Feldman v. Board of Pharmacy of Dist. of Columbia, 2404.

Decision Date19 April 1960
Docket NumberNo. 2404.,2404.
Citation160 A.2d 100
PartiesAlbert FELDMAN, Petitioner, v. BOARD OF PHARMACY OF DISTRICT OF COLUMBIA, Respondent.
CourtD.C. Court of Appeals

Harry Friedman, Washington, D. C., for petitioner.

Richard W. Barton, Asst. Corp. Counsel, Washington, D. C., with whom Chester H. Gray, Corp. Counsel, Milton D. Korman, Principal Asst. Corp. Counsel and Hubert B. Pair, Asst. Corp. Counsel, Washington, D. C., were on the brief, for respondent.

Before HOOD and QUINN, Associate Judges, and CAYTON (Chief Judge, Retired) sitting by designation under Code, § 11-776(b).

CAYTON, Acting Judge.

Before us for review is a decision of the District of Columbia Board of Pharmacy denying an application for renewal of a pharmacist's license. Because of the ground of our decision there is no need to recite the details of the involved nine-year history of the case. It was charged that in filling five prescriptions Feldman had early in 1951 wilfully substituted inexpensive and plentiful ascorbic acid pills for scarce and expensive cortisone.

Following certain court proceedings and summary attempts by the Board of Pharmacy to revoke Feldman's license, the matter came before the Board on his application, made in November 1954, for a three-year renewal of his license. The application being denied, Feldman demanded a hearing under Code 1951, § 2-606. In June 1955 the Board held a six-day hearing at which many witnesses, including Feldman, were heard, voluminous exhibits received, and arguments of counsel presented.

It was almost four years later, in April 1959, that the Board (then consisting of four new members and one continuing member) announced its decision to deny a renewal of the license.1 That decision is here for review.

The Corporation Counsel argues in behalf of the Board that the appeal should be dismissed as moot because Feldman did not apply for a renewal of his license for the three-year period beginning November 1, 1957 (at which time the Board had the pending charges under advisement). This argument seems strange in view of a written opinion rendered by the Corporation Counsel in connection with this case in July 1957 to the effect that the license could not be revoked until after the Board had made adverse findings, based on the hearing it had conducted. Nor should the Board be heard to say otherwise, in the face of the formal statement by its Chairman, at the close of the hearings, that, "Although the Board has not renewed Mr. Feldman's license as of the first of December 1954, Mr. Feldman has been, by agreement, permitted to conduct his pharmacy as if he were licensed * * *," and plainly indicating that his status would not be altered while the Board had the case under advisement. This arrangement was again recognized by the Corporation Counsel in an official memorandum two years later, stating that Feldman had been "assured that he would not be hindered in the practice of pharmacy prior to final action by the Board. * * *" Such a solemn and official undertaking may not be repudiated in an attempt to shut off an appeal.

Hendelberg v. Goldstein, 93 U.S.App.D. C. 395, 211 F.2d 428, does not require a different result. Indeed we think it takes cognizance of situations like this, where at renewal time a licensee's case is pending before the Board. See also Norton v. Leisering, D.C.Mun.App., 125 A.2d 56. This appeal is not moot.

Many grounds for reversal are urged by petitioner. We reach only one: the claim that he was denied due process because his case was decided by four Board members who were not present at the hearing and hence were not qualified to sit in judgment.

The hearing prescribed by Congress gives the petitioner the right to be represented by counsel, introduce evidence, and examine and cross-examine witnesses. Code 1951, § 2-606. Though this was an administrative proceeding and was not surrounded by the same formality as a court trial, it must not lack rudimentary requirements of fair play. Ritch v. Director of Vehicles and Traffic of Dist. of Columbia, D.C.Mun.App., 124 A.2d 301. The manifest purpose of providing such a hearing is to comply with the requirements of due process upon which the parties affected "are entitled to insist." Shields v. Utah Idaho Cent. R. Co., 305 U.S. 177, 182, 59 S.Ct. 160, 163, 83 L.Ed. 111, 116. It has long been recognized that such hearings are to be held in the tradition of judicial proceedings in which evidence is received and weighed by the trier of facts.

Is that requirement satisfied when almost four years after hearing, and after several changes in Board personnel, a decision is rendered by only one member who heard the case and four others who did not? The Corporation Counsel has cited us to no case and has presented no argument on the question; he says only that the procedure was not prejudicial and that the four new members reviewed and examined the transcript of testimony and exhibits before reaching their decision.

The Supreme Court has said, "The one who decides must hear." Morgan v. United States, 298 U.S. 468, 481, 56 S.Ct. 906, 912, 80 L.Ed. 1288, 1295. It has been recognized that though this rule need not always be followed literally, it does require that an official who makes ultimate determinations must consider and appraise the evidence which purportedly supports them. The only significant exceptions seem to be in situations where the hearing officer (such as master or trial examiner) submits a report to a superior board or agency for its decision, or where the facts are stipulated and result in issues of law. See Kuhn v. C. A. B., 87 U.S.App.D.C. 130, 183 F.2d 839; Eastland Co. v. F. C. C., 67 App. D.C. 316, 92 F.2d 467.

Years ago a case like ours was before the Court of Appeals of New York. Smith v. State, 214 N.Y. 140, 108 N.E. 214, 215. In a proceeding before the state Board of Claims evidence was heard by three commissioners. After the case was submitted for decision one commissioner resigned and a new man was appointed in his place. The new man had not heard the witnesses but did participate in the decision. Said the court, per Cardozo, J., "[The new commissioner] had no authority to decide the case at all. He did not become a member of the Board until the evidence had been heard and the case submitted. We think he was not at liberty to take any part in the decision." The opinion continued, "The Board is not in the strict sense a court * * *; but its functions are judicial, and the requirement that witnesses shall be seen and heard by the judicial officer who is to weigh their testimony has been proved by experience to be a means so important for the ascertainment of truth as to entitle us to...

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  • Van Teslaar v. Bender, Civ. A. No. 70-988-M.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • October 17, 1973
    ...909 (W.D.Texas 1967); Bd. of Pharmacy of District of Columbia v. Feldman, 108 U.S.App.D.C. 46, 279 F.2d 821 (1960), affirming 160 A.2d 100 (D.C.Mun.App. 1960). In most of the cases decided under the APA where the substitution for an unavailable examiner has been allowed without a de novo he......
  • Ashley v. McMillian, 19495
    • United States
    • Supreme Court of West Virginia
    • February 22, 1991
    ...do not permit a decision where only one hearing examiner on a panel actually heard the evidence. 3 In Feldman v. Board of Pharmacy of District of Columbia, 160 A.2d 100 (D.C.Mun.App.1960), the District of Columbia court reversed a lower court decision which denied a pharmacist a license. Th......
  • Hill v. District Unemployment Compensation Board, 6344.
    • United States
    • Court of Appeals of Columbia District
    • March 29, 1973
    ...is lacking, and "weight and credibility of witnesses" is involved, due process is also lacking. Feldman v. Board of Pharmacy of District of Columbia, D.C.Mun.App., 160 A. 2d 100, 103 (1960). See Shawley v. Industrial Commission, 16 Wis.2d 535, 114 N.W.2d 872, 875-876 Because any final dispo......
  • Virginia Real Estate Bd. v. Kline, 0968-92-1
    • United States
    • Court of Appeals of Virginia
    • September 28, 1993
    ...829, 85 S.Ct. 59, 13 L.Ed.2d 38 (1964); Bd. of Pharmacy of District of Columbia v. Feldman, 279 F.2d 821 (D.C.Cir.1960), aff'g., 160 A.2d 100 (D.C.Mun.App.1960); S. Buchsbaum & Co. v. Federal Trade Comm'n, 153 F.2d 85, 87 (7th Cir.), judgm't vacated because error waived, 328 U.S. 818, 66 S.......
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