Skehan v. State System of Higher Educ.

• Decision Date: 05 March 1987
• Docket Number: No. 86-1531,86-1531
• Parties: 38 Ed. Law Rep. 887 SKEHAN, Dr. Joseph T., Appellant, v. STATE SYSTEM OF HIGHER EDUCATION. . Submitted Under Third Circuit Rule 12(6)
• Court: U.S. Court of Appeals — Third Circuit

Page 244

815 F.2d 244

38 Ed. Law Rep. 887

SKEHAN, Dr. Joseph T., Appellant, v. STATE SYSTEM OF HIGHER EDUCATION.

No. 86-1531.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit Rule 12(6)

March 5, 1987.

Decided March 18, 1987.

Cletus P. Lyman, Lyman & Ash, Philadelphia, Pa., for appellant.

LeRoy S. Zimmerman, Atty. Gen. by Calvin R. Koons, Deputy Atty. Gen., John G. Knorr, III, Sr. Deputy Atty. Gen., Andrew S. Gordon, Chief Deputy Atty. Gen., Chief, Litigation Section, Office of Atty. Gen., Harrisburg, Pa., for appellee.

Before: GIBBONS, Chief Judge, SEITZ and ALDISERT, Circuit Judges.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

Dr. Joseph T. Skehan, formerly an untenured associate professor of economics, again seeks back pay from an agency of the Commonwealth of Pennsylvania relating to an improper termination of his employment with Bloomsburg State College seventeen years ago. Skehan's previous efforts to obtain this retrospective financial relief in the federal courts have been thwarted by the interposition of the eleventh amendment. ¹ Unsuccessful in his back pay claims against Bloomsburg State College, he has now sued an instrumentality known as the Pennsylvania State System of Higher Education. In the district court State System asserted, inter alia, its sovereign immunity under the eleventh amendment as a complete defense. The court agreed, denied Skehan's motion for partial summary judgment, and granted State System's motion for judgment on the pleadings. Skehan has appealed. We now affirm.

I.

A partial account of the Skehan saga may be found in Skehan v. Board of Trustees of Bloomsburg State College, 669 F.2d 142 (3d Cir.), cert. denied, 459 U.S. 1048, 103 S.Ct. 468, 74 L.Ed.2d 617 (1982). Briefly, Bloomsburg notified Skehan, appointed as a non-tenured associate professor of economics at the college in January 1969, that his contract would not be renewed beyond the 1970-71 academic year. Skehan protested on the grounds that the nonrenewal decision was caused in large part by his opinion on national politics and college administration.

In October 1970, Skehan was suspended and subsequently dismissed on the grounds that he failed to teach classes as scheduled by the college. He filed suit in federal court alleging that both the nonrenewal decision and his dismissal were in retaliation for his political activities, a violation of his first amendment rights. He also alleged that he was denied hearings on these decisions in violation of his fourteenth amendment right to due process. The federal courts ultimately rejected his first amendment claim, but the district court held that Skehan's dismissal violated due process because he was not given a hearing. Skehan v. Board of Trustees of Bloomsburg State College, 358 F.Supp. 430 (M.D.Pa.1973), vacated, 501 F.2d 31 (1974), vacated and rem'd, 421 U.S. 983, 95 S.Ct. 1986, 44 L.Ed.2d 474 (1975). On remand the district court again concluded that the college violated Skehan's due process right by failing to afford him a hearing on the nonrenewal decision. Skehan v. Board of Trustees of Bloomsburg State College, 431 F.Supp. 1379, 1393 (M.D.Pa.1977).

The district court ordered Bloomsburg to reinstate Skehan to the status he held on October 15, 1970, after he was suspended but before he was dismissed. Skehan v. Board of Trustees of Bloomsburg State College, 436 F.Supp. 657, 664 (M.D.Pa.1977), aff'd in part, remanded in part, 590 F.2d 470 (3d Cir.1978), cert. denied, 444 U.S. 832, 100 S.Ct. 61, 62 L.Ed.2d 41 (1979). The district court also held that the college must afford Skehan a hearing on both the nonrenewal decision and on his dismissal, in that order. Id. at 664, 668-69.

In sum, Skehan has received limited equitable relief, prospective or front pay pending his due process hearings, and attorney's fees. He has not received back pay or benefits, however, because this court ruled that such relief was barred by the eleventh amendment. Skehan v. Board of Trustees of Bloomsburg State College, 538 F.2d 53, 63 (3d Cir.) (in banc), cert. denied, 429 U.S. 979, 97 S.Ct. 490, 50 L.Ed.2d 588 (1976). He claims that this relief was only half a loaf, and that he is now entitled to the other half--back pay from the date he was first dismissed until he started to receive front pay pending the due process hearings. Undaunted by this court's ruling that the eleventh amendment precludes him from proceeding against Bloomsburg State College, he now seeks to obtain from the State System of Higher Education the financial relief that was denied him in his prior actions.

In his present action, Skehan alleges that as an "employee under contract" he was "wronged" by Bloomsburg as set forth in a prior federal court action against the college and some of its officials. He contends that State System, which was created by statute in 1983, succeeds to the obligations, but not the eleventh amendment immunity, of the college. Skehan therefore claims that he is entitled to back pay and fringe benefits, together with attorney's fees, for actions taken by Bloomsburg thirteen years before the State System of Higher Education came into being.

II.

We make clear at the outset that the issue before us is not, as urged by Skehan, whether a municipality may be subject to an action brought under 42 U.S.C. Sec. 1983. See Monnell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). We face a quite different question--whether State System is a Pennsylvania instrumentality entitled to the protection of the eleventh amendment. Because this issue involves the interpretation of the federal Constitution, it is a question of law subject to plenary review. Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98, 101-02 (3d Cir.1981).

The eleventh amendment provides:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

U.S. Const. amend. XI. The interpretation of this amendment has been expanded to include the notion that a federal court cannot entertain a suit brought by a citizen of a state against his own state. Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890).

This court is no stranger to eleventh amendment litigation. Capping a series of cases originating here, the Supreme Court has held that the eleventh amendment bars an action in federal court when " 'the state is the real, substantial party at interest' and any relief will effectively run against the state." Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 101, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984) (citations omitted), rev'g and remand'g 673 F.2d 647 (3d Cir.1982) (in banc). See also Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981), rev'g and remand'g 612 F.2d 84 (3d Cir.1979) (in banc). Although a state can consent to suit against it in federal court, see, e.g., Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), the Commonwealth of Pennsylvania has not waived its rights under the eleventh amendment. The statutory scheme established by Pennsylvania to govern actions against Commonwealth parties provides in pertinent part that: "[n]othing contained in this subchapter shall be construed to waive the immunity of the Commonwealth from suit in Federal courts guaranteed by the Eleventh Amendment to the Constitution of the United States." 42 Pa.Stat.Ann. Sec. 8512(b). Our inquiry here is thus quite limited. We must decide a narrow question: whether Pennsylvania "is the real, substantial party in interest" when an action for back pay damages is asserted against the State System of Higher Education.

To guide our decision, this court has suggested criteria to consider in determining whether an agency possesses sufficient state attributes to warrant the protections of the eleventh amendment:

[L]ocal law and decisions defining the status and nature of the agency involved in its relation to the sovereign are factors to be considered, but only one of a number that are of significance.

Among the other factors, no one of which is conclusive, perhaps the most important is whether, in the event plaintiff prevails, the payment of the judgment will have to be made out of the state treasury; significant here also is whether the agency has the funds or the power to satisfy the judgment. Other relevant factors are whether the agency is performing a governmental or proprietary function; whether it has been separately incorporated; the degree of autonomy over its operations; whether it has the power to sue and be sued and to enter into contracts; whether its property is immune from state taxation, and whether the sovereign has immunized itself from responsibility for the agency's operations.

Urbano v. Board of Managers of New Jersey State Prison, 415 F.2d 247, 250-51 (3d Cir.1969), cert. denied, 397 U.S. 948, 90 S.Ct. 967, 25 L.Ed.2d 129 (1970) (citations omitted); see also Blake v. Kline, 612 F.2d 718, 722 (3d Cir.1979), cert. denied, 447 U.S. 921, 100 S.Ct. 3011, 65 L.Ed.2d 1112 (1980); Braderman v. Pennsylvania Housing Finance Agency, 598 F.Supp. 834, 836 (M.D.Pa.1984). We conclude that the district court correctly applied the Urbano criteria and properly held that State System shares in the Commonwealth's eleventh amendment immunity. ²

III.

Our analysis of the Urbano criteria begins with the language of the statute that created the State System of Higher Education in 1983:

Subject to the regulatory powers conferred by law upon the State Board of Education, there is hereby established a body corporate and politic constituting a public corporation and government instrumentality which shall be known as the State System of Higher Education, independent of the Department of Education, hereinafter referred to as...