No. 96-393 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

DOUGLAS GIEBEL, 

Plaintiff and Appellant, 

v. 

MONTANA SYSTEM OF HIGHER EDUCATIONi MSU-NORTHERNi 

JEFFREY BAKER, MONTANA COMMISSIONER OF HIGHER 

EDUCATIONi WILLIAM DAEHLING, CHANCELLOR, MSU-NORTHERNi , " ,,_,>tl' '" - ....... (~ i, .', , '<, • 

STEPHEN SYLVESTER CHAIRMAN, DEPARTMENT OF HUMANITI&$;;,:,;.,;',·-;:,;; '\)('1'<, 

AND SOCIAL STUDIES, MSU-NORTHERNi and JANE ¥..ATHLEEN ~. "-;'J';'~A 

CURRY, ASSISTANT PROFESSOR, MSU-NORTHERN, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Twelfth Judicial District, 

In and for the County of Hill, 

The Honorable John Warner, Judge presiding. 

COUNSEL OF RECORD: 

Filed: 

For Appellant: 

Douglas Giebel, pro se, 

Big Sandy, Montana 

For Respondents: 

LeRoy H. Schramm, Legal Counsel, 

Montana University System, Helena, Montana 

Submitted on Briefs: October 24, 1996 

Decided: December 10, 1996 

CIerI;. 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 

1995 Internal Operating Rules, the following decision shall not be 

cited as precedent and shall be published by its filing as a public 

document with the Clerk of the Supreme Court and by a report of its 

result to State Reporter Publishing Company and West Publishing 

Company. 

On June 13, 1995, Douglas Giebel filed a complaint in the 

District Court for the Twelfth Judicial District in Hill County, in 

which he alleged that he was denied fair consideration for 

employment, was denied an appropriate grievance hearing in 

violation of his rights to due process and equal protection, and 

was injured by reliance on a promise of employment, retaliation, 

blacklisting, malice, defamation, fraud, and a denial of freedom of 

speech. Both Giebel and the University System defendants filed 

motions for summary judgment. The District Court granted the 

defendants' motion. Giebel appeals the District Court's order 

which denied his motion for summary judgment and which granted the 

defendants' motion for summary judgment. 

the District Court. 

We address seven issues on appeal: 

We affirm the order of 

1. Did the District Court err when it concluded that Giebel 

was not deprived of due process by MSU-Northern's employment search 

and hiring process? 

2 
2. Did the District Court err when it concluded that Giebel 

was not denied equal protection by MSU-Northern's employment search 

and hiring process? 

3. Did the District Court err when it concluded that Giebel 

could not maintain a cause of action against MSU-Northern for a 

breach of the covenant of good faith and fair dealing? 

4. Did the District Court err when it concluded that Giebel 

had failed to present a primafacie case of fraud? 

5. Did the District Court err when it concluded that Giebel 

had not properly raised a claim of malice? 

6. Did the District Court err when it concluded that it had 

no general right of review of university administrative decisions 

or their administrative processes relating to these decisions? 

7. Did the District Court err when it concluded that Giebel 

had failed to exhaust his administrative remedies? 

FACTUAL BACKGROUND 

On June 15, 1993, Montana State Uni versi ty-Northern 

(MSU-Northern) sent a letter to Douglas Giebel to confirm that he 

had been hired as an assistant professor in the Theater jSpeech 

Communication Division of the Department of Humanities and Social 

Services pursuant to a "one-year temporary professional contract 

for the 1993 school year." The letter made clear that the 

appointment "extends for its fixed duration and carries no 

implication of reappointment." The contract which accompanied the 

letter of appointment indicated the term of Giebel's employment was 

from August I, 1993 to May 31, 1994. On April 5, 1994, near the 

3 
end of Giebel's one-year term of employment, MSU-Northern sent 

Giebel another letter confirming the school's intent to allow 

Giebel's contract to expire. The letter stated: "[YJ our temporary 

appointment. will be terminated as of the end of the 1993-94 

academic year in accordance with the initial terms of your 

appointment." 

In the spring of 1994, the MSU-Northern campus conducted a job 

search to secure a permanent faculty member for the position held 

temporarily by Giebel in the Theater/Speech Communication 

Department. Giebel applied for the permanent position, and was one 

of 100 applicants considered for the job. 

The search committee for the permanent position was chaired by 

Dr. Stephen Sylvester, the head of the Department of Humanities and 

Social Services. Syl vester had become acquainted with Giebel 

during the 1993-1994 academic year. During that time, Sylvester 

was generally satisfied with the Giebel's work performance and 

anticipated that Giebel would have an excellent chance of being 

hired for the permanent position. Sylvester informed Giebel that 

his prospects for being hired were good. 

Between the time the permanent position was advertised in 

March 1994, and the time the search committee finalized its 

recommendation in mid-May, however , Sylvester had changed his 

position and opposed Giebel's candidacy for the job. Sylvester 

made his opposition to Giebel known to other search committee 

members and recommended that Giebel not be granted an interview for 

the position. In an affidavit filed with the District Court after 

4 
the selection process was complete, Sylvester cited several factors 

which led to his opposition of Giebel for the permanent position, 

including Giebel's trip to New York City with the student member of 

the search committee and his presentation of a fictitious award to 

that student during the University's Awards Day convocation; 

Giebel's deteriorating relationship with a tenure-track member of 

the Theater/Speech Communication Department; and the fact that 

Giebel's application for the permanent position was less impressive 

than those submitted by other candidates. 

In mid-May 1994, after learning that he had not been selected 

for the permanent position, Giebel wrote to the Commissioner of 

Higher Education and voiced his objection to the University's 

selection process. In his response, the Commissioner informed 

Giebel that" [b]efore grievances may be submitted directly to the 

Commissioner of Higher Education they must be filed with the 

college chancellor." The Commissioner referred Giebel to the 

Regent's appeals policy. 

On June 10, 1994, Giebel filed a grievance pursuant to the 

campus grievance procedure. Following a hearing before an 

eight-person grievance committee on July 14, 1994, MSU-Northern's 

Chancellor issued a written decision in which he denied Giebel's 

grievance. Nearly four months later, Giebel appealed the 

Chancellor's decision to the Commissioner on Higher Education. The 

Commissioner denied Giebel's appeal on the grounds that it had not 

been timely filed pursuant to Montana University System Policy 

203.5.2, which requires that an appeal be filed "within 30 days of 

5 
the . [campus] decision." Giebel appealed the Commissioner's 

decision to the Board of Regents; however, on May 19, 1995, the 

Regents declined to entertain the appeal. 

On June 13, 1995, Giebel filed two complaints in the Twelfth 

Judicial District Court in which he alleged that he was improperly 

denied fair consideration for employment, was denied an appropriate 

grievance hearing in violation of his rights to due process and 

equal protection, and was injured by reliance on a promise of 

employment, retaliation, blacklisting, malice, defamation, fraud, 

and a denial of freedom of speech. Both Giebel and the University 

System defendants filed motions for summary judgment. The District 

Court concluded that there were no genuine issues of material fact 

and that the University System defendants were entitled to judgment 

as a matter of law. The court therefore granted the University 

System defendant's motion for summary judgment and denied Giebel's 

cross-motion for summary judgment. 

STANDARD OF REVIEW 

In this case, the District Court granted summary judgment to 

MSU-Northern and dismissed each of Giebel's claims. This Court 

reviews a district court's grant of summary judgment pursuant to 

Rule 56, M.R.Civ.P., based on the same criteria applied by the 

district court. StateFarmFire&Cas.Co.v.Powell (1995),274 Mont. 92, 

95, 906 P.2d 198, 200. Rule 56 (c), M.R.Civ.P., provides that 

summary judgment is proper only when "there is no genuine issue as 

to any material fact and . the moving party is entitled to a 

judgment as a matter of law." 

6 
ISSUE 1 

Did the District Court err when it concluded that Giebel was 

not deprived of due process by MSU-Northern's employment search and 

hiring process? 

Giebel maintains that MSU-Northern denied him the right to due 

process as guaranteed by both the Montana and United States 

Constitutions. Both the Fourteenth Amendment to the United States 

Constitution, and Article II, Section 17, of the Montana 

Constitution, prohibit a governmental entity from depriving a 

person of life, liberty, or property without due process of law. 

In this case, Giebel contends that the University deprived him of 

his "liberty right to contract for employment through the search 

process and his right to protection from invidious discriminatory 

actions." Giebel cites BoardofRegentsv. Roth (1972), 408 U.S. 564, to 

support his broad definition of the term "liberty interest." 

In Roth, the United States Supreme Court addressed the issue 

of whether the nonrenewal of a nontenured state teacher's contract 

without a hearing constituted the deprivation of a liberty or 

property interest. In evaluating the teacher's "property interest, " 

the Court stated: 

To have a property interest in a benefit, a person 

clearly must have more than an abstract need or desire 

for it. He must have more than a unilateral expectation 

of it. He must, instead, have a legitimate claim of 

entitlement to it. 

employment 

[T] he respondent's 

at Wisconsin State 

7 

"property" interest 

University-Oshkosh 

in 

was 
created and defined by the terms of his appointment. 

Those terms secured his interest in employment up to June 

30, 1969. But the important fact in this case is that 

they specifically provided that the respondent's 

employment was to terminate on June 30. They did not 

provide for contract renewal absent "sufficient cause." 

Indeed, they made no provision for renewal whatsoever. 

Thus, the 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 

legi timate 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 reauire the University authorities to give him a 

hearing when they declined to renew his contract of 

employment. 

Roth, 408 U.S. at 577-78 (footnote omitted) (emphasis added). The 

Court also declined to find a liberty interest in the nonrenewal of 

the teacher's one-year contract. Specifically, the Court stated: 

"It stretches the concept too far to suggest that a person is 

deprived of 'liberty' when he simply is not rehired in one job but 

remains as free as before to seek another." Roth, 408 U.S. at 575 

(citing Cafeteria Workersv. McElroy (1961), 367 U.S. 886, 895-96). 

Based on the principles of Roffi, the District Court concluded 

that Giebel was not deprived of either a liberty interest or a 

property interest by the expiration of his one-year contract and by 

the Uni versi ty' s decision not to hire him for the permanent 

tenure-track position. See also Lelandv. Heywood (1982), 197 Mont. 491, 

643 P.2d 578. The court noted that, like the teacher in Roth, 

Giebel was hired pursuant to a one-year contract for employment; 

8 
that his employment expired pursuant to the terms of his contract; 

and that that expiration did not provide Giebel with a legitimate 

claim of entitlement which would rise to the level of a protected 

interest. The court further noted that Sylvester's alleged 

assurances of future employment could not form the basis for a 

claim of entitlement because "college administrators in this state 

have no authority to contract with faculty members on terms 

different than those approved by the Board of Regents." Leland, 197 

Mont. at 497, 643 P. 2d at 581. The court therefore held that 

Giebel was not unconstitutionally deprived of life, liberty, or 

property without due process of the law. 

We hold that the District Court correctly concluded that 

Giebel had neither a liberty nor a property interest in continued 

employment with MSU-Northern. We therefore uphold that portion of 

the court's summary judgment order which concluded that Giebel was 

not deprived of due process by MSU-Northern's employment search and 

hiring process. 

ISSUE 2 

Did the District Court err when it concluded that Giebel was 

not denied equal protection by MSU-Northern's employment search and 

hiring process? 

Giebel asserts that he was denied equal protection of the law 

by MSU-Northern's employment search and hiring process. 

Specifically, Giebel maintains that Sylvester's opposition to his 

candidacy placed him at a serious disadvantage during the search 

committee's deliberations. The District Court, however, summarily 

9 
denied Giebel's equal protection claim on the grounds that Giebel 

had neither identified a "class" of individuals who had been 

disadvantaged by the University's search and hiring practices nor 

asserted the deprivation of a fundamental right from those 

practices. 

This Court has previously evaluated an equal protection claim 

from a University System faculty member who claimed a denial of 

equal protection based on the University's failure to grant him 

tenure. Akhtarv. VandeWeter;ng (1982),197 Mont. 205,642 P.2d 149. 

In Akhtar, we stated: 

Appellant claims he was discriminated against in 

that he was treated differently from other tenure 

candidates because a different standard of excellence was 

applied to his tenure evaluation than to others. 

We agree with the Fourth Circuit which found that 

"not every difference in promotion treatment rises to the 

level of constitutional deprivation either under equal 

protection or due process." Clarkv. WhWng (4th Cir. 1979), 

607 F.2d 634, 638. In Clark, an associate professor 

claimed he was denied equal protection because different 

standards were used in evaluating his promotion 

qualifications than were used in passing on promotions of 

other faculty members. 

President Van de Wetering testified that the tenure 

evaluations demanded a weighing and balancing of all the 

areas of consideration for all the candidates. Although 

there was sharp disagreement among appellant's 

colleagues, the final determination was that appellant's 

professional performance did not meet the overall 

professional academic standards needed to grant tenure. 

The District Court concluded the denial of tenure 

was not arbitrary but was an exercise of academic 

judgment. It also found no evidence had been presented 

which indicated the denial resulted from discrimination 

10 
or that the procedures followed were intended to penalize 

a certain class. We agree. 

Akhtar, 197 Mont. at 218-20, 642 P. 2d at 157. 

In this case, as in Akhtar, no evidence was presented which 

indicated that the decision not to hire Giebel "resulted from 

discrimination or that the procedures followed were intended to 

penalize a certain class." First, as the District Court correctly 

noted, Giebel has not asserted that he was a member of a particular 

"class" of individuals which was disadvantaged by the school's 

hiring process. Second, there is no evidence of any discrimination 

in the committee's decision to hire another candidate. There was 

ample evidence presented to the District Court to establish that 

that chosen candidate was better qualified and had a more 

impressive resume than Giebel. 

Therefore, because we hold that Giebel did not demonstrate 

that the search committee's procedures were discriminatory or that 

those procedures were intended to penalize a certain class, we 

affirm that portion of the District Court's summary judgment order 

which concluded that "Giebel's complaint is insufficient for a 

claim of a violation of his equal protection rights." 

ISSUE 3 

Did the District Court err when it concluded that Giebel could 

not maintain a cause of action against MSU-Northern for a breach of 

the covenant of good faith and fair dealing? 

In his amended complaint, Giebel asserted that MSU-Northern's 

search and hiring process failed to "conform to the covenant of 

11 
good faith and fair dealing." Specifically, Giebel maintained that 

the University did not follow its established hiring policies and 

did not act in good faith during the hiring process. The District 

Court, however, dismissed Giebel's claim on the ground that a claim 

of a breach of the covenant of good faith and fair dealing "may 

arise only from a termination of employment." Because the court 

determined that Giebel was merely a job applicant for a permanent 

position with the University, the court concluded that Giebel's 

claim could not form the basis for recovery. 

In this case, Giebel was employed by MSU-Northern pursuant to 

a one-year employment contract and was specifically informed that 

the term of his employment "extends for its fixed duration and 

carries no implication of reappointment." In addition, prior to 

the expiration of his fixed employment contract, Giebel was 

notified of the University's intention to terminate his 

appointment "as of the end of the 1993 - 94 academic year in 

accordance with the initial terms of [his] appointment." Giebel 

does not, however, challenge the University's decision to allow his 

one-year contract to expirej instead, Giebel challenges the 

University's allegedly unfair treatment of him as a job applicant 

for a permanent position. Neither this Court nor the Legislature 

has extended the covenant of good faith and fair dealing to the 

hiring process. 

this case. 

We will not do so on the basis of the facts in 

12 
Therefore, we affirm the District Court's decision to grant 

summary judgment and dismiss Giebel's claim for breach of the 

covenant of good faith and fair dealing. 

ISSUE 4 

Did the District Court err when it concluded that Giebel had 

failed to present a primafacie case of fraud? 

In his original complaint before the District Court, Giebel 

generally alleged that he had been defrauded by Sylvester's 

guarantees of employment. More than five months later, after 

discovery had closed and the University had filed a motion for 

summary judgment, Giebel filed a document entitled, "Motion to 

Accept Amended Complaint II." In that document, Giebel alleged 

with particularity that the search committee had been defrauded by 

a secret ballot which had been employed during the vote on Giebel's 

candidacy. Before the District Court could rule on Giebel's motion 

to amend his complaint, however, Giebel filed a cross-motion for 

summary judgment. Giebel never renewed or briefed his motion and 

the District Court neither ruled on the motion nor accepted that 

document as a part of the record. In an exceptional effort to 

accommodate Giebel, the District Court analyzed Giebel's claim of 

fraud as set forth in both his original complaint and in his 

attempted amendment. The court concluded, however, that (1) Giebel 

could not allege fraud based on any statements by Sylvester of a 

promise of future intent and (2) that Giebel did not have standing 

to allege fraud on behalf of the search committee. The court 

13 
therefore granted summary judgment to MSU-Northern and dismissed 

Giebel's claim of fraud. 

Rule 9(b), M.R.Civ.P., provides that" [i]n all averments of 

fraud . the circumstances constituting fraud. . shall be 

stated with particularity." In his original complaint, Giebel 

alleges in only the most general of terms that he was defrauded by 

Sylvester's promises of future employment. That allegation was 

insufficient to satisfy either Rule 9 (b), M.R.Civ.P., or this 

Court's requirement that a plaintiff must allege the requisite 

elements of fraud. See, e.g., Barrett v. Holland & Hart (1992), 256 Mont. 101, 

106, 845 P.2d 714, 717 i Grenz v. Medical Management Northwest (1991), 250 

Mont. 58, 63, 817 P.2d 1151, 1154. Furthermore, as the District 

Court correctly noted, even if Giebel's claim had been pled with 

the requisite particularity, "[t]he rule is that fraud cannot be 

based on and allegation of a promise of future intent." Braun v. Glade 

Valley School (N.C. Ct. App. 1985), 334 S.E.2d 404, 407. See also Davis v. 

LDS Church (1993), 258 Mont. 286, 2 93, 852 P. 2 d 640, 644 i Marlin v. Drury 

(1951), 124 Mont. 576, 584, 228 P.2d 803, 807. 

We hold that the District Court properly dismissed Giebel's 

original claim of fraud based on the fact that the allegation of 

fraud was not pled with the requisite particularity, and based on 

the general rule that promises of future intent cannot form the 

basis for a claim of fraud. We further hold that the District 

Court properly dismissed Giebel's amended claim of fraud based on 

its conclusion that Giebel did not have standing to allege fraud on 

14 
behalf of the search committee. Such a holding is consistent with 

the settled law that "if a false statement is made to one person to 

induce him to act, the balance of the world has no legal right to 

rely on it." 37 Am. Jur. 2d Fraud and Deceit § 244 p. 324 (1968) 

(citations omitted). We therefore affirm that portion of the 

District Court's order which granted the University summary 

judgment and dismissed Giebel's claim of fraud. 

ISSUE 5 

Did the District Court err when it concluded that Giebel had 

not properly raised a claim of malice? 

In this case, Giebel has alleged "malice" as a separate cause 

of action. However, as the District Court noted in its summary 

judgment order, "malice, by itself does not form the basis for a 

separate cause of action." 

"Malice is basically no more than a state of mind." 

52 Am. Jur. 2d Malice § I, p. 161 (1970) (citation omitted). As 

such, it cannot alone form the basis for a cause of action. The 

existence of malice may either serve to prove a necessary element 

of a particular offense or cause of action, or may serve as a 

factor to enhance damages. See, e.g., First Bank v. Clark (1989), 236 Mont. 

195, 204, 771 P.2d 84, 90 (requiring existence of malice as element 

of malicious prosecution) i Section 27-1-221, MCA (providing that 

punitive damages may be available when actual malice is proven) . 

It is, in fact, well established that" [a] legally permissible act 

does not give rise to an actionable injury simply because it is 

15 
performed with evil intent or an improper motive." 1 Am. Jur. 2d 

Actions § 54, p. 758 ( 19 94) . 

In Montana, "malice" is defined as a "wish to vex, annoy, or 

injure another person or an intent to do a wrongful act, 

established either by proof or presumption of law." Section 

1-1-204(3), MCA. However, whether Sylvester "intended to injure 

Giebel," as Giebel alleges, is irrelevant unless that state of mind 

led to conduct which gives rise to a judicially cognizable claim. 

As the District Court correctly concluded: "Mr . Sylvester's 

actions in not supporting Mr. Giebel as a candidate for the open 

tenure faculty position, and his alleged actions of discouraging 

other members of the search committee from pursuing him as a 

candidate, do not constitute an illegal, impermissible act against 

Mr. Giebel." 

We therefore hold that the District Court's conclusion that 

Giebel's allegation of malice did not state a claim for which he 

was entitled to recover, is correct. We affirm that portion of the 

District Court's summary judgment which dismissed this claim. 

ISSUE 6 

Did the District Court err when it concluded that it had no 

general right of review of university administrative decisions or 

their administrative processes relating to these decisions? 

When Giebel was not hired for the permanent position at 

MSU-Northern, he filed an internal grievance pursuant to the 

University System grievance procedure. Giebel's grievance was 

denied by the MSU-Northern Chancellor on July 25, 1994. Giebel's 

16 
appeal of his grievance was denied by the Commissioner of Higher 

Education on March 3, 1995, on the ground that it was untimely. 

After the Board of Regents declined to entertain Giebel's appeal of 

the Commissioner's decision, Giebel attempted to invoke the 

jurisdiction of the District Court to review the University's 

policies and its grievance and appeals process. In its order 

granting the Uni versi ty' s motion for summary judgment, however, the 

court concluded that there exists no general statutory right of 

review of a University System's administrative actions. 

Ordinarily, administrative decisions are subject to judicial 

review pursuant to the Montana Administrative Procedure Act (MAPA). 

See §§ 2-4-101 through -711, MCA. Pursuant to § 2-4-102 (2) (a) (iii) , 

MCA, however, both the Board of Regents and the Montana University 

System are exempt from MAPA's provisions. Therefore, no independent 

right of judicial review of University administrative decisions 

exists pursuant to MAPA, nor has that right been created by some 

other means. "In Montana, only the legislature may validly provide 

for judicial review of agency decisions." Nye v. Department of Livestock 

(1982), 196 Mont. 222, 226, 639 P.2d 598, 498, 500. As evidenced 

by MAPA, however, the Legislature has chosen not to provide for a 

general review of University System decisions. 

As made clear by the District Court, although no specific 

right of judicial review is provided by MAPA, a plaintiff may still 

challenge a University System administrative decision by alleging 

a judicially-cognizable cause of action. In this case, the court 

17 
merely refused to review the 

the court 

general decision reached 

did, however, address 

when it 

by the 

Giebel's 

reviewed 

University System; 

specific allegations 

Giebel's claims of 

against the University 

denial of due process, denial of equal 

protection, denial of freedom of speech, breach of the covenant of 

good faith and fair dealing, fraud, defamation, intentional 

infliction of emotional distress, and blacklisting. 

We hold that the District Court correctly concluded that it 

had no general right of review of University administrative 

decisions or their administrative processes relating to those 

decisions. We therefore affirm that part of the District Court's 

summary judgment order in which the court declined to review the 

general administrative decision process of the Montana University 

System. 

ISSUE 7 

Did the District Court err when it concluded that Giebel had 

failed to exhaust his administrative remedies? 

In this case, the District Court held that Giebel had "failed 

to follow both common law and state statutory mandates which 

require that he exhaust all administrative remedies before bringing 

a claim in district court." Specifically, the court concluded that 

Giebel had failed to abide by both the Board of Regent's appeals 

policy and the common law doctrine of exhaustion of remedies. The 

court therefore concluded that several of Giebel's claims which 

were informally alleged in Giebel's numerous and lengthy filings 

were barred by the doctrine of exhaustion. 

18 
It is the general policy of this state, as set forth in both 

statute and case law, to require a complainant to exhaust his 

administrative remedies before he may access the judicial system. 

The Administrative Procedure Act, in fact, allows judicial review 

only to "[a] person who has exhausted all administrative remedies 

available within the agency." Section 2-4-702, MCA. Because the 

University System is exempted from the Administrative Procedure 

Act, Giebel's claim is subject to only the common law doctrine of 

exhaustion, which this Court has recognized as "the general 

principle that ordinarily administrative remedies must be exhausted 

before applying for judicial review." State ex rei. Sletten Constr. Co. v. Great 

Falls (1973), 163 Mont. 307, 311, 516 P.2d 1149, 1151. 

In this case, Giebel failed to avail himself of the 

appropriate administrative remedy in a timely fashion. 

Specifically, Giebel failed to comply with Section 203.5.2 of the 

Montana University System Policy, which requires that an appeal of 

a campus grievance decision must be filed within thirty days of 

that decision. Instead, although the Chancellor's decision was 

rendered on July 25, 1994, Giebel did not file his appeal of that 

decision until November 22, 1994. Although Giebel corresponded 

with the Commissioner of Higher Education several times during the 

intervening months, the Commissioner responded with only general 

statements of policy and continuously advised Giebel that his 

appeal would have to conform with Section 203.5.2 of the University 

19 
System Policy. The Commissioner denied Giebel's appeal on March 3, 

1995, on the ground that the appeal was not timely filed. 

It is well established that failure to make a timely appeal of 

an administrative decision may result in a failure to exhaust 

administrative remedies. As one treatise has noted: 

If the petitioner once had an opportunity to pursue a 

then-available administrative remedy within a specified 

time period, but the petitioner did not pursue the remedy 

within the time it was available, the agency action may 

be final by the time the court decides whether to review 

the action. Yet, in that situation, the court still may 

decline to review the final agency action because of the 

petitioner's failure to have exhausted the administrative 

remedies that were previously available. 

Kenneth Culp Davis & Richard J. Pierce, Jr., Administrative Law 

Treatise, vol. II, § 15.1 at 306 (1994) (citation omitted) 

(emphasis added). The Montana University System Policy also 

reflects this proposition. It states: "When a party fails to 

exercise the appeal rights guaranteed by this policy the party 

accepts the lower level decision as final and waives the right to 

contest the matter further." Montana University System Policy, 

Section 203.5.2. 

In this case, the District Court correctly concluded that 

Giebel did not exhaust his administrative remedies because he did 

not file a timely appeal of the Chancellor's decision. On that 

basis, the court correctly concluded that Giebel had waived his 

right to contest several claims which were resolved by the 

University Chancellor and the campus grievance committee. We 

therefore affirm that portion of the District Court's decision 

20 
which concluded that several of Giebel's claims were barred by the 

doctrine of exhaustion and could not be addressed by the court. 

Based on our conclusions that there are no genuine issues of 

material fact presented in this case, and that the Uni versi ty 

System defendants are entitled to judgment as a matter of law, we 

affirm the District Court's order which granted the defendants' 

motion for summary judgment and denied Giebel's cross-motion for 

summary judgment. 

We concur: 

Justices 

21