ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA (D.C. Civil No. 72-0644)
Before Adams, Rosenn and Sloviter, Circuit Judges.
Before us is another phase of litigation which began over nine years ago arising out of the decision of Bloomsburg State College (College) not to renew the contract of one of its faculty members, Dr. Joseph T. Skehan, and subsequently to dismiss him from the College faculty in mid-term of his final contract year. Skehan's suit has been the subject of three previous opinions of this court, a decision by the Supreme Court, and several district court opinions, some reported and some unreported.*fn1 Skehan here appeals from two orders of the district court dealing with his remedy: (1) the order denying, on the ground of the Eleventh Amendment, his motion for an award of special damages in the form of back pay, and (2) the order denying his motion to require the College to provide him with the type of pretermination hearing which he contends was required. We will not detail the lengthy history of this litigation, and instead focus only on the facts essential to the disposition of this appeal.
Skehan was appointed as a non-tenured Associate Professor of Economics at the College in January, 1969 under a six-month trial contract, which was renewed for the 1969-70 academic year. In May, 1970 Skehan was notified by letter from then college president, Robert Nossen, that his contract would be renewed for the 1970-71 academic year, but would not be renewed beyond that year. We will refer to this decision throughout as the nonrenewal decision. Skehan, who accepted the offer of employment for the 1970-71 academic year, protested that the nonrenewal decision had been caused by considerations violative of his academic freedom and claimed that he was therefore entitled to a hearing pursuant to Article 5e of the Statement of Policy for Continuous Employment and Academic Freedom at Bloomsburg State College (hereinafter Article 5e). The College rejected Skehan's request for an Article 5e hearing on the reasons for the nonrenewal decision.
In the fall of 1970, during Skehan's terminal contract year, he became involved in a dispute between the economics department and the College's administration concerning the scheduling of classes. In October, he was first suspended and then dismissed on the ground of his failure, despite repeated warnings, to teach his classes as scheduled by the College. We will refer to this mid-term termination decision as the dismissal decision.
Skehan filed suit in federal court alleging that both his contract nonrenewal and his dismissal violated his First Amendment rights because they were in retaliation for his role in campus political issues and violated his Fourteenth Amendment right to due process because defendants failed to comply with the laws and regulations of the College. Ultimately, his First Amendment claim was rejected and it is not before us. He was more successful on his claim of procedural violations. The district court found that Skehan's one year employment contract was a property interest within the meaning of Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972), and Perry v. Sindermann, 408 U.S. 593, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972), and that Skehan's dismissal violated due process because it was accomplished before he was given a hearing at which he had the opportunity to justify his actions or present reasons why dismissal was not the appropriate sanction. Skehan v. Board of Trustees of Bloomsburg State College, 358 F. Supp. 430 (M.D.Pa.1973). In a subsequent decision, following remand to the district court which conducted a hearing on the issue, that court concluded that Skehan also possessed a contractual right to a hearing as provided in Article 5e (which incorporates the procedures specified in Article 9) on the College's nonrenewal decision, that he had invoked that right within a reasonable time, and that the College's failure to afford him those procedures violated the due process clause of the Fourteenth Amendment. Skehan v. Board of Trustees of Bloomsburg State College, 431 F. Supp. 1379, 1391 (M.D.Pa.1977).
Thereafter, the district court held hearings on the appropriate remedy. In an opinion filed July 20, 1977, the court declined to order full and immediate reinstatement, but concluded that the proper remedy for the College's failure to provide Skehan with the necessary hearings was his reinstatement, without teaching duties, to the suspended status he held on October 15, 1970, after he was suspended for refusing to teach his classes but before he was formally terminated and removed from the payroll pending administrative hearings to determine whether nonrenewal and dismissal were proper. Skehan v. Board of Trustees of Bloomsburg State College, 436 F. Supp. 657, 664 (M.D.Pa.1977). The district court held that the College would be required to afford Skehan a hearing in accordance with the contractual Article 5e procedures on his nonrenewal and a hearing comporting with due process on his dismissal, in that order. Id. at 664, 668-69.
Following the district court's order, Skehan was reinstated as a faculty member, and received approximately $22,000 in salary from August 1, 1977 through June 2, 1978. He also negotiated with the College and received $51,500 for attorney's fees and expenses. Appellant's brief at 3. A hearing on Skehan's nonrenewal was conducted before the Committee on Professional Affairs, an elected committee of faculty members which was the body designated in Article 5e and which was ordered recreated because the Policy Statement of which that article was a part was no longer in effect, having been superseded by a collective bargaining agreement. That Committee found his contract was not renewed for reasons violative of academic freedom and recommended his reinstatement and reconsideration. Thereupon, the College's president, James H. McCormick, decided to withdraw the nonrenewal letter, and to rely instead on the dismissal action. The College conducted the dismissal proceedings which are at issue on this appeal. The majority of the Committee which heard those proceedings recommended Skehan's termination, and on June 2, 1978, the College's president notified Skehan in writing that he accepted the Committee's findings of fact and recommendation, and that Skehan was terminated from employment at the College and removed from the payroll effective as of the end of that day.
Skehan has throughout this litigation, beginning with the filing of his complaint, contended that he was entitled, inter alia, to reinstatement and an award of back pay. In our first consideration of this issue, we held that "if under Pennsylvania law the College is an agent of the Commonwealth, state sovereign immunity would preclude the award of any relief against it directly and any but prospective monetary relief, equitable or legal, in an order directed against the individual defendants." Skehan v. Board of Trustees of Bloomsburg State College, 501 F.2d 31, 42 (3d Cir. 1974). The Supreme Court granted Skehan's petition for a writ of certiorari and, in a summary disposition, remanded the case to us for further consideration in light of, inter alia, Wood v. Strickland, 420 U.S. 308, 95 S. Ct. 992, 43 L. Ed. 2d 214 (1975). Skehan v. Board of Trustees of Bloomsburg State College, 421 U.S. 983, 95 S. Ct. 1986, 44 L. Ed. 2d 474 (1975).*fn2 We thereupon reviewed the case en banc, and held that in light of Wood v. Strickland our prior assumption of an unqualified common law immunity for the individual defendants was erroneous. Skehan v. Board of Trustees of Bloomsburg State College, 538 F.2d 53, 60 (3d Cir.) (en banc), cert. denied, 429 U.S. 979, 97 S. Ct. 490, 50 L. Ed. 2d 588 (1976). We remanded to the district court so that it could determine whether the individual defendants acted without malice and whether they knew or reasonably should have known that the actions taken would violate Skehan's constitutional rights. In addition, we reexamined the issue of the College's immunity in light of the decision in Brungard v. Hartman, 12 Pa.Commw. 477, 315 A.2d 913 (1974), which had not been called to our attention before our prior opinion was filed. We concluded that the holding of Brungard that state colleges such as Bloomsburg State College are agencies for which Pennsylvania claims sovereign immunity was dispositive of the back pay issue, and therefore held that a back pay award could not be made out of the College's treasury.
On remand, the district court found that the one individual defendant whose conduct was at issue, President Nossen, acted in good faith and without malice, and was entitled to the qualified immunity recognized in Wood v. Strickland, supra. 431 F. Supp. 1379 (M.D.Pa.1977). The district court also declined to entertain Skehan's argument that this court had erred in holding that an award of damages in the form of back pay against the College was barred by the Eleventh Amendment. 436 F. Supp. 657, 665 (M.D.Pa.1977). On appeal, Skehan relied on the intervening decision of the Pennsylvania Supreme Court in Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 388 A.2d 709 (1978), which abrogated the judicially-created doctrine of sovereign immunity in suits against the Commonwealth for torts of its agents. We rejected Skehan's claim on the ground that the passage of Act No. 152*fn3 by the Pennsylvania legislature "reaffirming and preserving sovereign immunity as a bar to claims brought against the Commonwealth and its agencies, officials, and employees," had "effectively overruled the decision of the Pennsylvania Supreme Court in Mayle" and therefore we had no need to interpret the effect of the Mayle court's abrogation of Pennsylvania's state law sovereign immunity on that state's Eleventh Amendment immunity from damage actions in federal court. Skehan v. Board of Trustees of Bloomsburg State College, 590 F.2d 470, 487-88 (3d Cir. 1978), cert. denied, 444 U.S. 832, 100 S. Ct. 61, 62 L. Ed. 2d 41 (1979). We thus declined to disturb our previous ruling that the Eleventh Amendment precluded an award of back pay against the College. Id. at 488.*fn4
When the case was again before the district court, Skehan filed a motion for an award of special damages in the form of back pay for the period, inter alia, from October 17, 1970 through July 31, 1977, on the ground of an intervening change in Pennsylvania law. The district court's denial ...