Katz, Nevin M. v. Georgetown Univ

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 19, 2001 Decided April 17, 2001

No. 00-7265

Nevin M. Katz, M.D.,
Appellant

v.

Georgetown University, et al.,
Appellees

Appeal from the United States District Court
for the District of Columbia
(No. 00cv02412)

Steven K. Hoffman argued the cause for appellant. With
him on the brief was Martha Walfoort.

Thomas S. Williamson, Jr. argued the cause for appellee.
With him on the brief was Anthony T. Pierce. Charles F.
Ruff entered an appearance.

 Before: Edwards, Chief Judge, Williams and Henderson,
Circuit Judges.

Opinion for the Court filed by Chief Judge Edwards.

Edwards, Chief Judge: In this case, Dr. Nevin M. Katz,
appellant, filed a diversity action claiming that he was im-
properly terminated from his tenured position as a Professor
and Surgeon at Georgetown University Medical Center
("GUMC"), because he was denied one-year's advance notice
prior to his dismissal. In pursuit of his claims in District
Court, Dr. Katz sought a preliminary injunction against
Georgetown University (the "University"), pursuant to which
he would be reinstated in his positions at GUMC and retained
with full salary and benefits until June 30, 2001. The motion
for preliminary injunction was denied by the District Court
and Dr. Katz now appeals pursuant to 28 U.S.C. s 1292(a)(1).

In his Complaint for Specific Performance, Preliminary and
Permanent Injunctive Relief and Damages at 18-19, Katz v.
Georgetown University, (No. 00-02412), reprinted in Joint
Appendix ("J.A.") 21-22, Dr. Katz asserts that, under the
terms of the University Faculty Handbook ("Faculty Hand-
book"), he could not be terminated by the University without
at least one-year's notice; he also asserts that he had a right
to continued employment and tenure during the notice period.
The University answers that Dr. Katz was properly terminat-
ed due to financial exigencies, and that he was not entitled to
one-year's notice in advance of dismissal. We find that Dr.
Katz has no reasonable likelihood of success on the merits of
his claim. Accordingly, the District Court was fully justified
in denying the motion for preliminary injunction.

I. Background

Dr. Katz was a full-time faculty member in the Department
of Surgery at GUMC for approximately 20 years. He earned
tenure in 1985 and he held the position of Professor from
1992 until his termination in 2000.

Prior to July 1, 2000, GUMC consisted of the School of
Medicine, the School of Nursing, and a clinical operation that
included the hospital, the Faculty Practice Group, and the

Community Practice Network. GUMC faculty members nor-
mally worked in either "research" or "clinical" practice. Gen-
erally, research faculty were supported by research grants
and clinicians were supported by revenues generated from
clinical patients. As a member of the clinical faculty, Dr.
Katz was primarily engaged in cardiac surgery; however, his
duties also entailed some teaching responsibilities and medi-
cal research. Many of the principal terms of employment for
GUMC faculty members, including Dr. Katz, were contained
in the Faculty Handbook. Katz v. Georgetown Univ., No.
00-02412, Mem. Op. at 2 (D.D.C. Nov. 6, 2000), reprinted in
J.A. 642.

Beginning in 1996, the University was threatened by a
financial crisis attributable in large measure to GUMC. The
situation was serious enough to cause University officials to
explore ways in which to rid itself of significant portions of
GUMC operations. In February 2000, the University Board
of Directors finally entered into an agreement with MedStar
Health, Inc. ("MedStar"), whereby the University transferred
the operation of the hospital and clinical practice to MedStar,
while retaining control of the medical school. Under this
arrangement, the University no longer needed to employ
clinical faculty members who were primarily engaged in
clinical practice. As a result, 330 members of the clinical
faculty at GUMC, including Dr. Katz, were terminated. Id.
at 2-3, reprinted in J.A. 642-43.

On March 29, 2000, Dr. Katz was notified that, due to the
University's "grave economic stringenc[ies]," his tenure with
GUMC would be terminated on June 30, 2000. Letter from
John J. DeGioia to Dr. Nevin M. Katz 1-3 (Mar. 29, 2000),
reprinted in J.A. 78-80. The letter received by Dr. Katz
indicated that former GUMC clinicians would be eligible for
employment with MedStar; Dr. Katz was also advised that he
could pursue a non-tenured, clinical-faculty appointment with
the University. In addition, in recognition of his tenure, Dr.
Katz was offered a lump-sum payment of $750,000 as a
severance buy-out. Id. at 2-3, reprinted in J.A. 79-80.

 In June 2000, MedStar offered Dr. Katz a one year, non-
tenured faculty appointment at a salary of $345,000. Later
that month, the University offered to pay Dr. Katz the
difference between his former salary at the University,
$500,000, and the MedStar-offered salary, on a monthly-
installment basis. Dr. Katz accepted the monthly disburse-
ments, but rejected MedStar's employment offer, as well as
the $750,000 lump-sum buy-out. Katz, No. 00-02412, Mem.
Op. at 3, reprinted in J.A. 643.

On June 15, 2000, Dr. Katz filed a grievance with the
University, contesting his termination. Dr. Katz's principal
claim was that the University had improperly terminated him
without one-year's notice as allegedly required by the Faculty
Handbook. A three-member Grievance Panel upheld Dr.
Katz's grievance claim, and this decision was subsequently
affirmed by the full University Grievance Code Committee.
Id. at 3-4, reprinted in J.A. 643-44. University officials then
appealed the Committee's decision to the University Presi-
dent, Father Leo O'Donovan, who issued a final judgment
dismissing Dr. Katz's grievance. President O'Donovan held
that the University's grievance process was "not designed and
cannot be used as a forum to second-guess or question the
correctness of the Board's decision." Letter from Leo J.
O'Donovan, S.J. to Steven K. Hoffman, Esq. and Charles F.C.
Ruff, Esq. 5 (Aug. 7, 2000), reprinted in J.A. 303. He further
noted that the Board had explained its decision to transfer
the clinical enterprise to MedStar, because the University
" 'faced a state of grave economic stringency' that required 'a
change in the University's institutional aims.' " Id. at 3,
reprinted in J.A. 301. In short, President O'Donovan's ruling
implicitly rejected the suggestion that Dr. Katz's status as a
tenured faculty member protected him from dismissal due to
financial exigencies; the ruling also implicitly rejected the
claim that the University was required to give Dr. Katz one-
year's notice in advance of termination.

On October 6, 2000, Dr. Katz filed his complaint in the
United States District Court for the District of Columbia.
Subsequently, on October 11, 2000, Dr. Katz filed a motion
seeking a preliminary injunction enjoining the University to

reinstate him to his position as a tenured Professor of Sur-
gery for the duration of an asserted contractually mandated
notice period. Dr. Katz also sought back pay for the period
during which the University had refused to employ him
consistent with the alleged notice provision. Motion for
Preliminary Injunction at 1, Katz v. Georgetown Univ., (No.
00-02412), reprinted in J.A. 29. This appeal followed the
District Court's denial of the motion for injunctive relief.

II. Analysis

To prevail in his request for a preliminary injunction, Dr.
Katz must "demonstrate 1) a substantial likelihood of success
on the merits, 2) that [he] would suffer irreparable injury if
the injunction is not granted, 3) that an injunction would not
substantially injure other interested parties, and 4) that the
public interest would be furthered by the injunction." City-
Fed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738,
746 (D.C. Cir. 1995). "We review a district court decision
regarding a preliminary injunction for abuse of discretion,
and any underlying legal conclusions de novo." Id.

In the instant case, we have no doubt that the District
Court got it right in denying the motion for a preliminary
injunction, because on this record there is no merit whatsoev-
er to Dr. Katz's claim that he was entitled to one-year's notice
before being terminated for just cause. See Ross-Simons of
Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 16 (1st Cir.
1996) (in assessing a request for a preliminary injunction,
"[l]ikelihood of success is the main bearing wall of the four-
factor framework"). And "[g]iven the inadequacy of [Dr.
Katz]'s prospects for success on the merits, there may be no
showing of irreparable injury that would entitle him to injunc-
tive relief." Taylor v. Resolution Trust Corp., 56 F.3d 1497,
1507 (D.C. Cir.), amended on other grounds on reh'g, 66 F.3d
1226 (D.C. Cir. 1995). In other words, although we apply a
four-factor test in weighing a request for a preliminary
injunction, such relief never will be granted unless a claimant
can demonstrate "a fair ground for litigation." Washington
Metro. Area Transit Comm'n v. Holiday Tours, Inc., 559

F.2d 841, 844 (D.C. Cir. 1977). Dr. Katz's request for relief
based on a claim that he was entitled to one-year's notice
before being terminated for just cause is hopelessly deficient
in this regard.

Dr. Katz contends that the University's Faculty Handbook
constituted a binding contract of employment to which we
must look to determine his rights as a tenured member of the
faculty. This point is not contested by the University. See
McConnell v. Howard Univ., 818 F.2d 58, 62-63 (D.C. Cir.
1987) ("Faculty Handbook defines the rights and obligations
of the employee and the employer, and is a contract enforce-
able by the courts."). Dr. Katz also asserts that because he
was an "Ordinary Faculty" member as defined in the Faculty
Handbook, the University could not terminate him without at
least one-year's notice. The University disputes this second
point, and with good basis.

The Faculty Handbook states that

[t]hose officers of instruction who by reason of their
qualifications have been appointed to one of the four full-
time tenure-eligible academic ranks (which in ascending
order are Instructor, Assistant Professor, Associate Pro-
fessor, and Professor) constitute the Ordinary Faculty of
the University.

Georgetown University, Faculty Handbook 24 (1999), reprint-
ed in J.A. 115. Dr. Katz maintains that, pursuant to this
provision, it is clear that tenured professors are "Ordinary
Faculty" members and, thus, are covered by the following
notice provision in the Faculty Handbook:

For one regularly appointed to the Ordinary Faculty the
normal term of employment is one year, renewable annu-
ally. The appointment may be extended to seven years.

...

Notice of nonreappointment will be given in writing to
members of the Ordinary Faculty ...

 3. Not later than July 31st in the year prior to termi-
nation after two or more years of service.

Id. at 27, reprinted in J.A. 118.

In the light of the foregoing provisions, Dr. Katz presses an
extended, and largely pointless, argument over the scope of
"Ordinary Faculty" under the Faculty Handbook. The argu-
ment is pointless because it is absolutely clear that the notice
of nonreappointment provision in the Faculty Handbook has
nothing whatsoever to do with the termination of tenured
faculty members for just cause. Indeed, it is clear that
tenured faculty members have the benefit of "continuing
employment," with or without notice, unless they are dis-
missed for "just cause."

The Faculty Handbook states explicitly that

Tenure may be defined as a mutually acknowledged
expectation of continuing employment that is terminable
by the University only for just cause (as for professional
incompetence or moral turpitude of the faculty member,
for grave economic stringency on the part of the Univer-
sity, or for reasons of major changes in institutional
aims).

Id. at 27-28, reprinted in J.A. 118-19. In other words, under
this provision, faculty members with tenure retain their em-
ployment indefinitely, subject only to termination for "just
cause." The previously cited notice of nonreappointment
provisions-which refer to a "normal term of employment [of]
one year, renewable annually" and "appointment[s] [that]
may be extended to seven years"-obviously do not pertain to
tenured faculty members. And, most importantly, Dr. Katz
can point to no provision in the Faculty Handbook that
requires the University to give one-year's notice to a tenured
faculty person who is subject to termination for just cause.

Dr. Katz argues that the Faculty Handbook does not mean
what it says, because some tenured faculty members have in
fact received annual notices of appointment in the past.
Even if this were true, it proves nothing of importance in this
case. Under the terms of the Faculty Handbook, tenure

means "continuing employment" absent termination for "just
cause." This is a typical definition of tenure in the context of
faculty employment in colleges and universities in the United
States. See McConnell, 818 F.2d at 68 n.11 ("[T]enure nor-
mally carries with it an expectation that, absent demonstrable
cause to terminate a faculty member's appointment, a tenured
professor will enjoy the freedom to carry out his or her duties
free from the fear of dismissal."); see generally Richard P.
Chait & Andrew T. Ford, Beyond Traditional tenure: A Guide
to Sound Policies and Practices (1982); Comm'n on Academic
Tenure in Higher Education, Faculty Tenure (1973); Aca-
demic Freedom and Tenure: A Handbook of the American
Association of University Professors (Louis Joughin ed., 2d
ed. 1969). Thus, traditional forms of tenure do not typically
depend upon notice of reappointment. Unsurprisingly, Dr.
Katz points to nothing in the Faculty Handbook or in Univer-
sity practice to suggest otherwise. Indeed, we are quite sure
that tenured members of the Georgetown University faculty
would be stunned were this court to hold that a faculty
member's tenure would be nullified if the University failed to
furnish an annual notice of reappointment.

Dr. Katz also asserts that, whether or not a tenured faculty
member must receive an annual notice of reappointment, the
University always must provide one-year's notice of termi-
nation for just cause. This is a specious argument. It would
make little sense for the University to agree to give one-
year's notice to a faculty person designated for dismissal for
"just cause" (which includes dismissals for "professional in-
competence," "moral turpitude," and "grave economic strin-
gency"). Counsel for appellant conceded as much at oral
argument when he acknowledged that a non-tenured member
of the faculty may be dismissed for just cause without one-
year's notice, i.e., notwithstanding the previously cited "notice
of nonreappointment" provision. If non-tenured faculty per-
sons, who are covered by the "notice of nonreappointment"
provision admittedly can be dismissed for just cause without
one-year's notice, then there is no question that this very
same notice provision cannot limit the right of the University
to terminate tenured faculty members for just cause. In-

deed, as noted above, the Faculty Handbook explicitly states
that tenured faculty members may be terminated for just
cause, including for "grave economic stringency." There is
no one-year notice requirement that limits this provision; and
there is no serious dispute in this case that Dr. Katz was
terminated for any reason other than the alleged dire finan-
cial exigencies faced by the University.

Finally, Dr. Katz suggests that we should defer to the
views of the Grievance Panel and Grievance Code Committee
in interpreting the Faculty Handbook. It is undoubtedly
correct that ambiguous contract terms "must be construed in
keeping with general usage and custom at the University and
within the academic community." McConnell, 818 F.2d at 64;
accord Greene v. Howard Univ., 412 F.2d 1128, 1135 (D.C.
Cir. 1969). Accordingly, we may look to the decisions of the
Grievance Panel and Grievance Code Committee to gain an
understanding of the issues before us, just as we must give
due weight to the decision of the President of the Universi-
ty--the ultimate and final authority in the Grievance Proce-
dure. In the end analysis, however, it is the Faculty Hand-
book that controls. See McConnell, 818 F.3d at 62-63. And
in this case, the Faculty Handbook is unambiguously clear
that a tenured faculty person may be terminated for "just
cause" without one-year's notice.

On this record, we conclude that there is no merit whatso-
ever to Dr. Katz's claim that he was entitled to one-year's
notice before being terminated for just cause. We therefore
affirm the District Court's denial of Dr. Katz's request for
preliminary injunction.

So ordered.