Spiegel v. Trustees of Tufts College

• Decision Date: 08 January 1988
• Docket Number: No. 87-1808,87-1808
• Citation: 843 F.2d 38
• Parties: , 46 Ed. Law Rep. 31 Professor Harriet SPIEGEL, Plaintiff, Appellant, v. The TRUSTEES OF TUFTS COLLEGE, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 38

843 F.2d 38

10 Fed.R.Serv.3d 844, 46 Ed. Law Rep. 31

Professor Harriet SPIEGEL, Plaintiff, Appellant, v. The TRUSTEES OF TUFTS COLLEGE, Defendant, Appellee.

No. 87-1808.

United States Court of Appeals First Circuit.

Heard Jan. 8, 1988.

Decided March 30, 1988.

Dahlia C. Rudavsky with whom Kathryn M. Noonan and McDonald, Noonan & Kaplan, Newton, Mass., were on brief, for plaintiff, appellant.

Alan D. Rose with whom Jennifer R. Seton, John M. Griffin and Nutter, McClennen & Fish, Boston, Mass., were on brief, for defendant, appellee.

Before CAMPBELL, Chief Judge, and TORRUELLA and SELYA, Circuit Judges.

SELYA, Circuit Judge.

A disappointed faculty member, Harriet Spiegel, sued the trustees of Tufts College in the United States District Court for the District of Massachusetts following rejection of her tenure application. The district court dismissed most--but not all--of her statements of claim without requiring defendants to answer, and thereafter authorized a partial judgment in Tufts' favor under Fed.R.Civ.P. 54(b). ¹ Because we conclude that the judgment was prematurely entered, we dismiss the appeal.

I. BACKGROUND

This case's voyage to our shores can be charted from three distinct coigns of vantage. We begin with the relevant facts, then trace the theories upon which suit was grounded, and end Part I with a roadmap of the litigation's travel.

A. The Facts. Inasmuch as this proceeding follows upon the heels of a dismissal under Fed.R.Civ.P. Rule 12(b)(6), we accept the well-pleaded factual averments of the complaint, eschewing, however, reliance on bald assertions or patently untenable conclusions. Chongris v. Board of Appeals, 811 F.2d 36, 37 (1st Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 3266, 97 L.Ed.2d 765 (1987). Not including proposed Count V, see infra note 2, the complaint comprises twenty pages of text, divided into seventy-six numbered paragraphs, plus documentary attachments. It relates an unhappy tale of dashed hopes and frustrated aspirations. We refine the story to bare essence.

Spiegel was hired by Tufts in the late 1970s for an advertised tenure-track faculty position. Her first posting was as an assistant professor of English for a one-year term (September 1, 1979 through August 31, 1980). This appointment was then renewed for a three-year term expiring August 31, 1983. Among her other duties, she had special responsibility throughout for a remedial reading program.

At Tufts, tenure-track faculty customarily make formal application for tenure (and concomitantly, promotion to the rank of associate professor) during the sixth year of full-time service. Before then, candidates often undergo a mid-tenure review (MTR). The MTR is designed to evaluate the faculty member's overall performance and to inform her of progress (or lack of progress) toward the attainment of tenure. Spiegel underwent an MTR during the 1982-83 academic year. She alleges that the results were favorable. In any event, she was offered and accepted a further three-year appointment, running through August 31, 1986. She was still devoting approximately half of her time to remedial reading.

Around late 1985, plaintiff submitted her formal tenure application. The departmental vote was inconclusive. The ten tenured members of the English department split five and five on the question of whether Spiegel deserved permanent status. The college's Committee on Tenure and Promotion (Committee), following a subcommittee recommendation, eventually voted to deny tenure. Spiegel then petitioned the administration, which refused to intervene. On June 30, 1986, the Dean notified Spiegel that tenure had been refused. Her contract would be extended for one additional year but not renewed beyond August 31, 1987.

B. The Statements of Claim. Plaintiff's complaint was framed in four counts. The gravamen of each follows:

1. Count I (breach of contract)--Tufts failed to evaluate plaintiff for tenure purposes as advertised by the college in its faculty handbook and kindred documentation.

2. Count II (breach of contract)--Tufts failed to evaluate plaintiff for tenure purposes as she had been promised, especially with respect to the dual nature of her work "in two distinct areas, the remedial writing program and traditional scholarship." Complaint at p 50.

3. Count III (misrepresentation)--Tufts falsely represented both (a) the weight to be given to different components of Spiegel's work, and (b) the acceptability of certain of her endeavors vis-a-vis tenure consideration. These misrepresentations were said to have occurred when she was hired, during her MTR, and at other times. ²

4. Count IV (civil rights violations)--Tufts denied plaintiff tenure in retribution for her exercise of protected rights, "including but not limited to her rights to free speech." Complaint at p 74. The protected activity, plaintiff alleged, comprised having "spoken out against the practices of [the English] department chairperson," id. at p 69, and having opposed the tenure application of one Jonathan Wilson "on the grounds that Wilson did not meet the English Department's affirmative action needs." Id. at p 70. Plaintiff claimed the retaliatory action trammelled rights secured to her by the Constitution and laws of the United States and of Massachusetts, including Mass.Gen.L. c. 12, Sec. 11I and, presumably, the First Amendment.

C. Travel of the Case. Once the complaint was served, Tufts moved to dismiss it for failure to state any legally cognizable claim. The district court granted the motion as to the first three counts, Spiegel v. Trustees of Tufts College, C.A. No. 86-3330-S, slip op. at 5-12 (D.Mass. July 30, 1987) (unpublished), but overruled it as to Count IV. Id. at 12-17. The court also repulsed the effort to amend the pleadings, which was the functional equivalent of dismissing proposed Count V. See supra note 2. Plaintiff thereupon moved under Rule 54(b) for entry of judgment on the matters decided adversely to her. The district court, in a cryptic footnote order, allowed the motion. As for the reasons which underlay the grant of Rule 54(b) certification, we can only speculate. The district judge wrote but a single sentence, which we quote in haec verba:

Allowed, 8/31/87, there being no just cause for delay.

II. BATTLEGROUND: THE RULE 54(b) STANDARD

Fed.R.Civ.P. 54(b) permits the entry of judgment, and thus an appeal, on fewer than all the claims in a multi-claim action. Yet Rule 54(b) notwithstanding, there is a long-settled and prudential policy against the scattershot disposition of litigation. Pahlavi v. Palandjian, 744 F.2d 902, 903 (1st Cir.1984); Makuc v. American Honda Motor Co., 692 F.2d 172, 173 (1st Cir.1982) (per curiam); Bank of New York v. Hoyt, 108 F.R.D. 184, 187 (D.R.I.1985). It follows, then, that entry of judgment under the rule should not be indulged as a matter of routine or as a magnanimous accommodation to lawyers or litigants. Santa Maria v. Owens-Illinois, Inc., 808 F.2d 848, 854 (1st Cir.1986); Panichella v. Pennsylvania R.R. Co., 252 F.2d 452, 455 (3d Cir.1958). "Clearly the purpose of the rule is not to encourage broadly piecemeal appeals just because an appellant may be in a hurry." In re Bromley-Heath Modernization Committee, 448 F.2d 1271, 1271 (1st Cir.1971) (per curiam). We agree with Judge (now Justice) Kennedy that:

Judgments under Rule 54(b) must be reserved for the unusual case in which the costs and risks of multiplying the number of proceedings and of overcrowding the appellate docket are outbalanced by pressing needs of the litigants for an early and separate judgment as to some claims or parties.

Morrison-Knudsen Co. v. Archer, 655 F.2d 962, 965 (9th Cir.1981).

When considering the wisdom of Rule 54(b) certification in a given case, the trial court must first assess the finality of the disputed ruling. Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1 7, 100 S.Ct. 1460, 1464, 64 L.Ed.2d 1 (1980); United States General, Inc. v. Albert, 792 F.2d 678, 680-81 (7th Cir.1986); Bank of New York, 108 F.R.D. at 186. If the ruling lacks the necessary finality, the application must fail. As the Court has said, "[t]he District Court cannot, in the exercise of its discretion, treat as 'final' that which is not 'final' within the meaning of [28 U.S.C.] Sec. 1291." Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 437, 76 S.Ct. 895, 900, 100 L.Ed. 1297 (1956) (emphasis in original). As an adjunct of this inquiry, of course, it must be shown that the ruling, at a bare minimum, disposes fully "of at least a single substantive claim." Acha v. Beame, 570 F.2d 57, 62 (2d Cir.1978).

Once the finality hurdle has been cleared, the district court must determine whether, in the idiom of the rule, "there is no just reason for delay" in entering judgment. Fed.R.Civ.P. 54(b). The court's role becomes that of a "dispatcher," Sears, Roebuck, 351 U.S. at 435, 76 S.Ct. at 900, exercising its discretion to decide which "final" decisions in a multi-claim action should be sent upstairs immediately and which withheld pending resolution of the entire controversy in the district court. See Pahlavi, 744 F.2d at 904. The process, tilted from the start against fragmentation of appeals, is necessarily case-specific. It entails an assessment of the litigation as a whole, and a weighing of all factors relevant to the desirability of relaxing the usual prohibition against piecemeal appellate review in the particular circumstances. ³ If, in consequence of this examination, the district court concludes that entry of judgment under Rule 54(b) is appropriate, it should ordinarily make specific findings setting forth the reasons for its order. Knight v. Mills, 836 F.2d 659, 661 n. 2 (1st Cir.1987); Santa Maria, 808 F.2d at 854-55; Pahlavi, 744 F.2d at 904-05. ⁴ Doing so, we hasten to add, serves a twofold purpose: it helps the district judge to sort out and weigh the competing considerations in his own mind, and it permits the...