In DiBlasio v. Novello, 344 F.3d 292 (2d Cir. 2003), cert. denied, 541 U.S. 988 (2004), the Court of Appeals for the Second Circuit reconfirmed the long-standing and well-settled rule that an ex post, as opposed to a pre-removal, hearing is inadequate to satisfy the dictates of due process where the "government actor in question is a high-ranking [state] official with 'final authority over significant matters.'" Id. at 302 (quoting Burtnieks v. City of New York, 716 F.2d 982, 988 (2d Cir. 1983)).
The commissioner of the New York Department of Health had issued a press release indicating that he had suspended the license of the plaintiff, a radiologist, based on a finding of incompetence and of "criminal[]" behavior. Id. at 295. The plaintiff sued the commissioner, asserting, among other things, a stigma-plus liberty violation. On a Rule 12(b)(6) motion, the district court dismissed the due process claim, citing Hellenic Am. Neighborhood Action Comm. v. City of New York, 101 F.3d 877, 880 (2d Cir. 1996). (Hellenic American amplified the Supreme Court's distinction between "(a) claims based on established state procedures and (b) claims based on random, unauthorized acts by state employees," id., and emphasized that, because the state is in no position to provide adequate pre-deprivation process in the latter case, post-deprivation review is adequate. Id. But in so holding, it also indicated that where established state procedures are involved, pre-removal hearings will normally be required. Id.) On its reading of Hellenic American, the district court had concluded that the commissioner's statements required only a post-deprivation proceeding.
The Second Circuit held that the district court had erred in this conclusion. It started from the long accepted premise that due process dictates that persons ordinarily deserve "some kind of hearing" prior to the deprivation of a liberty interest, 344 F.3d at 302, and that it is only where the state is effectively "unable to anticipate and prevent a random deprivation of a liberty interest, [that] post deprivation remedies might satisfy due process." Zinermon v. Burch, 494 U.S. 113, 132, 108 L. Ed. 2d 100, 110 S. Ct. 975 (1990). For this reason, the Second Circuit held that post-deprivation remedies do not suffice where the "government actor in question is a high ranking official with 'final authority over significant matters'" DiBlasio, 344 F.3d at 302 (quoting Burtnieks v. City of New York, 716 F.2d 982, 988 (2d Cir. 1983)); see also Dwyer v. Regan, 777 F.2d 825, 832 (2d Cir. 1985). Since the "state acts through its high-level officials," the decisions of these officials more closely resemble established state procedures than the haphazard acts of individual state actors that the Hellenic American exception was designed to cover. DiBlasio, 344 F.3d at 303. The health commissioner's actions in DiBlasio could therefore not be deemed to be random or unauthorized, and pre-removal process was required. On that basis, plaintiff's liberty interest claim was reinstated. Id.