737 F.2d 547 (6th Cir. 1984), 83-3432, Yashon v. Gregory

Docket Nº:83-3432.
Citation:737 F.2d 547
Party Name:David YASHON, M.D., Plaintiff-Appellant, v. Ian W. GREGORY, M.D., et al., Defendants-Appellees.
Case Date:June 20, 1984
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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737 F.2d 547 (6th Cir. 1984)

David YASHON, M.D., Plaintiff-Appellant,


Ian W. GREGORY, M.D., et al., Defendants-Appellees.

No. 83-3432.

United States Court of Appeals, Sixth Circuit

June 20, 1984

Argued April 2, 1984.

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[Copyrighted Material Omitted]

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Rudolph Janata (argued), Charles C. Warner, Thomas A. Young, Columbus, Ohio, for plaintiff-appellant.

Sandra J. Anderson (argued), John C. Elam, Vorys, Sater, Seymour & Pease, Columbus, Ohio, for defendants-appellees.

Before LIVELY, Chief Judge, CONTIE, Circuit Judge, and WEICK, Senior Circuit Judge.

CONTIE, Circuit Judge.

Dr. David Yashon, the plaintiff, appeals from a district court order granting summary judgment to the defendants in this action brought pursuant to 42 U.S.C. Sec. 1983. This is the second time that this case has come before this court. On the first appeal, the plaintiff challenged a district court judgment holding that the defendants had afforded him due process in deciding not to reappoint him to the attending medical staff at the Ohio State University Hospitals. This court declined to reach the merits because the district court had addressed the due process issue without first determining whether the plaintiff possessed a protectible property or liberty interest. Yashon v. Hunt, 696 F.2d 468 (6th Cir.1983). Finding the record "not free from doubt" on the latter question, id. at 469-70, this court remanded the case in order "to allow the district court to find whether or not Dr. Yashon does have a protected liberty or property interest in his position on the attending medical staff." Id. at 470.

After the remand, the plaintiff requested discovery because the protectible property or liberty interest issue had not been addressed by either party at any stage of the litigation. The district court, however, determined that the remanded issue could be decided on the basis of the original record and held that the plaintiff had no protected property or liberty interest. For the reasons set forth below, we vacate the judgment of the district court and remand for further proceedings.


The background of this case was summarized in our prior opinion and will not be repeated here. It is necessary, however, to state certain procedural facts transpiring after this case was remanded to the district court. On January 14, 1983, the district court entered an order directing "counsel for the parties, on or before February 15, 1983, simultaneously to submit briefs on the issue propounded in the remand." The defendants did not file a motion for summary judgment on the remanded issue either before or after the issuance of this order. Nor did the order to submit briefs expressly indicate that the district court intended to grant summary judgment sua sponte.

The plaintiff filed three motions in response to the order to submit briefs. The first was a motion for an evidentiary hearing and oral argument in which the plaintiff asserted that the original record was inadequate to decide the remanded issue and that presentation of witnesses and exhibits was necessary. In a subsequent memorandum in response to the defendant's motion to quash discovery, the plaintiff reiterated that because the protectible property or liberty interest question had never been an issue in the litigation, the record was inadequate and discovery was needed. The second motion was for discovery of various documents in the defendants' possession that allegedly were relevant to whether the plaintiff possessed a protectible property or liberty interest. The third motion was a conditional motion under Federal Rule of Civil Procedure 56(f) for a continuance pending discovery. In the memorandum accompanying the motion, the plaintiff noted that the defendants had not filed a motion for summary judgment, but if the court were construing the procedural posture of the case as presenting a question for determination under Rule 56, then a continuance was necessary.

The district court did not rule on the plaintiff's motions as the deadline for filing briefs approached. The record is unclear about what next transpired. Plaintiff's

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counsel has submitted an affidavit stating that he called the clerk of courts office on February 11, 1983 and inquired about the status of the motions. When the clerk told counsel that he was unaware of the status of the motions, counsel asked to be relieved of the briefing deadline. The clerk responded that he would attempt to resolve the problem of the February 15th deadline. Counsel was left with the impression that he did not have to file a brief until the court ruled on the motions. No order setting a new briefing schedule was ever entered and counsel did not file a brief.

On the other hand, defendants' counsel has filed an affidavit stating that on February 11, 1983, she received a telephone call from the clerk of courts office notifying her that the briefing deadline had been extended to March 17, 1983 pursuant to the request of plaintiff's counsel. The clerk confirmed this information on March 9. The defendants filed their brief on March 17.

Although the parties apparently agree that the district court vacated the February 15 briefing deadline, the record contains no order extending the deadline or otherwise establishing a new briefing schedule. The district court entered an order on May 18, 1983 granting summary judgment to the defendants on the remanded issue and denying the plaintiff's request for a Rule 56(f) continuance pending discovery. In determining whether the plaintiff had a protectible liberty interest, the court held that the plaintiff had to prove four elements: (1) that the state made a charge, or acted upon information, that stigmatized the plaintiff, (2) that the plaintiff actually was deprived of a tangible benefit, (3) that the plaintiff challenged the truth of the stigmatizing charge or information and (4) that the state publicly and voluntarily disclosed the stigmatizing charge or information or that the state used the charge or information to foreclose other employment opportunities (e.g., placing such information in a personnel file available to other employers). Although the court held that the first three elements had been established, it ruled as to the fourth element:

There is no evidence or allegation before the court ... that the Medical Staff Administrative Committee voluntarily disclosed any of the charges in question to the public. On the contrary, the undisputed evidence shows that Dr. Carey's letter of August 14, 1981 was circulated only to members of the Committee during the hearing; that the Committee deliberated in private and voted on Dr. Yashon's application by secret ballot; and that the Committee declined to articulate any reasons or findings with respect to any specific charges in rendering its decision. In short, there was no public dissemination of stigmatizing allegations or findings by the Committee which would constitute a deprivation of Dr. Yashon's liberty interest ....

Similarly, there is no evidence or allegation that the plaintiff has been foreclosed from other employment opportunities as a result of a stigma or disability imposed by the Committee. (Citations omitted).

Hence, the court found that the plaintiff had not been deprived of a liberty interest.

The court then discussed the protectible property interest issue. It held that under Hospital bylaws effective prior to May 2, 1980, appointments to the attending medical staff were for one year. A physician had to apply for reappointment annually and no physician was entitled to automatic reappointment. Under bylaws effective on May 2, 1980 and thereafter, appointments to the attending medical staff remained limited to one year; there again was no provision for automatic reappointment. The court concluded that the plaintiff had no entitlement to reappointment under either set of bylaws.

The court further held that no genuine issue of material fact was present on two alternative theories concerning a mutually explicit understanding between the plaintiff and the defendants that the former would be reappointed to the attending medical staff. The plaintiff's first theory was that the OSU Hospitals had routinely reappointed the plaintiff and virtually all

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other staff physicians in pro forma fashion over the years. The court rejected this theory on the ground that de facto annual reappointments were insufficient as a matter of law to create a property interest in view of the reappointment rules negating any intention of conferring permanent employment. Moreover, the plaintiff had not produced evidence of an explicit promise of automatic reappointment.

The plaintiff's second theory was that since the College of Medicine regarded an appointment to the attending medical staff as important to maintaining tenured faculty status, and since the plaintiff was a tenured professor of surgery in the College of Medicine, an understanding arose that he would automatically be reappointed to the Hospitals' attending medical staff. In other words, the plaintiff argued that appointments to the Hospitals' attending medical staff and to tenured faculty positions in the College of Medicine had in practice been linked. 1

The court rejected this theory because allowing the plaintiff's status as a tenured professor in the College of Medicine to affect the determination of whether he would be reappointed to the Hospitals' medical staff would prevent the Hospitals from independently evaluating the plaintiff's ability to treat patients in a competent and effective manner. The court further held that the standards for making appointments to the Hospitals' attending medical staff and to the College of Medicine's tenured faculty were entirely separate. Moreover, the...

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