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Miller v. Board of Psychologist Examiners

Court of Appeals of Oregon

November 22, 2017

Debra (Kali) MILLER, Ph.D., Petitioner,
v.
BOARD OF PSYCHOLOGIST EXAMINERS, Respondent.

          Submitted March 3, 2017

         Board of Psychologist Examiners 2013048

          Debra (Kali) Miller, Ph.D., fled the briefs pro se.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jona J. Maukonen, Assistant Attorney General, fled the brief for respondent.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case Summary:

         Petitioner seeks reversal of two final orders of the Oregon Board of Psychologist Examiners (board), one which temporarily suspended her license to practice psychology following a hearing on the board's issuance of an emergency suspension order, and another which permanently revoked her license to practice psychology and imposed a $5, 000 fine. Petitioner challenges the emergency suspension order on the basis that the board's determination was not supported by substantial evidence. She also challenges the permanent revocation order and $5, 000 fine, which was decided on the board's motion for summary determination, arguing that the board erred in concluding that issue preclusion barred petitioner from litigating factual issues that had already been decided at the hearing on the emergency suspension.

         Held:

         The board erred in applying issue preclusion and granting summary determination in the permanent revocation proceeding.

         Order revoking petitioner's license to practice psychology and imposing a $5, 000 fine reversed and remanded; order temporarily suspending petitioner's license to practice psychology affirmed.

         [289 Or.App. 35] SHORR, J.

         Petitioner seeks reversal of two final orders of the Oregon Board of Psychologist Examiners (board), one which temporarily suspended her license to practice psychology following a hearing on the board's issuance of an emergency suspension order, and another which permanently revoked her license to practice psychology and imposed a $5, 000 fine. Petitioner challenges the emergency suspension order on the basis that the board's determination was not supported by substantial evidence. We reject that assignment of error without discussion. Petitioner also challenges the permanent revocation order and $5, 000 fine, which was decided on the board's motion for summary determination, arguing that the board erred in concluding that issue preclusion barred petitioner from litigating factual issues that had already been decided at the hearing on the emergency suspension. For the reasons that follow, we conclude that the board erred in applying issue preclusion and granting summary determination in the permanent revocation proceeding. We therefore affirm the order temporarily suspending petitioner's license, but reverse and remand the order permanently revoking petitioner's license and imposing a $5, 000 fine.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The relevant facts, which are largely procedural, are taken from the board's final revised order revoking petitioner's license and imposing sanctions. In January 2012, petitioner, a licensed psychologist, began treating the client, a then nine-year-old boy. After several months of therapy, petitioner diagnosed the client with reactive attachment disorder (RAD) and recommended a number of exercises and techniques for the client and his parents. In September 2013, the client was hospitalized after he attempted to strangle himself, which prompted an investigation by the board into petitioner's treatment of the client.

         A. The Emergency Suspension Proceeding

         In March 2014, the board issued an order of emergency suspension of petitioner's license to practice psychology, [289 Or.App. 36] under ORS 183.430(2) and OAR 137-003-0560(1).[1] The emergency suspension order was based on the board's determination that petitioner's conduct and continued practice constituted a serious danger to public health or safety:

"[Petitioner] failed to recognize or address [the client's] symptoms of depression, and made a diagnosis of RAD [Reactive Attachment Disorder] even though [the client] did not meet the diagnostic criteria for ...

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