Reciprocal Discipline For Nurses
The full Massachusetts Supreme Judicial Court rejected as premature a nurse’s objections in a reciprocal discipline licensing proceeding. The opinion:
In a reciprocal discipline proceeding, theBoard of Registration in Nursing (board) indefinitely suspendedPenelope Lankheim’s license to practice as a registered nurse inMassachusetts. That proceeding was based on Lankheim’s voluntaryrelinquishment of her license after disciplinary proceedings in theState of Florida. Lankheim sought judicial review in the county court…[a] single justice of this courtruled that the board was authorized to impose reciprocal disciplinebased on Lankheim’s voluntary relinquishment of her Florida license. However, heremanded for “reconsideration of the question of sanction withoutregard to the vigor with which Lankheim opposed the existence ofdiscipline in Florida.” Lankheim appealed to the full court.
The board has moved to dismiss the appeal on theground that the single justice’s decision was interlocutory. It is wellestablished that, in an action seeking judicial review of anadministrative agency’s decision, no appeal lies from a decision of thetrial court remanding the matter to the agency for further proceedingswhere “the administrative tribunal has choices to make about theresult, in nuance and fundamental conclusion.” “An order of remand… is … not final, particularly when the operative verb in the orderhas been ‘reconsider.’ ” Lankheim argues that the order of remand is final and appealablebecause the board’s discretion is limited in that it may no longerconsider one of the aggravating factors on which it relied. However, Lankheim misstates the principle on which she relies: ajudicial order remanding a matter to an administrative agency may bedeemed an appealable judgment when “the administrative body [is] givenno discretion, being ordered to decide the matter in controversy in amanner specified by the court.” The single justice’s order of remand did not direct theboard to impose a particular sanction on Lankheim. Theorder merely removed one factor from the board’s consideration and leftthe board with ample discretion to evaluate the remaining facts andcircumstances in the case. Accordingly, Lankheim may not appeal fromthe single justice’s order remanding the matter to the board forreconsideration of the appropriate sanction, as it was not a finaljudgment. (citations omitted)
The board has moved to dismiss the appeal on theground that the single justice’s decision was interlocutory. It is wellestablished that, in an action seeking judicial review of anadministrative agency’s decision, no appeal lies from a decision of thetrial court remanding the matter to the agency for further proceedingswhere “the administrative tribunal has choices to make about theresult, in nuance and fundamental conclusion.” “An order of remand… is … not final, particularly when the operative verb in the orderhas been ‘reconsider.’ ” Lankheim argues that the order of remand is final and appealablebecause the board’s discretion is limited in that it may no longerconsider one of the aggravating factors on which it relied. However, Lankheim misstates the principle on which she relies: ajudicial order remanding a matter to an administrative agency may bedeemed an appealable judgment when “the administrative body [is] givenno discretion, being ordered to decide the matter in controversy in amanner specified by the court.” The single justice’s order of remand did not direct theboard to impose a particular sanction on Lankheim. Theorder merely removed one factor from the board’s consideration and leftthe board with ample discretion to evaluate the remaining facts andcircumstances in the case. Accordingly, Lankheim may not appeal fromthe single justice’s order remanding the matter to the board forreconsideration of the appropriate sanction, as it was not a finaljudgment. (citations omitted)
The case is Lankheim v. Board of Registration in Nursing, decided June 19. (Mike Frisch)
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