: March 2, 1981.
GUERRERO, DR. FLORO G.
STATE OF NEW JERSEY AND NEW JERSEY STATE BOARD OF MEDICAL EXAMINERS FLORO G. GUERRERO, M.D., APPELLANT
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Civil Action No. 79-3108)
Before Adams, Hunter and Higginbotham, Circuit Judges.
Author: Per Curiam
Opinion OF THE COURT
1. This is an appeal from an order of the United States District Court for the District of New Jersey denying appellant's request for a stay of state administrative proceedings in a medical malpractice action and granting appellees' motion for summary judgment.
2. Appellant, Dr. Floro A. Guerrero, was found guilty of gross medical malpractice by the New Jersey Board of Medical Examiners in violation of N.J.Stat.Ann. § 45:9-16 (West) (Supp.1980). The only issue before us is whether the New Jersey administrative procedure, as codified in N.J.Stat.Ann. § 52:14B-10(c) (West) (Supp.1980),*fn1 providing for the hearing of cases in first instance by administrative law judges rather than the ultimate deciding agency, denies appellant due process or equal protection of the law. Because we find no constitutional infirmity in the New Jersey statutory scheme, we affirm the judgment of the district court.
3. Appellant's case was heard by an administrative law judge who then filed a written decision with the New Jersey State Board of Medical Examiners containing findings of fact and conclusions of law. Appellant's counsel filed written exceptions to the ALJ's factual findings and legal conclusions, appending excerpts from the hearing transcript. The Board then adopted the ALJ's decision "in its entirety and without modification" although it did in fact modify the recommended sanction. The essence of appellant's due process claim is that the Board's failure to take evidence and hear testimony itself deprived him of a meaningful right to be heard.
4. It has been settled since Morgan v. United States, 298 U.S. 468, 56 S. Ct. 906, 80 L. Ed. 1288 (1936), that in administrative adjudications, deciding officers need not actually hear the witnesses' testimony. Although the Court stated that "the one who decides must actually hear," it clarified its statement by indicating that it was permissible for a decision to be based solely on a considered review of the evidence and legal arguments. The Court held that "evidence may be taken by an examiner. Evidence thus taken may be sifted and analyzed by competent subordinates.... (T)he officers who make the determination must consider and appraise the evidence which justifies them." Morgan, 298 U.S. at 481-82, 56 S. Ct. at 911-12.
5. This court has adhered to the principle that administrative officers charged with a decision need not personally hear testimony but may instead rely on a written record. In National Labor Relations Board v. Stocker Mfg. Co., 185 F.2d 451 (3d Cir. 1950), this court, relying on Morgan and National Labor Relations Board v. Mackay Radio & Telegraph Co., 304 U.S. 333, 58 S. Ct. 904, 82 L. Ed. 1381 (1938) (in which the Court held that the NLRB could act solely upon transcribed records and oral arguments without the benefit of a report by the trial examiner who heard the testimony), held that:
The doctrine of these cases clearly permits the Board to make its findings and predicate its orders upon the written record without hearing the witnesses testify or availing itself of findings and recommendations prepared by the officer who heard and observed the witnesses testify. Under the Mackay case, due process permits dispensing with the hearing examiner's report altogether. The Morgan opinion says that the officer who actually decides the controversy may do so on the basis of evidence taken by an examiner and thereafter sifted and analyzed by some other subordinate. Due process in administrative proceedings of the type now under consideration does not require that the testimony be evaluated by an officer who heard and observed the witnesses.
185 F.2d at 451.
Other circuits are in accord.*fn2 Estate of Varian v. Commissioner of Internal Revenue, 396 F.2d 753, 755 (9th Cir.), cert. denied, 393 U.S. 962, 89 S. Ct. 402, 21 L. Ed. 2d 376 (1968) ("The Supreme Court's statement that "(t)he one who decides must hear' ... means simply that the officer who makes the findings must have considered the evidence or argument."); Utica Mutual Insurance Company v. Vincent, 375 F.2d 129, 132 (2d Cir.), cert. denied, 389 U.S. 839, 88 S. Ct. 63, 19 L. Ed. 2d 102 (1967) ("Nothing in ... (Morgan) ... suggests that the decider must actually hear the witnesses or be furnished a report on their credibility; the thrust is quite the opposite."); DeRemer v. United States, 340 F.2d 712, 716 (8th Cir. 1965) ("As a matter of general administrative law, it is well settled, at least since the first and fourth "Morgan' cases ... that administrative agencies may properly use subordinates in information-gathering and analysis."); Southern Garment Mfrs. Ass'n v. Fleming, 74 App. D.C. 228, 122 F.2d 622, 626 (D.C.Cir.1941) ("While "the one who decides must hear', it must be remembered that "hear' is used in the artistic sense of requiring certain procedural minima to insure an informed judgment by the one who had the responsibility of making the final decision and order.").
6. The Supreme Court recently considered and rejected an argument similar to appellant's in United States v. Raddatz, 447 U.S. 667, 100 S. Ct. 2406, 65 L. Ed. 2d 424 (1980). That case involved a due process challenge to the provision of the Federal Magistrate's Act, 28 U.S.C. § 636(b)(1) (1976), enabling a district court judge to make a de novo determination of contested credibility assessments made by a magistrate without personally hearing the live testimony. Upholding the constitutionality of the statute, the Court analogized the Magistrate's Act procedures to administrative adjudications in which the ultimate fact finder does not hear the witnesses testify. Nothing in the Raddatz opinion indicates a retreat from Morgan; indeed the contrary is true.*fn3
7. Appellant contends that because of the severity of the penalty involved revocation of his professional license*fn4 his case is distinguishable from the type of administrative proceeding contemplated by the Morgan line of cases. He believes that the vital interest at stake compels the Board of Medical Examiners actually to hear witnesses' testimony. We do not agree. Moreover, even if we found appellant's case distinguishable, an examination of the New Jersey administrative procedure would lead us to the conclusion that the requirements of due process have been satisfied. Engaging in the analysis required by Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47 L. Ed. 2d 18 (1976),*fn5 we do not believe that it is inconsistent with due process for the Board to make its decision on the basis of an ALJ's report containing findings of fact and conclusions of law, written exceptions thereto, and oral argument.
8. We hold that the procedure for administrative adjudications established by N.J.Stat.Ann. § 52:14B-10(c) (West) (Supp.1980) does not violate appellant's right to due process of law. In addition, after considering the arguments made in appellant's briefs and oral argument, we fail to find a violation of equal protection. Accordingly, the judgment of the district court will be affirmed.