Skehan v. Board of Trustees of Bloomsburg State College Opinion

     [||869f1619-073c-4f46-b466-b1301015484f||] . 0 1) 

  

UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA 

DR. JOSEPH T. SKEHAN, 

Plaintiff : Civil No. 72-644 

VS. : Complaint Filed 12/22/72 

BOARD OF TRUSTEES OF : (Judge Muir) 5 

BLOOMSBURG STATE COLLEGE, : gs > 

et al., 

Defendants 

APPEARANCES: 

Por Plaintiff Bruce J. Terris, Esq. 

Suellen T. Keiner, Esq. 

SIA ITRTI TATE Eleanor M. Granger, Esq. 

DESS INTE Terris, Needham, Keiner, Black & 

pi bu Hostetler : 

2 1526 18th 8t., N.V. 

SEP 1% 1577 Washington, D.C. 20036 

'e Louise 0. Knight, Esq. 

FEDERAL LITIGATION Clement & Knight 

ATTORNEY GEIMERAL'S OFFICE 118 Market St. 
Lewisburg, Pa. 17837 

For Defendants Howard M. Levinson, Esq. 

J. Justin Blewitt, Jr., Esq. 

Dept. of Justice 

State Capitol 
Harrisburg, Pa. 17120 

FILED 
LEWISEIIRR, Pa 

JUL2 0 1577 

DONALD R. BERRY, Clerk 

PER... crimes mss srr 

EPUTY CLERK 

 



UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA 

DR. JOSEPH T. SKEHAN, 

Plaintiff : Civil No. 72-644 

VS. : Complaint Filed 12/22/72 

BOARD OF TRUSTEES OF : (Judge Muir) ey 

BLOOMSBURG STATE COLLEGE, : 3 C3 

et al., 

Defendants 

OPINION 

MUIR, District Judge. 

1. Introduction. 

Skehan, formerly an Associate Professor at Bloomsburg 

State College, has brought this action alleging that the 

Defendants violated his constitutional rights by terminating 

his employment as a professor at the College in October, 

1970 and by failing to renew his contract for the 1971-1972 

academic year. The history of this case is set forth in 

this Court¥s Opinion of May 18, 1977, 7 ‘P. Supp. =. In: 

1973, this Court found that Skehan's constitutional rights 

pursuant to the Fourteenth Amendment were violated by his 

termination as a member of the faculty without a prior 

hearing. 353 P.Supp. 430 (M.D. Pa. 1973). In its opinion of 

May 18, 1977, this Court concluded that the decision not to  



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renew Skehan's contract for the academic year 1971-1972 

without affording him the procedures prescribed by Article ne 

of the Statement of Policy of Bloomsburg State College 

violated the due process clause of the Fourteenth Amendment. 

The Court also stated in its opinion that the only Defendant 

from whom Skehan sought monetary damages had acted in good 
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faith and in a reasonable manner and therefore was protected 

by the doctrine of official immunity as set forth lin Wood : 

vs. Strickland, #20 0.85. 309 (1975). ‘The only issues remaining 

in this litigation are whether Skehan is entitled to any 

equitable relief as the result of the two violations of his 

constitutional rights, whether his attorneys should be 

awarded part or all of the $67,288.59 claimed as attorney's 

fees and whether Skehan should recover expenses and costs 

from the Defendants. The following are the Court's findings 

of fact, its discussion Of these issues, and its conclusions 

of law concerning these matters. 

11. Pindings of Tact. 

1 On October 10, 1972, Plaintiff filed a complaint 

against the Defendants with a claim that they had violated 

his constitutional rights by their fallure to provide him a 

hearing prior to his termination on October 17, 1970. 

  

1 
5e conforms to the numbering system in the Statement of 

Policy. TheisArticle 1s referred to as '‘5{e) in the Circuit Court 
opinion. : 

 



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2 One of the statutes under which Plaintiff brought 

sult was 42 U.S.C. $§1983. (Undisputed) 

3. Plaintiff prevailed in this Court in 1973 on hls 

claim that Defendants violated his due process rights by 

their failure to provide him a hearing prior to his termination. 

(Undisputed) 

L, Plaintiff was represented 1 bheso initial proceedings 

in this Court by Harry Lore. (Undisputed) : 

5. Plaintiff appealed the decision of this Court of 

May 9, 1973 to the United States Court of Appeals for the > 

Third Circuit. (Undisputed) 

6. Plaintiff prevailed in the Court of Appeals in 

that the case was remanded to this Court for findings as to 

whether Defendants had violated his First Amendment and due 

process rights in the course of thelr decision not to renew 

his contract and ln that the Court of Appeals upheld this. 

Court's rullng that Plaintiff's due process rights had bee 

violated by Defendants' failure to provide him with a hearing 

prior to termination. 

/ 8 The Court of Appeals also determined that Defendants 

were immune from liability to Plaintiff in damages because 

they were engaged in discretionary functions. (Undisputed) 

B. Plaintiff was represented in the proceedings 

in the Court of Appeals in 1973-1974 by Michael H. Gottesman 

who was assisted by his assoclate, Dennis D. Clark. 

9g. Plaintiff filed a petieion for a writ of certiorari 

in 1974 on the issues of sovereign immunity, official immunity 

and attorneys' fees. (Undisputed) 

 



  

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10. The Supreme Court, which granted Plaintiff's 

petition for a writ of certiorari, vacated the judgment of 

the Court of Appeals and remanded for further consideration 

on the issues of official immunity and attorneys’ fees. 

11. Plaintiff was represented in the proceedings in 

the Supreme Court in 1974 and 1975 by Bruce J5 Terris. 

212. Plaintiff prevailed in the hurt of Appeals in 1976 

in that the Court of Appeals ried hats PIaintift vas ontitTed 

to an award of damages if the individual defendants did not 

meet their burden of proof on officlal Tannity and ‘that ° 

Plaintiff was entitled to an award of attorneys: fees if 

Defendants had litigated in bad faith. 

13. Michael H. Gottesman and Dennis D. Clark represented 

Plaintiff in 1975-1976 in the proceedings on remand to the 

Court of Appeals from the Supreme Court. (Undisputed) 

14. Plaintiff prevailed in the proceedings in this 

Court on remand in 1976 and 1977 in that this Court has 

determined that Defendants violated Plaintiff's due process 

rights by failing in the course of their decision not fo 

renew his contract beyond the 1970-1971 academic year to 

provide him with the procedures to which his contract entitled 

him. 

15. Robert B. Elion and Robert B. Wayne represented 

Plaintiff initially in proceedings in this Court in 1976 on 

remand from the Court of Appeals. (Undisputed) 

16. After Plaintiff's case was remanded to this Court 

 



  

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in 1976, Defendants filed a petition for a writ of certiorari 

to the Supreme Court on the questions whether the Court of 

Appeals had ruled correctly on the issues of the sovereign 

immunity, official immunity and attorney's fees. (Undisputed) 

17. Defendants’ petition for a writ of certiorari was 

denied by the Supreme Court on November 29, 1976. ? 

- 18. Dennis D. ‘Clark represented plainslsP-respoident 

before the Supreme Court in response to Defendants! petivion’ 

for a writ of certiorari. (Undisputed) 

19. Bruce J. Terris represented Plaintiff during 

proceedings in this Court after the withdrawal of Robert B. 

Elion and Robert B. Wayne as counsel for Plaintiff; associates 

of Mr. Terris who assisted him during these proceedings were 

Eleanor M. Granger, Zona F. Hostetler, Nathalie v. Black, 

Lonnie C. Von Renner, Edward C. Comer and Suellen T. Keiner. 

(Undisputed) - 

20. Mr. Terris undertook representation of Plaintiff 

before this Court in 1976 because passage of the Civil 

Rights Attorney's Fees Awards Act was imminent and Plaintiff's 

right to recover attorney's fees under the Act was Co naat 

on Plaintiff prevailing. (Undisputed) 

23... PlaintiTr claims to have incurred legal expenses, 

other than the fees and expenses of his attorneys, including 

the cost of travel to and from conferences with his attorneys 

and the cost of telephone calls to his attorneys in order 

to assist them in his case. 

 



22. Plaintiff has submitted an application for an 

Award of Costs and Attorney's Fees to this Court. (Undisputed) 

23. Plaintiff's application was prepared by Bruce J. 

Terris and his associates Eleanor M. Granger and Peter J. 

Eglick. (Undisputed) 

24, Prior to May 1, 1977, Mr. Teryis and his assocliabes 

conferred with and assembled materials from all of the 

attorneys who have represented Plaintiff from the time the 

complaint was filed up to the conclusion of the proceedings 

in this Court; after May 1, : 1877, they prepared the application, 

researched and prepared a trial brief on the award of attorney's 

fees, prepared findings of fact and conclusions of law, 

attended a pre-pretrial conference, and represented Plaintiff - 

at the hearing on the application. .(Undisputed) 

25. At the present time there 1s no Committee on 

Professional Affairs at Bloomsburg State College (BSC). 

26. The Statement of Policy of Continuous Employment 

and Academic Freedom at Bloomsburg State College has been 

superseded by a collective bargaining agreement between the 

Assoclation of Pennsylvania State College and University 

Faculties and the Commonwealth of Pennsylvania. 

27. The collective bargaining agreement mentioned 1n 

the preceding paragraph went into effect on September 1, 

1974, and is in effect at the present time. 

28. Defendants were the prevailing party with respect 

to the venue lssue raised in the United States District Court 

for the Eastern District of Pennsylvania, where this case 

was originally brought. (Undisputed)  



  

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29. Defendants were the prevailing party at the preliminary 

injunction stage of this case. (Undisputed) 

30. This Court has found that Plaintiff was not discharged 

from his employment at BSC in October of 1970 for reasons 

violative of the First Amendment. Thus, as to this First 

Amendment issue, the Defendants are the prevailing parties, : (ndianted 

31. This Court has found that Plaintiff was discharged because 

Of his refusal to follow administrative directives and 

specific orders from his superiors relating to the scheduling 
M 

and teaching of classes in the fall of 1970. 

32. Plaintiff-Appellant designated the following 

issues for review by the Court of Appeals: 

1) "Having found that plaintiff was wrongfully discharged 
in mid-term without a proper prior hearing under the ; 
Due Process Clause of the Fourteenth Amendment should 
not the lower Court, having found a contract of employment, 
awarded plaintiff his salary for the remainder of the 
academic year, as.well as. damages for lost.salary in 
the ensuing years, counsel fees and reinstatement?" wits 

2) "Was the suspension and subsequent discharge a 
nullity, in view of the failure to provide a due process 
hearing before the body mandated in the college's 
Statement of Policy?'" 

3): "Was the plaintiff's dismissal as a college professor 
grounded upon constitutionally impermissible reasons 

under the First and Fourteenth Amendments?" 

4) "Did the lower Court err in finding that plaintiff 
disobeyed an administrative directive on class scheduling?" 

5) "Is the failure to provide a due process hearing 
prior to discharge where such is clearly required by 
the Fourteenth Amendment of the U.S. Constitution as 
well as the College's regulations, a mere 'technical 
deprivation' warranting damages in the nominal amount 
of one dollar?" 

 



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6) "Whether the lower Court erred in failing to take 
judicial notice of the censure report on Bloomsburg by 
the AAUP and of its own dockets in connection with the 

sult brought by Professor Maxwell Primack against 
defendants in connection with his discharge in violation 
of the First and Fourteenth Amendments?" (Undisputed) 

33." Plaintiff-Appellant 41d not ralse in this Court 

prior to 1976 or in the Court of Appeals the issue as to 

whether the decision not to renew Plaintiff after the 1970- «, . 

1971 academic year was in violation of the First Abenanent, 

34, Plaintiff-Appellant did not raise in the district court 

in 1972 or in the Court of Appeals the issue of whether his E 

constitutional rights had been violated by not being afforded the 

procedures of 5e of the Statement of Policy of Bloomsburg State 

College. 

35. Article 5e provides, in part, that, "[11f a faculty 

member of professional (sic) rank, on probationary Aa 

alleges that a decision not to reappoint him has been caused 

by considerations violative of academic feedom, his allegation - 

shall be given preliminary consideration by the Committee on 

Professional Affairs..." (Undisputed) 

36. Plaintiff did not show by a preponderance of the 

evidence that his stands concerning campus issues at Bloomsburg 

State College were a substantial factor in the non-renewal 

of his contract by either the then President of the college, 

Nossen, or the Board of Trustees. 

37. Assuming arguendo that Plaintiff had shown by a 

preponderance of the evidence that his protected speech was 

a substantial factor in the decision not to renew his employment 

contract, Defendants Nossen and the Board of Trustees have 

established by a preponderance of the evidence that they 

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would have reached the same decision as to his reemployment 

even in the absence of the protected conduct. 

38. This Court has found that Defendant Nossen acted 

in good faith in not affording Plaintiff the procedures set 

forth under Article 5e of the Statement of Policy. Thus, 

88 to this issue of official immunity, defendants .are the 

\ ¢ [ 

prevailing party. (Undisputed) \ “ 

39. This Court has found that Nossen acted in good 2 

faith and in a reasonable manner in not affording Plaintiff 

a due process hearing prior to Plaintiff's termination Ot ui» 

October 19, 1970. Thus, as to this lssue Of official immunity, 

defendants are the prevailing party. (Undisputed) 

40. In its second opinion in this case, the Third 

Circuit held as follows: "It can hardly be sald that on 

those issues on which the Defendants have thus far prevailed 

the defense has been maintained in bad faith, vexatlously, 

wantonly, or for oppressive reasons. Nor can we find evidence 

of oppressiveness in Defendants' response on appeal to those 

issues on which Skehan has been successful." (Undisputed) 

41. Since this case was remanded by the Third Circuit 

in June of 1976, Plaintiff has filed with this Court three 

requests for the production of documents and one set of 

interrogatories. (Undisputed) 

42. Each of the discovery requests identified in the preceding 

paragraph was accompanied by a motion to reduce time and a 

brief in support thereof. (Undisputed) 

43. This Court denied all of Plaintiff's motions to 

 



  

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reduce time in connection with discovery requests. (Undisputed) 

44, As to each of the four discovery requests referred 

to in 41 above, Plaintiff filed a motion to compel discovery 

under Rule 37. (Undisputed) 

45. This Court denied all four of the Rule 37 Motions 

filed by Plaintiff. (Undisputed) \ Ca 3 
\ 

#6, In connection with one of the Rule 37 motions, Zh 

this Court, in an opinion filed on November 16, 1976, held 

as follows: 
LJ 

"Except for pro se civil rights actions by state prisoners, 
the Court has not witnessed a more flagrant misuse of 
the discovery procedures provided by the Federal Rules 
of Civil Procedure. Discovery, when properly employed, 
is a worthwhile device for the preparation and fair 
disposition of cases. However, its continued vitality 

as a legitimate instrument of legal inquiry is threatened: 

by misuse. The technique of litigation by exhaustion 
through discovery makes a mockery of the process. If 
discovery in all cases were conducted as in this particular 

request, the legal system would collapse under its own 
weight." (Undisputed) 

47. The individual defendants did not act vexatiously 

or oppressively in the pre-litigation stages of this case, 

48. The defense of this case has not been pursued in 

bad faith, or vexatiously, wantonly or oppresslively. 

49. Plaintiff was a probationary employee with the 

Department of Economics during his employment at Bloomsburg 

State College. (Undisputed). 

50. * The Article 5(e) issue was not raised in either of 

the Supreme Court proceedings in this case. (Undisputed) 

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51. Defendants' motion for Leave to File an Amended 

Answer Raising the Defense of the Statute of Limitations was 

granted. (Undisputed) 

52. Defendants' Motion to Take Additional Testimony on 

the Issue of Official Immunity was granted. (Undisputed) 

53. Plaintiff's Motion to Take Additional Testimony on 

1 

His First Amendment Claim was denied. (Undisputed) 

I11. Discussion. 

Skehan contends that he is entitled to reinstatement as 

a remedy for the Defendants' violation of his sonshitustonal 

right to a pretermination hearing. Two competing factors 

must be considered by the Court in fashioning a remedy in 

this case. One is that if Skehan's constitutional rights are 

to be protected, adequate remedies should be afforded him. 

The other factor is that Skehan bears an extremely large 

measure of responsibility for the violation of his constitutional 

right to a pretermination hearing. The Court has set thls 

forth in its findings of fact of Vay 18, 1977. Skehan's conduct 

in refusing to teach his classes at assigned times created 

confusion among his students and caused disrespect for the 

college administration. The administration repeatedly warned 

Skehan that action would be taken against him if he did not 

meet his classes at the assigned times. In spite of these 

warnings, Skehan refused to comply with the directions of 

his superiors. As a result, he was suspended on October 9, 

1970. Even after suspension, Skehan continued to meet with 

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a 

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classes, informing students that they wold receive credit 

for attending courses taught by him despite the fact that the 

administration advised Skehan's students that they should 

not attend courses taught by him, and that they would not 

receive credit for such attendance. As a result of his 

conduct, Skehan was terminated on October 19, 1970, effective - 

October 17, 1970. The termination brought no peace to the 

college. Skehan continued to attempt to hold classes. : 

Finally, the college administration applied to the Court of 

Common Pleas of Columbia County to enjoin gkehan from further 

disrupting the campus. A consent decree was ultimately 

entered. To reinstate Skehan with full teaching duties 

after his blatant disregard for administrative directives 

would seriously undermine respect for the college administration 

at Bloomsburg State College, would have the potential of 

impairing the college's ability to operate 1ts own affairs and 

would result in a grave miscarriage of justice. 

Federal court interference with the administrative 

procedures of state institutions should be kept to a minimum. 

Rizzo vs. Goode, 423 U.S. 326 (1976). Prospective reinstatement 

is an equitable remedy. The requirements of the law of 

equitable remedies clearly applies to §1983. Gurmankin vs. 

Coztanzo, +. P24 A34Cly. 4/25/76). Equity has 

traditionally only offered its relief to those who have 

clean hands. Precision Instrument Manufacturing Company vs. 

1D 

 



  

Automotive Maintenance Machinery Company, 324 'U.8, 306 

(1945). Consequently, the clean hands doctrine should in my 

view be considered when equitable relief is sought pursuant 

to 42 U.5.C. $1933. Brown vs. Greer, 296 P.3Supp. 595 (S.D. 

Miss. 1969). The clean hands doctrine bars Skehan from full 

reinstatement as a faculty member. 53 . 45 

The appropriate remedy in this. case is reinstatement of ’ 

Skehan to the suspended status that he held on October 15, 

1970. Because Skehan has not contended that his suspension 

was invalid, reinstatement of Skehan to the position that se 

held before the unconstitutional termination is sufficient. Horton 

vs. Orange County Board of Education, 464 F.2d 536 (4th Cir. 

1972), The Court would have reached this conclusion even 

if Skehan had acted with clean hands. His conduct only | 

reinforces the Court's view that reinstatement to the status 

he held -on October 15, 1970 -is the-appropriate remedy. fh 

Skehan has not claimed that his suspension violated the 

United States Constitution. No reason exists to place him 

in a position superiorcto that which he possessed when the 

illegal conduct of the Defendants commenced. Skehan's 

reinstatement to a suspended status may be ended either by 

his full reinstatement or a termination. The College will be 

required to afford him a hearing comporting with due process 

at which he will have an opportunity to refute any charges 

relating to his conduct in 1970. 

Reinstating Skehan to the status that he held on October 

15, 1970 alleviates the disadvantages which, according to the 

 



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Court of Appeals Tor the Third Circuit, occur when a public 

employee 1s terminated prior to a hearing. Skehan vs. Board 

of Trustees of Bloomsburg State College, 501 F.24 31 (34d 

Cir. 1974). :Skehan will be on the payroll and will not be unduly 

limited in his ability fo pursue the hearing remedy. The 

concern of the Court of Appeals that after an employee 1s 

terminated an institution will make substitute teaching : Lad 

arrangements, thus increasing whatever tendency may already 

exist for the hearing officials to defer 10 the administration's 

decision is. not present ‘in this case. Any substitute teaching 

arrangements have already been made and will not be altered 

by a full reinstatement of Skehan. 

Skehan also maintains that the proper remedy for the 

fallure of Bloomsburg State College to provide him with the 

administrative procedures of 5e of the Statement of Policy 

1s his reinstatement. - Because--Skehan-has-not-contended--in ns 

any proceedings before this Court, or the United States 

Court of Appeals or the United States Supreme Court that his 

suspension with pay on October 9, 1970 was illegal, the 

Court concludes that he should be placed back in the position 

he held after his suspension and before his termination. In 

addition, reinstating Skehan {0 his full status as a faculty 

member because .of the Bloomsburg College's officials!  fallure 

to afford him the appropriate procedures before deciding not 

to renew his employment would also vitiate this Court's 

determination to limit Skehan's equitable remedies because 

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of his violation of the clean hands doctrine. Full relnstatement 

is not the required remedy for failure to provide due process 

prior to a final determination of the renewal of an employment 

contract. In Perry vs. Sindermann, 408 U.S. 593, 603 (1972), 

the Supreme Court concluded that proof of an individual's 

property interest in continued Publ SEtlonrent Le wk 2 

entitle him to relnstabeniont, | | 

Because the procedures under 5e of the Statement of Policy 

are no longer in effect at Bloomsburg State College, the * 

Defendants must recreate them for Skehan. He 1s entitled to 

those procedures, no more, no less. Establishing special 

hearing boards as suggested by the Defendants could result 

in Skehan not being afforded protection equivalent to that 

provided by 5e. The Court will order that Bloomsburg State 

College and the other relevant Defendants afford Skehan the 

first tier of applicable procedures of Article 5e within 90 : 

days. A decision by the Committee on Professional Affairs 

should be rendered within 30 days of the date on which it 

completes its proceedings concerning Skehan. 

Skehan contends that the Court of Appeals was in error 

when it ruled that the state Defendants, acting in their 

official capacities, were protected from an award of damages 

by sovereign immunity. This Court 1s bound by the decision 

of the United States Court of Appeals and therefore will 

reject this argument. 

 



Next, Skehan seeks $67288.501in attorney's fees pursuant 

to the Civil Rights Attorney's Fees Awards Act of 1976, 
2 

Pub.L. 94-559 enacted October 19, 1976, from the Defendant 

Nossen in his individual capacity and from Nossen and the 

  

2 
$2 U.8.C.A8 1988 (1976) 

"The jurisdiction in civil and criminal matters conferred 
on the district courts by the provisions of thls chapter 

and Title 18, for the protection of all persons in the 
United States in thelr civil rights, and for their 
vindication, shall be exercised and enforced in confornmity 
with the laws of the United States, so far as such laws 
are suitable to carry the same into effect; but in all 
cases where they are not adapted to the object, or are 
deficient in the provisions necessary to furnish sulftable 
remedies and punish offenses against law, the common 
law, as modified and changed by the constitution and 
statutes of the State wherein the court having jurisdiction 
Of such civil or criminal cause 1s held, 30 far as the 
same is not inconsistent with the Constitution and laws 
Of the United States, shall be extended to and govern 
the said courts in the trial and disposition of the 
cause, and, if it is of a criminal nature, in the 
infliction of punishment on the party found guilty. In . 

any action or proceeding to enforce a provision of 
sections 1981, 1982, 1933, 1985, and 1936 of this 
title, title IX of Public law 92-318, or in any civil 
action or proceeding, by or on behalf of the United 
States of America, to enforce, or charging a violation of a 
provision of the United States Internal Revenue Code, or 
title VI of the Civil Rights Act of 1964, the court, in its 
discretion, may allow the prevailing party, other than the 
United States, a reasonable attorney's fee as part of the 
costs. 

 



  

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other Defendants in their official capacities as state 

officials. In order to be entitled to attorney's fees from 

Nossen in his individual capacity, Skehan must establish 

that he was the prevailing party in this litigation. Although 

Skehan did prove by a preponderance of the evidence that 

Nossen violated his Fourteenth Amendment rights by failing 
7 . 

to accord him a hearing prior to sermination and by failing 

to provide him with the procedures contained in 5e of the 

Statement of Policy of Bloomsburg State College, Nossen 

showed by a preponderance of the evidence that he had committed 

these violations without malicious intent to deprive Skehan 

of his constitutional vights or injure him in any other way 

and that his actions were reasonable. Because Nossen prevailed 

on the issues of good faith and the reasonableness of hls 

failure to provide Skehan with a prior termination hearing 

and the procedures of 5e, Nossen 1s immune to a damage 

action by Skehan. Consequently, as to Skehan's claim for 

damages, Nossen is the prevailing party and is not liable in 

his personal capacity for attorney's fees pursuant to the 

Civil Rights Attorney's Fees Awards Act of 1976. 

Even if Skehan were to be viewed as having prevailed 

against Nossen, this Court would not direct Nossen to pay 

Skehan's attorney's fees in his individual capacity. The 

Civil Rights Attorney's Fees Awards Act of 1976 permits the 

Court to exercise its discretion as to whether to award 

attorney's fees. Awarding attorney's fees against Nossen in 

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his individual capacity would be grossly unjust. Nossen 

acted in good faith and in a reasonable manner when he 

failed to accord 3kehan his constitutional rights, To 

penalize Nossen for conduct which was neither malicious nor 

negligent would violate the standards of common decency. In 

addition, awarding attorney's fees against Nossen personally- 

after he has prevailed on the official immunity issue would . 

severely undermine the policies which motivated the Supreme 

Court to fashion this defense. Unlimited personal liability 

Of public officials for attorney's fees rn to 42 

U.S.C. $1983 would inhibit public officials from performing 

their duties in an efficient and prompt manner. Sheuer vs. 

Rhodes, 416 U.8. 232, 242: (1973). The amount of the attorney's 

fees requested in this case is so great that requiring a 

state official to pay it would have the same tendency to 

cause hesitation in the performance of vital public functions: 

as a damage award. In the absence of express statutory 

language, this Court will not assume that Congress intended 

the Civil Rights Attorney's Pees Awards Act to undercut the 

doctrine of limited official immunity. Consequently, Skehan's 

claim for attorney's fees from Nossen in his individual 

capacity will be denied. 

Skehan also seeks attorney's fees from the Defendants 

in thelr official capacities. In effect, he is attempting 

to recover attorney's fees from the Commonwealth of Pennsylvania 

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through the state officials whom he has sued. Defendants 

contend that this claim of attorney's fees from the Commonwealth 

of Pennsylvania is barred by the Eleventh Amendment of the 

United States Porsttaninh Although that amendment appears 

only to prevent sults against states in federal court brought 

by citizens from other states or by citizens or subjects of, 

any foreign state, the federal courts have consistently : 

interpreted it to bar actions for monetary damages brought 

by a citizen of a state against his own state. Hans vs. . 

Louisiana, 134 U.S. 1 (1889); Fialkowski vs. Shapp, 405 

¥.Supp. 946 (E.D., Pa. 1975). In Fitzpatrick vs. Bitzer, 427 

U.S. 445 (1976), the Supreme Court concluded that Congress 

possesses the power pursuant to §5 of the Fourteenth Amendment 

to limit the application of the Eleventh Amendment. Ic is 

clear that Congress derives the authority to implement the 

Attorney's Fees Awards Act from the Fourteenth Amendment. The 

purpose of the Civil Rights Attorney's Fees Awards Act is to 

compensate counsel who represent prevailing litigants in 

various claims brought pursuant to several different civil 

rights statutes. But the Clvll Rights Attorney's Fees Sanbds 

Act contains no language expressly allowing the recovery of 

attorney's fees from the states. 

In Fitzpatrick vs. Bitzer, supra, the Plaintiffs 

sought damages from the State of Connecticut pursuant to 

Title VII of the Civil Rights Act of 1964. In 1972, Congress 

  

2 amendnent XI of the United States Constitution reads: 

"The Judicial power of the United States shall not be construed t« 

extend to any suit in law or equity, commenced or prosecuted against 

one of the United States by Citizens of another State, or by 

Citizens or Subjects of any Foreign State." 

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amended the language of that statute to permit an employee 

of a state or political subdivision to sue his or her public 

employer pursuant to that act. Thus, in Fitzpatrick, by   

concluding that §5 of the Fourteenth Amendment limited the 

applicability of the Eleventh Amendment and allowed a state 

to be held liable for damages, the Supreme Court enforced 

the specific statutory language of Congress. The ‘Nit ornedts 

Fees Awards Act contains no such 1angusse authorizing a 

recovery against a state. 

This Court 1s of the view that Congress must exercise * 

by express and clear language its power to limit the applicability 

of the Eleventh Amendment. Only two reported decisions have 

considered the issue of whether a Plaintiff in a §1983 

action can recover attorney's fees from a state pursuant to 

the Civil Rights Attorney's Fees Awards Act. The entire 

analysis of this matter. presented by the Eighth Circult _in 

Finney vs. Hotto, 548 P.24 740 (8th Cir. 1977) is as Follows: 

"Since the Act was passed by Congress under, inter 
alia, the enabling clause of the fourteenth amendment, 
85.Rep. No. 94-1011, S4th Cong., 248 Sess. 5.0.38. Code 
Cong. & Admin. News, 1976, p. 5908 the award of attorneys'" 
fees is not barred by the eleventh Amendment. Fitzpatrick 
vs. Bitzer (citation omitted). 

  

The Eighth Circult does not discuss the need for statutory 

language indicating the Congressional intent to limit the 

applicability of the Eleventh Amendment. 

In Wade vs. Mississippi Cooperative Extension Service, 

$24 F.Supp. 1242 (N.D. Miss. 1976), the Court noted that 

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[a i 
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% . \ @ 

Congress did not expressly authorize a recovery of attorney's 

fees from the states in the Civil Rights Attorney's Fees Awards 

Act as it had expressly authorized a recovery of damages 

from the states pursuant to Title VII of the 1964 Civil 

Rights Act. The Court concluded that the legislative history 

of the Attorney's Fees Act provided the necessary indication. 

of Congressional Intent. This Court finds that ralbienRale 

unpersuasive. In the absence of explicit statutory language 

subjecting the states to liability for damages and attorney's 

fees, this Court will not imply a limit to the state's 

immunity to sult under the Eleventh Amendment. See Employees 

of the Department of Health and Welfare vs. Missouri, 411 

0.8. 279 (1973). 

Even if the Eleventh Amendment is not a bar to Skehan's 

claim for attorney's fees against the Commonwealth of Pennsylvania, 

this Court would not award such fees for the legal-work — 

performed concerning termination without a prior termination 

hcaring because in our view it would be unjust in this case. 

The Court would exercise its discretion pursuant to the Civil Rights 

Attorney's Fees Awards Act not to award the fees requested 

by Skehan. As stated above, and in the Court's opinions of 

May 9, 1973, 358 P.Supp. 430 (M.D. Pa. 1973), and May 18, 

1977, Skehan's termination on October 19, 1970 by college 

officials was caused by his failure to meet his classes at 

assigned times. Skehan's conduct was in my view egregious. 

To award attorney's fees of $87288.9 to Skehan would be to 

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place an unconscionable and unjust burden. upon the taxpayers 

of the Commonwealth of Pennsylvania and would penalize the 

Commonwealth of Pennsylvania and 1ts taxpayers for the 

attempt of Bloomsburg State College officials to administer 

its affairs in an orderly and efficient manner. 

This analysis does not apply to a request for attorney's 
£3 

fees for time expended pursuant to the 5e issue.” If this 

Court is found to be in error bY the Court of Appeals in its” 

conclusion that the Eleventh Amendment bars Skehan's claim 

for attorney's fees, the Court believes that, Skehan is . 

entitled to attorney's fees on the 5e issue. Because no time 

was expended on that matter until this case was remanded to 

this Court from the United States Court of Appeals in July, 

1976 any claim for attorney's fees prior to that date would 

be unjustified. 

In the light of the foregoing, Skehan's claim for 

attorney's fees from the Defendants in their official capacities 

will be denied. 

Skehan also claims expenses which he allegedly incurred while 

aiding his attorneys in the preparation of his case. These expenses 

include the cost of telephone calls to his attorneys and the cost 

of travelling to confer with his attorneys. Such expenses are not 

authorized by the Civil Rights Attorney's Fees Awards Act of 

1976 and do not come within the definition of costs as that term 

is used in the PFederal Rules of Civil Procedure. Consequently, 

Skehan's request for expenses will be denied. Because each party 

 



"n ot tall v. oy 

  

was at fault in this case, 1t seems appropriate that each party 

shall bear his own costs. 

IW. Conclusions of law. 

1. Skehan is entitled to reinstatement to the position 

he had at Bloomsburg State College on October 15, 1970. 

2 The clean hands doctrine of equity Prevents Skehan 
¢ 

from being reinstated to full status as a faculty member of 

Bloomsburg State College. | 

3. Skehan 1s not entitled to recover attorney's fees 

pursuant to the Civil Rights Attorney's Fees Awards Avs op : 

1976 on his damage action against Nossen individually because 

Nossen was the prevailing party on the immunity issue. 

L. Skehan's claim for attorney's fees pursuant to the 

Attorney's Fees Awards Act from the Defendants in thelr 

official capacities is barred by the Eleventh Amendment to 

the United States Constitution and by-sovereign immunity. 

i 38 An award of attorney's fees against Nossen rdw iaually 

would be unjust. 

6. An award of attorney's fees against the Defendants 

in their official capacities for falling to afford a hearing 

prior to the termination of Skehan's employment would be 

unjust. 

7. Skehan 1s not entitled to attorney's fees from the 

Defendants as to the issue that his employment contract was 

not renewed beyond 1970-1971 because of his involvement in 

campus activities and his expression of views hostile to the 

Administration of Bloomsburg State College for the reason that 

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. re ald 

the Defendants were the prevailing parties. 

8. Skehan is not entitled to expenses. 

An appropriate order will be entered. 

  

  

MUIR, U.S. District Judge 

DATED: July 20, 1977 [||869f1619-073c-4f46-b466-b1301015484f||]