On April 25, 2005, Petitioner Anonymous Physician filed a Petition with this Court
seeking “an emergency hearing because [Petitioner’s] license to practice medicine has been
suspended without a hearing and without notice.” By a Return and Motion to Dismiss filed on
May 6, 2005, Respondent South Carolina Department of Labor, Licensing and Regulation, State
Board of Medical Examiners (Board), moved to dismiss this Petition “because Petitioner has
failed to exhaust the necessary administrative remedies as required by [S.C. Code Ann.] § 1-23-380(A).” For the reasons set forth below, I find that Petitioner’s Petition should be dismissed for
his failure to exhaust his administrative remedies before the Board prior to seeking relief from
this Court.
BACKGROUND
Petitioner is a physician currently licensed to practice medicine in South Carolina. By an
Order of Temporary Suspension dated April 13, 2005, the Board issued a temporary suspension
of Petitioner’s license to practice medicine pursuant to its emergency powers under S.C. Code
Ann. § 1-23-370(c) (2005). Among other things, the Board’s Order provided Petitioner with an
opportunity to request a hearing before the Board to challenge the temporary suspension
contained therein:
[Petitioner] may, within ten days of the service of this Notice and the
accompanying Temporary Order of Suspension on him, request a hearing before a
designee or designees of the Board of Medical Examiners, at which hearing
[Petitioner] may ask the Board’s designee(s) to determine whether the temporary
suspension issued this date should remain in effect pending further Order of the
Board. Upon receipt of such a request by [Petitioner], the Administrator of the
Board shall appoint one or more hearing officers, who shall promptly schedule a
hearing on the issue of whether the temporary suspension issued this date should
remain in effect pending further Order of the Board[.]
Board’s Order of Temporary Suspension at 3 (emphasis added). Petitioner, however, did not
request such a hearing before a Board-appointed hearing officer, but rather, filed the instant
Petition with this Court, in which he appeals the Board’s Order pursuant to S.C. Code Ann. § 40-47-170 (2001) and seeks an “emergency hearing” on that appeal.
While Petitioner states a
number of objections to the Board’s Order of Temporary Suspension in his Petition, his primary
contention is that the Order was improperly issued because the Board has not provided him with
notice and an opportunity to be heard on the Order. See Pet’r Pet. at ¶¶ 6(a), 6(b), 6(e), 6(f),
6(p).
DISCUSSION
The doctrine of exhaustion of administrative remedies generally requires a person
seeking relief from the action of an administrative agency to pursue all available administrative
remedies before seeking such relief from the courts. See, e.g., Pullman Co. v. Pub. Serv.
Comm’n, 234 S.C. 365, 108 S.E.2d 571 (1959); see generally Richard H. Seamon,
Administrative Agencies—General Concepts and Principles, in South Carolina Administrative
Practice and Procedure 1, 83-96 (Randolph R. Lowell & Stephen P. Bates eds. 2004). However,
this exhaustion principle applies not only when a party is seeking judicial review of an agency
action, but also when a party is seeking review of an agency action before another administrative
agency, such as the South Carolina Administrative Law Court (ALC). See S.C. Code Ann. § 1-23-600(D) (Supp. 2004) (providing that appeals before the ALC are heard pursuant to the
provisions of S.C. Code Ann. § 1-23-380 (2005), which, in subsection (A), requires a party to
“exhaust[] all administrative remedies available within the agency” prior to seeking appellate
review of an agency decision); cf. S.C. Code Ann. § 12-60-30(14)-(15) (Supp. 2004)
(recognizing both the exhaustion of administrative remedies that is required before judicial
review of a tax matter may be had and the exhaustion of agency remedies that is required before
a party may seek review of a tax matter by the ALC). Further, the basic rationale for the
doctrine of exhaustion is equally applicable to administrative appellate review of agency
decisions by the ALC as it is to judicial appellate review of agency decisions. See Video
Gaming Consultants, Inc. v. S.C. Dep’t of Revenue, 342 S.C. 34, 38, 535 S.E.2d 642, 644 (2000)
(noting that “[e]xhaustion is generally required as a matter of preventing premature interference
with agency processes, so that the agency may function efficiently and so that it may have an
opportunity to correct its own errors, to afford the parties and the courts the benefit of its
experience and expertise, and to compile a record which is adequate for judicial review.”).
Therefore, prior to seeking review of an order issued by the Board before the ALC, a
physician must exhaust all administrative remedies with the Board, including requesting a
hearing before the Board or its designee regarding the Board’s order, if such a hearing is made
available. See, e.g., Garris v. Governing Bd. of the S.C. Reinsurance Facility, 319 S.C. 388, 461
S.E.2d 819 (1995) (holding that an insurance agent was required to pursue a hearing with the
Reinsurance Facility prior to challenging the Facility’s stated intent to revoke his designated
agent status in circuit court); Hyde v. S.C. Dep’t of Mental Health, 314 S.C. 207, 442 S.E.2d 582
(1994) (holding that a state employee had to pursue her administrative remedies under the State
Employee Grievance Procedure Act prior to raising her grievances under a whistleblower statute
in circuit court). And, the failure to pursue such administrative remedies before the Board
generally precludes review of the Board’s action by this Court. See Garris, 319 S.C. at 390, 461
S.E.2d at 821 (“Relief is generally not available to one who has not exhausted administrative
remedies.”); Hyde, 314 S.C. at 208, 442 S.E.2d at 583 (“The general rule is that administrative
remedies must be exhausted absent circumstances supporting an exception to application of the
general rule.”).
In the case at hand, I find that Petitioner failed to exhaust his administrative remedies
with the Board prior to filing his Petition with this Court. The Board’s Order of Temporary
Suspension explicitly granted Petitioner the opportunity to request a hearing before a Board-appointed hearing officer to contest the issuance of the Order of Temporary Suspension.
However, rather than avail himself of this opportunity to be heard, Petitioner directly, and
prematurely, sought review of the Board’s Order before this Court. By foregoing his opportunity
to request a hearing on his temporary suspension with the Board, Petitioner has failed to exhaust
his administrative remedies prior to bringing the instant case before this tribunal. In short,
Petitioner cannot willingly forego his opportunity for a hearing before the Board on the Order of
Temporary Suspension and then appeal the Order to this Court, complaining that he was not
afforded a hearing on the Order. Accordingly, this case must be dismissed.
ORDER
Because Petitioner failed to exhaust his administrative remedies with the Board prior to
filing his Petition in this matter,
IT IS THEREFORE ORDERED that the above-captioned case is hereby DISMISSED.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
May 19, 2005
Columbia, South Carolina
