author: HOBBS, Chief Judge.

text:
    David M. NASH and Donna C. Perry, Plaintiffs, v. AUBURN UNIVERSITY, Frank G. Vice, J.T. Vaughan, H.C. Morgan, and James E. Martin, Defendants.
    Civ. A. No. 85-H-1141-E.
    United States District Court, M.D. Alabama, E.D.
    Oct. 23, 1985.

      McPhillips, DeBardelaben & Hawthorne, Julian McPhillips, Griffin Sikes, Jr., Montgomery, Ala., for plaintiffs.
    Balch & Bingham, David Boyd, Montgomery, Ala., Samford & Samford, Thomas D. Samford, III, Opelika, Ala., Melton & Espy, Joe Espy, Montgomery, Ala., for defendants.
   MEMORANDUM OPINION

HOBBS, Chief Judge.

This cause is now before the Court on defendants’ motion for summary judgment filed October 15, 1985 and plaintiffs’ motion for summary judgment filed on October 16, 1985. Counsel for both parties orally waived the Rule 56(c) ten day waiting period before the time fixed for a hearing, and a hearing on both motions was held on October 18, 1985. Upon consideration of the motions, briefs, affidavits, transcripts, oral arguments of counsel, and other documents properly before this Court, the Court is of the opinion that plaintiffs’ motion for summary judgment is due to be denied, and defendants’ motion for summary judgment is due to be granted.

FACTS

Plaintiffs Nash and Perry were first year students in Auburn University’s College of Veterinary Medicine at the time of the events which form the basis of their claims. On June 6, 1985, they were advised in writing that they were charged with violations of the University’s Student Code of Professional Ethics (the “Code”). The specified violation was “academic dishonesty, in that while taking examinations during 1984-1985 school year, information was allegedly obtained in an unethical manner.” The notice advised that in accordance with the Code, plaintiffs were allowed 72 hours to prepare their defense and that a hearing would be conducted by the Student Board of Ethical Relations (the “Board”) on June 10, 1985.

Plaintiffs attended the June 10 hearing accompanied by counsel. Before any evidentiary proceedings commenced, plaintiffs objected to the June 6, 1985 notice as inadequate and too vague to reasonably advise them of the charges against them. Plaintiffs requested a more specific notice, and one additional day to prepare their defense. After consultation with counsel, plaintiffs expressly agreed to a new hearing date on the evening of June 12, with the understanding that a more specific charge would be made by 1:00 p.m. on June 11.

Plaintiffs timely received the restated notice which charged them with “giving or receiving assistance or communications ... during the anatomy examination on or about May 16, 1985” in violation of the Code. The notice also listed several classmates of plaintiffs and several members of the anatomy faculty who were expected to support the charges at the hearing.

The student honor court hearing was conducted as scheduled on June 12. Again, plaintiffs were accompanied by an attorney, who was allowed to counsel and advise plaintiffs during the hearing, but who was not allowed to participate directly in the proceedings. The Board did not have legal counsel present, and the proceedings were conducted by the non-voting student chancellor of the Board. The plaintiffs, witnesses and Board members were all present throughout the hearing. A transcript of these proceedings is an exhibit in this case, (Def.Exhibit # 20).

At the hearing before the student honor court, the witnesses against plaintiffs first made their statements and answered questions from the Board members. Plaintiffs were then allowed to present their own statements, respond to the charges, and rebut the statements of the witnesses. Next, plaintiffs presented witnesses in their defense who also gave statements and responded to the Board members’ questions. Further questions were directed by the Board members to the witnesses and to the plaintiffs. After the Board completed its questioning, plaintiffs were provided an opportunity to question the witnesses against them by directing their questions through the chancellor. Although plaintiffs asked some questions of Board members, their request for a recess was denied and the hearing was concluded.

Following the hearing, the Board deliberated outside the presence of witnesses and plaintiffs and unanimously concluded that plaintiffs were guilty of the charge of academic dishonesty. Plaintiffs were notified of the Board’s finding, the recommended penalty of suspension with an option to reapply for admission after one year, and their right under the Code to appeal to the dean of the College of Veterinary Medicine.

On June 13, 1985, plaintiffs perfected an appeal to the dean. Pursuant to the Code, the dean referred the case to the college’s Faculty Committee on Admissions and Standards (the “Committee”) for a recommendation.

On June 19, 1985, the nine faculty members on the Committee conducted a daylong meeting to consider the appeal. They were provided copies of the materials presented at the Board hearing and then listened to the entire tape recording of the June 12, 1985 hearing before the Board, which hearing had taken in excess of three hours. Plaintiffs then presented well-prepared oral and written statements in their defense. After these statements, the Committee retired to deliberate, at which time they voted unanimously to recommend to the dean that the Board’s findings and recommendation of punishment be upheld. The dean accepted the recommendation and upheld the Board’s action.

Later in the summer, plaintiffs were allowed to perfect an appeal to the president of the University. After reviewing the file, the president affirmed the actions of the Board, the Committee, and the dean.

DISCUSSION

In this action brought pursuant to 42 U.S.C. § 1983, plaintiffs claim that their procedural and substantive due process rights under the United States Constitution were violated by the actions of Auburn University and the other named defendants. In addition, plaintiffs allege a pendent state law claim that plaintiffs’ enrollment in and payment of tuition to Auburn University constituted a contract which Auburn University breached by wrongfully suspending plaintiffs.

I. Procedural Due Process

Defendants do not dispute that plaintiffs have both a property interest and a liberty interest which are adversely affected by their suspension from Auburn University. Consequently, defendants properly conclude that their actions must have accorded plaintiffs the minimal requirements of due process. See Goss v. Lopez, 419 U.S. 565, 574, 95 S.Ct. 729, 736, 42 L.Ed.2d 725 (1975); Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972); Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 510, 27 L.Ed.2d 515 (1971).

Since due process applies, the more difficult question is what process was due plaintiffs. Goss v. Lopez, 419 U.S. 565, 577, 95 S.Ct. 729, 738, 42 L.Ed.2d 725 (1975). Turning to that question the Court notes that “[t]he very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.” Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961). In the context of student suspensions, the Supreme Court in Goss v. Lopez, supra, 419 U.S. at p. 578, 95 S.Ct. at 738, has given this clear admonition:

“Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint____ By and large, public education in our Nation is committed to the control of state and local authorities.”

The courts have established minimum guidelines as to how much process is due in the context of student suspensions. The Supreme Court has emphasized that “[a] school is an academic institution, not a courtroom or administrative hearing room.” Board of Curators v. Horowitz, 435 U.S. 78, 88, 98 S.Ct. 948, 954, 55 L.Ed.2d 124 (1978). Although “a university cannot ignore its duty to treat its students fairly, neither is it required to transform its classrooms into courtrooms.” Jaksa v. Regents of Univ. of Michigan, 597 F.Supp. 1245, 1250 (E.D.Mich.1984), citing Jenkins v. Louisiana State Board of Education, 506 F.2d 992, 1000 (5th Cir.1975). Furthermore, procedural due process in the context of a school disciplinary proceeding does not require all the trappings or procedural safeguards of a criminal trial because “[formalizing hearing requirements would divert both resources and attention from the educational process.” Jaksa, 597 F.Supp. at 1250.

What procedural due process does require is, at a minimum, that the “students facing suspension ... be given some kind of notice and afforded some kind of hearing.” (emphasis in original) Goss v. Lopez, 419 U.S. 565, 579, 95 S.Ct. 729, 738, 42 L.Ed.2d 725 (1975). However, the “timing and content of the notice and the nature of the hearing will depend on appropriate accomodation of the competing interests involved.” Goss v. Lopez, 419 U.S. 565, 579, 95 S.Ct. 729, 738, 42 L.Ed.2d 725 (1975) . Consequently, due process is a flexible concept “callpng] for such procedural protections as the situation demands.” Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976) . With these broad, flexible general principles as guides, the court will consider plaintiffs’ procedural due process challenges.

A. Right to Adequate Notice

Plaintiffs claim that the amended, specific notice given on June 11 was inadequate because it was not received until thirty hours before the hearing on June 12.

Without suggesting that the notice in this case would otherwise have been so short as to violate the Constitution of the United States, the record is clear that plaintiffs fully agreed to the schedule which was followed. The conversation between the student chancellor of the Board and plaintiffs’ counsel at the June 10 scheduled hearing is significant on this point:

Chancellor: In view of the request by Mr. Meadows to have more of an opportunity and more time for consideration of specific charges and in view of the fact that specific charges were not stated in the letter and after review and counsel from Dr. Morgan and Dean Vaughan, it is ... uh ... or has been decided that at least 48 hours shall be enough time, and 48 hours, if the accused and attorney ... attorney ... feel that that’s necessary. 7 ask them now if 48 hours is sufficient time?
Plaintiffs Attorney: Uh ... Mr. Vice, let me just ask. Am I to understand that we’re having 48 hours from tonight with specific charges?
... If so, when will those charges be forth coming?
Chancellor: ... the specific charges can be given to you tomorrow, June 11, 1985. The dean’s office by 1:00. They will be in writing, typed form, and those will be the charges that you all will have to address. And the time for the hearing, if it’s agreeable, and probably if not agreeable ... the best possible time that I think that the next hearing should take place would be June 12, 1985, 6:45; 7:00 Wednesday night. Is that sufficient time?
Plaintiffs Attorney: That’s fine with me. Can I take just a moment more to ask them? (MEADOWS CONSULTED WITH NASH AND PERRY.)
Plaintiffs Attorney: We’ll ... that’s fine with us. 48 hours from tonight, which will be Wednesday night, June 12, at 6:45, here. That’s fine. We’ll be here.
Chancellor: Uh ... since the justices and accused are in agreement, are the witnesses also in agreement to that time? The nods are in agreement that Wednesday night will ... June 12, 1985, 7:00, in the Pathology Department. So, with that, we’ll adjourn until Wednesday night, 7:00. (emphasis added)

In view of a schedule which had the agreement of all the witnesses, the members of the court, the plaintiffs and their attorney, it would be shocking for this Court to conclude that the proceedings were constitutionally flawed because plaintiffs had inadequate time to prepare. Moreover, at the June 12 hearing, neither the plaintiffs nor their lawyer even suggested that they had not had an adequate opportunity to prepare for the hearing. This contention apparently surfaced for the first time in this Court. Consequently, this Court will not find defendants guilty of a due process violation because the parties adhered to a schedule to which plaintiffs explicitly agreed. See Yench v. Stockmar, 483 F.2d 820, 823 (10th Cir.1973); see also, e.g. Stewart v. Bailey, 556 F.2d 281, 285-86 (5th Cir.1977) (constitutional right can be waived by knowing, express waiver).

Defendants have argued other reasons why the notice given to plaintiffs was adequate. However, the Court does not need to address those issues, for it determines that plaintiffs waived any right they may have had to additional time for preparation.

B. Right to Notice of the Evidence

Plaintiffs assert that a line of Fifth Circuit cases beginning with Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir.), cert. denied, 368 U.S. 930, 82 S.Ct. 368, 7 L.Ed.2d 193 (1961), establishes that a summary of the testimony of the witnesses should usually be provided to students facing disciplinary charges before their hearing. It is true that the new Fifth Circuit in dicta has given that interpretation of Dixon in Keough v. Tate County Board of Education, 748 F.2d 1077 (5th Cir.1984). However, the court in Dixon did not require or even suggest that such information be given to accused students before a hearing.

Accurately summarized, Dixon said that if the disciplining body does not conduct a traditional evidentiary hearing, but relies instead on less formal proceedings, certain minimum procedures must be furnished. Among these is that, at a minimum, the student must be advised of the names of the witnesses against him and the actual substance of their testimony. The accused student must then be allowed to respond and present his own defense. These Dixon standards say nothing about pre-hearing disclosure of witnesses and evidence. Dixon only requires that in lieu of a traditional hearing, students must be given this information. Accord, Ferguson v. Thomas, 430 F.2d 852, 856 (5th Cir.1970). Indeed, a requirement that students accused of cheating be given this pre-hearing information would afford them more rights than one accused of a crime is afforded in a criminal trial. It would be strange if the Constitution were construed to require a student honor court considering a charge of cheating to provide more procedural safeguards than are given to an accused in court whose life is at stake. Accordingly, plaintiffs’ right to pre-hearing notice of the evidence was not violated because no such right existed.

C. Right to Cross Examine

Plaintiffs assert that procedural due process in the case of student disciplinary proceedings mandates the opportunity for the accused students to confront and cross-examine the witnesses against them. Certainly, the cross-examination of witnesses is an important notion in our traditional concept of justice and fair play. For example, in Goldberg v. Kelley, 397 U.S. 254, 269, 90 S.Ct. 1011, 1021, 25 L.Ed.2d 287 (1970), the United States Supreme Court stated:

In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.

Accordingly, courts have found violations of procedural due process where no form of cross-examination was allowed. See, e.g., Dillon v. Pulaski County Special School District, 594 F.2d 699 (1970); Givens v. Poe, 346 F.Supp. 202 (W.D.N.C. 1972); Fielder v. Board of Education of the School District of Winnebago, 346 F.Supp. 722 (D.Neb.1972).

However, the Fifth Circuit in Boykins v. Fairfield Board of Education, 492 F.2d 697, 701 (1974), cert. denied, 420 U.S. 962, 95 S.Ct. 1350, 43 L.Ed.2d 438 (1975) held that Goldberg v. Kelley did not alter or overrule the standards outlined in Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir.), cert. denied, 368 U.S. 930, 82 S.Ct. 368, 7 L.Ed.2d 193 (1961) for providing procedural due process in a student disciplinary proceeding. The Dixon standards do not require the opportunity of cross-examination. The court in Boykins went on to hold that no right to cross-examination or confrontation of witnesses exists in a high school disciplinary action. Boykins, 492 F.2d at 701-02. Accord, Winnick v. Manning, 460 F.2d 545, 549 (2d Cir.1972); Jaksa v. Regents of University of Michigan, 597 F.Supp. 1245, 1252-53 (1984). Neither the Fifth Circuit, the Eleventh Circuit, nor the Supreme Court has expanded the rule in Dixon to require cross-examination and confrontation of witnesses in the context of school disciplinary proceedings; consequently, Dixon remains binding on this circuit.

Although this case concerns graduate students rather than high school students, and the punishment of plaintiffs, if sustained, may have a greater impact on their reputations and careers, this Court is nonetheless satisfied that plaintiffs were allowed as much as the Constitution requires. Dixon concerned college students and did not find that cross-examination was mandated by the Constitution. Although plaintiffs’ status as students in a graduate professional school may guarantee them greater rights than the students in Dixon were allowed, plaintiffs did, in fact, receive stronger procedural safeguards. Plaintiffs were not allowed to directly confront the witnesses and cross-examine them in the traditional manner. However, they were allowed to hear the testimony against them and were given an opportunity to direct questions to the witnesses through the student chancellor of the Board. (Def.Ex. # 20, pp. 47, 67, 103, 110). This opportunity is more than the Constitution requires and was more than was accorded the students in Dixon. Thus, the Court finds that no constitutional right of cross-examination was denied in this case.

D. Right to an Impartial Tribunal

Plaintiffs allege that three circumstances prevented them from having the charge against them and their defenses heard by an impartial tribunal. The Court will address these three allegations individually.

(1) Atmosphere of Bias and Prejudice

Plaintiffs assert that a contemporaneous controversy involving a breach of the honor code at Auburn University resulted in such an atmosphere of bias and prejudice against any student accused of cheating that a fair hearing was not possible. In May, 1985 an undergraduate student at Auburn University was caught with a crib sheet during an examination, confessed to cheating, and was suspended from school by an honor court. President Martin of the university reduced the sanction against the student and was publicly criticized by the Auburn Chapter of the Association of University Professors and the Auburn University student senate, and the chairman and seven members of the Auburn University Honor Committee resigned in protest.

Defendants do not dispute that this prior episode was “an emotionally charged one.” (Plaintiffs Ex. # 16, p. 54) However, defendants assert, and the Court agrees, that plaintiffs have produced no evidence to raise a material issue of fact whether the proceedings were influenced or prejudiced in any way by the prior controversy. The deposition excerpts relied upon by plaintiffs, when read in context, demonstrate no more than the obvious — that a controversy did exist and that it was on the minds of many of the students and faculty. Plaintiffs, however, have pointed to no statements or other evidence that raise any inference that their rights were substantially prejudiced by the controversy and publicity surrounding the other incident. See, e.g., U.S. Pipe & Foundry v. Webb, 595 F.2d 264, 274-78 (1979). New cases of public interest would ever be tried if public controversy by itself constituted a denial of due process.

(2) Irrelevant and Prejudicial Testimony

Plaintiffs next contend that they were denied an impartial tribunal because of the presentation to the Board of “clearly irrelevant and highly prejudicial testimony.” Specifically, plaintiffs complain that “[t]he whole of the testimonies of the student witnesses (transcript pp. 13-20) and most of the testimony of the teacher witnesses concerned observations of plaintiffs’ activities on dates other than May 16, the date of the anatomy exam they were charged with cheating on.” Plaintiffs’ brief at 15.

However, all evidence if it has any probative value whatsoever is prejudicial to the opponent. Even under the Federal Rules of Evidence, prejudicial testimony is disallowed only if the prejudice substantially outweighs its probative value. FRE 403.

Moreover, it is settled that because classrooms are not courtrooms, student disciplinary proceedings do not need to conform to the formal procedures and rules of evidence which govern court trials. See Boykins v. Fairfield Board of Education, 492 F.2d 697, 701 (5th Cir.1974), cert. denied, 420 U.S. 962, 95 S.Ct. 1350, 43 L.Ed.2d 438 (1975); Morale v. Grigel, 422 F.Supp. 988, 1004 (D.N.H.1976). Indeed, the Fifth Circuit has expressly “decline[d] to place upon a board of laymen the duty of observing and applying the common-law rules of evidence.” Boykins, 492 F.2d 697, 701 (5th Cir.1974) (allowing hearsay testimony).

In any event, the Court is of the opinion that this testimony would have been admissible even under the Federal Rules of Evidence. Although character evidence of a person’s prior “bad acts” is not admissible to show that the person acted in conformity therewith on a later occasion, Rule 404(b) of the Federal Rules of Evidence allows such evidence to show, among other things, “proof of motive, opportunity, interest, preparation, plan, knowledge, identity, or absence of mistake or accident.” In the state courts, the same evidence falls under the admissible category of “common scheme or plan.” Certainly, the testimony concerning prior episodes of looking at each others’ papers, signalling to each other during lab exams, sitting out of assigned seats in the rear of the room during a test, and ignoring prior warnings about such actions would be admissible under Rule 404(b) at least under the categories of opportunity, intent, preparation, plan, and absence of mistake. Accordingly, because such testimony would be admissible in formal courtroom proceedings, it certainly would be admissible in a less formal student disciplinary hearing.

(3) Honor Court Justice with Prior Knowledge

Finally, plaintiffs allege they were denied an impartial hearing because one of the student justices on the Board had prior knowledge of the May 16 incident but failed to recuse himself. The Court notes, however, that the law in this circuit and elsewhere is settled that previous contact with the incident and even with the initial investigation does not automatically disqualify one from hearing and deciding a case in a college disciplinary proceeding. See, e.g., Duke v. North Texas State University, 469 F.2d 829, 833-34 (5th Cir.1972), cert. denied, 412 U.S. 932, 93 S.Ct. 2760, 37 L.Ed.2d 160 (1973); Jenkins v. Louisiana State Board of Education, 506 F.2d 992, 1003 (5th Cir.1973); see also, e.g., Wimmick v. Manning, 460 F.2d 545, 548 (2d Cir.1973); Robison v. Wichita Falls & North Texas Community Action Corp., 507 F.2d 245, 253 (5th Cir.1975); Stretten v. Wadsworth Veterans Hospital, 537 F.2d 361, 369 n. 18 (9th Cir.1976).

As defendants have argued, the rationale of this rule is that student honor court proceedings could not be effective if any prior knowledge of the incident disqualified the decisionmaker. The College of Veterinary Medicine is a relatively-closed community in which honor court justices cannot remain entirely isolated from the facts and events of everyday student life. The deposition of the student justice who had “prior knowledge” demonstrates that his knowledge was only general in nature (Plaintiffs’ Ex. # 6, pp. 10-11, 17-18) and that in fact, he had no prior knowledge of any violations occurring on the May 16 exam. (Plaintiffs’ Ex. # 6, p.- 26). His pre-hearing contact with the witnesses was only as a procedural matter to inform them pursuant to Section II, Part C of the Code that if they knew of any violations of the Code, the proper way to report them was to the non-voting chancellor. Accordingly, the Court finds that plaintiffs were not denied an impartial tribunal.

E. Denial of a Meaningful Appeal

Plaintiffs further assert that they were denied a constitutional right to a meaningful appeal. It is alleged that even though plaintiffs were allowed to appeal the Board’s determination first to the dean and then to the president of the university, those appeals nonetheless denied plaintiffs due process because neither the dean nor the president actually heard the tapes of the proceedings before the student Board and the faculty Committee, nor did they prepare and read transcripts of the proceedings. However, “[t]he Supreme Court has never found a right to appeal as inherent in the right to due process of law.” Nowak, Rotunda, & Young, Constitutional Law 499 (1978). All that due process requires is notice and an opportunity for hearing. Goss v. Lopez, 419 U.S. 565, 579, 95 S.Ct. 729, 738, 42 L.Ed.2d 725 (1975); Dixon v. Alabama State Board of Education, 294 F.2d 150, 158-59 (5th Cir.), cert. denied, 368 U.S. 930, 82 S.Ct. 368, 7 L.Ed.2d 193 (1961). Accordingly, this Court cannot find a violation of a nonexistent right.

F. Right to Counsel

Plaintiffs allege that although they were allowed to have counsel present during the June 12 hearing, their constitutional right to counsel was denied because their attorney was allowed only to advise plaintiffs and was not permitted to actively participate in the proceedings. However, the great majority of cases support the conclusion that students facing disciplinary charges have no absolute right to have an attorney present their case. E.g., Henson v. Honor Committee of University of Virginia, 719 F.2d 69, 74 (4th Cir.1983); Gabrilowitz v. Newman, 582 F.2d 100, 104 (1st Cir.1978); Wasson v. Trowbridge, 382 F.2d 807 (2d Cir.1967); Garshman v. Penn sylvania State University, 395 F.Supp. 912, 920-21 (M.D.Pa.1975); Haynes v. Dallas County Junior College District, 386 F.Supp. 208 (N.D.Texas 1974); Barker v. Hardway, 283 F.Supp. 228 (S.D.W.Va.), cert. denied, 394 U.S. 905, 89 S.Ct. 1009, 22 L.Ed.2d 217 (1969); Due v. Florida A & M University, 233 F.Supp. 396 (N.D.Fla. 1963). But see Mills v. Board of Education of District of Columbia, 348 F.Supp. 866, 881 (D.D.C.1972); Givens v. Poe, 346 F.Supp. 202, 209 (W.D.N.C.1972).

The First Circuit in Gabrilowitz, supra, did allow a student to have counsel present, but only in an advisory capacity to lessen the risk of self-incrimination, because a separate criminal action was pending. Such extreme circumstances do not exist in this case; consequently, the right of plaintiffs to have counsel present at the June 12 hearing afforded them more, not less, than the Constitution requires.

G. Conclusion as to Procedural Due Process Challenge

Plaintiffs have named several procedural rights they allege were denied by defendants in dismissing them from school. The Court has addressed each asserted violation of due process and concluded either that the Constitution guarantees no such right or that the right was not violated. However, plaintiffs insist that although each alleged violation may not by itself have constituted a denial of due process, their combined effect was such a denial. The Court cannot agree. Plaintiffs acquiesced in the notice given to them, and Auburn University provided them more than the Constitution requires when it allowed extensive appeals, the right to have legal counsel present, and the opportunity for indirect cross-examination. .. Plaintiffs’ allegation that they were not tried by an impartial tribunal is meritless.

Moreover, plaintiffs did not demonstrate substantial prejudice as a result of any of the alleged denials of due process. See U.S. Pipe & Foundry v. Webb, 595 F.2d 264, 274 (5th Cir.1979). At both the June 12 and the June 19 hearings, plaintiffs presented thoughtful, well-prepared defenses, and it is doubtful that their evidence could have been presented any more convincingly in a court of law. Although the procedure afforded plaintiffs was not a model for judicial proceedings, the Court finds that the minimal requirements of procedural due process were satisfied. Accordingly, defendants’ motion for summary judgment on the issue of procedural due process is due to be granted and plaintiffs’ motion for summary judgment on this issue is due to be denied.

II. Substantive Due Process

Plaintiffs allege that the Board’s finding of guilt violated plaintiffs’ right to substantive due process because the finding was arbitrary and capricious and not supported by substantial evidence. In addressing this issue, the Court is governed by a limited standard of review:

It is not the role of federal courts to set aside decisions of school administrators which the court may view as lacking in wisdom or compassion____ [Section] 1983 does not extend the right to relitigate in federal court evidentiary questions arising in school disciplinary proceedings ____

Wood v. Strickland, 420 U.S. 308, 326, 95 S.Ct. 992, 1003, 43 L.Ed.2d 214 (1975). This Court may not retry plaintiffs’ case. Its role is only to determine whether enough evidence against plaintiffs was presented to the Board to foreclose a determination that the Board’s decision was arbitrary and capricious. The parties disagree over whether the Court must find “substantial evidence” or only “some evidence” in support of the Board’s conclusion. The Court does not need to reach that issue, however, because it finds substantial evidence to support the Board’s determination.

Plaintiffs first assert that the evidence was insufficient because none of the student witnesses’ testimony addressed the May 16 examination. Plaintiffs’ assertion, however, is incorrect. One student testified at the June 12 hearing that he was surprised to see David Nash sitting not in his normal seat but next to Donna Perry on the May 16 examination. This student sat directly behind the plaintiffs on this examination and “witnessed the accused looking on each others' papers.” (emphasis added) (Def.Ex. # 20, pp. 18-19) (Plaintiffs’ Exhibit 8, pp. 7, 9, 11-12). Another student testified that during the May 16 examination he saw Donna Perry when she had finished a page holding it up as in review. David was on the same page and his suspicions were aroused. (Def.Ex. # 20, pp. 19, 20). As the Court has previously discussed, the witnesses’ testimony of suspicious activity by plaintiffs on occasions pri- or to the May 16 examination was properly before the Board.

Second, plaintiffs claim that even the witnesses who testified to seeing Nash look at Perry’s paper could not testify that he actually took information from her examination. Of course these witnesses could not testify to the intentions and thoughts of plaintiffs, but such unattainable evidence is not required.

Finally, plaintiffs argue that Dr. Buxton’s comparison and analysis of plaintiffs’ answers on the May 16 examination should not have been given significant weight by the Board. Dr. Buxton prepared the May 16 examination and testified that from his observations of the accused and his study of their answers, he became convinced that they were engaging in academic dishonesty. (Def.Ex. #20, p. 40). Dr. Buxton testified extensively at the June 12 hearing about the similarity of plaintiffs’ answers. Dr. Rumph, another professor in the Department of Anatomy and Histology, also concluded from his observation of the accused and his independent study of their examination answers that they had given or received assistance one from the other. (Def.Ex. # 20, p. 41).

Plaintiffs argue that Dr. Buxton’s analysis of plaintiffs’ examination papers is patently flawed and unreliable. Plaintiffs state that of the twenty-eight questions, Dr. Buxton found the answers to only six were indicative to him of cheating.

At the October 18 hearing before this Court on plaintiffs’ and defendants’ motions for summary judgment, Dr. Harlley McKean, a professor in the statistics department of the University of Kentucky, testified that he had studied and compared plaintiffs’ exams, and in light of the fact that plaintiffs studied together from the same notes, in his opinion the similarity of so few of plaintiffs’ answers should not give rise to a conclusion of cheating. Dr. McKean conceded that he had no knowledge of veterinary medicine or neuroanatomy.

Although Dr. McKean’s expert testimony and the testimony of the accused as to how they studied together provided possible explanation for the similarity of their answers, the Court determines that regardless of the weight given Dr. Buxton’s analysis, there was substantial evidence to support the Board’s conclusion. At the May 12 hearing, five student witnesses and several professors testified that on many previous occasions they had seen plaintiffs look on each other’s papers, and exchange glances while examining tissue specimens together during lab examinations. Two professors on two separate occasions warned David Nash about this suspicious behavior. Dr. Cartee said he advised Nash that his sitting next to Donna Perry and moving' together on tests could be conceived as dishonesty and he suggested “in their own best interest ... that they should separate during exams.” (Def.Ex. # 20, p. 44). Dr. Buxton was the other professor who gave Nash a warning about what appeared suspicious conduct between him and Perry. For a while after these warnings, plaintiffs took their examinations in different areas of the room. However, at the May 16 examination, plaintiffs once again chose to sit close together during the neuroanatomy examination.

Dr. Marshall, a professor monitoring the May 16 examination, noted the close contact of plaintiffs, (Def.Ex. # 20, p. 45), and stated that he saw Nash leaning his head on his hand in such a way as to see Perry’s paper. (Def.Ex. # 20, p. 69). Dr. Garrett, another professor in the school of Veterinary Medicine, also monitored the May 16 examination and testified that he “observed David, many times, sitting with his elbow on the table, his head propped in his hand, and his gaze directly at Donna’s paper.” (Def.Ex. # 20, p. 46).

It is also significant that the student Board, all of whom had previously taken this neuroanatomy course and who were familiar with the subject matter and testing procedures, and who observed the accused students as they gave their testimony, unanimously voted to discipline plaintiffs. After a de novo review, the nine person faculty Committee also voted unanimously to uphold the Board’s decision. It is also significant that five professors and seven students independently had filed letters with the chancellor accusing plaintiffs of cheating throughout the semester. The fact that plaintiffs ignored two previous warnings and sat so close together during the May 16 examination when viewed together with this direct evidence of cheating and the evidence of plaintiffs’ conduct during prior lab examinations constitutes further evidence in support of the Board’s finding. The decision of the student board and the review by the Auburn University Faculty Review Committee, the Dean of the Veterinary School and the President of Auburn University, can not be regarded as capricious or arbitrary. There is substantial evidence of academic dishonesty on the May 16 examination. Accordingly, plaintiffs have demonstrated no violation of their constitutional rights under the 14th Amendment.

III. Breach of Contract

Plaintiffs also argue that their suspension constitutes a breach of contract. Regardless of whether defendants’ payment of tuition to the University created an enforceable contract, Auburn University did not breach any contractual duty owed to plaintiffs by disciplining them for violating the student honor code which they expressly agreed and pledged to uphold. (Def.Ex. # 1-3). The Court has determined that plaintiffs’ constitutional rights were not violated; consequently, plaintiffs’ suspension was not wrongful.

CONCLUSION

Because plaintiffs have demonstrated no denial of due process and' no breach of either an express or an implied contract, defendants’ motion for summary judgment is due to be granted, and plaintiffs’ motion for summary judgment is due to be denied.

A separate judgment will be entered in accordance with this memorandum opinion.

      . Moreover, in this case the accused students were given a full hearing before nine faculty members who heard all the evidence before the student board and also the oral presentations of the accused.

      . Donna Perry acknowledged that she knew David Nash had been previously warned that their conduct on exams could be regarded as suspicious conduct in violation of the student honor code. (Def.Ex. #20, p. 79).


source: Caselaw Access Project

author: TOM S. LEE, District Judge.

license: Public Domain

text:
    Kevin W. DUMAS, Plaintiff, v. PEARL RIVER BASIN DEVELOPMENT DISTRICT, A Corporate Political Subdivision of the State of Mississippi, Pike County, Mississippi, a Political Subdivision of the State of Mississippi, and Julius O’Quinn, An Individual, Defendants.
    Civ. A. No. J85-0401(L).
    United States District Court, S.D. Mississippi, Jackson Division.
    Oct. 24, 1985.

      Donald R. Rogers, Hattiesburg, Miss., for plaintiff.
    Eve Gable, Michael K. Randolph, Bryan, Nelson, Allen, Schroeder & Randolph, Hattiesburg, Miss., Michael W. Ulmer, Watkins & Eager, Jackson, Miss., Norman B. Gillis, Jr., Gillis & Gillis, McComb, Miss., for defendants.
   MEMORANDUM OPINION AND ORDER

TOM S. LEE, District Judge.

This diversity case is before the court on motion of defendant Pearl River Basin Development District (District), a corporate political subdivision of the State of Mississippi, for summary judgment on the ground of sovereign immunity. Plaintiff Kevin W. Dumas filed timely response to the District's motion, and the court has considered the memoranda with attachments submitted by the parties.

On July 11, 1982, Dumas suffered severe neck injuries and was rendered a quadriplegic when his head struck the bottom of the Bogue Chitto River after he dived into shallow water from land owned by defendant Julius M. O’Quinn. His complaint herein charges the District with the duty to maintain a safe watercourse for swimmers in and about the area of Bogue Chitto Water Park, which is owned by the District and operated on a day-to-day basis by employees of Pike County, Mississippi. Prior to his injury, Dumas had rented an inner tube from the park for the purpose of floating downstream and apparently thought he was on park property at the point where he was injured. Plaintiff charges that regardless of who was the owner of the land where he dived into the river, the District had responsibility to maintain a safe waterway and to warn recreational users of latent dangers.

The District’s motion raises the issue of the continued viability of the State’s sovereign immunity in light of the Mississippi Supreme Court’s decision in Pruett v. City of Rosedale, 421 So.2d 1046 (Miss.1982). As an agency or political subdivision of the state, the District is able to assert the defense of sovereign immunity. See French v. Pearl River Valley Water Supply District, 394 So.2d 1385 (Miss.1981). In light of the present state of Mississippi law, sovereign immunity is applicable unless this court can identify specific statutory authority for the imposition of tort liability on the District. See e.g. French v. Pearl River Valley Water Supply District, 394 So.2d 1385, 7386 (Miss.1981); Berry v. Hinds County, 344 So.2d 146, 150 (Miss.1977); State Highway Comm’n v. Gulley, 145 So. 351, 354 (Miss.1933); Brabham v. Board of Supervisors of Hinds County, Miss., 54 Miss. 363, 364 (1877).

In Pruett, supra, the Mississippi Supreme Court “abolishe[d] the immunity of the ‘sovereign.’ That term includes the state and its political subdivisions.” 421 So.2d at 1052. However, by the specific language in Pruett, sovereign immunity was abrogated only as to those causes of action “that accrue on or after July 1, 1984.” Id. Plaintiff’s cause of action “accrued” on the date of his injury, July 11, 1982. Thus, Pruett has no applicability to this case. McGoldrick Oil Company v. Greene County, 446 So.2d 594 (Miss.1984). Indeed, even if this court were to embrace plaintiff’s argument and “anticipate” that the position of the Mississippi Supreme Court, under the facts involved here, would be to infer a waiver of immunity, the court would be confronted with the mandate of the Mississippi Legislature extending sovereign immunity through July 1, 1986. See Miss.Laws 1985, Legislative Session, Book 2, pages 402-403. In the face of such clear direction from the Mississippi Legislature and Supreme Court, this court is Erie -bound to hold that sovereign immunity is an absolute defense to plaintiff’s claims against the District.

Plaintiff advances two arguments to avoid the application of sovereign immunity in this case. The first hinges on language in the statute establishing the District, which, plaintiff asserts, expressly or impliedly waives sovereign immunity. The “sue and be sued” language of Miss.Code Ann. § 51-11-11 relied upon by plaintiff is also contained in the statute, Miss.Code Ann. § 51-9-121, establishing the Pearl River Valley Water Supply District, the defendant in French. The court in French, citing Berry and Gulley, refused to infer a waiver of sovereign immunity from such language, deferring to the legislature to enunciate unequivocally its intent to abrogate the immunity defense. 394 So.2d at 1387. Plaintiff attempts to distinguish French by highlighting other language in the statute establishing the District which, he argues, indicates an intent to waive sovereign immunity. Defendant correctly points out that the statute at issue in French contains the same or similar language, and the court there was not persuaded that such language constituted a waiver of sovereign immunity. Moreover, the expression of deference to the legislature in French on this point, even in light of Pruett, is compelling, and this court declines to infer a waiver of sovereign immunity from the statutory language absent specific direction from the Mississippi Legislature or Supreme Court.

Plaintiff’s second argument concerns the effect on the issue of waiver of sovereign immunity of the District’s procuring liability insurance in 1979. Dumas argues that the purchase of liability insurance was authorized by Miss.Code Ann. § 51 — 11—13(j) and that such “authorized” purchase of liability insurance distinguishes this case from French. In French, the Pearl River Water Supply District obtained liability insurance “without express statutory authority”, and French argued that such action constituted an implied waiver of sovereign immunity. 394 So.2d at 1387. The court disagreed, concluding,

We are, therefore, of the opinion that the unauthorized purchase of liability insurance by the District for protection against claims for which it had immunity does not, pro tanto, waive such immunity or preclude the assertion of such immunity as a defense to suits brought against it ... [T]he Legislature is in a better position to limit and restrict claims that can be asserted and to provide the ways and means for the paying of such claims, if it should see fit to do so. An agency of the government may not assume that legislative function.

394 So.2d at 1388.

This court questions whether the language in Miss.Code Ann. § 51 — 11—13(j) authorizing the District to enter contracts for any services which the project may provide is a specific statutory grant of authority to purchase liability insurance. Again, as the District correctly points out, the same authority to enter contracts for services was granted in the statute at issue in French, yet the court determined that the purchase of liability insurance was unauthorized. It is inconceivable to this court that the legislature would waive sovereign immunity for the District here, yet retain the defense for the Pearl River Valley Water Supply District in French. The District’s purchase of liability insurance cannot be construed as an implied waiver of the sovereign immunity defense.

Additionally, the expression of deference to the Legislature in French and the requirement under Mississippi law that a waiver of sovereign immunity must be contained in a statute either “expressly or by necessary implication,” Gulley, 145 So. at 354, combine to compel this court to conclude that sovereign immunity is an absolute defense in this case. This court is not unmindful of the apparent incongruity of this holding in light of Pruett. However, the task of remedying such results rests with the Mississippi Legislature.

For the reasons stated hereinabove, this court is of the opinion that the District’s motion for summary judgment should be granted. A separate judgment shall be entered according to the local rules.

      . Plaintiff points to language in Miss.Code Ann. § 51-11-11, which enumerates the powers of the District, and which states in pertinent part: "(b) To sue and be sued in its corporate name ... (g) To make contracts ... (i) ... to employ agents ... (j) To do any and all other acts or things necessary to the exercising of the powers ... conferred upon the district by this chapter ...” Also cited is Miss.Code Ann. § 51-11-13, which states in pertinent part: “To enter into contracts with municipalities, corporations, districts ... or others for any services, facilities, or commodities which the project may provide.” (emphasis by the District).


author: BARRINGTON D. PARKER, District Judge:

text:
    Frederick W. MONCRIEF, Plaintiff, v. OFFICE OF PERSONNEL MANAGEMENT, et al., Defendants.
    Civ. A. No. 83-2992.
    United States District Court, District of Columbia.
    Oct. 28, 1985.
    Joel P. Bennett, P.C., Washington, D.C., for plaintiff.
    Joseph E. diGenova, U.S. Atty., Royce C. Lamberth, Patricia J. Kenney and Rebecca L. Ross, Asst. U.S. Attys., Washington, D.C., for defendants.
   MEMORANDUM OPINION

BARRINGTON D. PARKER, District Judge:

In this proceeding, Frederick Moncrief, a Department of Labor trial attorney, challenges the evaluation and disposition of his application to become an Administrative Law Judge (“AU”). He seeks declaratory and injunctive relief against the Office of Personnel Management (“OPM”) for alleged violations of the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551 et seq., and his Fifth Amendment rights to due process of law. Before the Court are the plaintiffs motion for summary judgment and the defendant's motion to dismiss or, in the alternative, for summary judgment. The motions have been fully briefed and argued. For the reasons outlined below, the Court must deny the plaintiffs motion and grant the defendant’s motion to dismiss on the basis of lack of subject matter jurisdiction.

BACKGROUND

In July 1981, Moncrief applied to the Office of Administrative Law Judges (“OAU”), a division of OPM, for a position as an AU at both the GS-15 and GS-16 levels. In March 1982, he was notified that he had not achieved qualifying scores for either position. He appealed the OAU determination and received a decision from the Rating Appeals Board on August 23, 1983. The Board awarded an additional five points on the application, allowing Moncrief to qualify at the GS-15 level, but still leaving him with a failing score for GS-16 positions. Moncrief then filed this lawsuit.

The AU application scoring process has two parts. Applicants are first evaluated as to the quality of their legal experience based on the nature and complexity of their

cases and the courts or agencies before which they practice. An applicant may receive up to sixty points for this part of the application. In the second part of the process, the OAU evaluates the applicant’s personal references. Questionnaires are sent to individuals named on the application as references. Based on the responses to the questionnaires, called vouchers, an applicant may receive up to forty points.

Moncrief challenges both parts of the scoring of his application. He objects to his quality of experience score, arguing that the rating was based purely on his GS classification in violation of the Court of Appeals’ ruling in Etelson v. Office of Personnel Management, 684 F.2d 918 (D.C. Cir.1982). He also disputes the evaluation of his personal references, criticizing the seeming arbitrariness in the judging of the vouchers and raising questions about the mathematical soundness of the procedure used and the score he was awarded.

Moncrief’s claims are not frivolous, and they raise concerns about the fairness of the AU application process and OPM’s compliance with an unequivocal court ruling relating to that process. Nonetheless, this Court is precluded from addressing the merits of the suit because, as the government contends, the Civil Service Reform Act of 1978 (“CSRA”), Pub.L. No. 95-454, 92 Stat. 1111, deprives it of subject matter jurisdiction.

ANALYSIS

In Carducci v. Began, 714 F.2d 171 (D.C. Cir.1983), our circuit court held that, because of the enactment of the CSRA, agency personnel actions formerly reviewable under the APA are now reviewable only in very limited circumstances and under a very narrow standard. The court perceived in the provisions of the CSRA a scheme defining three levels of agency actions and corresponding levels of appropriate judicial oversight:

(1) for major personnel actions specified in the statute (“adverse actions”), direct judicial review after extensive prior administrative proceedings; (2) for specified minor personnel actions infected by particularly heinous motivations or disregard of law (“prohibited personnel practices”), review by the Office of Special Counsel, with judicial scrutiny “limited, at most, to insuring compliance with the statutory requirement that the OSC perform an adequate inquiry”; and (3) for the specified minor personnel actions not so infected, and for all other minor personnel actions, review by neither OSC nor the courts.

Carducci, 714 F.2d at 175 (quoting Cutts v. Fowler, 692 F.2d 138, 140 (D.C.Cir. 1982) ).

The government contends that Monerief s allegations fall squarely within the second or third categories of complaints and that, therefore, his ease cannot be considered in a federal court. It argues that Moncrief s challenge amounts to an allegation of a “prohibited personnel practice” under the CSRA, and, as such, can only be pursued through a petition to the Office of the Special Counsel (“OSC”), with limited judicial review thereafter. Moncrief s position is that the CSRA does not apply to his complaint. He contends that the OSC has no jurisdiction over allegations such as his because the adverse decision of the OAU is not a “personnel action” as defined in the OSC’s regulations. He also argues that his action presents a valid constitutional claim.

A.

The OSC is charged with investigating “prohibited personnel practices.” 5 U.S.C. § 1206(a)(1) (1982). The government argues that Moncrief’s allegations meet the statutory definition of such practices since they charge OAU with discrimination against government attorneys and with acting arbitrarily and unfairly in its hiring procedures. On the basis of the statutory language and Carducci, government counsel argues that Moncrief must present his claim to the OSC rather than this Court.

Moncrief counters that the challenged action by OPM is not even a personnel action under the OSC’s own regulations. Tracking the statutory definition, 5 U.S.C. § 2302(a)(2), OSC’s regulations define a personnel action, inter alia, as “an appointment.” 5 C.F.R. § 1250.3(a) (1985). Moncrief contends that since individual agencies rather than OPM hire AUs, OAU’s actions cannot be deemed an appointment. He also seeks to distinguish Carducci and other cases interpreting the CSRA by emphasizing that he is not objecting to any action taken by his current employer.

It is true that most of the cases interpreting the CSRA involve employee-employer disputes. See, e.g., Barnhart v. Devine, 771 F.2d 1515, 1517 (D.C.Cir.1985) (National Weather Service employees’ grievance over classification of their jobs); Veit v. Heckler, 746 F.2d 508 (9th Cir.1984) (challenge to Social Security Administration’s application of its performance appraisal system); Williams v. I.R.S., 745 F.2d 702 (D.C.Cir.1984) (disciplinary suspension of IRS attorney); Carducci, 714 F.2d 171 (reassignment of Customs Service employee because of “poor performance”); Borrell v. U.S. Intern. Communications Agency, 682 F.2d 981 (D.C.Cir.1982) (discharge of USICA probationary employee because of “whistle-blowing”). Although Monerief happens to serve currently as a federal attorney, his complaint does not relate to actions connected to that employment, but to a job he has not yet obtained. In support of his argument that this distinguishes his case from the growing line of cases denying jurisdiction tó hear personnel disputes involving federal agencies, he cites Etelson, 684 F.2d 918, and Dugan v. Ramsay, 727 F.2d 192 (1st Cir.1984). The plaintiffs in both cases, like Monerief, were applicants for an AU position, and in both, the CSRA did not preclude judicial review of OPM’s decisions. But in Grey v. Office of Personnel Management, 771 F.2d 1504 (D.C.Cir.1985), the Court of Appeals for this circuit dismissed the precedential significance of both Etelson and Dugan for purposes of analyzing the effect of the CSRA. Etelson’s case arose in 1970, long before the CSRA was enacted. Id. at 1509. As for Dugan, the circuit court stated:

In Dugan, the First Circuit held that despite the passage of the CSRA, APA review remained available to an applicant for an AU position, a conclusion clearly contrary to Carducci. Appellants would have us follow Dugan. This, of course, we cannot do. Carducci is binding precedent which can be overruled only by the court en banc.

Id. at 1510. This is a clear and unambiguous statement that claims such as Moncrief s fall within the scope of the CSRA and thus cannot be heard in this Court.

Moncrief’s argument that no personnel action is involved here since OPM does not have the power of appointment is not convincing. The definition of “personnel action” in the CSRA relates to “an employee in, or applicant for, a covered position in an agency.” 5 U.S.C. § 2302(a) (emphasis added). Congress could have specifically provided for district court jurisdiction over AU hiring disputes if it had wanted to. Cf. 5 U.S.C. § 7702 (de novo review available in district courts for actions alleging unlawful discrimination in federal employment). To carve out a narrow exception to CSRA coverage in this case would be to swim against the clear tide of our circuit court’s interpretation of the act most recently enunciated in Barnhart and Gray. Furthermore, such a conclusion would bring about a variation of the “extravagant result” that the court in Carducci set out to avoid: There is no logical reason that the evaluation of certain applications for government employment should come under more immediate and searching judicial review than the adverse actions or prohibited personnel practices specifically covered in the statute. Cf. Carducci, 714 F.2d at 174-75.

The procedures by which the OAU evaluates applications for AU positions are rules that concern the merit system principle that “selection and advancement should be determined solely on the basis of of relative ability, knowledge, and skill, after fair and open competition which assures that all receive equal opportunity.” 5 U.S.C. § 2301(b)(1) (1982). Moncrief’s complaint, in essence, alleges that OPM has violated that principle and therefore engaged in a “prohibited personnel practice.” The proper avenue for pursuing relief for that violation is a petition to the OSC which is charged with investigating such charges and, if necessary, bringing complaints before the Merit System Protection Board (“MSPB”). See 5 U.S.C. § 1206 (1982). OPM, like any other agency, is subject to the adjudicatory power of the MSPB. See Barnhard v. Devine, 771 F.2d at 1522-23. Since plaintiff has not petitioned the OSC, this Court has no jurisdiction even to undertake the limited review of that body’s action permitted by Carducci.

B.

The CSRA did not eliminate preexisting rights to seek relief in federal court for constitutional violations. Borrel, 682 F.2d at 989; see also Andrade v. Lauer, 729 F.2d 1475, 1491 (D.C.Cir.1984) (constitutional claims need not be adjudicated first through the CSRA). Plaintiff broadly alleges that the evaluation of his application constituted a denial of his rights to due process of law under the Fifth Amendment.

Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), and Perry v. Sinderman, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), discuss the requirements of the due process clause in the context of public employment. The Court doubts that Moncrief can successfully meet the standards articulated in those cases and demonstrate a liberty or property interest in the ALT positions for which he applied. In any event, the allegations of his complaint are not well enough defined for the Court to give them serious consideration. The path followed by the court in Carducci in a similar situation is appropriate here: “[WJhere counsel has made no attempt to address the issue, we will not remedy the defect____ We therefore decline to entertain [plaintiffs] asserted but unanalyzed constitutional claim.” 714 F.2d at 177 (citations omitted); accord White v. Office of Personnel Management, C.A. No. 85-0932, slip op. (D.D.C. May 30, 1985), appeal pending, No. 85-5823 (D.C.Cir.).

On basis of the foregoing, the plaintiffs motion for summary judgment is denied and the defendant is granted summary judgment.

      . After the administrative appeal ruling on his written application, Moncrief continued the ALJ application process which includes a personal interview and a day-long written examination. Moncrief s scores did not change as a result of this final stage of the process. A final decision on his application was made on November 10, 1983.

      . In Etelson, the court held that the assigning of quality of experience points to the ALJ applications of government attorneys based solely on their grade classification was arbitrary and capricious. 684 F.2d at 927.

      . "Adverse actions” usually involve suspension or termination from employment or reduction in grade or pay. See, e.g., 5 U.S.C. § 7512 (1982). "Prohibited personnel practices" include, for example, discrimination on the basis of race, age, or sex, actions against "whistle-blowers," or coercion of political activity. See 5 U.S.C. § 2302(b) (1982).

      . Among the prohibited personnel practices are “discriminat[ing] for or against any employee or applicant for employment on the basis of conduct which does not adversely affect the performance of the employee or applicant,” 5 U.S.C. § 2302(b)(10), (1982), or “violating any law, rule, or regulation implementing, or directly concerning, the merit system principles contained in section 2301____” 5 U.S.C. § 21302(b)(ll) (1982). The merit system principles include the following: “[SJelection and advancement should be determined solely on the basis of relative ability, knowledge, and skills, and fair and open competition which assures that all receive equal opportunity.” 5 U.S.C. § 2301(b)(1) (1982). "Employees should be protected from arbitrary action____” 5 U.S.C. § 2301(b)(8) (1982).

      . Counsel had an opportunity at oral argument to outline his constitutional claims but only made general reference to the arbitrary and capricious nature of defendants’ actions.


author: EDWARD C. REED, Jr., District Judge.

text:
    In the Matter of Marlon Dale RAMOS, Petitioner, v. PYRAMID TRIBAL COURT, Bureau of Indian Affairs and Marilyn Jones, Acting Captain of the BIA Jail Facility, Respondents.
    CV-R-84-375-ECR.
    United States- District Court, D. Nevada.
    Oct. 30, 1985.

      David Dean, Reno, Nev., for petitioner.
    Lamond R. Mills, U.S. Atty. by Shirley Smith, Asst. U.S. Atty., Reno, Nev., for respondents.
   ORDER

EDWARD C. REED, Jr., District Judge.

The Pyramid Lake Tribal Court found Marlon Dale Ramos guilty of several violations arising from an incident on the Pyramid Lake Reservation and sentenced him to consecutive sentences totaling over two years. Ramos now petitions this Court for a writ of habeas corpus pursuant to 25 U.S.C. § 1303.

The issues raised by Ramos in support of his petition are: (1) that he has been subjected to double jeopardy because of a sentence he received in the Sparks, Nevada, Justice Court based upon the same incident; (2) that the over two year sentence he received in the Pyramid .Lake Tribal Court constituted cruel and unusual punishment; (3) that the dual sentences denied him due process and equal protection, privileges and immunities of laws; and (4) that the tribal judge who imposed the sentence did not possess legal authority to do so.

FACTS

On February 10, 1984, Ramos embarked on a high speed ride which ended with his arrest. Ramos, highly intoxicated, traveled at speeds up to 95 m.p.h. while nearly running several cars off the road. Testimony indicated that it took several deputies to stop him. He was followed for some time with sirens and lights. When he was finally stopped, after running off the road, the deputies noted that his speech was slurred, he was antagonistic, and resisted his arrest. Prior to his arrest he rammed a patrol jeep and broke through a barricade.

As a result of this incident, Ramos was convicted in Sparks Justice Court and sentenced on March 26, 1984. The Pyramid Lake Tribal Court tried and sentenced Ramos on April 30, 1984. David Dean, Esq., represented Ramos in both courts and currently represents him on this habeas petition.

ANALYSIS

Petitioner has not presented his claims to the appellate court of the Pyramid Lake Tribal Court. This Court finds that Petitioner should exhaust his tribal remedies before presenting this Court with a habeas petition. See O’Neal v. Cheyenne River Sioux Tribe, 482 F.2d 1140, 1144-1145 (8th Cir.1973); cf. National Farmers Union Insurance Companies v. Crow Tribe of Indians, - U.S. -, 105 S.Ct. 2447, 2454-2456, 85 L.Ed.2d 818 (1985) (tribal court remedies must be exhausted before determination of whether the tribal court had exceeded its jurisdictional limits). However, we also find that it would be futile for him to attempt to do so. He failed to timely pay his filing fee for his appeal and, thus, there is no tribal remedy available to him at this time. We will, therefore, review the petition on its merits.

This Court notes that constitutional guarantees are not applicable to the exercise of governmental powers by an Indian tribe. The only exceptions are those guarantees made explicitly binding by the Constitution or imposed by Congress. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 54, 98 S.Ct. 1670, 1674, 56 L.Ed.2d 106 (1978); Trans-Canada Enterprises, Ltd., v. Muckleshoot Indian Tribe, 634 F.2d 474, 476-477 (9th Cir.1980). The powers of the Pyramid Lake Tribal Court are constrained only by the provisions of the Indian Civil Rights Act (ICRA), 25 U.S.C. §§ 1301-1341 and not by the parallel provisions or additional provisions of the United States Constitution. See Santa Clara Pueblo, 436 U.S. at 54, 98 S.Ct. at 1674. Thus, Ramos’ claims must rest upon the provisions of the ICRA. The sole remedy available to vindicate rights under ICRA is that of habeas corpus, 25 U.S.C. § 1303. Id. at 70, 98 S.Ct. at 1683.

DOUBLE JEOPARDY

Ramos argues that the bar of double jeopardy precluded the prosecution in the Pyramid Lake Tribal Court when he had previously been convicted in Sparks Justice Court of similar offenses arising out of the same incident. Ramos’ contention is without merit.

Indian tribes, vested with sovereign powers, have “the right to prescribe laws applicable to tribe members and to enforce those laws by criminal sanctions.” United States v. Wheeler, 435 U.S. 313, 322, 98 S.Ct. 1079, 1085, 55 L.Ed.2d 303 (1978). It is only when Congress affirmatively withdraws those powers that a tribe is divested of its sovereign rights. Id. at 323, 98 S.Ct. at 1086.

In Wheeler, the Supreme Court found that double jeopardy did not bar a trial of a Navajo Indian in federal court following his plea of guilty in the Navajo Tribal Court. The second prosecution was not barred because the tribe was a distinct sovereignty. Id. at 328, 98 S.Ct. at 1088.

The Pyramid Tribe’s power to punish offenses against tribal law committed by Tribe members has never been taken away. The Pyramid Lake Tribe is a distinct sovereignty. The exercise of the tribe’s power is separate and distinct from the exercise of Sparks’ power to punish offenses against state law committed within Washoe County. Thus, the prosecution and conviction of Ramos in Pyramid Lake Tribal Court did not subject Ramos to double jeopardy in violation of 25 U.S.C. § 1302(3).

DENIAL OF DUE PROCESS

Ramos’ next argument in support of his petition is that the dual sentence imposed amounted to a denial of due process and denial of equal protection, privileges, and immunities of law. After finding that the Pyramid Lake Tribal Court properly exercised its powers to prosecute Ramos for violating its laws, we fail to see how the mere fact of two sovereignties exercising their powers constituted a denial of any of Ramos’ rights. Thus, Ramos’ argument is without merit and fails to support a claim for habeas relief.

CRUEL AND UNUSUAL PUNISHMENT

In support of his petition, Ramos argues that the over two year sentence imposed by the Pyramid Lake Tribal Court constituted cruel and unusual punishment. ICRA provides that an Indian tribe may not inflict cruel and unusual punishment and “in no event impose for conviction of any one offense any penalty or punishment greater than imprisonment for a term of six months or a fine of $500, or both.” 25 U.S.C. § 1302(7) (emphasis added). Ramos was convicted of seven offenses. None of the imposed sentences violated the prohibition of more than six months imprisonment for any one offense. We must determine, therefore, if the mere imposition of consecutive sentences constitutes cruel and unusual punishment. We find that it does not.

The sole basis for Ramos’ argument is 25 U.S.C. § 1302(7). The Pyramid Lake Constitution does not contain any provision barring cruel and unusual punishment. Thus, we must construe the language of 25 U.S.C. § 1302(7) so as to give the effect Congress intended. Tom v. Sutton, 533 F.2d 1101, 1103 (9th Cir.1976) relying upon United States v. American Trucking Associations, 310 U.S. 534, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940). We must be careful to construe the terms in ICRA with due regard for the historical, governmental and cultural values of an Indian tribe. See Tom v. Sutton, 533 F.2d at 1104 n. 5 (courts have been careful to construe the terms “due process” and “equal protection” with care); O’Neal, 482 F.2d at 1144. This Court should not merely look at the construction of the Eighth Amendment to the United States Constitution. We can, however, look to construction under the Eighth Amendment for guidance as noted by the ICRA’s sponsor, Senator Ervin, when describing the purpose of the bill:

“The reservation Indian now has no Constitutional rights. The purpose of the amendment is to give these Indians constitutional rights which other Americans enjoy.”

114 Cong.Rec. 5836 (1968). See also Senator Ervin’s remarks concerning the Act in 1968 U.S.Code Cong. & Admin.News, pp. 1837, 1863-67.

This Court could find no cases holding that the imposition of consecutive sentences constitutes cruel and unusual punishment. Indeed, the imposition of consecutive sentences for numerous offenses is a common and frequently exercised power of judges. Ramos was found guilty by the Pyramid Lake Tribal Court and sentenced accordingly to those findings of guilt. He may be unhappy with the sentence he received, but there was no violation of his right against cruel and unusual punishment and, thus, no habeas relief lies.

JUDGE’S LACK OF AUTHORITY

Ramos’ final argument in support of his petition for habeas corpus is that the sentencing judge lacked authority to sentence him because the judge had resigned his position approximately one month before. Ramos was sentenced April 30, 1984. The record indicates that Ramos may be correct that the judge had already left office. In order to determine whether the sentencing judge had lawful authority to commit Ramos to custody, this Court requires additional information. We will, therefore, require contemporaneous briefs and affidavits from Ramos and his custodian outlining which judge imposed sentence and whether that judge had lawful authority to impose such sentence. The parties should also address whether any objection to the judge’s presiding over the ease was ever made.

CONCLUSION

IT IS, THEREFORE, HEREBY ORDERED that the petition for writ of habeas corpus is DENIED as to petitioner’s claims of double jeopardy, cruel and unusual punishment, and due process and equal protection violations.

IT IS FURTHER ORDERED that contemporaneous briefs and affidavits be submitted to this Court within ten (10) days of this Order outlining which judge imposed sentence and whether that judge had lawful authority to impose such sentence. Thereafter, the parties shall have ten (10) days within which to file contemporaneous responses. No extensions of time will be granted.


author: OBERDORFER, District Judge.

text:
    Suzanne ACORD, Plaintiff, v. McLAUGHLIN CONSTRUCTION MANAGEMENT CORPORATION, et al., Defendants.
    Civ. A. No. 85-0913.
    United States District Court, District of Columbia.
    Nov. 1, 1985.
    Patrick M. Regan, Washington, D.C., for plaintiff.
    James C. Gregg, D’Ana E. Johnson, MacLeay & Lynch, P.C., Washington, D.C., for McLaughlin Const. Mgmt. Corp. and Mellon Stuart Co.
    William J. Hickey, Donahue, Ehrmantraut & Montedonico, Rockville, Md., for Schuberth Corp.
    John H. Suda, Acting Corp. Counsel, Martin L. Grossman, Deputy Corp. Counsel, Civil Div., Roberta L. Gross, Asst. Corp. Counsel, Chief, Gen. Litigation Section I, and Colin C. Carriere, Asst. Corp. Counsel, Washington, D.C., for District of Columbia.

      L. Palmer Foret, Carr, Goodson & Lee, P.C., Washington, D.C., for V.V.K.R. and Devroux & Purnell.
    John O. Easton, Jordan, Coyne, Savits & Lopata, Washington, D.C., for Robert T. Coles Architect.
    John Jude O’Donnell, Randall Norton, Thompson, Larson, McGrail, O’Donnell & Harding, Washington, D.C., for Sherman R. Smoot Co., third-party defendant.
   MEMORANDUM

OBERDORFER, District Judge.

This action is brought for negligence, breach of warranty and strict liability against a number of defendants for an alleged construction site accident which occurred in the District of Columbia. One defendant, the District of Columbia, has filed a motion to dismiss, arguing that this Court lacks jurisdiction over it as a defendant.

The federal diversity jurisdiction statute provides:

(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and is between—
(1) citizens of different States;
(2) citizens of a State and citizens or subjects of a foreign state; and
(3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and
■ (4) a foreign state, defined in section 1603(a) of this title, as plaintiff and citizens of a State or of different States.

28 U.S.C. § 1332(a) (1982). Section 1132(d) specifically provides that “[t]he word ‘States,’ as used in this section includes the Territories, the District of Columbia, and the Commonwealth of Puerto Rico.” A “State” is not a “citizen” for purposes of federal diversity jurisdiction. Moor v. County of Alameda, 411 U.S. 693, 717, 93 S. Ct. 1785, 1799, 36 L.Ed.2d 596 (1973). Consequently, federal diversity jurisdiction does not exist between the District of Columbia and a citizen of another state. Mann v. District of Columbia, 742 F.2d 750 (3d Cir.1984); Stewart v. District of Columbia, 589 F.2d 1116, unpublished judgment (D.C.Cir.1978); Davis v. District of Columbia, No. 84-3015, slip op. (D.D.C. 1984); Daley v. District of Columbia, No. 82-1245, unpublished order (D.D.C.1982); District of Columbia v. L.B. Smith, Inc., 474 F.Supp. 894 (D.D.C.1979).

Plaintiff does not claim that federal diversity jurisdiction under 28 U.S.C. § 1332(a) exists between herself and the District of Columbia. She claims, however, that she can add the District of Columbia to her complaint as a “pendent party.”

The Supreme Court in Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976), distinguished between pendent claim jurisdiction as authorized in United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966) and pendent party jurisdiction:

The situation with respect to the joining of a new party, however, strikes us as being both factually and legally different from the situation facing the Court in Gibbs and its predecessors. From a purely factual point of view, it is one thing to authorize two parties, already present in federal court by virtue of a case over which the court has jurisdiction, to litigate in addition to their federal claim a state-law claim over which there is no independent basis of federal jurisdiction. But it is quite another thing to permit a plaintiff, who has asserted a claim against one defendant with respect to which there is federal jurisdiction, to join an entirely different defendant on the basis of a state-law claim over which there is no independent basis of federal jurisdiction, simply because his claim against the first defendant and his claim against the second defendant “derive from a common nucleus of operative fact.” [Gibbs, supra, 383 U.S. at 725, 86 S.Ct. at 1138], True, the same considerations of judicial economy would be served insofar as plaintiff’s claims “are such that he would ordinarily be expected to try them all in one judicial proceeding____” Ibid. But the addition of a completely new party would run counter to the well-established principle that federal courts, as opposed to state trial courts of general jurisdiction, are courts of limited jurisdiction marked out by Congress.

427 U.S. at 14-15, 96 S.Ct. at 2420-21. In order for a federal court to exercise jurisdiction over a “pendent” party:

a federal court must satisfy itself not only that Art. Ill permits it, but that Congress in the statutes conferring jurisdiction has not expressly or by implication negated its existence.

Id. at 18, 96 S.Ct. at 2422.

The Supreme Court in Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978), held that a federal court cannot assert jurisdiction over a pendent party where the party is a citizen and the addition would destroy complete diversity. The Kroger court found that by requiring complete diversity in the statute, Congress had implicitly negated jurisdiction between nondiverse parties. According to the Kroger court:

Congress has established the basic rule that diversity jurisdiction exists under 28 U.S.C. § 1332 only when there is complete diversity of citizenship. “The policy of the statute calls for its strict construction.” ... To allow the requirement of complete diversity to be circumvented as it was in this case would simply flout the Congressional command.

437 U.S. at 377, 98 S.Ct. at 2404 (citations omitted) (footnote omitted).

Plaintiff argues that a different result should be reached in this case because the party she seeks to add is not a citizen, but is a “stateless” party. See Rieser v. District of Columbia, 563 F.2d 462, 470 (D.C. Cir.1977), vacated, reinstated in part, 580 F.2d 647 (D.C.Cir.1978) (en banc). The Rieser case relied upon by plaintiff had analyzed the legislative history and concluded that Congress had not implicitly negated the existence of pendent party jurisdiction over the District of Columbia in an action where federal jurisdiction is based on diversity. The decision was vacated, and upon rehearing en banc the Court did not reach the issue of the District of Columbia’s status as a pendent party. In a long footnote, however, the Court of Appeals discussed the issue:

Assuming that Congress neither authorized nor expressly rejected such jurisdiction, however, the question of negation “by implication” remains. As to that question, commentators have wondered at the curious task put by Aldinger of deciding when Congress, by failing to extend federal jurisdiction over certain parties, nonetheless did not intend implicitly to negate jurisdiction over them. See, e.g., Note, Law-Tied Pendent Jurisdiction Gibbs and Aldinger Reconsidered, 87 Yale L.J. 627, 646-47 (1978). In any case, some post-Aldinger courts and commentators have found the requisite negative intent as to parties who do not meet one of the requisites of the federal diversity statute, Fawvor v. Texaco, Inc., 546 F.2d 636 (5th Cir.1977); Note, Aldinger v. Howard and Pendent Jurisdiction, 77 Colum.L.Rev. 127, 147 & n. 107; Note, 55 Texas L.Rev. 941, 949-50 (1977), and in other situations where legislative negation of jurisdiction is hardly express, Aldamuy v. Pirro, 436 F.Supp. 1005 (N.D.N.Y.1977); Long Prarie Packing Co. v. Midwest Emery Freight System, 429 F.Supp. 201 (D.Mass.1977). On the other hand, the legislative intent, discussed in note 7 supra, behind the 1948 revision of 28 U.S.C. § 1332, although clearly aimed at negating all diversity jurisdiction over suits against states and territories, is silent as to any like intent regarding the District of Columbia.

580 F.2d at 653 n. 8 (citation omitted). Footnote 7 of the Rieser decision noted:

[Although the words of the revised statute appear to put the District, as well as the territories and Puerto Rico, on a par with the states — unless the municipality of the District of Columbia is deemed a citizen of the federally controlled geographical entity by the same name ...— the history of the modern provision is arguably silent as to the District’s potential status as a diversity litigant.

Id. at 653 n. 7.

The en banc Court of Appeals in Rieser thus hinged the resolution of this pendent party issue on the District of Columbia’s status as a diversity litigant. Since Rieser, however, our Court of Appeals has summarily affirmed a District Court’s dismissal of an action because the District of Columbia was not a proper defendant under § 1332. Stewart v. District of Columbia, supra. Since the Court of Appeals’ affirmance, other District of Columbia District Courts have followed suit. Davis v. District of Columbia, supra; Daley v. District of Columbia, supra; District of Columbia v. L.B. Smith, Inc., supra. This issue decided, the vacated decision in the original Rieser case should no longer be controlling. But see Biscoe v. Arlington County, No. 80-0766, slip op. (D.D.C. 1981).

Under the theory enunciated in Kroger, supra, there appears little basis for the distinction pressed by plaintiff. Both of the factors found important by the Kroger court are present in this case. First, the claim asserted against the District of Columbia is not ancillary in the sense of being logically dependent, but is in fact “new and independent.” 437 U.S. at 376, 98 S.Ct. at 2404. Second, “the nonfederal claim here was asserted by the plaintiff, who voluntarily chose to bring suit upon a state-law claim in a federal court.” Id. Plaintiff “cannot complain” that jurisdiction is limited, since she “has chosen the federal rather than the state forum and must thus accept its limitations.” Id.

In Aldinger, supra, as well as in Kroger, the Supreme Court found that Congress had by implication negated the existence of jurisdiction over non-diverse parties. 427 U.S. at 19, 96 S.Ct. at 2422. The Court found this implicit negation because Congress specifically listed the parties between whom diversity jurisdiction should exist. Why a court should distinguish between one requirement — that citizens be from different states — and another — that citizens cannot sue states under diversity jurisdiction — is unclear. The intent of Congress is clear in either case — to limit federal court jurisdiction to those situations specifically enumerated in the statute.

The analysis in Aldinger and Kroger, as opposed to the vacated reasoning of Reiser should control. Accordingly, an accompanying order will grant defendant’s motion to dismiss.

      . The case cited by the Rieser court in support of this theory, Twentieth Century Fox Film Corp. v. Taylor, 239 F.Supp. 913 (S.D.N.Y.1965), is inapposite. First, in that case there was no diversity of citizenship, so the issue was whether plaintiff alleged a "separate and independent claim” under 28 U.S.C. § 1441(c), the federal statute governing removal. Second, to the extent that Taylor found broad federal jurisdiction, it was disapproved in Gardner & Florence Call Cowles Foundation v. Empire Inc., 754 F.2d 478, 482 n. 5 (2d Cir.1985).

      . The plaintiff in Rieser argued four theories of jurisdiction to the en banc Court of Appeals. The first was "simple diversity jurisdiction under 28 U.S.C. § 1332.” Rieser, 580 F.2d at 653. It is telling that in this action plaintiff does not argue this point but relies only on the theory of pendent party jurisdiction.

      . The original Rieser Court, however, did not find this issue dispositive. 563 F.2d at 472. The en banc Court of Appeals in Rieser arguably did. 580 F.2d at 653 n. 8.

      . In Biscoe, plaintiffs brought a damage action for injuries sustained from an automobile accident. Jurisdiction in federal court was by diversity. The District of Columbia was named as a defendant, and brought a motion to dismiss arguing that the Court lacked jurisdiction over it. Plaintiffs relied on the doctrine of pendent party jurisdiction. The District Court in Biscoe adopted the reasoning of the original Rieser decision and denied the motion to dismiss.

      . In fact, a different distinction accords more with the rationale of Kroger. See C. Wright, A. Miller & E. Cooper, 13B Federal Practice and Procedure § 3567.2 at 153 (2d ed. 1984) (footnote omitted):
      The meaning of "amount in controversy” in § 1332 raises one question, the meaning of "between citizens of different states” in the same statute raises a different question, and the permissible scope of cases "arising under” federal law within the Constitution and § 1331 raises still a third question. The considerations for allowing "pendent parties” in a federal question case may well be more compelling than for doing so when the only effect is to broaden the scope — and attractiveness— of diversity jurisdiction.

      . See also Kessler v. The Lincoln National Life Insurance Co., 620 F.Supp. 252 (D.D.C.1985):
      [W]hatever may be the attractions for [innovative counsel] of federal courts in matters of this kind, state courts can take initiatives and provide remedies not available in federal court.