Levin v. ChildersLevin v. Childers
- Reporters:
- , ,
- Before:
- Lively, Nelson, Hackett (per curiam)
PER CURIAM.
This is an appeal from an order in which a civil rights action was dismissed under
I
The complaint alleged that defendant Childers issued a press release on June 7, 1994, in which he stated that payments due Dr. Levin and two other health care providers under the state Medicaid program were being suspended pending an investigation of billing practices that might be fraudulent or abusive.1 The complaint further alleged that Mr. Childers was required by Kentucky law to provide a hearing within 30 days after receipt of a written request therefor; that such a request was made by letter dated June 15 and redelivered on June 30, 1994; that by letter of August 2, 1994, Dr. Levin requested that the suspension be lifted for failure to conduct the required hearing; and that Mr. Childers notified Dr. Levin on August 24, 1994, that the suspension had been lifted. (It is uncontested that all payments withheld pending the investigation were released at that time.) The complaint‘s recitation of the facts was followed by a claim that “[t]he actions of the defendant have denied the plaintiff due process of law as guaranteed by the
Mr. Childers moved to dismiss the complaint pursuant to
Dr. Levin filed a response asserting that he had a cause of action to enforce the regulation (
The district court granted the motion to dismiss. Dr. Levin does not challenge the court‘s ruling on the official capacity claims, but he appeals from the dismissal of the claims asserted against Mr. Childers in his individual capacity.
II
The creation of procedural rights does not ipso facto create any property interest. See United of Omaha Life Ins. Co. v. Solomon, 960 F.2d 31, 34 (6th Cir.1992) (” ‘[N]o property interest exists in a procedure itself, without more’ “) (quoting Curtis Ambulance of Florida, Inc. v. Board of County Comm‘rs, 811 F.2d 1371, 1377 (10th Cir.1987)). As the Supreme Court stated in Olim v. Wakinekona, 461 U.S. 238, 250, 103 S.Ct. 1741, 1748, 75 L.Ed.2d 813 (1983), “[p]rocess is not an end in itself. Its constitutional purpose is to protect a substantive interest to which the individual has a legitimate claim of entitlement.” And “an expectation of receiving process is not, without more, a liberty interest protected by the Due Process Clause.” Id. at 250 n. 12, 103 S.Ct. at 1748 n. 12.
In Procopio v. Johnson, 994 F.2d 325 (7th Cir.1993), the plaintiff asserted a claim under
” ‘If a right to a hearing is a liberty interest, and if due process accords the right to a hearing, then one has interpreted the Fourteenth Amendment to mean that the state may not deprive a person of a hearing without providing him with a hearing. Reductio ad absurdum.’ ” Id. (quoting Shango v. Jurich, 681 F.2d 1091, 1101 (7th Cir.1982)).
We are satisfied that the procedural rights claimed by Dr. Levin under
III
Dr. Levin advances two theories as to why the district court should have denied the motion to dismiss even if the regulations, standing alone, did not give rise to a constitutionally protected interest. First, he contends, the facts alleged in his complaint would support a claim of “[i]nfliction of a stigma to reputation accompanied by an official sanction regarding a person‘s employment or profession.” We shall refer to this as the “stigma-plus” theory. Second, he contends,
The “stigma-plus” argument is being raised for the first time on appeal. Neither the complaint nor the response to the motion to dismiss asserted that the press release was defamatory. “[I]t is not proper to assume the plaintiff could prove facts he had not alleged or that the defendants had violated applicable laws in ways that had not been alleged.” Cline v. Rogers, 87 F.3d 176, 184 (6th Cir.1996) (internal quotation marks and
Dr. Levin‘s second theory rests on Loschiavo v. City of Dearborn, 33 F.3d 548 (6th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1099, 130 L.Ed.2d 1067 (1995), which holds that “plaintiffs may use Section 1983 to enforce not only constitutional rights, but also those rights defined by federal statutes [and federal regulations].” Id. at 551. The potential availability of
This court applies a three part test to determine whether a federal statute or regulation creates rights enforceable under
“(1) Was the provision in question intended to benefit the plaintiff?
(2) Does the statutory provision in question create binding obligations on the defendant governmental unit, rather than merely expressing a congressional preference? and
(3) Is the interest the plaintiff asserts specific enough to be enforced judicially, rather than being ‘vague and amorphous‘?” Wood v. Tompkins, 33 F.3d 600, 604-05 (6th Cir.1994).
We need not decide whether this test is satisfied by whatever hearing requirement
Qualified immunity protects government officials against suit for the performance of discretionary functions so long as the conduct in question ” ‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Veney v. Hogan, 70 F.3d 917, 920 (6th Cir.1995) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)). As stated above,
Significant doubt exists on this score for at least two reasons. First, the temporary and limited nature of a payment suspension under
Second, the passage in the Kentucky Physician Services Manual that deals with the termination or suspension of the provider agreement appears to mesh not with the federal regulations covering the temporary withholding of Medicaid payments during an investigation, but with the federal regulations covering the exclusion of individuals and entities from participating in the Medicaid program at all. The latter regulations are codified at
“The State agency must have administrative procedures in place that enable it to exclude an individual or entity for any reason for which the Secretary could exclude such individual or entity under parts 1001 or 1003 of this chapter. The period of such exclusion is at the discretion of the State agency.”
Dr. Levin does not appear to have been excluded under the procedures mandated by
We venture no definitive opinion as to the proper interpretation of the morass of federal and state regulations at issue here. It suffices to say that the interpretation advanced by Dr. Levin was by no means “clearly established” at the time of the brief suspension of Levin‘s Medicaid payments. The situation presented here strikes us as precisely the sort of situation where the doctrine of qualified immunity ought to be applied.
Finally, Dr. Levin contends that qualified immunity is not a proper subject for dismissal on a 12(b) motion. A definitive response to this argument is found in Dominque v. Telb, 831 F.2d 673, 677 (6th Cir.1987):
“[B]efore filing a formal affirmative defense in his answer, the defendant could properly challenge the sufficiency of the complaint under F.R.C.P. 12(b)(6) on the basis that he was entitled to a qualified immunity because the facts pleaded would not show that his conduct violated clearly established law of which a reasonable person should have known at the time.”
AFFIRMED.