Charry v. Hall, No. 1133
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
| Writing for the Court | MANSFIELD; VAN GRAAFEILAND |
| Citation | 709 F.2d 139 |
| Parties | Jonathan M. CHARRY, Plaintiff-Appellant, v. Judy E. HALL, individually and as Executive Secretary of the State Board for Psychology of the State Education Department of the University of the State of New York, Raymond D. Salman, individually and as Director of Professional Licensing of the State Education Department of the University of the State of New York, Gordon M. Ambach, individually and as Commissioner of Education of the University of the State of New York, Frank C. Abbott, individually and as Assistant Commissioner for the State Education Department of the University of the State of New York, The State Education Department, The University of the State of New York and The New York State Board of Regents, Defendants-Appellees. ocket 82-7764. |
| Docket Number | D,No. 1133 |
| Decision Date | 19 May 1983 |
Page 139
v.
Judy E. HALL, individually and as Executive Secretary of the
State Board for Psychology of the State Education Department
of the University of the State of New York, Raymond D.
Salman, individually and as Director of Professional
Licensing of the State Education Department of the
University of the State of New York, Gordon M. Ambach,
individually and as Commissioner of Education of the
University of the State of New York, Frank C. Abbott,
individually and as Assistant Commissioner for the State
Education Department of the University of the State of New
York, The State Education Department, The University of the
State of New York and The New York State Board of Regents,
Defendants-Appellees.
Second Circuit.
Decided May 19, 1983.
Page 140
Richard M. Kraver, New York City (Kraver & Martin, New York City, of counsel), for plaintiff-appellant.
Ellen Bronzo, Asst. Atty. Gen., State of N.Y., New York City (Robert Abrams, Atty. Gen., State of N.Y., George Zuckerman, Deputy Sol. Gen., New York City, of counsel), for defendants-appellees.
Before MANSFIELD, VAN GRAAFEILAND and FRIEDMAN, * Circuit Judges.
MANSFIELD, Circuit Judge:
Dr. Jonathan M. Charry appeals from a judgment of the Southern District of New York, Milton Pollack, Judge, dismissing for lack of jurisdiction his complaint under 42 U.S.C. Sec. 1983, which sought damages and an injunction restraining various New York State agencies and officials from refusing to permit him to take an examination required by state law to enable him to qualify for a license as a psychologist. Charry, who holds a Ph.D. degree from New York University in a program formally entitled "Human Relations and Social Policy" but which is in fact a curriculum in applied social psychology, contends that the defendants deprived him of his federal constitutional right to procedural due process by refusing him permission to take the examination. We affirm on the ground that, regardless whether defendants made an erroneous decision on the merits, they accorded Charry adequate procedural due process.
Under New York law a person may not practice as a "psychologist" unless he receives a state license to do so, Education Law, Art. 153, Secs. 7600, et seq. (McKinney 1972 & Supp.1982). The State Education Department of the University of the State of New York is the administrative agency having responsibility for the licensing of psychologists and the New York State Board of Regents determines the nature and quality of educational programs required for such licensure. The Board of Regents, in turn, has appointed a State Board of Psychology to evaluate the qualifications of applicants for licensure under the standards set forth in Sec. 7603 of the Education Law. 1 That section provides in pertinent
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part that to qualify for a license and to take the examination specified by the Board the applicant must have received "a doctoral degree in psychology, granted on the basis of completion of a program of psychology registered with the department [of Education] or the substantial equivalent thereof ...." N.Y.Educ.Law Sec. 7603(2) (emphasis added). The purpose of this requirement was stated by the legislature when it added this provision in 1970:"The definition of the doctoral degree required for the issuance of a certificate as a psychologist ... contained in [the former section] is so broad as to permit the certification of persons as psychologists who lack appropriate training in psychology. This broad language has necessitated an extensive screening process to identify those applicants whose training in psychology is inadequate. This amendment would clarify this requirement to specifically provide that applicants for certification as psychologists must have received a doctoral degree in psychology upon completion of a psychology program registered by the [Education] Department, or its substantial equivalent." 1970 N.Y. Laws 2997-98.
Regulations issued by the Commissioner of Education (8 N.Y.C.R.R. Secs. 50, et seq.) provide procedures for the registration with the Board of educational programs deemed sufficient to render graduates eligible for licensure in professions, including psychology. See Secs. 52.1 and 52.10. When doctoral programs in psychology cannot be appraised (e.g., because they are conducted by distant out-of-state institutions and cannot be verified by visitation), the applicant may take a prerequisite examination to qualify for the licensing examination. Sec. 72.1(b). 2 However, the Commissioner has not promulgated any regulations establishing standards for determining when a program not registered with the State Education Department is "the substantial equivalent" of an approved, registered program. The present dispute arises, in part at least, out of this deficiency.
A candidate's application for licensure as a psychologist is first considered by the Board's Education Evaluation Committee in Psychology. If the applicant is turned down "on grounds of unsatisfactory experience," see Sec. 72.1, which presumably means completion of a scholastic program deficient in acceptable psychology courses, the applicant may appeal to the Commissioner. 3 In addition a rejected candidate may first appeal to the Department of Education's Board of Psychology. If dissatisfied with its decision he may then take his case to the Department's Committee on the Professions
Page 142
and, if rejected by it, to the Board of Regents. Finally he may obtain judicial review of the determination of the Board of Regents by instituting an Article 78 proceeding in the Supreme Court of the State of New York.On July 27, 1978, Dr. Charry, who had in June 1976 received a Doctor of Philosophy Degree from New York University ("NYU") in a program entitled "Human Relations and Social Policy," which was actually a program in applied social psychology, applied to the State Education Department for admission to the licensing examination for psychologists. As requested by the Department, a "Form 10-PSY" was filled out by Prof. Gilbert M. Trachtman of NYU, the Program Director for NYU's psychology programs and the designated liaison officer for New York State Psychology Licensing at NYU's School of Education, Health, Nursing and Arts Professions. In response to questions on the form Prof. Trachtman stated that NYU's doctoral program in "Human Relations and Social Policy," from which Charry had received his degree, was not an offering of NYU's psychology department and was not designed specifically as preparation for the professional practice of psychology. On August 18, 1978, the Education Evaluation Committee in Psychology of the State Education Department notified Charry that his application was disapproved because his doctoral degree was not one in psychology and therefore did not meet the requirements of the state statute and regulations.
Charry next sought administrative review. His application was first presented to the New York State Board for Psychology, which rejected it. He then appealed to the Committee on the Professions, before which he appeared personally. Upon being turned down by the Committee he appealed to the Board of Regents, which on October 22, 1979 denied his application because of the inadequacy of his qualifications. Charry did not seek state judicial review by way of an Article 78 proceeding.
Dr. Charry at all times took the position that although NYU may have failed to register its doctoral program in Human Relations and Social Policy with the Department as a program in psychology, that program qualified as "the substantial equivalent" of a registered program as that term is used in Education Law Sec. 7603(2) because the substance of its curriculum was in psychology and it was designed as a program in applied psychology. 4 In December 1980 Prof. Frank B.W. Hawkinshire, the director of the NYU Human Relations and Social Policy program, wrote a letter to the Board stating unequivocally that the program is one in psychology and setting forth in detail facts and reasons for his conclusions. Prof. Hawkinshire enclosed a copy of an independent evaluation made by Dr. David Stang, former Educational Affairs Officer of the American Psychological Association, who was then responsible for evaluating and certifying the Association's clinical programs and who has wide experience in such matters. Stang agreed with Hawkinshire's analysis and characterized NYU's...
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ANDREW H. BY IRENE H. v. Ambach, No. 84-CV-131.
...had been satisfied. E.g., Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972) (teacher denied tenure); Charry v. Hall, 709 F.2d 139 (2d Cir.1983) (applicant meeting statutory requirements denied right to take examination for professional status as a psychologist); Case v......
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Bartlett v. New York State Bd. of Law Examiners, No. 93 Civ. 4986(SS).
...final state court judgment in a particular case."), I will begin my analysis by addressing the Second Circuit's holding in Charry v. Hall, 709 F.2d 139 (2d In Charry, the Second Circuit addressed the question "whether the right to sit for an examination for admission to a profession represe......
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Kapps v. Wing, Docket No. 03-9117-cv(L).
...the instant case. See Kraebel v. New York City Dep't of Hous. Preservation & Dev., 959 F.2d 395, 404-05 (2d Cir.1992); Charry v. Hall, 709 F.2d 139, 144 (2d Cir.1983); Basciano v. Herkimer, 605 F.2d 605, 609 (2d Cir.1978). Indeed, we have explained that "[w]hether a benefit invests the appl......
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Damino v. O'NEILL, No. CV 87-2003.
...Due process is a flexible concept. Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976); Charry v. Hall, 709 F.2d 139 (2d Cir.1983). The fundamental requisites of due process are; (1) notice of charges; (2) the opportunity to be heard; and (3) the process used mus......
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Kapps v. Wing, Docket No. 03-9117-cv(L).
...the instant case. See Kraebel v. New York City Dep't of Hous. Preservation & Dev., 959 F.2d 395, 404-05 (2d Cir.1992); Charry v. Hall, 709 F.2d 139, 144 (2d Cir.1983); Basciano v. Herkimer, 605 F.2d 605, 609 (2d Cir.1978). Indeed, we have explained that "[w]hether a benefit invests the appl......
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ANDREW H. BY IRENE H. v. Ambach, No. 84-CV-131.
...had been satisfied. E.g., Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972) (teacher denied tenure); Charry v. Hall, 709 F.2d 139 (2d Cir.1983) (applicant meeting statutory requirements denied right to take examination for professional status as a psychologist); Case v......
-
Bartlett v. New York State Bd. of Law Examiners, No. 93 Civ. 4986(SS).
...final state court judgment in a particular case."), I will begin my analysis by addressing the Second Circuit's holding in Charry v. Hall, 709 F.2d 139 (2d In Charry, the Second Circuit addressed the question "whether the right to sit for an examination for admission to a profession represe......
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Damino v. O'NEILL, No. CV 87-2003.
...Due process is a flexible concept. Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976); Charry v. Hall, 709 F.2d 139 (2d Cir.1983). The fundamental requisites of due process are; (1) notice of charges; (2) the opportunity to be heard; and (3) the process used mus......