Woods v. District of Columbia Nurses Examining Board,, 80-240.

• Decision Date: 09 October 1981
• Docket Number: No. 80-886.,No. 80-240.,80-240.,80-886.
• Citation: 436 A.2d 369
• Parties: Barbara WOODS, Petitioner, v. DISTRICT OF COLUMBIA NURSES' EXAMINING BOARD, Respondent.
• Court: D.C. Court of Appeals

436 A.2d 369

Barbara WOODS, Petitioner, v. DISTRICT OF COLUMBIA NURSES' EXAMINING BOARD, Respondent.

No. 80-240.

No. 80-886.

District of Columbia Court of Appeals.

Argued April 7, 1981.

Decided October 9, 1981.

Robert I. Berlow, Washington, D. C., Neighborhood Legal Services Program, for petitioner.

Edward E. Schwab, Asst. Corp. Counsel, Washington, D. C., with whom Judith W. Rogers, Corp. Counsel, and Charles L. Reischel, Deputy Corp. Counsel, Washington, D. C., were on the brief, for respondent.

Before NEWMAN, Chief Judge, and KERN and FERREN, Associate Judges.

NEWMAN, Chief Judge:

Petitioner seeks review of a decision of the District of Columbia Nurses' Examining Board revoking her license as a Registered Nurse (R.N.) (No. 80-240). She contends that this decision, which was based on conduct occurring in Maryland, and for which her Maryland R.N. license was revoked, deprived her of due process. She further asserts that the Board's subsequent denial of her application for reinstatement was constitutionally flawed (No. 80-886). We agree with petitioner's contentions concerning the reinstatement proceedings and thus we need not resolve the other issues presented by this appeal. We reverse and remand to the Board.

I

Petitioner was a Registered Nurse licensed to practice in both Maryland and the District of Columbia. She was employed as a night shift supervising nurse at the Wildwood Health Care Center, a 180-bed nursing home facility in Bethesda, Maryland. In early 1977, her coworkers began to complain about her performance. One nurse reported that a patient had not received her insulin for several days, although petitioner had made entries in the patient's records indicating that insulin had been administered. Petitioner was also frequently observed sleeping while on duty, and another nurse reported that petitioner had failed to check a patient who had allegedly fallen. Petitioner received increasing pressure to resign. On February 28, 1977, the Administrator of Wildwood formally requested her resignation. When she refused, she was dismissed on March 15. Subsequently, the Maryland Board of Examiners of Nursing began proceedings to revoke her license. The Maryland Board originally set a hearing for November 29, 1977, but then rescheduled it for February 28, 1978, at 9:00 a. m., for the sole convenience of the Board. On the morning of February 28, the Board telephoned petitioner's attorney and informed him that the hearing would be postponed again, until 2:00 that afternoon. The Board knew, however, that petitioner's counsel had a prior court commitment that would prevent him from representing her at the 2:00 hearing. Consequently she was forced to appear pro se at the Maryland hearing, because the Board refused to reschedule the hearing a third time in order to permit her attorney to attend.

In her testimony before the Maryland Board, petitioner denied most of the specific charges against her, attributing her difficulties at Wildwood to institutional crises,¹ interpersonal tensions, and a lack of communication. On March 28, 1978, the Maryland Board issued its findings and conclusions. The Board found petitioner guilty on certain of the charges and revoked her license.

In April, 1978, the District of Columbia Nurses' Examining Board received a copy of the Maryland revocation order and findings. On May 3, the Board voted to initiate disciplinary action. The Corporation Counsel's office prepared a letter of charges dated September 13, 1978, based upon petitioner's conduct in Maryland. The letter stated that the Board was proposing suspension or revocation of her license pursuant to D.C.Code 1978 Supp., § 2-07, for misconduct or professional incapacitation. It also stated that she was entitled to a hearing if requested within twenty days, and that she had the right to be represented by counsel and to present all relevant evidence. Petitioner did not receive this letter of charges, but she did receive a second copy, mailed November 8, 1978. She requested a hearing by letter dated November 25, in which she also informed the Board that the Maryland decision was being appealed.

A hearing date was set for February 14, 1979. Notice of this hearing, dated December 15, 1978, was served on petitioner's sixteen-year-old daughter on January 19, 1979.

The notice also informed petitioner that the Board would issue subpoenas for any witnesses that she desired. Accordingly, petitioner wrote to the Board on February 8 and listed the names and addresses of seven witnesses that she requested to be summoned to the hearing.

The February 14 hearing was postponed until March 22, 1979. Petitioner was informed of the new date by telephone on February 27. She was also advised that for each witness she must submit a witness fee of $30 plus transportation costs by March 6. On March 4, petitioner mailed the witness fees for two of her witnesses: Barbara Lowell, the former Director of Nursing of Wildwood, and Theresa Kollapallil, a former employee of Wildwood who was familiar with the incident in which the patient had allegedly fallen. Subpoenas were issued for both these witnesses on March 15, but neither witness appeared. Ms. Lowell's attorney telephoned the Board the day before the hearing and stated that the witness had "no desire to attend the hearing." Ms. Kollapallil did not receive her subpoena until several hours after the hearing was over. No further efforts were made to secure the presence of these or any other witnesses. Petitioner appeared pro se at the District of Columbia hearing.²

On May 25, 1979, two months after the hearing, the Board issued its findings and conclusions. Petitioner did not receive actual notice of the Board's decision, however until five months later, on October 27, 1979. She requested reconsideration of the Board's decision on October 29 by telephone. The same day, she filed a petition for review in this court (No. 79-1087).

Meanwhile, Ms. Woods had petitioned for reinstatement in Maryland. After a hearing on October 23, 1979, the Maryland Board granted her petition on November 9, based on her recent satisfactory employment performance as a psychiatric nurse at the Washington Hospital Center in the District of Columbia. She was placed on probation for one year.

On January 28, 1980, this court remanded petitioner's case (No. 79-1087) to the Board, because the Board's order of May 25, 1979 had failed to advise the petitioner of her right to appeal and of the time limit for such appeal. Petitioner then filed with the Board a Motion for Stay of Order of Revocation and for Temporary Reinstatement, based on the fact that her license had since been reinstated in Maryland. On February 6, 1980, the Board denied the motion and voted to uphold its previous decision. The Board reissued its May 25 findings and conclusions on March 4, 1980, with an additional sentence at the end describing the appeal procedure. Ms. Woods filed a timely petition for review in this court (No. 80-240.)

On June 30, 1980, petitioner and her attorney attended an informal meeting with the Board president, an Assistant Corporation Counsel, and the Board's staff nurse specialist. The Board informed petitioner that in order to obtain a new license she should simply file a new application along with the filing fee. Accordingly, on July 9, 1980, she applied for reinstatement. The Board denied her application without a hearing, by letter dated July 31, 1980. Petitioner timely sought review, (No. 80-886), and this case was subsequently consolidated with No. 80-240.

II

A. Right to a Hearing

The regulations governing occupational and professional licensing boards specifically deny the right to a hearing, with respect to all applicants for reinstatement following a revocation. 5 DD DCRR § 20.1. Petitioner asserts that she is entitled to a hearing under the District of Columbia Administrative Procedure Act (DCAPA), as well as the due process clause of the Constitution. We agree.

The right to practice one's chosen profession is a liberty interest for purposes of the due process clause; some kind of hearing must be afforded before an individual can be denied the right to practice his or her profession.³ See Willner v. Committee on Character and Fitness, 373 U.S. 96, 102-03, 83 S.Ct. 1175, 1179-1180, 10 L.Ed.2d 224 (1963); Greene v. McElroy, 360 U.S. 474, 492, 79 S.Ct. 1400, 1411, 3 L.Ed.2d 1377 (1959); Schware v. Board of Bar Examiners, 353 U.S. 232, 238-39, 77 S.Ct. 752, 755-756, 1 L.Ed.2d 796 (1957); Meyer v. Nebraska, 262 U.S. 390, 399-400, 43 S.Ct. 625, 626-627, 67 L.Ed. 1042 (1923); Dent v. West Virginia, 129 U.S. 114, 121-23, 9 S.Ct. 231, 233, 32 L.Ed. 623 (1889); Shaw v. Hospital Authority, 507 F.2d 625, 628 (5th Cir. 1975); cf. Barry v. Barchi, 443 U.S. 55, 64, 99 S.Ct. 2642, 2649, 61 L.Ed.2d 365 (1979) (property interest in horse trainer's license entitled holder to a prompt postsuspension hearing). Denial of petitioner's application for reinstatement effectively precluded her from practicing her profession in the District of Columbia just as much as did the initial revocation of her license. Thus, the due process clause of the fifth amendment guarantees petitioner a right to a hearing on her application for reinstatement.

Petitioner's application also falls within the definition of a "contested case" under the DCAPA, D.C.Code 1978 Supp., § 1-1502(8), because a hearing is required by the Constitution, and because the Board's action was "concerned basically with weighing particular information and arriving at a decision directed at the rights of specific parties." Schneider v. District of Columbia Zoning Commission, D.C.App., 383 A.2d 324, 326 (1978) (quoting Chevy Chase Citizens Association v. District of Columbia Council, D.C.App., 327 A.2d 310, 313 (1974)). Accordingly, petitioner is entitled to the specific procedural safeguards guaranteed by the DCAPA for contested cases. D.C.Code 1978 Supp., § 1-1509. Since the...