*1 McIntosh, dial actions after the default not egregious 1976); excuse months of ne- Universal Film Exchanges, Inc. v. gleet. generally Universal Film Ex- Lust, See at Brown v. E.W. Bliss changes, Lust, Inc. v. 576-77 Co., (D.Md.1976). 72 F.R.D. (4th Cir.1973) (“[T]he pay, client must at Affirmed. least initially, penalty his counsel’s
neglect.” (citing R.R.)). Link Wabash Summary
III. appeal challenges correct-
ness of the denying 60(b) order a Rule mo- judgment.
tion vacate the default rejected
district court the defendants’ char- lawyers
acterization of their conduct as ex- neglect
cusable 60(b)(1). under Rule Addi-
tionally, 60(b)(6) inap- court ruled Rule plicable. discretion, We find no abuse of RANYARD, Redge Plaintiff-Appellant, judgment. and affirm the The lawyer Royce’s grossly conduct was negligent. He with complete acted disre- REGENTS, BOARD OF gard judicial process. for the if But even Defendant-Appellee. might such conduct otherwise raise Rule 60(b)(6) grounds relief, the defendants No. 82-1781. too, appeal lose this they, because were United Court of Appeals, States
neglectful. Seventh Circuit. closing, we want further as suage fears decision somehow pro Argued Dec. tects lawyer profes of our own —one May Decided expense sion —at of the client. The District recognized of Columbia Circuit Co.,
fear in v. Washington Jackson Monthly 123-24,
569 F.2d at writing:
Public legal system confidence in the is one component pun- enhanced when
ishes litigants misdoings blameless for the component
of another system;
laymen unfamiliar fundamentals law, agency only convey that can impression lawyers protect
erroneous lawyers
other expense everyone
else. agree, but note public impression
may not be so unfavorable as the D.C.
Circuit fears. The a judg- idea that default penalize
ment may let innocent and
guilty lawyer go tempered is free
fairly knowledge common that a ave- viable
nue for truly deserving relief exists for
litigants. professionals, Just as with other for an remedy attorney’s professional
negligence Bury for malpractice. *2 Giffin, Lindner, Winning, Sargent, Mark Cudahy, Judge, concurring filed Circuit Newkirk, Bodewes, Springfield, & Cohen Judge, Cummings, in Chief opinion which 111., defendant-appellee. for joined. CUMMINGS, Judge, CU Chief
Before TIMBERS, DAHY, Judge, Sen Circuit Judge.* ior Circuit Judge. TIMBERS, Circuit formerly professor Redge Ranyard, Il- University, Springfield, Sangamon State linois, judgment entered in appeals from District for the the United Court States Illinois, Acker- J. Waldo District of Central man, Judge, dismissing Ranyard’s District diversity contract (Board). the of Illinois State Ranyard the district court claims granting in the Board’s motion for erred dismissing summary judgment and in the the complaint alleged action. The obliga- its Board had breached contractual first, in tions to him on two occasions— despite in him tenure the denying the President contrary recommendation of and, University; Sangamon second, denying pro- in certain in him governing the contract required by cedures refusing him ten- grant in the course of to ure.1 Ranyard’s contractual
We hold and, merit in the alter- claims are without native, that the Eleventh Amendment bars Board damages against for the actions Regents in federal court. We affirm the Redfield, Ill., action, dismissing but Cheryl Springfield, judgment S. on grounds opinion. forth plaintiff-appellant. set * Timbers, Judge motion dismiss his own Hon. H. filed a to William Senior Circuit Circuit, granted. sitting by designation. appeal. for the Second The motion was action on instant commenced July originally on com- 8, 1979, May alleging the claims that same two in the menced an action Circuit Court had in the state The district he asserted court. Circuit, County, Sangamon Seventh Judicial Il- magistrate. to a After a court referred the case linois, in which he asserted the same breach of hearing, granting magistrate recommended as are contract claims asserted the instant summary judgment favor of action. The circuit court entered a ground on that it had not breached 21, 1977, complaint dismissing on October obligation plaintiff. contractual owed jurisdiction prejudice, for lack of since magistrate’s accepted The district court (1981) implicitly pro- 144 307 Ill.Rev.Stat. ch. recommendation, but also held that the state damage Board vides claims jurisdiction court’s determination only in the can be asserted Illinois exclusively in the Court of vested notice filed a Claims. binding as court res Claims was Illinois, appeal Appellate but Court of judicata. entered From sponsibility.
I. Accordingly, the Board ex- pressly reserves itself to act directly We turn on its own initiative in all matters affect- First, alleges of contract claims.2 he breach ing the Universities. The Regency Board that the breached its con initiative, will act upon its own how- overruling obligation by tractual a recom *3 ever, any in for which poli- matter these by Sangamon mendation the President of require university participation, cies University tén grant State in 1973 to him first the obtaining without advice and that ure. does not claim he ever ” presidents.... recommendations of the guaranteeing received a contract him ten V, Art. that, dispute § ure. Nor he does the fact
according to the Governing Policy of the Governing Policy provides The elsewhere Regency Universities of the of Illi that: nois, in faculty members his with position, recognizes “The Board also faculty that years fewer than prior experience, four nor judgment must be utilized in the areas of mally probationary period would serve a of promotion faculty employment and status years seven before tenure decision would (appointment, reappointment, non-reap- IV, Governing Policy, reached. Art. pointment, promotion, offering the Rather, 5(B). points he to accompany an tenure, dismissal) aspects and those ing the provision Governing Policy same of student life which relate to the educa- any which states that “at during time this areas, however, tional In process. such [probationary] period university the of may budgets, manpower policies limitations or effect, argues fer tenure.” In jurisdiction of other having bodies over Governing Policy part became may impose institutional matters limits employment his contract and faculty on the utilization advice.” tenure, grant despite to him Board’s failure IV, Art. 6.§ “offer”, con University’s breached his University only advisory exercises tract. We believe miscon authority personnel over If we decisions. Regents’ ceives nature of the Board of accept appellant’s contention that Gov- authority. erning Policy incorporated became in his contract, emphasize then we must that the
Despite provision in the Govern virtually retained com- ing Policy that the University may “offer” ' plete tenure, regarding discretion tenure. we think is clear from reading document as a whole that the Board retains overarching view the Board’s au- ultimate control over all faculty appoint thority, phrase the isolated relied on example, ments. For Governing Policy appellant during period time this —“at states elsewhere that: the University may suggests offer tenure” — charged
“The Board of lawby University that the could broach the matter with full for responsibility governing the a faculty member’s tenure with the proper- universities. Although even a faculty ly necessarily delegates authority to probationary period. member’s The term designated agencies, officers and it can- “offer” thus used in the sense of an was not legal divest itself of its ultimate re- early invitation for tenure consideration. action, Ranyard dismissing Regents only district court in the Illinois Court has taken the instant appeal. This was on Claims. not judicata respect merits and is not res tarry judicata 2. We need not over the res the instant commenced ground for dismissal of the action which the federal See Philan court. International interjected by (although district court States, thropic Hospital Foundation v. United magistrate) recommended as an alterna- (Ct.Cl.1980); Madden v. ground tive for dismissal. The Circuit Court Perry, (7th Cir.), Sangamon County had dismissed the action denied, U.S. 931 jurisdiction ground lack of on the damages claims for could be asserted II. Regents, retained The Board authority on tenure decisions. the final ground us alternative brings to the in Ran- dismiss- no merit We hold there is for our affirmance claim. action, first breach of contract yard’s namely, ing the Amendment.4 Ranyard’s second breach of We also find merit. He claim be without contract precludes ac- Eleventh Amendment that, if even he had no contractual asserts federal court citi- brought tions tenure, ap- University procedures, right To determine against state entities. zens Regents, guaran- proved by bar is the Eleventh Amendment whether After de- him a fair tenure decision. teed action, we first diversity applicable status liberations inquire whether the Board must Tenure rec- Decision Committee *4 entity for Elev- can be considered a state granted that not be Ranyard ommended purposes. enth Amendment recom- Ranyard objected to the tenure. generally accepted Although there is no mendation, claiming a letter from a that entity a state determining whether test attacking had un- colleague his character state, Supreme recommen- influenced the Committee’s is an arm of duly 332, to University procedures dation.3 Pursuant 337 Quern v. the Board by which had been sanctioned of inquiry that wheth- indicated the critical claim of de- Regents, Ranyard his appealed public from paid be er a would process University Hear- nial of due to the Among treasury. funds in state Hearing found that ing Board. Board considered are subsidiary factors to be inclusion of the letter in the deliberations can sue entity the state and be whether Tenure violated by the Decision Committee sued, an essential performs gov- whether process rights due and recom- function, whether it enjoys ernmental and allowed a new mended be independence degree political of substantial Com- hearing before Tenure Decision varying concat- Despite from the state.. mittee. factors, most state universities enation of egos held to alter state have been be however, Code, lim University E.g., Ronwin thus immune from suit. Hearing advisory Board to an role: its 1071, (9th 657 1073-74 Shapiro, v. F.2d appeal, Hearing a decision of the “On 1981); of Trustees of Skehan v. Board affirmed, be or re may modified Bloomsburg College, versed the President. In the Presi denied, 444 payed (3rd Cir.1978), due be regard dent’s decision must 488-91 procedures, to the correctness of the (1979); Korgich v. New 832 sanctions, reasonableness of the and the Mines, F.2d Mexico 582 551- School community.” university interests of the Richardson, Cir.1978); Long v. 525 52 (6th Cir.1975); Vaughn 75-79 v. F.2d The President reviewed decision California, Hearing Board reversed it. within President’s discretion. The (E.D.Cal.1981). But F.Supp. Regents supported the President’s College, Junior see Goss San Jacinto action. (5th Cir.1979); Scott Uni Delaware, F.Supp. versity of hold that merit in Ran-
We
there is no
(D.Del.1974).
breach
claim.
yard’s second
of contract
Court,
prompted Ranyard
squarely
it was
in the
3. This letter
to commence a
our
raised
motions
colleague.
magistrate.
summary judgment
libel action
before the
Moreover,
A-44,
discontinued the action.
(E.g.,
49).
it is of funda
A —
any
importance
in the
mental
appellee’s
4. While
Eleventh Amendment de-
entity.
against a
court
state
upon by
fense was not ruled
the district court
party
was not
below and
briefed
dispute
few would
While
steward-
courts have
considered
Board to be an
higher
an
ship
perforins
over
education
es-
arm of the state for
purposes
the Illinois
function,
governmental
sential
Court of Claims Act.
McGuire Board of
successfully
magistrate
argued
to the
below
of Northern
University,
998, 1000-01,
the Illinois
Ill.App.3d
State Board
had
390 N.E.2d
independence
(1979) (construing
sufficient indicia of
to be con-
Williams v. Medical Cen
Commission,
particu-
sidered distinct from the state.
ter
60 Ill.2d
N.E.2d
lar,
(1971) grants
(1975));
Governors,
Ill.Rev.Stat. ch. 144 307
Kane
sued,
315, 318,
the Board
sue and
“to
Ill.App.3d
356 N.E.2d
provided
(1976)
. These
support
proposition
eases
upon
sounding
based
a claim
in tort must be
that the Board of
an
Regents is
arm the
filed
the Court Claims.” That limited
purposes.
for Eleventh Amendment
autonomy,
has
sufficed
re-
question
We turn next
to the
whether
agencies
other state
move
from the Elev-
Illinois has waived its Eleventh Amendment
enth
protection. E.g.,
Amendment’s
Kor-
begin
analysis
immunity.
of waiver
gich, supra, 582 F.2d
Vaughn,
su-
controlling
with the
principle that
de-
“[i]n
pra,
F.Supp.
at 1353.
ciding whether a State has waived its con-
We believe
the inquiry suggested
protection
stitutional
under the Eleventh
Quern
Despite
Amendment,
is broader.
we will find
waiver
sued,
Regents’ capacity to sue and be
cer- where
‘by
stated
most express language
*5
appear persuasive
tain other factors
overwhelming
us in or
such
implications from
determining its
as
status
an arm
the text as
leave no room
[will]
”
state. The Board is appointed by
gov-
other reasonable construction.’
Edelman
at
pleasure.
ernor and serves
Ill.Rev.
415 U.S.
673
Goss,
Stat. ch.
supra,
provided
Cf.
§
has
that actions
sounding
tort
(members
at
n.
F.2d
of that board were must be filed in the Court of Claims. Lim-
large
elected at
community).
iting
Claims,
from the
tort actions to the Court of
Furthermore,
the Board does not control its
has not been construed as a waiv-
budget,
required
own
but is
of sovereign immunity
submit re-
er either
for con-
claims,
quests to the state Board
e.g.,
of Education.
tract
Liebman v.
Board Gov-
ch. 144
188. Compare
Universities,
Ill.Rev.Stat.
Kor-
ernors of
Colleges
and
gich,
supra,
that a against (7th Cir.1976). assessed 759-60 paid it would have to be out the state’s Accordingly, since Illinois has not con- treasury. sented to be sued in the federal court and turn for guidance next to construc- since breach of contract claims tions Illinois state merit, courts lack we judgment affirm the dismiss- Regents. status of the Board of The state ing action.5 My colleagues, separate concurring in their While an Eleventh Amendment issue differs opinion, unnecessary questions subject jurisdic- find it to reach the Elev- from other matter waived, respectfully enth I Amendment issue. disa- tion in that it can be Termi- Parden v. view, my Ry., gree. (1964), In our Court not nal should none- jurisdictional duty theless a reach that issue but indeed we are remains limitation on under example, briefly why. I of a court. For to do so. wish to Treasury, Department Ford Motor Co. v. I appeal, as a result party on Affirmed, grounds set forth but on the us all that we have before we opinion. believe Thus, I the issue.2 to decide should have based on the affirm would CUDAHY, Judge, with whom Circuit on, the summary magistrate’s CUMMINGS, Judge, joins, concur- Chief litigants it to future merits and leave ring. immunity, or lack the Board’s establish claims agree Ranyard’s contractual I thereof. separately write be- merit. I are without should, or that we persuaded cause I am not can, amendment the eleventh conclude damages court for in federal
bars actions of Regents. that have considered
Other courts col- of state immunity
eleventh amendment have stressed
leges and universities appraisal careful of the relation-
need for the state and the institution
ship between case, elev-
being In the instant sued.1 was neither ruled amendment issue
enth briefed
upon by
district court nor
Supreme
Edelman v. Jor
Amendment issue.
Department
dan, supra;
Ford Motor Co.
stated:
Illinois,
express
Treasury, supra;
denies
constitutional limitation
su
“This
McDonald
authority
Patsy
pra,
to the federal courts
to entertain
cf.
v. Board
brought
by private parties
a state
Patsy
Regents’
Regents, supra.
without its consent....
argument that the Court
oral
insistence
Amend
merits of the Eleventh
not reach the
*6
pol-
... The
Amendment declares
Eleventh
to ad
the Court’s need
ment claim obviated
icy
explicit
and sets forth an
limitation
pos
particular
in view the
dress that issue
judicial power
compelling
of such
ture of
case.
issue
force that this Court will consider the
arising
case
under this Amendment
E.g.,
of the Univer
Soni v. Board of Trustees
though urged
the first
in this
even
time
Tennessee,
347,
sity
Court.”
colleges
1975) (cases holding
other state
recently,
More
Edelman v.
universities to be state instrumentalities
U.S.
the Court reiterated
course,
purposes “of
[do]
amendment
eleventh
sufficiently
“the
Amendment defense
present
Each
uni
case.
not control the
jurisdictional
partakes
bar so
of the nature of a
unique governmental
versity
in a
con
exists
need
court.” See
it
raised
trial
text,
on the basis
and each must be considered
Patsy
Regents,
457 U.S.
also
circumstances.”),
peculiar
cert. de
of its own
19(1982).
n.
nied,
49 L.Ed.2d
96 S.Ct.
case,
certainly
no
instant
there
(1976); Vaughn
Universi
defense,
waiver of the Eleventh Amendment
California,
(E.D.
F.Supp.
ty
sug-
my colleagues
and I
not understand
College
1981) (same);
of William
Jacobs
Cal.
gest
laced
otherwise.
record is
(E.D.Va.1980)
Mary,
F.Supp.
Amendment claim in the district
Eleventh
court,
aff’d,
(4th Cir.),
(same),
cert. de