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holding that Texas Medical Board officers, in their official capacities, had a ministerial duty to file documentation verifying that initial temporary report of sanctions against physician was void when Board later determined that the allegations in the temporary report had not been proved
Summary of this case from Leonard v. City of BurkburnettOpinion
No. 20-0117
06-03-2022
Robert W. VAN BOVEN M.D., D.D.S., Petitioner, v. Scott FRESHOUR, Margaret McNeese, Chris Palazola, Amy Swanholm, Timothy Webb, and Sherif Zaafran, M.D., in their Official Capacities as Officers of the Texas Medical Board, Respondents
Laurie Lynn York, Laurie L. York Law Office, Austin, for Amicus Curiae Association of American Physicians & Surgeons. Ronald Lynn Beal, Pro Se. Eamon J. Reilly, Donald P. Wilcox, Texas Medical Association, Office of the General Counsel, Austin, for Amicus Curiae Texas Medical Association. William W. Zedler, Pro Se. Henry Knight, Ross Spence, Spence, Desenberg & Lee, PLLC, Houston, Eric B. Storm, The Storm Law Firm PLLC, Austin, R. Casey Low, Pillsbury Winthrop Shaw Pittman LLP, Austin, for Petitioner. Robert W. Van Boven M.D., Pro Se. Bill Davis, Assistant Solicitor General, Darren Lee McCarty, Office of the Attorney General, Austin, Craig J. Pritzlaff, Ted A. Ross, Office of the Texas Attorney General, Administrative Law Division, Austin, Ryan Lee Bangert, Alliance Defending Freedom, Scottsdale, AZ, Charles K. Eldred, Office of the Attorney General, Financial & Tax Litigation Division, Austin, Jeffrey C. Mateer, Plano, W. Kenneth Paxton Jr., Attorney General of Texas Office of the Attorney General, Austin, for Respondents.
Laurie Lynn York, Laurie L. York Law Office, Austin, for Amicus Curiae Association of American Physicians & Surgeons.
Ronald Lynn Beal, Pro Se.
Eamon J. Reilly, Donald P. Wilcox, Texas Medical Association, Office of the General Counsel, Austin, for Amicus Curiae Texas Medical Association.
William W. Zedler, Pro Se.
Henry Knight, Ross Spence, Spence, Desenberg & Lee, PLLC, Houston, Eric B. Storm, The Storm Law Firm PLLC, Austin, R. Casey Low, Pillsbury Winthrop Shaw Pittman LLP, Austin, for Petitioner.
Robert W. Van Boven M.D., Pro Se.
Bill Davis, Assistant Solicitor General, Darren Lee McCarty, Office of the Attorney General, Austin, Craig J. Pritzlaff, Ted A. Ross, Office of the Texas Attorney General, Administrative Law Division, Austin, Ryan Lee Bangert, Alliance Defending Freedom, Scottsdale, AZ, Charles K. Eldred, Office of the Attorney General, Financial & Tax Litigation Division, Austin, Jeffrey C. Mateer, Plano, W. Kenneth Paxton Jr., Attorney General of Texas Office of the Attorney General, Austin, for Respondents.
Chief Justice Hecht delivered the opinion of the Court, in which Justice Lehrmann, Justice Devine, Justice Blacklock, Justice Busby, Justice Bland, Justice Huddle, and Justice Young joined.
Federal and state law require the Texas Medical Board to report a disciplinary action against a physician to the National Practitioner Data Bank in order "to restrict the ability of incompetent physicians to move from State to State without disclosure or discovery of the physician's previous damaging or incompetent performance." A report is generally considered confidential but is available to healthcare entities with which a physician is or may be affiliated. Reports must be made "according to applicable federal rules and statutes." The question before us is whether the Board is required by federal law or permitted by Texas law to merely revise an initial report of a temporary sanction—rather than void it—when the Board later finds that the allegations have not been proved. We answer no. Board officials making the revised report are therefore acting ultra vires and are subject to suit despite the Board's sovereign immunity. We reverse the judgment of the court of appeals and remand the case to the trial court.
See 42 U.S.C. §§ 11132, 11134, 11151(2) (requiring reporting of sanctions against physicians by state licensing boards); 45 C.F.R. §§ 60.1, 60.8 (designating the National Practitioner Data Bank as the report recipient); Tex. Occ. Code § 164.060(b)(4) ("Not later than the 30th day after the date the board takes disciplinary action against a physician, the board shall report that action, in writing, to ... the United States Secretary of Health and Human Service or the secretary's designee....").
See id. § 11137(b)(1); 45 C.F.R. § 60.18(a)(1)(i), (iv) ; id. § 60.20(a).
628 S.W.3d 513 (Tex. App.—Austin 2020).
I
The Board regulates the practice of medicine in Texas and is authorized to take disciplinary action against a physician found to have engaged in certain conduct prohibited by statute. When Board staff determine there is evidence of such conduct, an informal show compliance proceeding and settlement conference—ISC—is scheduled before at least two Board members. A disciplinary panel of three Board members may also be convened "to determine whether a person's license to practice medicine should be temporarily suspended or restricted." The panel may suspend or restrict a physician's license without prior notice or a hearing if notice of the action is provided immediately and a hearing is scheduled as soon as possible after ten days. Otherwise, the physician and Board staff may appear before the panel, call witnesses, and submit evidence. "If the disciplinary panel determines from the evidence presented to the panel that a person licensed to practice medicine would, by the person's continuation in practice, constitute a continuing threat to the public welfare, the disciplinary panel shall temporarily suspend or restrict the license of that person."
See id. §§ 164.051-164.055 (listing grounds for disciplinary action, prohibited practices, and unprofessional or dishonorable conduct).
22 Tex. Admin. Code § 187.2(1) ; see id. § 187.11; Tex. Occ. Code §§ 164.003 -164.0031.
See Tex. Occ. Code § 164.059(c) ; 22 Tex. Admin. Code § 187.60.
See 22 Tex. Admin. Code §§ 187.58 -187.59.
A disciplinary panel was convened February 29, 2016, to consider complaints by two patients, referred to as Patients A and B, against Dr. Robert Wayne Van Boven, a board-certified neurologist. Van Boven, then age 56, had received a D.D.S. degree and practiced dentistry for 10 years before earning his M.D. degree. He had then practiced neurology for some 17 years, had never been the subject of a professional disciplinary action, had never had a claim for malpractice against him, had never been reported to a professional database, and had no arrest record. A sole practitioner, Van Boven had associated with Lakeway Regional Medical Center (Lakeway) since its opening in 2012.
Van Boven and the Board were not strangers. He had repeatedly complained to the Board of poor practices at Lakeway resulting in multiple findings of violations and impositions of fines. In turn, Lakeway had made 15 complaints against Van Boven, but unlike Van Boven's complaints, all but one of Lakeway's had been dismissed. A factor in the dysfunctional relationship between Lakeway and Van Boven may have been, according to one of his colleagues, that the doctor's zeal for patient care could be viewed as arrogant or insulting. In any event, as another colleague observed, Van Boven became a thorn in the side of Lakeway's administration and was viewed as a troublemaker.
The two patients’ complaints before the disciplinary panel had been lodged within a few months of each other and pertained to medical examinations Van Boven had conducted a few weeks apart. The day after the hearing, the panel temporarily restricted his license. The panel's Order of Temporary Restriction was to remain in effect until "superseded by subsequent Order of the Board." The Board filed an Initial Report of the adverse action with the National Practitioner Data Bank in accordance with the Data Bank's Guidebook , which sets out reporting procedures.
The Guidebook in use at the time was the 2015 edition. See U.S. Dep't of Health & Hum. Servs. , Health Res. & Servs. Admin. , & Bureau of Health Workforce , NPDB Guidebook (2015) [hereinafter Guidebook ], https://www.npdb.hrsa.gov/resources/2015NPDBGuidebook.pdf.
The statutory and regulatory provisions specifically applicable to physician discipline do not provide for an administrative appeal from a disciplinary panel order, and Van Boven did not attempt to seek judicial review. The Board is instead required to initiate a proceeding before the State Office of Administrative Hearings—SOAH—"as soon as practicable". The Board filed a formal complaint against Van Boven six months after the disciplinary panel's Temporary Order issued. The record contains no explanation for the delay, other than the Board's offer of settlement in an ISC process a month after the Temporary Order, which Van Boven quickly rejected.
We express no view on whether judicial review is available. See Tex. Occ. Code § 164.009 ("A person whose license to practice medicine has been revoked or who is subject to other disciplinary action by the board may appeal to a Travis County district court not later than the 30th day after the date the board decision is final. " (emphasis added)); see also Tex. Med. Bd. v. Wiseman , No. 03-13-00210-CV, 2015 WL 410330, at *3 (Tex. App.—Austin Jan. 30, 2015, pet. denied) ("We hold that ... an appeal from any disciplinary action, including a temporary order such as the one here, may not be taken until the Board issues a final decision in the overall dispute following an ISC and contested case at SOAH pursuant to the procedures set out in the [Medical Practice] Act.").
The complaint contained the same allegations made by Patients A and B in the disciplinary panel hearing along with those of a third patient and the one complaint by Lakeway that the Board had not rejected. The SOAH hearing began on May 22, 2017—well over a year after the Temporary Order issued—and lasted five days. Board staff offered evidence from the three patients along with family members of the third patient. Van Boven offered the testimony of 14 witnesses, including himself, four physicians with whom he had practiced, and two medical assistants.
After reviewing and analyzing all the evidence in a 77-page Proposal for Decision issued September 15, 2017, the Administrative Law Judge (ALJ) found that the Board staff had failed to prove any of their allegations. Specifically, the ALJ found that "[b]ecause there are so many implausibilities and issues of doubt raised by the evidence, [Board staff] failed to prove that the allegations of Patients A and B are true." Thus, the ALJ concluded, "[s]taff failed to prove, by a preponderance of the evidence, that Dr. Van Boven is subject to sanction under [the] Texas Occupations Code". Staff strongly insisted to the Board that the case had been wrongly decided. The Board had the right to seek judicial review of the ALJ's findings and conclusions but chose instead to adopt them. The Board's Final Order issued December 8, 2017. The order recited the ALJ's findings and conclusions as the Board's own, including the finding that Board staff had failed to prove the allegations of Patients A and B and the conclusion that Board staff had not proved that Van Boven was subject to sanction. The Final Order stated that "[t]his matter is hereby dismissed" and that "[t]his Order supersedes the Order of Temporary Restriction issued on February 29, 2016 and Respondent's license to practice medicine in Texas is no longer restricted." The temporary restriction of Van Boven's license, premised on grounds that the Board ultimately could not prove, lasted more than 21 months.
The disciplinary-panel hearing occurred on February 29, 2016, but the Order of Temporary Restriction was actually dated March 1, 2016.
The Board was required to report its Final Order to the Data Bank. The Data Bank's Guidebook provides for three types of reports after an Initial Report of an adverse action taken against a physician, which the Board had filed following its Temporary Order. A Correction Report "corrects an error or omission in a previously submitted report by replacing it." A Void Report is "the withdrawal of a[n] [Initial] [R]eport in its entirety" and is filed when the adverse action is "overturned on appeal". "A Revision-to-Action Report is a report of an action that modifies an adverse action previously reported" to the Data Bank. It "does not replace a previously reported adverse action but rather is treated as a separate action that pertains to the previous action." Then "[b]oth reports become part of the disclosable record."
Guidebook , supra note 13, at E-7.
Id. at E-8.
Id.
Id. at E-8 to E-9.
Id. at E-9.
Van Boven requested that the Board file a Void Report, insisting that the initial temporary sanction be completely removed as a blot on his record. The Board refused and instead filed a Revision-to-Action Report that simply described the Final Order. Van Boven complained to the Data Bank, but it refused to take action, stating: "We are not authorized to substitute our judgment for that of the Board concerning the language contained in its Orders, its sanctioning authority or the intention of the Board in regard to the Initial and Final Orders in your case." Bound by the Board's explanation of its action, the Data Bank opined that the Board was "legally required to file the Revision to Action Report."
The Board's initial Revision-to-Action Report stated:
On December 8, 2017, the Board entered a Final Order regarding Robert Wayne Van Boven, M.D., dismissing the Board staff's complaint. The action was based on the findings of an Administrative Law Judge at the State Office of Administrative Hearings (SOAH). This order resolves a formal complaint filed at SOAH. This order supersedes all previous orders.
At the Data Bank's recommendation, the Board later filed a Correction Report stating:
On December 8, 2017, the Texas Medical Board entered a Final Order regarding Robert Wayne Van Boven, M.D. The Final Order states: 1) in the "Findings of Fact" section that because there are so many implausibilities and issues of doubt raised by the evidence, the staff of the Board failed to prove that the allegations raised by the patients were true, 2) in the "Conclusions of Law" section that the "staff failed to prove, by a preponderance of the evidence, that Dr. Van Boven is subject to sanction under Texas Occupational Code §§ 164.051(a)(1), (a)(5), or 164.053(a)(1), or 22 Texas Administrative Code Sections 190.8(2)(E), (F), (P), or (S)" and 3) that the Board adopted the Findings of Fact and Conclusions of Law as proposed by the Administrative Law Judge at the State Office of Administrative Hearings. The matter regarding Dr. Van Boven was dismissed and the December 8, 2017 Final Order superseded the February 29, 2017 Order of Temporary Restriction and Dr. Van Boven's license to practice medicine in Texas is no longer restricted.
Van Boven brought this ultra vires action against Board officials for injunctive, declaratory, and mandamus relief directing them to file a Void Report with the Data Bank, which would remove the Initial Report and the Revision-to-Action Report from disclosure. Van Boven asserts that the reports have "forever tarnished" his reputation and prevented him from obtaining employment. The trial court denied defendants’ plea to the jurisdiction, which asserted sovereign immunity. The court of appeals reversed, holding that "the Board's authority to determine the legal effect of the Final Order as it relates to [Data Bank] reporting requirements " is not clearly limited by statute, and therefore Board officials did not act ultra vires in filing a Revision-to-Action Report instead of a Void Report. The court rendered judgment dismissing Van Boven's action.
Van Boven sued Board President Sheriff Zaafran, M.D.; former Board members Margaret McNeese, M.D., and Timothy Webb; and Scott Freshour, General Counsel. Van Boven also sued legal department employees Amy Swanholm and Chris Palazola. The trial court dismissed the action against the employees. Though all six defendants are respondents here, we consider only Van Boven's action against the Board officials.
See, e.g., Stephan v. Baylor Med. Ctr. , 20 S.W.3d 880, 891 (Tex. App.—Dallas 2000, no pet.) (noting the doctor's testimony that "a negative [Data Bank] report is viewed negatively by managed care plans and can make it difficult for a physician to gain entry to plans"); Walker v. Mem'l Health Sys. , 231 F. Supp. 3d 210, 216 (E.D. Tex. 2017) ("An adverse report on the [Data Bank] that deems a surgeon to have ‘substandard or inadequate skill’ is intrinsically harmful to that surgeon's practice, professional reputation, and livelihood."); Cole v. St. James Healthcare , 348 Mont. 68, 199 P.3d 810, 815 (2008) (noting the trial court's "analog[y] [comparing] an adverse report to a scarlet letter that could permanently harm a physician's professional reputation" (quotation marks omitted)).
We granted Van Boven's petition for review.
II
The Board's sovereign immunity from suit as a state agency extends to its officials who act consistently with the law but not to those who act ultra vires—that is, "without legal authority or [by] fail[ing] to perform a purely ministerial act." An official acts without legal authority when he "exceeds the bounds of his granted authority or if his acts conflict with the law itself." An official fails to perform a ministerial act when he fails to comply with a law that "prescribes and defines the duties to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment." An official who acts ultra vires is not acting for the state and not entitled to its immunity. But "it is not an ultra vires act for an official to make an erroneous decision within the authority granted."
See Hous. Belt & Terminal Ry. v. City of Houston , 487 S.W.3d 154, 164 (Tex. 2016) ("[G]overnmental immunity only extends to those government officers who are acting consistently with the law....").
City of El Paso v. Heinrich , 284 S.W.3d 366, 372 (Tex. 2009).
Hous. Belt , 487 S.W.3d at 158.
Sw. Bell Tel., L.P. v. Emmett , 459 S.W.3d 578, 587 (Tex. 2015) (quoting City of Lancaster v. Chambers , 883 S.W.2d 650, 654 (Tex. 1994) ).
See Hall v. McRaven , 508 S.W.3d 232, 238 (Tex. 2017) ("The basic justification for this ultra vires exception to sovereign immunity is that ultra vires acts—or those acts without authority—should not be considered acts of the state at all." (citing Cobb v. Harrington , 144 Tex. 360, 190 S.W.2d 709, 712 (1945) )).
Honors Acad., Inc. v. Tex. Educ. Agency , 555 S.W.3d 54, 68 (Tex. 2018) (citing McRaven , 508 S.W.3d at 242 ).
A
Relying primarily on our decision in Hall v. McRaven , the court of appeals concluded that the Board had discretion to mis interpret the federal requirements because, "[e]ffectively, the Legislature has tasked the Board with interpreting and applying federal law in carrying out its statutory duty to report disciplinary actions to the [Data Bank]." Here, both sides take the position that the court of appeals erred in applying McRaven to this case, and we agree.
When deciding there that the chancellor of the University of Texas System did not act ultra vires by allegedly misconstruing federal law governing the release of educational records, we specifically relied on a rule adopted by the System's board of regents that expressly empowered the chancellor to "determine whether State or federal law restrict[ed]" the release of information and to "determine whether a Regent [could] review information ... protected by" the federal law. Because "the ultimate and unrestrained objective" of the chancellor's duty was "to interpret collateral law," we concluded that "a misinterpretation [was] not overstepping such authority; it [was] a compliant action even if ultimately erroneous."
McRaven , 508 S.W.3d at 242 (emphases added).
Id.
Here, however, no state or federal law grants the Board unrestrained authority to interpret federal Data Bank reporting requirements. To the contrary, federal law requires state licensing agencies to report information to the Data Bank "in such form and manner as the [U.S.] Secretary [of Health and Human Services] prescribes." Texas law, in turn, simply requires the Board to report all disciplinary actions to the Secretary or his designee, and the Board's own rules require it to report the information "according to applicable federal rules and statutes." Thus, the Board's failure to comply with the federal reporting requirements would amount to an ultra vires action.
B
The Board officials argue that there was no ultra vires action because "state law, federal law, federal regulations, and [Data Bank] guidance required [the Board] to submit a Revision-to-Action Report, and not a Void Report." They cite several federal statutes that require reporting by licensing agencies like the Board in the form and manner determined by the Secretary of Health and Human Services to be appropriate, but the statutes themselves do not prescribe what kinds of reports must be filed. The federal regulations the Board officials cite also do not prescribe what reports are required in particular circumstances. The Data Bank and its Guidebook do provide very detailed guidance on how various types of adverse actions should be reported, prescribing the four reports we have discussed. But applying that guidance depends on the nature of the adverse action being reported, which must be determined under Texas law, not federal law. The Data Bank made that clear. It approved the Board's explanation for filing a Revision-to-Action Report rather than a Void Report, but in so doing, the Data Bank cautioned: "We are not authorized to substitute our judgment for that of the Board concerning the language contained in its Orders, its sanctioning authority or the intention of the Board in regard to the Initial and Final Orders in [Van Boven's] case." The Data Bank made clear that the nature of the adverse action against Van Boven was to be determined by the Board alone under Texas law, and that determination would dictate which report should be filed.
The Board's findings and conclusions in its Final Order negated the factual basis for the allegations against Van Boven, which were identical to the allegations by Patients A and B that the disciplinary panel used to support its Temporary Order. As we noted at the outset, Texas law allows the Board to discipline a physician only for engaging in specific conduct set out by statute. The disciplinary panel, in a brief hearing, found that Van Boven had engaged in conduct proscribed by statute and that a temporary sanction should be imposed. But after a full hearing, SOAH found that the same alleged misconduct on which the temporary sanction was based had not been proved. That is, from the evidence, one could not conclude that the misconduct likely occurred or that Van Boven was subject to sanction. In its Final Order, the Board itself endorsed SOAH's conclusion.
See Tex. Occ. Code §§ 164.051 -164.055 (listing grounds for disciplinary action, prohibited practices, and unprofessional or dishonorable conduct).
The Board officials insist, correctly, that the Temporary Order was not under review in the SOAH proceedings and that the ALJ had no authority to overturn or vacate it. But the complaints of Patients A and B were under review in the SOAH proceedings, they were the same complaints made to the disciplinary panel, and they were the only basis for the Temporary Order. According to the Board's own final order, the factual basis for the Temporary Order was baseless and Van Boven was not subject to sanction. The Board officials argue that the ALJ did not make any findings or conclusions regarding the Temporary Order, but that is precisely what the ALJ did—and the ALJ did it at the instigation of Board staff, who initiated the proceedings, made the allegations, and requested a ruling.
As the dissent states, the issue before the disciplinary panel was "whether Van Boven's continued practice at that time (pending investigation and resolution of the formal complaint) would constitute a ‘threat to public welfare.’ " Post at 410. But the patient-complaint evidence before the disciplinary panel was the very same evidence SOAH found to be no evidence of misconduct. The dissent states that "[t]he panel made a prediction, based on the evidence before it, that the temporary restriction was necessary to protect the public welfare." Post at 412. But again, the panel could not predict from the lack of evidence of misconduct by Van Boven that the public welfare needed to be protected by limiting his practice. The Board itself later endorsed SOAH's conclusion that the allegations of Patients A and B had not been proved true and that Van Boven was not subject to sanction.
The Board officials argue that by stating Van Boven's license was "no longer restricted", the Final Order only modified the Temporary Order, as opposed to overturning or vacating it. Under the Guidebook , a Revision-to-Action Report is used to report modifications to an adverse action. But the Final Order did not modify a word of the Temporary Order. The Temporary Order stated that it "shall remain in effect until it is superseded by a subsequent Order of the Board", and that is what happened. The Final Order did not modify the Temporary Order; the Final Order determined that the Temporary Order should not have issued.
"Crucially," the Board officials tell us in their brief, "the Final Order did not state that the temporary restriction had been imposed in error". The Final Order stated that "[b]ecause there are so many implausibilities and issues of doubt raised by the evidence, [Board staff] failed to prove that the allegations of Patients A and B are true." Those were the same allegations, and the only allegations, on which the disciplinary panel based its decision to sanction Van Boven. As we noted at the outset, a physician is subject to sanction only when he is found to have engaged in certain conduct prohibited by statute. While the disciplinary panel found that Van Boven engaged in misconduct, the Board concluded it had not been proved. The temporary sanction was thus imposed in error.
The Board officials point to the Guidebook ’s instruction that a Void Report should be made when an adverse action is overturned on appeal. We have explained that the Final Order overturned the Temporary Order by concluding that the basis for its issuance had not been proved. We do not read the Guidebook ’s simple reference to "appeal" to mean that a Void Report is not appropriate unless a sanction has been overturned on appeal in a judicial setting. A SOAH proceeding affords a physician who has been temporarily sanctioned an avenue for review, just as Van Boven had here. The result is the same as when an appellate court overturns a lower court ruling. Here, the Board itself reviewed the Temporary Order and SOAH proceedings and concluded that Van Boven was not subject to sanction. Under the Guidebook , a Revision-to-Action Report allows the Initial Report to continue to be considered, but there is no reason to consider an Initial Report of a baseless action.
Because the nature of the Final Order under Texas law was to determine that no basis for the Temporary Order had been proved, the Board was required to file a Void Report with the Data Bank. Officials’ actions to the contrary were therefore ultra vires, and the officials are not immune from Van Boven's claims.
The dissent repeatedly asserts that cannot identify any law the Board violated, but this ignores the Board's own position that it has no authority to misreport its actions to the Data Bank. The Board violated Section 164.060(b)(4) of the Texas Occupations Code, which requires reporting of disciplinary actions, by reporting its actions against Van Boven incorrectly. See 22 Tex. Admin. Code § 187.5 (requiring the Board to make reports "according to applicable federal rules and statutes").
* * * * *
Accordingly, the judgment of the court of appeals is reversed and the case is remanded to the trial court for further proceedings.
Justice Boyd filed a dissenting opinion.
Justice Boyd, dissenting.
The only issue this case presents is whether the Texas Medical Board members acted ultra vires by filing a Revision-to-Action Report instead of a Void Report with the National Practitioner Data Bank. Because they did not, I must respectfully dissent.
The Court holds that the Board acted ultra vires by filing the Revision-to-Action report. Ante at ––––. But the Court does not specify a single law with which the Board's action conflicted or without reference to which the Board acted. See Honors Acad., Inc. v. Tex. Educ. Agency , 555 S.W.3d 54, 68 (Tex. 2018) (stating a governmental official acts ultra vires when "the conduct conflicts with the law itself"); Hous. Belt & Terminal Ry. Co. v. City of Houston , 487 S.W.3d 154, 158 (Tex. 2016) (when "his acts conflict with the law itself"), 163 (when he acts "without reference to ... the law authorizing the official to act"). The best the Court can do is assert that the Board violated section 164.060(b)(4) of the Texas Occupations Code. Ante at 404-05 n.41. But that section merely required the Board to report its disciplinary actions to the Secretary's designee. TEX. OCC. CODE § 164.060(b)(4). No one disputes that the Board reported its disciplinary actions against Dr. Robert Van Boven to the Secretary's designee. The dispute is over whether it did so correctly.
The Board's rules required it to report the information "according to applicable federal rules and statutes." 22 TEX. ADMIN. CODE § 187.5. Federal law required the Board to report "any revision of [an] action originally reported," including but "not limited to, reversal of a professional review action or reinstatement of a license." 45 C.F.R. 60.6(b) (emphasis added). The federal regulations also required each report to be classified "in accordance with a reporting code adopted by the Secretary." Id. § 60.8(b)(12). Based on this direction, as well as the "very detailed guidance" in the Data Bank's Guidebook, ante at ––––, the Board determined that its final order revised the initial adverse action and therefore determined that federal law required it to file a Revision-to-Action report. Although the Court disagrees with that decision, it cannot identify any state or federal law the decision violated. The Board's filing of a Revision-to-Action report therefore cannot be an ultra vires action.
The Secretary adopted and published a comprehensive coding system that includes 317 codes for adverse-action classifications. See U.S. Department of Health and Human Services , Health Resources and Services Administration , & Bureau of Health Workforce , National Practitioner Data Bank (NPDB) Code Lists (2021) [hereinafter Code Lists ], available at https://www.npdb.hrsa.gov/software/CodeLists.pdf. The Board filed its Revision-to-Action report with the Revision-to-Action Code "License Restored or Reinstated, Complete (1280)." See id. at 7.
The 2015 edition of the Guidebook was in use at the time of the events in this case. See U.S. Department of Health and Human Services, Health Resources and Services Administration, & Bureau of Health Workforce, NPDB Guidebook (2015) [hereinafter 2015 Guidebook ], available at https://www.npdb.hrsa.gov/resources/2015NPDBGuidebook.pdf. A newer version, updated in 2018, is available on the Data Bank website. See U.S. Department of Health and Human Services, Health Resources and Services Administration, & Bureau of Health Workforce, NPDB Guidebook (2018), available at https://www.npdb.hrsa.gov/resources/NPDBGuidebook.pdf. The Guidebook is intended to be a "policy manual." 2015 Guidebook at A-1.
I.
Data Bank Reports
Texas and federal law require the Board to report its disciplinary actions against physicians to the Data Bank, 42 U.S.C. §§ 11101, 11132, 11134 ; 45 C.F.R. §§ 60.1, .8 ; TEX. OCC. CODE § 164.060(b)(4), and to do so "according to applicable federal rules and statutes," 22 TEX. ADMIN. CODE § 187.5. The Data Bank requires those reports to be submitted in one of six formats: (1) an "Initial Report," (2) a "Correction Report," (3) a "Void Report," (4) a "Revision-to-Action Report," (5) a "Correction of Revision to Action" Report, and (6) a "Notice of Appeal." 2015 GUIDEBOOK at E-7 to E-10; CODE LISTS at 52.
"Notice of Appeal" Reports are notifications to the Data Bank "that a subject has formally appealed a previously reported adverse action." Code Lists at 52. Certain reporting entities "must submit a Notice of Appeal whenever a previously reported adverse action is on appeal," id. ; see 45 C.F.R. § 60.6(b), including "[a]ny adverse action taken by the licensing or certification authority of the state as a result of a formal proceeding," 45 C.F.R. § 60.9(a)(1). Temporary suspension and restriction proceedings before the Board are not "formal proceedings." See 22 Tex. Admin. Code § 187.61 (noting that a temporary restriction proceeding is an "ancillary proceeding" that occurs prior to filing a formal complaint to begin formal proceedings).
The Medical Board first submitted an Initial Report to the Data Bank after a three-person disciplinary panel conducted an expedited hearing, found based on evidence that allowing Dr. Van Boven to continue his usual practice while the Board investigated and resolved complaints filed against him would present a "continuing threat to the public welfare," and entered an order temporarily restricting his medical license. See TEX. OCC. CODE § 164.059(b) ; 22 TEX. ADMIN. CODE §§ 187.57, .61. The Initial Report described the allegations made against Van Boven, the disciplinary panel's finding, and the temporary restriction placed on his medical license. The Board's report noted that the restriction was of "indefinite" duration. Although Van Boven contends that the Board should not have temporarily restricted his license, no one disputes that, having done so, the Board properly reported that action by filing its Initial Report in accordance with federal and state law.
" ‘Continuing threat to the public welfare’ means a real danger to the health of a physician's patients or to the public from the acts or omissions of the physician caused through the physician's lack of competence, impaired status, or failure to care adequately for the physician's patients ...." Tex. Occ. Code § 151.002(a)(2).
After investigating the complaints, the Board's staff decided to pursue a formal disciplinary action against Van Boven before the State Office of Administrative Hearings. After an evidentiary hearing, however, the administrative law judge issued a proposed decision concluding that the Board staff "failed to prove, by a preponderance of the evidence, that Dr. Van Boven is subject to sanction" for committing "unprofessional or dishonorable conduct that is likely to deceive or defraud the public." TEX. OCC. CODE § 164.052(a)(5). The Board accepted the administrative law judge's findings and conclusions, see id. § 164.007(a), and issued a final order dismissing the complaints.
"[U]nprofessional or dishonorable conduct likely to deceive or defraud the public includes conduct in which a physician [ ] commits an act that violates any state or federal law if the act is connected with the physician's practice of medicine." Tex. Occ. Code § 164.053(a)(1).
The Board then submitted a Revision-to-Action Report to the Data Bank, explaining that, based on the administrative law judge's findings, the Board had "restored or reinstated" Van Boven's license and "entered a final order dismissing the Board staff's complaint," that the matter was "complete," and that the final order "supersedes all previous orders."
Van Boven filed this suit arguing that the "submission of a Revision to Action Report was a ultra vires act" and that the Board had a "ministerial" duty to submit a Void Report to the Data Bank. A "Void Report" withdraws a previously submitted report "in its entirety," so that the previous report is "removed" from the physician's "disclosable record." 2015 GUIDEBOOK at E-8. According to the Data Bank's Guidebook, a Void Report should be filed when the previously reported adverse action "was overturned on appeal ." Id. (emphasis added). As an example, the Guidebook explains that if a state medical-licensing agency revokes a physician's license and submits an Initial Report on that action, but the revocation is later "overturned by a State court," the medical board "must void the Initial Report." Id.
The Guidebook also states that a Void Report is appropriate when the Initial Report "was submitted in error" or the previously reported adverse action "was not reportable because it did not meet [the Data Bank's] reporting requirements." 2015 Guidebook at E-8. Van Boven does not rely on either of these reasons. The Code Lists include only three codes for void reports, aligning with the three reasons for Void Reports described in the Guidebook: V0, when "[t]he report was submitted in error," V1, when "[t]he action was not reportable because it did not meet NPDB reporting requirements," and V2, when "[t]he action was overturned on appeal" or "the action was reversed because the original action should never have been taken." Code Lists at 53.
By contrast, a "Revision-to-Action Report" describes a new action that modifies a previously reported action, so that instead of replacing or withdrawing the initial report, "[b]oth reports become part of the disclosable record." Id. at E-8 to E-9; see id. at E-15 ("A Revision-to-Action Report is used to submit an action that relates to and/or modifies an adverse action previously reported to the [Data Bank]."). According to the Guidebook, a Revision-to-Action Report should be filed when the reporting agency (1) imposes "additional sanctions" on the physician based on the "previously reported incident," (2) extends or reduces the length of the previously reported adverse action, (3) reinstates the physician's license, or (4) when "the original suspension or probationary period has ended." Id. at E-9. As examples, the Guidebook explains that if a state licensing agency reports that it has suspended a physician's license for an indefinite period, it must file a Revision-to-Action Report when it reinstates the license. Id. at E-15.
See also 45 C.F.R. § 60.6(b) (requiring reporting agencies to "report any revision of the action originally reported" and explaining that "[r]evisions include ... reinstatement of a license"); Code Lists at 7 (providing the "Revision to Action" code for "License Restored or Reinstated, Complete," used by the Board in its Revision-to-Action Report).
In summary—and as the Data Bank explained in letters it sent to Van Boven rejecting his complaints—a Void Report "is appropriate when an action is overturned or vacated, not when an action is modified or superseded." See, e.g., id. at E-67 (explaining that if a state licensing agency files an Initial Report that it has revoked a physician's license and a court on appeal modifies the discipline to probation, the agency should file a Revision-to-Action Report; but if the court overturns the agency's order, the agency should file a Void Report). Because the Board's final order stated that Van Boven's license was "no longer restricted," the Data Bank concluded that the Board intended to "modify" the initial temporary-restriction order by ending and removing the restriction, thus "updating the initial action," not to "overturn or vacate the Initial Order and restriction all together." Based on this understanding, the Data Bank concluded that the Board was "legally required" to file the Revision-to-Action Report.
As the Court explains, whether Van Boven is correct that the federal regulations and Guidebook required the Board to file a Void Report depends on the nature of the Board's final order and its effect on the previous temporary-restriction order under Texas law. Specifically, the question is whether the final order "modified or superseded" the temporary order (in which case the Board properly filed a Revision-to-Action Report) or "overturned or vacated" the temporary order (in which case the Board should have filed a Void Order). Texas law confirms that the final order, although related to the temporary-restriction order, is the result of a separate proceeding that did not "overturn" the initial order. Instead, it "modified" the order by bringing the temporary restriction to an end.
A. Disciplinary proceedings under Texas law
The Texas Medical Practice Act authorizes—and indeed, requires—the Board to impose disciplinary sanctions against licensed physicians who violate the Act or a Board rule, engage in other prohibited conduct, or who "pose[ ] a continuing threat to the public welfare." TEX. OCC. CODE §§ 164.001(a) – (c), .051–.058. To impose such sanctions, the Board must initiate a disciplinary proceeding that involves a two-step process. First, the Board must conduct "an Informal Show Compliance proceeding and settlement conference" (an ISC) with the physician and attempt to resolve the complaint informally. 22 TEX. ADMIN. CODE § 187.2(21) ; see TEX. OCC. CODE §§ 164.003 –.004. If that effort is unsuccessful, the Board must then file a formal complaint with the State Office of Administrative Hearings for formal resolution as a contested case under the Administrative Procedures Act. TEX. OCC. CODE §§ 164.005 –.006. After the administrative law judge conducts a formal hearing and issues findings of fact and conclusions of law regarding the complaint, the Board cannot change those findings and conclusions but instead must either enter a final order based on those findings and conclusions or appeal the findings and conclusions by filing a suit for judicial review in a Travis County district court. Id. §§ 164.007–.0072. If the Board enters a final order imposing a disciplinary sanction, the physician may appeal that order by filing suit in the district court. Id. § 164.009.
But also within this statutory scheme, section 164.059 authorizes the Board to temporarily suspend or restrict a physician's license on an expedited basis pending the investigation, filing, and two-step proceeding to resolve a formal complaint. To temporarily suspend or restrict a license, a disciplinary panel consisting of three Board members must determine based on evidence that the physician's "continuation in practice" would "constitute a continuing threat to the public welfare." Id. § 164.059(a) – (b) ; see also 22 TEX. ADMIN. CODE §§ 187.55 – .62. If the panel imposes a temporary suspension or restriction, it must then initiate the two-step disciplinary proceeding by conducting an ISC and, if that is unsuccessful, filing a formal complaint with the State Office of Administrative Hearings, "as soon as practicable." TEX. OCC. CODE § 164.059(e) – (f) ; see Tex. Med. Bd. v. Wiseman , No. 03-13-00210-CV, 2015 WL 410330, at *2 (Tex. App.—Austin Jan. 30, 2015, pet. denied) (mem. op.) (describing process for the Board's temporary suspensions and restrictions).
The Medical Practice Act and the Board's rules make clear that a temporary-suspension-or-restriction proceeding and a two-step disciplinary proceeding are two separate, although related, proceedings. "A temporary suspension or restriction proceeding is ancillary to a disciplinary proceeding concerning the licensee's alleged violation(s) of the Act." 22 TEX. ADMIN. CODE § 187.61(a). An order temporarily suspending or restricting a physician's license "is effective immediately on the date entered and shall remain in effect until a final or further order of the board is entered in the disciplinary proceeding ." Id. § 187.61(b) (emphasis added). The result of these two ancillary processes is that a physician's license may be suspended or restricted while the formal proceedings progress. But as discussed below, the two-step disciplinary proceeding does not evaluate the merits of the temporary-restriction order.
We have not previously addressed whether or when a physician may appeal from a temporary-suspension-or-restriction order. The Court states that the "statutory and regulatory provisions specifically applicable to physician discipline do not provide for an administrative appeal from a disciplinary panel order." Ante at 399. And it "express[es] no view on whether judicial review is available." Id. at 399 n.14.
A temporary-suspension-or-restriction order qualifies as a "disciplinary action," see Tex. Occ. Code §§ 164.001, .004, .051, .060, and any person whose license is "subject to ... disciplinary action by the board may appeal to a Travis County district court not later than the 30th day after the date the board decision is final ," id. § 164.009 (emphasis added). If a temporary-suspension-or-restriction order is a "final" order, the physician may appeal that order directly, immediately after the disciplinary panel enters it. Historically, the Medical Board's temporary-restriction orders have explicitly stated that they were "final" orders. See, e.g. , Wiseman , 2015 WL 410330, at *3 n.8. The Third Court of Appeals, however, has held that a temporary-restriction order is not a "final" order, so a physician who desires to appeal a temporary-restriction order may do so only after the Board completes the two-step disciplinary proceeding and enters a final order. Id. at *3. In either event, it appears that physicians can appeal a temporary-restriction order, either as soon as it is entered or after a final order is entered. The parties here, however, have not briefed the issue of when a physician may appeal a temporary-restriction order.
B. "Overturned" or "modified"
The question here is whether, under this Texas regulatory scheme, the Board's final order dismissing the formal complaints against Van Boven for lack of evidence of a sanctionable violation "overturned" the temporary-restriction order "on appeal" (and thus required the Board to file a Void Report) or "modified" the temporary-restriction order (and thus required the Board to file a Revision-to-Action Report). I conclude that the Board's final order did not "overturn" the temporary-restriction order "on appeal." Instead, like a court's final judgment's effect on a temporary-injunction order, the Board's final order "superseded" the temporary-restriction order, "reinstated" Van Boven's license, and thereby "modified" the temporary restriction by ending it. As a result, the Guidebook required the Board to file a Revision-to-Action Report with the Data Bank.
The Board argues that a Void Report would have been improper here because only a court can "overturn" a Board order "on appeal." Although the Board concedes that the Guidebook does not say that a Void Report is required when a previous order is "overturned [by a court ] on appeal," it notes that the examples the Guidebook provides involve a court overturning an agency's order. See, e.g. , 2015 Guidebook at E-8 (providing example of when a board order revoking a license is "overturned by a state court"), E-72 ("If a court overturns a board's order, the board should void the Initial Report."). But as Van Boven insists, the Guidebook provides these examples merely as non-exclusive examples—they do not independently alter or limit the meaning of the phrase "overturned on appeal." Like the Court, see ante at ––––, I read the Guidebook to require a Void Report whenever a prior order is "overturned on appeal," regardless of whether that appeal occurs in a court, before the Board, or to an administrative law judge. Cf. Code Lists at 52 (noting only "formal[ ]" appeals require Notice of Appeal Reports).
1. No "appeal"
Despite Van Boven's insistence otherwise, he did not appeal the Board's temporary-restriction order. He argues that he "appealed" the order by continually denying the allegations asserted against him and refusing to agree to resolve the matter through an informal settlement conference, thereby forcing the Board to file a formal complaint in the State Office of Administrative Hearings. I disagree. After the Board panel entered the temporary-restriction order, the Act required the Board to pursue the two-step disciplinary proceeding; it did not provide the disciplinary proceeding as a means for Van Boven to "appeal" the results of the ancillary temporary-restriction proceeding. See TEX. OCC. CODE § 164.059(e) – (f). To "appeal" a Board order, the physician must file suit in the Travis County district court. Id. § 164.009. The Board's final order could not have overturned the temporary-restriction order "on appeal" because Van Boven never appealed that order.
2. Not "overturned"
Nor did the Board's final order "overturn" the temporary-restriction order. To enter the temporary order, the Board's disciplinary panel had to find, based on evidence, that Van Boven's continued, unrestricted practice of medicine at that time (pending an investigation and completion of the two-step disciplinary proceeding) would "constitute a continuing threat to the public welfare." Id. § 164.059(a) – (b) ; see also 22 TEX. ADMIN. CODE §§ 187.55 – .62. By contrast, the issue in the ensuing contested case before the administrative law judge was whether Van Boven should be sanctioned for engaging in "unprofessional or dishonorable conduct that is likely to deceive or defraud the public." TEX. OCC. CODE §§ 164.052(a)(5). The administrative law judge was not called upon to decide, nor did he decide, whether the three-member Board panel should (or should not) have entered the temporary-restriction order or whether Van Boven's continued practice at that time (pending investigation and resolution of the formal complaint) would constitute a "threat to public welfare." Indeed, unlike proceedings against certain other licensed professionals, the Act does not grant the State Office of Administrative Hearings any authority to review, reverse, or affirm a Board panel's temporary-suspension-or-restriction order against a physician or its finding that the physician's practice would constitute a "continuing threat to the public welfare." A temporary-restriction order based on the three-member panel's finding remains in effect only until the Board enters a subsequent or final order, 22 TEX. ADMIN. CODE § 187.61(b), but the final order does not reverse or overturn the temporary order.
See, e.g. , Tex. Occ. Code §§ 263.004(c) (authorizing State Office of Administrative Hearings to conduct hearing to review Board of Dental Examiners temporary-suspension order against dentist), 301.455(c) (same for Board of Nursing's temporary-suspension-or-restriction order against nurse).
Van Boven contends that the final order "overturned" the temporary-restriction order because the hearing before the administrative law judge was a "trial de novo on all facts and law related to the allegations considered in the temporary order." But in fact, the hearing before the administrative law judge involved evidence of facts that differed from the facts presented to the Board's disciplinary panel that issued the temporary-restriction order, including—for example—evidence regarding allegations of a third patient who provided no evidence to the disciplinary panel that entered the temporary-restriction order. And more importantly, any evidence presented to the administrative law judge was used to determine whether Van Boven could or should be sanctioned for previously engaging in unprofessional or dishonorable conduct, not to determine whether his license should be temporarily restricted to eliminate or reduce a future threat to the public welfare. The administrative law judge made no determination, and the final order did not conclude, that the temporary restriction "should never have been taken." CODE LISTS at 53 (defining when to file a Void Report).
3. "Superseded"
Nevertheless, Van Boven argues that the Board was required to file a Void Report because its final order "superseded," and therefore "vacated" and "voided" the temporary-restriction order. As mentioned, the Board disciplinary panel's temporary-restriction order provided that it would "remain in effect until it is superseded by a subsequent Order of the Board," the Board's final order provided that it "supersedes the Order of Temporary Restriction," and the Board's Revision-to-Action Report to the Data Bank explained that the final order "supersedes all previous orders." The Board's final order based on an administrative law judge's factual findings and legal conclusions following a disciplinary proceeding does not make a prior temporary-suspension-or-restriction order "void" in the sense that it becomes an "absolute nullity" that was "[n]ull from the beginning." Void , BLACK'S LAW DICTIONARY (11th ed. 2019). Instead, it "supersedes" the prior order by "repealing" and "taking the place of" it. Supersede , BLACK'S LAW DICTIONARY (11th ed. 2019).
In this sense, the three-member panel's temporary-restriction order and the full Board's final order are analogous to a temporary-injunction order and a final judgment in a court case. When a party seeks a temporary injunction, it must prove "(1) a cause of action against the defendant; (2) a probable right to the relief sought; and (3) a probable, imminent, and irreparable injury in the interim." Butnaru v. Ford Motor Co. , 84 S.W.3d 198, 204 (Tex. 2002) (citing Walling v. Metcalfe , 863 S.W.2d 56, 57 (Tex. 1993) ; Sun Oil Co. v. Whitaker , 424 S.W.2d 216, 218 (Tex. 1968) ). When a court enters a temporary-injunction order and then later enters a final judgment from which a party appeals, the appellate court does not evaluate the propriety of the temporary-injunction order. See Isuani v. Manske-Sheffield Radiology Grp., P.A., 802 S.W.2d 235, 236 (Tex. 1991) (per curiam). In fact, the court cannot review the propriety of the temporary injunction because those questions are moot, both procedurally and substantively. See Elec. Reliability Council of Tex., Inc. v. Panda Power Generation Infrastructure Fund, LLC , 619 S.W.3d 628, 635 (Tex. 2021) ("Once the trial court entered a permanent injunction ..., the issue of whether the trial court erred by granting a temporary injunction ... no longer presented a live controversy that was relevant to the resolution of the parties’ then-current dispute.").
In the same way, when the Medical Board enters a final order (regardless of whether that order imposes a disciplinary sanction based on the administrative law judge's finding of sanctionable conduct or, as here, imposes no sanction and dismisses the complaint based on the administrative law judge's failure to find sanctionable conduct), a temporary-restriction order no longer has any effect at all. See 22 TEX. ADMIN. CODE § 187.61(b). But the final order does not overturn the temporary order or render it void from its inception.
The three-member panel was required to decide whether Van Boven's continued practice of medicine pending completion of the investigation and the two-step disciplinary process "would" in the future constitute a "threat" to the public, not whether in hindsight it actually "did" cause "harm" to the public. TEX. OCC. CODE § 164.059. The panel made a prediction, based on the evidence before it, that the temporary restriction was necessary to protect the public welfare. There is little difference between that determination and a trial court's determination that a temporary injunction is necessary to enforce a party's "probable right" and prevent a "probable injury." State v. Sw. Bell Tel. Co. , 526 S.W.2d 526, 528 (Tex. 1975) (emphases added). And there is little difference between the administrative law judge reviewing the evidence in this case and determining that the Board has not proven its allegations and a trial court ultimately denying final relief in a case in which it previously entered a temporary injunction. In both situations, the final order does not void or even review the merits of the order granting temporary relief. See Int'l Ass'n of Machinists, Local Union No. 1488 v. Federated Ass'n of Accessory Workers , 133 Tex. 624, 130 S.W.2d 282, 283 (Tex. Comm'n App. 1939) ("[T]he effect of the order of the trial court dismissing the main case was to terminate such injunction.... No temporary injunction exists, and it follows that the question of whether it was rightfully issued is but an abstract question of law with which this court will not deal."). As the Final Order here states: "This Order supersedes the Order of Temporary Restriction issued on February 29, 2016 and Respondent's license to practice medicine in Texas is no longer restricted ." [Emphasis added.] Not, as the Court reads it, "should not have been restricted ."
When in this case the administrative law judge issued his Proposal for Decision, and when the Board accepted and incorporated that proposal into its Final Order, they did not consider the merits of the temporary-restriction order. Unlike the three-member Board panel that entered the temporary-restriction order, they did not consider whether Van Boven's "continuation in practice" at that time (pending the investigation and the two-step disciplinary proceeding) would "constitute a continuing threat to the public welfare." TEX. OCC. CODE § 164.059(a) – (b) ; 22 TEX. ADMIN. CODE §§ 187.55 – .62. Instead, they were concerned only with whether the Board met its burden to prove, by a preponderance of the evidence, that Van Boven should be sanctioned for committing "unprofessional or dishonorable conduct that is likely to deceive or defraud the public." See TEX. OCC. CODE § 164.052(a)(5).
The Court hangs its contrary conclusion on one hook: that much of the same evidence that was presented at the temporary-restriction hearing (specifically, "the allegations made by Patients A and B") was also presented at the formal hearing before the administrative law judge. But the evidence was submitted at the temporary-restriction hearing to prove an entirely different claim—that Van Boven's continued, unrestricted practice of medicine pending completion of the investigation and the two-step proceeding would "constitute a continuing threat to the public welfare." TEX. OCC. CODE § 164.059(b) ; 22 TEX. ADMIN. CODE §§ 187.55 – .62.
The Court ends its opinion by asserting that "the nature of the Final Order under Texas law was to determine that no basis for the Temporary Order had been proved." Ante at 404 (emphasis added). But the final order made no determination at all regarding the propriety of the temporary-restriction order or whether that sanction had "been proved." Simply because the Board ultimately failed to prove the allegations against Van Boven does not mean that the temporary-restriction order "never should have been" issued.
Similarly, the Court suggests "that Board staff failed to prove any of their allegations." Ante at 400. But the administrative law judge never found that the Board failed to prove the basis for the temporary restriction on Van Boven's license. And the Court claims that the administrative law judge made "findings or conclusions regarding the Temporary Order." Ante at 403. Yet, despite the fact that the administrative law judge's fifty-nine findings and five conclusions are enumerated in eight pages, the Court does not and cannot point to a single finding or conclusion that addresses the propriety of the temporary-restriction order.
Even an expungement is not a reason to submit a Void Report. Guidebook at E-70 ("An expungement removes the practitioner's public record but does not vacate or change the action.... An expunged record is not a reason to void a report.").
As the Court itself ultimately concedes, "the Temporary Order was not under review in the SOAH proceedings," and the administrative law judge "had no authority to overturn or vacate it." Ante at 403. Yet—struggling to find a way to construe the laws that govern Board proceedings to render a result it considers more just and fair—the Court concludes that although "the Temporary Order was not overturned or vacated," the "Final Order's effect was the same." Ante at –––– (emphasis added). But under the law, that's simply not correct. The fact that the patients’ testimony was insufficient to support sanctions against Van Boven based on a finding that he had committed "unprofessional or dishonorable conduct that is likely to deceive or defraud the public," TEX. OCC. CODE § 164.052(a)(5), does not (effectively or otherwise) mean that their testimony was insufficient to support a temporary restriction based on a finding that, at that time, his unrestricted practice of medicine pending an investigation and final determination would "constitute a continuing threat to the public welfare," id. § 164.059(b). The Board's ultimate determination that Van Boven was not "subject to sanction" did not—either expressly or by its "effect"—overturn or vacate the three-member panel's earlier determination that his license should be temporarily restricted until the Board could make its ultimate determination.
The Data Bank's Guidebook specifically confirms this result, explaining that when a state licensing agency orders a "summary or emergency suspension of a license ... pending completion of [the agency's] investigation," the agency "must submit a Revision-to-Action Report" once "a final action is taken that supersedes or modifies the initial action." 2015 GUIDEBOOK at E-61 (emphasis added). And the Guidebook provides additional examples that confirm this result as well. When, for example, a licensing agency reports that it has suspended a license in an order that does not provide for automatic reinstatement "after a specified period," the agency "must submit a Revision-to-Action report when the license is reinstated." Id. at E-15; see also 45 C.F.R. § 60.6(b) (explaining that "revisions" include "reinstatement of a license"); 2015 GUIDEBOOK at E-8 (stating that a Revision-to-Action Report should be filed when the final order reduces the length of the previously reported adverse action or reinstates the physician's license, or when "the original suspension or probationary period has ended"), E-58 (providing that licensing authorities "also must report any revisions to a previously reported licensing or certification action, such as a reinstatement of a suspended license"). Because the Board's final order in this case replaced the temporary-restriction order, modified the previously indefinite temporary restriction on Van Boven's license, and reinstated his license without restrictions, but did not render the prior order void from its inception, the Guidebook required the Board to file a Revision-to-Action Report.
Van Boven contends, however, that these Guidebook examples refer only to situations in which the licensing agency, having initially suspended or restricted a license for an indefinite period, later enters an order that imposes an adverse action on the licensee. According to Van Boven, when an agency that initially suspends or restricts a license later takes a final adverse action against the licensee, the Guidebook requires the agency to file a Revision-to-Action Report; but when (as here) the agency later takes a final action that is not adverse, the Guidebook requires the agency to file a Void Report. But the Guidebook's examples refer only to a "final action," never referring to whether the final action is "adverse." See 2015 GUIDEBOOK at E-61 (requiring agency to submit a Revision-to-Action Report when "a final action is taken that supersedes or modifies the initial action"). And the regulations and Guidebook specifically include situations in which the agency does not take an adverse final action, but instead "reinstates" the previously suspended license or when the suspension period "has ended," neither of which constitutes an "adverse" action. See 45 C.F.R. § 60.6(b) ; 2015 GUIDEBOOK at E-8, E-15, E-58; CODE LISTS at 7 (including "License Restored or Reinstated" in list of Revision-to-Action codes).
4. "Modified"
Van Boven argues that the Guidebook did not require a Revision-to-Action Report in his case because the Board's final order could not have "modified" the temporary restriction. Specifically, Van Boven contends that because the temporary-restriction order "ceased to have any legal effect" once the Board entered the final order, the final order "supplanted" the temporary-restriction order but could not "modify" it because there was no longer any temporary-restriction order to modify.
Although Van Boven is correct that the temporary order lost all effect when the Board entered the final order, the Guidebook requires a Revision-to-Action Report when a final order modifies a prior action , not a prior order . See 2015 GUIDEBOOK at E-8 ("A Revision-to-Action Report is a report of an action that modifies an adverse action previously reported to the [Data Bank]." (emphasis added)), E-15 ("A Revision-to-Action Report is used to submit an action that relates to and/or modifies an adverse action previously reported to the [Data Bank]." (emphasis added)), E-61 ("Once a final action is taken that supersedes or modifies the initial action , the State licensing or certification authority must submit a Revision-to-Action Report." (emphasis added)), E-67 (requiring Revision-to-Action Report when "a judicial appeal resulted in the court modifying the discipline " (emphasis added)). Although the final order rendered the temporary order ineffective, it also modified the adverse action the temporary order imposed by ending the adverse action altogether. See id. at E-9.
Because the Board's final order in this case replaced the temporary-restriction order, modified the previously indefinite temporary restriction on Van Boven's license, and reinstated his license without restrictions, but did not render the prior order void from its inception, the Board was required to file a Revision-to-Action Report.
II.
Conclusion
I do not begrudge the Court's desire to rectify what Van Boven argues is an unfair, unjust, and unduly prejudicial result. But this Court's task is simply to determine whether the Board defendants acted ultra vires by filing a Revision-to-Action Report, rather than a Void Report, after the Board entered its Final Order in Van Boven's case. For the reasons I have explained, I conclude they did not. I agree with the court of appeals’ conclusion that Van Boven failed to plead and establish that the Board acted ultra vires by failing to file a Void Report. I would affirm the court of appeals’ judgment dismissing Van Boven's claims as barred by sovereign immunity. Because the Court does not, I must dissent.