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January 11, 1997

ELIZABETH C. HOGAN, Plaintiff, against GEORGE PATAKI, Individually and as Governor of the State of New York, JAMES G. NATOLI, Individually and as Director of State Operations of the State of New York, BARBARA ANN DeBUONO, M.D., M.P.H., Individually and as Commissioner of the New York State Department of Health, JERRY JASINSKI, Individually and as Acting General Counsel of the New York State Department of Health, and STATE OF NEW YORK, Defendants.

The opinion of the court was delivered by: MCAVOY


 This case arises from the discharge of Plaintiff Elizabeth Hogan from her position as Assistant Counsel in the Bureau of Professional Medical Conduct at the New York State Department of Health. Hogan asserts, and Defendants do not deny, that the reason for her discharge in April, 1995, was to free up positions within the Department of Health to make them available for Pataki Administration appointees. What is in dispute, however, is whether Hogan's termination infringed on her First Amendment rights under the United States Constitution.

 The New York State Department of Health ("DOH") hired Hogan as an Assistant Counsel in the Department's Bureau of Professional Medical Conduct ("Bureau"). The Bureau is responsible for prosecuting charges of professional misconduct brought against physicians, physician's assistants, and specialist's assistants in New York. Such misconduct can include fraud, gross negligence and incompetence, sexual abuse, drug- or alcohol-induced misbehavior, moral unfitness, and harassment or intimidation. Bureau attorneys are prosecutors, and they generally possess strong litigation skills and a thorough knowledge of medical procedures and practices.

 Prior to working for the Bureau, Hogan worked as an Assistant District Attorney for the County of Albany. In March, 1994, Hogan was appointed as an Assistant Counsel with the Bureau. Her position was classified as "exempt" such that she did not have to sit for a competitive exam and she was not protected from termination by the Civil Service Law. See N.Y. Civ. Serv. Law §§ 41 & 75. Furthermore, Hogan's job was relatively high-paying; her annual salary in early 1995 was $ 53,428, well above the $ 36,300 average salary of DOH employees.

 On or about April 7, 1995, Hogan was discharged from her position with the DOH. Defendants, members of the Pataki administration, state that Hogan, as an exempt worker, was chosen for firing at random to make room for Pataki appointees.


 In their motion for summary judgment, Defendants argue that Bureau attorneys, like Hogan, are among the "policy making" and "confidential" employees who can be discharged for political reasons. According to Defendants, Bureau attorneys represent the Director of the Office of Professional Medical Conduct, the DOH, and the public in general.

 In the alternative, Defendants move for summary judgment based on qualified immunity. Because no clearly established law of which a reasonable state official would be aware prevented them from discharging Hogan for political reasons, the individual defendants contend that they cannot be held liable for damages under 42 U.S.C. § 1983. Defendants also argue that once Hogan's federal cause of action is dismissed, the Court should decline to exercise jurisdiction over her state law claims. Finally, they argue that the Complaint should be dismissed on this basis insofar as it seeks monetary relief against the State of New York and the other defendants in their official capacities, it is barred by the Eleventh Amendment.

 In support of her cross-motion and in opposition to Defendants' motion, Hogan asserts that because there is no rational connection between her political ideology and the performance of her job, her firing was in violation of the First Amendment. Hogan claims that her responsibilities were well-defined and essentially limited to the administrative act of prosecuting doctors. She also argues that she did not decide which physicians to charge; could not settle cases without the consent of her superiors; had no authority to formulate policy; and did not function as a legal advisor to any person in a policy making position. In sum, Hogan sees herself as a relatively low-level attorney with little power, far removed from the political appointees who run the DOH.

 A. Summary Judgment Standard

 Pursuant to Fed. R. Civ. P. 56(c), a court may grant summary judgment if it appears "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Furthermore, it is the substantive law that will determine what facts are material to the outcome of a case. See Anderson, 477 U.S. at 250.

 Initially, the moving party has the burden of informing the court of the basis of its motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). If the moving party satisfies its burden, the burden then shifts to the non-moving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The Court must then resolve all ambiguities and draw all reasonable inferences against the moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). However, the non-moving party must do more than simply show "that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. Only when the Court concludes that no rational finder of fact can find in favor of the non-moving party should summary judgment be granted. Gallo v. Prudential Residential. Servs., Ltd., 22 F.3d 1219, 1223 (2d Cir. 1994).

 B. Qualified Immunity

 The Court will examine the issue of qualified immunity first; if qualified immunity attaches in this instance, this may obviate the need for this Court to delineate the precise contours of the constitutional rights at issue here. Indeed, the Supreme Court has emphasized the importance of resolving the issue of qualified immunity early in a proceeding. See, e.g., Hunter v. Bryant, 502 U.S. 224, 229, 116 L. Ed. 2d 589, 112 S. Ct. 534 (1991) (noting that whether ...

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