09-3310-cv(L)
DiBlasio v. Novello
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR
AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the
2 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
3 on the 9th day of March, two thousand eleven.
4
5 PRESENT:
6
7 DEBRA ANN LIVINGSTON,
8 DENNY CHIN,
9
10 Circuit Judges,
11
12 DAVID G. LARIMER,
13
14 District Judge.*
15 _____________________________________________________
16
17 MARIO DIBLASIO, M.D., and MARIO DIBLASIO, M.D., P.C.,
18
19 Plaintiffs-Appellees/Cross-Appellants,
20
21 v. No. 09-3310-cv(L)
22 No. 09-3448-cv (XAP)**
23 No. 10-0111-cv (XAP)
24 ANTONIA C. NOVELLO, in her individual and official capacity,
25 and LISA HAMPTON, in her individual and official capacity,
*
The Honorable David G. Larimer, District Judge of the United States District Court for
the Western District of New York, sitting by designation.
**
Closed by so-ordered stipulation filed December 15, 2009.
1
1
2 Defendants-Appellants/Cross-Appellees,
3 NEW YORK STATE DEPARTMENT OF HEALTH,
4 Defendant.
5 ____________________________________________________
6
7 KEVIN J. HARRINGTON (John T.A. Rosenthal, on the brief),
8 Harrington, Ocko & Monk, LLP, White Plains, New York,
9 for Plaintiffs-Appellees/Cross-Appellants
10 RICHARD DEARING, Deputy Solicitor General of the State
11 of New York (Barbara D. Underwood, Benjamin Gutman,
12 and James M. Hershler, on the brief), New York, New
13 York, for Defendants-Appellants/Cross-Appellees
14
15 UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, and DECREED
16 that the decision and order of the district court be AFFIRMED IN PART and REVERSED IN
17 PART, and that plaintiff’s cross-appeal be DISMISSED. The case is REMANDED for further
18 proceedings consistent with this order.
19 This case comes before us on appeal for the second time. See DiBlasio v. Novello, 344 F.3d
20 292 (2d Cir. 2003). Defendant-Appellant/Cross-Appellee Antonia C. Novello (“Novello”) appeals
21 from a decision and order of the United States District Court for the Southern District of New York
22 (Robinson, J.) denying summary judgment to Novello on the federal “stigma-plus” and state
23 defamation claims in this action. Plaintiffs-Appellees/Cross-Appellants Mario DiBlasio, M.D. and
24 Mario DiBlasio M.D., P.C. (collectively, “DiBlasio”) cross-appeal from the same decision and order
25 granting summary judgment to Novello and Defendant-Appellant/Cross-Appellee Lisa Hampton
26 (“Hampton”) on his facial and as-applied federal constitutional challenges to New York Public
27 Health Law § 230. We assume the parties’ familiarity with the underlying facts and procedural
28 history.
29
30
2
1 We review de novo a district court’s order granting summary judgment. Molinari v.
2 Bloomberg, 564 F.3d 587, 595 (2d Cir. 2009). Summary judgment may not be granted unless “the
3 pleadings, depositions, answers to interrogatories, and admissions on file, together with the
4 affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
5 party is entitled to a judgment as a matter of law.” Gallo v. Prudential Residential Servs., Ltd.
6 P’ship, 22 F.3d 1219, 1223 (2d Cir. 1994) (internal quotation marks omitted). The burden is on the
7 moving party to demonstrate that no genuine issue respecting any material fact exists. Id. In
8 reviewing a court’s decision granting summary judgment, the appellate court must consider “the
9 evidence in the light most favorable to the non-moving party and draw[ ] all reasonable inferences
10 in its favor.” Palmieri v. Allstate Ins. Co., 445 F.3d 179, 187 (2d Cir. 2006).
11 A. Novello’s Appeal
12 At the start, we reject DiBlasio’s argument that we lack jurisdiction over Novello’s
13 interlocutory appeal from the denial of qualified immunity. While the denial of a motion for
14 summary judgment ordinarily is not immediately appealable, it is well settled that the rejection of
15 the qualified immunity defense is immediately appealable under the collateral order doctrine, to the
16 extent the defense may be established as a matter of law, and where the determination does not
17 require resolution of disputed issues of material fact. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1946
18 (2009) (“Provided it turns on an issue of law . . . a district court’s order rejecting qualified immunity
19 at the motion-to-dismiss stage of a proceeding is a ‘final decision’ within the meaning of [28 U.S.C.]
20 § 1291.” (internal quotation marks omitted)); see also Salim v. Proulx, 93 F.3d 86, 89 (2d Cir. 1996);
21 Rodriguez v. Phillips, 66 F.3d 470, 475 (2d Cir. 1995). Although she has questioned whether there
22 is competent evidence of the allegedly stigmatizing statements at issue in this case, for the purposes
23 of this appeal, Novello “accepts arguendo that [the] statements were made as reported.” Defs.’ Br.
24 in Opp. 7. This appeal is, therefore, properly before us.
25 In determining whether Novello is entitled to qualified immunity, we must examine the
26 “objective legal reasonableness of [her] action[s], assessed in light of the legal rules that were clearly
3
1 established at the time [they were] taken.” Wilson v. Layne, 526 U.S. 603, 614 (1999) (internal
2 quotations marks omitted); see also Papineau v. Parmley, 465 F.3d 46, 55 (2d Cir. 2006). Whether
3 a right was clearly established at the relevant time must be determined “in light of the specific
4 context of the case, not as a broad general proposition.” Saucier v. Katz, 533 U.S. 194, 201 (2001),
5 overruled on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009). “The contours of the
6 right must be sufficiently clear that a reasonable official would understand that what he is doing
7 violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987).
8 The elements of a stigma plus claim are injury to reputation, coupled with the deprivation
9 of a tangible interest or property right, without adequate process. See DiBlasio, 344 F.3d at 302.
10 We have previously defined stigma as “public opprobrium” and damage to one’s reputation, which
11 can result from governmental statements questioning or attacking one’s “good name, reputation,
12 honor, or integrity.” Valmonte v. Bane, 18 F.3d 992, 999-1000 (2d Cir. 1994).
13 The key is the state of the law in 2000, when Novello made her public statements. We had
14 previously held that “where there is competent evidence allowing the official to reasonably believe
15 that an emergency [exists], or that affording pre[-]deprivation process would be otherwise
16 impractical,” that lack of pre-deprivation process “will not offend the constitutional guarantee of due
17 process, provided there is sufficient post[-]deprivation process.” Catanzaro v. Weiden, 188 F.3d 56,
18 61, 63 (2d Cir. 1999). The invocation of an emergency procedure would thus be a constitutional
19 violation “only where such invocation is arbitrary or amounts to an abuse of discretion.” Id. at 63.
20 Although the standard for determining whether emergency procedures can be invoked was well-
21 defined, we had not – and still have not – yet addressed the type or breadth of public statements that
22 may be appropriately made in the course of executing such procedures, or in explaining them to the
23 public in the course of one’s official duties.
24 In light of the OPMC investigation report that was before Novello at the time of DiBlasio’s
25 suspension, the contents of which are undisputed, Novello had sufficient “competent evidence
26 allowing [her] to reasonably believe that an emergency [did] in fact exist, or that affording
4
1 predeprivation process would [have been] otherwise impractical.” Id. The investigation report
2 concluded that Doctor DiBlasio and his supervisor, Dr. Steven Bier, had engaged in flawed breast
3 cancer screening practices, which had resulted in an abnormally low rate of breast cancer detection.
4 In response, a committee of the State Board for Professional Medical Conduct (“BPMC”)
5 unanimously recommended bringing charges against both radiologists, while a majority specifically
6 found that their conduct had created an urgent threat to the public health, necessitating an
7 immediate, state-sponsored rescreening of the affected patients. The investigation report and BPMC
8 committee’s recommendation provided Novello with sufficient competent evidence to support the
9 belief that affording additional predeprivation process would be impractical in the face of the health
10 emergency at hand, and that any further delay could result in the advancement of as-yet undiagnosed
11 and untreated breast cancer in patients who required rescreening.
12 Given the lack of clearly established law relating to the boundaries of Novello’s permissible
13 public comment in the context of a public health emergency, we find that Novello is entitled to
14 qualified immunity as a matter of law with respect to her public statements announcing, and
15 explaining the bases for, DiBlasio’s suspension and the rescreening program, including those
16 statements which concerned DiBlasio’s professional reputation and/or impeded his ability to
17 practice.
18 DiBlasio argues that even if Novello is entitled to qualified immunity concerning her
19 statements which related to the public health emergency, that immunity should not extend to two
20 of the four statements at issue – statements that DiBlasio characterizes as excessively broad,
21 overgeneralized and/or false. Specifically, Novello erroneously implicated DiBlasio in describing
22 improper billing practices by “the physicians,” when it was apparently only Dr. Bier who processed
23 the billing, and informed the press (unnecessarily or even, as DiBlasio alleges, incorrectly) that she
24 had forwarded information to authorities for a possible criminal probe.
25 In point of fact, Novello’s statement that she had referred the matters concerning Dr. Bier
26 and his associates for a possible criminal investigation was apparently true. On May 15, 2000,
5
1 Novello had written to the state Attorney General requesting the investigation, and if warranted,
2 prosecution of Bier and those acting in concert with him. Because the statement was not false, it
3 cannot form the basis for a stigma plus claim, however stigmatizing it might appear to be. See
4 Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 446 (2d Cir. 1980).
5 It is possible that false or defamatory statements that are wholly irrelevant, gratuitous or
6 otherwise far beyond the scope of an emergency might in some circumstances rise to the level of
7 violating rights of which a reasonable person would have known. The statements at issue here did
8 not approach that extreme. They pertained to matters explored by the OPMC in its investigation,
9 and were key components of the factual basis for the suspensions Novello was announcing, which
10 included alleged billing irregularities and deficient mammography practices.
11 Furthermore, to the extent that any of Novello’s statements could be viewed as misleading
12 or overbroad, the doctrine of qualified immunity “gives ample room for mistaken judgments.”
13 Zieper v. Metzinger, 474 F.3d 60, 71 (2d Cir. 2007) (internal quotation marks omitted). Indeed,
14 “[t]he very purpose of qualified immunity is to protect officials when their jobs require them to make
15 difficult on-the-job decisions.” Id. (quoting Hunter v. Bryant, 502 U.S. 224, 229 (1991)) “This is
16 especially true when officials are forced to act quickly,” such as in the context of a public health
17 emergency. Id.
18 Nor are the isolated statements at issue significant when compared with the whole of
19 Novello’s public communications about DiBlasio’s suspension, the vast majority of which were
20 undisputedly accurate. Simultaneously with her public statements, Novello issued two press releases
21 which clarified the grounds for DiBlasio’s suspension in detail, and accurately delineated the
22 particular charges against him (which did not include billing errors), and against Dr. Bier.
23 Thus, to the extent that Novello’s verbal comments may have strayed into extraneous aspects
24 of the OPMC investigation and the grounds for DiBlasio’s suspension, they did not violate statutory
25 or constitutional rights of which a reasonable official would have known. Accordingly, we find that
26 Novello is entitled to qualified immunity with respect to DiBlasio’s stigma plus claim.
6
1 B. DiBlasio’s Cross-Appeal
2 On cross-appeal, DiBlasio raises facial and as-applied constitutional challenges to New York
3 Public Health Law § 230 and contends that the district court erred in granting summary judgment
4 dismissing these claims. For the following reasons, we affirm the district court’s grant of summary
5 judgment.
6 1. Facial Due Process Challenge to New York Public Health Law § 230
7 DiBlasio first argues that New York Public Health Law § 230(12) is unconstitutional on its
8 face because it fails to provide adequate due process. As the district court noted, “[a] facial
9 challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since
10 the challenger must establish that no set of circumstances exists under which the Act would be
11 valid.” United States v. Salerno, 481 U.S. 739, 745 (1987). Moreover, “absent contrary direction,
12 state officials . . . are entitled to rely on a presumptively valid state statute . . . until and unless [the
13 statute is] declared unconstitutional.” Vives v. City of New York, 405 F.3d 115, 117 (2d Cir. 2005)
14 (quoting Conn. ex rel. Blumenthal v. Crotty, 346 F.3d 84, 102-03 (2d Cir. 2003)). The only
15 “possible exception” is a law “so grossly and flagrantly unconstitutional that any person of
16 reasonable prudence would be bound to see its flaws.” Id.
17 DiBlasio complains that § 230(12) lacks a preponderance of the evidence standard. As the
18 district court rightly observed, however, DiBlasio does not cite any federal cases holding
19 unconstitutional a public health statute allowing for the temporary suspension of a medical license
20 due to the statute’s failure to include a preponderance of the evidence standard. DiBlasio also fails
21 to address the well-recognized principle that due process permits a state to take summary
22 administrative action without pre-deprivation process, but subject to a prompt post-deprivation
23 hearing, where such action is needed to protect public health and safety. See Gilbert v. Homar, 520
24 U.S. 924, 930-33 (1997); Hodel v. Va. Surface Mining & Reclamation Ass’n, 452 U.S. 264, 300,
25 303 (1981); Catanzaro, 188 F.3d at 61. DiBlasio’s reliance on Valmonte, 18 F.3d at 992, is
26 misplaced. The due process violation in Valmonte resulted from the “enormous risk of error” that
7
1 had been both alleged by the plaintiff via statistical evidence and acknowledged by the defendants.
2 Valmonte, 18 F.3d at 1003-04 (finding a due process violation where 75% of individuals challenging
3 a suspension were ultimately successful); see also In re Lee TT v. Dowling, 87 N.Y.2d 699 (1996).
4 DiBlasio presents no reliable evidence that § 230(12) presented anywhere near the same risk of
5 error.
6 DiBlasio also reiterates his argument below that § 230(12) is unconstitutional because it does
7 not define “imminent danger.” However, courts have long rejected due process challenges against
8 similar standards for statutes authorizing summary action. See, e.g., Hodel, 452 U.S. at 301
9 (defining “imminent danger” as a condition or practice that could reasonably “be expected to cause
10 substantial physical harm to persons . . . before such condition, practice, or violation can be
11 abated”); Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 595-96 (1950); Fahey v. Mallonee,
12 332 U.S. 245, 250-51 n.1 (1947).
13 In sum, DiBlasio falls well short of fulfilling the requirements for a successful facial
14 challenge. We find no error in the district court’s grant of summary judgment to Novello on this
15 claim.
16 2. As-Applied Challenges to New York Public Health Law § 230
17 On his as-applied challenge to § 230(12), DiBlasio argues that there are material issues of
18 fact with respect to whether exigent circumstances justified a summary suspension, and whether it
19 was impractical to provide DiBlasio with a pre-deprivation hearing. In addition, he contends that
20 Hampton’s investigation was also an unconstitutional application of § 230, as Hampton “acted as
21 prosecutor, judge and jury throughout the investigation.” Pls.’ Br. 80.
22 We find DiBlasio’s arguments to be without merit. As we recognized in Catanzaro, a public
23 official may invoke emergency procedures when “competent evidence allow[s] the official to
24 reasonably believe that an emergency does in fact exist, or that affording predeprivation process
25 would be otherwise impractical.” 188 F.3d at 63. Such an official commits a constitutional
26 violation “only where such invocation is arbitrary or amounts to an abuse of discretion.” Id.; see
27 WWBITV, Inc. v. Village of Rouses Point, 589 F.3d 46, 51-52 (2d Cir. 2009). This “somewhat
28 deferential standard” bars “an exacting hindsight analysis” that would “encourage delay and thereby
8
1 potentially increase the public’s exposure to dangerous conditions.” Catanzaro, 188 F.3d at 63. We
2 agree with the district court that DiBlasio merely raises minor issues of credibility and evidentiary
3 conflicts that amount to the “exacting hindsight analysis” we rejected in Catanzaro.
4 Likewise, DiBlasio’s argument that Hampton’s role was beyond that of an investigator fails.
5 In Hannah v. Larche, 363 U.S. 420 (1960), the Supreme Court held that an investigatory body
6 whose function is “purely investigative and fact-finding,” and that does not adjudicate, “hold trials
7 or determine anyone’s civil or criminal liability,” “issue orders,” nor “indict, punish, or impose any
8 legal sanctions,” is not required to provide full due process protections. Id. at 441. As Hampton did
9 not have the authority to determine civil or criminal liability, nor to “indict, punish, or impose any
10 legal sanctions,” the district court rightly concluded that she was an investigator. The court’s grant
11 of summary judgment on DiBlasio’s as-applied challenges was therefore proper.
12 C. Conclusion
13 We therefore affirm the judgment of the district court with respect to DiBlasio’s claims
14 challenging the constitutionality of New York Public Health Law §230, reverse the judgment of the
15 district court with respect to Novello’s entitlement to qualified immunity concerning DiBlasio’s
16 federal stigma plus claim, and direct the district court to grant Novello’s motion for summary
17 judgment on that claim. We decline to exercise appellate jurisdiction over DiBlasio’s state law
18 defamation claim and leave it to the district court to consider whether to retain or decline jurisdiction
19 over that claim. See Rodriguez v. Phillips, 66 F.3d 470, 482 (2d Cir. 1995) (“[O]ur jurisdiction over
20 an interlocutory appeal does not necessarily provide us with jurisdiction to hear all the issues
21 decided by the district court.”). We note that the state-law absolute and qualified privilege defenses
22 raise different issues from the federal qualified immunity defense. See Swint v. Chambers Cnty.
23 Comm’n, 514 U.S. 35, 51 (1995) (holding that an appellate court may only reach issues that are
24 “inextricably intertwined” with reviewable issues or “necessary to ensure meaningful review”). The
9
1 decision and order of the district court is AFFIRMED IN PART and REVERSED IN PART, and
2 DiBlasio’s cross-appeal is DISMISSED. The case is REMANDED for further proceedings
3 consistent with this order.
4
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
7
10