THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY Joseph J. Ellis,
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.
Rodriguez, III, M.D. (Christina M. Dwyer; RawlsMcNelis, P.C.,
on brief), for appellee.
Present: Judges Beales, Decker and Russell Argued at
GRAFF DECKER JUDGE.
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.
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. 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.
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.
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.
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.
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.
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.
Standard of Review
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
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,
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)).
in light of these legal principles that we examine the
parties' claims of error.
Due Process Framework
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)).
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
with the general legal principles applied to administrative
appeals, we examine the parties' assignments of error
through the lens of these constitutional and statutory
Motion for Second Continuance
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