Va. Bd. for Branch Pilots v. McCrory

• Citation: 60 Va.App. 373,727 S.E.2d 795
• Decision Date: 10 July 2012
• Docket Number: Record No. 2581–11–2.
• Parties: VIRGINIA BOARD FOR BRANCH PILOTS v. Walter H. McCRORY, Jr.
• Court: Virginia Court of Appeals

60 Va.App. 373

727 S.E.2d 795

VIRGINIA BOARD FOR BRANCH PILOTS

v.Walter H. McCRORY, Jr.

Record No. 2581–11–2.

Court of Appeals of Virginia, Richmond.

July 10, 2012.

Joshua N. Lief, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General; Cynthia H. Norwood, Senior Assistant Attorney General; Steven P. Jack, Assistant Attorney General, on brief), for appellant.

Robert W. McFarland, Richmond (R. Trent Taylor; Robert W. Loftin; McGuireWoods LLP, on brief), for appellee.

Present: KELSEY and ALSTON, JJ., and ANNUNZIATA, Senior Judge.

ANNUNZIATA, Judge.

The Virginia Board of Branch Pilots (hereinafter “the Board”) appeals the decision of the circuit court finding that the Board's denial of the application of Walter H. McCrory, Jr. for licensure as a Branch Pilot was error. On appeal, the Board contends: (1) the circuit court erred in finding that the Board's determination was not supported by substantial evidence in the record; (2) the circuit court erred in finding that a reasonable mind would necessarily arrive at a conclusion different than that reached by the Board; and (3) the circuit court erroneously awarded attorney's fees to McCrory. We agree with the Board's contentions, and we reverse the decision of the circuit court.

Background

The Board is a regulatory entity within the Department of Professional and Occupational Regulation. The Board is responsible for licensing Branch Pilots and regulating the standards of conduct which govern them. Branch Pilots are charged with ensuring the safe passage of commercial ships through the waters of Hampton Roads. Upon request, they also ensure the safe passage of ships of the United States Navy. The Virginia Pilot Association (hereinafter “VPA”) is a private association through which licensed Branch Pilots are employed. In cooperation with the Board's regulations, the VPA requires its members to submit to random drug screening while on duty.

McCrory was a Branch Pilot from December 1985 until July 2008. At approximately 11:00 a.m. on July 8, 2008, a VPA dispatcher ordered McCrory to proceed to a testing center to submit to a random drug screening after he finished piloting a ship outbound from Norfolk Southern's coal pier. Per the Board's regulations, McCrory was required to do so within two hours of receiving the dispatch. See18 VAC 45–20–50.¹McCrory failed to report to the testing center within the required two-hour period. Instead, he arrived at the center at approximately 4:30 p.m., having spent the intervening time picking up one of his children, answering phone calls, and reading the newspaper. While in the parking lot of the center, he returned a voicemail message from a VPA representative who had inquired whether he had completed the test. McCrory told a VPA representative that he was “done” with the test even though he had not yet entered the testing center.

Once McCrory entered the center, the receptionist told him that it was too late in the day to begin the testing procedure. McCrory did not return to a testing center until July 10, and he completed the test on that day. On July 16, McCrory was informed that he had tested positive for cocaine. McCrory consequently deposited his license with the Board after informing it of the test results.

McCrory applied for re-licensure with the Board on August 21, 2009, after completing a rehabilitation program. Both parties waived an informal fact-finding hearing on the application and agreed to proceed directly to a formal hearing before the full Board pursuant to Code § 2–2–4020. The Board issued a decision denying McCrory's application on June 14, 2010. In doing so, it focused on three transgressions: (1) McCrory's failure to report for testing within the requisite two-hour time period, a violation of 18 VAC 45–20–40.4, –40.5, and –40.17,² (2) McCrory's false statement to the VPA representative that he was “done” with the test, a violation of 18 VAC 45–20–40.5, and (3) the positive test for cocaine, a violation of 18 VAC 45–20–40.13 that would present a threat to the public health, safety or welfare.³ In its order and opinion, the Board recognized McCrory's efforts at rehabilitation, noting “The Board carefully considered the testimony of medical personnel. Although the testimony was informative,it was not found to be sufficient to alter the conclusions of the Board.”

McCrory appealed the Board's decision to the circuit court. At the conclusion of a May 6, 2011 hearing, the circuit court ruled from the bench and reversed the decision of the Board. In its ruling, the circuit court found that (a) the Board's decision was not based on substantial evidence in the record, (b) a reasonable mind would necessarily come to a different conclusion, (c) the positive drug test had not been shown to be a threat to public health, safety or welfare, (d) the Board's decision ignored the evidence of McCrory's rehabilitation, and (e) McCrory's delay in taking the test and his false statement to the VPA representative did not constitute neglect or misconduct. By two orders entered November 28, 2011, the circuit court (1) reversed and vacated the Board's decision, remanding the case for further proceedings, and (2) awarded attorney's fees to McCrory.

The Board appeals from the two November 28, 2011 orders.

Discussion

Standard of Review

This matter arises under the Virginia Administrative Process Act, Code § 2.2–4000 et seq. Judicial review of an agency decision is limited to the following inquiries:

1. Whether the agency acted in accordance with law;

2. Whether the agency made a procedural error which was not harmless error; and

3. Whether the agency had sufficient evidential support for its findings of fact.

Johnston–Willis v. Kenley, 6 Va.App. 231, 242, 369 S.E.2d 1, 7 (1988).

Under the Act,

“[t]he standard of review of an agency's factual findings on appeal to a circuit court is limited to determining whether substantial evidence in the agency record supports its decision.” Avante at Lynchburg, Inc. v. Teefey, 28 Va.App. 156, 160, 502 S.E.2d 708, 710 (1998) (emphasis added). Under the “substantial evidence” standard, an agency's factual findings should be rejected “ ‘only if, considering the record as a whole, a reasonable mind would necessarily come to a different conclusion.’ ” Tidewater Psychiatric Inst. v. Buttery, 8 Va.App. 380, 386, 382 S.E.2d 288, 291 (1989) (quoting Virginia Real Estate Comm'n v. Bias, 226 Va. 264, 269, 308 S.E.2d 123, 125 (1983)). “The phrase ‘substantial evidence’ refers to ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Bias, 226 Va. at 269, 308 S.E.2d at 125 (citation omitted).

Sentara Norfolk Gen. Hosp. v. State Health, 30 Va.App. 267, 279, 516 S.E.2d 690, 696 (1999), rev'd,260 Va. 267, 534 S.E.2d 325 (2000).

Additionally, “the court must review the facts in the light most favorable to sustaining the Board's action and ‘take due account of the presumption of official regularity, the experience and specialized competence of the agency, and the purposes of the basic law under which the agency has acted.’ ” Bio–Medical Applications of Arlington, Inc. v. Kenley, 4 Va.App. 414, 427, 358 S.E.2d 722, 729 (1987) (quoting former Code § 9–6.14:17).

Analysis

In its June 14, 2010 order and opinion, the Board listed twenty-nine findings of fact and eight conclusions of law. The essence of the Board's decision is recited above and will not be repeated here. The evidence of McCrory's failed drug test, his failure to report for testing within the two-hour time frame, and his false statement to the VPA representative constituted “substantial evidence,” i.e. “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Bias, 226 Va. at 269, 308 S.E.2d at 125. Nothing in the Board's factual findings indicates that a reasonable mind would “necessarily” come to a different conclusion. The circuit court erred on these two points.

Moreover, we find that the circuit court's other findings are either in error and/or fail to recognize the applicable standard of review governing its role and decision. Specifically, it found that McCrory's 2008 positive drug test was not shown to be a threat to public health, safety or welfare in 2010. The Board, exercising its ...