Zhang v. DEPT. OF CONSUMER AND REG. AFFAIRS, 00-AA-1489.

• Decision Date: 23 October 2003
• Docket Number: No. 00-AA-1489.,00-AA-1489.
• Citation: 834 A.2d 97
• Parties: Billy Zhao Zhen ZHANG, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF CONSUMER AND REGULATORY AFFAIRS, Respondent.
• Court: D.C. Court of Appeals

834 A.2d 97

Billy Zhao Zhen ZHANG, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF CONSUMER AND REGULATORY AFFAIRS, Respondent.

No. 00-AA-1489.

District of Columbia Court of Appeals.

Argued February 4, 2003.

Decided October 23, 2003.

Tobias E. Zimmerman, with whom Michael L. Converse, Washington, DC, was on the brief for petitioner.

William J. Earl, Assistant Corporation Counsel, with whom Arabella W. Teal, Interim Corporation Counsel at the time the brief was filed, and Charles L. Reischel, Deputy Corporation Counsel at the time the brief was filed, were on the brief for respondent.

Before GLICKMAN and WASHINGTON, Associate Judges, and BELSON, Senior Judge.

BELSON, Senior Judge:

Appellant Zhang appeals from a decision of the Board of Registration for Professional Engineers¹ denying his application for licensure without examination. We hold that the Board failed to consider relevant evidence of the petitioner's experience and background and that, accordingly, its findings are not supported by the record, and its conclusion that petitioner failed to establish that he is a person of established and recognized standing as an engineer is unreliable. Accordingly, we remand for further proceedings.

I.

Billy Zhao Zhen Zhang is a native of the People's Republic of China. There he earned the equivalent of a Bachelor of Science degree in civil engineering in 1956 from Tongui University, described in testimony as the Chinese equivalent of "MIT or Cal-Tech,"² and became a licensed engineer in China in 1961. From 1956 to 1988, Zhang worked at the East China Architectural Design Institute (ECADI) in Shanghai, one of the larger and more important government design bureaus for much of China's history under communism.³ While he was at ECADI, Zhang rose to the position of Deputy Department Chief Engineer. In that position, he supervised an office of approximately 100 persons working on the design of various projects and was in charge of hundreds of design projects, some of which were highly complex. Zhang was a long time member of the Chinese Civil Engineering Society and eventually attained the status of "Senior Engineer," a title requiring more than twelve years of practice as an engineer as well as recommendation by two senior engineers. He was also a member of both the Shanghai Society of Architectural Institute and the Shanghai Society of Science and Technology.

According to unrebutted evidence, Zhang's other achievements in China included many awards and professional honors,⁴ authoring—either alone or with others —many technical articles published in journals with broad distribution in China, and presentation of a technical paper to the Society of Architects in Shanghai, as well as other technical papers. He was invited to serve as a member of the professional committee that dealt with the China Cold Formed Steel Code of Standard of Practice. Zhang conducted research with another engineer on the shearing strength of prestressed concrete hollow-core slabs and on the load-carrying capacity of precast concrete "two-way slabs." In addition, he developed a particular type of prestressed reinforced concrete slab and connectors for joining reinforced concrete hollow core slab wall panels to the superstructure of buildings.⁵ Zhang testified without contradiction that the reason he held no patents on these inventions is that China did not have a system for applying for or receiving a patent. Zhang also proffered the testimony of Guohua Greg Chen, the Mayor's Special Assistant for Asian Pacific matters (Mr. Chen did not testify in his official capacity), that individuals in China could not receive patents for their inventions. In addition, Board Secretary Hershey stated at the 1995 hearing that the Board realized that during the period in question, the authorities in China "didn't give patents."

Zhang emigrated to the United States in 1988 for personal reasons and eventually became a citizen of this country.

II.

Zhang filed an application for a license without examination pursuant to D.C.Code § 47-2886.08(2)(A)(v)(2001) (formerly § 2-2308), seeking a license to practice engineering in the District of Columbia, on August 18, 1989 (first application). On May 17, 1990, the Board of Registration for Professional Engineers (Board) issued a notice of intent to deny Zhang's first application, and Zhang made a timely request for a hearing. The Board convened the first hearing on November 21, 1991, at which Zhang appeared pro se. On January 26, 1993, Zhang received the Board's notice of denial. The notice was dated November 19, 1992, but was postmarked January 25, 1993. Because of this delay, Zhang states, he believed that his right of appeal had expired and did not appeal the Board's denial.

On March 8, 1994, Zhang filed a second application for license without examination (second application). On October 3, 1994, the Board issued a notice of intent to deny the second application, and Zhang requested a hearing. The Board held its hearing on Zhang's second application on April 20, 1995, where Zhang again appeared pro se. On May 30, 1996, the Board issued its notice of denial as to the second application. Zhang filed a timely appeal, No. 96-AA-842, on June 27, 1996.

Zhang's brief on appeal argued strongly that the Board had erred in adding to the statutory requirements for licensure without examination the additional requirement that the applicant's experience and achievements have been in the United States. The Board responded by moving for a limited remand of the record so that it could clarify its rationale for denying Zhang's application. The Board then moved this court to remand the entire case for additional findings and, on September 30, 1998, we granted that motion over Zhang's objection. On remand, the Board referred Zhang's application to the Office of Adjudication of the Department of Consumer and Regulatory Affairs, which assigned the case to an administrative law judge (ALJ).

An administrative law judge held a hearing on November 18, 1999, at which Zhang presented new and substantial evidence in support of his application. On July 20, 2000, the ALJ issued his findings of fact which were, in most respects, similar to the Board's 1996 findings of fact. Absent, however, was language explicitly qualifying its conclusions that petitioner had failed to prove his established and recognized standing as an engineer with the words "in the United States."⁶

Moreover, the ALJ's recommended decision acknowledged this court's opinion in Teare v. Committee on Admissions, 566 A.2d 23 (D.C.1989) (requirements for licensure and admission to D.C. Bar without examination must be facially neutral and apply with equal force to all individuals regardless of place of origin), and indicated that the principles established in Teare were honored because all applicants for a professional engineering license must meet the same requirements regardless of whether they are foreign born or are from this country. The ALJ's recommended decision also addressed Zhang's engineering experience in China, but concluded that no evidence was submitted that indicated that Zhang had received the kind of recognition from his peers in the engineering profession required for licensure by eminence. On October 19, 2000, the Board issued its final order, "adopt[ing], approv[ing] and ratify[ing]" the ALJ's recommended decision, and denying Zhang's application for a license without examination. Zhang then filed this timely petition for review.

III.

Zhang contends that the Board's denial of his application for licensure as an engineer without examination was either (1) premised on an incorrect interpretation of law regarding achievements and experience outside of the United States, or (2) not supported by substantial evidence of record.

Our review of administrative orders is two-fold. First, we review the factual findings of the agency to determine if there is substantial evidence to support them. Harrison v. Board of Trs. of the Univ. of the District of Columbia, 758 A.2d 19, 22 (D.C.2000). If, after examining the record as a whole, we conclude that the agency's findings are supported by substantial evidence, we must accept those findings even though the record could support a contrary finding. Id.See also Kirkpatrick v. District of Columbia Pub. Sch., 786 A.2d 586, 592 (D.C.2001)

.

Next, we conduct a de novo review of an agency's legal conclusions. Harrison, supra, 758 A.2d at 22. We generally accord great deference to the agency's interpretation of its own regulations, "so long as that interpretation is reasonable and consistent with the statutory language," Kirkpatrick, supra, 786 A.2d at 592, and we leave an agency's decision undisturbed if it flows rationally from findings of fact that are supported by substantial evidence in the record. Oubre v. District of Columbia Dep't of Employment Servs., 630 A.2d 699, 702 (D.C.1993).

IV.

The practice of engineering in the District of Columbia is regulated as a matter of public interest, and only qualified persons are "permitted to engage in the practice of engineering." D.C.Code § 47-2886.03 (2001). The statutory scheme under which the Board operates is intended to "safeguard life, health, and property, and promote the public welfare." Id. An individual may obtain an engineering license in the District by passing an examination or by proving that he or she has an equivalent license or certification from another jurisdiction. D.C.Code § 47-2886.08(2)(A)(i) through (iv). Alternatively, an individual may demonstrate that he is sufficiently qualified to be licensed as an engineer in the District by:

Submit[ting] evidence that he is an engineer of established and recognized standing in the engineering profession and that he has been lawfully engaged in the practice of engineering for 12 or more years, of which at least 5 years shall have been in responsible charge of important engineering work of a grade and

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