                                             COURT OF APPEALS OF VIRGINIA
UNPUBLISHED

              Present: Chief Judge Decker, Judges Humphreys and Russell
              Argued at Leesburg, Virginia


              HYUNSOOK HIGHLAND
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 0368-19-4                                  JUDGE ROBERT J. HUMPHREYS
                                                                               NOVEMBER 19, 2019
              VIRGINIA BOARD OF NURSING


                                    FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                               Richard E. Gardiner, Judge

                               Howard L. Highland for appellant.

                               Charis A. Mitchell, Assistant Attorney General (Mark R. Herring,
                               Attorney General; Allyson K. Tysinger, Senior Assistant Attorney
                               General, on brief), for appellee.


                     On August 14, 2017, appellant Hyunsook Highland (“Highland”) submitted an

              application to the Virginia Board of Nursing (“Board”) for licensure by endorsement to practice

              practical nursing. The Board held an informal conference before a Special Conference

              Committee on February 20, 2018. The Committee denied Highland’s application. Highland

              appealed the Committee’s decision, and the Committee’s order was vacated. Pursuant to the

              Virginia Administrative Process Act (“VAPA”), Code § 2.2-4020, the Board held a formal

              administrative hearing on May 14, 2018, to determine if Highland satisfied the statutory

              requirements to receive a practical nursing license.




                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       At that hearing, Highland submitted evidence and testimony that she completed a

registered nursing (“R.N.”)1 education program at Chonnam National University in Korea and

was a licensed practical nurse (“L.P.N.”) in New York. However, after the formal hearing, the

Board denied her application. Specifically, the Board found that Highland had “not completed

an approved practical nursing program as required by [the] laws and regulations of [the] Virginia

Board of Nursing,” nor had she provided “evidence from the [Commission on Graduates of

Foreign Nursing Schools (“CGFNS”)] that the education program she graduated from in Korea

was comparable to those required by the Commonwealth.”

       Highland appealed the Board’s decision to the Circuit Court of Fairfax County (“circuit

court”). After argument, the circuit court held that the Board committed no error of law in

denying Highland’s application. Thereafter, Highland filed a motion for reconsideration. The

circuit court suspended its order to reconsider the appeal. After reconsideration, the circuit court

denied the motion in part and granted it in part, remanding to the Board to decide whether

Highland was eligible for licensure pursuant to 18 VAC 90-19-120(A)(2)(a). Highland now

appeals that decision to this Court.

                                       I. BACKGROUND

                          A. Application and Hearings Before the Board

       As part of her application for licensure by endorsement as a practical nurse, Highland

submitted a validation from CGFNS that she was licensed as a registered nurse in Korea in 1975.

Her application also contained reference to a New York L.P.N. license that Highland obtained in

2017. Additionally, she submitted a letter from CGFNS dated September 12, 2017, that verified

the authenticity of documents Highland submitted to that organization. Most notably, however,



       1
         The Code uses “registered” and “professional” nursing interchangeably. See, e.g., Code
§ 54.1-3000. Those terms, however, are distinguishable from practical nursing. Id.
                                             -2-
the letter concluded that it did “NOT provide an evaluation of [Highland’s] education and

licenses, or a comparison to U.S. standards of education and licensure for their profession.”

       At the formal hearing before the Board on May 14, 2018, Highland testified that she

sought a New York L.P.N. license not because she planned to move to New York, but because

she thought getting her license there would be the “easiest” way to get her license in a different

state. To obtain an L.P.N. license in New York, Highland submitted verification of her R.N.

education “using CGFNS’s Credential Verification Service for New York State,” which New

York accepted to grant her an L.P.N. license.

       Highland also testified that she had not practiced as a “hands on” nurse since 1976,

except for taking care of her family and friends. In her testimony and the outline of her

argument presented to the Board, Highland argued that her R.N. education met the educational

requirements of 18 VAC 90-19-120(A)(2) and 18 VAC 90-19-130 because she “utilized the

CGFNS Credential Verification Service for New York State,” obligating the Board to determine

that she met the educational requirements in the Commonwealth. However, at least one Board

member was concerned that if granted a license, Highland would not stay within the practice

limitations of an L.P.N. because she “know[s] a lot of R.N. information.”

       After the formal hearing, the Board issued an order containing six findings of fact and a

conclusion of law. Among other things, the Board found that “Ms. Highland has not completed

an approved practical nursing program as required by [the] laws and regulations of [the] Virginia

Board of Nursing.” Additionally, it found that “she did not present evidence from the CGFNS

that the education program she graduated from in Korea was comparable to those required by the

Commonwealth.” From these findings, the Board concluded that Highland “does not meet the

requirements of Virginia Code § 54.1-3020(2) and 18 VAC 90-19-130(C)(1) of the Regulations

Governing the Practice of Nursing.” The Board denied Highland’s application.

                                                -3-
                               B. Proceedings in the Circuit Court

       In her prayer for relief to the circuit court, Highland requested:

               1. That this court REVERSE the Board’s erroneous findings of
               fact and conclusion of law . . . and thereupon COMPEL the Board
               to grant Ms. Highland’s original application for an LPN license by
               endorsement based on a finding that evidence of Ms. Highland’s
               education as an RN completes her application by meeting the
               educational requirements of Va. Code § 54.1-3020(A)(2), 18 VAC
               90-19-130(C)(1); and/or 18 VAC 90-19-120(A)(2)(a);
               2. Alternatively, that this court SET ASIDE the Board’s finding
               that Ms. Highland’s education as an RN does not meet the standard
               set at 54.1-3020(A)(2) and 18 VAC 90-19-130(C)(1); and
               REMAND this case for further proceedings in accordance with law
               as determined by this Court;
               3. That this Court grant such other relief as may appear just and
               proper.

In the Board’s memorandum in opposition to petition for appeal, the Board included in the

“facts” section that “[a]t the hearing, Highland submitted evidence of a [CGFNS] credentials

certification stating that her education was comparable to a registered/professional nursing

education program.” However, that evidence was not actually presented at the hearing.2 The

Board further stated that Highland “did not submit evidence of completion of or comparability to

a practical nursing education program.”

       At oral argument before the circuit court, the court inquired into the evidence in the

record to support this misstatement of fact. The Board’s counsel agreed with the court’s inquiry,

stating, “I also do not see that evidence in the record so I do agree with Your Honor with that

question mark as far as where that verification occurred.” Moreover, she argued, “[Q]uite

frankly, Your Honor, it does not matter because she applied for licensure as a Practical Nurse.




       2
         The only evidence presented at the hearing from CGFNS was the letter verifying the
authenticity of the documents Highland submitted to CGFNS, explicitly stating that it was not a
credentials comparison, and the verification of her South Korean R.N. license.
                                               -4-
So, whether she has been educated as an R.N. or not, she doesn’t qualify for licensure as a

Practical Nurse.”

       After oral argument, the circuit court dismissed the petition. First, the court reasoned,

18 VAC 90-19-120(A)(2)(a) and 18 VAC 90-19-130 may conflict with Code § 54.1-3020 to the

extent that those regulations would permit an applicant to obtain a license without completing a

practical nursing education program. To the extent there was a conflict, the court determined,

the statute would control. However, the court stopped short of holding that the regulation was

invalid because there was “no evidence in the record . . . to support the interpretation.” Second,

there was no evidence in the record that Highland completed a practical nursing education

program, without which she cannot meet the burden required by Code § 54.1-3020.

       Highland then filed a motion for reconsideration, and the circuit court suspended its

order. After reconsidering the case, the circuit court issued an opinion letter denying the petition

in part and granting it in part, remanding to the Board solely to decide whether Highland was

eligible for licensure pursuant to 18 VAC 90-19-120(A)(2)(a). This appeal follows.

                                          II. ANALYSIS

                                      A. Standard of Review

       “On appeal of agency action under the VAPA, the party complaining bears the ‘burden of

demonstrat[ing] an error . . . subject to review.’” Va. Bd. of Med. v. Hagmann, 67 Va. App. 488,

499 (2017) (alterations in original) (quoting Code § 2.2-4027). In a VAPA appeal, the circuit

court functions as an appellate court, “equivalent to an appellate court’s role in an appeal from a

trial court.” Comm’r, Va. Dep’t of Soc. Servs. v. Fulton, 55 Va. App. 69, 80 (2009) (quoting

Sch. Bd. v. Nicely, 12 Va. App. 1051, 1062 (1991)). In both the circuit court and the Court of

Appeals, appellate review of an agency action is limited to issues of law, including,

               (i) accordance with constitutional right, power, privilege, or
               immunity, (ii) compliance with statutory authority, jurisdiction
                                                -5-
                limitations, or right as provided in the basic laws as to subject
                matter, the stated objectives for which regulations may be made,
                and the factual showing respecting violations or entitlement in
                connection with case decisions, (iii) observance of required
                procedure where any failure therein is not mere harmless error, and
                (iv) the substantiality of the evidentiary support for findings of
                fact.

Code § 2.2-4027.

        Pure questions of law are reviewed de novo. Id. “However, where a decision is within

the discretion of the agency, ‘judicial interference is permissible only for relief against . . .

arbitrary or capricious action that constitutes a clear abuse of . . . delegated discretion.’”

Hagmann, 67 Va. App. at 500 (quoting Johnston-Willis, Ltd. v. Kenley, 6 Va. App. 231, 244

(1988)). An agency “by definition abuses its discretion when it makes an error of law.” Id.

(quoting Porter v. Commonwealth, 276 Va. 203, 260 (2008)).

        Factual findings are viewed “in the light most favorable to sustaining the agency’s

decision.” Va. Ret. Sys. v. Blair, 64 Va. App. 756, 770 (2015). “The scope of judicial review of

an agency exercising its ‘fact finding function . . . is severely limited, partly in deference to the

agency’s expertise in a specialized field.’” Hagmann, 67 Va. App. at 500 (quoting Ga.-Pac.

Corp. v. Robinson, 32 Va. App. 1, 4 (2000)). On appeal, a reviewing court may “reject [the]

agency’s factual findings only if, considering the record as a whole, a reasonable mind would

necessarily come to a different conclusion.” Blair, 64 Va. App. at 765 (quoting Doctors’ Hosp.

of Williamsburg, LLC v. Stroube, 52 Va. App. 599, 607 (2008)).

        B. Statutory Construction of Code § 54.1-3020(A)(2) and the Board’s Distinction
                        Between R.N. and L.P.N. Education Programs

        “On appeal from an agency’s determination of law, the deference accorded depends on

the law being interpreted.” Commonwealth ex rel. Va. State Water Control Bd. v. Blue Ridge

Envtl. Def. League, Inc., 56 Va. App. 469, 480 (2010). “[W]here the question involves an

interpretation which is within the specialized competence of the agency and the agency has been
                                                  -6-
entrusted with wide discretion by the General Assembly, the agency’s decision is entitled to

special weight in the courts.” Id. (quoting Va. Alcoholic Beverage Control Comm’n v. York St.

Inn, Inc., 220 Va. 310, 315 (1979)). Under such circumstances,

               judicial interference is permissible only for relief against the
               arbitrary or capricious action that constitutes a clear abuse of the
               delegated discretion. The reviewing judicial authority may not
               exercise anew the jurisdiction of the administrative agency and
               merely substitute its own independent judgment for that of the
               body entrusted by the Legislature with the administrative function.

Id. at 480-81 (quoting York St. Inn, Inc., 220 Va. at 315).

       When applying this deference, “[c]ourts generally defer to an agency’s interpretation of

its own regulations.” Id. at 481 (quoting Mazloumi v. Dep’t of Envtl. Quality, 55 Va. App. 204,

209 (2009)). However, an agency’s interpretation of a statute “is accorded no deference because

‘[w]e have long held that pure statutory interpretation is the prerogative of the judiciary, and

thus, Virginia courts do not delegate that task to executive agencies.’” Id. (quoting Mattaponi

Indian Tribe v. Commonwealth, Dep’t of Envtl. Quality, 43 Va. App. 690, 701 (2004)). When

the issue involves pure statutory interpretation, this Court reviews that interpretation de novo,

“especially if the statutory language is clear.” Shippers’ Choice of Va., Inc. v. Smith, 52

Va. App. 34, 37 (2008), rev’d on other grounds, 277 Va. 593 (2009).

       Highland argues that the circuit court erred in failing to rule that training as a registered

nurse necessarily satisfies the lower educational requirements for a licensed practical nurse found

in Code § 54.1-3020(A)(2). Whether Highland is correct or not is immaterial to the issue. The

statutory language of Code § 54.1-3020(A)(2) is clear in requiring an applicant have “received a

diploma from an approved practical nursing program” in order to obtain a license to practice as a

practical nurse. (Emphasis added). “When the legislature has spoken plainly it is not the

function of courts to change or amend its enactments under the guise of construing them. The

province of [statutory] construction lies wholly within the domain of ambiguity, and that which
                                                -7-
is plain needs no interpretation.” Lahey v. Johnson, 283 Va. 225, 230 (2012) (quoting Doss v.

Jamco, Inc., 254 Va. 362, 370 (1997)). Only if “a literal application [of clear and unambiguous

statutory language] would produce a meaningless or absurd result” may we “rely on rules of

statutory construction.” Avalon Assisted Living Facilities, Inc. v. Zager, 39 Va. App. 484, 503

(2002) (quoting Crown Cent. Petroleum Corp. v. Hill, 254 Va. 88, 91 (1997)).

       Here, the language of Code § 54.1-3020(A)(2) is plain: applicants for a practical nursing

license must have “received a diploma from an approved practical nursing program.” Highland

refers to Code § 54.1-3000, which defines the scope of practice for registered nursing and

practical nursing. Because, she argues, “[t]he General Assembly has unambiguously defined

‘registered nursing’ as encompassing any ‘nursing acts’ which ‘licensed practical nursing’

includes,” she must be entitled to licensure as a practical nurse because she was educated as a

registered nurse. However logical that interpretation may be, it directly contradicts the plain

language of the statute. Because there is no ambiguity in the terms of Code § 54.1-3020(A)(2),

this Court may only rely on the rules of statutory interpretation if the clear and unambiguous

statutory language produces a meaningless or absurd result. The requirement that an applicant

for a specific nursing license have received a diploma based on the specific standards to be

applied under that license does not produce an absurd result and therefore any modification of

this requirement is more properly addressed to the General Assembly.3 Thus, we hold that Code

§ 54.1-3020(A)(2) unambiguously requires a practical nursing applicant to have received a

practical nursing diploma, and the circuit court did not err in so holding.

       Similarly, Highland avers that the circuit court erred “when it erroneously substituted its

own independent judgment for that of the Board with respect to evidence on the agency record


       3
         During the formal hearing, one Board member seemed concerned that Highland would
not stay within the practice limitations imposed on practical nurses if licensed as an L.P.N.
because she “knows a lot of R.N. information.”
                                               -8-
which demonstrates that it was arbitrary and capricious for the Board to rule that Ms. Highland’s

registered nursing education is not a practical nursing education and therefore not comparable to

the nursing education required for practical nurses in the Commonwealth.” The Board, Highland

argues, has interpreted Code § 54.1-3020 and 18 VAC 90-19-130(C)(1) to include registered

nursing education programs because it treats registered nursing as a higher level of nursing than

practical nursing.

       An action is arbitrary and capricious when it is “‘willful and unreasonable’ and taken

‘without consideration or in disregard of facts or law or without determining principle.’”

Loudoun Hosp. Center v. Stroube, 50 Va. App. 478, 505 (2007) (quoting Arbitrary and

capricious, Black’s Law Dictionary (6th ed. 1990)). Nursing applicants registered outside of the

United States or Canada can qualify for licensure by endorsement as a practical nurse in the

Commonwealth if they both: (1) hold a diploma in practical nursing, meeting the requirements

of Code § 54.1-3020(A)(2); and (2) submit, inter alia, “evidence from the CGFNS that the

secondary education and nursing education [they have completed] are comparable to those

required for practical nurses in the Commonwealth.” Code § 54.1-3020(A)(2); 18 VAC

90-19-130(C)(1).

       Highland satisfied neither requirement. Based on the discussion above, it is not willful

and unreasonable for the Board to interpret Code § 54.1-3020(A)(2) and 18 VAC

90-19-130(C)(1) to require Highland to present evidence from the CGFNS that she received a

practical nursing diploma and evidence that such education was comparable to the education

required for practical nurses in the Commonwealth. By definition, the Board cannot act

arbitrarily or capriciously if it relies on the plain language of the statute. However, Highland did

not receive a diploma in practical nursing nor is there evidence in the agency record that




                                                -9-
Highland’s nursing education from Korea is comparable to a practical nursing education in the

Commonwealth.

                                      C. Deference to the Board

          Highland argues that the circuit court did not properly defer to the Board’s findings of

fact and should have “set aside the Board’s order with respect to the single issue of whether

Ms. Highland’s registered nursing education is comparable to what is required for practical

nurses.” According to Highland, the circuit court erred when it determined that “the Board made

no finding of fact that Highland received an education comparable to a registered/professional

nurse.” Moreover, Highland argues that the circuit court “had no basis for making the inference

that ‘[t]here was a finding by the Board that Highland had not presented any evidence that her

R.N. education was comparable to that required for R.N.s in Virginia.’”

          Applicants for licensure bear the burden of “furnish[ing] evidence satisfactory to the

Board that the applicant” has met the prerequisites for licensure. Code § 54.1-3020(A). On

appeal, the circuit court may review the agency record to determine whether there was

substantial evidence in the agency record to support the agency’s decision. Code § 2.2-4027.

Here, the circuit court reviewed the agency record. The record contained the Board’s finding of

fact that Highland failed to meet her burden, in part, because she “did not present evidence from

the CGFNS that the education program she graduated from in Korea was comparable to those

required by the Commonwealth.” By interpreting this finding by the Board to mean that CGFNS

comparability evidence was not contained in the record, the circuit court properly deferred to the

Board’s findings of fact. Therefore, Highland has failed to demonstrate an error subject to

review.




                                                 - 10 -
                          D. Circuit Court’s Partial Remand to the Board

       Highland further argues that because her request for relief specifically excluded the

remedy of remanding on the issue of whether she qualified for licensure under 18 VAC

90-19-120(A)(2)(a), the circuit court erred in remanding that issue and that portion of its order is

void. As part of this assignment of error, Highland requests that the circuit court judge be

disqualified from hearing the case should we remand to the circuit court.

       As explained in greater detail above, because the plain language of Code

§ 54.1-3020(A)(2) requires that applicants for licensure as L.P.N.s have “received a diploma

from an approved practical nursing program,” the circuit court’s partial remand was error. The

language of that statute is unambiguous, and it is clear from the record that Highland did not

qualify for licensure under that statute because she did not receive a diploma from an approved

practical nursing program. Accordingly, she was not eligible for licensure under any regulation.

See Manassas Autocars, Inc. v. Couch, 274 Va. 82, 87 (2007) (“Regulations . . . may not conflict

with the authorizing statute.”). Thus, there was no basis on which to remand to the Board and

we reverse the portion of the circuit court’s order granting a partial remand. Because there is no

basis for a remand in this case, we need not address Highland’s request to disqualify the circuit

court judge.

                                         E. Attorney’s Fees

       Finally, Highland argues that she is entitled to attorney’s fees because she should prevail

in this appeal, and an award of fees would not be “unjust.” A party is only entitled to attorney’s

fees if she “substantially prevails on the merits of the case and (i) the agency’s position is not

substantially justified, (ii) the agency was in violation of law, or (iii) the agency action was for

an improper purpose.” Code § 2.2-4030. Because Highland has not substantially prevailed on

the merits of the case, we decline to award her attorney’s fees.

                                                - 11 -
                                       III. CONCLUSION

       Because we hold that Highland was not eligible for licensure under the plain language of

Code § 54.1-3020(A)(2), we need not address her remaining assignment of error regarding an

alleged judicial admission. In summary, we hold that Highland has failed to meet her burden in

demonstrating an error subject to review, the circuit court did not substitute its own independent

judgment for the agency’s determinations, and the Board’s interpretation of its own regulations

was not arbitrary or capricious. For these reasons, we reverse the circuit court’s judgment with

respect to the partial remand to the Board and we affirm the circuit court’s judgment in all other

respects.

                                                            Affirmed in part, and reversed in part.




                                               - 12 -
