STATE OF MAINE SUPERIOR COURT CIVIL ACTION
KENNEBEC, ss. DOCKET NO. AP-04-67 ->
/-, .
MARTYN VICKERS, M.D., Petitioner
DECISION AND ORDER
MAINE STATE BOARD OF LICENSURE IN MEDICINE,
Respondent
T h s matter is before the court on petition for review of final agency action pursuant to M.R. Civ. P. 80C.
At all times relevant to h s case, Petitioner Martyn Vickers, M.D. ("Petitioner" or "Dr. Vickers") was employed by the United States Veterans Administration Hospital Facility at Togus, Maine. Dr. Vickers has been licensed in Maine as a physician since 1969, and also holds a medical license issued by the Commonwealth of Massachusetts.
In 2003, Respondent Maine State Board of Licensure in Medicine ("Respondent"
or "the Board") received two separate complaints from former patients of Dr. Vickers allegng incompetence. Pursuant to 32 M.R.S.A. § 3282-A(l), the Board requested that Dr. Vickers formally respond to the complaints w i h n h r t y days. The Petitioner failed to respond as required, and instead, h s attorney sent two letters to the Board alleging that it lacked jurisdction in h s matter by virtue of the Federal Constitutional Supremacy Clause. The Assistant Attorney General replied by noting that the Veterans Administration Handbook urges cooperation with state licensing boards, but Dr. Vickers still failed to respond. Thus, the Board ordered an adjudicatory hearing and sent notice to the Petitioner and h s attorney on June 11,2004.
The Respondent held the adjudicatory hearing on July 13, 2004. By its written decision of that date, the Board concluded that it had jurisdiction over Dr. Vickers, and that h s failure to anslver the complaints represented a violation of professional conduct under section 3282-A(2)(H)of title 32. The Hoard therefore ordered the Petitioner to respond to the complaints by August 1, 2004, and also issued a letter of guidance regarding h s responsibility to respond to its lawful requests. Further, the Board imposed a fine of $1,500.00 for each of the Petitioner's failures to respond.
Upon the filing of petition, administrative record and briefs, the matter is now before the court for determination.
When the decision of an administrative agency is appealed pursuant to M.R. Civ.
P.80C, t h s Court revie~vsthe agency's decision directly for abuse of discretion, errors of law, or findings not supported by the evidence. Centamore v. Dep't of H~irna.~~ Services,
664 A.2d 369, 370 (htfe. 1995). "An administrative decision will be sustained if, on the basis of the entire record before it, the agency could have fairly and reasonably found the facts as it did." Seider 17. Board of Exam'r of Psychologists, 2000 ME 206, 479, 762 A.2d 551, 555 (citing CTWCO, Inc. v. Superintelrdent of Ins., 1997 W E 226, '1[6, 703 A.2d 1258,
1261). In revie~,vir~g the decisions of an administrative agency, the Court should "not
attempt to second-guess the agency on matters falling within its realm of expertise" and the Court's review is limited to "determining whether the agency's conclusions are unreasonable, unjust or unlawful in light of the record." Imagineering v. Superintendent of Ins., 593 A.2d 1050, 1053 (Me. 1991).
"When the dispute involves an agency's interpretation of a statute administered by it, the agency's interpretation, although not conclusive on the Court, 1s accorded great deference and will be upheld unless the statute plainly compels a contrary result." Id. (citing Centamore v. Department of Htiman Services, 664 A.2d 369, 370 (Me. 1995)).
As Dr. Vickers sees it, the sole issue in t h s appeal is whether or not the Board has authority to regulate the actions of a federal employee w l ~ ois acting in the performance of his federal function. The Petitioner first notes that he is employed by the United States Department of Veterans Affairs pursuant to 38 U.S.C. 5 7401(1). 117 addition, Dr. Vickers states that VA physicians are subject to review tvhen charges arise that impugn their conduct or professional competence. See 38 U.S.C. 5s 7461-74b4 (2005). Further, the Petitioner asserts that the federal statutory and regulatory scheme has been implemented to assure that federal standards are met in the performance of a VA physician's duties.
Dr. Vickers notes that pursuant to 38 U.S.C. 7402(b)(l)(C),a VA physician is required to be licensed in at least one jurisdiction, but not necessarily in the state in which the physician is employed. In other words, a state license is required for employment at the VA at Togus, but it does not have to be a Maine license. l'he Petitioner asserts that the Board has no authority over physicians licei~sedin other states who are practicing medicine at the VA or other federal government facilities within the State of Maine. Dr. Vickers contends that the federal statutory scl~cme preempts the State's ability to discipline VA physicians, and that it would be inconsistent to have the State regulating some VA physicians but not all.
Pursuant to the Supremacy Clause of Article VI of the U ~ ~ i t States ed Constitution,
the Petitioner contends that it would be unconstitutional for any state licensing board to take action against a federal employee. In support of t h s proposition, Dr. Vickers cites to Sperry v. Florida EX liel. Florida Bar, 373 U.S. 379 (1963). In that case, the Florida Bar objected to Sperry representing clients before the United Sates Patent Otfice. Sperry xvas not a member of any state's bar. The federal statute, however, permitted the Co~nmissionerof Patents to authorize practice before the Patent Office by non-la~vyers, and the Comnlissioner had in fact exercised this p a v e r . l'he Supreme Court found that the Supreinacy Clause preempted Florida larv and its regulahon of tht. practice of la\\, in this instance. 111 particular, the Court noted that "[a] state may not ei~forcclicensing requirements [vhich, though valid in the absence of federal regulation, give 'the State's licensing board a virtual power of review over the federal determination' that a person or agency is qualified and entitled to perform certain fur-tctions, or ~ v h i c hirnpcwe upon the performance of activity sanctioned by federal license additional conditions not contemplated by Congress". Id. at 385 (citations omitted). Here, Dr. Vickers notes that Congress has cauthorized the VA to establish requirements for the hiring and retention of physicians in its clii~ics,and that these requireinents d o not involve licensure ivithin the state in which the hospital or clinic is located. The Petitiol~erasserts that this
conflicts ~ v i t hMaine l a ~ v which , requires the l i c e ~ ~ s u of r e phvsicial~spracticing in this
State, and therefore the Supremacy Clause acts to preempt tl-te State l a ~ v .Because Dr. Vickers believes that the Board was without the authority to discipline him, he contends that tl-te fines must be vacated ar-td the letter of guidance purged from his records.
In opposition, the Board states that the Legislature has given it the po\trer to license and set standards of practice for physicians and surgeons practicing medicine in Maine. See 32 h.1.R.S.A. 3269(3) (2004). In addition, the Respondent i ~ o t e sthat "the disciplinary authority of occupational licensir-tg boards is limited to enforce~nentagainst licensees or former licensees". Golz u.Mlzilze Real Estate Coi?lrilissiotl, 1534 A.2d 1288, 1289 (Me. 1993). The Board concedes that federal law permits Dr. Vickers to practice at the VA hospital at l'ogus under his Massachusetts license alone. Ho~vever,after applying for and receiving a Maine license, the Board asserts that Dr. Vickers has both the right to practice in this State, as well as d-te responsibility to follo~vthe Board's statutes and rules. Moreover, the Respondent explains that ~ v l u l ethe federal government may reviel'v the conduct and competence of physicians i l l its employ, the State has the sole authority to act on an indiviclual physician's license.
In response to the Supremacy Clause argument raised by Dl-. Vickers, the
Respondent quotes from portions of Perez u. C~iizphell,402 U.S.
i54-l (1971). In I1c~.ez,thc
Supreme Court explainecl, "[d]ec:iding whether a state statute is in conflict ~vitha federal statute ancl hence invalicl under the Supremacy Clause is essentially a hvo-step process oi first ascertaining the construction of the tlvo statutes and then determining the constitutional question whether they are in conflict". I d . at 1708. I n the prescnt case, ho~vevcr,the Board points out that there is no federal statute authorizing the licensing or disciplining of physicians. Since there is no federal statutc, the Board
contends that therc can be no conflict wit11 Statc la~'~7, ancl hcncc, no basis for a federal
Suprmxicy Clause argument. Moreover, the Board contends that the various Maine statutes that authorize the board to license, investigate and discipline licensees do not
"stai~das an obstacle to the accomplishment and cxcc~~tion of the f ~ d lpurposes and
objectives oE Congress". 111. at 171'1 (citations o n ~tted).
i
In support of its position, the Respondent also cites to a clecision of the Colorado
Court of Appeals that is bascd on very similar facts. In Color(1~10 Sfnte Bonrd of n/ledical
Eruntfzillri.~v. Keviii P. Slllliuniz, 976 P.2d 885 (Colo. Ct. App. 1999), the Colorado Board issued a complaint against a civilian physician 1\111o worked at a military reservation hospital. In upholding the Colorado Board's revocabon of the physician's license, the court noted that the state's Medical Practice Act permitteel thc Colorado Board to
discipline p h y s i ~ i ~ ~for n sacts x'\lhich occurred outside thc state. h/lorcover, the court
noted that such disciplii?~"does i ~ o prevent, t by operabon of Colorado law, practjcing
n~edicinein another juriscliction. It mt:relv restricts the use of the Colorado license within state bour~dnries". Id. at SSS.
Similarly, the Board ~lc>tec;
that it can a n d docs routinelv discipli~leit.; licensees
r
I he I<e.;po~ldentsu:;gests that in
7
for acts thclt occurred outside the State of Maine. exercising it.; authority, it i.r; not regulating rnedic'xl prc~cticein ~171.otlicr jurisdiction, including a Vi\ hospital. Rather,, the Board asserts that anj: C l c t i oi~t ~tclke~oper'~tes solely upon the phvsicinn's licer-i.;e to prC3cticcnledicii~ein h~lClilic.~l'llus,the Board believes that its sta ttltory au thorih- and its ;~ctionstake11 g gain st llr. LTickCrsshould bc affirmed.
I,Vitli regard to argun~entsraiscd bll the Petitior~er,first, it appc~lrsthCitthe Spt.r.1.y decision is tactually distinguisl~able,and thus, in,~pplicable to this casc. Unlikc tlic
situation in ~ ~ C Y I ' I Jtht1 , Petitioner cites no act of Congrcss that givcs federal authoribcs
the kxn\Terto licensc the practicc of a profession, also r c g ~ ~ l ~ ~ bt ejc~the ! State, under
circumstances that clcarlb, contravene State la\\!. lndecd, there is no indication Iiere that the Statc is c~xercisinga poLver of revic~trover a fecleral licensing decision or imposing additional conditini-is on licensees that ~vert.not contemplated by Congress. Quite to
the contrary, t11c statue cited in Dr. Vickers' olvn brief s1-io~~t.s that tlie vcirious states are
s . 3S U.S.C.
solely respntlsible for the licensing of fcderallv einployed p l ~ y s i c i ~ ~ nSt)e
7402(b)(l)(C).
Si~liilarly,t11e case relied upon by the Board seems to bc of' q~~cstionable value in
resolving the issue prcsentlv bcf'orc tlus Court. In that c'lse, the Colorado Court of Appeals was asked whether thc state's h,ledic,ll Practice ,Act jnfringt3ci on cxclasive federal jurisdiction over a federal enclave. Also, the appellant physician asked the court to decide 1.v11ctl1t.r the state hoard's revocation of his medical license for acts occurring outside stcite borders \\,as proper. The physician in that case apparently ciid not raise tl-it. Supremacv Clause 1' s an issue, and Dr. Vickers asks neither of the questions actually addressed b y the court.
'lhe hJ,line LLi\vC n ~ ~h'is r t ~cxpl'i~nedthat thi. "\ole task 1 1 1 deterr-nin~ng_:\,liether
intent". l<t1/1(7rdsu.
federal la\r prcempts a state statute 1s ti) ascertain Colngreskl~n~~l
Cot t o l l hllll ,-I>socli7t~s, 677 A.2d ,540,543 ( l l e . 1996) (cltatlons c)ni~ttccl).' I lit. l_a\v Court
has also rccogni/ed the s ~ t ~ ~ ; l L ~ illo \vli~ch
iis preemptlo11 m'ny ;~pply:
Pre-elnnption occurs \\:hen Congress, in encictiiig a fc'dcrcnl statute, expresses ;i clear intent to preempt stclte la\\,, when there is an outright or actual conflict het~vccnf'edcral ;und state l;irr, where compliance: ~ v i t hboth teder,ii ;111d state law is in effect physically impossible, ~vherethere is iiilpljcit in federal l a ~ va barrier to state regulation, \\.here Congress has legislated cornyreliensit~ely, thus occupving an entire tield of regulation and leciving no ronrli for the states to supPleinent federal 1'1\v, or ~ v h e r ctlie state la\\, stands as an obstc~cleto the accomplishment and executic>nof the full objclctives nt Congress.
Id. at 5-44(cit'ihons on11 tted). In addibc>n, the I,a\v Court has noted that ~ ~ r e e ~ i i p t iiso n not a favored concept. S r t ~I d . at 5-43.
Cornsiclcring the aforenicntiond teclerd and State l a ~ r s ln light ot tlicse standards, ~t 1s clear that preemption does not 'ipplq 111 tlvs casc.. 'I lie tederal statutes cited by the Petitloner d o not express a clew intent to preempt 5tcite lar\r, nor docs the
to the actions takcii L q . the Board aganst tederd lcgl5latiim contain an ~nipllcitbCirr~cr
Dr. Vichers. Furthcr, the kderal regulatory schen~eis not sn expansive that i t can be said to occupy the entire field, le.,ivi~ngno room tor state oversight of its licensees that are also federal employees. In J-act, as alludecl to above, Consre5s cxplicitlj. left the licensing of fcder-ally er-nployed physicians to the states. 'I'liis indicates that licensing standards and disciplinary prc~e,3uresilnplernentcd bv state Iegislcnture.;are actually in harmony xvith the fedcral regnlatory scheme. Moreot~er, merelv bt.cci~isea \'A physician charged ~ v i t h ~~nprofessionalconduct m ~ g h tbe subject to disciplinary proceeding^ at the federal level c-loes not foreclose tlie State from sanctronlng the same conduct. T11det.d~ it defies logic 1x1 suggest tllcnt Congress lett licensing cdeclsions to the states, but ~IitiI I C ) ~ iiltcl~cit11;lt st;ltt:s also I~avc:tlic pc)i\,er to r c ~ p r i ~ ~ i ~their l r ~ clicensees
i or
take more serious clctioil affecti~igtlieir abiliti. to practice.
For all of these re'lsons, this C'oui-t find5 tli,~tthe Si~pret~~clc-1.
C'la~iseciocs iiot
nperatc to preempt thr. State's ability to regulate and clisciplii~cits licensees at110 are also federal emp1c)j~t.e~.
At or31 argumci~t,Petitioner's counsel poi11tt.d O L I ~thL1tultin~ntelv,Dr. Vickers did provide a response id the FSoarcl, upon consideration of ,111 the evidcl~cc,found no violation of the stclndLirdsof tht: practice of r11cdicii1e ancl thcrcforc. dismissed the con~pl~iints.Counsel, theretorc, tdrSues that tlic action bv the Ro'lrd being revie~vcd relatcs solely to the procedural 11-latter of Tlr. Vickr:rsf fCiiluret c ~rcspnltd anci [.lot cmly
does not I-eflcct directlv upon his fitness to pr'lcticc i n c d i c i ~ ~but c also is undulv Ilarsh.
111 t l ~ ta regard, I'cti tiones argues tlla t he 112s bee11undul pilnlstiecl tor cxercisi~~g liis
rigl~tto argue tlie federal Supremclcv Clause.
l'he Court compares this situation to that OF a person charged \vi th contempt in
the Superior C o ~ ~ \\-110 rt refuses to appear but sends counsel to c11~1llenge the
jurisdiction. He hC1san absolute right tn make that challei~gebut, it it is fc~undby the
Court to clearlv be ~ \ r thin i its jurit;,ciiction,t l ~ cdefendall t ~~1111iot complaiii of the p e n a l 5
for conternpt for refusal to partici13ate. Furtliermoi-el to t l ~ cc1egrc.e tlie letter of ;;uidance and fine appear harsh, thCltis a discretionary matter \.\lithi11the blainc St'lte Board of
Licensi~rein h l e d i c i ~ ~ e1nasl11ucl-I . as it is supported hy the evidence, the Court will not
in terferc.
l l w entrv \ \ r i l l be:
Dated: April 6 , 20U.i Jushce, Superior Court 1 PIartyn V i c k e r s , Maine S t a t e B o a r d o f L i c c n s u r e i n M e d i c i n e , Agency bs
117 S t a t e House S t a t i o n , A u g u s t a
Bruce W i l l i a m s , Esq. Ruth E. M c N i f f , M G Dept. of V e t e r a n s A f f a i r s 6 S t a t e House S t a t i o n 1 VA C e n t e r A u g u s t a , Maine 04333-0006 A u g u s t a , XE 04330
Appeal w i t h a t t a c h e d e x h i b i t s A & B , filed.
Certified record, filed. s / ~ c ~ i f M f ,G
Notlc? of b r i e f i n g schedule mailed t o ~ t t y c .
A p p e l l a n t ' s B r i e f , f i l e d . s / W i l l i a m s , Esq.
C e r t i f i c a t e o f S e r v i c e , f i l e d . s / ~ a n f o r t h ,L e g a l A s s t .
B r i e f i n O p p o s i t i o n t o P e t i t i o n f o r Review, f i l e d . s / ~ ? c ~ i f M f ,G
H e a r i n g h a d w i t h Hon. J u s t i c e Donald Marden, p r e s i d i n g .
B r u c e W i l l i a m s , E s q . f o r t h e P l a i n t i f f and R u t h M c N i f f , E s q . f o r t h e Defendant.
O r a l a r g u m e n t s made t o t h e c o u r t . C o u r t t o t a k e m a t t e r u n d e r a d v i s e m e n t .
DECISION AND ORDER., NARDEN, J .
D e c i s i o n a n d O r d e r o f t h e N a i n e S t a t e Board of L i c e n s u r e i n M e d i c i n e d a t e d J u l y 1 3 , 20Cl4, I N RE: L i c e n s u r e D i s c i p l i n a r y A c t i o n , Martyn A.
V i c k e r s , J r . , M . D . i s AFFIWIED.
C o p i e s m a i l e d t o a t t y s of r e c o r d .
C o p i e s m a i l e d t o Jleborah F i r e s t o n e , G a r b r e c t L i b r a r y a n d G o s s .
N o t i c e o f removal o f r e c o r d n a i l e d .