                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         FEB 13 2003
                            FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    J. MICHAEL MCGEE, M.D.,
    an individual and a tenured faculty
    member of the University of
    Oklahoma Health Sciences Center,
    at its Tulsa campus,

                Plaintiff - Appellant,

    v.                                                 No. 02-5005
                                                  D.C. No. 01-CV-343-C
    DAVID L. BOREN, individually and                (N.D. Oklahoma)
    as state actor, policymaker and
    co-conspirator; JOSEPH HARROZ,
    JR., individually and as state actor,
    policymaker and co-conspirator;
    JOSEPH FERRETTI, sued as: Joseph
    Ferretti, Ph.D., individually and as
    state actor, policymaker and
    co-conspirator; OKLAHOMA
    UNIVERSITY BOARD OF
    REGENTS, sued as: the University of
    Oklahoma Board of Regents,
    individually and as state actors,
    policymakers and co-conspirators,

                Defendants - Appellees.


                             ORDER AND JUDGMENT         *




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Before SEYMOUR , PORFILIO , and O’BRIEN , Circuit Judges.



       After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

       J. Michael McGee appeals from the district court’s order granting the

defendants’ motion to dismiss his 42 U.S.C. § 1983 civil rights suit for failure to

state a claim.   See Fed. R. Civ. P. 12(b)(6). We affirm.

       We provide here only a brief summary of the facts alleged at great length in

Dr. McGee’s complaint and throughly summarized in the district court’s order.

Dr. McGee is the former Vice-Chairman of the Department of Surgery at the

University of Oklahoma College of Medicine in Tulsa. He served as the Director

of Research at the Department of Surgery from 1990 through 1999.

       In 1997, the Food and Drug Administration (FDA) approved a study of a

melanoma vaccine at the College of Medicine. Dr. McGee was the

sponsor/investigator of the study. By the middle of December 1999, problems

surfaced with regulatory compliance in the study. These problems eventually

received national media attention.



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      Dr. McGee alleges that as the regulatory investigation unfolded, the

defendants   1
                 took a series of increasingly harsh measures against him. In June

2000, they locked him out of his office and his files and charts were confiscated.

On July 3, 2000, they removed him as vice-chair of the department of surgery,

stripped him of his administrative duties, and decreased his pay. Finally, on

July 19, 2000, he was informed that his tenure was to be abrogated.

      Sometime thereafter, defendants prepared a complaint for abrogation of

Dr. McGee’s tenure. McGee filed an appeal from or response to the complaint, in

accordance with the procedures provided in the Faculty Handbook. On

December 7, 2000, defendants conducted an informal meeting with Dr. McGee.

A formal hearing subsequently was scheduled before the Faculty Appeals Board

(FAB).

      Dr. McGee protested a number of the conditions established for the FAB

hearing. When these protests were not resolved in his favor, he announced his

intention not to attend, and he did not in fact attend the hearing. The University

then abrogated his tenure, citing his failure to attend the FAB hearing.

      Dr. McGee thereafter brought this suit against the defendants, contending

they had denied him procedural and substantive due process in connection with


1
       For simplicity’s sake, we refer here to “the defendants” in the aggregate
rather than discussing each defendant’s asserted responsibility for each alleged
act.

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the abrogation of his tenure and other steps taken against him. The district court

concluded that the defendants were entitled to qualified immunity, because

Dr. McGee’s complaint did not allege the violation of any constitutional right. It

further concluded that Dr. McGee had abandoned his right to assert the denial of

substantive due process and had waived his claim of procedural due process.

       We review a dismissal under Rule 12(b)(6) de novo, applying the same

standards as the district court.   County of Santa Fe v. Pub. Serv. Co.   , 311 F.3d

1031, 1034 (10th Cir. 2002). “[W]e accept as true all well-pleaded factual

allegations in the amended complaint, and those allegations are viewed in the

light most favorable to the nonmoving party.”      Id. (quotations omitted). A Rule

12(b)(6) dismissal should not be granted “unless it appears beyond doubt that the

plaintiff can prove no set of facts in support of his claim which would entitle him

to relief.” Id. at 1034-35 (quotation omitted).

       Dr. McGee presents two main appellate challenges to the district court’s

order of dismissal. He argues, first, that the district court erred in granting the

defendants qualified immunity. Second, he argues that the district court erred in

holding that he waived his right to assert a due process claim by failing to attend

the FAB hearing.

       We have carefully reviewed the district court’s order, the record, the briefs,

and the applicable law in light of the standard of review set forth above. At times


                                            -4-
in its decision, the district court made reference to factual “findings.” These

references appear inappropriate to a Rule 12(b)(6) disposition. Nevertheless,

under our de novo standard of review, we have concluded that dismissal of

Dr. McGee’s claims is appropriate. Dr. McGee relinquished his right to raise his

substantive due process assertions and waived his procedural due process claim

with his decision not to attend the formal FAB hearing. Case law firmly

establishes that failure to attend a deprivation hearing waives any claims a party

might raise about the hearing’s inadequacy. “If there is a process on the books

that appears to provide due process, the plaintiff cannot skip that process and use

the federal courts as a means to get back what he wants.”     Alvin v. Suzuki ,

227 F.3d 107, 116 (3d Cir. 2000).

       Federal courts do not sit to second guess state decisions on the merits
       of a discharge decision, but only to ensure that employees are
       provided due process when the decision is made . . . .[U]nless state
       law fails to afford [Dr. McGee] adequate process, he has no federal
       constitutional claim to begin with.

Pitts v. Bd. of Educ. , 869 F.2d 555, 557 (10th Cir. 1989).   See also Giglio v.

Dunn , 732 F.2d 1133, 1135 (2d Cir. 1984) (holding plaintiff’s failure to avail self

of post-deprivation hearings resulted in waiver of due process claim). By failing

to attend the hearing, Dr. McGee “gave up his right to test the correctness of the

[University’s] decision.”   Pitts , 869 F.2d at 557. This waiver analysis applies




                                            -5-
equally to his challenges to the pre-termination process, and to his liberty interest

and Fifth Amendment claims.

      Therefore, dismissal of Dr. McGee’s claims is entirely appropriate and the

judgment of the district court is AFFIRMED.


                                                     Entered for the Court



                                                     John C. Porfilio
                                                     Circuit Judge




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