SC Administrative Law Court Decisions

The Appellant (Anonymous) filed a Petition for Mandamus on November 24, 1997. Due to the granting of a Motion for Accelerated and Expedited Review of the Mandamus request, a hearing was held in this matter on November 25, 1997. During the hearing, and without objection, Anonymous amended the Petition to add a Motion To Compel Discovery as well.

Anonymous was served on May 6, 1997 with a complaint alleging that he had violated statutes and regulations regarding the practice of medicine. The complaint notified Anonymous of the charges against him and provided patient names, dates of violations, and the basis for each alleged violation. The Board has also provided to Anonymous a statement of the patient files under review, and will, prior to the hearing, provide copies of all other documents to be used at the hearing. Anonymous also asked Richard Simmons (the attorney who will present to the Board the charges against Anonymous) for the names of the two doctors giving the opinions. Simmons declined to provide that information. Immediately prior to the instant hearing, however, Simmons revealed to Anonymous the names of the two doctors. Since Anonymous was denied subpoenas for deposition purposes and since the hearing before the Board is set for December 3, 1997, Anonymous filed this mandamus request and motion to compel discovery.

The mandamus and the motion to compel seek discovery. Principally, Anonymous seeks to have the Board issue subpoenas compelling two witnesses to sit for depositions. The Board opposes the mandamus and motion on the grounds the ALJ has no subject matter jurisdiction in the matter. Both the mandamus and the motion to compel are denied for lack of jurisdiction.

A hearing body always has the duty to determine whether it has jurisdiction of a matter. Bridges v. Wyandotte Worsted Co., 243 S.C. 1, 132 S.E.2d 18 (1963). Here, the Board argues no jurisdiction exists over either the request for mandamus or the motion to compel discovery. Under the law and the facts of this case, I agree.

A. Basis For Jurisdiction

An ALJ has the authority to issue those remedial writs "as are necessary to give effect to its jurisdiction." S.C. Code Ann. § 1-23-630 (Supp. 1996). Mandamus is clearly a writ. 55 C.J.S. Mandamus § 1 (1948). The issue is whether such a writ is necessary "to give effect to the [ALJ's] jurisdiction." The jurisdiction of an ALJ over decisions of the Board is appellate jurisdiction. S.C. Code Ann. § 40-47-200(E) (Supp. 1996). In exercising appellate jurisdiction, an ALJ may hear appeals of interlocutory orders where "review of the final agency decision would not provide an adequate remedy." S.C. Code Ann. § 1-23-380(a) (Supp. 1996). Likewise, in addressing a motion to compel discovery, the ALJ can hear such a motion under S.C. Code Ann. § 1-23-380(a) if the review of the final agency decision would not provide an adequate remedy. Since the party seeking jurisdiction has the burden of proving that jurisdiction, Anonymous must demonstrate how the review of the final agency decision will be an inadequate remedy. Yarborough and Co. v. Schoolfield Furniture Industries, Inc. 275 S.C. 151, 268 S.E.2d 42 (1980).

B. Adequacy of Remedy of Reviewing Final Board Decision

Anonymous asserts five primary reasons for arguing a review of the final decision will be an inadequate remedy. I have reviewed the arguments, and I find that whether considered alone or as a group, the arguments do not demonstrate that a review of the final agency decision will provide an inadequate remedy. Hence, I find no subject matter jurisdiction to grant the relief sought.

1. Lack of a Stay

First, Anonymous asserts that when a decision is made adverse to him, a prohibition on staying that decision becomes automatic. See S.C. Code Ann. § 40-47-200(E) (Supp. 1996) ("No stay or supersedeas may be granted pending appeal from a decision by the board to revoke, suspend, or restrict a license for more than six months"). The argument is that the inability to retain a license during the appeal process makes the lack of discovery material prior to the hearing all the more crucial. I disagree with Anonymous' claim that the review of the final decision will be an inadequate remedy.

While the statute prohibits a stay of a revocation order, that action is statutorily balanced by a mandatory requirement that the appeal of the case be heard within thirty days. S.C. Code Ann. § 40-47-200(E) (Supp. 1996). A speedy hearing is a balancing of the competing interests of the public's need for protection and the doctor's need to practice a chosen profession. Given such a safeguard for the doctor and the public, any alleged manifest injustice occurring in the pre-hearing phase can be quickly addressed at the appeal stage. Thus, the final review is an adequate remedy.

2. Lack of Subpoena Power

Second, Anonymous argues the Board has the power to subpoena witnesses while he does not. Under the parameters of this case, Anonymous is mistaken. Counsel for the Board unequivocally stated the Board has allowed the use of its subpoena power by physicians facing alleged violations. Further, under the APA, "the agency hearing a contested case may issue in the name of the agency subpoenas for the attendance and testimony of witnesses and the production and examination of books, papers, and records on its own behalf or, upon request, on behalf of any other party to the case." (emphasis added) S.C. Code Ann. § 1-23-320(d) (Supp. 1996). Nothing in this matter suggests the Board has refused to issue subpoenas to Anonymous to require the attendance of witnesses at the hearing.

3. Lack of a Continuance

Third, Anonymous argues he has been denied a continuance and is thus unable to timely prepare for the hearing. A motion for continuance is within the sound discretion of the hearing body and denial of a continuance request will not be reversed without a clear showing of abuse. First Savings Bank v. McLean, 314 S.C. 361, 444 S.E.2d 513 (1994). Thus, for Anonymous to demonstrate that a final review of the agency decision will be inadequate, he at least has the initial burden of presenting some basis for asserting the action of the Board was an abuse of discretion.

While I do not attempt to decide whether an abuse of discretion did or did not occur, the factual circumstances presented to me do not make a strong case for a showing of abuse. For example, Anonymous was represented by counsel at an earlier date in the proceeding and for reasons unspecified, earlier counsel ceased to represent Anonymous. At least as early as September 2, 1997, Anonymous had notice of the December 3, 1997 hearing before the Board. Anonymous delayed in retaining counsel until November 8, 1997. New counsel sought an initial continuance on the grounds he was to attend a seminar which conflicted with the hearing date. That continuance was denied and a second request for continuance was sought on November 19, 1997 on the basis that discovery depositions were necessary. Again, not only is the granting of a continuance subject to the abuse of discretion standard but the hearing body's rulings on discovery matters are also subject to that standard. See Hook v. Rothstein, 281 S.C. 541, 316 S.E.2d 690 (Ct.App.1984) (decision will not be disturbed on appeal absent a showing of a clear abuse of discretion). Accordingly, Anonymous does not present a strong showing that the continuance was improper and does not present a basis demonstrating a final review of the Board's decision would provide an inadequate remedy.

4. Lack of Disinterested Adjudicators

Fourth, Anonymous argues the Board and the prosecuting activities are too closely intertwined to provide a fair review of a final decision. Generally, no violation of law occurs where an administrative agency uses different people in the agency to handle investigation activities and those people are separate from the prosecutorial people. Baldwin v. Dept. of Hwys. and Pub. Transp., 297 S.C. 232, 376 S.E.2d 259 (1989). Here, other than general accusations, no evidence by affidavit or otherwise is available to allow me to find that improper activities occurred between investigators and adjudicators. Accordingly, Anonymous does not present a basis demonstrating a final review of the Board's decision would provide an inadequate remedy.

5. Lack of Due Process

Finally, Anonymous argues proceeding without the depositions violates his due process and that a final review of the agency decision cannot restore the damage done from such an unfair procedure. Again, I am unable to agree with Anonymous.

Certainly, at least in some jurisdictions, similar arguments have been found to have merit. Dragon v. Connecticut Medical Examining Bd., 391 A.2d 150 (Conn. 1991) (physician entitled to prehearing examination of witness statements in a proceeding to revoke his medical license where such an examination was crucial to the physician's exercise of his cross-examination rights; Montgomery v. Dep't. of Registration and Educ., 496 N.E.2d 1100 (Ill.1986) (a registered nurse who was the subject of revocation proceedings was entitled to investigation documents in the possession of the agency where those documents might have been helpful in the hearing). However, the essential inquiry is whether the fundamental requirement has been met of having the opportunity to be heard at a "meaningful time and in a meaningful manner." South Carolina Nat'l Bank v. Central Carolina Livestock Market Inc., 289 S.C. 309, 345 S.E.2d 485 (1986). Due process is a flexible concept whose requirements in a particular case depend upon the importance of the interest involved and the circumstances under which the deprivation may occur. Roper Hosp. v. Clemons, ___ S.C. ___, 484 S.E.2d 598 (Ct. App. 1997).

Under the case as presented to me, I find Anonymous is not prevented from having a fair hearing before the Board given the fact that Anonymous will have a right to appellate review of the Board's final decision. Due process violations cannot be determined without an examination of the circumstances under which the alleged deprivation occurs. S.C.N.B. v. Central Carolina Livestock Market, 289 S.C. 309, 345 S.E.2d 485 (1986). Generally, a determination of whether a party is prejudiced by an order denying discovery is best determined in light of subsequent developments at trial. Lowndes Products, Inc. v. Bower, 262 S.C. 431, 205 S.E.2d 184 (1979).

Here, at least from a preliminary view of the proceedings occurring prior to trial, the danger of a violation of due process is lessened from the "discovery" provided by the Board. Several months prior to this hearing, the Board notified Anonymous of the charges against him in which patient names, dates of violations, and basis for violation were identified; provided a statement of the patient files under review; provided (albeit without the names of the doctors) the written opinions of two doctors explaining why Anonymous' prescription practices were inappropriate; and will, prior to the hearing, provide copies of all other documents to be used at the hearing. However, if upon conclusion of the Board's contested case and issuance of its decision, Anonymous is able to demonstrate that his rights to due process were violated by the lack of discovery, the ALJ can take corrective action. S.C. Code Ann. § 1-23-380(A)(6) (Supp. 1996).

Considering all the circumstances, the appellate review of the Board's final decision provides an adequate remedy for Anonymous. Accordingly, the ALJ lacks subject matter jurisdiction to consider

the issuance of a writ of mandamus to order discovery before the Board and lacks subject matter jurisdiction to order the Board to permit discovery.

AND IT IS SO ORDERED.

RAY N. STEVENS

Administrative Law Judge

November 26th, 1997

Columbia, South Carolina