Baden v. Koch, 317

• Decision Date: 09 February 1981
• Docket Number: No. 317,D,317
• Citation: 638 F.2d 486
• Parties: Michael M. BADEN, M.D., Plaintiff-Appellee, v. Edward I. KOCH, individually, and as Mayor of the City of New York; S. Michael Nadel, as Director of the Department of Personnel of the City of New York; Elliot M. Gross, M.D.; and The City of New York, Defendants-Appellants. ocket 80-7510.
• Court: U.S. Court of Appeals — Second Circuit

Page 486

638 F.2d 486

Michael M. BADEN, M.D., Plaintiff-Appellee, v. Edward I. KOCH, individually, and as Mayor of the City of New York; S. Michael Nadel, as Director of the Department of Personnel of the City of New York; Elliot M. Gross, M.D. and The City of New York, Defendants-Appellants.

No. 317, Docket 80-7510.

United States Court of Appeals Second Circuit.

Argued Oct. 15, 1980.

Decided Dec. 17, 1980.

Rehearing and Rehearing En Banc Denied Feb. 9, 1981.

Doron Gopstein, Office of the Corp. Counsel for the City of New York, New York City (Allen G. Schwartz, Corp. Counsel for the City of New York, Richard N. Bowers, Ellen August, David Drueding, Asst. Corp. Counsels for the City of New York, New York City, of counsel), for appellants Koch, Nadel and City of New York.

Howard M. Squadron, New York City (Ira Lee Sorkin, Eugenie C. Gavenchak, Squadron, Ellenoff, Plesent & Lehrer, New York City, of counsel), for appellant Gross.

Murray A. Gordon, New York City (Ronald H. Shechtman, Kenneth E. Gordon, Richard Imbrogno, Gordon & Shechtman, P. C., New York City, of counsel), for appellee.

Before LUMBARD, MANSFIELD and MESKILL, Circuit Judges.

MESKILL, Circuit Judge:

This is an appeal from an order of the United States District Court for the Southern District of New York, Haight, J., which declared that the removal by Mayor Edward Koch of the plaintiff, Dr. Michael M. Baden, from his position as Chief Medical Examiner (CME) of the City of New York without a hearing was void and ordered his reinstatement with back pay and enjoined Dr. Elliot Gross from serving as Baden's successor. Execution of the order was stayed pending appeal.

Baden, who had been a Deputy Chief Medical Examiner since 1972, was appointed CME by Mayor Koch effective August 1, 1978 based upon results of a competitive examination. ¹ On July 13, 1979, Koch told Baden that he had conducted inquiries as to whether Baden should be removed from office before the end of his one-year probationary term. The Mayor told him that he had received adverse written reports from the City Commissioner of the Department of Health, Dr. Reinaldo A. Ferrer, and the District Attorney of New York County, Robert M. Morgenthau, ² and favorable written reports from the District Attorneys of Queens, Bronx, and Kings Counties. Baden wrote a detailed, vigorous refutation of the complaints against him. Nevertheless, on July 30, Mayor Koch removed Baden as CME. In a memorandum delivered to Baden that same day, he stated the procedures used and the reasons for Baden's removal:

Since your one year probation period as Chief Medical Examiner will conclude on July 31, 1979, I have requested of various government officials their opinions concerning your performance in office. I have carefully reviewed Commissioner Ferrer's memorandum of July 13, 1979 and District Attorney Morgenthau's letter of July 12, 1979, copies of which were furnished to you at our meeting of July 13, 1979, as well as your replies of July 19th and July 20th respectively. In addition, I have considered the letters from the other District Attorneys and Mr. Morgenthau's response of July 30th to your letter of July 20th.

After review and consideration of the matter, I have decided to remove you as the Chief Medical Examiner for the reasons stated in Dr. Ferrer's memorandum and Mr. Morgenthau's letters. This letter confirms my decision which I communicated to you at our meeting of July 30th.

In accord with the procedures set forth in Section 557(a) of the City Charter, I am causing this letter, together with the letters referred to in this letter, to be served upon you and filed in the office of the Director of Personnel. Should you desire, I will withhold public comment upon this matter or dissemination of this memorandum pending your making a public explanation of the matters which are contained in the memorandum and letters referred to above until 3:00 PM July 31, 1979.

Following his removal as CME, Baden resumed his post as Deputy CME, but reserved his legal rights to contest his removal. He demanded a hearing to refute the complaints against him and, when he was rebuffed, he instituted this action on August 19, 1979, naming as defendants Koch, Dr. Elliot M. Gross, who had been appointed to succeed Baden as CME, S. Michael Nadel, Director of the Department of Personnel of the City of New York, and the City of New York. Baden asserted these five claims:

1. Koch stigmatized him by removing him on the basis of false charges without affording him the opportunity for a hearing.

2. His removal from his classified civil service position was arbitrary and unreasonable, in that the asserted reasons were untrue and malicious.

3. At the time of his removal, he had acquired permanent civil service tenure in the position of Chief Medical Examiner, so that he could not be removed without a hearing.

4. His removal, and the appointment of Gross as his successor, violated the New York State Constitution and pertinent rules and regulations.

5. He was removed from his position because of the exercise, by him and members of his family, of their right of free speech.

Baden asked for a declaration that his removal was unlawful under federal and state law; restoration to the position of Chief Medical Examiner; the removal of Gross as Chief Medical Examiner; and the award of back pay, front pay, additional compensatory damages, costs and attorneys' fees. Baden's complaint asserted federal claims under the First and Fourteenth Amendments to the United States Constitution, and state claims under the New York State Constitution and applicable statutes and regulations. Subject matter jurisdiction was alleged on the basis of 42 U.S.C. § 1983 and its jurisdictional implementations, 28 U.S.C. §§ 1343(3) and 1343(4); 28 U.S.C. § 1331(a) and the Fourteenth Amendment; and 28 U.S.C. § 2201. The state law claims were asserted on the basis of pendent jurisdiction.

The district court granted Baden's motion for partial summary judgment, declaring illegal his removal from the office of CME, and denied defendants' motion for summary judgment. The court also granted Baden's motion for partial summary judgment on his liberty interest claim, that is, his claim of injury from public charges stigmatizing his professional name and reputation, and ordered a hearing to determine damages, if any. The portion of the order dealing with this damage claim is non-final and, therefore, not appealable. The denial of defendants' motion for summary judgment is also not appealable. Clark v. Kraftco Corporation, 447 F.2d 933 (2d Cir. 1971). Those parts of the order granting Baden reinstatement and enjoining Gross from serving as CME are final and reviewable under 28 U.S.C. § 1292(a)(1) (1980). The district court based its order reinstating Baden with back pay solely upon the third claim that he was removed without "the opportunity for a hearing to which he was entitled under state law, policy and practice."

We disagree with the position of the district court that Baden was entitled to a hearing prior to removal. Our decision in no way passes upon the truth or falsity of the complaints against Dr. Baden or upon the wisdom of his removal from office. Our sole concern is whether state law or mutual understandings gave Baden a right to a hearing before he could be removed from his post as CME.

Apparently, prior to this litigation it was assumed that a CME who had completed his probationary period could be removed only for cause following a hearing. ³ Mayor Koch's statements at the time indicate that he acted before August 1, 1979, the date he believed Baden's probation ended, to avoid having to give Baden a full hearing. The Mayor's July 30 memorandum to Baden, see p. 487, itself states that his review of Baden's performance was prompted by the mayor's belief that Baden's probationary term would end the next day. Presumably, the Mayor thought it would be easier to remove Baden before his probationary term ended:

"You must understand that this would have been a permanent appointment," the Mayor said, "a lifetime appointment."...

"A year from now, we might learn that the (charges of poor judgment were) right and then it would be too late," Mr. Koch said.

N. Y. Times, Aug. 3, 1979, at B1, col. 1. The confusion probably arose because prior to 1978 the standard probationary term was six months. Mayor Koch signed the order establishing one-year probationary terms on July 27, 1978, five days before Baden's appointment, but it did not become effective until approved by the State Civil Service Commission on October 20, 1980. Therefore, the district court concluded that Baden had only a six-month probationary term which had expired long before July 31, 1980, the day Baden was removed as CME. Our analysis of New York law and federal procedural due process leads us to conclude, however, that the mutual understandings, or perhaps more accurately, misunderstandings as to procedures for removing a CME, cannot alter the clear provision of New York law that no hearing is required before removing him. Having examined the language and history of the relevant statutes, we conclude that the New York State Legislature intended that a Chief Medical Examiner, even after the expiration of his probationary period, can be removed without a prior hearing regardless of any mutual understandings to the contrary. Therefore, we vacate the district court order insofar as it reinstates Dr. Baden with back pay and enjoins the continuation of Dr. Gross in his position as CME.

Statutory Entitlement

Before Baden can establish a right to reinstatement, he must show that he has a property right recognized by the Constitution of the United States for purposes of procedural due process. This property right must come from either state law or, in its absence, from mutual understandings of the parties. As the Supreme Court explained in Board of Regents v. Roth, 408 U.S. 564, 577, 92...