Ray v. Edwards, 83-8098

• Decision Date: 24 February 1984
• Docket Number: No. 83-8098,83-8098
• Citation: 725 F.2d 655
• Parties: David RAY, Plaintiff-Appellee, v. Joseph EDWARDS, Ilhan Ermutlu, the Board of Human Resources, and the Georgia Association of Retarded Citizens, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 655

725 F.2d 655

David RAY, Plaintiff-Appellee, v. Joseph EDWARDS, Ilhan Ermutlu, the Board of Human Resources and the Georgia Association of Retarded Citizens Defendants-Appellants.

No. 83-8098.

United States Court of Appeals Eleventh Circuit.

Feb. 24, 1984.

Vivian Davidson Egan, Asst. Atty. Gen., Atlanta, Ga., for Edwards & ermutlu.

Jonathan A. Zimring, Samuel P. Pierce, Jr., Atlanta, Ga., for Ga. Assoc.

A. Lee Parks, Jr., Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before JOHNSON and HENDERSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.

TUTTLE, Senior Circuit Judge:

This is an interlocutory appeal from the district court's partial denial of appellants' motions for summary judgment. The district court, 557 F.Supp. 664, certified two issues for our review, which in the district court's opinion raised questions over which there is room for substantial disagreement because of their novel nature, and which, if reversed on this appeal, would terminate the present litigation without the necessity for a trial. Unfortunately, in the present state of the case, we cannot reach one issue, but we do decide the other.

I. BACKGROUND

Plaintiff-appellee David Ray is the former Superintendent of the Georgia Retardation Center, a 400-bed facility for the mentally retarded operated by the Georgia Department of Human Resources. Ray held his position as a nontenured employee, at the will of the Commissioner of the Department, from June, 1979 until he was fired in November, 1981. Defendant-appellant Joseph Edwards became Commissioner of the Department of Human Resources in March, 1980, and is responsible for firing Ray. Defendant-appellant Ihlan Ermutlu became Director of the Division of Mental Health and Mental Retardation, which made him Ray's immediate superior, in August, 1981. Defendant-appellant Georgia Association of Retarded Citizens (GARC) is a private, nonprofit corporation organized under Georgia law, which seeks adequate and appropriate services for mentally retarded persons.

Beginning in the spring of 1981, our cast of characters became embroiled in controversy as allegations surfaced that the Georgia Retardation Center ("the Center"), run by Ray, was poorly administered, and, more seriously, that employees at the Center were, with the knowledge of administrators at the Center, physically and mentally abusing the patients housed there. By the fall of 1981 the controversy had become public, and media attention focused on Ray and the Center. On November 9, 1981, GARC delivered a statement to Edwards and Ermutlu, summarizing an independent investigation conducted by GARC and urging the suspension of all administrative personnel at the Center. At the same time, the Georgia Bureau of Investigation (GBI) was conducting its own investigation of the Center, initiated at Edwards's request. Meanwhile, the media storm continued unabated, and three days later, on November 12, 1981, Edwards fired Ray.

Shortly thereafter, Ray filed this action in the United States District Court for the Northern District of Georgia. Ray's complaint contained seven counts. Counts one and two alleged that the defendants had violated 42 U.S.C. Secs. 1983 and 1985 ¹ by conspiring to injure Ray and deny him his property (count one) and liberty (count two) interests while he was a public employee. Count three raised a substantive due process claim against the state defendants. Count four contended that the Board of Human Resources was unconstitutionally constituted. ² Count five raised a pendent defamation claim against GARC, contending that the November 9, 1981 statement libeled Ray, and count six pleaded slander against Edwards and Ermutlu for public statements allegedly made during the course of the controversy over the Center. Finally, count seven raised a pendent state claim for intentional infliction of emotional distress by several defendants.

Appellants moved for summary judgment or dismissal on every count. The district court granted summary judgment on counts one, three, and seven, reserved its ruling on counts five and six, and denied appellants' motions for summary judgment on count two. Apparently feeling some doubt about its ruling on count two, however, the district court certified two issues raised by appellants' motion for summary judgment on that count as appropriate for interlocutory appeal, pursuant to 28 U.S.C. Sec. 1292(b). An administrative panel of our court granted leave to proceed with this interlocutory appeal in an unpublished February 7, 1983 form order.

The first issue, which is explained in more detail in the discussion that follows, is whether a public employee may prove that his liberty interest was violated simply by showing that he was fired at a time of such public controversy that his superiors should have known he would be stigmatized. Although this issue presents delicate public policy problems that balance the need for state agencies to act in an emergency against the need of an employee to protect himself or herself from false and malicious allegations, we cannot reach the issue because it is not appropriate for determination on this interlocutory appeal.

The second issue is whether a private, nonprofit advocacy association enjoys absolute immunity under the first amendment from liability for petitioning the government for redress of grievances and for its assertion of its right to comment on public officials and events. We affirm the district court's ruling that such an association has only the limited immunity afforded by New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).

II. DISCUSSION

A. THE IMPROPRIETY OF INTERLOCUTORY REVIEW OF ISSUE ONE

In count two of his complaint, Ray contended that his termination constituted an unconstitutional infringement of his liberty because the resulting stigma to his reputation has foreclosed his employment opportunities. As the district court acknowledged, such an alleged stigma to reputation in connection with a discharge may state a Sec. 1983 claim for deprivation of a fourteenth amendment liberty interest without due process. Bishop v. Wood, 426 U.S. 341, 348, 96 S.Ct. 2074, 2079, 48 L.Ed.2d 684 (1976); Board of Regents v. Roth, 408 U.S. 564, 572, 92 S.Ct. 2701, 2706, 33 L.Ed.2d 548 (1972). In their motions for summary judgment, the appellants contended, however, that Ray must demonstrate that the stigma was caused by their direct disclosure of false, derogatory information about him, and that Ray had failed to come forward with any admissible evidence of such disclosures. Ray countered that he need only show that appellants knew or should have known that his firing amidst the GBI's ongoing inquiry into the situation at the Center and the media attention focused on the Center would result in his being stigmatized in the public mind. The district court agreed with Ray's position and refused to grant summary judgment on that basis.

Nevertheless, the district court felt that the issue merited interlocutory review by this Court pursuant to 28 U.S.C. Sec. 1292(b). Under that statute, the district court may certify an interlocutory order for appeal if the order (1) involves a controlling question of law, (2) as to which there is substantial ground for difference of opinion, and (3) that an immediate appeal from the order may materially advance the ultimate termination of the litigation. We agree with the district court that the issue, as framed, presents a question of first impression in this circuit, over which there could be substantial ground for difference of opinion. We hold, however, that the district court erred in finding that its ruling amounted to a controlling question of law "in the sense," stated the district court, "that it is determinative of plaintiff's claim in this count of his complaint."

The district court overlooked the possibility that even if the standard put forward by appellants is correct, Ray might still be able to produce evidence showing that appellants were directly responsible for the disclosure of false, derogatory information. Such evidence would respond to the more limited legal theory proposed by appellants, thereby creating a factual issue such that the district court would not need to rule on Ray's broader legal standard.

That Ray might produce such evidence was a real possibility. Ray attempted to rebut appellants' motions for summary judgment on counts five and six, the defamation claims, by submitting an affidavit to which he attached newspaper articles in which some of the appellants allegedly defamed Ray. The district court declared that the newspaper articles contained inadmissible hearsay evidence, but allowed Ray additional time to depose the reporters who wrote the articles, in an attempt to produce admissible evidence. Ray took the necessary depositions and has filed them with the district court, but, to the best of our knowledge, the district court has yet to determine whether the depositions contain admissible testimony. Therefore, appellants' motions for summary judgment on counts five and six remain in limbo. The district court appears to have overlooked the fact that the evidence relevant to counts five and six is also relevant to count two.

We believe that evidence that appellants made false, derogatory statements to reporters about Ray at or near the time he was fired, coupled with appellants' denials of making any such statements, raises a significant factual issue sufficient to defeat summary judgment on count two. Therefore, for us to reach the legal question of whether Ray could prevail if that factual issue is resolved against him would be tantamount to issuing an advisory opinion. That, we cannot do. ³

Even if we could reach the issue posed here by appellants, we would be reluctant to do so. The facts of this case are quite complicated. We find ourselves uncertain, in the...