ORDERS:
ORDER DENYING MOTION TO ALTER OR AMEND ORDER OF DISMISSAL
By an Order of Dismissal dated February 15, 2002, this tribunal granted Petitioner Roper Hospital's ("Roper") motion for a
voluntary dismissal of the above-captioned case without prejudice. On February 22, 2002, Respondent East Cooper
Regional Medical Center ("East Cooper") filed a Motion to Alter or Amend the Order of Dismissal. Roper filed a
memorandum in opposition to East Cooper's motion on March 4, 2002. For the reasons set forth below, East Cooper's
motion is hereby denied.
In its motion, East Cooper raises issues far beyond the scope of Roper's original petition for administrative review and
seeks relief far beyond that which this tribunal could prudently grant. In its Petition for Administrative Review, Roper
sought a contested case hearing to review "the decision made by the Respondent, South Carolina Department of Health and
Environmental Control ("DHEC"), on November 29, 2001 to void its determination made on September 8, 2000 that
Roper's relocation of diagnostic services currently provided in Mt. Pleasant, South Carolina and the addition of emergency
services . . . did not require Certificate of Need [(CON)] review." (Pet'r Pet. for Admin. Rev. at 1.) Accordingly, when
Roper decided to no longer contest DHEC's decision to revoke the non-applicability determination and moved for a
voluntary dismissal of this case, the only issue properly before this tribunal was extinguished. The issues raised by East
Cooper, both during the pendency of this matter and in its motion to alter the dismissal of this case, regarding DHEC's
alleged failure to enforce a cease and desist order against Roper and possible future agreements between DHEC and Roper
concerning Roper's Mt. Pleasant operations were merely collateral to the genuine issue at hand. Consequently, this tribunal
did not find it appropriate to prevent Roper from withdrawing its request for a contested case, thus compelling Roper to
pursue this matter solely for the sake of allowing East Cooper to litigate these collateral issues. (1)
Moreover, the collateral issues raised by East Cooper are largely speculative in nature, and therefore afford this tribunal
little basis upon which to render an order. East Cooper is concerned that DHEC and Roper may attempt to circumvent the
CON Act either through DHEC inaction with regard to Roper's operations or through a consent order that permits Roper's
continued operations, and that it will not be able to challenge any such attempts at circumventing the CON Act in a legal
forum. (Resp't Mot. to Alter or Amend the Order of Dismissal at 2-4.) However, these concerns are purely speculative,
with their realization hinging upon DHEC abnegating its duty to enforce the CON statutes and regulations by reaching an
illegal arrangement with Roper, DHEC and Roper arguing that East Cooper has no standing to challenge their arrangement,
and courts adopting the position that East Cooper lacks standing to oppose the arrangement. This tribunal cannot base the
terms of its order of dismissal on such a contingent and hypothetical set of circumstances. Cf. Waters v. S.C. Land Res.
Conservation Comm'n, 321 S.C. 219, 227, 467 S.E.2d 913, 917-18 (1996) ("A justiciable controversy is a real and
substantial controversy which is ripe and appropriate for judicial determination, as distinguished from a contingent,
hypothetical or abstract dispute.").
Further, the relief requested by East Cooper in its motion could not providently be granted by this tribunal. East Cooper
seeks to have the following conditions placed on the Order of Dismissal in the case: (1) that East Cooper be granted the
"right to challenge immediately, through the filing of a contested case, a decision made by DHEC to rescind or not enforce
the cease and desist order as well as any consent order that permits the continued operations of the Roper ER"; (2) that
DHEC be required to notify East Cooper of whether it will enforce a cease and desist order against Roper within fifteen
days of the dismissal; and (3) that, if DHEC intends to enter into a consent order with Roper, DHEC be required to execute
the consent order within fifteen days of the dismissal and that DHEC be required to provide the terms of the consent order
to East Cooper. (Resp't Mot. to Alter or Amend the Order of Dismissal at 4-5.) The first condition asks this tribunal to
grant East Cooper standing to challenge actions and events that have not, and may not, occur by creating a new right to
bring a contested case hearing. Plainly, though, this tribunal cannot guarantee East Cooper standing to bring a future action
based a purely hypothetical set of facts, see Sea Pines Ass'n for the Prot. of Wildlife v. S.C. Dep't of Natural Res., 345 S.C.
594, 550 S.E.2d 287 (2001), nor can it create a right to bring a contested case ex nihilo and without reference to some
constitutional, statutory, or regulatory grant of authority. See, e.g., Stono River Envtl. Prot. Ass'n v. S.C. Dep't of Health
& Envtl. Control, 305 S.C. 90, 406 S.E.2d 340 (1991). The second and third conditions ask this tribunal to interfere in
matters best left to DHEC's discretion. DHEC is given the discretion to make enforcement decisions under the CON Act,
see S.C. Code Ann. § 44-7-320(A)(1) (Supp. 2000), and this tribunal will not intrude upon that discretion without
compelling reasons. Cf. In re Tyson, 282 S.C. 212, 219, 318 S.E.2d 279, 283 (Ct. App. 1984) ("When a refusal to act is
under consideration, the courts should exercise the utmost circumspection not to substitute their own discretion for that of
the agency and should interfere by mandamus only when the facts so clearly show a duty to act that there is really no room
for the exercise of reasonable discretion against the doing of the act . . . .").
East Cooper's Motion to Alter or Amend the Order of Dismissal must be denied. The issues raised by the motion are not
properly within the scope of this case and the relief requested in the motion could not be properly granted by this tribunal.
IT IS THEREFORE ORDERED that East Cooper's Motion to Alter or Amend the Order of Dismissal in this case is
DENIED.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
March 15, 2002
Columbia, South Carolina
1. As this tribunal has noted elsewhere, "[i]t is fundamental that Petitioner cannot be required to press its case except as
outlined [in Rule 41(a)(2), SCRCP.]" Pee Dee Reg'l Landfill Auth. v. S.C. Dep't of Health and Envtl. Control, Docket No.
00-ALJ-07-0630-CC (Admin. Law Judge Div. June 22, 2001). |