Plaintiff argues that he did not pursue his administrative remedies because he was coerced and intimidated by defendant Anita Hughes, that he felt he had no alternative but to sign a terminal contract (which included a statement that he did not intend to appeal), that defendant Anita Hughes mislead him as to his appeal rights, and that he did not know what rights of appeal he might have. There are cases which hold that when an agency has misrepresented a party's administrative appeal rights and when the unaware party has relied upon this misrepresentation, the agency has waived the defense of exhaustion of administrative remedies. See Ainsworth v. United States, 180 Ct.Cl. 166 (1967); Shubinsky v. United States, 203 Ct. Cl. 199, 488 F.2d 1003 (Ct.Cl.1973). However, there is no evidence in the record that defendant Anita Hughes so misrepresented plaintiff's appeal rights. Furthermore, for us to believe that as a result of defendant Anita Hughes' actions plaintiff misunderstood and thus failed to pursue his appeal rights, as would have to believe that a man who earned a Ph.D., who had previously chaired the Faculty Evaluation Committee, and who had been acquainted with the existence of the appeal procedures since beginning his teaching assignment in 1971, would be unaware of his rights of appeal. We reject plaintiff's contention as completely incredible.
We therefore hold that the plaintiff's failure to initiate, let alone exhaust, his administrative remedies precludes this court from exercising jurisdiction on those counts stemming directly from provisions of plaintiff's one-year employment contract.
Procedural Due Process
Plaintiff's amended complaint alleges that defendant corporation and defendant Anita Hughes individually and in conspiracy with each other deprived him of his rights and property interest without due process of law. We are mindful of cases which hold that the exhaustion of remedies doctrine is not a bar to a court's jurisdiction when certain constitutional challenges have been raised by a plaintiff. In American Federation of Government Employees, et al v. Acree, 155 U.S. App. D.C. 20, 475 F.2d 1289 (D.C.Cir. 1973), this Circuit's Court of Appeals held that the exhaustion of remedies doctrine does not bar a court's jurisdiction when a constitutional challenge is made to a statute and to regulations promulgated under that statute. In Mathews, Secretary of Health, Education & Welfare v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976), the Supreme Court held that the exhaustion of remedies doctrine does not bar a court's jurisdiction when the sole issue was a constitutional challenge to an agency's procedures. We do not hold that either of these cases are directly on point with the instant action. First, plaintiff's challenge is not solely on constitutional grounds. Secondly, although it is not clear from plaintiff's complaint, plaintiff appears to be challenging not established agency procedures themselves, but rather the failure to apply such procedures. Nevertheless, because of this possible ambiguity and because the portion of the record necessary to decide this issue is clear, we have decided to rule on this aspect of the case.
In support of the argument that he has a property interest in maintaining his employment and that he was deprived of this property interest without due process of law, plaintiff relies on Perry, et al v. Sindermann, 408 U.S. 593, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972). The court in Perry held that in an action alleging deprivation of property without due process a college professor who was not officially tenured was entitled to an opportunity to prove the legitimacy of his claim to job tenure when the record indicated that the university had a de facto tenure policy. Perry, however, provides no support for plaintiff in this action.
In Perry, the court said that although plaintiff did not have an explicit tenure provision in his contract, the plaintiff might be able to show from the circumstances of his service and from other relevant facts that he has a legitimate claim of entitlement to job tenure. The court noted that: ". . . there may be an unwritten "common law' in a particular university that certain employees shall have the equivalent of tenure." Id. at 602, 92 S. Ct. at 2700. The court was clearly influenced by the fact that the junior college in question had no explicit tenure system for any faculty members and that the college faculty guide stated that a teacher could "feel that he has permanent tenure as long as his teaching services are satisfactory and as long as he displays a cooperative attitude . . . ." Id. at 600, 92 S. Ct. at 2699. In the instant case, although plaintiff was not tenured, the university clearly had a tenure system. Furthermore, plaintiff can point to no resolution binding on the university at the time plaintiff's cause of action arose which establishes any form of job guarantee or entitlement beyond the terms of plaintiff's one-year contract. Plaintiff properly notes that on July 23, 1979 defendant Board of Trustees implemented a policy which would grant a "reserved interest status" to faculty members with teaching experience similar to plaintiff's. However, it is not necessary for us to decide whether such a status would allow a faculty member to maintain a due process challenge, for no such policy was in existence at the time the instant cause of action arose.
Because there were no university resolutions or policies securing plaintiff's interest in employment at UDC beyond the life of his one-year contract, the case is similar to Board of Regents of State Colleges, et al v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972). In that case, the Supreme Court held that the nonretention of a university teacher on a one-year contract, absent any charges against him or stigma or disability foreclosing other employment, is not tantamount to a deprivation of liberty, and that the terms of respondent's employment accorded him no property interest protected by procedural due process. We quote from the court's opinion because we find it directly applicable here:
. . . (T)he terms of the respondent's appointment secured absolutely no interest in re-employment for the next year. They supported absolutely no possible claim of entitlement to re-employment. Nor, significantly, was there any state statute or University rule or policy that secured his interest in re-employment or that created any legitimate claim to it. In these circumstances, the respondent surely had an abstract concern in being rehired, but he did not have a property interest sufficient to require the University authorities to give him a hearing when they declined to renew his contract of employment.
Id. at 578, 92 S. Ct. at 2710.
We accordingly hold that plaintiff has no property interest in his employment at UDC to which constitutional due process safeguards attach.