ORDERS:
ORDER
This matter is before the Administrative Law Judge Division ("Division") pursuant to a request for injunctive relief by the Petitioner, Sobhi W. Girgis, M.D. Petitioner requested that the Respondent, South Carolina Department of Labor, Licensing and Regulation, State Board of Medical Examiners ("Board"), be ordered to immediately reinstate Petitioner’s license to practice medicine and to provide him with a copy of the initial complaint in this case, pursuant to the Opinion of the South Carolina Court of Appeals in S.C. Dept. of Labor, Licensing and Regulation v. Girgis, 332 S.C. 162, 503 S.E.2d 490 (Ct. App. 1998), cert. denied, April 7, 1999. A hearing on the Petitioner’s request was held at the offices of the Division in Columbia, South Carolina, on May 11, 1999. The Board, which initially had refused to provide the Petitioner a copy of the initial complaint, did furnish a copy of that document prior to the hearing. Accordingly, I find that this issue is now moot. This Order, therefore, will address only the issue of the reinstatement of Petitioner’s license to practice medicine.
STATEMENT OF THE CASE
In 1989, an initial complaint was filed against the Petitioner. The Board investigated the allegations of the complaint and issued its formal complaint against the Petitioner in September 1993. Following a hearing conducted before a hearing panel appointed by the Executive Director of the Board, the full Board issued a final order on July 25, 1994, in which it found that Petitioner had violated certain provisions of the statutes and regulations applicable to physicians, and revoked his license. Thereafter, Petitioner appealed the Board’s decision to the Division. On February 7, 1995, I issued a Final Decision and Order which reversed the decision of the Board and remanded the case to the Board for rehearing. The Order further held that the Board had committed due process violations against Petitioner by failing to give him adequate notice of the charges against him and by failing to provide him with a copy of the initial complaint.
On appeal, the circuit court reversed the Division’s Order of February 7, 1995 and reinstated the decision of the Board. Petitioner then appealed to the South Carolina Court of Appeals, which issued a decision on June 23, 1998. The Court of Appeals held that Petitioner had received adequate notice of the charges against him, but that the Board committed error in refusing to provide Petitioner a copy of the initial complaint. The Court reversed the Board’s decision to revoke Petitioner’s license and remanded the case to the Board "to provide Dr. Girgis with a copy of the initial complaint." Girgis, 503 S.E.2d at 494. The Board then filed a Petition for Rehearing before the Court of Appeals, which was denied. The Board’s subsequent Petition for Writ of Certiorari to the South Carolina Supreme Court was likewise denied.
Following the Supreme Court’s action, counsel for Petitioner wrote the Board demanding both a copy of the initial complaint against the Petitioner and immediate reinstatement of Petitioner’s license to practice medicine. The Board initially refused to produce a copy of the initial complaint on the grounds that subsequently passed regulations prohibited such release. As to the issue of reinstatement, the Board advised Petitioner’s counsel that in order for Petitioner’s license to be reinstated, Petitioner would have to appear before the Board to request reinstatement and to allow the Board to determine any conditions or restrictions to be placed on Petitioner’s license. Following the filing of Petitioner’s request for injunctive relief before the Division, the Board provided a copy of the initial complaint, and served Petitioner’s counsel with a Notice of Hearing, setting Petitioner’s appearance before the Board for May 18, 1999, pursuant to the Court of Appeals’ remand of the case.
DISCUSSION
Petitioner asserts that, pursuant to the opinion of the Court of Appeals, the Board’s Executive Director must immediately reinstate his license to practice medicine, and that the Board cannot impose any conditions or restrictions upon the reinstatement. He further argues that, since the Court of Appeals’ opinion remanded the matter to the Board "to furnish [Petitioner] with a copy of the initial complaint" and did not specifically order a new hearing, this matter should now be ended. The Board, on the other hand, states that since Petitioner has not been practicing medicine during the pendency of this action, he must appear before the Board so that it can determine whether any conditions, such as a requirement that Petitioner attend continuing medical education programs, should be imposed as a prerequisite to reinstatement. Furthermore, the Board’s position is that the case was remanded so that another hearing on the disciplinary action could be conducted. Finally, the Board questions whether the Division’s jurisdiction in this matter is appropriate.
I. Jurisdiction
The Board states that the Division may not be the proper forum in which to address its alleged noncompliance with the Court of Appeals’ order. Instead, the Board posits that the matter should have been brought before the Court of Appeals. However, S.C. Code Ann. § 40-47-170 (Supp. 1998) provides that "[a]ny action of the board relating to the granting, refusal or cancellation of a license, or any other official action of the board relating to a license or licensee hereunder, shall be subject to review by an administrative law judge . . . ." Accordingly, I find that the Division has jurisdiction to hear this case.
II. Effect of Reversal of Board’s Order
Petitioner argues that, because the Court of Appeals reversed the Order of the Board which revoked his license, the Board, through its Executive Director, must immediately reinstate the license without conditions, and that Petitioner should not be required to appear before the Board in order to be reinstated. The Board asserts that Petitioner should attend a hearing in order to determine the conditions of his reinstatement.
In its opinion, the Court of Appeals held that the Board had erred in refusing to provide Petitioner a copy of the initial complaint, and stated: "Accordingly, we reverse the decision of the Board and remand for the Board to provide [Petitioner] with a copy of the initial complaint." 503 S.E.2d 490, 494 (emphasis added). The South Carolina Supreme Court has held that the reversal of a judgment on appeal has the effect of vacating the judgment and leaving the case standing as if no judgment had been rendered. Moore v. North American Van Lines, 319 S.C. 446, 462 S.E.2d 275 (1995). Therefore, since the judgment of the Board which revoked Petitioner’s license has been vacated, Petitioner must of necessity be returned to the status he occupied prior to the issuance of the Board’s order--that of a licensed physician. The Court of Appeals’ opinion leaves no discretion in the Board to impose any conditions upon Petitioner’s reinstatement. Accordingly, I conclude that the Executive Director of the Board must immediately reinstate Petitioner’s license with no conditions.
III. Status of the Case After Remand
Petitioner further contends that, since the Court of Appeals did not specifically order a new hearing, but instead remanded the case to the Board to provide a copy of the initial complaint, this matter should now be ended and no further proceedings against his license are warranted. However, the general rule is that, even if an appellate court does not specifically order a new trial, a new trial is intended and necessary where the case has been reversed and remanded generally without directions to the contrary. 5 C.J.S. Appeal and Error § 1002 (1993). Moreover, once the remittitur is issued and the proceedings are returned to the lower court, the lower court acquires subject matter jurisdiction to enforce the judgment and to take any action consistent with the appellate court’s ruling. Bunkum v. Manor Properties, 321 S.C. 95, 467 S.E.2d 758 (Ct. App. 1996). Here, the Court of Appeals reversed the decision of the Board and remanded for the Board to provide Petitioner with a copy of the initial complaint. The fact that Petitioner was to be provided a copy of the initial complaint certainly implies that the Court of Appeals intended for further proceedings to take place. Had the Court intended this case to be ended, it would have simply reversed the Board’s decision and not remanded the case. I therefore find that the Board has jurisdiction to proceed with a rehearing of this matter. However, I note that in light of the amount of time which has already elapsed during the pendency of these proceedings, during which time Petitioner has been deprived of his license, the Board should proceed expeditiously in resolving this matter at its hearing which is scheduled for May 18, 1999, and in rendering a final decision in the contested case.
ORDER
For all the foregoing reasons, it is hereby ORDERED that, upon receipt of this Order, the Board, through its Executive Director, must immediately and without conditions reinstate Petitioner’s license to practice medicine, pending the resolution of the disciplinary matter. The Board is admonished to proceed expeditiously in resolving this matter at its May 18, 1999 hearing, and in issuing its final decision in the contested case proceedings against the Petitioner.
AND IT IS SO ORDERED.
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Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
May 13, 1999 |