Swan v. Board of Higher Education of City of New York

• Citation: 319 F.2d 56
• Decision Date: 04 June 1963
• Docket Number: No. 280,Docket 27996.,280
• Parties: Donald A. SWAN, Plaintiff-Appellant, v. BOARD OF HIGHER EDUCATION OF the CITY OF NEW YORK by Gustave G. ROSENBERG, its Chairman, George A. Pierson, and Margaret V. Kiely, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

319 F.2d 56 (1963)

Donald A. SWAN, Plaintiff-Appellant, v. BOARD OF HIGHER EDUCATION OF the CITY OF NEW YORK by Gustave G. ROSENBERG, its Chairman, George A. Pierson, and Margaret V. Kiely, Defendants-Appellees.

No. 280, Docket 27996.

United States Court of Appeals Second Circuit.

Argued May 6, 1963.

Decided June 4, 1963.

Alfred Avins, Chicago, Ill., for plaintiff-appellant.

Eugene M. Kaufman, New York City (Leo A. Larkin, Corp. Counsel, New York City, on the brief), for defendants-appellees.

Before FRIENDLY, KAUFMAN and MARSHALL, Circuit Judges.

MARSHALL, Circuit Judge.

This is an appeal by Donald A. Swan, plaintiff below, from three separate, unreported orders of the United States District Court for the Southern District of New York. The first two orders, entered by Judge Metzner, dismissed plaintiff's original complaint on the ground that the action was barred by the statute of limitations (September 10, 1962) and announced adherence to that determination upon reargument (December 6, 1962). The third order, entered by Judge MacMahon, denied plaintiff's motion for a default judgment upon his amended complaint on the ground that that complaint was a nullity (November 26, 1962).

Asserting jurisdiction under 28 U.S. C.A. § 1343(3) and the Civil Rights Act, 42 U.S.C.A. § 1983, plaintiff, a former student at Queens College in New York City, brought suit on July 20, 1962 against the Board of Higher Education of the City of New York, which maintains and operates the college, and against two officials of the college, George A. Pierson, dean of students since the spring of 1953, and Margaret V. Kiely, dean emeritus, who was Dean Pierson's predecessor. Swan alleged that in February 1953, at a time when he was a regularly-enrolled student in good standing at Queens College, Dean Kiely suspended him during the spring semester, without notice or hearing, in order to punish him for having expressed his views on political, economic, and social questions, and to deter him from exercising his constitutional right of freedom of speech. He claimed that the action of the college denied him equal protection, because students whose views the college approved of were not suspended, and due process, because he was denied the opportunity to be heard, to examine his accusers, or to answer the accusations against him. When he was permitted to re-register as a student during the summer of 1953, Swan alleged, he requested that his official transcripts and records be changed to show that his suspension was "without justification and due notice and hearing and violated his constitutional rights." This request was denied, and the order of suspension, according to the complaint, continues, to Swan's detriment, to appear on the transcript which the college sends to other educational institutions, prospective employers, and governmental agencies. Swan sought a declaratory judgment that the action of the college in suspending him was unconstitutional and an injunction which would either restrain defendants from continuing the order of suspension on his transcript and other records at the college or require defendants to add to his records that the suspension was without justification and in violation of his constitutional rights.

Before answer, defendants moved to dismiss the complaint on the grounds that it failed to state a cause of action, that the court lacked jurisdiction of the subject matter, and that the action was barred by the statute of limitations. Judge Metzner held that due process requires that a student in a state-supported college receive notice and some opportunity to be heard before he is expelled for misconduct, and that the complaint therefore stated a cause of action. Dixon v. Alabama State Bd. of Education, 294 F.2d 150 (5 Cir.), cert. denied, 368 U.S. 930, 82 S.Ct. 368, 7 L.Ed.2d 193 (1961); 75 Harv.L.Rev. 1429 (1962); compare Steier v. New York State Educ. Com'r., 271 F.2d 13 (2 Cir. 1959), cert. denied, 361 U.S. 966, 80 S.Ct. 587, 4 L.Ed.2d 547 (1960). The court then considered the defense based upon the statute of limitations. See 2 Moore, Federal Practice ¶ 12.10 (2d ed. 1962). Judge Metzner rejected plaintiff's contention that the ten-year statute of limitation of § 53 of the New York Civil Practice Act¹ was applicable, and held the action was barred by the four-month statute of § 1286 of the Civil Practice Act.² Accordingly, the court said, "The complaint must be dismissed. So ordered." On the same day the opinion was entered on the court's docket book.

The clerk of the court, however, failed to comply with the General Rules of the District Court by which he was required to formalize Judge Metzner's order of dismissal into a final judgment by preparing, signing, and entering a separate document embodying the order.³ Three days after Judge Metzner issued his order, plaintiff served an amended complaint, for the first time alleging that he was a minor at the time of his suspension. The amended complaint demanded the same relief as the original complaint. When defendants failed to respond, plaintiff moved for a default judgment. The motion came on before Judge MacMahon. Defendants argued that the complaint was a nullity because a plaintiff may not amend his complaint after a judgment of dismissal has been entered, except by leave of court which plaintiff admittedly had neither sought nor been granted. Plaintiff argued that Rule 15(a) of the Federal Rules of Civil Procedure gave him an absolute right to amend his complaint once before entry of judgment, and that because of the clerical lapse by the clerk of the court, Judge Metzner's order of dismissal had never been entered as a final judgment. Judge MacMahon held the amended complaint a nullity and denied plaintiff's motion as "obviously attempting to capitalize on a mere clerical error on the part of the Clerk of the court." He also directed the clerk to prepare and sign a judgment of dismissal on Judge Metzner's order and enter it in the appropriate docket nunc pro tunc.

Meanwhile, on October 19, 1962, after plaintiff had served his amended complaint and before Judge MacMahon had held it a nullity, Judge Metzner granted a motion for reargument of the original order of dismissal. Apparently made cognizant of the issue of plaintiff's minority by the allegations in the amended complaint, he requested plaintiff to file with the court a certified copy of his birth certificate. When plaintiff failed to file the certificate, Judge Metzner adhered to his original determination, but he changed its basis in one respect. Where he had originally held the complaint to be barred by the four-month statute of limitations of § 1286 of the New York Civil Practice Act, he now held it to be barred by the six-year statute of § 48(2) of the Act.⁴ It is in this somewhat complicated procedural posture that the case comes before this court.

Because a statute of limitations for actions of the present kind is not contained in either the Civil Rights Act itself or elsewhere in the federal statutes, the applicable period of limitation is that which New York would enforce had an action seeking similar relief been brought in a court of that state. O'Sullivan v. Felix, 233 U.S. 318, 34 S.Ct. 596, 58 L.Ed. 980 (1914); Hoffman v. Halden, 268 F.2d 280 (9 Cir. 1959); Wilson v. Hinman, 172 F.2d 914 (10 Cir.), cert. denied, 336 U.S. 970, 69 S.Ct. 933, 93 L.Ed. 1121 (1949). This, of course, is the rule which prevails generally when Congress has not provided a statute of limitations for a federally-created cause of action. Smith v. Cremins, 308 F.2d 187 (9 Cir. 1962); Powell v. St. Louis Dairy Co., 276 F.2d 464 (8 Cir. 1960); Bertha Bldg. Corp. v. National Theatres Corp., 269 F.2d 785 (2 Cir. 1959), cert. denied, 361 U.S. 960, 80 S.Ct. 585, 4 L.Ed.2d 542 (1960).⁵

On the original motion to dismiss, plaintiff argued for the applicability of the ten-year statute of limitations of § 53 of the New York Civil Practice Act, which governs equitable actions generally. If plaintiff were seeking relief in a state court, the appropriate remedy would be the legal remedy provided by Article 78 of the Civil Practice Act,⁶ under which, indeed, plaintiff formerly instituted two proceedings against the same defendants in New York Supreme Court; and the New York courts have held that "a proceeding under Article 78 being available and affording the plaintiff full relief, he cannot enlarge the period of limitation which governs that proceeding by resorting to this action in equity." Riesner v. Young, 198 Misc. 624, 100 N.Y.S.2d 488, 490 (Sup.Ct. 1950); Kobbe v. McNamara, 82 N.Y.S. 2d 294 (Sup.Ct.1948); see Whitfield & Sheshunoff, Inc. v. Fairchild Engine & Airline Corp., 269 F.2d 427, 439 (2 Cir. 1959).

We need not consider whether the four months period provided in § 1286 with respect to Article 78 proceedings is the kind of state statute of limitations to which federal courts will look in the absence of a federal statute or whether, if it were, it should be rejected on the ground that it would substantially impair the federal right sought to be enforced. Cf. Caldwell v. Alabama Dry Dock & Shipbuilding Co., 161 F.2d 83 (5 Cir. 1947); Davis v. Wechsler, 263 U.S. 22, 24, 44 S.Ct. 13, 68 L.Ed. 143 (1923); Hills & Co. v. Hoover, 220 U.S. 329, 336, 31 S.Ct. 402, 55 L.Ed. 485 (1911). For § 48(2) of the New York Civil Practice Act prescribes a six-year statute of limitations for actions "to recover upon a liability created by statute", and plaintiff's cause of action derives from a statute, the Civil Rights Act. See Bomar v. Keyes, 162 F.2d 136 (2 Cir.), cert. denied, 332 U.S. 825, 68 S.Ct. 166, 92 L.Ed. 400 (1947), and Smith v. Cremins, 308 F.2d 187 (9 Cir. 1962). That cause of action arose when plaintiff was suspended from Queens College in 1953, nine years before he instituted the present proceeding.

Plaintiff contends, however, that since he was a minor at the time that his cause of action accrued, the...