Appeal from summary judgment granted by Chief Judge Foley of the United States District Court for the Northern District of New York declaring that appellee's civil rights were violated by failure to grant a hearing prior to denying a waiver, under New York Education Law § 6506(5), of examination requirements for a license to continue the practice of chiropractic. Affirmed.
Before Oakes and Lumbard, Circuit Judges, and Brieant, District Judge.*fn*
Appellants (hereinafter "the Board of Regents" or "the Regents") seek to review a final judgment of the United States District Court for the Northern District of New York, James T. Foley, Chief Judge, which declared the Regents had violated plaintiff-appellee's civil rights. The Regents urge that the district court erred in holding that under the circumstances detailed below, appellee was entitled to an impartial hearing and statement of reasons for denial of her application for a waiver of state professional licensing requirements, as authorized by New York Education Law, § 6506(5). The Regents also claim the action should have been dismissed as Res judicata by reason of a state court judgment, and that it was time barred. Finding no merit in any of these contentions, we affirm.
Effective July 1, 1963, the profession of chiropractic came under licensure by the Regents as a result of Chapter 780, Et seq. of the New York Laws of 1963, now codified as amended in §§ 6552, Et seq. of Title 8 of the New York Education Law. Current practitioners of chiropractic on that date were permitted to qualify under the less stringent provisions of former § 6556 of the New York Education Law. This "grandfather" provision, as it was characterized below, required passing an examination in the practice of chiropractic, and if the applicant wished to use X-ray, a further examination in its use and effect. As to current practitioners, § 6506(5) authorized waiver of "education, experience and examination requirements for a professional license . . . provided the Board of Regents shall be satisfied that the requirements of such Article have been substantially met."
Plaintiff-appellee took the special examinations intended for current practitioners and passed all subjects except chemistry and X-ray. Chemistry was mandatory, although, as noted above, a limited license excluding use of X-ray can be obtained without a passing mark in that field. Computing her test scores in the manner permitted by the New York State Education Department's regulation on grade averaging (8 N.Y.C.R.R. § 73.3) appellee's failure in the science part of the examination which includes chemistry was measured by a margin of six tenths of one percent. She received passing scores in all other subjects.
Appellee, 58 years old at the time of her hearing in the district court, was licensed to practice her profession in Maine and New Hampshire, and has also passed an examination given by the National Board of Chiropractors. On September 21, 1971, she applied for a waiver under § 6506(5) quoted above. This application was denied November 19, 1971 without a hearing and without any statement of reasons.
As to whether the federal claim is time barred, we conclude the district court did not abuse its discretion in determining that the statute of limitations was tolled for a period commencing January 26, 1972, when appellee filed a timely proceeding in the New York State Supreme Court pursuant to Article 78 of the New York CPLR to set aside the denial of waiver by the Regents as arbitrary and capricious and order issuance of a license to practice chiropractic. That petition, which pleaded no federal constitutional claims, was granted at Special Term of the New York Supreme Court, but the order was later reversed on appeal. It was not until November 20, 1975 that the New York Court of Appeals affirmed the order of the Appellate Division of the Supreme Court holding that as a matter of state law the Board of Regents had not abused its discretion in denying the waiver. Tomanio v. Board of Regents, 38 N.Y.2d 724, 381 N.Y.S.2d 37, 343 N.E.2d 755 (1975), aff'g. mem. 43 A.D.2d 643, 349 N.Y.S.2d 806 (3rd Dept. 1973). Appellee was diligent in pressing her claims. Her state litigation was initially successful. It was not until after the three year statute of limitations had expired that the state litigation was finally resolved against appellee. She filed this action on June 25, 1976, some seven months later. This Court has recognized the propriety, under such circumstances, of tolling the statute in the interests of advancing the goals of federalism. Williams v. Walsh, 558 F.2d 667, 674 (2d Cir. 1977); Ornstein v. Regan, 574 F.2d 115, 119 (2d Cir. 1978).
As the federal constitutional claim was not raised or litigated in the state proceeding, it was not barred in the federal court by the doctrine of Res judicata.*fn1 Ornstein v. Regan, supra at 117; Winters v. Lavine, 574 F.2d 46 at 56-58 (2d Cir. 1978) and cases therein cited.
By its plain meaning, the waiver provision of New York State Education Law § 6506(5) is applicable to appellee's factual situation. That this is true was implicitly conceded in the opinions in appellee's state court proceedings cited above. This being so, before such a waiver could be denied to one already practicing her profession, appellee was and is, under the circumstances of this case, entitled to an adjudicative hearing before the Board of Regents, or its duly designated impartial hearing officer, and if waiver be denied, is also entitled to a statement of reasons for the denial.
Doubtless procedural due process requirements would be satisfied were licensure made dependent solely on passing a fairly written examination reasonably related to the required skills, with those who flunk cast out of their profession. In this case, those who flunk may be admitted nonetheless by waiver, the granting or withholding of which is entrusted to the Regents on statutory criteria as broad and vague as that found in Willner v. Committee on Character and Fitness, 373 U.S. 96, 83 S. Ct. 1175, 10 L. Ed. 2d 224 (1963). Where, as here, such broad discretionary power is granted to admit or deny entrance or continuance in a learned profession, it "must be construed to mean the exercise of a discretion to be exercised after fair investigation, with such a notice, hearing and opportunity to answer for the applicant as would constitute due process." Goldsmith v. Board of Tax Appeals, 270 U.S. 117, 123, 46 S. Ct. 215, 217, 70 L. Ed. 494 (per Ch. Justice Taft, 1926).
The adjudicative fact to be determined in considering whether to grant a waiver is not whether Dr. Tomanio may practice her profession in New York, as she can do in Maine and New Hampshire, as a matter of grace from her sovereign or at the whim of the Regents. Rather, it is whether, notwithstanding her narrow failure of the examination, she "substantially" meets licensure requirements. Of course the state legislature need not have provided for any waiver of the examination. But once it did so, denial of the waiver implicates procedural due process rights. An adjudicative fact of such significance to appellee's interests cannot, in logic or constitutionally, be resolved without a hearing before an impartial fact finder, followed by a statement of reasons in the event of denial. This is so because the interest of a current practitioner of the healing arts in the continued practice of her profession is a property right within Fourteenth Amendment protection as defined in Board of Regents v. Roth, 408 U.S. 564, 572, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972), and may also be "liberty" within the same provision. Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 67 L. Ed. 1042 (1923). See also, Board of Curators, University of Missouri v. Horowitz, 435 U.S. 78, 98 S. Ct. 948, 55 L. Ed. 2d 124 (1978) and Friendly, "Some Kind of Hearing" 123 U.Pa.L.Rev. 1267, 1296-97 (1975). The judgment appealed from merely declares such right. Whether, following an impartial hearing, appellee would be entitled to a waiver was not determined below, nor could it be in the absence of such hearing.*fn2
LUMBARD, Circuit Judge (dissenting):
I would reverse the judgment of the district court and dismiss the complaint.
Plaintiff brought this action in the United States District Court for the Northern District of New York, contending that defendants' refusal to issue a license to practice chiropractic in the State of New York deprived her of property without due process in violation of the Fourteenth Amendment. She requested an injunction directing that she be permitted to practice ...