The opinion of the court was delivered by: JOHN F. KEENAN
JOHN F. KEENAN, United States District Judge:
Before the Court is defendant's motion to dismiss this action for failure to state a claim upon which relief can be granted, pursuant to Fed. R. Civ. P. 12(b)(6). Alternatively, defendant moves for judgment on the pleadings, pursuant to Fed. R. Civ. P. 12(c). Plaintiff opposes defendant's motion. For the reasons that follow, defendant's motion to dismiss is granted.
Plaintiff Lloyd M. Kahn is a podiatrist. On April 1, 1991, Kahn pleaded guilty to a charge of attempted grand larceny in the fourth degree in Supreme Court Albany County for illegally receiving funds. Kahn was charged with submitting false claims for reimbursement under the Medicaid program between May 30, 1985 and April 22, 1986. Based on this conviction, the Secretary of Health and Human Services ("Secretary")
excluded Kahn from participation in the Medicare Program (see 42 U.S.C. §§ 1395-95cc) and also from any state health care program (see 42 U.S.C. § 1320a-7(h)). The Social Security Act (42 U.S.C. sections 301 - 1397f (1991 & Supp. 1993)) specifically requires the Secretary to exclude anyone who has been convicted of a crime related to delivery of a Medicare or state health care program service or item. See 42 U.S.C. § 1320a-7(a)(1). This exclusion continues for a period of at least five years, the minimum proscribed in section 1320a-7(c)(3)(B) of the Social Security Act.
Again as entitled by statute, Kahn next appealed the ALJ's decision to the Appellate Division of the Departmental Appeals Board. On July 31, 1992, the Appellate Panel declined to review the ALJ's determination. By declining to review the decision, the ALJ's determination became the final decision of the Secretary. The Appellate Panel then informed Kahn of his right to seek judicial review by this Court. After numerous extensions of time and one improper filing, this action was finally commenced.
Kahn objects to his exclusion from the Medicare and state health care programs. Kahn contends that the Secretary should have considered the circumstances under which he pled guilty. Specifically, Kahn urges that the Secretary should have considered the severity of his violations before making the exclusion decision. Kahn makes four arguments. First, Kahn maintains that the application of the 1987 amendment to the 1991 conviction for acts that occurred in 1985 and 1986 violates the Constitutional prohibition against ex post facto laws. Second, Kahn maintains that the exclusion was punishment for a crime for which he was already punished, in violation of the constitutional prohibition against double jeopardy. Third, Kahn argues that the application of the doctrine of collateral estoppel to cause his exclusion is unlawful. Fourth, Kahn alleges that his exclusion was an unconstitutional "taking" of his property.
Defendant asserts that the Court should dismiss the complaint because the Secretary, by statute, did not have any discretion over the question of Kahn's exclusion, once it was proven he had been convicted of a "program-related" offense. The Secretary was specifically compelled by the Act to exclude Kahn for a period of no less than five years. Therefore, defendant argues that plaintiff's complaint fails to state a claim upon which relief can be granted under Fed. R. Civ. P. 12(b)(6) and must be dismissed. Defendant additionally disputes Kahn's other arguments. First, defendant asserts that plaintiff's ex post facto and double jeopardy claims must be rejected because Kahn's exclusion was a remedial, and not a punitive, sanction. Second, defendant additionally urges that the prohibition against double jeopardy does not apply to this situation. Third, defendant urges that collateral estoppel has no applicability to this action. Finally, defendant contends that Kahn's exclusion was not an unconstitutional taking of property, because Kahn has no protected property interest in participating in these health care programs.
For the reasons that follow, defendant's motion to dismiss is granted.
A. Standards for a Motion to Dismiss
It is well established that "a complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). The scope of the court's task is a limited one in that the likelihood of recovery on the face of the complaint cannot be considered in granting or denying the motion. See Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). In addition, the complaint must be viewed in the light most favorable to the non-moving party. See id. at 237; Yoder v. Orthomolecular Nutrition Institute, Inc., 751 F.2d 555, 562 (2d Cir. 1985). The burden on the moving party is heavy because "the sanction of ...