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Virginia Board of Medicine v. Hagmann

Court of Appeals of Virginia

March 21, 2017



          Erin L. Barrett, Assistant Attorney General (Mark R. Herring, Attorney General; Cynthia V. Bailey, Deputy Attorney General; Allyson K. Tysinger, Senior Assistant Attorney General, on briefs), for appellant.

          Ramon Rodriguez, III, M.D. (Christina M. Dwyer; RawlsMcNelis, P.C., on brief), for appellee.

          Present: Judges Beales, Decker and Russell Argued at Richmond, Virginia.



         The Virginia Board of Medicine (the Board) appeals a ruling of the circuit court holding that it violated the due process rights of John Henry Hagmann, M.D., when it denied his motion for a second continuance of an administrative hearing under the Virginia Administrative Process Act (VAPA), Code §§ 2.2-4000 to -4301, resulting in the revocation of Hagmann's license to practice medicine. Hagmann raises several related assignments of cross-error. We hold that the circuit court erred by ruling that the Board should have granted the motion for a continuance. We further hold that the circuit court did not err in the ways alleged by Hagmann. Consequently, we reverse the circuit court's ruling in part, affirm it in part, and remand this case to the circuit court with directions that it reinstate the judgment of the Board revoking Hagmann's license to practice medicine.

         I. BACKGROUND

         By letter dated March 12, 2015, the Board of Medicine notified Hagmann that it had summarily suspended his license to practice medicine and scheduled a formal administrative hearing for April 22, 2015.[1] The complaint supporting the suspension was based on Hagmann's actions as the owner of a company through which he taught various courses to students at a federal military medical school. The allegations originated from a claim filed in February 2014 with the Board by the school. The claim centered mainly on Hagmann's conduct in operational medical school courses in 2012 and 2013. The alleged conduct involved allowing the students to perform, upon each other and Hagmann, invasive medical procedures that were unapproved and not undertaken in good faith for medicinal or therapeutic purposes, as well as Hagmann's performing such procedures on some of his students. The allegations also included Hagmann's encouraging students to use alcohol and various drugs in unapproved and dangerous ways. Additionally, Hagmann was accused of providing medical treatment, including prescriptions, without keeping adequate records. Along with notice of the allegations and hearing date, the Board provided Hagmann with nine volumes of exhibits.

         In late March 2015, Hagmann, apparently acting pro se, requested and received a continuance of the scheduled April 22 hearing date. About six weeks later, by letter of May 7, 2015, the Board notified him that it had rescheduled the hearing for June 19, 2015. Along with the letter, it enclosed an additional exhibit.

         By letter of May 8, 2015, Ramon Rodriguez, III, notified the Board that he had been retained to represent Hagmann. Rodriguez requested a second continuance, until the Board's next scheduled meeting date in October 2015. The Board, through the chair of the panel assigned to hear the case, denied the motion for a second continuance. The panel chair also denied the motion for reconsideration of that decision. Based on those rulings, Rodriguez moved to disqualify the panel chair from hearing the case. The Board denied the motion. Rodriguez notified the Board of Hagmann's ongoing objections to its rulings and made clear that neither Rodriguez nor Hagmann, nor anyone on Hagmann's behalf, would attend the June 19, 2015 hearing. Rodriguez did, however, submit twenty-two exhibits for the Board's consideration in Hagmann's defense.

         At the June 19, 2015 hearing, the Board took evidence, including testimony offered by the Commonwealth. It also heard argument from the Commonwealth. Hagmann did not appear, nor did any attorney appear on his behalf. After a hearing that lasted over six hours, the Board voted to revoke Hagmann's license to practice medicine and subsequently issued an order reflecting that revocation.

         Hagmann appealed the Board's decision to the circuit court, assigning error on six grounds, covering the same issues raised as assignments of error and cross-error in the instant appeal. The court, after hearing argument, concluded that by denying Hagmann's motion for a second continuance, the Board did not afford him "adequate time to prepare a defense." The circuit court also noted that in light of the suspension of Hagmann's medical license prior to the hearing, the Commonwealth would not suffer "substantial harm" from a continuance. The court consequently ruled that the Board violated Hagmann's due process rights by "denying [him] a meaningful opportunity to have counsel present at the June 19, 2015 hearing." Accordingly, the court remanded the matter to the Board for a new hearing. The court specifically rejected the doctor's claim that the denial of the second continuance violated his personal right to be present. It also rejected the claim that the Board's panel chair should have recused himself. The Board noted this appeal.

         II. ANALYSIS

         The Commonwealth contends on appeal that the circuit court erroneously reversed the Board ruling denying Hagmann's motion for a second continuance. On cross-error, Hagmann avers that despite the circuit court's favorable ruling regarding his request for a second continuance, it erroneously rejected several other claims that the Board violated his procedural due process rights.

         A. Standard of Review

         On appeal of agency action under the VAPA, the party complaining bears the "burden of demonstrat[ing] an error . . . subject to review." Code § 2.2-4027. The circuit court's role in such an appeal "is equivalent to an appellate court's role in an appeal from a trial court" ruling. Comm'r v. Fulton, 55 Va.App. 69, 80, 683 S.E.2d 837, 842 (2009) (quoting Sch. Bd. v. Nicely, 12 Va.App. 1051, 1062, 408 S.E.2d 545, 551 (1991)). In an appeal to the circuit court and the Court of Appeals, the reviewing court may examine the agency decision for "(i) accordance with constitutional right, " "(ii) compliance with statutory authority, " "(iii) observance of required procedures where any failure therein is not mere harmless error, and (iv) the substantiality of the evidentiary support for findings of fact." Code § 2.2-4027; see Johnston-Willis, Ltd. v. Kenley, 6 Va.App. 231, 242, 369 S.E.2d 1, 7 (1988).

         Pure questions of law are reviewed de novo. Code § 2.2-4027; see Va. Ret. Sys. v. Blair, 64 Va.App. 756, 763-64, 772 S.E.2d 26, 29-30 (2015). However, where a decision is within the discretion of the agency, "judicial interference is permissible only for relief against . . . arbitrary or capricious action that constitutes a clear abuse of . . . delegated discretion." Johnston-Willis, 6 Va.App. at 244, 369 S.E.2d at 8 (quoting Va. Alcoholic Beverage Control Comm'n v. York St. Inn, Inc., 220 Va. 310, 315, 257 S.E.2d 851, 855 (1979)). A body "by definition abuses its discretion when it makes an error of law." Porter v. Commonwealth, 276 Va. 203, 260, 661 S.E.2d 415, 445 (2008) (quoting Koon v. United States, 518 U.S. 81, 100 (1996)).

         Regarding subsidiary factual findings, the reviewing court must view the facts "in the light most favorable to sustaining the agency's decision." Blair, 64 Va.App. at 770, 772 S.E.2d at 32. Credibility determinations are factual findings subject to this same standard. Fulton, 55 Va.App. at 80, 683 S.E.2d at 842. The scope of judicial review of an agency exercising its "fact finding function . . . is 'severely limited, partly in deference to the agency's expertise in a specialized field.'" Ga.-Pac. Corp. v. Robinson, 32 Va.App. 1, 4, 526 S.E.2d 267, 268 (2000) (quoting Metro. Cleaning Corp. v. Crawley, 14 Va.App. 261, 266, 416 S.E.2d 35, 38 (1992)). The reviewing court may "reject [the] agency's factual findings only if, considering the record as a whole, a reasonable mind would necessarily come to a different conclusion." Blair, 64 Va.App. at 765, 772 S.E.2d at 30 (quoting Doctors' Hosp. of Williamsburg, LLC v. Stroube, 52 Va.App. 599, 607, 665 S.E.2d 862, 865 (2008)).

         It is in light of these legal principles that we examine the parties' claims of error.

         B. Due Process Framework

         All assignments of error and cross-error on appeal involve alleged violations of Hagmann's due process rights said to have occurred in the course of the revocation of his license to practice medicine. "Suspension of issued licenses . . . involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment [of the Constitution of the United States]." Mall Amusements, LLC v. Va. Dep't of Alcoholic Beverage Control, 66 Va.App. 605, 613, 790 S.E.2d 245, 249 (2016) (quoting Bell v. Burson, 402 U.S. 535, 539 (1971)).

         Constitutional guarantees of procedural due process provide certain "minimum requirements" that "must attend administrative hearings." Hladys v. Commonwealth, 235 Va. 145, 147, 366 S.E.2d 98, 99 (1988) (citing Goldberg v. Kelly, 397 U.S. 254, 271 (1970)). These guarantees include "timely and adequate notice, the right to present evidence and confront adverse witnesses, the right to assistance of retained counsel, and . . . the right to an impartial decision maker." Mall Amusements, 66 Va.App. at 613, 790 S.E.2d at 249. The VAPA provides similar protections: It states that parties to formal hearings "shall be given reasonable notice" of not only the "time, place, and nature thereof" but also the "matters of fact and law asserted or questioned by the agency." Code § 2.2-4020(B). It further provides that in all such proceedings, "the parties shall be entitled to be accompanied by and represented by counsel, to submit oral and documentary evidence . . ., [and] to conduct cross-examination." Code § 2.2-4020(C). Finally, Virginia law, like constitutional procedural due process, entitles a respondent in an administrative hearing to "an impartial decision-maker." Hladys, 235 Va. at 147, 366 S.E.2d at 99; see Code § 54.1-110 (providing a mechanism for disqualifying a hearing officer or panel member in a hearing conducted by a board overseeing a profession or occupation).

         Along with the general legal principles applied to administrative appeals, we examine the parties' assignments of error through the lens of these constitutional and statutory principles.

         C. Motion for Second Continuance

         The Commonwealth argues that, contrary to the ruling of the circuit court, the Board's denial of Hagmann's motion for a second continuance did not violate his right to counsel of his choosing or to adequate notice of the new evidentiary hearing date. On cross-error, Hagmann avers that the circuit court erroneously rejected his claims that the Board further violated his due process rights by denying the motion for continuance ...

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