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San Filippo v. Bongiovanni

filed: April 22, 1992.

JOSEPH SAN FILIPPO, JR., APPELLEE
v.
MICHAEL BONGIOVANNI, ANTHONY S. CICATIELLO, ADREIENNE S. ANDERSON, DONALD M. DICKERSON, FLOYD H. BRAGG, NORMAN REITMAN, INDIVIDUALLY AND AS MEMBERS OF THE BOARD OF GOVERNORS OF RUTGERS UNIVERSITY, RUTGERS, THE STATE UNIVERSITY, APPELLANTS



Appeal from the United States District Court for the District of New Jersey. (D.C. Civil Docket No. 88-02575)

Present: Hutchinson, Cowen and Seitz, Circuit Judges

Author: Hutchinson

Opinion OF THE COURT

HUTCHINSON, Circuit Judge.

I.

In this certified interlocutory appeal Rutgers, the State University of New Jersey (Rutgers or the University), its Board of Governors (Board) and the Board's individual members appeal an order of the United States District Court for the District of New Jersey. That order granted appellee, Joseph San Filippo, Jr.'s (Dr. San Filippo's) motion for partial summary judgment as to liability on one of several of his claims under 42 U.S.C.A. § 1983 (West 1981) that Rutgers violated his constitutional rights when it stripped him of academic tenure and discharged him from his position as a professor at that University. See San Filippo v. Bongiovanni, 743 F. Supp. 327, 339 (D.N.J. 1990).*fn1

The order granting Dr. San Filippo partial summary judgment concerned his claim that the grounds set forth in the University's regulations for dismissing a tenured professor violated his Fourteenth Amendment due process right to fair notice that the acts he was charged with could lead to dismissal because they were void for vagueness. Id.*fn2

The sole question before us on this certified appeal is whether the University's regulations were indeed too vague to meet the fair notice requirement incorporated in the due process clause of the Fourteenth Amendment to the Constitution. Therefore, we cannot consider or decide Dr. San Filippo's other express or implied claims, or any implied claim that his discharge violated his constitutional right to substantive due process.*fn3

The applicable dismissal regulations state that tenured professors may only be dismissed for adequate cause. Regulation 3.93. Adequate cause is defined as "failure to maintain standards of sound scholarship and competent teaching, or gross neglect of established University obligations appropriate to the appointment, or incompetence, or incapacitation, or conviction of a crime involving moral turpitude . . . ." Regulation 3.94. These regulations are no less definite than provisions permitting discharge for immoral conduct, just cause or conduct unbecoming a teacher. Such provisions have been upheld against void for vagueness attacks in cases involving the discharge of teachers, professors and other public employees. Accordingly, we will vacate the district court's order granting Dr. San Filippo's motion for summary judgment as to liability on his 42 U.S.C.A. § 1983 void for vagueness claim and remand the case to the district court for further proceedings.

II.

Dr. San Filippo brought suit against the University in the United States District Court for the District of New Jersey. He based his federal claims on 42 U.S.C.A. § 1983. That statute states:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

The University moved for summary judgment on several grounds, including Dr. San Filippo's claim that the University's regulations governing the dismissal of tenured faculty members were so vague that they violated his right to due process. See San Filippo, 743 F. Supp. at 332. Dr. San Filippo filed a cross-motion for partial summary judgment as to liability on this same claim. Id. After oral argument, the district court held that the University's discharge regulations, as applied to Dr. San Filippo, were void for vagueness, as they did not give him fair notice that the charges against him could lead to dismissal. Accordingly, it granted Dr. San Filippo's cross-motion. Id. at 339.

Ancillary to its order granting Dr. San Filippo partial summary judgment on his void for vagueness claim, the district court denied the University's motions for summary judgment on the void for vagueness claim; to strike certain affidavits and exhibits; and to strike Dr. San Filippo's claim for loss of consulting fees. The district court granted the University's motions to strike Dr. San Filippo's claims for punitive damages, front and back pay, and research grants. Id. at 339. It did not decide the remaining motions before it nor did it address the question whether the record before the Board was sufficient for it to find that Dr. San Filippo had committed the particular acts of misconduct which the Board had decided justified his dismissal. Id. at 332-33.

Later, the University moved the district court to certify the void for vagueness question for interlocutory appeal, and to stay the action pending Disposition of its petition for permission to appeal and pending appeal if permission is granted. The district court granted the motion and thus amended its order as follows:

STATED, pursuant to 28 U.S.C. § 1292(b) and Rule 23 of the Rules of the United States Court of Appeals for the Third Circuit, that the within Order, in its grant of summary judgment to the plaintiff determining that Rutgers, The State University's dismissal regulations are unconstitutionally vague, involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the litigation . . . .

App. at 1132-33. This Court then granted the University permission to appeal from the certified interlocutory order.

III.

Dr. San Filippo became a tenured professor of chemistry at the University in 1984. Before the University discharged him, he was highly respected by his peers for his professional achievements.

On January 6, 1986, the Dean of the Faculty of Arts and Sciences gave Dr. San Filippo written notice that various complaints had been made against him regarding his conduct towards visiting Chinese scholars brought to the University to work with him on research projects.*fn4 The allegations included verbal abuse, harassment, exploitation, attempted exploitation, intimidation, fraud, deceit and misrepresentation. Dr. San Filippo responded with a written denial.

Over the next several months, various administrative actions were taken to investigate and dispose of the charges against Dr. San Filippo. The investigative phase ended on October 1, 1986, when Rutgers' President, Edward J. Bloustein, issued a formal charging document pursuant to University Regulation 3.97. The document stated that Dr. San Filippo "violated the basic ethical tenets of our profession, including those standards of professional ethics set forth in University Regulation 3.91, and that, in doing so, [Dr. San Filippo has] failed in [his] responsibilities to this University." App. at 892. Regulation 3.91 sets forth the Statement on Professional Ethics adopted by the AAUP. The document then stated the charges "meet the standards for dismissal set forth in University Regulations 3.93, 3.94, 3.97, and 3.99 and constitute gross neglect of established university obligations appropriate to your appointment and evidence a failure to maintain standards of sound scholarship and competent teaching." Id. Regulation 3.93 states that a tenured professor may be dismissed for "adequate cause" as defined in section 3.94. Regulation 3.94 defines adequate cause as "failure to maintain standards of sound scholarship and competent teaching, or gross neglect of established University obligations appropriate to the appointment, or incompetence, or incapacitation, or conviction of a crime of moral turpitude . . . ." App. at 977.*fn5

Specifically, the document set forth the following charges:

1. Your treatment of scholars visiting from the People's Republic of China and a Chinese Teaching assistant violated the standards of professional ethics required of all faculty members. More specifically, your treatment with respect to these individuals, as set forth more fully in the attached documents, is as follows:

a. You took advantage of your professional position and exploited Mr. Hetian Gao and Mr. Changhe Xiao, both visiting scholars from the People's Republic of China, by directing them or by leading them to believe that they had no choice but to perform domestic work for you, such as garden work and indoor and outdoor cleaning work during the period May through July 1985.

b. You attempted to exploit Ms. Yaru Zang, also a visiting scholar from the People's Republic of China, by attempting to make her perform domestic work for you.

c. You exploited Messrs. Gao and Xiao by representing that they would be provided health benefits coverage and that you would deduct $700.00 from the salary to be paid each of them in order to cover the costs of such benefits. Despite deducting ...


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