Full opinion text
OPINION OF THE COURT SEITZ, Chief Judge. Plaintiff, Dr. Joseph T. Skehan (appellant in No. 77-2311), appeals from the following aspects of a final judgment entered by the district court, embodied in three separate orders and opinions: 1) a denial of Skehan’s motion for judgment in his behalf on a claim that his contract as a faculty member of Bloomsburg State College was not renewed beyond the 1970-71 academic year for reasons violative of the first amendment; 2) a denial of Skehan’s request for an award of monetary damages from either the College or the individual defendants as a remedy for the defendants’ violation of his due process rights with respect to both his nonrenewal and his later dismissal from the College faculty; 3) a denial of Skehan’s request that he be awarded equitable relief in the nature of full reinstatement to the College faculty as a remedy for the defendants’ violations of his constitutional rights; and 4) a denial of Skehan’s claim for attorney’s fees and expenses. Defendants, Bloomsburg State College, its Board of Trustees, Dr. Robert Nossen (President of the College during the period in which the events culminating in this lawsuit transpired), Dr. Charles Carlson (acting President of the College at the time Skehan filed his complaint) and John Pittenger (Pennsylvania Superintendent of Education) (appellants in No. 77-2312), cross-appeal from that aspect of the district court’s judgment finding that Skehan was contractually entitled to an “academic freedom” hearing following his nonrenewal and that their failure to provide him with such a hearing violated his rights under the due process clause of the fourteenth amendment. Factual Background The history of this litigation over the course of the past eight years may be garnered from the two previous opinions of this Court and the three opinions of the district court at issue here. The facts essential to an appreciation of the questions presented in this appeal are recounted herein. Dr. Skehan was appointed as a non-tenured Associate Professor of Economics at Bloomsburg State College in January, 1969. His contract was renewed for the 1969-70 academic year, but on February 27, 1970, the College's Board of Trustees, on the recommendation of defendant Nossen, decided that Skehan should be notified that the 1970-71 academic year would be the terminal year of his appointment. Skehan was notified of the Board’s action through a letter from President Nossen, dated May 19, 1970. On September 21, 1970, Skehan wrote Nossen a letter invoking Article 5e of the Statement of Policy for Continuous Employment and Academic Freedom at Bloomsburg State College [hereinafter Article 5e]. In that letter he alleged that the decision not to reappoint him after 1970-71 had been caused by considerations violative of his academic freedom. Nossen did not refer Skehan’s letter to the Committee on Professional Affairs, the College body charged with initiating proceedings under Article 5e to resolve such allegations, nor did Skehan take any further action to secure an Article 5e hearing. Contemporaneous with his invocation of Article 5e, Dr. Skehan became embroiled in a dispute between the economics department and the College’s administration concerning the scheduling of classes. During that dispute Skehan was warned that his failure to teach his classes as scheduled by the College would result in the taking of immediate and direct administrative action against him. On or about October 1, 1970, Dr. Skehan was observed teaching a course not assigned to him, and on October 9 Dr. Nossen notified Skehan that he was relieved of all classroom responsibilities pending a final hearing. Nossen’s letter of October 9 also demanded of Skehan a “full and complete accountability” of his actions on campus since the start of the semester. When Skehan failed to comply with this demand, Dr. Nossen informed him that, effective October 17, 1970, he was removed from the College’s payroll, subject to final approval by the Board of Trustees. That approval was obtained at the Board’s regularly scheduled meeting of October 23,1970. Skehan filed a complaint in district court on October 10, 1972. He alleged that his suspension and ultimate dismissal in the Fall of 1970 were in retaliation for his active role in campus political issues, and hence were violative of his rights under the first amendment. He also alleged that the defendants suspended and dismissed him without complying with the applicable College laws and regulations governing faculty status, thereby depriving him of that due process of law guaranteed by the fourteenth amendment. He requested preliminary and permanent injunctive relief in the nature of reinstatement and an award of attorney’s fees. The district court held a hearing on Skehan’s request for a preliminary injunction on January 11 and 12, 1973. Preliminary injunctive relief was denied in an opinion and order dated January 31, 1973. Skehan v. Board of Trustees of Bloomsburg State College, 353 F.Supp. 542 (M.D.Pa.1973). Subsequently, the parties stipulated that a final hearing could be held on the record developed at the preliminary injunction hearing, and the district court issued its opinion on the merits on May 9, 1973. Skehan v. Board of Trustees of Bloomsburg State College, 358 F.Supp. 430 (M.D.Pa.1973). In that opinion, the district court held that Skehan’s dismissal from the faculty had been a result of his actions during the scheduling dispute. Thus, his dismissal was found not to have been violative of the first amendment. However, the district court did find that Skehan’s dismissal during the term of his contract entitled him, under the due process clause, to a prior hearing on the grounds of his dismissal, and that such a hearing had not been afforded Skehan by the College. On appeal this Court affirmed both findings with respect to Skehan’s dismissal, but noted that Skehan had also challenged the constitutionality of the Board of Trustees’ decision not to renew his contract beyond 1970-71. Thus, this case was remanded to the district court for findings on the questions whether the nonrenewal decision had been motivated by the College administration’s disagreement with Skehan’s stands on campus issues and whether Article 5e had contractually entitled Skehan to a hearing on the reasons for his nonrenewal. This Court also directed the district court to consider whether the College shared in the sovereign immunity of the Commonwealth of Pennsylvania so that it would be immune under the eleventh amendment from Skehan’s claim for damages. We held that the individual defendants were entitled to absolute immunity from damages as executive officials exercising discretionary governmental functions, and indicated that Skehan might be entitled to an award of attorney’s fees from the College as a private attorney general vindicating a public interest. Skehan v. Board of Trustees of Bloomsburg State College, 501 F.2d 31 (3d Cir. 1974). Trial on the issues remanded to the district court was postponed while Skehan’s petition for writ of certiorari to the Supreme Court was pending. On May 27, 1975, the Supreme Court granted his writ, vacated the judgment of this Court, and remanded the case “for further consideration in light of Alyeska Pipeline Service Co. v. Wilderness Society, [421 U.S. 240, 95 (1975)], and Wood v. Strickland, 420 U.S. 308 [, 95 S.Ct. 992, 43 L.Ed.2d 214] (1975).” 421 U.S. 983, 95 S.Ct. 1986, 44 L.Ed.2d 474 (1975). This Court reviewed the case en banc on remand from the Supreme Court, and addressed itself to three issues respecting the relief to which Skehan might be entitled for the defendants’ actions in bringing about his nonrenewal and termination. Skehan v. Board of Trustees of Bloomsburg State College, 538 F.2d 53 (3d Cir. 1976). First, we noted that Alyeska had overruled the cases upon which this Court had earlier relied in determining that Skehan, as a “private attorney general,” was entitled to an award of attorney’s fees. Thus, the attorney’s fees aspect of the case was remanded to the district court for findings on pre-litigation obduracy, and for consideration of an award of fees based on the defendants’ future maintenance of this litigation in bad faith. This Court held that only the latter ground could be the basis of a fee award against the College given that it was a state agency for which the Commonwealth of Pennsylvania claimed sovereign immunity. 538 F.2d at 55-59. Second, we noted that the Supreme Court had demonstrated in Wood v. Strickland that this Court’s earlier holding that the individual defendants were absolutely immune from liability as nonjudicial government officials performing adjudicatory functions was inappropriate. Thus, the question of official immunity was remanded to the district court for findings of fact with respect to the immunity of each defendant under the test articulated by the Supreme Court in Wood. Id. 59-62. Finally, this Court stated that an intervening decision of the Pennsylvania Commonwealth Court Brungard v. Hartman, 12 Pa.Cmwlth. 477, 315 A.2d 913 (1974), holding that state colleges are agencies for which Pennsylvania claims sovereign immunity, was dispositive of the eleventh amendment issue concerning the College’s liability for damages. Thus, we held that a back pay award could not be made out of the College’s treasury, and that an award of attorney’s fees against the College could only be based on the exception to the American rule for the maintenance of litigation in bad faith. 538 F.2d at 62. In conclusion, this Court reiterated that on remand the district court was to make findings of fact on the nature of the interest created by Article 5e and on whether the decision not to renew Skehan’s contract beyond 1970-71 had been impermissibly based on his stands on campus issues. The Supreme Court denied defendants’ petition for a writ of certiorari on November 29, 1976. 429 U.S. 979, 97 S.Ct. 490, 50 L.Ed.2d 588 (1976). It is with this background in mind that we turn to the parties’ challenges to the district court’s disposition of the issues remanded to it by this Court. I. THE FIRST AMENDMENT CLAIM The district court issued its first opinion after remand on plaintiff’s and defendants’ cross-motions for judgment on Skehan’s claim that the decision not to reappoint him after 1970-71 was for reasons violative of the first amendment. Skehan v. Board of Trustees of Bloomsburg State College, No. 72-644 (M.D.Pa., filed March 24, 1977) (unpublished opinion). The district court awarded judgment to the defendants on that claim. Three aspects of that ruling are at issue in this appeal. First, the defendants contend that the district court erred in rejecting their argument that Skehan’s first amendment claim was barred by the applicable Pennsylvania statute of limitations. Skehan appeals from the court’s disposition of the merits of the first amendment claim, and also contends that the court abused its discretion in denying his motion to take additional testimony on that issue. Before meeting those contentions we must address the defendants’ argument that the district court’s disposition of the first amendment claim should be affirmed because it was not raised by Skehan in his complaint or in any court proceedings, but rather was first raised by this Court sua sponte in the 1974 panel opinion. We believe that Skehan’s initial complaint did challenge the validity of the nonrenewal decision, and that the question whether that decision was violative of the first amendment was litigated by the parties at the preliminary injunction hearing held in January, 1973. In fact, the district court decided not to take additional testimony on the first amendment nonrenewal issue after remand precisely because the parties had had a full opportunity to present all evidence concerning the reasons which may have motivated the Board’s decision not to renew Skehan’s contract at that earlier hearing. See Part I, B infra. Moreover, this Court’s en banc opinion remanding the first amendment issue to the district court represents the “law of the case” with respect to that aspect of Skehan’s claim. We are bound by the earlier determination of this Court, and thus reject the defendants’ argument, raised at this late date, that the issue should not have been remanded to the district court. See Part II, A infra. A. Statute of Limitations The district court found that Skehan’s nonrenewal claim stated a cause of action under 42 U.S.C. § 1983. Because § 1983 does not contain its own statute of limitations, the court turned to Pennsylvania law to determine the period of limitations applicable to the most analogous state law claim. The court held that the six year statute of limitations established by the Act of March 27, 1713, 1 Sm.L. 76, § 1, 12 P.S. § 31, governed Skehan’s claim, as it governed the state law claim the court found to be most analogous to it, namely a claim of wrongful interference with an employment contract. Defendants argue that the court erred in holding the six year period of limitations applicable to Skehan’s claim, contending that the two year period of limitations established for personal injury actions in the Act of June 24, 1895, P.L. 236, § 2, 12 P.S. § 34, should be applied to a § 1983 action claiming a violation of the first amendment. They further contend that Skehan’s nonrenewal claim arose on the day he was notified of the Board’s decision not to reappoint him beyond 1970-71, at the latest May 19, 1970, and that his claim should thus be barred because he did not file his complaint in federal court until October 10, 1972. Skehan counters that even if the two year period of limitations established in 12 P.S. § 34 applies to his first amendment claim, that claim is not barred because his cause of action did not accrue until he was terminated on October 19, 1970. He reasons that up until that time a final nonrenewal decision had not been made in his case, because, until then, he was entitled to expect the College to respond to his letter of September 21, 1970, invoking the procedures of Article 5e to review the Board’s initial decision not to renew his contract. We need not resolve the parties’ dispute over the date when Skehan’s nonrenewal claim accrued because we agree with the district court’s determination that it was governed by the six year period of limitations established in 12 P.S. § 31; thus, whether Skehan’s claim is deemed to have accrued in May or in October of 1970, he filed his complaint well within the period of limitations. Two recent opinions of this Court compel our disposition of this question. In Meyers v. Pennypack Woods Home Ownership Association, 559 F.2d 894 (3d Cir. 1977), this .Court faced the question whether a cause of action under 42 U.S.C. §§ 1981 and 1982, alleging racial discrimination by a private home ownership association, was governed by Pennsylvania’s two year or its six year statute of limitations. The Court noted that the Pennsylvania scheme of limitations is complex, due to the establishment of a six year period for all actions in contract and all actions of trespass by the Act of 1713, while the Act of 1895, without reference to the earlier statute, provides a two year period for actions for personal injury not resulting in death. The Court noted that the Pennsylvania Supreme Court has held (citing Walker v. Mummert, 394 Pa. 146, 146 A.2d 289 (1958) and Helmig v. Rockwell Manufacturing Co., 389 Pa. 21, 131 A.2d 622 (1957)) that the Act of 1713 still governs all actions in trespass not involving personal injury. 559 F.2d at 902. Elaborating further, this Court stated that 12 P.S. § 34 “by its terms applies only to ‘actions brought to recover damages’ whereas [the plaintiff] seeks a broad range of equitable relief,” and that the statutory phrase “ ‘injury wrongfully done to the person, in cases where the injury does not result in death’ expresses a limitation only on actions for bodily injury whereas [plaintiff’s] claim is for tortious interference with his right to contract for the purchase of a house.” Id. (footnote omitted). In Davis v. United States Steel Supply, 581 F.2d 335 (3d Cir. 1978), this Court reversed a district court decision, relied upon by the defendants here, that had held the two year period of limitations in 12 P.S. § 34 applicable to a cause of action challenging racially discriminatory employment practices brought pursuant to 42 U.S.C. § 1981. Relying on Meyers, supra, the Davis Court noted that § 34 is applicable only to actions seeking damages for bodily injury. 581 F.2d at 339. The Court held that the plaintiff’s cause of action in Davis, alleging “an unlawful breach of an existing at-will employment contract” was within the precise terms of 12 P.S. § 31, and was best analogized to “those torts which involve the wrongful interference with another’s economic rights or interests.” Id. 339 (footnote omitted) (emphasis supplied). The district court properly noted that Skehan’s claim, like the plaintiff’s in Davis, most resembled the state law claim of wrongful interference with a contract, and that it did not seek damages for a bodily injury but rather for economic loss. In affirming the district court’s determination that 12 P.S. § 31 provides the applicable statute of limitations for Skehan’s claim, we also rely on the fact that Skehan did not seek damages alone for the College’s allegedly unlawful nonrenewal of his contract, but a broad range of equitable relief as well. See Meyers, supra, at 902. We agree with the ruling of the district court denying defendants’ motion for judgment on the ground that the first amendment claim was barred by the statute of limitations. B. Skehan’s Motion to Take Additional Testimony As noted earlier, the district court, on remand, denied Skehan’s motion to take additional testimony on the question whether the College’s nonrenewal decision had been based on considerations violative of the first amendment. That order, dated January 10, 1977, was based on the fact that Skehan had rested on all issues presented in his complaint following the preliminary injunction hearing in January, 1973, and that during that earlier hearing he had been presented with a full opportunity to introduce evidence concerning the reasons that may have motivated the nonrenewal decision. In the same order denying Skehan’s motion the district court granted defendants’ motion to take additional testimony on the question of their official immunity defenses, stating that this question had not been before the court in 1973 and that the law in this area had substantially changed in the interim. Skehan contends that the court’s order was an abuse of discretion for a variety of reasons: that it was inconsistent with this Court’s remand for findings of fact on the first amendment issue; was unjust given that the court applied a test to the merits of the claim that had been formulated by the Supreme Court in 1977; was inconsistent with the court’s decision to allow additional testimony on the defendants’ official immunity defense; caused the court to decide the issue on a stale record; was inconsistent with the court’s earlier orders respecting pre-trial discovery; and prevented plaintiff from producing a great quantity of probative evidence. It is clear that “[generally, whether a trial court will reopen a case to take more testimony is discretionary with that court.” Rochez Brothers, Inc. v. Rhoades, 527 F.2d 891, 894 n. 6 (3d Cir. 1975), cert. denied, 425 U.S. 993, 96 S.Ct. 2205, 48 L.Ed.2d 817 (1976); see Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 331, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971). The contention that Skehan presses most vigorously in arguing that the trial court abused that discretion in this instance is that by not taking additional testimony on the first amendment claim the district court failed to comply with the mandate of this Court to make findings of fact on the causes of Skehan’s nonrenewal. To the contrary, however, neither opinion of this Court specifically instructed the district court to take further evidence on any issue remanded to it for findings of fact. In fact, we feel that there was an assumption implicit in those opinions that the trial court need not reopen the record of this case for further testimony on the first amendment issue in order to make the required findings. This Court was fully aware that the parties had stipulated that the district court could hold a final hearing on the record developed at the preliminary injunction hearing in January, 1973. See 501 F.2d at 37. Yet, it was only with respect to the issue of the individual defendants’ official immunity that this Court indicated that the record might have to be reopened in order to make the required factual determinations, and that decision was left to the district court in the first instance. See 538 F.2d at 62. Thus, contrary to Skehan’s contention that the trial court’s denial of his motion to take additional testimony was inconsistent with the mandate of this Court, this Court’s failure to specify that further evidence should be taken on remand could, at most, be construed as leaving a decision on the need to reopen the record to the sound discretion of the trial court. See Rochez Brothers, supra at 894 (failure of appellate court to instruct the district court to take further evidence indicates that the question was left to the sound discretion of the trial court). Our scope of review on this question is quite limited. As Professor Moore has stated: A district court, then, should consider a motion to take additional testimony in light of all the surrounding circumstances and grant or deny it in the interest of fairness and substantial justice. . [T]he grant or denial involves an exercise of discretion by the trial court; and because this court has a feel for the case that an appellate court can seldom have, the trial court’s ruling is subject to reversal only in a rare case where abuse is clearly shown. 6A Moore’s Federal Practice 159.04[13] at 36-37 (2d ed. 1974) (footnotes omitted). In Rochez Brothers, supra at 894 n.6, this Court stated that the district court should be concerned with several factors in deciding whether to reopen a case, including the burden which would be placed on the parties and their witnesses, undue prejudice which might result by a refusal to take new testimony, and considerations of judicial economy. The district court was clearly concerned with the burdens placed on the parties and the court system by the failure of that system to dispose of the dispute in this case promptly and fairly. That theme is prominent throughout the court’s numerous pretrial orders attempting to bring the parties into court for resolution of the issues remanded by this Court. Following a final pre-trial conference on December 1, 1976, the court directed that the parties file motions for the taking of such additional testimony on those issues as they deemed advisable. In spite of Skehan’s contention to the contrary, we do no't find that the district court in prior orders had indicated to the parties that there would be further testimony taken on the first amendment issue. In its order of January 10, 1977, the court, after considering all the points raised here by Skehan, save one that is discussed below, denied his motion to reopen the record on the first amendment nonrenewal claim. The court relied on the fact that Skehan had had a full opportunity to present evidence on the defendants’ motivation in dedining to renew his contract beyond 1970-71 at the preliminary injunction hearing; any responsibility for inadequacies in that presentation was deemed to rest with Skehan. Furthermore, the court determined that the real thrust of Skehan’s request was to insure that he would have an opportunity to rebut any evidence offered by the defendants on the question of their official immunity from an award of damages arising from the alleged first amendment violation. The court offered Skehan the opportunity to present such rebuttal evidence if the issue of official immunity from liability were to arise. We believe that the concerns raised here by Skehan, and rejected by the district court, do not compel a conclusion that the trial court abused its discretion in denying his motion to take additional testimony on the first amendment nonrenewal claim. This is not one of the exceptional cases envisioned in Rochez Brothers, supra at 894-95, in which a party failed to put into evidence all the necessary elements of his claim because of a misunderstanding among the parties and the trial court; nor was the trial court unable to make findings of fact on the nonrenewal claim without the proffered testimony. See Pittsburgh Press Club v. United States, 426 F.Supp. 553, 554 (W.D.Pa.1977), aff’d in relevant part, 579 F.2d 751, 755 (3d Cir. 1978). Rather, as Skehan concedes, at the time of the preliminary injunction hearing, the district court and the parties probably considered the question of the College’s motivation in its nonrenewal of Skehan to be merged with the first amendment challenge to his dismissal. Thus, Skehan did present evidence with respect to his first amendment activities, and the College’s reaction to them, relevant to the whole period of his employment by the College. The district court in no way hindered him from offering proof that the nonrenewal decision was motivated by his engaging in conduct protected by the first amendment. Skehan’s counsel made a tactical judgment to rest on the record made at the preliminary injunction hearing and, based on that record, the district court was able to detail Skehan’s campus activism prior to the nonrenewal decision in the Spring of 1970 in twelve findings of fact contained in its opinion on the merits of the first amendment claim, discussed below. Skehan has presented one contention for the consideration of this Court that, of necessity, he did not present to the district court prior to its order of January 10, 1977. That contention is that the district court should have reversed its order denying his motion to present additional testimony on the first amendment issue when it became aware of the change in the law represented by the decision of the Supreme Court in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). The Mt. Healthy decision was issued by the Supreme Court on January 11, 1977, one day after the district court’s order denying Skehan’s motion, but prior to the court’s ruling on the merits of the first amendment claim on March 24, 1977, in which it relied on the test of causation formulated in Mt. Healthy. Skehan is correct in his assertion that a change in legal standards may warrant the reopening of a case where additional testimony would be pertinent to the change of law. See 6A Moore’s Federal Practice H 59.04[13] at 36 (2d ed. 1974). In fact, the district court relied on this ground in deciding to grant the defendants’ request to take additional testimony on the official immunity defense. However, we believe that the Mt. Healthy decision did not reflect a change in the law that would warrant the district court’s reopening of the record in this case to allow Skehan to present additional testimony on his claim that the defendants’ decision not to reappoint him beyond 1970-71 violated the first amendment. Mt. Healthy did not substantially affect the affirmative burden of a plaintiff in Skehan’s position to show by a preponderance of the evidence that his first amendment activities were a substantial or motivating factor in an adverse employment decision. The standard of proof adopted in Mt. Healthy is, if anything, more stringent than the standard applied by the district court in its ruling in 1973 that Skehan had failed to prove he had been terminated for reasons violative of the first amendment, 358 F.Supp. at 434 — a ruling affirmed by this Court, 501 F.2d at 39. To the extent the Mt. Healthy Court adopted a “new” formulation of the test of causation for claims alleging dismissal from public employment for reasons violative of the first amendment, the “new” aspect of that formulation was the Court’s holding that the defendants in such a case must be afforded an opportunity to rebut a prima facie case of impermissible motivation by showing by a preponderance of the evidence that they would have reached the same decision even in the absence of the constitutionally protected conduct of plaintiff. 429 U.S. at 284-87, 97 S.Ct. 568. Because Skehan was permitted to adduce all testimony relevant to his first amendment nonrenewal claim at the preliminary injunction hearing, and because no evidence pertinent to his affirmative case after Mt. Healthy would not have been equally pertinent then, we cannot say that Skehan was prejudiced by the court’s application of a “new” legal standard to his first amendment claim. We conclude that it was not an abuse of discretion for the district court to have declined to reopen that aspect of the record of this case dealing with Skehan’s claim that the College’s decision not to renew his appointment beyond 1970-71 violated the first amendment. C. The Merits of the First Amendment Claim The district court found that the evidence adduced by Skehan at the preliminary injunction hearing failed to establish by a preponderance of the evidence that his constitutionally protected conduct was a “substantial” or “motivating” factor in the decision of the Board of Trustees to offer him a terminal contract for the 1970-71 academic year. See Mt. Healthy, supra at 287, 97 S.Ct. 568. Furthermore, the court went on to find that even if Skehan had met that initial burden, the defendants had shown by a preponderance of the evidence that Skehan’s contract would not have been renewed beyond that year even if he had not spoken out on campus issues. See id. Having concluded that the court’s findings on Skehan’s failure to meet his initial burden of proof are not clearly erroneous, we affirm the court’s judgment on the first amendment nonrenewal issue. The district court found as a fact that “Dr. Skehan assumed an activist position on many of the issues raised in the,campus community, a position often grating to the administration of Bloomsburg State College.” However, the court also found: There is no evidence on the record to establish that the Board of Trustees based their decision not to renew Skehan’s contract on his criticism of administrative policies or his comments on campus issues. Skehan has shown only that after he spoke out on campus issues his contract was not renewed. No evidence establishing a relationship or nexus between the two events has been presented. Unpublished opinion of March 24, 1977, at 14. Skehan argues that the district court’s finding that there was no evidence connecting the College’s nonrenewal decision with his first amendment activities should be set aside as clearly erroneous. He relies on the following passage from Dr. Nossen’s letter to him, dated October 9, 1970, informing him that he was being relieved of classroom responsibilities for his actions during the scheduling dispute, as proof of the nexus the district court found lacking: I hardly need remind you that you are, during this current year, on terminal appointment. You were, at the time that appointment was offered, advised that your previous disruptive activities made your presence on this campus unwelcome, and the hope was expressed that you would not accept, [emphasis supplied]. Skehan contends that those “previous disruptive activities” must have been a reference to activities protected by the first amendment and that the foregoing passage proves that the College’s nonrenewal decision was substantially motivated by considerations violative of the Constitution. The district court found, however, that the phrase could have been a reference to Skehan’s refusal to meet his classes at the appointed times. There was testimony introduced at the preliminary injunction hearing by Skehan’s department chairman that prior to Skehan’s nonrenewal he had arranged, without approval and contrary to past instructions, to have other faculty members take charge of his classes. It is also possible that the “disruptive activities” referred to by Dr. Nossen in his letter of October 9 were the same activities he mentioned in an earlier letter of June 15, 1970, admitted into evidence at the preliminary injunction hearing as defendants’ exhibit 12. In that letter, reaffirming the Board of Trustees’ determination that Skehan’s appointment for the 1970-71 academic year was to be a terminal contract, Dr. Nossen stated: The Board members have expressed deep concern over your continued failure to cooperate with your Department Chairman, to meet established departmental deadlines, and to contribute to constructive departmental operation. Your Chairman has, in desperation, requested that you no longer attend departmental meetings and that you report, should you return for 1970-71, to the Dean of Instruction rather than to him. Whatever the true meaning of the phrase “disruptive activities” in the October 9 letter might be, we can find no error in the district court’s determination that Skehan failed to establish by a preponderance of the evidence that Dr. Nossen acted to prevent the renewal of Skehan’s contract because of his disagreement with Skehan’s avowed positions on campus issues. Moreover, there is no evidence that the members of the Board of Trustees were even aware of Skehan’s first amendment activities at the time they approved the decision not to renew his contract. Such a failure of proof requires that we credit the district court’s evaluation of the testimony and affirm, as not clearly erroneous, its finding of fact that “Skehan’s criticism and disagreement with the administration, specifically Dr. Nossen and the Board of Trustees . concerning certain campus issues . was not a motivating or substantial factor in the decision not to renew his contract of employment beyond the 1970-1971 year.” Unpublished opinion of-Mareh 24,1977, at 7. See Franklin v. Atkins, 562 F.2d 1188, 1192 (10th Cir. 1977); cf. Mazaleski v. Treusdell, 562 F.2d 701, 716 (D.C.Cir. 1977) (Mt. Healthy requires that a dismissed public employee’s first amendment claim be supported by more than post hoc ergo propter hoc allegations). Having considered all of Skehan’s arguments pertinent to this aspect of his appeal, we concur in the conclusion of the district court that Skehan did not establish that his first amendment activities were a substantial or motivating factor in the College’s decision not to renew his contract beyond 1970-71. We need not review the district court’s determination that, even if Skehan had established a prima facie case of a first amendment violation, the defendants proved by a preponderance of the evidence that he would have been offered a terminal contract based on reasons independent of his constitutionally protected conduct. II. THE ARTICLE 5e PROCEDURAL DUE PROCESS CLAIM On April 14 and 15, 1977, the district court heard testimony without a jury concerning, inter alia, the nature of the interest created by Article 5e of the College’s Statement of Policy for Continuous Employment and Academic Freedom, and whether Skehan’s right to a hearing under Article 5e had been violated by defendant Nossen’s failure to institute the proceedings called for by that provision upon receipt of Skehan’s letter of September 21, 1970. In an opinion issued on May 18, 1977, the district court held that Skehan possessed a contractual right to the procedures set forth in Article 5e, that he had invoked that right within a reasonable time, and that the College’s failure to afford Skehan those procedures violated the due process clause of the fourteenth amendment. Skehan v. Board of Trustees of Bloomsburg State College, 431 F.Supp. 1379, 1391 (M.D.Pa.1977). The defendants’ cross-appeal raises two challenges to that holding: first, they assert that the district court should not have considered the Article 5e claim, even though this Court has specifically instructed that it do so, because the claim was never raised by Skehan at any stage of this litigation; second, they contend that Skehan did not have a contractual right to the procedures set forth in Article 5e because the College’s Statement of Policy was not a contract supported by consideration nor one whose obligations were set forth with sufficient certainty, because it had not been practical for the College to adhere to those procedures in Skehan’s case, because Skehan’s behavior during the scheduling dispute had discharged the College’s obligation to provide him with an Article 5e hearing and because Skehan’s letter to President Nossen was not a proper invocation of Article 5e. If we reverse the district court’s finding that Skehan was contractually entitled to the procedures set forth in Article 5e, the defendants rightly conclude that Skehan would have no property interest in those procedures rising “to the level of a ‘legitimate claim of entitlement’ protected by the Due Process Clause.” Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1, 9, 98 S.Ct. 1554, 1560, 56 L.Ed.2d 30 (1978). A. Skehan’s Alleged Failure to Raise the Article 5e Claim The defendants argue that the district court’s holding in Skehan’s favor on the procedural due process claim should be reversed because it was error for the court to have addressed that issue in the first instance. The district court noted in its opinion on this issue that the Article 5e claim was never set forth in Skehan’s complaint, never raised at the preliminary injunction hearing in January, 1973, never raised before this Court, and, in fact, “first surfaced in the Opinion of the Court of Appeals.” 431 F.Supp. at 1382. The court also stated its view that Skehan’s failure to raise the claim in his complaint ran afoul of the requirement that facts be pleaded with specificity in civil rights actions, and that the “creation” of the issue by this Court was inconsistent with our jurisprudential system. Id. Nonetheless, the court felt itself bound by the directions of this Court to fully consider the issue as though it had been initially raised by Skehan in his complaint. Defendants rely on the foregoing observations of the district court as support for their argument here. Based on our independent review of the record of the preliminary injunction hearing, we decline to accept the validity of the district court’s observations. Moreover, in the unanimous panel opinion of this Court entered on May 3,1974, we stated that Skehan had presented a due process claim based on the College’s failure to provide him with an Article 5e hearing and that the district court had failed to make findings of fact on that claim. 501 F.2d at 38. Thus, this Court remanded the case to the district court for findings “as to the nature of the interest created under Pennsylvania law by article 5(e) of the Statement of Policy for Continuous Employment and Academic Freedom at Bloomsburg State College . . Id. 45. In our unanimous en banc opinion on remand from the Supreme Court, we again directed that findings be made on the Article 5e issue. 538 F.2d at 63. The defendants did not seek review of the original order of this Court; their petition for certiorari to the Supreme Court, filed after the issuance of our opinion en banc, did not raise the contention they now press that this Court impermissibly created the Article 5e issue sua sponte. Thus, even if we were to agree with the defendants’ contention and the district court’s observations, we would have to rule that this Court’s prior opinions represent the law governing this case with respect to the question whether it was permissible .to remand the Article 5e claim to the district court. B. The Merits of the Article 5e Due Process Claim The district court held that the College’s Statement of Policy “sets forth its purpose in terms that meet the general requirement that a contract be supported by consideration.” 431 F.Supp. at 1388. The court found that the Statement had been adopted by the College to insure the more effective services of faculty members, and that during the period in which it was in effect each faculty member was given a copy of the Statement at the start of his term of employment and was asked to acknowledge in writing his familiarity with its provisions. Id. 1387-88. Thus, the court found the Statement to be an integral part of the contractual structure defining the employment relationship between the College and its faculty. The defendants dispute the district court’s characterization of the Statement as a contract, arguing that under Pennsylvania law it was not an enforceable agreement, but rather an “illusory promise,” lacking in certainty with respect to the nature and extent of the obligations of the parties thereto. They base this argument on a clause in that section of the Statement’s preamble labeled “Purpose," which provides: “It is understood that this is a statement of policy which will be honored in all practical situations.” Because the College was required by the Statement to follow its procedures only when “practical” they argue that it was a promise merely in form. The district court held, to the contrary, that the phrase “practical situations” can easily be interpreted by a factfinder and, hence, its presence in the Statement did not render its provisions unenforceable but rather permitted the College to avoid its obligations only by establishing that compliance in a given case was impractical. 431 F.Supp. at 1388. We believe the district court’s ruling on this question to be consistent with applicable Pennsylvania law. See Kirk v. Brentwood Manor Homes, Inc., 191 Pa.Super. 488, 159 A.2d 48, 51 (1960). The holding of the district court that the College’s Statement of Policy was not an illusory promise, but a binding agreement that permitted the College to avoid its obligations thereunder only by establishing proof of impracticality, carries into effect the reasonable intention of the parties, articulated in the preamble of the Statement, that its provisions were adopted to protect the economic security of the faculty members at Bloomsburg State. That holding also comports with the determination of the Pennsylvania Supreme Court that in the area of contract enforceability the maxim “ ‘id certum est quod certum reddi potest ’ (that is certain which can be made certain)” should be applied. Portnoy v. Brown, 430 Pa. 401, 243 A.2d 444, 447 (1968). The defendants also argue that the College had, in fact, determined that it would be impractical to comply with Article 5e in Skehan’s case and that, absent proof that they had abused their discretion in making that determination, the district court should have respected their decision. They also defend the merits of their decision, arguing that it would have been impractical to afford Skehan an Article 5e hearing when he requested it on September 21,1970, because he was, at that time, embroiled in the scheduling dispute with the College administration that ultimately led to his dismissal. Findings of fact made by the district court, and supported by the testimony of President Nossen, belie the claim that the appropriate officers of the College made a reasoned determination that emergency conditions caused by Skehan’s refusal to comply with administrative directives concerning the scheduling of classes compelled them not to comply with Article 5e in spite of Skehan’s request that they do so. Rather, President Nossen did not respond to Skehan’s invocation of Article 5e because he assumed, without reading the Statement, that the College’s Committee on Professional Affairs was the appropriate body to initiate such proceedings. 431 F.Supp. at 1385. The district court also found that no evidence had been presented by the defendants in support of their contention that, given the scheduling dispute, it had been impractical for the College to implement the procedures of Article 5e in Skehan’s case. Id. 1388. Thus, we find no error in the district court’s determination that the defendants did not establish that proof of impracticality needed to avoid their contractual obligation to provide Skehan an Article 5e hearing. Alternatively, the defendants argue that they were discharged from performing their contractual obligations to Skehan because he had materially breached his contract with the College by his actions during the scheduling dispute. This Court has already affirmed a prior holding of the district court that Skehan’s participation in that dispute was a valid substantive ground for his dismissal, at least as a matter of constitutional law. 501 F.2d at 39. Skehan’s dismissal is not at issue here, however; the claim now before this Court is that he was contractually entitled to a hearing into the reasons for his earlier nonrenewal. He requested such a hearing on September 21,1970, which was found by the district court to be a reasonable time to initiate a complaint concerning his nonrenewal given that he was not formally notified of the Board’s nonrenewal decision until May 19,1970, and that the academic year ended on May 24 of that year. (The defendants do not challenge before this Court the reasonableness of the timing of Skehan’s invocation of Article 5e.) Dr. Nossen did not deem it necessary to relieve Skehan of his classroom responsibilities because of his actions during the scheduling dispute until October 9,1970. His preliminary decision to completely terminate the College’s contractual relationship with Skehan was made on October 19, 1970, and affirmed by the College’s Board of Directors on October 23. Thus, the record establishes that the defendants did not decide that Skehan’s actions justified their termination of the College’s contractual obligations to him until some four weeks after he had requested an Article 5e hearing. Under such circumstances we cannot agree that the defendants were discharged from their contractual obligations with respect to Skehan’s challenge to his nonrenewal at any time prior to the date on which the College itself decided to treat his contract as terminated. During the interval between September 21 and October 19,1970, Dr. Nossen made no attempt to set into motion the procedures of Article 5e. We agree with the holding of the district court that the College was not discharged from its obligation to do so by Skehan’s failure to obey administrative directives during the scheduling dispute. We feel supported in this ruling by the observation of the district court that the very purpose of Article 5e would be defeated if the College were permitted to deny a faculty member a hearing on the causes of his nonrenewal whenever it asserted that his failure to perform his obligations to the College discharged the College’s obligation to comply with Article 5e. 431 F.Supp. at 1388. Finally, the defendants contend that it was error for the district court to hold that Skehan’s letter of September 21, 1970, served as a proper invocation of Article 5e. They argue that the plain language of 5e and its context within the Statement of Policy supports their position that its proceedings were to be initiated by a letter to the College’s Committee on Professional Affairs. The district court disagreed, finding the language of 5e to be ambiguous on the appropriate method of initiating its procedures, and holding that, although Skehan should have submitted a copy of his letter to the Committee, his failure to do so did not excuse the College’s failure to act upon his request for a hearing. 431 F.Supp. at 1389. We believe that the district court’s decision was amply supported by the terms of Article 5e and Skehan’s letter. Article 5e provided that the President of the College was required to explain to a nontenured faculty member the basis of a nonrenewal decision if that faculty member alleged an infringement of academic freedom. It also provided that such an allegation “shall be given preliminary consideration by the Committee on Professional Affairs . . . .” See note 1 supra. In his letter to Dr. Nossen Skehan stated: “I hereby invoke article 5e . . . affirming that the decision not to re-appoint me has been caused by considerations violative of academic freedom.” There was testimony given at the preliminary injunction hearing by a former dean of the College that upon receipt of Skehan’s letter it would have been the President’s responsibility to refer the matter to the Committee on Professional Affairs. Thus, there is evidence to support the district court’s implicit holding that, given the ambiguity in the language of Article 5e, Skehan’s pointed invocation of its procedures by letter to the President of the College was an appropriate means to initiate those procedures. The district court held that Skehan had a property interest in the procedures of Article 5e and that the failure of the College to initiate those procedures upon his request violated the due process clause of the fourteenth amendment. The court’s conclusions are consistent with applicable Pennsylvania law and with the purpose of the Statement of Policy to provide a procedural structure to the College’s employment relationship with its faculty. The district court’s finding that the College breached its contractual obligations in Skehan’s case, and hence violated procedural due process, is amply supported by the record. Thus, we affirm that aspect of the district court’s judgment and proceed to a consideration of whether the relief awarded Skehan by the district court was appropriate. III. RELIEF A. The Present Posture of this Case In its en banc opinion this Court decided that any award of back pay to which Skehan was otherwise entitled from the College itself was barred by the eleventh amendment. This holding was based on the decision of the Pennsylvania Commonwealth Court in Brungard v. Hartman, 12 Pa. Cmwlth. 477, 315 A.2d 913 (1974), that state colleges are agencies for which Pennsylvania claims sovereign immunity. The College’s sovereign immunity status under state law was deemed by this Court to be dispositive of the eleventh amendment immunity issue as well. 538 F.2d at 62. This Court did direct the district court to consider an award of back pay against the individual defendants in this case; the availability of such an award would depend upon each defendant’s ability to establish that he acted in good faith and without malice under the official immunity doctrine. The period for which back pay could be awarded was to depend upon the district court’s findings as to Skehan’s constitutional challenges to his nonrenewal. Thus, this Court directed that “[i]f Skehan’s only contract right expired by its terms at the end of the 1970-71 academic year, and there was no first amendment violation, a back pay award . . . covering the 1970-71 period, must be considered.” ’ Id. 63. On the other hand, “[i]f either the article 5(e) claim or the first amendment claim should be decided in Skehan’s favor, the court should consider the award of back pay to date against the individual defendants, and also prospective reinstatement ... at least until appropriate college termination procedures have taken place.” Id. We also directed that an award of attorney’s fees be considered against the individual defendants for bad faith, vexatious, wanton or oppressive conduct either prior to or during the course of this litigation, and against the College for such conduct during this litigation. Subsequent to our en banc opinion, Congress enacted the Civil Rights Attorney’s Fees Awards Act of 1976, and in the proceedings on remand Skehan based his fee request on that statutory provision. The district court was not required to consider the amount of back pay to which Skehan was entitled for the violations of his right to procedural due process with respect to either the nonrenewal or the termination decision because Skehan was not successful in the proceedings below in establishing the liability of any defendant for damages arising from those violations. He was also unsuccessful in his effort to recover attorney’s fees because the district court held that sovereign immunity barred a fee recovery from the College, and it exercised its discretion under the Awards Act to deny Skehan an award of fees from the individual defendants. The court did prospectively reinstate Skehan to a suspended with pay status at the College, pending the completion of nonrenewal and termination proceedings. Various aspects of the district court’s award of relief and this Court’s instructions with respect to that award have been raised as grounds of appeal by the parties here. B. Sovereign Immunity In spite of this Court’s holding that Bloomsburg State College is an entity of the Commonwealth of Pennsylvania to which sovereign immunity attaches, Skehan asked the district court to consider his claim for monetary relief against the College. In its opinion on the remedial aspects of this case, filed on July 20, 1977, the district court, deeming itself bound by our earlier holding, refused to entertain Skehan’s argument that this Court had erred. Skehan v. Board of Trustees of Bloomsburg State College, 436 F.Supp. 657, 665 (M.D.Pa.1977). We, too, are bound by the determination of this Court en banc unless intervening decisions of the Supreme Court, acts of Congress, or changes in applicable state law require us to reconsider our prior holding. Although Skehan was unable to present any arguments based on the effects of intervening law on the sovereign immunity issue to the district court, he argued before this Court that the eleventh amendment immunity of the College has been waived both by the effects of a recent decision of the Pennsylvania Supreme Court and by recent decisions of the United States Supreme Court. We shall consider the effects of this intervening decisional law on our earlier holding that the eleventh amendment bars an award of monetary relief against the College in this case. We do so in the light of the Supreme Court’s admonition that “ ‘an appellate court must apply the law in effect at the time it renders its decision.’ ” Bradley v. School Board of the City of Richmond, 416 U.S. 696, 714, 94 S.Ct. 2006, 2017, 40 L.Ed.2d 476 (1974), quoting Thorpe v. Housing Authority of the City of Durham, 393 U.S. 268, 281, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969). 1. Intervening State Law We shall first address Skehan’s argument based on changes in the applicable state law. He contends that the decision of the Pennsylvania Supreme Court in Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 388 A.2d 709 (1978), entered on July 14, 1978, constituted consent by the Commonwealth of Pennsylvania and all its agencies to be sued in federal court. The eleventh amendment has been construed by the Supreme Court not to bar an action in federal court against the state or its officers acting in their official capacities for prospective injunctive relief from unconstitutional state actions. See Edelman v. Jordan, 415 U.S. 651, 664, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Thus, this Court earlier held that the eleventh amendment presented no impediment to Skehan’s request for prospective reinstatement as relief for the constitutional violations he established. 538 F.2d at 63. However, Edelman made it clear that, absent consent to suit by the state, a federal court may not award relief against state officers or agencies that constitutes a compensatory money judgment payable out of the state treasury, even if that relief is labeled as equitable in nature. 415 U.S. at 666, 94 S.Ct. 1347. Skehan does not challenge this Court’s earlier holding that his request for a back pay award from the College is the type of retroactive monetary relief proscribed by Edelman; rather, he contends that the Pennsylvania Supreme Court waived the Commonwealth’s immunity to such an award in the Mayle decision. Although it cannot be gainsaid that a .state may waive its constitutional protection under the eleventh amendment, see Edelman, supra at 673, 94 S.Ct. 1347, events subsequent to the decision in Mayle make it clear that Pennsylvania has not consented to the imposition of the type of monetary relief sought by Skehan in this case. In Mayle a divided Pennsylvania Supreme Court “abrogated” the doctrine of sovereign immunity, whereby the Commonwealth had previously been immune from liability arising from the torts of its agents except where a legislative act authorized recovery. 479 Pa. at 386, 388 A.2d at 709-10. The court held that sovereign immunity in Pennsylvania was a non-constitutional doctrine that had its origins in judicial decisions, and that neither the state constitution nor legislative enactments precluded the court from abolishing the doctrine it had created and overruling all prior inconsistent opinions. Id. at 402-406, 388 A.2d at 718-20. Skehan argues that although the Mayle opinion did not in terms address the applicability of its holding to the Commonwealth’s eleventh amendment immunity from suits for damages in federal court, it should be construed to waive Bloomsburg State’s immunity here because the language of Mayle rejects the sovereign immunity doctrine and its justifications in broad terms, and because the opinion relies in part upon the refusal of the Pennsylvania legislature to ratify the eleventh amendment when it was proposed by Congress in 1794. See 479 Pa. at 390,402, 388 A.2d at 712, 718. The Supreme Court has held that “[i]n deciding whether a State has waived its constitutional protection under the Eleventh Amendment, we will find waiver only where stated ‘by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction.’ ” Edelman, supra at 673, 94 S.Ct. at 1360-61, quoting Murray v. Wilson Distilling Co., 213 U.S. 151, 171, 29 S.Ct. 458, 53 L.Ed. 742 (1909). This rule has been applied to cases in which a state has consented to suit in its own courts by statute; consent to a similar suit in the federal courts has not been inferred absent a clear declaration in the statutory language that the state intended to waive its eleventh amendment immunity as well as its sovereign immunity under state law. See Kennecott Copper Corp. v. State Tax Commission, 327 U.S. 573, 577, 66 S.Ct. 745, 90 L.Ed. 862 (1946); Ford Motor Co. v. Department of Treasury of Indiana, 323 U.S. 459, 465, 65 S.Ct. 347, 89 L.Ed. 389 (1945); Great Northern Life Insurance Co. v. Read, 322 U.S. 47, 54, 64 S.Ct. 873, 88 L.Ed. 1121 (1944). We would face an apparently novel application of this rule were we required to interpret the effect of a state’s abrogation of its state law sovereign immunity by judicial decision on its eleventh amendment immunity from damage actions in federal court. See Greenfield v. Vesella, 457 F.Supp. 316, 319-20 (W.D.Pa.1978) (holding that the decision in Mayle has waived the Commonwealth’s eleventh amendment immunity). Recent action by the Pennsylvania legislature has precluded our need to enter this thicket. On September 28, 1978, the Pennsylvania legislature enacted House Bill No. 2437, Act No. 1978-152, reaffirming and preserving sovereign immunity as a bar to claims brought against the Commonwealth and its agencies, officials, and employees. See 1978 Pa.Legis.Serv. 629-36. Section 2 of that Act amends the Judicial Code, Act of July 9, 1976, P.L. 586, Act No. 142, 42 Pa.C.S.A., by adding new sections 5110 and 5111, limiting the scope of the Commonwealth’s waiver of sovereign immunity to particular types of actions and limiting recovery to p