Appeal from an order of the United States District Court for the Southern District of New York, Haight, J., reinstating Michael M. Baden, M.D. as Chief Medical Examiner of the City of New York, holding that Baden's dismissal without a pretermination hearing infringed a property interest protected by due process. Order vacated and remanded.
Before Lumbard, Mansfield and Meskill, Circuit Judges.
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.*fn1 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,*fn2 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.*fn3 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 ...