        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.

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 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

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 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


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 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


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 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,


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 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.


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 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


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 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

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 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




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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




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