Appeal from the United States District Court for the District of Hawaii. D.C. No. CV-93-00286-SPK. Samuel P. King, District Judge, Presiding.
Before: James R. Browning, Stephen S. Trott and Andrew J. Kleinfeld, Circuit Judges. Opinion by Judge Kleinfeld.
KLEINFELD, Circuit Judge:
We reject a federal challenge to the fairness of the Hawaii dental board admissions procedure as applied to Dr. Misischia. Because he did not appeal the state administrative determination in the state courts, the administrative decision therefore has preclusive effect.
Dr. Misischia, a doctor of dental medicine (D.M.D.), lives in Missouri. He is licensed to practice dentistry in Missouri, California, and Florida. He serves on the faculty of an oral surgery program in Missouri. Yet he has failed the examination for admission to practice as a dentist in Hawaii three times.
In the examination that led to this lawsuit, in August 1991, Dr. Misischia was not required to retake the entire examination, only the one procedure that he had failed twice, "amalgam prep on mannequin." This test requires the applicant to put a filling in the model tooth of a dental mannequin.
Three dentists who did not know Dr. Misischia, did not know whose work they were grading, and did not consult each other, all failed him. Their primary concern was that "a contact existed between the amalgam and the adjacent tooth."
Dr. Misischia exercised his right to an informal review by another dentist. Haw. Admin. Rules § 16-79-110. The independent reviewer, Dr. Zampetti, told Dr. Misischia that he agreed light could be seen between the filling and the adjacent tooth, so he would suggest to the Dental Board that they have someone take another look at it. Dr. Zampetti wrote the Board that it "should review" the amalgam preparation and grades. The Board invited Dr. Misischia to attend the November 1991 Board meeting where it would decide how to proceed with respect to Dr. Zampetti's letter, but Dr. Misischia did not choose to fly from Missouri for the meeting.
The Board members, dentists themselves except for one dental hygienist, met and considered Dr. Zampetti's letter and looked at the mannequin themselves. The minutes say that "following review of the candidate's amalgam preparation," the Board voted unanimously that Dr. Misischia's grade was "consistent with the grading criteria and should not be changed."
Dr. Misischia, pursuant to the Hawaii Administrative Rules, requested "contested case hearing relief." Under this procedure, he could appeal his grade by proving, among other possibilities, that his grade was inconsistent with the grading criteria, that there was a substantial disadvantage to the applicant in the way the test was administered to him, or that he was "aggrieved by any action of the board." Haw. Admin. Rules §§ 16-79-112(b)(2)-(4), 16-79-110(f)(3).
A hearings officer (as the administrative adjudication officer is called in the Hawaii rules) considered evidence and argument, made findings of fact and Conclusions of law, and recommended to the Board that it either resubmit Dr. Misischia's amalgam preparation on the mannequin to a new informal reviewer, or else change Dr. Misischia's grade to a pass. The reason for this recommendation had to do with procedural aspects of the grade review process, not whether the amalgam touched the adjacent tooth or anything that occurred during the examination itself. The hearings officer's findings that led him to his recommendation were that Dr. Zampetti had disclosed to Dr. Misischia that his amalgam appeared satisfactory and he would ask the Board to regrade it, and that Dr. Zampetti's report to the Board was insufficiently detailed. Also, the Board at the November 1991 meeting "did not consider the original examination sheets prepared by the graders," but instead "relied on Dr. Zampetti's synopsis and its own inspection of the mannequin."
The Board heard presentations at its January 1993 meeting from the hearings officer, a special deputy attorney general, and Dr. Misischia's attorney, listened to the tape of Dr. Zampetti's informal review and Discussion with Dr. Misischia, and deliberated in camera. It then decided to reject the hearings officer's recommendation, and issued an order denying relief. Haw. Admin. Rules § 16-201-46. The only prejudice claimed from Dr. Zampetti's disclosure to Dr. Misischia was that it might have lulled Dr. Misischia into not attending the November 1991 Board meeting, but the Board concluded that Dr. Zampetti "did not say anything which could reasonably have induced petitioner not to attend." Dr. Zampetti had concluded his Discussion with Dr. Misischia with these pessimistic remarks about Dr. Misischia's chances, evidently in reference to the three graders who had unanimously failed him: "There's three people. If it was 2 and 1, then you would probably have a shot, but I still want somebody to look at that again."
The Board also decided that a challenge for "substantial disadvantage" had to be based on "improper administration of any aspect of the licensure examination" under Haw. Admin. Rules § 16-79-110(f)(3), not a claimed irregularity in post-examination matters, so the Board's examination of the filling in the mannequin could not amount to "substantial disadvantage." The Board concluded that Dr. Misischia was not "aggrieved" by the Board's examination of the mannequin, because this ...