Danahy v. Buscaglia

134 F.3d 1185, 1998 WL 28123
CourtCourt of Appeals for the Second Circuit
DecidedJanuary 27, 1998
DocketNo. 2065, Docket 97-7264
StatusPublished
Cited by20 cases

This text of 134 F.3d 1185 (Danahy v. Buscaglia) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Danahy v. Buscaglia, 134 F.3d 1185, 1998 WL 28123 (2d Cir. 1998).

Opinion

BRIEANT, District Judge.

The sole issue presented in this interlocutory appeal under the collateral order doctrine is whether Defendants, Attorney General of the State of New York, his former Acting Deputy and former Deputy for Administration are entitled to “qualified immunity” against the claim of Plaintiffs that they were discharged wrongfully from Government employment in violation of their First Amendment right of free association as explained in Elrod-Branti and its progeny.1 We conclude that we have jurisdiction to hear this appeal under the collateral order doctrine and that based on the uncontested facts of record, defendants-appellants are entitled to qualified immunity as a matter of law.

Plaintiffs-Appellees (hereinafter Plaintiffs) were employed in the New York State Department of Law, Medicaid Fraud Control Unit (“MFCU”). In 1995, plaintiff Danahy was Supervising Special Investigator; plaintiffs Burke and Bissram were Senior Special Investigators; plaintiffs Matthews and Angil-letta were Special Investigators; plaintiff Mungo was a Senior Special Auditor Investigator and plaintiff Henesey was an Investigative Clerk. Each was hired at will in the discretion of a prior Attorney General or his designee. No Plaintiff was within the classified service of the state as provided by the Civil Service Law; none were required to pass a competitive examination as a condition of appointment.

Defendant Dennis C. Vacco, a Republican, was elected Attorney General of New York effective January 1,1995, changing the political control of the Department of Law for the first time since 1978. The Governor’s office changed at the same time, Mr. Vacco having campaigned for election as part of a team led by newly elected Governor George E. Pataki.

The MFCU was established within the Department of Law by the Attorney General in 1975 pursuant to N.Y. Exec. Law § 63(3) and (8) and continued pursuant to 42 C.F.R. § 1007.1 et seq. Originally it was called the Special Prosecutor’s Office with jurisdiction limited to nursing homes and hospitals.2

42 C.F.R. § 1007.3 (1996) implements sections 1903(a)(6), 1903(b)(3) and 1903(q) of the Social Security Act as amended by the Medicare-Medicaid Anti-Fraud and Abuse Amendments. Pub.L. No. 95-142, 91 Stat. 1175 (1977). The Committee on Interstate and Foreign Commerce of the House of Representatives which reviewed the Medicare-Medicaid Anti-Fraud and Abuse Amendments stated in its Report that the legislation was intended to strengthen the capability of the Government to detect, prosecute and punish fraudulent activities under the Medicare and Medicaid programs. H.R.Rep. No. 95-393(11) at 38 (1977), reprinted in 1977 U.S.C.C.A.N. 3039, 3040. The Committee also noted that it was particularly impressed with the organization and operation of the New York Special Prosecutor’s Office and the Committee believed that Office constituted a model for anti-fraud efforts in other states. Id. at 80, 1977 U.S.C.C.A.N. at 3087. In addition, the Committee emphasized the need for employment of highly skilled auditors, attorneys, and investigators specially trained in the area of Medicaid fraud, id. at 81, 1977 U.S.C.C.AN. at 3083, noting that it had “received substantial evidence of the complex schemes employed by those engaging in fraudulent activities and notfing] that the only way such practices can be effectively addressed [is] by utilizing persons specially skilled in uncovering these activities.” Id. at 81, 1977 U.S.C.C.A.N. 3083-84.

42 C.F.R. § 1007.11 (1996) which describes the duties and responsibilities of the unit states in part:

(a) the unit will conduct a Statewide program for investigating and prosecuting (or referring for prosecution) violations of all applicable State laws pertaining to fraud in the administration of the Medicaid program, the provision of medical assis-[1188]*1188tanee, or the activities of providers of medical assistance under the State Medicaid plan.
(b)(1) The unit will also review complaints alleging abuse or neglect of patients in health care facilities receiving payments under the State Medicaid plan and may review complaints of the misappropriation of patient’s private funds in such facilities. (2) If the initial review indicates substantial potential for criminal prosecution, the unit will investigate the complaint or refer it to an appropriate criminal investigative or prosecutive authority.
(d) Where a prosecuting authority other than the unit is to assume responsibility for the prosecution of a case investigated by the unit, the unit will insure that those responsible for the prosecutive decision and the preparation of the case for trial have the fullest possible opportunity to participate in the investigation from its inception and will provide all necessary assistance to the prosecuting authority throughout all resulting prosecutions.
(e) The unit will make available to Federal investigators or prosecutors all information in its possession concerning fraud in the provision or administration of medical assistance under the State plan and will cooperate with such officials in coordinating any Federal and State investigations or prosecutions involving the same suspects or allegations.

In addition to investigating and prosecuting Medicaid fraud, the MFCU pursues other crimes relating to health care.

In 1995-96, the New York MFCU investigated and prosecuted cases involving sexual abuse and rape of nursing home patients by a certified nurses aide; a case of theft by submission of fraudulent bills for transporting Medicaid patients to and from their homes to health care providers, when the individuals claimed to have been transported were in fact dead at the time; several eases of theft and resale of prescriptions and drugs; a ease of theft of cash receipts from Brooklyn Hospital, a Medicaid provider; several cases of fraudulent billing for laboratory tests which were unnecessary or never performed; and sued on and settled several large claims for over-billing, kickbacks and inflated costs on the part of hospitals and other providers.

Essentially, the MFCU is a statewide highly specialized prosecutor’s office, exercising traditional prosecutorial discretion in its choice of cases.

42 C.F.R. § 1007.13 prescribes the inherent powers and qualifications of MFCU staff. It reads in relevant part as follows:

§ 1007.13 Staffing requirements
(a) The unit will employ sufficient professional, administrative, and support staff to carry out its duties and responsibilities in an effective and efficient manner. The staff must include:

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Danahy v. Buscaglia
134 F.3d 1185 (Second Circuit, 1998)

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Bluebook (online)
134 F.3d 1185, 1998 WL 28123, Counsel Stack Legal Research, https://law.counselstack.com/opinion/danahy-v-buscaglia-ca2-1998.