in many of the disability cases and more strongly there are there are explicit waiver of the eleventh amendment bringing the state actions into federal court review that's a five year term to be reviewed by the medical board is the specific complaint when it's primarily for damages for the many years of practice lost from the time of the application ninety five or from the time of the sit in ninety eight oral clinical exam and which i didn't to owe for it in the record as to why you didn't go through the appeals process the california i get in federal court because basically the state court is going to have is going to have to deal with the substantial evidence rule on the whole record and the administrative la because he felt he didn't have jurisdiction and  has directed that they have jurisdiction to do that to to substitute the federal laws or regulations for the state court laws matters before them under the detailed directions of the civil rights statutes for example in the and there is not specifically we had evidence from the chief administrative law judge that he had state court because the findings there were no five arlene findings on the record and the and the state court would have to in essence approve of the decision based on state law which is governed by really really governing given its primary flavor by business  professions code  through two nine three which are which states for the benefit of the administrators that the printer preeminent consideration is the protection of the public and if  strong emphasis of what to do to protect the rights of the of the disabled applicant and although the constitutional section says it's that it's limited to in essence is in force in that statute it's a loon towards protection of the public in reality what happens is the often the administrators are much too risk for example in this in my particular case the judge decided there was no history of negligence there was no acute illness but he was concerned because i was only in therapy and well for three months he ignored the fact that the psych my psychiatrist said i was committed to remain in therapy for a life time and take medication for a life time in addition i had been on the medication and in  therapy which was not the situation when i thinking depressed and just before the hearing in ninety seven and i also point out that i had been depressed medication there's another issue here that the statute would also cover review of hearing actions by the board which include asking for medical records back to nine hundred seventy and hearing  actions and i thought the petition for reconsideration which also raised a d n a that was not of course heard by the judge and it was not handled with any kind of significant due process protection  to the posture of this case there are various pleadings and orders concerning the individual the fantasy who's left in the case the only two defendants in the case are the medical board of california and the california department of consumer affair however i understand that the basic issue there was whether race judicata was properly applied in that case i think the question for us is what what standard a couple of what happens at the medical board in terms of the standard  of an applicant for a license which is different from once licensing right is vested in the case of an applicant the applicant has the burden of proving that he is qualified to practice medicine that he meets the requirements set forth by the medical board standard but rather the preponderance of proof standards which are so i correct because india as the reviewing court was was reviewing another proceeding and determining whether or not substantial evidence supported that finding in this case the medical board simply denied the license and then the next step was for the administrative court to conduct a full hearing so it wasn't reviewing anything for substantial evidence it was actually receiving and evaluating of a noble hearing at that well what's not in the record is what his attorney may have decided to do with the a date da or not to do with the f d a but what is in the record is that it was brought up i think in closing arguments and that could have raised it in the medical proceeding absolutely but based on the motion for reconsideration it wasn't raised until that point i believe was not right i believe it may have been mentioned in closing arguments and then why did the medical board do when it was brought to them on reconsideration the petition was denied without any opinion what is the standard of review for a for a concert you know i don't think actually even a petition for reconsideration was appropriate at that point the next step should have been a petition for writ of mandate to the superior court was it was there  so here he for the burden of proof as to that he was not a danger to the community and that to practice before the agency on the other hand that issue probably was an affirmative defense on which the state fact to the agency's mission specially when it was not reviewed and if it had been reviewed to knowhow in the superior court that might be a different issue so that's my concern about about this because we  have to write not only for this case but a whole host of other cases and i'm not sure i followed with respect to the eighty eight crime because i believe it would be plaintiff's burden in an idiot case to satisfy that he  was otherwise he was qualified individual with a disability which would mean it was his burdens establish that he needs the essential eligibility requirements for the license and one of those requirements as established in the regulations is  ability to safely practice medicine so i'm not sure where you're coming from with respect to an affirmative defense in the d n a yes i think i think that's quite true but there that there are affirmative defenses on that might i would like to point out that this is a case where dr hasan had every opportunity to pursue his lawsuit and he's not being precluded from a ction on the basis of anything other than his election to proceed in the administrative court on his licensing issue i think this can be illustrated by the fact that he does have a second lawsuit pending in the southern district of you can tell us in that case he was required pursuant to the stipulation for a license to take a competency exam because it had been a while since he was in school and had practiced medicine he failed the exam well initially evaluation was done over a period of actually a couple of years beginning with his nine hundred ninety five evaluation at that time he was receiving or actually may not have been receiving psychiatric treatment but at the time the administrative proceedings were going on he was receiving psychiatric treatment and this case really can only be decided based upon whether or not he was qualified to practice medicine and receive a license whether it was safe to practice medicine at the time he applied our at the time it was decided several years down the road he had been getting treatment he had been taking medication and he was he stipulated and the board stipulated that he could be evaluated by a psychiatrist at that time film so you're saying that i what is the fact of his with his voluntary withdrawal of his statement damon's action what how does that affect this case and then secondly if the reclusion is limited to that time frame when he applied does he still have some cases under his current federal i mean are there still some lie the issues under his current federal court case that wouldn't be precluded by that initial finding of young qualifications and when you say current case you're talking about the one in the southern this is one that's when you hear ok it's because we're not we don't know about the other one except that is this district court to ask for superior court review which would have been a genova review and he then decided he didn't like that form and he wanted to try another one and that's exactly what the claim preclusion cases prohibit  remedies and we ought to encourage that if you're also saying that if you do that you're going to lose any federal rummy's on client preclusion including an eighty climb i mean that's a fairly harsh rule and my question is i mean it was called the agency have  do you believe the board can do that or no and the idea is it's going so good the idea isn't inconsistent with the goals of the board the f d a says in order to get a license to practice medicine you must show that you're safe to practice medicine and that's exactly what the board asks nobody and i think anybody wants someone who isn't safe to practice medicine to be given a license to do that is the eighty eight defense does that play out in terms of accommodation and licenses with restrictions and things like that  there was an issue that could have been looked at in light of accommodation in this case essentially the board's psychiatry said he wasn't fit to practice medicine and he put on evidence from his own psychiatrist who said he would be fit to practice medicine if he were closely monitored and there were two step process etc etc and the board psychiatrist said even with close monitoring he isn't safe to practice medicine at this point and that's what the administrative law judge decided that the evidence convinced him that dr hasan would not be safe to practice medicine at that point but even his decision made room for the fact that we see that he is getting treatment we see that he is making progress and we can vision a day when he would be safe to practice medicine and he can reply at that time i take it that mediation is probably not an option in this case that's correct  i've briefly want to address judgment second question that if the conclusion is limited to the time he applied in this case are there any life issues under this case and there are because if he w not qualified it's not safe to practice medicine didn't meet the essential eligibility requirements of the licensing process at the time then he hasn't established that he was qualified a qualified individual with a disability and therefore he's not entitled to damages and that's the kind of interesting because i guess it would be only professionals primarily that was find themselves having to through an administrative licensing first and most people who might have a disability they don't have a professional license they just go to federal court and argue over their qualifications but i guess it would be people right lawyers doctors and others that find themselves have to go first to get the license grant yes and that is a somewhat unique aspect of this which makes me advocate all the more for appropriate issue preclusion and claim preclusion because we don't want to see a proliferation of litigation in that regard but that's exactly what you're going to cause if you if we adopt a rule a lawyer is going to going to advocate that his client go directly to court before pursuing administrative remedies because those mistreated remedies aren't going to be successful i mean that's right a body is not going to be necessarily give allies the issues the same way that a court would under the ada hey i know you feel differently about that but if i were a lawyer advising you have to say and you're saying if you have you must choose between an administrative review and review in court i think i would recommend you go to court i'm just telling you what i would have done as a lawyer and that's exactly what you don't want to have happen and terms of medical and legal unprofessional licensing that would seem you want them to pursue them straight remedies to present the evidence and not encourage them to run to the court a court think i don't think you need to argue that point then i'd just like to state my position that i do believe that claim preclusion applies i believe it's the same standard of proof in the administrative hearing as it would be in an eighty eight case but in if there's any doubt on that issue claim preclusion must apply because he's essentially claiming the primary right to a medical license in the administrative hearing and he's claiming the same primary right in federal court and he's not permitted to there was the state to have the first bite to come to a final conclusion not to be the procedure should be short shortened and the plaintiff there on off the court before the the state has had its fullest chance medication when you're not depressed after having two or three depressions is a good idea and i'm completely in agreement i have no problem with that remaining complaint  that you want damages for that period that limbo period when you didn't have a probationary license and when the license was denied you know the guy who you start the clock running  together and that was that was actually an interesting point in the case was that it was instant temper october when the doctor meet the words expert testified his main point was not the if the world had asked him he would have said to review the situation at six months and see how he's doing and then i would point out the l j didn't file his decision until six six months after i had been there and the final order was ten months after i had been in therapy and a month prior to the final order is when i put out a petition for reconsideration which gave them an update  that made it more difficult for the judge address the a da issue whether the standards were sufficiently similar and whether he had decided the issues under arlene and one of the most important things that was not specifically sudden decision was the issue of accommodation the judge did not say specifically that monitoring or probation would be inadequate he did not address the fact that he question should be written out and shared in advance was not followed it was one initial question and then they just went around asking questions for twenty minutes and they went wherever they wanted and the grades were erotically different i had a eight and appeal was suppressed it's not really of the gravity of i don't think of this case it was really something they were i was looking to force them to give me a proper exam and ultimately they did and the third swing they gave me an three it may be time to sit down and try to resolve this you're going to have to live with the board a long time you've got a probationary license and and you can spend a lot of time litigating these matters and i you know i a right to be angry about your treatment you are angry i can see that but it's probably time to resolve that and to resolve that you may have to hire a lawyer because that's the best way to do things to engage in mediation well i agree to you saying is that everybody comes into our court obviously it's an adversary system and some but sometimes we see here the cases that perhaps should be resolved and need to be resolved other than by final decision before so i commend  for your thought and if you do that i would encourage you to get a separate lawyer to negotiate just just for the purpose of settlement because i think that might be a worthwhile endeavor my comments do not mean we've decided this  i would think twice about whether i really wanted to pursue damages in this at this time but i think it should be legally an open issue for my decision i think it would be a difficult case at