Mario DIBLASIO, M.D. and Mario Diblasio, M.D., P.C., Plaintiffs-Appellants,
v.
Antonia C. NOVELLO, in her individual and official capacity, Lisa Hampton, in her individual and official capacity, and the New York State Department of Health, Defendants-Appellees.
Docket No. 02-9298.
United States Court of Appeals, Second Circuit.
Argued: May 2, 2003.
Decided September 18, 2003.
KEVIN J. HARRINGTON, Harrington, Ocko & Monk, LLP, White Plains, NY, for Plaintiffs-Appellants.
JAMES M. HERSHLER, Assistant Attorney General (Eliot Spitzer, Attorney General of the State of New York, Deon J. Nossel, Assistant Solicitor General, on the brief) for Defendants-Appellees.
Before: WALKER, Chief Judge, MINER and LEVAL, Circuit Judges.
JOHN M. WALKER, JR., Chief Judge.
Plaintiffs-Appellants Mario DiBlasio, M.D. and Mario DiBlasio, M.D., P.C. (collectively, "DiBlasio") appeal from a judgment entered by the United States District Court for the Southern District of New York (William H. Pauley, III, District Judge), dismissing on the pleadings various substantive and procedural due process claims brought against defendants Antonia C. Novello ("Novello") and Lisa Hampton ("Hampton") in their individual capacities.1 The district court concluded that both defendants were shielded from DiBlasio's substantive due process claims by absolute immunity and that DiBlasio had failed to state a claim for a "stigma plus" procedural due process violation. We find that DiBlasio's substantive due process claims are not barred by absolute immunity and that the district court erred in dismissing the "stigma plus" claims. Accordingly, we vacate the district court's judgment and remand for further proceedings.
BACKGROUND
In 1998, DiBlasio, a licensed radiologist, was hired by Radiologist Steven Bier, M.D., P.C. ("Bier"). Bier contracted with the Bronx Healthy Women Partnership to provide breast cancer screening services for its patients, who were largely underinsured women. DiBlasio worked as a "batch reader" of mammography films, meaning that he provided clinical interpretations of mammograms and had little or no contact with patients.
In March 2000, the New York State Department of Health ("N.Y. D.O.H." or "the department") launched an investigation of Bier's billing practices. In connection with that investigation, the department reviewed Bier's breast cancer detection rate. After concluding that Bier's detection rate was sufficiently low to warrant further scrutiny, the State Board for Professional Medical Conduct ("the Board") turned its attention to certain radiologists employed by Bier. On March 23, 2000, the Board assigned defendant Hampton, a department fraud investigator and the Director of the Medical Fraud Unit of the Office of Medical Professional Conduct ("OMPC"), to investigate DiBlasio's rate of error in detecting cancer. Following her investigation, Hampton recommended that the department temporarily suspend DiBlasio's physician's licence pursuant to the summary suspension procedures in New York Public Health Law § 230.
In the months leading up to DiBlasio's summary suspension, Hampton met with DiBlasio on two occasions. The first meeting, in April 2000, concerned billing irregularities at Bier P.C. The second meeting, and the one with which we are principally concerned, dealt with DiBlasio's own purported medical misconduct. On May 17, 2000, Hampton phoned DiBlasio to schedule the second meeting for either May 19 or May 22. DiBlasio chose May 22. On Saturday, May 20, 2000, DiBlasio received a letter from Hampton stating that he was being investigated for professional misconduct and that the May 22 meeting was related to that investigation. The letter made no mention of DiBlasio's right to be represented by counsel and DiBlasio attended the meeting unrepresented.
Three days later, on May 25, 2000, Novello summarily suspended DiBlasio's medical license pursuant to § 230(12)(a) and, through the Board, issued a Statement of Charges, specifying four instances of alleged professional misconduct. On May 31, 2000, Novello issued a press release and posted a statement on the N.Y. D.O.H. website, announcing DiBlasio's suspension and making assertions regarding DiBlasio's incompetence as a radiologist that DiBlasio now alleges were false and defamatory. A month later, on June 30, 2000, the department issued a second press release and a report claiming that DiBlasio's incompetence may have risen to the level of "criminality" and may have resulted in patient deaths.
On July 26, 2000, two months after DiBlasio's summary suspension from medical practice, a hearing committee of the OMPC began to evaluate whether DiBlasio's summary suspension should be continued pending the final resolution of the misconduct charges. Six months later, on December 18, 2000, the Committee announced its finding that no basis existed for the continued complete suspension of DiBlasio's medical license. The Committee suggested that, with the exception of mammography, he be permitted to practice radiology with supervision. Pursuant to her authority under § 230(12)(a), Novello rejected the hearing committee's recommendation and ordered the continuation of the complete suspension of DiBlasio's license.
On January 10, 2001, DiBlasio initiated Article 78 proceedings in state court. He claimed that Novello's disregard of the hearing committee's December 18, 2000 recommendation was arbitrary and capricious and sought an injunction barring Novello from enforcing the complete summary suspension of his physician's license. On January 25, 2001, the state court rejected DiBlasio's claim and denied his request for an injunction. However, on the following day, January 26, 2001, the hearing committee determined that the four misconduct charges against DiBlasio were unfounded and ordered the case dismissed pursuant to its authority under § 230(10).
DiBlasio brought this lawsuit in the Southern District of New York on May 25, 2001. He alleged substantive due process claims based on purported misconduct during the investigation and summary suspension proceedings, a procedural due process "stigma plus" claim based on Novello's allegedly defamatory statements, and various violations of New York State law.
On September 30, 2002, the district court dismissed all of DiBlasio's claims. The district court held that all claims brought against the N.Y. D.O.H. and Novello and Hampton in their official capacities were barred by the Eleventh Amendment; and that, with the exception of his "stigma plus" claim, DiBlasio's due process claims against Novello and Hampton in their individual capacities were barred by absolute immunity. The district court held that the "stigma plus" claim must be dismissed because Novello's statements were "random and unauthorized," and thus the only process due was a post-deprivation name-clearing hearing, which was satisfied by the hearing committee's final determination regarding his suspension and the availability of an Article 78 proceeding. Having dismissed DiBlasio's federal claims, the district court declined to exercise supplemental jurisdiction over his state claims and dismissed those as well.
DiBlasio filed a timely notice of appeal, challenging only the dismissal of his federal claims against Novello and Hampton in their individual capacities. DiBlasio does not appeal the dismissal of his complaint against the N.Y. D.O.H. or Novello and Hampton in their official capacities.
DISCUSSION
I. Rooker-Feldman
Defendants argue, at the outset, that the Rooker-Feldman doctrine deprived the district court of jurisdiction over DiBlasio's "as applied" due process claims because "the essential allegations" underlying that claim "were actually and necessarily decided in their prior Article 78 proceeding." See Rooker v. Fidelity Trust Co.,
We have observed that the scope of the Rooker-Feldman doctrine is at least as broad as the doctrines of claim and issue preclusion. See Moccio v. N.Y. State Office of Court Admin.,
The only issue decided in DiBlasio's Article 78 proceeding was whether, under the standards applicable to a preliminary injunction, DiBlasio demonstrated that Novello's decision to override the hearing committee's recommendation to modify the summary suspension was "arbitrary and capricious" pursuant to N.Y. C.P.L.R. 7803(3). Thus, although DiBlasio's Article 78 claim was based on many of the same facts underlying his federal constitutional claims, the claims are not comparable. Deciding the federal claims in DiBlasio's favor would not necessarily contradict the Article 78 court's determination that Novello's decision was not "arbitrary and capricious." Accordingly, we conclude the district court correctly held that DiBlasio's due process claims were not barred under Rooker-Feldman.
II. Absolute Immunity
We next consider whether the district court erred in dismissing DiBlasio's substantive due process claim on the basis that Novello and Hampton had absolute immunity from suit. We find that the extension of absolute immunity to Novello and Hampton was improper and, accordingly, vacate the district court's order to the extent that it relied on a finding of absolute immunity and remand for further proceedings.
Courts have recognized two forms of immunity: absolute and qualified. See Buckley v. Fitzsimmons,
Whether the officials here functioned in a judicial or prosecutorial capacity requires us to briefly review the operation of New York Public Health Law § 230(10) and § 230(12)(a). Section 230 creates the OMPC, governs disciplinary proceedings concerning physicians suspected of misconduct, and establishes the conditions under which physicians' licenses can be suspended temporarily or permanently. See N.Y. Pub. Health Law § 230(10) & (12). Section 230 also governs the procedures the department must follow if it summarily suspends a physician's license prior to conducting a full investigation and hearing. See § 230(12)(a).
Section 230(12)(a) authorizes the commissioner of the N.Y. D.O.H. to summarily suspend a license if, "after an investigation and a recommendation by [an investigative committee of the Board], based upon a determination that a licensee is causing, engaging in or maintaining a condition or activity which in the commissioner's opinion constitutes an imminent danger ... and that it therefore appears to be prejudicial... to delay action until an opportunity for a hearing can be provided." § 230(12)(a). Before summarily suspending a physician's license, the Board must also conduct an interview of the physician. See § 230(10)(a)(iii). After a summary order issues, the Board, through a hearing committee, must commence hearing proceedings within ten days, "provided ... that the hearing shall be completed within ninety days," § 230(12)(a), and in these proceedings the committee must "first determine whether by a preponderance of the evidence, the licencee is ... engaging in a ... activity which constitutes an imminent danger to the health of the people," id. The commissioner has authority to adopt the hearing committee's recommendation or to leave the summary order in effect pending final resolution of the case. See § 230(12)(a). Section 230(12)(a) specifies that summary orders "shall be public upon issuance." § 230(12)(a).
In determining whether officials acting pursuant to § 230 should be granted absolute immunity we consider whether § 230's procedures governing summary suspension of physicians' licenses share enough of the "characteristics of the judicial process," and whether the officials themselves were functioning in a manner sufficiently analogous to a judge or prosecutor. See Butz,
(a) the need to assure that the individual can perform his functions without harassment or intimidation; (b) the presence of safeguards that reduce the need for private damages actions as a means of controlling unconstitutional conduct; (c) insulation from political influence; (d) the importance of precedent; (e) the adversary nature of the process; and (f) the correctability of error on appeal.
Cleavinger,
In this case, two Butz factors weigh in favor of absolute immunity. With respect to whether the commissioner is insulated from political influence, DiBlasio contends that the commissioner of health "serves at the will of the Governor," and hence is subject to the fluctuations of political forces. Were this the case, we agree that it would be improper to characterize the commissioner as insulated from political influence. However, DiBlasio has provided no evidence that the commissioner is, in fact, subject to at will removal, and New York law is not clear on this point. Compare N.Y. Pub. Health Law § 204(1) ("[t]he commissioner shall be appointed by the governor, by and with the advice and consent of the senate and shall hold office until the end of the term [of that governor]...") with N.Y. Const., art. 5, § 4 (department heads "shall be appointed by the governor by and with the advice and consent of the senate and may be removed by the governor, in a manner prescribed by law"). For purposes of this appeal, we will assume that the commissioner is not removable at will and that such insulation from political influence weighs in favor of a grant of absolute immunity under Butz. Additionally, we do not doubt that suspension of a physician's license pursuant to § 230's summary procedures is likely to stimulate "harassment or intimidation" in the form of a litigious reaction from the disappointed physician, as evidenced by this lawsuit. Although these considerations are important, assessment of the remaining Butz factors convinces us that summary suspension pursuant to § 230 lacks sufficient similarity to the judicial process to warrant absolute immunity from suit for involved officials.
First, we find that § 230 inadequately protects physicians from wrongful deprivation of their professional licenses, the second Butz factor. Defendants emphasize those aspects of § 230 that serve to limit the N.Y. D.O.H.'s discretion in summary proceedings. For example, prior to summarily suspending a physician's license, the hearing committee must investigate the allegations of misconduct and make a recommendation regarding whether charges should be brought. See N.Y. Pub. Health Law § 230(12)(a). Hence, as the district court observed, the party seeking the summary suspension "is not part of the Commissioner's own staff [and its members] are appointed by either the Commissioner or the Board of Regents for terms of three years." In addition, the Board must conduct a pre-suspension interview with the physician, at which the physician may have counsel present and may submit written comments or expert opinion. See id. at § 230(10)(a)(iii). Finally, § 230 requires that the Board commence a hearing within ten days of the summary suspension, thus providing prompt post-deprivation review. See § 230(12)(a).
Although these procedures provide some protection to physicians subjected to summary suspension proceedings, the efficacy of those procedures are seriously diminished by other features of § 230. First, by the terms of § 230, the Board's hearing committee has the power to suggest a course of action only, while the commissioner has the final authority to summarily suspend a physician's license. See § 230(12)(a). Second, although the hearing committee must initiate suspension proceedings, the independence of that body is severely undermined by the commissioner's appointment and removal powers: eighty percent of the Board members and, derivatively, we can assume that approximately eighty percent of those on the hearing committee, are appointed by the commissioner herself, see § 230(1), and can be removed at the commissioner's "pleasure," see id. at § 230(3). Third, the post-deprivation hearing before the Board's hearing committee provides no real check on the commissioner's conduct because, under the statute, and as happened here, the commissioner is free to reject the hearing committee's recommendation that the suspension be lifted. In short, under § 230 the commissioner has virtually unfettered authority to determine whether a physician's license should be summarily suspended pending resolution of misconduct charges — a process that, in this case, took eight months. The absence of meaningful safeguards against arbitrary executive action in a summary suspension proceeding weigh against extending absolute immunity to Novello and Hampton.
Butz also requires us to consider whether a wrongful summary suspension is "correctabl[e] on appeal." Butz,
Finally, we also observe that § 230's procedures for the imposition and review of summary suspensions assign no value to precedent, nor are the procedures adversarial in nature — both of which weigh against absolute immunity under Butz. See
Moreover, we find that, even if the summary process itself shared more characteristics with a judicial proceeding, neither Novello's nor Hampton's role in the summary suspension was sufficiently analogous to that of a judge or prosecutor, respectively, to warrant absolute immunity from suit. Novello should be accorded absolute immunity only if her role in the summary suspension proceeding is "functionally comparable to that of a judge." Butz,
In this case, although the commissioner of the N.Y. D.O.H. has the ultimate authority to summarily suspend a physician's license, her functions otherwise do not resemble that of a judge. Defendants do not allege that the commissioner issued subpoenas in the instant case, or that she regulated the course of any hearings. As importantly, as agency head she appears to wear several hats in the course of a summary proceeding: overseer of the investigation, initiator of charges and summary proceedings, and final arbiter of the decision to impose and sustain the summary suspension of a physician's license. By blending the roles of investigator, prosecutor, and judge, § 230 unduly risks compromising the independence and neutrality of the commissioner's judgment, and abrogating the checking function achieved in the judicial system by separating investigative, prosecutorial, and judicial staffs. Cf. Young,
Similarly, Hampton's role in the summary suspension process lacks sufficient resemblance to that of a prosecutor to warrant absolute immunity. The key to whether a prosecutor should be afforded absolute immunity is the degree to which the specific conduct at issue is "intimately associated with the judicial phase of the criminal process." Imbler,
Defendants argue that the district court properly categorized Hampton's function as "prosecutorial" because DiBlasio's "allegations focused [on Hampton's] function[] in initiating the proceeding and assembling the evidence upon which plaintiffs were suspended." We disagree. Defendants have provided insufficient evidence to support a conclusion that Hampton performed her investigation before the OMPC decided to summarily suspend DiBlasio's license, and thus that her function can be analogized to the role of a prosecutor preparing for a grand jury or a trial. Cf. Buckley,
Moreover, even if Hampton's investigation occurred before the OMPC decided to initiate suspension proceedings, she would not be eligible for prosecutorial immunity because, as discussed above, § 230's summary procedures are not judicial in nature. Prosecutors are granted absolute immunity only for those functions that are "intimately associated with the judicial phase of the criminal process," Imbler,
Finally, Hampton, as an investigator, lacked the authority to initiate charges against a physician, see N.Y. Pub. Health Law § 230(10)(a)(iv) (after an investigation is conducted and after the director of the OMPC obtains the concurrence of a majority of an investigation committee, consults with the executive secretary, and "determines that a hearing is warranted[,] the director shall ... direct counsel to prepare the charges") (emphasis added), and had no authority to trigger summary proceedings, see § 230(12)(a) (commissioner has authority to summarily suspend physician's license "after an investigation and a recommendation by a committee on professional conduct") (emphasis added). Thus, the statutory limitations on Hampton's authority counsel against granting her prosecutorial immunity.
In light of the fact that the summary procedures provided in § 230 are insufficiently similar to a judicial proceeding to warrant absolute immunity, and that neither Novello's nor Hampton's role in the summary suspension was "functionally comparable" to that of a judge or prosecutor, we conclude the district court erred in granting them absolute immunity.
III. Stigma Plus
DiBlasio's complaint alleges that Novello's statements to the press on May 31, 2000 and June 30, 2000 are actionable as a component of a "stigma plus" violation. "Stigma plus" refers to a claim brought for injury to one's reputation (the stigma) coupled with the deprivation of some "tangible interest" or property right (the plus), without adequate process. See Paul v. Davis,
The district court agreed, determining that Novello's allegedly defamatory statements were "random and unauthorized," and hence that only a post-deprivation hearing was required. The court further found that the Article 78 proceeding and the hearing committee's proceedings provided adequate post-deprivation name-clearing hearings. See Hellenic Am. Neighborhood Action Comm. v. City of New York,
Generally, due process requires that a state afford persons "some kind of hearing" prior to depriving them of a liberty or property interest. See Hodel v. Va. Surface Mining & Reclamation Ass'n,
We have determined, however, that the "random and unauthorized" exception to the requirement of a pre-deprivation hearing does not apply where the government actor in question is a high-ranking official with "final authority over significant matters." Burtnieks v. City of New York,
Relying on Dwyer and Burtnieks, DiBlasio argues that the district court erred in finding that the "random and unauthorized" exception applied to Novello's various purportedly defamatory statements. We agree. The commissioner of the N.Y. D.O.H. is a high-level state official with final authority on many department matters, including the content of press releases and her own statements in press conferences. Moreover, pursuant to § 230(12)(a), summary suspensions are public upon issuance. Under such circumstances, it would make little sense to characterize her public statements as "random and unauthorized."
Defendants argue that, to the extent that Novello's statements were false and malicious, she clearly exceeded her authority and, at least to that extent, her statements were random and unauthorized because such statements violated state law. This argument is unpersuasive because defendants misconstrue the meaning of "unauthorized" as that term is used in Parratt and Hudson. In Zinermon, the Supreme Court clarified the meaning of "unauthorized," explaining that where a state "delegate[s] to [the defendants] the power and authority to effect the very deprivation complained of[,] and also delegate[s] to them the concomitant duty to initiate the procedural safeguards set up by state law to guard against unlawful [deprivation]," abuse of that authority is not considered "random and unauthorized" as that phrase is used in Parratt and Hudson. Zinermon,
In the instant case, Novello had the authority to summarily suspend DiBlasio's license, and had the duty as commissioner to ensure that the department followed the prescribed procedures governing summary suspensions. Accordingly, any abuse of that authority that rose to the level of a due process violation cannot be considered "random and unauthorized." The fact that some of her statements were defamatory or otherwise in violation of state law does not, under the circumstances here, render them "unauthorized," as that term is understood in the applicable case law.
To the extent that defendants argue that our holding in Komlosi v. New York State Office of Mental Retardation and Developmental Disabilities supports a contrary view, they are mistaken. See
Finally, defendants argue that, quite aside from whether Novello's statements were random and unauthorized, the post-deprivation procedures available in this case were adequate because of the emergency nature of the situation and the need to inform the public of purported dangers posed by DiBlasio's practice of radiology. We do not take issue with the proposition that, under certain emergency circumstances, a post-deprivation hearing is all that is required to satisfy due process. See, e.g., Hodel,
For the foregoing reasons, we conclude that the district court erred in finding that Novello's conduct was "random and unauthorized," and hence erred in dismissing DiBlasio's claim alleging a "stigma plus" due process violation on that basis.
Because the district court dismissed all of DiBlasio's § 1983 claims, it declined to exercise supplemental jurisdiction over his state law claims. As we have reinstated DiBlasio's § 1983 claims against Novello and Hampton in their individual capacities, we also reinstate DiBlasio's state law claims.
CONCLUSION
For the foregoing reasons, we VACATE the district court's dismissal of DiBlasio's claims against Novello and Hampton in their individual capacities, VACATE the dismissal of DiBlasio's state law claims, and REMAND for further proceedings. Costs to plaintiffs.
Notes:
Notes
DiBlasio also asserted all of his claims against Novello and Hampton in their official capacities and against the State of New York Department of Health. The district court held that all such claims were barred by the Eleventh Amendment and dismissed them pursuant to Fed.R.Civ.P. 12(b)(1). DiBlasio does not appeal that ruling
Although several circuits have found that medical board examiners have judicial immunity from suits brought against them for their conduct in license suspension proceedings,see, e.g., Mishler v. Clift,
Defendants also rely onHellenic,