Nathan Choi v. Washington Department Of Health

• Court: Court of Appeals of Washington
• Decided: November 19, 2018
• Docket: 77112-4
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

NATHAN CHOI, No. 77112-4-1

Appellant, DIVISION ONE V.

WASHINGTON STATE DEPARTMENT) UNPUBLISHED OPINION OF HEALTH, a Washington State ) Agency, ) ) JONH & JANE DOES 1-10, DOE ) ENTITIES 1-10, All whose true names ) are unknown at this time, ) ) Respondents. ) FILED: November 19, 2018 )

MANN,A.C.J. — Nathan Choi filed suit against the Washington State Department

of Health (Department) alleging that the Department violated RCW 18.06.090 by

licensing Gon Kim as an East Asian medicine practitioner. The State successfully

moved to dismiss. Choi now appeals. We affirm.

Choi sued the Department alleging that the Department violated RCW 18.06.090

by licensing Kim. Choi believed that Kim was not fluent in English, as required by No. 77112-4-1/2

statute, and that serious professional complaints had been filed against Kim. Choi

asked the court for "a judicial order and decree instructing the [Department]to revoke

the East Asian Medicine Practitioner's License from" Kim.

The State moved to dismiss under CR 12(b)(1) and (b)(6). While this motion was

pending, Choi filed a notice of his intent to depose Kim. The State filed a motion to

quash this deposition, which the trial court granted. Choi then filed a motion for

continuance so that he could file an affidavit of prejudice. Choi believed that the court's

grant of the State's motion to quash was indicative of the fact that the trial judge, as a

former State Assistant Attorney General, was biased and should have recused herself.

The trial court denied Choi's motion for continuance and granted the State's motion to

dismiss. Choi appeals.

II. We agree with the State that Choi does not have standing to bring this suit.

Trepanier v. City of Everett, 64Wn. App. 380, 382-83, 824 P.2d 524 (1992).

Choi alleged that the Department violated RCW 18.06.090 by licensing Kim as

an East Asian medicine practitioner. RCW 18.06.090 provides that "[b]efore licensure,

each applicant shall demonstrate sufficient fluency in reading, speaking, and

understanding the English language to enable the applicant to communicate with other

health care providers and patients concerning heath care problems and treatment."

Choi argued that because Kim is not fluent in English, the Department should have

revoked his license.1

1 As an initial matter, we note that RCW 18.06.090 does not require that Kim be fluent in English but instead that he demonstrate he is sufficiently fluent to enable him to effectively communicate with health care providers and patients, which the Department has indicated can be satisfied by taking the required licensure examinations. WAC 246-830-130(1)(c)(An applicant for an East Asian medicine practitioner license who has graduated from a foreign school must "demonstrate fluency in reading,

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The Washington Administrative Procedure Act(APA), chapter 34.05 RCW,is the

exclusive remedy for the review of agency actions. ("This chapter establishes the

exclusive means of judicial review of agency action."). RCW 34.05.510 (emphasis

added). Here, Choi alleges that the Department violated the law when it failed to revoke

Kim's license, thus Choi is asking for judicial review of agency action. See RCW

34.05.010(3)(agency actions includes licensing and the imposition of sanctions).

Accordingly, the APA governs this dispute.

A person has standing to obtain judicial review of agency action if that person is aggrieved or adversely affected by the agency action. A person is aggrieved or adversely affected within the meaning of this section only when all three of the following conditions are present: (1) The agency action has prejudiced or is likely to prejudice that person; (2) That person's asserted interests are among those that the agency was required to consider when it engaged in the agency action challenged; and (3) A judgment in favor of that person would substantially eliminate or redress the prejudice to that person caused or likely to be caused by the agency action. RCW 34.05.530; Allan v. Univ. of Wash., 140 Wn.2d 323, 326, 997 P.2d 360(2000).

See also WAC 246-10-706(1)("Judicial review of actions taken under this chapter shall

be as provided in RCW 34.05.510, et seq.").

To meet this test, "a person must allege facts demonstrating that he or she is

'specifically and perceptibly' harmed by the agency decision. . . . When a person alleges

a threatened injury, as opposed to an existing injury, the person must demonstrate an

'immediate, concrete, and specific injury to him or herself." Patterson v. Segale, 171

Wn. App. 251, 259, 289 P.3d 657(2012)(quoting Trepanier v. City of Everett, 64 Wn.

speaking, and understanding the English language by taking the [East Asian medicine practitioner] examination").

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App. 380, 382-83, 824 P.2d 524 (1992)). The party seeking to obtain judicial review of

an agency action bears the burden of establishing standing. City of Burlington v. Wash.

State Liquor Control Bd., 187 Wn. App. 853, 861, 351 P.3d 875 (2015).

Choi has not met his burden to establish standing. Choi has not demonstrated

an immediate, concrete, or specific injury. Choi asserted that the Department's failure

to revoke Kim's license violates the law, but has not explained how that alleged violation

causes him any injury. Instead, Choi has alleged that he "is a member of the Public

which [the Department] has an obligation to protect." But without any allegation of an

immediate, concrete, and specific injury in fact, Choi's allegation is insufficient as a

matter of law to establish standing. See Allan, 140 Wn.2d at 329 (citing Lu'an v.

Defenders of Wildlife, 504 U.S. 555, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992)).

While the Supreme Court has also recognized "standing to challenge

governmental acts on the basis of status as a taxpayer," State ex rel Boyles v. Whatcom

County Superior Court, 103 Wn.2d 610, 614,694 P.2d 27(1985), Choi cannot meet this

test either. "The mere fact that a taxpayer disagrees with a discretionary decision of the

[agency] provides no basis for a suit challenging that decision. In order to maintain an

action, the taxpayer must show.. . a unique right or interest that is being violated, in a

manner special and different from the rights of other taxpayers." Greater Harbor 2000

v. City of Seattle, 132 Wn.2d 267, 281, 937 P.2d 1082(1997)(quoting Am. Legion Post

No. 32 v. City of Walla Walla, 116 Wn.2d 1, 7, 802 P.2d 784 (1991)). Choi has not

shown either that he possesses a unique right or interest that is being violated or that he

is in a special or different situation than the public at large. Accordingly, Choi does not

have standing to bring this claim against the Department.

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Because Choi lacks standing to bring this case we do not reach the questions

relating to either the State's motion to quash and Choi's motion to continue.

We affirm.

WE CONCUR: g atid 4411: i

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