Berger v. Board of Psychologist Examiners

• Decision Date: 28 October 1975
• Docket Number: No. 74-1047,74-1047
• Citation: 521 F.2d 1056,172 U.S. App. D.C. 396
• Parties: Joseph R. BERGER, Appellant, v. BOARD OF PSYCHOLOGIST EXAMINERS, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1056

521 F.2d 1056

172 U.S.App.D.C. 396

Joseph R. BERGER, Appellant, v. BOARD OF PSYCHOLOGIST EXAMINERS, Appellee.

No. 74-1047.

United States Court of Appeals District of Columbia Circuit.

Argued Jan. 16, 1975.

Decided Oct. 28, 1975.

Edward L. Genn, Washington, D. C., for appellant.

E. Calvin Golumbic, Asst. Corp. Counsel for the District of Columbia, Washington, D. C., for appellee. C. Francis Murphy, Corp. Counsel, Louis Robbins, Principal Asst. Corp. Counsel, Richard W. Barton and Earl A. Gershenow, Asst. Corp. Counsels, Washington, D. C., were on the brief for appellee.

Before MacKINNON and WILKEY, Circuit Judges, and VAN PELT ^*, United States Senior District Judge for the District of Nebraska.

Opinion for the court filed by Circuit Judge MacKINNON.

MacKINNON, Circuit Judge:

Appellant Joseph R. Berger, a practitioner of psychology in the District of Columbia since 1961, challenges the constitutionality of a 1971 law requiring that all psychologists practicing in the District be licensed and specifying that licenses shall be issued only to applicants possessed of certain academic credentials. Berger contends that the Due Process Clause of the Constitution guarantees him some alternative means of demonstrating his professional competence, in the nature of a "grandfather" concession to psychologists practicing at the time the licensure requirement was enacted. We agree, and remand to the licensing board for action consistent with this opinion.

I

In 1971 Congress passed the District of Columbia Practice of Psychology Act, P.L. 91-657, D.C.Code § 2-481 Et seq., a licensing statute designed to impose minimum educational requirements upon all psychologists practicing in the District. ¹ Section 7 of the Act, § 2-486, directs an appointed Commissioner to grant a license to anyone who (a) submits "satisfactory proof" of good moral character, (b) possesses a doctoral degree in psychology or in some other discipline deemed by the Commissioner to be sufficiently closely related, and (c) passes a written or oral examination. Section 8 of the Act is a limited "grandfather" clause which provides less stringent requirements for licensure for an applicant engaged in the practice of psychology in the District at the time the statute was enacted. The pertinent distinction is that section 8 permits substitution of a master's degree or "twenty-four credit hours taken subsequent to a bachelor's degree in courses related to psychology" and seven years' practice for possession of a doctorate and passage of an examination. Section 14 prescribes a misdemeanor penalty of up to $500 and/or six months in jail for failure to comply with the Act's licensing requirements. ²

Appellant Berger was awarded a BCS degree in accounting from Southeastern University in 1943. He received training in the field of psychology from several psychiatrists and was given credit for numerous courses in various areas of psychology which he took at American University, the United States Department of Agriculture Graduate School, and the Washington School of Psychiatry. Although he has never been certified or licensed to practice in any other jurisdiction and is not a member of any professional psychological association, he has practiced psychology in the District of Columbia for approximately 14 years, co-authored a book on hypnosis published by Prentice-Hall, and lectured and written on clinical topics. The licensing board established by the Act ignored these facts and letters written by some of Berger's colleagues testifying to his competency, and denied his application because of his failure to make the threshold showing required by the Act. The board concluded:

Inasmuch as it is conceded by the applicant that he possesses neither a doctor's degree nor a master's degree in psychology, it is clear that he is not qualified for a license under Section 8 of the Act.

Appellee's Brief at 9.

In 1971 Berger moved the District Court for a Temporary Restraining Order and Preliminary and Permanent Injunction to prevent enforcement of the Act and the denial of his right to practice psychology. He alleged that the absence of a proper grandfather clause and of discernible standards for licensure rendered the Act unconstitutional on its face. Judge Pratt granted Berger's request for a temporary restraining order but denied further relief without prejudice to reinstitution of the action after the licensing system had been established and Berger had exhausted his administrative remedies. In 1972 the Board rejected Berger's application for a license, and he immediately appealed to the District of Columbia Court of Appeals, attacking the statute as unconstitutional. In December 1973 the Court of Appeals ruled that because it sat as a reviewing board it could not pass on the constitutionality of the statute under which it proceeded, and consequently affirmed the Board's decision. ³ Proceeding under the express terms of the Act, which provides that "review (by the District of Columbia Court of Appeals) shall be subject to appeal to the United States Court of Appeals for the District of Columbia Circuit" Act, § 2-492, Berger brought his challenge here.

While Berger's appeal was pending in this court, Congress amended the Practice of Psychology Act, P.L. 93-515, passed December 7, 1974, to effect two modifications relevant to this controversy. Subsection (C) of section 13 was modified to remove all federal court jurisdiction to entertain appeals of D.C. Court of Appeals decisions, but only "with respect to petitions filed after the date of enactment of (these amendments)." Although this change lends support to appellee's argument that this court had appellate jurisdiction only through legislative oversight, it does not undercut our power to entertain an appeal in this case. Second, the statute's limited concession to current practitioners was expanded to accord an applicant with 24 post-graduate credit hours the same right as one holding a master's degree: either the degree or the course credits, plus seven years' practice prior to the filing of an application, entitled an individual to licensure. For one who has studied outside the United States, any "acceptable curriculum" taken upon completion of a bachelor's degree program is sufficient. Appellant Berger does not qualify even under these amendments.

Berger attacks the Act on four grounds: (1) that it fails to prescribe standards for licensure; (2) that the absence of meaningful grandfather rights or an equivalency provision constitutes invidious discrimination and a denial of due process; (3) that a classification which excludes from the profession a successful practitioner of 14 years is arbitrary and capricious; and (4) that a review board comprised of professional psychologists with apparent or actual qualifications under the Act is not a properly impartial adjudicatory body. Arguing for the licensing board, Corporation Counsel for the District of Columbia defends the statute as a rational exercise of congressional police power over the District and insists that this court cannot pass on constitutional issues in what is in essence an administrative proceeding.

II

The Corporation Counsel raises a threshold objection to Berger's appeal which we must consider before we reach the merits of this dispute. The argument is that Berger is precluded from challenging the constitutionality of a statute under which he has sought licensure. Corporation Counsel insists that Berger may not avail himself of the statutory review procedure outlined in the Act in order to prosecute that constitutional challenge, but must instead attend the institution of criminal proceedings against him for violating the licensure requirement, at which point his constitutional claim may be interposed as a defense. Because Corporation Counsel has both misapprehended the scope of Berger's constitutional attack on the Act and sought support from inapposite precedent, we conclude that this preliminary contention is insubstantial.

Corporation Counsel persuaded the District of Columbia Court of Appeals below that Berger should not be allowed to challenge the validity of the Act in a proceeding instituted under its review procedures. That court concluded that since Berger was aware the Board of Psychologist Examiners lacked the power to waive the academic requirements for licensure at the time of his administrative hearing, he

expected no relief from the Board. As far as he was concerned, the proceeding before the Board was a formality, used merely as a step to come to this court. Having gotten here by that procedure, in effect he seeks to institute an original action to have this court declare the Act invalid and unconstitutional. Does he have a right to institute such action and do we have a right to entertain it? We think not. ⁴

Two interpretations of this determination are possible. Corporation Counsel argues that the Court of Appeals found applicants for licensure proceeding under the review provisions of the Act to be utterly without an avenue of constitutional attack, and urges us to concur in that judgment. Alternatively, we might conclude that the Court of Appeals declined to pass on the constitutional claim because the Act specifically gave it the more limited function of Reviewing Board decisions, in contradistinction to this court's jurisdiction to entertain Appeals of rulings by the District of Columbia Court of Appeals. That court had no occasion to decide the breadth of our appellate jurisdiction, and the Corporation Counsel is in error in arguing that its decision foreclosed our scrutiny of the constitutionality of the Act.

In fact we need not define the difference between our jurisdiction on appeal and that of the D.C. Court of Appeals in review proceedings. In our opinion either tribunal has the power to pass on the particular constitutional claim Berger advanced. He sought not an erosion of the statutory scheme by...