Reston Hosp. Ctr., LLC v. Remley

• Decision Date: 30 September 2014
• Docket Number: Record No. 2301–12–4.
• Parties: RESTON HOSPITAL CENTER, LLC v. Karen REMLEY, M.D., M.B.A., F.A.A.P., Former State Health Commissioner,Inova Health Care Services, d/b/a Inova Fair Oaks Hospital.
• Court: Virginia Court of Appeals

63 Va.App. 755

763 S.E.2d 238

RESTON HOSPITAL CENTER, LLC

v.Karen REMLEY, M.D., M.B.A., F.A.A.P., Former State Health Commissioner¹ Inova Health Care Services, d/b/a Inova Fair Oaks Hospital.

Record No. 2301–12–4.

Court of Appeals of Virginia, Alexandria.

Sept. 30, 2014.

Robert L. Hodges, Richmond (Nathan A. Kottkamp ; Thomas J. Stallings ; Jeffrey D. McMahan, Jr. ; McGuire Woods LLP, on briefs), for appellant.

Ishneila G. Moore, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General; Rita W. Beale, Deputy Attorney General; Allyson K. Tysinger, Senior Assistant Attorney General, on briefs), for appellee Karen Remley, former State Health Commissioner.

Amandeep S. Sidhu (M. Miller Baker ; H. Guy Collier ; Mary D. Hallerman ; McDermott Will & Emery LLP, on briefs), for appellee Inova Health Care Services, d/b/a Inova Fair Oaks Hospital.

Present: FELTON, C.J., and HUMPHREYS and KELSEY, JJ.

Opinion

D. ARTHUR KELSEY, Judge.

The State Health Commissioner issued a certificate of public need (COPN) to Inova Health Care Services authorizing it to relocate a medical radiation therapy service from Inova Fairfax Hospital to Inova Fair Oaks Hospital, both situated in Fairfax County. A competitor, Reston Hospital Center, LLC, objected to the relocation during the administrative process and on appeal to the circuit court. The circuit court held that the Commissioner acted within her authority when she issued the COPN. We agree and affirm the circuit court's ruling.

I. Background

A. The Administrative Regulatory System

A comprehensive regulatory system governs nearly every aspect of medical care facilities in the Commonwealth.² Article 1.1, Chapter 4 of Title 32.1 requires a “certificate of public need” for various types of projects conducted by medical care facilities. Code § 32.1–102.1. “No person shall commence any project without first obtaining a certificate issued by the Commissioner. No certificate may be issued unless the Commissioner has determined that a public need for the project has been demonstrated.” Code § 32.1–102.3(A). The statute directs the Board of Health to establish “regional health planning agencies,” which manage the “health planning regions” in the Commonwealth and assist the Board in a number of ways, including by “reviewing applications for certificates of public need and making recommendations to the Department.” Code § 32.1–122.05. The Board of Health must also prepare a “State Medical Facilities Plan” to guide planning and forecasting efforts. Code § 32.1–102.1.

B. The Dispute over the Location of a Single Linear Accelerator

Several hospitals are located in Health Planning Region II (HPR II), which encompasses the same area as Planning District 8 (PD 8) and includes Fairfax County. Multiple hospitals in HPR II utilize radiation therapy machines, called linear accelerators, to provide cancer

treatment services. Inova Fairfax has four linear accelerators, and Reston has two. Although Inova Fair Oaks provides extensive cancer treatment services, it does not have a linear accelerator.

In 2008, Inova applied for a COPN to add a linear accelerator to Inova Fair Oaks. The Commissioner denied the application for a number of reasons, including because there was no demonstrable need for a new linear accelerator in that area of service. The Commissioner had previously authorized the operation of thirteen linear accelerators in HPR II, and she determined that there was no need for one more.

A few months later, Inova submitted a new application—the one at issue in this case—for a COPN authorizing a “proposed project ... to move one of four existing linear accelerators from the campus of Inova Fairfax Hospital to the campus of Fair Oaks Hospital.” App. at 1441. The project would involve the decommissioning of one of Inova Fairfax's older linear accelerators, thereby reducing the number of such machines at Inova Fairfax from four to three, and the relocation of that service (with the installation of a new linear accelerator) to Inova Fair Oaks. With its proposed change, Inova pointed out, HPR II would still have thirteen linear accelerators.

During the administrative process, Reston intervened as a “good cause” party. Id. at 635. Reston asserted various reasons why the Commissioner should not issue the COPN to Inova. The Commissioner rejected Reston's objections and issued the COPN on August 26, 2009, designating it COPN No. VA–04223. Reston appealed to the circuit court under the Virginia Administrative Process Act (VAPA), Code §§ 2.2–4000 through –4033. The circuit court held that Reston did not have standing and dismissed the appeal. On appeal to our Court, we reversed and remanded the case to the circuit court for a decision on the merits. See Reston Hosp. Ctr., LLC v. Remley, 59 Va.App. 96, 717 S.E.2d 417 (2011). On remand, the circuit court upheld the Commissioner's decision to issue the COPN to Inova. Reston again appealed to us. Over Inova's objection, the circuit court extended Reston's time to file its notice of appeal pursuant to Code § 8.01–428(C).

While the case has been on appeal, the Commissioner issued another certificate, designated COPN No. VA–04386 (issued April 19, 2013). It authorized the “[r]elocation and replacement of the existing linear accelerator located in the satellite facility at 8503 Arlington Boulevard (in Fairfax County) to Inova Fair Oaks Hospital (also in Fairfax County).” Appellant's Supp'l Br. Ex. A at 3.³ The certificate added that the “relocation of the Arlington Boulevard linear accelerator will be in place of the linear accelerator authorized for relocation from Inova Fairfax Hospital under COPN No. VA–04223.” Id.

After oral argument in this appeal, the Commissioner issued a “corrected certificate” on June 13, 2013, because “[t]he original certificate issued on April 19, 2013 did not reflect the project as specified in the letter of intent and requested in the application.” Appellant's Supp'l Br. Ex. B at 1. The certificate, still designated as COPN No. VA–04386, “identifie[d] the correct project site” as “Inova Fairfax Hospital Main Campus,” id.,⁴ and no longer included the original certificate's language referencing “replacement” of the accelerator previously authorized to Inova Fair Oaks. Instead, the corrected certificate phrased the approved action as a “[r]elocation of the existing linear accelerator authorization” from the satellite facility to Inova Fairfax. Id. at 2; compare Appellant's Supp'l Br. Ex. A (COPN No. VA–04386 (issued Apr. 19, 2013)) with Appellant's Supp'l Br. Ex. B (Corrected COPN No. VA–04386 (issued June 13, 2013)).

While retaining appellate jurisdiction, we remanded the case to the circuit court to address whether COPN No. VA–04386 mooted any need for our review of the original COPN No. VA–04223 and whether the June 13, 2013 corrections to COPN No. VA–04386 were valid. In June 2014, the circuit court held that the case was not moot and that the corrections to COPN No. VA–04386 were valid.

II. Extension of Time to File Notice of Appeal

We first address Inova's assignment of cross-error claiming that the circuit court erroneously extended the time for Reston to file its notice of appeal pursuant to Code § 8.01–428(C). Inova contends that the circuit court abused its discretion in granting the extension. We disagree.

Rule 5A:6(a) requires an appellant to file a notice of appeal within thirty days after the entry of the final order in the circuit court. The General Assembly enacted Code § 8.01–428(C) to provide a narrow exception to this thirty-day deadline when an appellant is “not notified by any means of the entry of a final order,” and the circuit court finds that the lack of notice does not result from appellant's “failure to exercise due diligence.” The statute vests the discretion to grant the party leave to appeal in the circuit court, not the appellate court.

An abuse of discretion occurs “only ‘when reasonable jurists could not differ’ ” as to the proper decision. Brandau v. Brandau, 52 Va.App. 632, 641, 666 S.E.2d 532, 537 (2008) (quoting Robbins v. Robbins, 48 Va.App. 466, 482, 632 S.E.2d 615, 623 (2006) ). This highly deferential standard of review “necessarily implies that, for some decisions, conscientious jurists could reach different conclusions based on exactly the same facts—yet still remain entirely reasonable.” Hamad v. Hamad,

61 Va.App. 593, 607, 739 S.E.2d 232, 239 (2013). The circuit court “has a range of choice, and its decision will not be disturbed as long as it stays within that range and is not influenced by any mistake of law.” Lawlor v. Commonwealth, 285 Va. 187, 212–13, 738 S.E.2d 847, 861 (2013) (alteration and internal quotation marks omitted).

We apply this “bell-shaped curve of reasonability” based on our “venerable belief that the judge closest to the contest is the judge best able to discern where the equities lie.” Hamad, 61 Va.App. at 607, 739 S.E.2d at 239. Suffice it to say, “if nothing else,” the abuse-of-discretion standard “means that the trial judge's ruling will not be reversed simply because an appellate court disagrees.” Thomas v. Commonwealth, 44 Va.App. 741, 753, 607 S.E.2d 738, 743 (internal quotation marks omitted), adopted upon reh'g en banc, 45 Va.App. 811, 613 S.E.2d 870 (2005) ; see also Beck v. Commonwealth, 253 Va. 373, 385, 484 S.E.2d 898, 906 (1997) (noting that, when applying an abuse-of-discretion standard, appellate judges do “not substitute [their] judgment for that of the trial court”).

Given the unique circumstances of this case, we cannot say that the circuit court abused its discretion in granting the extension. It appears that all of the circuit court's orders during this protracted litigation—except the final order that triggered the thirty-day deadline for filing the notice of appeal—had been mailed by the clerk of court to counsel of record as a matter of course. In addition, it took over a month for the draft final order to be submitted to the court, a designated judge from...