United States of America, Plaintiff-appellee, v. Marvin P. Jones, Defendant-appellant, 29 F.3d 1549 (11th Cir. 1994)

Andrew Allen Taylor, St. Marys, GA, for appellant.

Lawrence B. Lee, Asst. U.S. Atty., Savannah, GA, for appellee.

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

Before ANDERSON and BIRCH, Circuit Judges, and ALBRITTON^* , District Judge.

ALBRITTON, District Judge:

Appellant Marvin P. Jones ("Jones") appeals the district court's grant of summary judgment in favor of appellee the United States of America ("the Government"). Summary judgment was based on the finding that Jones, a physician practicing in a rural area following graduation from medical school on a National Health Service Corps ("NHSC") scholarship, was terminated by Westside Urban Health Center ("Westside"), the entity with which Jones was fulfilling his obligation under his scholarship, because of a salary dispute which included his refusal to work unless he received a higher salary. The district court concluded that under the terms of the practice agreement in question the Government had no obligation to reassign Jones to another facility and was entitled to reimbursement of scholarship funds, because Jones' refusal to work constituted a breach of the agreement. In reaching this conclusion, the district court relied upon the findings of fact and references to testimony within a federal court order entered by a different district judge in another lawsuit involving Jones. For the reasons that follow, we vacate the judgment of the district court and remand this case for further proceedings.I. BACKGROUND

In 1980, Jones applied for and received a scholarship/loan from the NHSC scholarship program¹  to assist him in attending medical school at the Medical College of Georgia. From 1980 through 1984, he received funds totaling $33,543.50, which covered tuition, fees, and other costs. After finishing medical school, Jones was granted a three-year deferment of his repayments so that he could pursue a residency in internal medicine.

In 1987, Jones entered into a "Private Practice Assignment Agreement" ("the Agreement") with the United States Department of Health and Human Services. Under the Agreement, he promised to serve as a physician for four years, from July 8, 1987 to July 7, 1991, at Westside in Savannah, Georgia in return for a write-off of his debt to the NHSC. The Agreement provided that in the event provided that in the event Jones failed to satisfy his service requirement, he would have to pay up to three times the amount owed, less credit for partial service performed.

The Agreement provides in relevant part:

If this assignment is terminated by the Entity [Westside] or the NHSC prior to the expiration of the period specified in this agreement, the Individual will be reassigned to another entity for the remaining period of his or her scholarship service obligation unless the termination is due to the Individual's failure to fulfill the employment requirements of the Entity or the requirements of the Private Practice Assignment. Termination by the Individual or termination due to the Individual's failure to fulfill the employment requirements of the Entity or the requirements of the Private Practice Assignment will subject the Individual to the financial repayment provisions described in paragraph 4.

R-1-13-D-1. The formula for calculating the amount owed in the event of breach is set forth at 42 U.S.C. § 254o (b) (1).

In June 1990, Jones was terminated by Westside after serving three years of his obligation. Shortly after his termination, a NHSC official contacted Jones by telephone, and inquired whether he needed assistance in relocating to another site. At this time Jones was engaged in a suit against Westside and referred the official to his attorney.²  In a letter dated December 20, 1990, Jones was notified that he was in default of his obligation to the NHSC.

On September 3, 1992, the Government filed suit in federal district court to recover the outstanding loans made to Jones. Subsequently, it filed a motion for summary judgment arguing that it was not obligated to reassign Jones to another hospital because he was dismissed due to poor attendance and interpersonal difficulties, which constituted a failure to fulfill Westside's "employment requirements." In support of its motion, the Government submitted a certified copy of an order dated June 5, 1991 issued by United States District Judge Anthony A. Alaimo in Jones' action against Westside. Jones v. Westside-Urban Health Center, Inc., 771 F. Supp. 359 (S.D. Ga. 1991) (official reporter citation).³  On May 3, 1993, the district court granted the Government's motion.⁴  This appeal followed.II. STANDARD OF REVIEW

We review de novo the district court's order granting summary judgment. Sturniolo v. Sheaffer, Eaton, Inc., 15 F.3d 1023, 1024 (11th Cir. 1994) (citations omitted); National Broadcasting Co. v. Satellite Broadcast Networks, 940 F.2d 1467, 1469 (11th Cir. 1991).

III. DISCUSSION

A motion for summary judgment may be granted only if no genuine dispute remains as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Summary judgment may be based on any evidence which would be admissible at trial. Cash Inn of Dade, Inc. v. Metropolitan Dade County, 938 F.2d 1239, 1242 (11th Cir. 1991) (citations omitted); Property Management & Investments, Inc. v. Lewis, 752 F.2d 599, 604 n. 4 (11th Cir. 1985) (citation omitted). See Fed. R. Civ. P. 59(e).

In the instant case, the district court determined that Westside terminated Jones because of a salary dispute. In support of this conclusion, the court referred to Jones' own contention that the chief reason for his dismissal was a salary dispute; Westside's letter to Jones citing the salary dispute as the basis for his dismissal; and Judge Alaimo's order. The district court noted that Judge Alaimo's findings alone "strongly indicate that Dr. Jones indeed 'failed to fulfill the employment requirements of Westside.' "

The district court held that Jones' refusal to work, unless he received a higher salary, constituted a breach of the Agreement and therefore the Government was not obligated to reassign him upon termination of the assignment by Westside. It found that under the Agreement Jones was obligated to serve under Westside's standard compensation plan and was not entitled to negotiate his salary.⁵ 

At oral arguments, the Government conceded that the Agreement did not preclude Jones from requesting an increase in salary. Thus, a "salary dispute" in and of itself did not constitute either a breach of the Agreement or violation of Westside's "employment requirements." Accordingly, in order for the district court to find that Jones' termination because of the salary dispute constituted either a breach of the Agreement or termination for violation of Westside's "employment requirements," it would have had to have reviewed evidence establishing the precise nature of the salary dispute, i.e., did Jones merely request a raise or did he refuse to work unless he received a raise. The only evidence before the district court which provided insight into the nature of the salary dispute was Judge Alaimo's order.

Jones contends that the findings of fact and references to witnesses' testimony contained in Judge Alaimo's order were inadmissable and therefore a genuine issue of fact exists as to whether the Government was obligated under the Agreement to reassign him to another health care facility.⁶  In response, the Government argues that the portions of the order in question are admissible under Fed.R.Evid. 201 & 803(8).⁷ A. Fed.R.Evid. 201--Judicial Notice

Fed.R.Evid. 201(b) provides:

A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

In order for a fact to be judicially noticed under Rule 201(b), indisputability is a prerequisite. 21 C. Wright & K. Graham, Federal Practice and Procedure: Evidence Sec. 5104 at 485 (1977 & Supp.1994). Since the effect of taking judicial notice under Rule 201 is to preclude a party from introducing contrary evidence and in effect, directing a verdict against him as to the fact noticed, the fact must be one that only an unreasonable person would insist on disputing. Id. If it were permissible for a court to take judicial notice of a fact merely because it has been found to be true in some other action, the doctrine of collateral estoppel would be superfluous. Id. at 256-57 (footnote omitted). Moreover, to deprive a party of the right to go to the jury with his evidence where the fact was not indisputable would violate the constitutional guarantee of trial by jury. Id. at 485. Accord United States v. Aluminum Co. of America, 148 F.2d 416, 446 (2d Cir. 1945) (L. Hand, J.).