Opinion
21-P-527
06-13-2022
BHARANI PADMANABHAN v. BOARD OF REGISTRATION IN MEDICINE.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Bharani Padmanabhan, M.D., Ph.D., appeals from a Superior Court judgment dismissing his complaint against the Board of Registration in Medicine (board) for failure to state a claim on which relief can be granted. We affirm.
Background.
The complaint, the allegations of which we take as true, Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011), asserted that in 2017, the board indefinitely suspended the plaintiff's license to practice medicine based on what the board found were various instances of substandard or improper actions as a physician. In 2019, this court decided Bloomstein v. Department of Pub. Safety, 96 Mass.App.Ct. 257 (2019), which held that a State agency had violated certain procedural provisions of G. L. c. 30A, § 11 (7) & (8), in suspending Bloomstein's construction supervisor license. Id. at 258, 261-262. The plaintiff here, believing that the board had committed the same or similar procedural violations in suspending his medical license, petitioned the board to reinstate his license.
An attorney for the board responded that the proper way for the plaintiff to proceed would be to enter into a probation agreement with the board, as contemplated in the original indefinite suspension decision. The plaintiff informed a board employee of his view that he was entitled to a ruling on his reinstatement petition by the members of the board. The board's attorney then invited the board's enforcement division to file a response to the plaintiff's petition. The enforcement division did so, and the plaintiff filed a reply. The plaintiff then made several inquiries to board members and other personnel, asking when his license would be reinstated, but he received no response.
The plaintiff then filed this action in March of 2020, seeking "an emergency order ... to compel the [b]oard to speedily act on the pending [p]etition to [r]einstate." The complaint also alleged that, by virtue of the Bloomstein decision, the board's 2017 indefinite suspension decision was "void" and that "the plaintiff's license must be immediately restored to [a]ctive status."
On the board's motion to dismiss, a judge ruled that although the complaint was framed as one seeking injunctive relief, in substance it sought judicial review of the board's 2017 indefinite suspension decision. As such, it was untimely because G. L. c. 112, § 64, and G. L. c. 30A, § 14 (1), require that a complaint for judicial review of a final board decision be filed within thirty days of receipt of that decision. See Friedman v. Board of Registration in Med., 414 Mass. 663, 664 n.1 (1993)- The plaintiff, however, failed to timely seek such review of the 2017 order, and by March of 2020, the time for doing so had passed. The judge also rejected the plaintiff's argument that the board's original decision was void. This appeal followed.
Indeed, in a case brought by the plaintiff before the board issued the 2017 indefinite suspension decision, the Supreme Judicial Court ruled that once the board issued a decision, the plaintiff could seek judicial review of it and would be "free to raise issues related to the procedural aspects of the disciplinary process." Padmanabhan v. Board of Registration in Med., 477 Mass. 1026, 1028 (2017). See id. n.5. The plaintiff nevertheless failed to do so in timely fashion.
Discussion.
We review the sufficiency of the plaintiff's complaint de novo. Curtis, 458 Mass. at 676. Here, the judge correctly ruled that the plaintiff's action, to the extent that it sought review of the board's indefinite suspension decision, was untimely. "Filing in the Supreme Judicial Court within thirty days for judicial review is a jurisdictional requirement and not susceptible to extension except in limited circumstances as provided in the statute." Friedman, 414 Mass. at 666. The plaintiff could not circumvent this time limit by framing his action as one seeking injunctive relief. See Ramaseshu v. Board of Registration in Med., 441 Mass. 1006, 1006-1007 (2004) (where physician waited more than seven years after license suspension and then asked court to "'investigate the circumstances leading to'" suspension, action was time barred).
We reject the plaintiff's argument that he was entitled to raise a Bloomstein challenge to the board's 2017 decision regardless of his failure to timely seek judicial review of that decision. Bloomstein itself started as an action for judicial review under G. L. c. 30A, and there is no indication that that action was untimely. See Bloomstein, 96 Mass.App.Ct. at 258. Nor can the plaintiff point to anything in the Bloomstein decision suggesting that its interpretation of G. L. c. 30A, § 11 (7) & (8), somehow permits courts to ignore another provision of G. L. c. 30A, specifically, § 14 (1), which requires timely filing of actions for judicial review of agency decisions.
That Bloomstein had not been decided at the time of the board's 2017 decision did not preclude the plaintiff from timely asserting the same claims under G. L. c. 30A, § 11 (7) & (8), that ultimately succeeded in Bloomstein. As the plaintiff's brief recognizes, those provisions have "had the same meaning since the effective date of the statute"; the plaintiff could have claimed violations of them in 2017.
The plaintiff relies on language in Bloomstein that, in rejecting the agency's mootness argument, invoked the principle that "courts will address an issue that might otherwise be dismissed for mootness if [t]he issue is one of public importance, capable of repetition, yet evading review" (quotation omitted). Bloomstein, 96 Mass.App.Ct. at 259. The court went on to observe that "an agency's compliance with statutes governing its procedures for adjudications that can result in the destruction of a person's livelihood is of sufficient public importance to justify judicial review." Id. Nothing in this statement suggests that the public importance of the issue can justify ignoring the clear statutory command that actions for judicial review be timely filed. "[M]ootness [is] a factor affecting [the court's] discretion, not its power, to decide a case" (quotation omitted). Styller v. Zoning Bd. of Appeals of Lynnfield, 487 Mass. 588, 595 (2021). In contrast, the timely filing requirement is "jurisdictional." Friedman, 414 Mass. at 666.
The plaintiff also argues that he may bring his Bloomstein challenge now because, in his view, Bloomstein "showed that his indefinite suspension order was . . . void ab initio." Again, however, nothing in Bloomstein says or even hints that a violation of the provisions of G. L. c. 30A at issue render an agency decision void. In his reply brief, the plaintiff suggests that agency proceedings conducted without subject matter jurisdiction are void, but he never explains, nor do we see, why the board lacked subject matter jurisdiction here. Even assuming arguendo that the board's decision was procedurally erroneous, "[a]n erroneous judgment is not a void judgment." Bowers v. Board of Appeals of Marshfield, 16 Mass.App.Ct. 29, 32 (1983).
Elsewhere in his brief, the plaintiff argues that a hearing officer's August 2015 recommended decision became the board's final decision because the board did not issue its own indefinite suspension decision until more than 180 days after the recommended decision. To the extent that this argument was not already rejected in Padmanabhan, 477 Mass. at 1027, the plaintiff has not claimed that it went to the board's jurisdiction. Moreover, he was free to raise it in a timely action for judicial review once the board issued its indefinite suspension decision. See Id. at 1028. He failed, however, to file such an action.
The plaintiff finally argues that his complaint also stated a valid claim for relief in the form of an order requiring the board at least to rule on his reinstatement petition. This was effectively a request for mandamus relief. "In the absence of an alternative remedy, relief in the nature of mandamus is appropriate to compel a public official to perform an act which the official has a legal duty to perform." Lutheran Serv. Ass'n of New England, Inc. v. Metropolitan Dist. Comm'n, 397 Mass. 341, 344 (1986) .
Here, it might have behooved the board to rule in some more formal way on the plaintiff's reinstatement petition, or to inform the plaintiff why it would not issue such a ruling. Nevertheless, the plaintiff has not shown that the board had any legal duty to act on the petition. He points to nothing in the board's governing statutes or regulations creating such a duty. The board might well have had the discretion to act, but "a court may not compel performance of a discretionary act." Metropolitan Dist. Comm'n, 397 Mass. at 344. The complaint thus failed to state a claim for mandamus relief.
The plaintiff's other arguments, including that the judge failed to treat the facts in his complaint as true and that the board retaliates against physicians like him on behalf of hospitals, "have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954) .
Judgment affirmed.
The panelists are listed in order of seniority.