ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA (Civ. No. 72-644, M.D. Pa.)
Before Seitz, Chief Judge, Hunter, Circuit Judge, and Lacey*fn* , District 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.
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.*fn1 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 articulated by the Supreme Court in Wood. Id. 59-62.
Finally, this Court stated that an intervening decision of the Pennsylvania Commonwealth Court Brungard v. Hartman, 12 Pa.Cmwlth. 477, 315 A.2d 913 (1974), holding that state colleges are agencies for which Pennsylvania claims sovereign immunity, was dispositive of the eleventh amendment issue concerning the College's liability for damages. Thus, we held that a back pay award could not be made out of the College's treasury, and that an award of attorney's fees against the College could only be based on the exception to the American rule for the maintenance of litigation in bad faith. 538 F.2d at 62.
In conclusion, this Court reiterated that on remand the district court was to make findings of fact on the nature of the interest created by Article 5e and on whether the decision not to renew Skehan's contract beyond 1970-71 had been impermissibly based on his stands on campus issues. The Supreme Court denied defendants' petition for a writ of certiorari on November 29, 1976. 429 U.S. 979, 97 S. Ct. 490, 50 L. Ed. 2d 588 (1976).
It is with this background in mind that we turn to the parties' challenges to the district court's disposition of the issues remanded to it by this Court.
I. THE FIRST AMENDMENT CLAIM
The district court issued its first opinion after remand on plaintiff's and defendants' cross-motions for judgment on Skehan's claim that the decision not to reappoint him after 1970-71 was for reasons violative of the first amendment. Skehan v. Board of Trustees of Bloomsburg State College, No. 72-644 (M.D.Pa., filed March 24, 1977) (unpublished opinion). The district court awarded judgment to the defendants on that claim. Three aspects of that ruling are at issue in this appeal. First, the defendants contend that the district court erred in rejecting their argument that Skehan's first amendment claim was barred by the applicable Pennsylvania statute of limitations. Skehan appeals from the court's disposition of the merits of the first amendment claim, and also contends that the court abused its discretion in denying his motion to take additional testimony on that issue.
Before meeting those contentions we must address the defendants' argument that the district court's disposition of the first amendment claim should be affirmed because it was not raised by Skehan in his complaint or in any court proceedings, but rather was first raised by this Court Sua sponte in the 1974 panel opinion. We believe that Skehan's initial complaint did challenge the validity of the nonrenewal decision, and that the question whether that decision was violative of the first amendment was litigated by the parties at the preliminary injunction hearing held in January, 1973. In fact, the district court decided not to take additional testimony on the first amendment nonrenewal issue after remand precisely because the parties had had a full opportunity to present all evidence concerning the reasons which may have motivated the Board's decision not to renew Skehan's contract at that earlier hearing. See Part I, B Infra. Moreover, this Court's en banc opinion remanding the first amendment issue to the district court represents the "law of the case" with respect to that aspect of Skehan's claim. We are bound by the earlier determination of this Court, and thus reject the defendants' argument, raised at this late date, that the issue should not have been remanded to the district court. See Part II, A Infra.
A. Statute of Limitations
The district court found that Skehan's nonrenewal claim stated a cause of action under 42 U.S.C. § 1983. Because § 1983 does not contain its own statute of limitations, the court turned to Pennsylvania law to determine the period of limitations applicable to the most analogous state law claim. The court held that the six year statute of limitations established by the Act of March 27, 1713, 1 Sm.L. 76, § 1, 12 P.S. § 31, governed Skehan's claim, as it governed the state law claim the court found to be most analogous to it, namely a claim of wrongful interference with an employment contract. Defendants argue that the court erred in holding the six year period of limitations applicable to Skehan's claim, contending that the two year period of limitations established for personal injury actions in the Act of June 24, 1895, P.L. 236, § 2, 12 P.S. § 34, should be applied to a § 1983 action claiming a violation of the first amendment. They further contend that Skehan's nonrenewal claim arose on the day he was notified of the Board's decision not to reappoint him beyond 1970-71, at the latest May 19, 1970, and that his claim should thus be barred because he did not file his complaint in federal court until October 10, 1972.
Skehan counters that even if the two year period of limitations established in 12 P.S. § 34 applies to his first amendment claim, that claim is not barred because his cause of action did not accrue until he was terminated on October 19, 1970. He reasons that up until that time a final nonrenewal decision had not been made in his case, because, until then, he was entitled to expect the College to respond to his letter of September 21, 1970, invoking the procedures of Article 5e to review the Board's initial decision not to renew his contract.
We need not resolve the parties' dispute over the date when Skehan's nonrenewal claim accrued because we agree with the district court's determination that it was governed by the six year period of limitations established in 12 P.S. § 31; thus, whether Skehan's claim is deemed to have accrued in May or in October of 1970, he filed his complaint well within the period of limitations.
Two recent opinions of this Court compel our disposition of this question. In Meyers v. Pennypack Woods Home Ownership Association, 559 F.2d 894 (3d Cir. 1977), this Court faced the question whether a cause of action under 42 U.S.C. §§ 1981 and 1982, alleging racial discrimination by a private home ownership association, was governed by Pennsylvania's two year or its six year statute of limitations. The Court noted that the Pennsylvania scheme of limitations is complex, due to the establishment of a six year period for all actions in contract and all actions of trespass by the Act of 1713, while the Act of 1895, without reference to the earlier statute, provides a two year period for actions for personal injury not resulting in death. The Court noted that the Pennsylvania Supreme Court has held (citing Walker v. Mummert, 394 Pa. 146, 146 A.2d 289 (1958) and Helmig v. Rockwell Manufacturing Co., 389 Pa. 21, 131 A.2d 622 (1957) ) that the Act of 1713 still governs all actions in trespass not involving personal injury. 559 F.2d at 902. Elaborating further, this Court stated that 12 P.S. § 34 "by its terms applies only to "actions brought to recover damages' whereas (the plaintiff) seeks a broad range of equitable relief," and that the statutory phrase " "injury wrongfully done to the person, in cases where the injury does not result in death' expresses a limitation only on actions for bodily injury whereas (plaintiff's) claim is for tortious interference with his right to contract for the purchase of a house." Id. (footnote omitted).
In Davis v. United States Steel Supply, 581 F.2d 335 (3d Cir. 1978), this Court reversed a district court decision, relied upon by the defendants here, that had held the two year period of limitations in 12 P.S. § 34 applicable to a cause of action challenging racially discriminatory employment practices brought pursuant to 42 U.S.C. § 1981. Relying on Meyers, supra, the Davis Court noted that § 34 is applicable only to actions seeking damages for bodily injury. 581 F.2d at 339. The Court held that the plaintiff's cause of action in Davis, alleging "an unlawful breach of an existing at-will employment contract" was within the precise terms of 12 P.S. § 31, and was best analogized to "those torts which involve the wrongful interference with another's Economic rights or interests." Id. 339 (footnote omitted) (emphasis supplied).
The district court properly noted that Skehan's claim, like the plaintiff's in Davis, most resembled the state law claim of wrongful interference with a contract, and that it did not seek damages for a bodily injury but rather for economic loss. In affirming the district court's determination that 12 P.S. § 31 provides the applicable statute of limitations for Skehan's claim, we also rely on the fact that Skehan did not seek damages alone for the College's allegedly unlawful nonrenewal of his contract, but a broad range of equitable relief as well. See Meyers, supra, at 902. We agree with the ruling of the district court denying defendants' motion for judgment on the ground that the first amendment claim was barred by the statute of limitations.*fn2
B. Skehan's Motion to Take Additional Testimony
As noted earlier, the district court, on remand, denied Skehan's motion to take additional testimony on the question whether the College's nonrenewal decision had been based on considerations violative of the first amendment. That order, dated January 10, 1977, was based on the fact that Skehan had rested on all issues presented in his complaint following the preliminary injunction hearing in January, 1973, and that during that earlier hearing he had been presented with a full opportunity to introduce evidence concerning the reasons that may have motivated the nonrenewal decision. In the same order denying Skehan's motion the district court granted defendants' motion to take additional testimony on the question of their official immunity defenses, stating that this question had not been before the court in 1973 and that the law in this area had substantially changed in the interim. Skehan contends that the court's order was an abuse of discretion for a variety of reasons: that it was inconsistent with this Court's remand for findings of fact on the first amendment issue; was unjust given that the court applied a test to the merits of the claim that had been formulated by the Supreme Court in 1977; was inconsistent with the court's decision to allow additional testimony on the defendants' official immunity defense; caused the court to decide the issue on a stale record; was inconsistent with the court's earlier orders respecting pre-trial discovery; and prevented plaintiff from producing a great quantity of probative evidence.
It is clear that "(generally), whether a trial court will reopen a case to take more testimony is discretionary with that court." Rochez Brothers, Inc. v. Rhoades, 527 F.2d 891, 894 n. 6 (3d Cir. 1975), Cert. denied, 425 U.S. 993, 96 S. Ct. 2205, 48 L. Ed. 2d 817 (1976); See Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 331, 91 S. Ct. 795, 28 L. Ed. 2d 77 (1971). The contention that Skehan presses most vigorously in arguing that the trial court abused that discretion in this instance is that by not taking additional testimony on the first amendment claim the district court failed to comply with the mandate of this Court to make findings of fact on the causes of Skehan's nonrenewal. To the contrary, however, neither opinion of this Court specifically instructed the district court to take further evidence on any issue remanded to it for findings of fact. In fact, we feel that there was an assumption implicit in those opinions that the trial court need not reopen the record of this case for further testimony on the first amendment issue in order to make the required findings.
This Court was fully aware that the parties had stipulated that the district court could hold a final hearing on the record developed at the preliminary injunction hearing in January, 1973. See 501 F.2d at 37. Yet, it was only with respect to the issue of the individual defendants' official immunity that this Court indicated that the record might have to be reopened in order to make the required factual determinations, and that decision was left to the district court in the first instance. See 538 F.2d at 62. Thus, contrary to Skehan's contention that the trial court's denial of his motion to take additional testimony was inconsistent with the mandate of this Court, this Court's failure to specify that further evidence should be taken on remand could, at most, be construed as leaving a decision on the need to reopen the record to the sound discretion of the trial court. See Rochez Brothers, supra at 894 (failure of appellate court to instruct the district court to take further evidence indicates that the question was left to the sound discretion of the trial court).
Our scope of review on this question is quite limited. As Professor Moore has stated:
A district court, then, should consider a motion to take additional testimony in light of all the surrounding circumstances and grant or deny it in the interest of fairness and substantial justice. . . . (T)he grant or denial involves an exercise of discretion by the trial court; and because this court has a feel for the case that an appellate court can seldom have, the trial court's ruling is subject to reversal only in a rare case where abuse is clearly shown.
6A Moore's Federal Practice P 59.04(13) at 36-37 (2d ed. 1974) (footnotes omitted). In Rochez Brothers, supra at 894 n.6, this Court stated that the district court should be concerned with several factors in deciding whether to reopen a case, including the burden which would be placed on the parties and their witnesses, undue prejudice which might result by a refusal to take new testimony, and considerations of judicial economy.
The district court was clearly concerned with the burdens placed on the parties and the court system by the failure of that system to dispose of the dispute in this case promptly and fairly. That theme is prominent throughout the court's numerous pre-trial orders attempting to bring the parties into court for resolution of the issues remanded by this Court. Following a final pre-trial conference on December 1, 1976, the court directed that the parties file motions for the taking of such additional testimony on those issues as they deemed advisable. In spite of Skehan's contention to the contrary, we do not find that the district court in prior orders had indicated to the parties that there would be further testimony taken on the first amendment issue. In its order of January 10, 1977, the court, after considering all the points raised here by Skehan, save one that is discussed below, denied his motion to reopen the record on the first amendment nonrenewal claim. The court relied on the fact that Skehan had had a full opportunity to present evidence on the defendants' motivation in declining to renew his contract beyond 1970-71 at the preliminary injunction hearing; any responsibility for inadequacies in that presentation was deemed to rest with Skehan. Furthermore, the court determined that the real thrust of Skehan's request was to insure that he would have an opportunity to rebut any evidence offered by the defendants on the question of their official immunity from an award of damages arising from the alleged first amendment violation. The court offered Skehan the opportunity to present such rebuttal evidence if the issue of official immunity from liability were to arise.
We believe that the concerns raised here by Skehan, and rejected by the district court, do not compel a conclusion that the trial court abused its discretion in denying his motion to take additional testimony on the first amendment nonrenewal claim. This is not one of the exceptional cases envisioned in Rochez Brothers, supra at 894-95, in which a party failed to put into evidence all the necessary elements of his claim because of a misunderstanding among the parties and the trial court; nor was the trial court unable to make findings of fact on the nonrenewal claim without the proffered testimony. See Pittsburgh Press Club v. United States, 426 F. Supp. 553, 554 (W.D.Pa.1977), Aff'd in relevant part, 579 F.2d 751, 755 (3d Cir. 1978). Rather, as Skehan concedes, at the time of the preliminary injunction hearing, the district court and the parties probably considered the question of the College's motivation in its nonrenewal of Skehan to be merged with the first amendment challenge to his dismissal. Thus, Skehan did present evidence with respect to his first amendment activities, and the College's reaction to them, relevant to the whole period of his employment by the College. The district court in no way hindered him from offering proof that the nonrenewal decision was motivated by his engaging in conduct protected by the first amendment. Skehan's counsel made a tactical judgment to rest on the record made at the preliminary injunction hearing and, based on that record, the district court was able to detail Skehan's campus activism prior to the nonrenewal decision in the Spring of 1970 in twelve findings of fact contained in its opinion on the merits of the first amendment claim, discussed below.
Skehan has presented one contention for the consideration of this Court that, of necessity, he did not present to the district court prior to its order of January 10, 1977. That contention is that the district court should have reversed its order denying his motion to present additional testimony on the first amendment issue when it became aware of the change in the law represented by the decision of the Supreme Court in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977). The Mt. Healthy decision was issued by the Supreme Court on January 11, 1977, one day after the district court's order denying Skehan's motion, but prior to the court's ruling on the merits of the first amendment claim on March 24, 1977, in which it relied on the test of causation formulated in Mt. Healthy.
Skehan is correct in his assertion that a change in legal standards may warrant the reopening of a case where additional testimony would be pertinent to the change of law. See 6A Moore's Federal Practice P 59.04(13) at 36 (2d ed. 1974). In fact, the district court relied on this ground in deciding to grant the defendants' request to take additional testimony on the official immunity defense. However, we believe that the Mt. Healthy decision did not reflect a change in the law that would warrant the district court's reopening of the record in this case to allow Skehan to present additional testimony on his claim that the defendants' decision not to reappoint him beyond 1970-71 violated the first amendment.
Mt. Healthy did not substantially affect the affirmative burden of a plaintiff in Skehan's position to show by a preponderance of the evidence that his first amendment activities were a substantial or motivating factor in an adverse employment decision. The standard of proof adopted in Mt. Healthy is, if anything, more stringent than the standard applied by the district court in its ruling in 1973 that Skehan had failed to prove he had been terminated for reasons violative of the first amendment, 358 F. Supp. at 434 a ruling affirmed by this Court, 501 F.2d at 39. To the extent the Mt. Healthy Court adopted a "new" formulation of the test of causation for claims alleging dismissal from public employment for reasons violative of the first amendment, the "new" aspect of that formulation was the Court's holding that the defendants in such a case must be afforded an opportunity to rebut a prima facie case of impermissible motivation by showing by a preponderance of the evidence that they would have reached the same decision even in the absence of the constitutionally protected conduct of plaintiff. 429 U.S. at 284-87, 97 S. Ct. 568, 50 L. Ed. 2d 471. Because Skehan was permitted to adduce all testimony relevant to his first amendment nonrenewal claim at the preliminary injunction hearing, and because no evidence pertinent to his affirmative case after Mt. Healthy would not have been equally pertinent then, we cannot say that Skehan was prejudiced by the court's application of a "new" legal standard to his first amendment claim.
We conclude that it was not an abuse of discretion for the district court to have declined to reopen that aspect of the record of this case dealing with Skehan's claim that the College's decision not to renew his appointment beyond 1970-71 violated the first amendment.
C. The Merits of the First Amendment Claim
The district court found that the evidence adduced by Skehan at the preliminary injunction hearing failed to establish by a preponderance of the evidence that his constitutionally protected conduct was a "substantial" or "motivating" factor in the decision of the Board of Trustees to offer him a terminal contract for the 1970-71 academic year. See Mt. Healthy, supra at 287, 97 S. Ct. 568. Furthermore, the court went on to find that even if Skehan had met that initial burden, the defendants had shown by a preponderance of the evidence that Skehan's contract would not have been renewed beyond that year even if he had not spoken out on campus issues. See id. Having concluded that ...