and expenses.

Defendants, Bloomsburg State College, its Board of Trustees, Dr. Robert Nossen (President of the College during the period in which the events culminating in this lawsuit transpired), Dr. Charles Carlson (acting President of the College at the time Skehan filed his complaint) and John Pittenger (Pennsylvania Superintendent of Education) (appellants in No. 77-2312), cross-appeal from that aspect of the district court's judgment finding that Skehan was contractually entitled to an "academic freedom" hearing following his nonrenewal and that their failure to provide him with such a hearing violated his rights under the due process clause of the fourteenth amendment.

Factual Background

The history of this litigation over the course of the past eight years may be garnered from the two previous opinions of this Court and the three opinions of the district court at issue here. The facts essential to an appreciation of the questions presented in this appeal are recounted herein.

Dr. Skehan was appointed as a non-tenured Associate Professor of Economics at Bloomsburg State College in January, 1969. His contract was renewed for the 1969-70 academic year, but on February 27, 1970, the College's Board of Trustees, on the recommendation of defendant Nossen, decided that Skehan should be notified that the 1970-71 academic year would be the terminal year of his appointment. Skehan was notified of the Board's action through a letter from President Nossen, dated May 19, 1970.

On September 21, 1970, Skehan wrote Nossen a letter invoking Article 5e of the Statement of Policy for Continuous Employment and Academic Freedom at Bloomsburg State College (hereinafter Article 5e). In that letter he alleged that the decision not to reappoint him after 1970-71 had been caused by considerations violative of his academic freedom. 1 Nossen did not refer Skehan's letter to the Committee on Professional Affairs, the College body charged with initiating proceedings under Article 5e to resolve such allegations, nor did Skehan take any further action to secure an Article 5e hearing.

Contemporaneous with his invocation of Article 5e, Dr. Skehan became embroiled in a dispute between the economics department and the College's administration concerning the scheduling of classes. During that dispute Skehan was warned that his failure to teach his classes as scheduled by the College would result in the taking of immediate and direct administrative action against him. On or about October 1, 1970, Dr. Skehan was observed teaching a course not assigned to him, and on October 9 Dr. Nossen notified Skehan that he was relieved of all classroom responsibilities pending a final hearing. Nossen's letter of October 9 also demanded of Skehan a "full and complete accountability" of his actions on campus since the start of the semester. When Skehan failed to comply with this demand, Dr. Nossen informed him that, effective October 17, 1970, he was removed from the College's payroll, subject to final approval by the Board of Trustees. That approval was obtained at the Board's regularly scheduled meeting of October 23, 1970.

Skehan filed a complaint in district court on October 10, 1972. He alleged that his suspension and ultimate dismissal in the Fall of 1970 were in retaliation for his active role in campus political issues, and hence were violative of his rights under the first amendment. He also alleged that the defendants suspended and dismissed him without complying with the applicable College laws and regulations governing faculty status, thereby depriving him of that due process of law guaranteed by the fourteenth amendment. He requested preliminary and permanent injunctive relief in the nature of reinstatement and an award of attorney's fees.

The district court held a hearing on Skehan's request for a preliminary injunction on January 11 and 12, 1973. Preliminary injunctive relief was denied in an opinion and order dated January 31, 1973. Skehan v. Board of Trustees of Bloomsburg State College, 353 F.Supp. 542 (M.D.Pa.1973). Subsequently, the parties stipulated that a final hearing could be held on the record developed at the preliminary injunction hearing, and the district court issued its opinion on the merits on May 9, 1973. Skehan v. Board of Trustees of Bloomsburg State College, 358 F.Supp. 430 (M.D.Pa.1973).

In that opinion, the district court held that Skehan's dismissal from the faculty had been a result of his actions during the scheduling dispute. Thus, his dismissal was found not to have been violative of the first amendment. However, the district court did find that Skehan's dismissal during the term of his contract entitled him, under the due process clause, to a prior hearing on the grounds of his dismissal, and that such a hearing had not been afforded Skehan by the College.

On appeal this Court affirmed both findings with respect to Skehan's dismissal, but noted that Skehan had also challenged the constitutionality of the Board of Trustees' decision not to renew his contract beyond 1970-71. Thus, this case was remanded to the district court for findings on the questions whether the nonrenewal decision had been motivated by the College administration's disagreement with Skehan's stands on campus issues and whether Article 5e had contractually entitled Skehan to a hearing on the reasons for his nonrenewal. This Court also directed the district court to consider whether the College shared in the sovereign immunity of the Commonwealth of Pennsylvania so that it would be immune under the eleventh amendment from Skehan's claim for damages. We held that the individual defendants were entitled to absolute immunity from damages as executive officials exercising discretionary governmental functions, and indicated that Skehan might be entitled to an award of attorney's fees from the College as a private attorney general vindicating a public interest. Skehan v. Board of Trustees of Bloomsburg State College, 501 F.2d 31 (3d Cir. 1974).

Trial on the issues remanded to the district court was postponed while Skehan's petition for writ of certiorari to the Supreme Court was pending. On May 27, 1975, the Supreme Court granted his writ, vacated the judgment of this Court, and remanded the case "for further consideration in light of Alyeska Pipeline Service Co. v. Wilderness Society, (421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975)), and Wood v. Strickland, 420 U.S. 308 (, 95 S.Ct. 992, 43 L.Ed.2d 214) (1975)." 421 U.S. 983, 95 S.Ct. 1986, 44 L.Ed.2d 474 (1975). This Court reviewed the case en banc on remand from the Supreme Court, and addressed itself to three issues respecting the relief to which Skehan might be entitled for the defendants' actions in bringing about his nonrenewal and termination. Skehan v. Board of Trustees of Bloomsburg State College, 538 F.2d 53 (3d Cir. 1976).

First, we noted that Alyeska had overruled the cases upon which this Court had earlier relied in determining that Skehan, as a "private attorney general," was entitled to an award of attorney's fees. Thus, the attorney's fees aspect of the case was remanded to the district court for findings on pre-litigation obduracy, and for consideration of an award of fees based on the defendants' future maintenance of this litigation in bad faith. This Court held that only the latter ground could be the basis of a fee award against the College given that it was a state agency for which the Commonwealth of Pennsylvania claimed sovereign immunity. 538 F.2d at 55-59.

Second, we noted that the Supreme Court had demonstrated in Wood v. Strickland that this Court's earlier holding that the individual defendants were absolutely immune from liability as nonjudicial government officials performing adjudicatory functions was inappropriate. Thus, the question of official immunity was remanded to the district court for findings of fact with respect to the immunity of each defendant under the test...

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