Gregory Harris Brandenburg, Rn, Arpn v. Kentucky Board of Nursing

RENDERED: JANUARY 27, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1228-MR
GREGORY HARRIS
BRANDENBURG, RN, APRN APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE SUSAN SCHULTZ GIBSON, JUDGE
ACTION NO. 21-CI-002188
KENTUCKY BOARD OF NURSING APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; DIXON AND GOODWINE, JUDGES.
DIXON, JUDGE: Gregory Harris Brandenburg appeals from the order denying his
petition for declaratory judgment entered on September 16, 2021, by the Jefferson
Circuit Court. Following careful review of the record, briefs, and law, we affirm.
BACKGROUND FACTS AND PROCEDURAL HISTORY
In 2001, Brandenburg was licensed by the Kentucky Board of Nursing
(“Board”) as a Registered Nurse and Advanced Practice Registered Nurse.
Brandenburg determined he had an alcohol abuse issue and reported it to the Board
in March 2017. Thereafter, in May 2017, the Board discovered that – since May
2015—Brandenburg had issued over 100 controlled substance prescriptions,
exceeding applicable prescribing limits. On August 23, 2017, Brandenburg and
the Board entered an agreed order for the voluntary surrender of Brandenburg’s
nursing licenses for at least two years to satisfy the two actions against him.
On September 14, 2020, Brandenburg applied for reinstatement of his
licenses. Nine days later, he submitted certain documentation to the Board for his
reinstatement and inquired as to what else was necessary. Brandenburg also,
erroneously, asserted that he surrendered his nursing licenses and privileges “for a
period of two years” and that the “suspension period” had run. Additionally, he
included a report and evaluation by Walter Butler, M.D., to demonstrate that
Brandenburg “discovered the root of his health issues and that the ‘alcohol abuse’
issues discussed in the Agreed Order was [sic] really a manifestation of the
underlying illness[.]”1
1
The specific “health issue” or “underlying illness” was bipolar disorder. Brandenburg indicated
to Dr. Butler that his primary care physician first noted and diagnosed the bipolar symptoms in
2015 and prescribed medication accordingly. Dr. Butler’s diagnostic impression of Brandenburg
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Less than one month later, the Board replied by letter enclosing its
Guidelines for Requesting Reinstatement of a Voluntarily Surrendered
License/Credential (“Guidelines”) and providing its assessment – provision by
provision – of whether each of the 18 provisions were met. The Board informed
Brandenburg that it had not received “the required evidence to proceed with the
consideration of the reinstatement” of his nursing licenses. It further stated that if
Brandenburg wished to be “considered for reinstatement, he must satisfy all of the
provisions noted in the Guidelines for Reinstatement and in 201 KAR2 20:225.”
(emphasis, footnote added). It also noted Brandenburg’s application would expire
on September 14, 2021.
On April 14, 2021, Brandenburg petitioned the Jefferson Circuit Court
for a declaratory judgment regarding the enactment and enforcement of the
Guidelines, to vacate the agreed order, and to reinstate his nursing licenses.
Brandenburg filed a memorandum in support of his petition, the Board responded,
and a hearing was held. The trial court ultimately concluded that Brandenburg had
failed to exhaust his administrative remedies and denied his petition. This appeal
followed.
was two-fold: (1) bipolar disorder, in substantial remission, and (2) alcohol use disorder, in
remission.
2
Kentucky Administrative Regulations.
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STANDARD OF REVIEW
It is well-settled:
[t]he basic scope of judicial review of an administrative
decision is limited to a determination of whether the
agency’s action was arbitrary. Bobinchuck v. Levitch,
[380 S.W.2d 233 (Ky. 1964).] If an administrative
agency’s findings of fact are supported by substantial
evidence of probative value, they must be accepted as
binding and it must then be determined whether or not
the agency has applied the correct rule of law to the facts
so found. Kentucky Unemployment Ins. Comm’n v.
Landmark Community Newspapers of Kentucky, Inc., [91
S.W.3d 575 (Ky. 2002).] The Court of Appeals is
authorized to review issues of law involving an
administrative agency decision on a de novo basis.
[Aubrey v. Off. of the Att’y Gen., 994 S.W.2d 516 (Ky.
App. 1998)]. In particular, an interpretation of a statute
is a question of law and a reviewing court is not bound
by the agency’s interpretation of that statute. Halls
Hardwood Floor Co. v. Stapleton, [16 S.W.3d 327 (Ky.
App. 2000).]
Liquor Outlet, LLC v. Alcoholic Beverage Control Bd., 141 S.W.3d 378, 381 (Ky.
App. 2004).
LEGAL ANALYSIS
Brandenburg’s petition seeking declaratory relief was denied by the
trial court based upon the well-established principle that, “[a]s a general rule,
exhaustion of administrative remedies is a jurisdictional prerequisite to seeking
judicial relief.” Commonwealth v. DLX, Inc., 42 S.W.3d 624, 625 (Ky. 2001)
(citing Goodwin v. City of Louisville, 309 Ky. 11, 215 S.W.2d 557, 559 (1948)).
-4-
There is no evidence in our record that Brandenburg’s application was ever
actually denied. Rather, the application simply expired because Brandenburg did
not submit proof to the Board that he had fulfilled all the requirements that he –
with the advice of his legal counsel – agreed to complete prior to reinstatement of
his licenses. Brandenburg may still reapply for reinstatement; yet, he has chosen to
prematurely seek relief from the judicial system, now claiming the Guidelines with
which he agreed to comply are illegal. Moreover, Brandenburg has failed to even
comply with requirements that clearly do not run afoul of KRS3 13A.100 or KRS
13A.130 – such as paying his fine.
In Popplewell’s Alligator Dock No. 1, Inc. v. Revenue Cabinet, 133
S.W.3d 456, 471 (Ky. 2004), the Court explained:
Exhaustion is generally required as a matter of
preventing premature interference with agency
processes, so that the agency may: (1) function
efficiently and have an opportunity to correct its own
errors; (2) afford the parties and the courts the benefit of
its experience and expertise without the threat of litigious
interruption; and (3) compile a record which is adequate
for judicial review. In addition, an agency has an interest
in discouraging frequent and deliberate flouting of the
administrative process. [T]he exhaustion doctrine does
not preclude, but rather defers, judicial review until
after the expert administrative body has built a
factual record and rendered a final decision. By
honoring the exhaustion doctrine, courts avoid interfering
with the administrative process, and the initial reviewing
court benefits from the specialized knowledge of the
3
Kentucky Revised Statutes.
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agency. With increasing case loads and demands upon
the courts, it is important to note that [t]he rule requiring
exhaustion also promotes judicial economy by
resolving issues within the agency, eliminating the
unnecessary intervention of courts.
In 1994, the legislature enacted a comprehensive
act relating to administrative hearings, which was
codified as KRS Chapter 13B, that brought together in
one place the varying grounds for review of an
administrative decision already recognized in Kentucky
jurisprudence, and provided that [a] party may file a
petition for judicial review only after the party has
exhausted all administrative remedies available
within the agency whose action is being challenged,
and within any other agency authorized to exercise
administrative review. And, the Act specifically
authorized a reviewing circuit court to grant a stay of a
final order pending judicial review. Thus, a party
adversely affected by a final order of an administrative
agency may seek judicial review and, if necessary,
request a stay of the order during the judicial review.
(Emphasis added) (internal quotation marks, footnotes, and original emphasis
omitted). The Supreme Court went on to hold “a party need not exhaust
administrative remedies when attacking the constitutionality of a statute or a
regulation as void on its face, . . . a party must exhaust administrative remedies
prior to seeking judicial review of an as-applied constitutional challenge.” Id. at
472 (emphasis added).
In the case herein, Brandenburg challenges neither a statute nor a
regulation as unconstitutional on its face or as-applied. By contrast, he asserts the
Guidelines he agreed to follow are illegal because they constitute “actual policy”
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of the Board in violation of KRS 13A.100 and KRS 13A.130. Since Brandenburg
is not attacking the constitutionality of a statute or a regulation, the trial court
correctly denied his petition for declaratory relief for his failure to exhaust his
administrative remedies. See id. Accordingly, we need not address any further
issues.4
CONCLUSION
Therefore, and for the foregoing reasons, the order entered by the
Jefferson Circuit Court is AFFIRMED.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
J. Fox DeMoisey Amy Wheeler
Prospect, Kentucky Louisville, Kentucky
4
In his reply brief, Brandenburg cites Goodwin, 309 Ky. at 15, 215 S.W.2d at 559, which stated,
“The concept of the term jurisdiction embraces action, or contemplated action, by the body
without power and in the given case, it is necessary for the judiciary to restrain the agency in
order to prevent irreparable injury.” Brandenburg asserts he “is suffering irreparable injury
being illegally restrained from the practice of nursing for years.” Yet, irreparable harm is
defined as, “incalculable damage to the applicant . . . either to the liberty of his person, or to his
property rights, or other far-reaching and conjectural consequences,” and, “something of a
ruinous nature[.]” Barnes v. Goodman Christian, 626 S.W.3d 631, 638 (Ky. 2021) (citations
omitted). Brandenburg has failed to provide any specific argument or evidence to support such a
theory. Therefore, he has failed to demonstrate an irreparable injury.
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