Board of Physicians v. Elliott, 1137, September Term, 2005.

Citation170 Md. App. 369,907 A.2d 321
Decision Date13 September 2006
Docket NumberNo. 1137, September Term, 2005.,1137, September Term, 2005.
PartiesMARYLAND BOARD OF PHYSICIANS v. Robert Michael ELLIOTT.
CourtCourt of Special Appeals of Maryland

Sarah Earlene Pendley (J. Joseph Curran, Jr., Atty. Gen., on brief), for appellant.

William A. Beale, Towson, for appellee.

Panel MURPHY, C.J., HOLLANDER and CHARLES E. MOYLAN, Jr. (retired, specially assigned), JJ.

MOYLAN, J.

This administrative appeal raises several intriguing questions about the intricate matrix of relationships between an administrative agency and the Office of Administrative Hearings (OAH) to which the agency sometimes delegates some or all of its adjudicatory functions. Does the authority to delegate expand or contract when the adjudication is primarily 1) demeanor-based fact-finding, 2) other fact-finding that is not so dependent on demeanor assessment, or 3) the application of the law to essentially undisputed facts? Does the deference, if any, that the agency owes to the conclusions of the Administrative Law Judge (ALJ) expand or contract with the nature of the thing that the ALJ adjudicated? On judicial review, does the circuit court and then the appellate court look only to what the agency ultimately did or also to what the ALJ may have done? Need we be concerned about whether the ALJ used the right or wrong burden of persuasion? It is a fascinating matrix that deserves periodic reexamination.

On September 30, 2003, the appellant, the Maryland Board of Physicians ("the Board"), denied the Application for Reinstatement of Medical License submitted by the appellee, Dr. Robert M. Elliott. Dr. Elliott appealed that denial to the Circuit Court for Baltimore County, which, on June 29, 2005, reversed the decision of the Board. The Board has, in turn, appealed to us.

Personal Background

Dr. Elliott is a physician who practices dermatology and specializes in hair restoration. He was originally licensed to practice medicine in the State of Maryland on October 23, 1991, but his Maryland license registration expired on September 30, 1992. Dr. Elliott is currently a partner, with Robert True, M.D., in a medical practice known as the Elliott-True Medical Group, with offices in California, Illinois, Maryland, and New York. Dr. Elliott's primary practice is in California and he is a resident of that state.

Procedural Background

In December of 1999, Dr. Elliott submitted an Application for Reinstatement of his Medical License to what was then designated as the Maryland Board of Physician Quality Assurance. Effective July 1, 2003 by Chapter 252 of the Maryland Laws of 2003, the Board's name was changed to the Maryland Board of Physicians. On September 13, 2000, the Board issued a Notice of Initial Denial of Dr. Elliott's Application.

Pursuant to Maryland Code, Health Occupations Article, § 14-205, the Board possesses the authority to deny a license for any actions which would, on the part of a licensee, constitute grounds for disciplinary action under § 14-404. Section 14-205 provides, in pertinent part:

(a)(1) In addition to the powers set forth elsewhere in this title, the Board may:

....

(iii) Subject to the Administrative Procedure Act, deny a license to an applicant or refuse to renew or reinstate an applicant's license for any of the reasons that are grounds for action under § 14-404 of this title.

(Emphasis supplied).

The notice of denial was based on allegations that Dr. Elliott had committed acts that would, had he been a licensee, have violated § 14-404(a)(1), in that he fraudulently or deceptively attempted to obtain reinstatement of his medical license for himself; § 14-404(a)(3), in that he was guilty of unprofessional conduct in the practice of medicine; and § 14-404(a)(36), in that he willfully made misrepresentations when seeking or making application for reinstatement of his medical license.

The letter of "Initial Denial" also informed Dr. Elliott that he was entitled to a hearing before an Administrative Law Judge and to the opportunity, should the findings and recommendations of the ALJ be adverse to him, to "file exceptions and present argument to the Board."

If you request a hearing in this matter, please be advised that you must prove by a preponderance of the evidence that you are entitled to be reinstated by the Board. You should note that an Administrative Law Judge will conduct the hearing in accordance with the Administrative Procedure Act, Md. Code Ann., State Gov't § 10-201 et seq. The Administrative Law Judge will submit proposed findings of fact to the Board for the Board's consideration. If the proposed findings are adverse to you, you will be given an opportunity to file exceptions and present argument to the Board before the Board reaches a final decision.

(Emphasis supplied).

Dr. Elliott did, indeed, "request a hearing in this matter." Accordingly, the case was assigned by the Office of Administrative Hearings to Administrative Law Judge Joan B. Gordon. In Maryland Board of Physicians v. Bernstein, 167 Md. App. 714, 721, 894 A.2d 621 (2006), Judge Deborah Eyler explained the applicable principles and procedures governing such delegation.

At that point, the physician is entitled to a contested case hearing before an administrative law judge in the Office of Administrative Hearings, pursuant to the Administrative Procedure Act, section 10-201 et seq. of the State Government Article ("SG"). Following the hearing, the ALJ issues findings of fact, conclusions of law, and a proposed disposition.

Either party may file exceptions to the ALJ's findings and proposed disposition.

The Board is not bound by the decision of the ALJ. After receiving the ALJ's proposed decision, the Board must review the record and the ALJ's proposal, and hold a hearing on any exceptions. It then issues a final decision stating its findings of facts, conclusions of law, and a disposition of the charge.

(Emphasis supplied).

After a procedural glitch that is not pertinent to what is now before us, ALJ Gordon conducted a two-day hearing beginning on November 19, 2002. On March 17, 2003, she issued a Proposed Decision. The ALJ's proposed conclusions of law were that Dr. Elliott had violated the Maryland Medical Practice Act by acts that would qualify as violations of § 14-404(a)(1), (3), and (36). As a proposed disposition, the ALJ recommended that Dr. Elliott's application for reinstatement of medical license be denied.

Dr. Elliott filed timely Exceptions to the Proposed Decision of the ALJ. An Exceptions hearing was held before the Board on May 28, 2003. The Board issued its Final Order on September 30, 2003, in which it denied Dr. Elliott's application for the reinstatement of his medical license. Dr. Elliott appealed that decision of the Board to the Circuit Court for Baltimore County. Following a hearing on April 20, 2005, that court, on July 6, 2005, issued an Opinion and Order reversing the decision of the Board and remanding the case for further proceedings.

The Contentions

The Board, in turn, has appealed to us. It contends

1. that there was substantial evidence to support the decision of the Board; and

2. that the "clear and convincing" burden of persuasion did not apply in this case, but that even if it, arguendo, did apply, it was satisfied.

A False Light On the Shore

During the course of oral argument and our first preliminary consideration of the case, a troubling question arose, sua sponte, casting into at least momentary doubt the propriety of the Board's having submitted the case to the OAH. There were distant echoes about "demeanor-based credibility findings," but the connection, if any, of those faint resonances to what was before us was uncertain. Was it possible that, although the delegation of demeanor-based fact-finding to an ALJ might be appropriate, the delegation of authority to reach more technical findings and even tentative conclusions of law might not be appropriate? Although we were soon disabused of the doubt, it behooves us, at the threshold, to address that issue of what is a proper delegation of adjudicative authority by an administrative agency to an ALJ.

The Propriety of Submitting the Case To the Office of Administrative Hearings

Procedurally, this case is governed squarely by the Administrative Procedure Act, Maryland Code, State Government Article, §§ 10-201 et. seq. As Judge James Eyler observed in Bragunier Masonry Contractors v. Maryland Commissioner of Labor and Industry, 111 Md. App. 698, 705, 684 A.2d 6 (1996), cert. denied, 344 Md. 566, 688 A.2d 445 (1997):

The model administrative procedure act was developed to encourage a more uniform procedural process for administrative agencies. Maryland adopted the 1961 version of the model with some changes. See SG §§ 10-201 et seq. The APA applies to all state administrative agencies not specifically exempted and provides a standard framework of fair and appropriate procedures for agencies that are responsible for both administration and adjudication of their respective statutes.

(Emphasis supplied). See also Kaufman v. Taxicab Bureau, Baltimore City Police Department, 236 Md. 476, 479-80, 204 A.2d 521 (1964) ("[T]he Administrative Procedure Act shall apply to all State agencies except those expressly excluded therefrom.") (emphasis supplied). A major premise is thus established.

The appellant, Maryland Board of Physicians, both under its present name and under its former name of Board of Physician Quality Assurance, clearly qualifies as an "Agency" within the definition of § 10-202(b). In terms of being covered by the Administrative Procedure Act, moreover, the Board of Physicians has never been "expressly excluded" or "specifically exempted" from its coverage. A minor premise is thus established.

The Board's coverage by the APA thereby becomes the ineluctably valid conclusion of a classic categorical syllogism:

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