Shahnaz Poursaied v. Tennessee Board of Nursing

10/14/2021

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

August 4, 2021 Session

SHAHNAZ POURSAIED V. TENNESSEE BOARD OF NURSING

Appeal from the Chancery Court for Lincoln County

No. 15267 J.B. Cox, Chancellor

No. M2020-01235-COA-R3-CV

Tennessee’s Department of Health (“TDH” or “the Department”) sought reciprocal

revocation of a registered nurse’s Tennessee license after her registered nurse license was

revoked in California. After a hearing on the matter, which the nurse did not attend, the

Tennessee Board of Nursing (“Board”) entered a default judgment against the nurse and

revoked her Tennessee license. The nurse appealed to the chancery court and brought an

action for damages against the Board. The chancery court affirmed the Board’s decision

and dismissed the nurse’s action for damages. The nurse then appealed to this Court. We

affirm the chancery court in all respects.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

ANDY D. BENNETT, J., delivered the opinion of the Court, in which FRANK G. CLEMENT,

JR., P.J., M.S., and W. NEAL MCBRAYER, J., joined.

Shahnaz Poursaied, Huntsville, Alabama, pro se.

Herbert H. Slatery, III, Attorney General and Reporter, Andrée Blumstein, Solicitor

General, and Sue Ann Sheldon, Senior Assistant Attorney General, for the appellee,

Tennessee Board of Nursing.

OPINION

FACTUAL AND PROCEDURAL BACKGROUND

This case involves a reciprocal revocation of a registered nurse license. Shahnaz

Poursaied is a registered nurse who, at all times pertinent, was licensed in California and

Tennessee. In 2018, Ms. Poursaied accepted a travel nurse assignment with Enloe Medical

Center (“Enloe”) in Chico, California. While working at Enloe, Ms. Poursaied performed

a rectal examination and digital disimpaction on one of her patients. At least three people

witnessed Ms. Poursaied perform the procedure on the patient, and they reported that Ms.

Poursaied did not have a doctor’s order to perform the procedure and that she performed it

against the patient’s will because the patient told her to stop several times. Based on these

allegations, the Board of Registered Nursing for the State of California (“CA Board”)

initiated proceedings to revoke Ms. Poursaied’s California registered nurse license due to

gross negligence, incompetence, and unprofessional conduct. The CA Board entered a

default judgment against her when she failed to file a notice of defense within fifteen days

after receiving notice of the accusations filed against her. The CA Board then proceeded

to take action against Ms. Poursaied’s California registered nurse license. Based upon all

of the investigatory reports, exhibits, and witness statements that had been filed in the case,

the CA Board concluded that the allegations against her were “true and correct.”1 Thus,

on July 3, 2019, the CA Board revoked Ms. Poursaied’s California registered nurse license.

After receiving notification of the CA Board’s revocation of Ms. Poursaied’s

California registered nurse license, TDH served Ms. Poursaied via certified mail, with

notice of its intention to file administrative charges against her Tennessee registered nurse

license. In the notice, TDH informed Ms. Poursaied that she had an opportunity to show

compliance with the requirements for retaining her license.2 The Department received the

return receipt on September 4, 2019, and it showed that the notice had been delivered to

and signed for by Ms. Poursaied.

On October 8, 2019, TDH filed a notice of hearing and charges against Ms.

Poursaied with the Tennessee Secretary of State’s administrative procedures division and

sent copies of the notice to Ms. Poursaied, via both certified mail and first-class mail, which

the record shows she received. In the notice, TDH informed Ms. Poursaied that the Board

would hear the matter as a contested case on November 20, 2019, and that she had the right

to be represented by an attorney, to subpoena witnesses to testify at the hearing, and to

1

California Government Code section 11520(a) provides:

If the respondent either fails to file a notice of defense, or, as applicable, notice of

participation, or to appear at the hearing, the agency may take action based upon the

respondent’s express admissions or upon other evidence and affidavits may be used as

evidence without any notice to respondent; and where the burden of proof is on the

respondent to establish that the respondent is entitled to the agency action sought, the

agency may act without taking evidence.

2

Pursuant to Tenn. Code Ann. § 4-5-320(c), “[n]o revocation, suspension, or withdrawal of any

license is lawful unless, prior to the institution of agency proceedings, the agency gave notice by mail to

the licensee of facts or conduct that warrant the intended action, and the licensee was given an opportunity

to show compliance with all lawful requirements for the retention of the license.”

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present evidence at the hearing.3 The notice contained a warning to Ms. Poursaied that, if

she failed “to enter an appearance and defend, a default judgment may be entered.”

Thereafter, the administrative procedures division assigned an administrative judge to the

case who issued a scheduling order on October 17, 2019, cautioning the parties that any

failure to participate in any stage of the proceedings “may result in a default ruling against

that party.”

Between October 29, 2019 and November 19, 2019, Mark Cole, TDH’s attorney,

exchanged several emails with Ms. Poursaied concerning whether she would attend the

contested case hearing. In her responses, Ms. Poursaied repeatedly expressed her

infuriation over the charges against her, offered defenses against the charges, and informed

Mr. Cole that she did not intend to attend the contested case hearing. The day before the

hearing, Ms. Poursaied once again informed Mr. Cole that she did not intend to appear at

the hearing:

I can not attend. So no I can not attend it at all, not now and not anywhere

in future but thanks for being considerate. I am frustrated and although I do

realize obligations that TN board like any regulatory board has towards

public safety which gets my highest of respect but since I am seriously

harassed and discriminated since Feb 2018 over this case I cant tolerate it

any longer. This is beyond my tolerance as there is limit to ridicule,

discriminate and torture.[4]

When the administrative judge and a four-member panel of the Board heard the

matter on November 20, 2019, Ms. Poursaied failed to appear and no one appeared on her

behalf despite the various warnings that such an occurrence could result in a default

judgment.5 Consequently, TDH moved for a default judgment and requested that it be

allowed to proceed with the case. The Department supported its motion by introducing

evidence that Ms. Poursaied had received proper notice of the proceedings, including the

signed return receipt and the emails she exchanged with Mr. Cole about her unwillingness

to attend the hearing.

3

The Board is the state agency authorized to license, regulate, establish minimum standards

governing the activities of, and hear disciplinary charges against nurses in this state. See Tenn. Code Ann.

§§ 63-7-101, -115, -207.

4

All grammatical errors appear in the original.

5

The Board consists of eleven members and is authorized to conduct contested case hearings before

three or more members and in the presence of an administrative judge. See Tenn. Code Ann. §§ 4-5-

301(a)(1), 63-7-116(i), 63-7-201.

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After the administrative judge considered this evidence and advised the Board that

Ms. Poursaied had received legally sufficient notice of the hearing, the Board voted to grant

the motion for default judgment and to proceed without Ms. Poursaied.6 The Department

proceeded by introducing into evidence a certified copy of the CA Board’s administrative

order revoking Ms. Poursaied’s California registered nurse license, an unsworn written

statement from Ms. Poursaied to her travel nurse agency defending herself against the

California charges, and affidavits from two administrative directors for the Board. The

Board then received instructions from the administrative judge,7 deliberated, and entered

an order revoking Ms. Pousaied’s Tennessee registered nurse license8 and her multistate

privilege to practice in any other party state.

The Board based its decision to revoke Ms. Poursaied’s Tennessee registered nurse

license on its finding that the CA Board revoked her California license “due to Gross

Negligence and Incompetence and Unprofessional Conduct in her performance of a

treatment against the patient’s will and without a physician’s order in a correctional

facility.”9 Relying on this finding, the Board concluded that: (1) facts sufficiently

established that discipline was warranted pursuant to Tenn. Code Ann. § 63-1-120(b),

which provides for reciprocal discipline of healthcare professionals in this state if they have

6

Tennessee Code Annotated section 4-5-301(b) requires the administrative judge to “rule on

questions of the admissibility of evidence, swear witnesses, advise the agency members as to the law of the

case, and ensure that the proceedings are carried out in accordance with this chapter, other applicable law

and the rules of the respective agency.” Furthermore, Tenn. Comp. R. & Regs. 1360-04-01-.15(c) provides

that it is the duty of the administrative judge to “advise[] the agency whether the service of notice is

sufficient as a matter of law[.]”

7

The administrative judge instructed the Board that it was the Board’s duty to: make findings of

fact, determine whether Ms. Poursaied’s actions warranted discipline as alleged in the notice of charges,

and state its conclusions of law. The administrative judge further instructed the Board that its determination

must include an analysis of the evidence that sufficiently demonstrates how the findings of fact support the

Board’s conclusions. Finally, the administrative judge instructed the Board that its deliberations “must be

audible, in public before all parties.”

8

Pursuant to Tenn. Comp. R. & Regs. 1000-01-.04(6)(a)(2), the Board also imposed one Type B

civil penalty against Ms. Poursaied in the amount of $500. (“A Type B Civil Penalty may be imposed

whenever the Board finds the person required to be licensed . . . guilty of a violation of the Nursing Practice

Act or regulations pursuant thereto in such manner as to impact directly on the care of patients or the

public.”). Ms. Poursaied asserts that the Board’s imposition of this civil penalty violated the U.S.

Constitution’s double jeopardy clause’s protection against multiple criminal punishments for the same

offense because she had criminal charges pending in California for the same disimpaction incident. This

argument is unavailing. Even if the civil penalty imposed by the Board constituted a criminal punishment

that triggered the double jeopardy clause, the record contains no evidence that Ms. Poursaied was ever

convicted of the criminal charges against her in California. The double jeopardy clause’s prohibition

against multiple criminal punishments, therefore, has not been implicated.

9

The record shows that Enloe is a hospital/medical center not a correctional facility.

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been disciplined in another state; (2) facts sufficiently established Ms. Poursaied violated

Tenn. Code Ann. § 63-7-115(a)(1)(F), which authorizes the Board to discipline a nurse

upon proof of unprofessional conduct; and (3) revocation was the appropriate disciplinary

action.

Ms. Poursaied filed a petition for review in the chancery court of Shelby County on

December 30, 2019, seeking to overturn the Board’s decision. After Ms. Poursaied

relocated to Huntsville, Alabama, the parties filed an agreed order transferring the case to

the chancery court of Lincoln County—the closest chancery court to Ms. Poursaied’s new

residence.10 Thereafter, Ms. Poursaied filed a document titled “Tort Claim due to Damage

to my health,” seeking monetary damages from the state because the state was allegedly

“responsible for damage to [her] health as a result of this horrible crime against [her]

constitutional rights which has damaged [her] health and reputations.” She also filed a

motion for sanctions against the Board because it failed to respond to her petition for

review.

After hearing the matter, the chancery court entered a memorandum opinion

affirming the Board’s decision, denying Ms. Poursaied’s motion for sanctions, and

dismissing her claim for monetary damages. Ms. Poursaied timely appealed and presents

numerous issues for our review which we consolidate and restate as follows: (1) whether

the chancery court erred in dismissing her claim for monetary damages, (2) whether the

chancery court erred in denying her motion for sanctions, and (3) whether the record

supports the Board’s decision.

STANDARD OF REVIEW

The Uniform Administrative Procedures Act (“UAPA”), Tenn. Code Ann. §§ 4-5-

101 to -325, governs judicial review of an administrative agency’s decision. See

MobileComm of Tenn., Inc. v. Tenn. Pub. Serv. Comm’n, 876 S.W.2d 101, 104 (Tenn. Ct.

App. 1993); see also City of Memphis v. Civil Serv. Comm’n of City of Memphis, 238

S.W.3d 238, 242 (Tenn. Ct. App. 2007). Under the UAPA, “[t]he reviewing court’s

standard of review is narrow and deferential.” StarLink Logistics Inc. v. ACC, LLC, 494

S.W.3d 659, 668 (Tenn. 2016). The UAPA limits reversal or modification of an agency’s

decision to situations where the decision is:

(1) In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority of the agency;

10

Tennessee Code Annotated section 4-5-322(b)(1)(A)(ii) provides, in pertinent part:

[V]enue for appeals of contested case hearings shall be in the chancery court nearest to the

place of residence of the person contesting the agency action or alternatively, at the

person’s discretion, in the chancery court nearest to the place where the cause of action

arose, or in the chancery court of Davidson County.

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(3) Made upon unlawful procedure;

(4) Arbitrary or capricious or characterized by abuse of discretion or clearly

unwarranted exercise of discretion; or

(5)(A)(i) Unsupported by evidence that is both substantial and material in the

light of the entire record;

(ii) In determining the substantiality of evidence, the court shall take

into account whatever in the record fairly detracts from its weight, but

the court shall not substitute its judgment for that of the agency as to

the weight of the evidence on questions of fact.

Tenn. Code Ann. § 4-5-322(h).

This standard of review is narrower than what is generally applied in other appeals

because it “reflects the general principle that courts should defer to decisions of

administrative agencies when they are acting within their area of specialized knowledge,

experience, and expertise.” StarLink Logistics Inc., 494 S.W.3d at 669. As a result, a

reviewing court does not review an agency’s factual findings de novo or “second-guess the

agency as to the weight of the evidence” even when “the evidence could support a different

result.” Id. Rather, we review an agency’s factual findings to determine whether they are

supported by substantial and material evidence in the record. Tenn. Code Ann. § 4-5-

322(h)(5); see also Macon v. Shelby Cnty. Gov’t Civil Serv. Merit Bd., 309 S.W.3d 504,

508 (Tenn. Ct. App. 2009).

Tennessee Code Annotated section 4-5-322(h) does not define “substantial and

material evidence,” but Tennessee courts have described it as “less than a preponderance

of the evidence and more than a ‘scintilla or glimmer’ of evidence.” StarLink Logistics

Inc., 494 S.W.3d at 669 (quoting Wayne Cnty. v. Tenn. Solid Waste Disposal Control Bd.,

756 S.W.2d 274, 280 (Tenn. Ct. App. 1988)). It is “‘such relevant evidence as a reasonable

mind might accept to support a rational conclusion and such as to furnish a reasonably

sound basis for the action under consideration.’” Macon, 309 S.W.3d at 508 (quoting

Pruitt v. City of Memphis, No. W2004-01771-COA-R3-CV, 2005 WL 2043542, at *7

(Tenn. Ct. App. Aug. 24, 2005)). Thus, under this standard of review, we may not reverse

an agency’s decision merely “‘because the evidence could also support another result.’”

Ramos v. Elec. Emps.’ Civil Serv. & Pension Bd. of Metro. Gov’t of Nashville & Davidson

Cnty, No. M2020-00324-COA-R3-CV, 2020 WL 7861470, at *2 (Tenn. Ct. App. Dec. 23,

2020) (quoting City of Memphis, 238 S.W.3d at 243). We may reverse an agency’s

decision “‘only if a reasonable person would necessarily arrive at a different conclusion

based on the evidence.’” Id. (quoting City of Memphis, 238 S.W.3d at 243).

Tennessee Code Annotated section 4-5-322(h)(4) also authorizes a reviewing court

to modify or reverse an administrative agency’s decision if it is “[a]rbitrary or capricious

or characterized by abuse of discretion or clearly unwarranted exercise of discretion.” As

we have explained:

-6-

A decision unsupported by substantial and material evidence is arbitrary and

capricious. Yet, a clear error of judgment can also render a decision arbitrary

and capricious notwithstanding adequate evidentiary support. A decision is

arbitrary or capricious if it “is not based on any course of reasoning or

exercise of judgment, or . . . disregards the facts or circumstances of the case

without some basis that would lead a reasonable person to reach the same

conclusion.”

City of Memphis, 238 S.W.3d at 243 (citations omitted).

Some of the issues raised in this appeal require statutory intepretation. When

construing statutes, our primary objective “is to ascertain and give effect to the intention

or purpose of the legislature as expressed in the statute,” In re Adoption of A.M.H., 215

S.W.3d 793, 808 (Tenn. 2007), “‘without unduly restricting or expanding’” the coverage

of the statute beyond its intended scope, Sallee v. Barrett, 171 S.W.3d 822, 828 (Tenn.

2005) (quoting Houghton v. Aramark Educ. Res., Inc., 90 S.W.3d 676, 678 (Tenn. 2002)).

To achieve this objective, we look to the plain and ordinary meaning of the language in the

statute. Id. We must construe the words used “in the context in which they appear in the

statute and in light of the statute’s general purpose.” Lee Med., Inc. v. Beecher, 312 S.W.3d

515, 526 (Tenn. 2010). If a statute’s language is clear and unambiguous, we “need not

look beyond the statute itself to ascertain its meaning.” Id. at 527. When the language is

ambiguous, we must review the statute in its entirety and consider additional extrinsic

sources to determine legislative intent. Sallee, 171 S.W.3d at 828; Lee Med., Inc., 312

S.W.3d at 527. An ambiguity exists “when a statute is capable of conveying more than

one meaning.” Najo Equip. Leasing, LLC v. Comm’r of Revenue, 477 S.W.3d 763, 768

(Tenn. Ct. App. 2015). Statutory construction presents a question of law that we review

de novo without a presumption of correctness. State v. Welch, 595 S.W.3d 615, 621 (Tenn.

2020).

ANALYSIS

As a preliminary matter, we note that Ms. Poursaied is a pro se litigant. This Court

has stated the following principles about pro se litigants:

Parties who decide to represent themselves are entitled to fair and equal

treatment by the courts. The courts should take into account that many pro

se litigants have no legal training and little familiarity with the judicial

system. However, the courts must also be mindful of the boundary between

fairness to a pro se litigant and unfairness to the pro se litigant’s adversary.

Thus, the courts must not excuse pro se litigants from complying with the

same substantive and procedural rules that represented parties are expected

to observe.

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Young v. Barrow, 130 S.W.3d 59, 62-63 (Tenn. Ct. App. 2003) (citations omitted); see also

Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct App. 2003). Additionally, we allow

pro se litigants some latitude in preparing their briefs and endeavor to “give effect to the

substance, rather than the form or terminology,” of their court filings. Young, 130 S.W.3d

at 63.

I. Monetary damages.

After filing her petition for review in the chancery court, Ms. Poursaied filed an

additional document titled “Present Further Legal Argument,” seeking monetary damages

for “emotional, medical, professional, financial damages occurred as result of revocation

of my nursing license against my human, sexual, and constitutional rights.” The chancery

court dismissed Ms. Poursaied’s claim for monetary damages based on its finding that it

was an improper joinder of an original action with an administrative appeal. Ms. Poursaied

contends that the chancery court erred in dismissing this claim. For the reasons discussed

below, we respectfully disagree.

Thirty-eight years ago, this Court “heartily condemn[ed] that which appear[ed] . . .

to be a growing practice, i.e., the joinder of an appeal with an original action and the

simultaneous consideration of both at the trial level.” Goodwin v. Metro. Bd. of Health,

656 S.W.2d 383, 386 (Tenn. Ct. App. 1983); see also Groves v. Tenn. Dep’t of Safety and

Homeland Sec., No. M2016-01448-COA-R3-CV, 2018 WL 6288170, at *5 (Tenn. Ct.

App. Nov. 30, 2018). We explained as follows:

[S]uch procedure is inimical to a proper review in the lower certiorari Court

and creates even greater difficulties in the Court of Appeals. The necessity

of a separation of appellate review of a matter and trial of another matter

ought to be self evident. In the lower Court one is reviewed under

appropriate Appellate rules and the other is tried under trial rules. In this

Court our scope of review is dependent upon the nature of a proceeding. In

this case one matter would be limited by rules of certiorari review and the

other would be reviewed under 13(d), Tennessee Rules of Appellate

Procedure. Like water and oil, the two will not mix.

Id.; see also Groves, 2018 WL 6288170, at *5. Thus, when presented with both an action

for judicial review and an original action, courts typically dismiss the original action. See,

e.g., Groves, 2018 WL 6288170, at *5 (affirming dismissal of original claim because the

appellant “impermissibly attempted to join a declaratory judgment action with his petition

for judicial review”); Tenn. Envtl. Council v. Water Quality Control Bd., 250 S.W.3d 44,

58 (Tenn. Ct. App. 2007) (concluding that the appellant’s claim for breach of contract must

be dismissed because it was an improper attempt to join a new cause of action to an action

for judicial review of an administrative decision); Goodwin, 656 S.W.2d at 387 (holding

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that declaratory action “should have been dismissed at the very outset” because it was an

improper joinder of “appellate jurisdiction and original jurisdiction in one hearing”).

In light of the foregoing authority, we conclude that the chancery court did not err

in dismissing Ms. Poursaied’s claim for monetary damages because she impermissibly

attempted to join her claim for monetary damages with her petition for judicial review of

the Board’s decision to revoke her Tennessee registered nurse license.

II. Sanctions.

Ms. Poursaied next challenges the chancery court’s denial of her request for

sanctions due to the Board’s failure to file a response to her petition for review. As found

by the chancery court, Tenn. Code Ann. § 4-5-322(f) specifies the procedure to be followed

in an appeal of an agency’s decision:

The procedure ordinarily followed in the reviewing court will be followed in

the review of contested cases decided by the agency, except as otherwise

provided in this chapter. The agency that issued the decision to be reviewed

is not required to file a responsive pleading.

(Emphasis added). The Board, therefore, was not required to file an answer to Ms.

Poursaied’s petition for review.11

Moreover, a review of the motion for sanctions reveals that Ms. Poursaied requested

that the Board be sanctioned pursuant to Rule 11 of the Tennessee Rules of Civil Procedure.

Rule 11.02 provides that, when an attorney or party presents documents to a court, he or

she certifies that: (1) the document “is not being presented for any improper purpose”; (2)

“the claims, defenses, and other legal contentions therein are warranted by existing law”;

(3) “the allegations and other factual contentions have evidentiary support”; and (4) “the

denial of factual contentions are warranted on the evidence.” If an attorney or party violates

Rule 11.02, Rule 11.03 authorizes a court to impose sanctions on the violating attorney or

party. A party’s failure to file an answer does not fall within the purview of these rules.

We conclude, therefore, that the chancery court properly denied Ms. Poursaied’s request

for sanctions.

11

Under the UAPA, the first response required of the Board was to file the administrative record

of the proceedings before the Board “within forty-five (45) days after service of the petition, or within

further time allowed by the court[.]” Tenn. Code Ann. § 4-5-322(d). Here, the Attorney General’s office

was served Ms. Poursaied’s petition for review on February 25, 2020. Forty-five days from that date was

April 10, 2020, but the Tennessee Supreme Court extended this statutory deadline to June 5, 2020. See In

re COVID-19 Pandemic, No. ADM2020-00429 (Tenn. Feb.12, 2021). Counsel from the Attorney

General’s office mailed the administrative record to the chancery court on June 5, 2020. We conclude,

therefore, that the chancery court did not err in denying Ms. Poursaied’s request for sanctions.

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III. Revocation.

A. Default judgment.

Although not clearly articulated in her appellate brief, we discern that Ms. Poursaied

argues that the Board’s decision to revoke her Tennessee registered nurse license should

be reversed because it was made upon an unlawful procedure due to the Board finding her

in default and proceeding without her being present to challenge TDH’s evidence. We

disagree.

Pursuant to Tenn. Code Ann. § 4-5-309(a), if, as in this case, a party fails to attend

or participate in a contested case hearing before an administrative agency, the agency,

sitting with an administrative judge, “may hold the party in default and either adjourn the

proceedings or conduct them without the participation of that party[.]” See also TENN.

COMP. R. & REGS. 1360-04-01-.15(1)(a) (providing that “[t]he failure of a party to attend

or participate in a prehearing conference, hearing or other stage of contested case

proceedings after due notice thereof is cause for holding such party in default pursuant to

T.C.A. § 4-5-309”). If a default is entered against a respondent, Tenn. Comp. R. & Regs.

1360-04-01-.15(2)(b) authorizes the agency to either adjourn the hearing or proceed and

hear the matter “as uncontested as to such respondent[.]” Thus, the laws of this state give

an administrative agency the discretion to proceed without the presence of a party when a

default judgment is entered against that party, “having due regard for the interest of justice

and the orderly and prompt conduct of the proceedings.” Tenn. Code Ann. § 4-5-309(a).

Before entering a default judgment against an absent party, an administrative agency

must follow certain procedures. The party seeking a default judgment must “enter[] into

the record evidence of service of notice to [the] absent party[.]” TENN. COMP. R. & REGS.

1360-04-01-.15(1)(b). The administrative judge then advises the agency regarding whether

the service of notice is legally sufficient. Id.1360-04-01-.15(1)(c). If the service of notice

is held to be adequate, the agency may, at that point, decide whether to grant a default

judgment. Id.1360-04-01-.15(1)(d). Upon granting a motion for default, the agency must

state the grounds for default and “thereafter[, those grounds must] be set forth in a written

order.” Id.; see also Tenn. Code Ann. § 4-5-309(b).

Here, the Board adhered to these requirements in deciding to grant the default

judgment against Ms. Poursaied. When Ms. Poursaied failed to appear at the contested

case hearing on November 20, 2019, TDH entered into evidence proof that she had been

served notice of both the charges and the hearing at her address in Huntsville, Alabama,

via certified mail.12 Specifically, TDH presented the notice of hearing and administrative

charges and the certified mail return receipt signed by Ms. Poursaied on August 14, 2019,

12

Pursuant to Tenn. Code Ann. § 63-1-108(c), Ms. Pousaied was obligated to keep the Board

apprised of her current address.

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which, in addition to proving service, established that she had been served “no later than

30 days prior to the hearing date.” TENN. COMP. R. & REGS. 1360-04-01-.06(2). After

learning that Ms. Poursaied had relocated to Memphis, Tennessee as of October 28, 2019,

TDH’s attorney forwarded a copy of the notice of hearing and administrative charges, as

well as other filings in the case, to Ms. Poursaied at her new address. The attorney also

emailed all of the documents to Ms. Poursaied at the email address TDH had on file.

Finally, TDH introduced into evidence several emails Mr. Cole exchanged with Ms.

Poursaied discussing the upcoming hearing.

Based on this evidence, the administrative judge advised the Board that Ms.

Poursaied received legally sufficient notice of the hearing. The Board then voted to grant

the motion for default and to proceed without the participation of Ms. Poursaied.

Thereafter, the Board entered and served upon Ms. Poursaied a final order stating that a

default had been granted and setting forth the grounds for the default.

Ms. Poursaied does not dispute that she received proper notice of the hearing and

the charges against her. Instead, she blames Mr. Cole for her failure to appear at the

hearing:

On many occasions appellant informed Mr. Cole of being unwell and being

in severe, unbearable emotional pain, [r]eported emotional anguish on being

abused, tortured and discriminated by Enloe . . . reported horrible feeling of

being damaged and defamed as result of racial discrimination and sexual

harassment that has caused humiliation and torture[.] Appellant further

informed Mr. Cole of disability and psychological torture by state of

California has caused multiple panic attacks[.] Mr. Cole being aware that

appellant is very unwell still insisted on conducting hearing.

Contrary to these assertions, however, the evidence in the record shows that Mr. Cole

attempted to accommodate Ms. Poursaied so that she could attend the hearing:

I see that you say you are not able to attend the hearing tomorrow. If you

would like a continuance, which is moving the hearing to the next date (2-

12-20) then you need to call me and I will try to set up a conference call with

the judge.

She refused to accept this accommodation and stated, “I can not [sic] attend. So no I can

not [sic] attend it at all, not now and not anywhere in the future but thanks for being

considerate.” In light of the foregoing, we conclude that the record contains substantial

and material evidence establishing that Ms. Poursaied’s inaction, not the Board’s

application of an unlawful procedure, resulted in the entry of a default judgment.

Furthermore, Ms. Poursaied’s unequivocal statement that she would not ever participate in

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the proceedings substantially and materially supports the Board’s decision to proceed

without her being present.

B. Tenn. Code Ann. § 63-1-120.

Ms. Poursaied next contends that the Board denied her procedural due process by

revoking her registered nurse license pursuant to Tenn. Code Ann. § 63-1-120. “‘The most

basic principle underpinning procedural due process is that individuals be given an

opportunity to have their legal claims heard at a meaningful time and in a meaningful

manner.’” Mansell v. Bridgestone Firestone N. Am. Tire, LLC, 417 S.W.3d 393, 407

(Tenn. 2013) (quoting Lynch v. City of Jellico, 205 S.W.3d 384, 391 (Tenn. 2006)).

According to Ms. Poursaied, the Board did not hear the charges against her in a meaningful

manner because it based its decision to revoke her Tennessee registered nurse license on

the CA Board’s revocation order without investigating the veracity of the underlying facts.

We must again respectfully disagree.

Tennessee Code Annotated section 63-1-120(a)(1)(D) authorizes the Board to

discipline the holder of a registered nurse license if the licensee “has been disciplined by

another state of the United States for any acts or omissions that would constitute grounds

for discipline of a person licensed, certified, permitted or authorized in this state.” The

statute further provides that a certified copy of the order “memorializing the disciplinary

action from the disciplining state shall constitute prima facie evidence of a violation of this

section and shall be sufficient grounds upon which to deny, restrict or condition the license,

permit or certificate renewal or application, and/or otherwise to discipline a licensee

licensed in this state.” Tenn. Code Ann. § 63-1-120(a)(2) (emphasis added).

Here, TDH introduced into evidence a certified copy of the CA Board’s order

revoking Ms. Poursaied’s California registered nurse license due to gross negligence,

incompetence, and unprofessional conduct “in her performance of a treatment against the

patient’s will and without a physician’s order.” The act of performing a procedure on a

patient against the patient’s will constitutes grounds for disciplining the holder of a

registered nurse license in Tennessee.13 See Tenn. Code Ann. § 63-7-115(a)(1)(C), (F)

(permitting disciplinary action, including suspension of a license to practice nursing, upon

13

Ms. Poursaied correctly points out that, during the November 20, 2019 hearing, the panel

members expressed concern about the CA Board’s conclusion that Ms. Poursaied’s California registered

nurse license should be revoked based on her performing the disimpaction procedure without a doctor’s

order. Initially, the panel members stated that they found it “hard” to say that the act of performing the

procedure without a doctor’s order constituted a grounds for discipline against her Tennessee license

because Tennessee does not require a doctor’s order to perform the procedure; it is within “the nursing

scope of practice.” The panel members ultimately focused on the CA Board’s finding that she performed

the procedure against the patient’s will because they concluded that such an act also constitutes

unprofessional conduct in Tennessee. Thus, even if performing the procedure without a doctor’s order did

not constitute a ground for discipline in Tennessee, performing the procedure against the patient’s will

did—meaning that Tenn. Code Ann. § 63-1-120 would still provide a basis for discipline.

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proof that the nurse “[i]s unfit or incompetent by reason of negligence, habits or other

cause” or “[i]s guilty of unprofessional conduct”). The Department, therefore, presented

prima facie evidence that Ms. Poursaied was subject to discipline pursuant to Tenn. Code

Ann. § 63-1-120.

After concluding that TDH had presented sufficient evidence to authorize

disciplinary action against Ms. Poursaied’s Tennessee registered nurse license pursuant to

Tenn. Code Ann. §63-1-120, the Board considered what sanction to impose. Tennessee

Code Annotated section 63-1-120(b) provides that “in the absence of justifying evidence

to the contrary, there shall be a rebuttable presumption that the sanction proposed in any

such proceeding will be comparable to that in the reporting state[.]” An examination of

the record before the Board shows that TDH introduced into evidence a certified copy of

the CA Board’s final order revoking Ms. Poursaied’s California license,14 numerous emails

from Ms. Poursaied claiming she was discriminated against and sexually harassed by Enloe

personnel on the day of the incident, and an unsworn written statement from Ms. Poursaied

to the travel agency she worked for claiming that the patient never told her to stop the

procedure.15 The Board considered all of this evidence during its deliberations and, after

reading Ms. Poursaied’s written statement, the Board expressed concern about the CA

Board’s finding that she performed the procedure against the patient’s will. The Board

ultimately determined, however, that it must “go with what the [CA] Board decided”

because Ms. Poursaied failed to appear. It was her word in an unsworn written statement

against the contrary testimony of the three witnesses presented to the CA Board. In other

words, Ms. Poursaied failed to present “justifying evidence to the contrary” to rebut the

presumption that the Board should impose the same sanction imposed by the CA Board.

Recognizing that the record is devoid of “justifying evidence to the contrary,” Ms.

Poursaied again fails to take responsibility for her failure to appear at the hearing.16 She

14

Pursuant to Cal. Gov’t Code § 11520(c), Ms. Poursaied had seven days to file a motion with the

CA Board requesting that the judgment be vacated and stating grounds supporting vacating the judgment.

The record contains no evidence showing that Ms. Poursaied, at any time, filed a motion requesting that the

CA Board vacate its judgment. Furthermore, after expiration of the seven-day time period to file a motion

to vacate, Ms. Poursaied had thirty days to seek judicial review of the CA Board’s decision pursuant to Cal.

Gov’t Code § 11523. The record contains no evidence that she filed a petition for judicial review of the

CA Board’s decision.

15

Mr. Cole explained to Ms. Poursaied that he did not represent her, but she emailed him the written

statement and insisted that he submit it to the Board on her behalf. Although he had no duty to defend Ms.

Poursaied, Mr. Cole again attempted to accommodate her by introducing her written statement into

evidence for the Board’s consideration.

16

Following oral arguments, Ms. Poursaied filed a motion requesting that this Court permit her to

submit additional evidence “of crime by California board of nursing against my bill of right,” including

“medical records and confidential information of [the patient in California] on the day of the incident.”

Review of an administrative agency’s decision “is confined to the record made before the agency,” except

“[i]n cases of alleged irregularities in procedure before the agency[.]” Tenn. Code Ann. § 4-5-322(g);

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blames the Board, arguing that the record is devoid of such evidence because the Board

failed to conduct an independent investigation of the underlying facts in the case before the

CA Board. This Court is unaware of any Tennessee case requiring an administrative

agency to conduct an independent investigation of the underlying facts of a reporting state’s

final order before imposing sanctions pursuant to Tenn. Code Ann. § 63-1-120, and an

examination of the statute’s language does not reveal such a requirement. Rather, the plain

language of the statute provides that an agency may discipline the holder of a Tennessee

license if the licensee “has been disciplined by another state,” that a certified copy of the

order “memorializing the disciplinary action from the disciplining state shall constitute

prima facie evidence of a violation of this section,” and that the order from the disciplining

state “shall be sufficient grounds upon which to . . . discipline a licensee licensed in this

state.” Tenn. Code Ann. § 63-1-120(a)(1)(D), (a)(2). A certified copy of a disciplinary

order from a disciplining state, by itself, is sufficient to authorize an administrative agency

to discipline a license holder in Tennessee. Nowhere in the statute does it contain language,

express or implied, providing that the agency may not rely on the certified copy of the

disciplining state’s order without conducting an investigation of the underlying facts in the

disciplining state. Ms. Poursaied’s argument is without merit.

Based on the foregoing, we conclude that the Board did not violate Ms. Poursaied’s

right to procedural due process. We also conclude that the Board’s final order is supported

by substantial and material evidence and is not capricious or arbitrary.17

CONCLUSION

The judgment of the chancery court is affirmed. Costs of this appeal are assessed

against the appellant, Shahnaz Poursaied, for which execution may issue if necessary.

_/s/ Andy D. Bennett________________

ANDY D. BENNETT, JUDGE

Metro. Gov’t of Nashville & Davidson Cnty. v. Shacklett, 554 S.W.2d 601, 604 (Tenn. 1977). Ms. Poursaied

does not allege irregularities in the procedure before the Board. Therefore, considering evidence outside

the record before the Board is not appropriate in this case. The motion is denied.

17

We note that, in light of its concerns with the CA Board’s decision, the Board included in its

order revoking Ms. Poursaied’s Tennessee registered nurse license that she could “petition the Board for

reinstatement.” During deliberations, the Board discussed including this language because it wanted Ms.

Poursaied to know that Tennessee does not have permanent revocation of a nurse’s license. However, the

Board stressed during its deliberations that, before Ms. Poursaied could have her license reinstated, she

needed to “take whatever steps she needs to,” particularly that she “come before the Board,” “plead her

case,” and tell her side of the story. In other words, Ms. Poursaied must appear before the Board and present

evidence defending herself.

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