Schrier v. University of Co, 03-1275.

Citation427 F.3d 1253
Decision Date31 October 2005
Docket NumberNo. 03-1275.,03-1275.
PartiesRobert W. SCHRIER, M.D., Plaintiff-Appellant, v. UNIVERSITY OF COLORADO, Elizabeth Hoffman, in her official capacity as President of the University of Colorado; Richard D. Krugman, M.D., in his official capacity as Dean of the University of Colorado Health Sciences Center; James H. Shore, M.D., in his official capacity as Chancellor of the University of Colorado Health Sciences Center, Defendants-Appellees. The American Association of University Professors, Amicus Curiae.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

James M. Lyons (Kris J. Kostolansky and Craig R. Welling, with him on the briefs) of Rothgerber Johnson & Lyons LLP, Denver, Colorado, for Plaintiff-Appellant.

Thomas S. Rice of Senter Goldfarb & Rice LLC, Denver, Colorado (David P. Temple, Special Assistant Attorney General, University of Colorado, Denver, Colorado, with him on the briefs), for Defendants-Appellees.

Donna R. Euben and Ann D. Springer of American Association of University Professors, Washington, D.C., and Seth A. Tucker and Edward M. Mathias of Covington & Burling, Washington, D.C. (Professor David M. Rabban, University of Texas School of Law, Austin, Texas, and Professor Robert M. O'Neil of University of Virginia School of Law, Charlottesville, Virginia, Of Counsel with them on the brief) filed a brief for Amicus Curiae.

Before MURPHY, McKAY, and SEYMOUR, Circuit Judges.

SEYMOUR, Circuit Judge.

Dr. Robert W. Schrier, M.D., a Professor of Medicine at the University of Colorado (University), filed a civil action in Colorado state court against the University and three of its employees, President Elizabeth Hoffman, Dean Richard D. Krugman, M.D., and Chancellor James H. Shore, M.D., in their official capacities. Mr. Schrier's complaint alleges that defendants' termination of his appointment as Chair of the University's Department of Medicine in retaliation for his acts of speaking publicly about a matter of public concern violated his constitutional rights pursuant to 42 U.S.C. § 1983 and constituted a breach of contract. Defendants removed the suit to federal court pursuant to 28 U.S.C. § 1441. Subsequent to removal, Dr. Schrier filed a motion for a temporary restraining order and preliminary injunction seeking reinstatement as Chair of the Department of Medicine. The magistrate judge, designated pursuant to 28 U.S.C. § 636(c) by consent of the parties, denied Dr. Schrier's motion and this appeal followed. While we disagree with certain legal conclusions reached by the court below, in the final analysis we nonetheless affirm denial of the injunction.

I

The University of Colorado is comprised of four campuses, one of which is the Health Sciences Center. In turn, the Health Sciences Center embraces five schools, one of which is the School of Medicine. The School of Medicine consists of twenty-four Department Chairs, eight Basic Science Departments, and sixteen Clinical Departments, including the Department of Medicine.

Dr. Schrier, a nephrologist and medical academician, was appointed Professor of Medicine in the School of Medicine on or about July 1, 1972. He received continuous tenure and was subsequently appointed Head of the Renal Division of the Department of Medicine. In 1976, the doctor was appointed Chair of the Department of Medicine, the largest department within the School of Medicine. Department Chairs are responsible for the organization of their department and for implementing policies initiated by the Chancellor and Dean of their respective units. Dr. James Shore became Chancellor of the Health Sciences Center in 1985 and Dr. Richard Krugman has served as Dean of the School of Medicine since 1992.

In the mid-1990s, the University began considering the possibility of moving the Health Sciences Center, then located at Ninth Avenue and Colorado Boulevard in Denver, Colorado, to a campus to be established at the former Fitzsimons Army Medical Center in Aurora, Colorado. In October 1998, the University's Board of Regents approved the move. It is undisputed that the possibility of the transition of the Health Sciences Center from its Ninth Avenue location to Fitzsimons was the subject of extensive debate within the University community.

Dr. Schrier concedes he has been an active participant in that debate since the initial announcement of the move proposal. He also maintains that his concerns about whether and how the Health Sciences Center should be migrated to the Fitzsimons site have evolved over time, as we detail more fully below. As summarized in the magistrate judge's findings of fact, "[b]oth before and after the Regents' approval [of the move], Dr. Schrier expressed to the University community and to others his concerns about the fiscal implications of the move and his view that the move would disrupt integrated programs within the School of Medicine." Aplt.App., vol. I at 187.

On October 10, 2002, upon receipt of approval from Chancellor Shore, Dean Krugman summarily removed Dr. Schrier from his position as Chair of the Department of Medicine. The University maintains that Dean Krugman was not required to consult with faculty before dismissing Dr. Schrier because Department Chairs within the School of Medicine serve at the will of the Dean. Moreover, the University asserts that the termination of a Department Chair appointment does not constitute a disciplinary action and, as a result, has no effect on the terminated Chair's faculty position. Thus, Dr. Schrier retained his tenured appointment as faculty member and full professor of medicine within the University and currently draws a salary identical to the one he received as Chair.

The termination of his chairmanship prompted Dr. Schrier to file suit in the District Court for the City and County of Denver. In his complaint, Dr. Schrier alleges that the University's decision to remove him as Chair of the Department of Medicine in retaliation for publicly speaking out about the Fitzsimons move constitutes a deprivation of his constitutional rights as well as a breach of his employment contract. Defendants removed the action to federal court where the doctor filed a motion for a preliminary injunction seeking reinstatement as Chair pending the resolution of his claims on the merits. Upon conclusion of a three and a half day evidentiary hearing, the court issued an order denying Dr. Schrier's motion.1

On the basis of three separate theories, Dr. Schrier contends the court's order requires reversal. He claims that (1) the application of a heightened standard to his preliminary injunction motion constitutes reversible error; (2) the conclusion that the University's interest in suppressing his speech outweighed his First Amendment rights was contrary to the balancing test established in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); and (3) the court's sua sponte invocation of Eleventh Amendment immunity to bar his breach of contract claim was spurious and should be reversed. We address each argument in turn.

II Preliminary Injunction Standard

We review the decision to deny a motion for a preliminary injunction for abuse of discretion. Heideman v. S. Salt Lake City, 348 F.3d 1182, 1188 (10th Cir.2003); see also Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656, 124 S.Ct. 2783, 2790, 159 L.Ed.2d 690 (2004) ("This Court, like other appellate courts, has always applied the abuse of discretion standard on the review of a preliminary injunction." (quotation omitted)). "The standard for abuse of discretion is high. The state must show that the district court committed an error of law (for example, by applying the wrong legal standard) or committed clear error in its factual findings." Winnebago Tribe of Neb. v. Stovall, 341 F.3d 1202, 1205 (10th Cir.2003) (citing Kiowa Indian Tribe of Okla. v. Hoover, 150 F.3d 1163, 1165 (10th Cir.1998)). We have also described abuse of discretion as "an arbitrary, capricious, whimsical, or manifestly unreasonable judgment." See, e.g., Coletti v. Cudd Pressure Control, 165 F.3d 767, 777 (10th Cir.1999) (quotation omitted).

"As a preliminary injunction is an extraordinary remedy, the right to relief must be clear and unequivocal." SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096, 1098 (10th Cir.1991) (citation omitted); United States ex rel. Citizen Band Potawatomi Indian Tribe of Okla. v. Enter. Mgmt. Consultants, Inc., 883 F.2d 886, 888-89 (10th Cir.1989) ("Because it constitutes drastic relief to be provided with caution, a preliminary injunction should be granted only in cases where the necessity for it is clearly established."). In order to be entitled to entry of a preliminary injunction pursuant to FED.R.CIV.P. 65, the moving party must establish that:

(1) [he or she] will suffer irreparable injury unless the injunction issues; (2) the threatened injury . . . outweighs whatever damage the proposed injunction may cause the opposing party; (3) the injunction, if issued, would not be adverse to the public interest; and (4) there is a substantial likelihood [of success] on the merits.

Heideman, 348 F.3d at 1188 (quoting Resolution Trust Corp. v. Cruce, 972 F.2d 1195, 1198 (10th Cir.1992)); see also Kikumura v. Hurley, 242 F.3d 950, 955 (10th Cir.2001).

Because the limited purpose of a preliminary injunction "is merely to preserve the relative positions of the parties until a trial on the merits can be held," Univ. of Tex. v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981) we have "identified the following three types of specifically disfavored preliminary injunctions . . .: (1) preliminary injunctions that alter the status quo; (2) mandatory preliminary injunctions; and (3) preliminary injunctions that afford the movant all the relief that it could recover at the conclusion of a full trial on the merits." O Centro Espirita Beneficiente Uniao Do Vegetal v....

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