Ulrich v. City and County of San Francisco, 01-15717.
| Citation | 308 F.3d 968 |
| Decision Date | 11 October 2002 |
| Docket Number | No. 01-15717.,01-15717. |
| Parties | John R. ULRICH, Jr., M.D., Plaintiff-Appellant, v. CITY AND COUNTY OF SAN FRANCISCO; Laguna Honda Hospital; Maria V. Rivero, M.D.; Theresa Berta, M.D.; Melissa Welch, M.D., Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Edith J. Benay, San Francisco, CA, for the plaintiff-appellant.
Jonathan U. Lee, Deputy City Attorney, San Francisco, CA, for the defendants-appellees.
Appeal from the United States District Court for the Northern District of California; Thelton E. Henderson, District Judge, Presiding. D.C. No. CV-99-05003-TEH/WDB.
Before HAWKINS and FISHER, Circuit Judges, and MOSKOWITZ, District Judge.*
In 1998, after nearly 10 years of service at Laguna Honda Hospital ("hospital") as a physician, John R. Ulrich, Jr., M.D., began protesting a decision by the San Francisco Department of Health to lay off a class of physicians at the hospital. He was not in the affected classification. Soon after, Dr. Ulrich received notice that he was being investigated by the hospital for professional incompetence. He subsequently resigned in protest over the layoffs, but, upon learning that his resignation might generate an adverse action report to state and federal authorities, attempted to rescind that resignation pending the outcome of the investigation of him. The hospital refused to accept his rescission of resignation and filed an adverse action report against him that leaves the impression that he resigned because he was guilty of the charges brought against him. Dr. Ulrich filed this action alleging retaliation based on speech protected by the First Amendment and denial of due process guaranteed by the Fourteenth Amendment. The district court granted summary judgment for the defendants. We affirm in part and reverse in part, holding that (1) Dr. Ulrich did not have a property right in the position from which he resigned, (2) his protest of layoffs was protected speech under the First Amendment, (3) he set forth sufficient facts demonstrating that allegedly defamatory statements were made in the course of a decision not to rehire him for purposes of establishing a liberty interest protected by the Fourteenth Amendment and (4) further proceedings are warranted on whether Dr. Ulrich stated a sufficient basis for municipal liability.
Dr. Ulrich began working as an attending physician at Laguna Honda Hospital in 1989.1 In August 1998, he learned that, for budgetary reasons, the San Francisco Department of Health had begun to lay off physicians at the hospital. His own higher pay classification was not affected. At an August 17 staff meeting, chaired by the hospital's Medical Director, Dr. Maria Rivero, Dr. Ulrich protested the layoffs, objecting that they were "an injustice to the patients" by diminishing the physician-to-patient ratio "as well as [an injustice to] the physicians" being laid off. His comments sparked a discussion in which other staff members voiced their opposition to the layoffs and suggested that "there ought to be other ways to look at [the budgetary] problem." The following week, various staff members, including Dr. Ulrich, signed a letter of protest to two officials in the San Francisco Department of Health — Dr. Mitchell Katz, director of health, and Dr. Melissa Welch, chief medical officer — questioning the ability of the medical staff to care adequately for its caseload in the face of the layoffs.
On August 28, Dr. Ulrich received a written notice signed by Dr. Rivero and the chief of staff, Dr. Theresa Berta, stating that the hospital's Credentials/Peer Review Committee was opening a formal investigation of him into allegations of professional incompetence.2 Dr. Ulrich scheduled a meeting with the Committee about the allegations for October 22.
On September 30, Dr. Ulrich posted a notice of his resignation, effective November 1, 1998, at the hospital's nurses' station. The notice was addressed to "the Staff, Families, Residents and Medical Director of Laguna Honda Hospital" and stated: "I am deeply disappointed by the recent decision ... to lay off two outstanding and very dedicated physicians from further service when they are near retirement." Dr. Rivero first saw the letter outside the nurses' station. She reported the contents of the letter to Dr. Berta as well as Larry Funk, the hospital's chief executive officer, and Carol Sam, director of human resources, out of "concern" that Dr. Ulrich "may have widely disseminated a letter to a number of individuals, and that some of the things in this letter were potentially negative regarding the firing or the laying off of other individuals." On October 1, Dr. Rivero wrote to Dr. Ulrich accepting his resignation.
Thereafter, Dr. Ulrich's lawyer advised him that his resignation could trigger a reporting requirement to state and federal authorities. The federal Health Care Quality Improvement Act, 42 U.S.C. § 11101, et seq., requires that a health care entity submit an adverse action report to the National Practitioner Data Bank (NPDB) if the entity "accepts the surrender of clinical privileges of a physician ... while the physician is under an investigation by the entity relating to possible incompetence or improper professional conduct." Id. § 11133. Similar reports must be filed with the California Medical Board. Cal. Bus. & Prof.Code § 805. Dr. Ulrich wrote to Dr. Rivero on October 16, rescinding his resignation pending the completion of the Committee's investigation. He also requested that the meeting scheduled for October 22 be postponed so he could prepare for it.
Dr. Rivero discussed Dr. Ulrich's rescission of resignation with Dr. Berta, Larry Funk, Carol Sam and Melissa Welch. On October 26, four days after the scheduled October 22 meeting, Dr. Rivero sent Dr. Ulrich a letter stating that "we" would not honor the revocation of the resignation, and, construing the October 16 letter to be "your announcement that you would not be attending," canceled the October 22 meeting date that had already passed. The letter concluded: "given your resignation effective November 1, 1998, no further peer review action is necessary as you will no longer have privileges or be a member of the Laguna Honda Hospital Staff."
On November 6, Dr. Rivero filed adverse action reports with the California Medical Board and the NPDB stating:
Dr. Ulrich resigned from the Medical Staff, and relinquished his privileges, following receipt of a letter announcing the commencement of a formal investigation into his practice and professional conduct as a member of the Medical Staff and while caring for patients at the Hospital. That investigation was prompted as a result of concerns regarding apparent deficiencies in his practice and conduct spanning the full range of Hospital care, including incomplete diagnoses, inappropriate diagnostic and therapeutic orders, failures to accept appropriate responsibility for the course of patient treatment, and an overall absence of clear, effective management of hospitalizations. Dr. Ulrich submitted his resignation before this investigation had progressed to any findings or recommendations.
Dr. Ulrich filed protests of the report with state and federal authorities. In response, the California Medical Board investigated the merits of the allegations of his professional improprieties and found there "was no departure in the standard of care." The U.S. Department of Health and Human Services did not conduct an investigation of the underlying allegations and refused to void the NPDB report notwithstanding the California Medical Board findings. The hospital, which may void the NPDB report at its request, also refused to do so based on the California Medical Board findings. The NPDB report is available for all hiring hospitals and other medical employers to review. According to the presidents of two medical associations in California, it will be virtually impossible for Dr. Ulrich to obtain employment as a practicing physician at any hospital in the country if the report on file with the NPDB is not voided.
Dr. Ulrich filed this action for damages and injunctive relief in San Francisco Superior Court alleging § 1983 and state law causes of action. The defendants removed the action to federal court based on the federal questions presented. The district court granted summary judgment to the municipal defendants because it found that Dr. Ulrich did not show a custom or policy by the hospital or City violating his constitutional rights. See Monell v. Dep't. of Soc. Servs., 436 U.S. 658, 694-95, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). After receiving supplemental briefing, the court granted summary judgment on Dr. Ulrich's remaining § 1983 claims and remanded the case to the superior court. Dr. Ulrich timely appealed, framing the question before us as whether he set forth sufficient disputed facts to pursue his § 1983 claims based on violations of the First and Fourteenth Amendments.
Dr. Ulrich's § 1983 claims are based on the constitutional admonishment that the government "may not deny a benefit to a person on a basis that infringes his constitutionally protected interests." Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). He contends that the defendants denied him benefits associated with continued employment at the hospital in a manner that violated his interests in property, free expression and liberty of profession protected by the First and Fourteenth Amendments. We address these claims in turn.3
We address first Dr. Ulrich's claim that he was denied adequate notice and a hearing prior to the decision not to accept his rescission of resignation. This claim is based on the Fourteenth Amendment: "No State shall ... deprive any person of life, liberty, or property, without due process of...
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