Mohammad Banki, M.D., D.M.D. v. Michael D. Fine, M.D.

January 22, 2020
Supreme Court
No. 2015-96-M.P.
No. 2017-17-M.P.
(PC 14-3692)
Mohammad Banki, M.D., D.M.D., et al. :
v. :
Michael D. Fine, M.D., et al. :
NOTICE: This opinion is subject to formal revision before publication in
the Rhode Island Reporter. Readers are requested to notify the Opinion
Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence,
Rhode Island 02903, at Tel. 222-3258 of any typographical or other formal
errors in order that corrections may be made before the opinion is published.
Supreme Court
No. 2015-96-M.P.
No. 2017-17-M.P.
(PC 14-3692)
Mohammad Banki, M.D., D.M.D., et al. :
v. :
Michael D. Fine, M.D., et al. 1 :
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
OPINION
Justice Flaherty, for the Court. The plaintiffs, Mohammad Banki, M.D., D.M.D., and
Frank Paletta, M.D., D.M.D., 2 filed a petition for writ of certiorari seeking review of an order and
judgment of the Superior Court granting the motion of the defendant, the Rhode Island Department
of Health, 3 to dismiss their complaint. We granted the petition on December 18, 2015, and ordered
that the case remain in the Superior Court for a hearing to determine a limited issue. While the
case was in the Superior Court, the department filed a petition for writ of certiorari of its own, in
which it sought review of a judgment of the Superior Court that entered default judgment against
it. We granted that petition as well and consolidated the two cases. After thoroughly reviewing
the record and considering the arguments of counsel, we affirm the March 2, 2015 order and
judgment of the Superior Court, quash the November 7, 2016 judgment of the Superior Court, and
1
Pursuant to Rule 25(d) of the Rhode Island Superior Court Rules of Civil Procedure, Nicole
Alexander-Scott M.D. was automatically substituted for Michael Fine M.D. in this action after she
replaced him as the Director of the Rhode Island Department of Health.
2
From this point on, the plaintiffs will be referred to as the physicians.
3
From this point on, the defendant will be referred to as the department.
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remand the case to Superior Court with directions that it remand the case to the Rhode Island
Department of Health for further proceedings.
I
Facts and Travel 4
On July 2, 2013, the Investigating Committee of the department’s Board of Medical
Licensure and Discipline made a finding of unprofessional conduct against each of the physicians. 5
On December 19, 2013, the board issued a specification of charges and scheduled the matter for a
formal administrative hearing. 6 On February 6, 2014, the physicians initiated what they termed
“jurisdictional discovery” relating only to the board’s jurisdiction to hear the charges.
Discovery before the board did not proceed smoothly, and the physicians complained that
the department failed to adequately comply with several of their discovery requests. A hearing
officer agreed, and on May 9, 2014, she entered a conditional order of dismissal against the
department and ordered it to fully comply with the physicians’ discovery requests by May 14,
2014. The department provided additional responses on that day, but the physicians alleged that
the responses were inadequate. On May 21, 2014, the physicians moved to dismiss the charges
that had been filed against them, based on the conditional order of dismissal. The next day, a
hearing was held on the motion to dismiss. After the hearing, the department made another attempt
to respond to the physicians’ discovery requests, but, again, the physicians alleged that the
responses were incomplete. However, the hearing officer ultimately issued a written decision (the
4
We partially rely on the physicians’ complaint and the department’s proffered certified
administrative record, because the parties do not dispute the underlying facts.
5
The record indicates that the physicians are both medical doctors and dentists, but that their
practice was primarily in the area of dentistry.
6
The board further amended the charges on January 8, 2014.
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Order) denying the physicians’ motion to dismiss because, she concluded, the department had
complied with the previous conditional order.
The physicians then filed a complaint in Superior Court under the provisions of the
Administrative Procedures Act, G.L. 1956 § 42-35-15, appealing the Order. The physicians
alleged in their complaint that the Order was final and therefore appealable under § 42-35-15. The
department filed an answer to the complaint and moved to dismiss the complaint. In its
memorandum of law accompanying its motion to dismiss, the department argued that the
physicians had appealed from an order that was interlocutory in nature and not a final order.
Therefore, the department urged that the complaint should be dismissed under Rule 12(b)(6) of
the Superior Court Rules of Civil Procedure because the complaint did not meet the requirements
of § 42-35-15(a). In response, the physicians argued that, because they had alleged all the required
elements under § 42-35-15(a), and because the Order was final, the complaint was sufficient to
invoke the jurisdiction of the Superior Court.
After considering the positions of the parties, the first hearing justice 7 held that the Order
was interlocutory and therefore not subject to appeal unless the physicians satisfied the exception
set forth in § 42-35-15(a), which provides that “[a]ny preliminary, procedural, or intermediate
agency act or ruling is immediately reviewable in any case in which review of the final agency
order would not provide an adequate remedy.” The first hearing justice further held that the
physicians had failed to provide any argument or allege any facts to indicate why their complaint
fell within this exception. The first hearing justice granted the department’s motion to dismiss the
physicians’ complaint without prejudice to them seeking review after they had exhausted their
7
Although the petitions have been consolidated in this Court, the matters were heard by two
separate hearing justices in the Superior Court, who we refer to as the first hearing justice and the
second hearing justice.
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administrative remedies. The first hearing justice then ordered the department to withdraw the
sealed administrative record and to retain custody of it.
The physicians then filed a petition for writ of certiorari with this Court. We granted the
petition and ordered that the case remain in the Superior Court; we directed the court to “conduct
a hearing and render a decision, which shall include any necessary findings of fact and conclusions
of law, on the questions of a) whether respondent DOH complied with the Hearing Officer’s
conditional dismissal order of May 9, 2014 and, if not, b) whether the said order was
self-executing.”
Thereafter, the second hearing justice ordered the department to produce the original
administrative record by July 26, 2016. The record reflects that the department failed to comply
with that deadline. As a result, the second hearing justice entered a conditional order of dismissal
and ordered the department to produce the original administrative record by August 3, 2016. On
that day, the department submitted a certified administrative record entitled “Amended
Administrative Hearing Record.” The department also informed the second hearing justice that
the original administrative record had been lost.
The second hearing justice rejected the “Amended Administrative Hearing Record” and
ruled that what had been submitted was not the certified administrative record of the appeal. The
second hearing justice therefore granted the physicians’ motion to enter default judgment, denied
the department’s motion to vacate the order of default, and dismissed the underlying charges
against the physicians that were then pending before the board. The department filed a petition
for writ of certiorari with this Court, which we granted.
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II
Standard of Review
“When this Court reviews an administrative appeal brought under the Administrative
Procedures Act, G.L. 1956 chapter 35 of title 42, our review is limited to questions of law.” Blais
v. Rhode Island Airport Corporation, 212 A.3d 604, 611 (R.I. 2019). “This Court does not
substitute its judgment for that of the agency concerning the credibility of witnesses or the weight
of the evidence concerning questions of fact.” Id. (quoting Beagan v. Rhode Island Department of
Labor and Training, 162 A.3d 619, 626 (R.I. 2017)). “Although we afford great deference to the
factual findings of the administrative agency, ‘questions of law—including statutory
interpretation—are reviewed de novo.’” Id. (quoting Iselin v. Retirement Board of Employees’
Retirement System of Rhode Island, 943 A.2d 1045, 1049 (R.I. 2008)).
As we held in Blais, “[p]ursuant to § 42-35-15(g), when reviewing an administrative
appeal, this Court may:
“affirm the decision of the agency or remand the case for further
proceedings, or it may reverse or modify the decision if substantial
rights of the appellant have been prejudiced because the
administrative findings, inferences, conclusions, or decisions are:
“(1) In violation of constitutional or statutory provisions;
“(2) In excess of the statutory authority of the agency;
“(3) Made upon unlawful procedure;
“(4) Affected by other error [of] law;
“(5) Clearly erroneous in view of the reliable, probative, and
substantial evidence on the whole record; or
“(6) Arbitrary or capricious or characterized by abuse of
discretion or clearly unwarranted exercise of discretion.”
Blais, 212 A.3d at 611 (internal quotation marks omitted)
(quoting § 42-35-15(g)).
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“On certiorari, this Court will not weigh the evidence; ‘we limit the scope of our review to
the record as a whole to determine whether any legally competent evidence exists therein to
support the trial court’s decision or whether the trial court committed error of law in reaching its
decision.’” Beagan, 162 A.3d at 626 (quoting Rhode Island Temps, Inc. v. Department of Labor
and Training, Board of Review, 749 A.2d 1121, 1124 (R.I. 2000)). “Legally competent evidence
is defined as ‘such relevant evidence that a reasonable mind might accept as adequate to support a
conclusion, and means an amount more than a scintilla but less than a preponderance.’” Id.
(quoting Rhode Island Temps, Inc., 749 A.2d 1121 at 1125).
“The sole function of a motion to dismiss is to test the sufficiency of the complaint.”
Pontarelli v. Rhode Island Department of Elementary and Secondary Education, 176 A.3d 472,
476 (R.I. 2018) (brackets omitted) (quoting Narragansett Electric Co. v. Minardi, 21 A.3d 274,
277 (R.I. 2011)). “For that reason, ‘when ruling on a Rule 12(b)(6) motion to dismiss, the trial
justice must look no further than the complaint, assume that all allegations in the compliant are
true, and resolve any doubts in a plaintiff’s favor.’” Id. (brackets omitted) (quoting Multi-State
Restoration, Inc. v. DWS Properties, LLC, 61 A.3d 414, 416 (R.I. 2013)). “The motion may then
only be granted if it appears beyond a reasonable doubt that a plaintiff would not be entitled to
relief under any conceivable set of facts.” Id. (deletion omitted) (quoting Multi-State Restoration,
Inc., 61 A.3d at 417). “In passing on a Rule 12(b) dismissal, this Court applies the same standard
as the trial justice.” Id. (quoting DiLibero v. Mortgage Electronic Registration Systems, Inc., 108
A.3d 1013, 1015 (R.I. 2015)).
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III
Discussion
The parties in this case seek review of two separate rulings of the Superior Court. We deal
with each in turn.
A
Order and Judgment Granting the Department’s Motion to Dismiss
The physicians raise several arguments as to why the first hearing justice erred in granting
the department’s motion to dismiss their administrative appeal. First, the physicians argue that, to
the extent that the first hearing justice analyzed the “finality” requirement of the Administrative
Procedures Act as a jurisdictional issue, the first hearing justice erred. Second, the physicians
argue that the first hearing justice applied the wrong standard under Rule 12(b)(6).
1
Jurisdiction
From our review of the first hearing justice’s decision, it is clear that the first hearing
justice, to a very limited extent, blurred the line between analyzing the issue as jurisdictional or as
a failure to state a claim. In the first hearing justice’s bench decision, he clearly discussed that
judicial review was inappropriate at the time because the order the physicians were appealing from
was interlocutory and the physicians had not shown why they met the exception under
§ 42-35-15(a). However, in the order and judgment, the first hearing justice referred to the
department’s argument that the Superior Court lacked jurisdiction. Because there is some
confusion over whether the first hearing justice in fact held that the Superior Court lacked
jurisdiction to hear the physicians’ administrative appeal, we deem it necessary to elucidate the
law governing jurisdiction and the Administrative Procedures Act.
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“The Superior Court of Rhode Island is a trial court of general jurisdiction.” Chase v.
Bouchard, 671 A.2d 794, 796 (R.I. 1996). “It is granted subject-matter jurisdiction over all cases
unless that jurisdiction has been conferred by statute upon another tribunal.” Id. In the context of
administrative appeals, § 42-35-15 confers jurisdiction on the Superior Court to hear and address
the merits of administrative appeals. Moreover, the Superior Court is vested with equitable
jurisdiction to intervene on behalf of a party who claims he or she “is being irreparably harmed by
the conduct of administrative proceedings[.]” La Petite Auberge, Inc. v. Rhode Island Commission
for Human Rights, 419 A.2d 274, 279 (R.I. 1980) (citing Jordan v. United Insurance Co. of
America, 289 F.2d 778, 782-83 (D.C. Cir. 1961); Lahey Clinic Foundation Inc. v. Health Facilities
Appeals Board, 380 N.E.2d 675, 682 (Mass. 1978)). 8
We have held that a party’s failure to meet the statutory requirements to obtain judicial
review of agency actions is not a condition precedent for subject-matter jurisdiction in the Superior
Court, a court of equity. La Petite Auberge, 419 A.2d at 279. In La Petite Auberge, the Human
Rights Commission argued that certain provisions of the Fair Employment Practices Act limited
judicial review to final orders of the agency. Id. at 278-79. 9 The agency argued that, because there
was no final order, the Superior Court lacked subject-matter jurisdiction over the plaintiff’s
8
Although in Barrington School Committee v. Rhode Island State Labor Relations Board, 608
A.2d 1126 (R.I. 1992), we said that “[t]he General Assembly enacted the [Administrative
Procedures Act] in 1962 to establish a single and exclusive method of obtaining judicial review of
agency action,” we consistently have held since the enactment of the Administrative Procedures
Act that the Superior Court also retains its equitable jurisdiction. Barrington School Committee,
608 A.2d at 1130; see Yellow Cab Co. of Providence v. Public Utility Hearing Board, 101 R.I.
296, 298, 222 A.2d 361, 362 (1966) (“[T]he provisions of § 42-35-15 do not divest this Court of
its inherent jurisdiction to provide an adequate remedy where there is in the circumstances of the
case no adequate remedy at law available.”).
9
We note that the Fair Employment Practices Act (FEPA) and the Administrative Procedures Act
are distinct in that FEPA limits review to final orders, while the Administrative Procedures Act
includes an exception that permits review of interlocutory orders.
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administrative appeal because a final order was a condition precedent to subject-matter
jurisdiction. Id. We disagreed and held that the issue was not whether the Superior Court had
subject-matter jurisdiction, but rather whether “[j]udicial intervention under the present facts * *
* [was] improper.” Id. at 279. Similarly, the question in this case is whether judicial intervention
was proper, and not whether the Superior Court was vested with subject-matter jurisdiction. See
Narragansett Electric Company v. Saccoccio, 43 A.3d 40, 44 (R.I. 2012) (holding that the failure
to comply with the statutory requirements of challenging tax assessments raised the issue of the
appropriateness of judicial intervention and not whether the Superior Court had subject-matter
jurisdiction). We are of the firm opinion that the Superior Court did have subject-matter
jurisdiction over the physicians’ administrative appeal.
However, we still must address whether judicial intervention in this case was appropriate.
Notwithstanding the Superior Court’s equitable jurisdiction, which the physicians did not invoke,
the Administrative Procedures Act, at § 42-35-15, makes judicial intervention appropriate in two
circumstances. See § 42-35-15(a). First, the Superior Court may review a “final order” of an
agency in a contested case after the plaintiff has “exhausted all administrative remedies available
to him or her within the agency[.]” Section 42-35-15(a). Second, the Superior Court may review
“[a]ny preliminary, procedural, or intermediate agency act or ruling * * * in any case in which
review of the final agency order would not provide an adequate remedy.” Id.
First, the physicians argue that the clear language of the Administrative Procedures Act
provides that an interlocutory order can be a “final order” and therefore the Order was final even
though interlocutory. Second, the physicians argue that they met the exception to § 42-35-15(a)
that permits review of interlocutory orders.
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2
Final Order
From our review of the record and the physicians’ complaint, we are of the opinion that
the Order is interlocutory. We have held that a denial of a motion to dismiss is an interlocutory
order. E.g., Fayle v. Traudt, 813 A.2d 58, 61 (R.I. 2003). Additionally, the United States Supreme
Court, in its definition of a “final” order in the analogous federal Administrative Procedures Act,
has held that:
“As a general matter, two conditions must be satisfied for agency
action to be ‘final’: First, the action must mark the ‘consummation’
of the agency’s decision[-]making process—it must not be of a
merely tentative or interlocutory nature. And second, the action
must be one by which ‘rights or obligations have been determined,’
or from which ‘legal consequences will flow[.]’” Bennett v. Spear,
520 U.S. 154, 177-78 (1997) (internal citations omitted).
It is crystal clear to us that an agency’s denial of a motion to dismiss neither determines the rights
or obligations of the parties nor results in the “consummation” of the agency’s decision-making
process. Instead, a denial of a motion to dismiss establishes only that the case will proceed to a
hearing on the merits, and nothing more. Therefore, for judicial intervention to have been
appropriate in the present case, the physicians would have been required to meet the exception laid
out in § 42-35-15(a) concerning the appealability of interlocutory orders.
We are in complete disagreement with the physicians’ position that an interlocutory order
can be a “final” order under the Administrative Procedures Act. By just reviewing the definition
of the two words “final” and “interlocutory,” it is clear they mean the polar opposite. Additionally,
the definition of a final order in the federal context indicates that a final order “must not be of a
merely tentative or interlocutory nature.” Bennett, 520 U.S. at 178 (emphasis added).
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As part of their argument, the physicians construe § 42-35-12 as providing a definition of
a final order. This argument is wholly without merit. Section 42-35-12 10 lists the requirements
that must be embodied in a final order, including, but not limited to, the requirement that it be in
writing or stated in the record, contain findings of fact and conclusions of law, and include a notice
that judicial review is available. However, we do not agree that § 45-35-12 provides a definition
of a final order. The mere fact that the Order contains all the elements required by § 42-35-12
indicates that the hearing officer may have believed the Order to be final. However, we are not
bound by those conclusions.
3
Exception to the Finality Rule
As to whether the physicians meet the exception laid out in § 42-35-15(a), they argue that
they alleged futility in that their complaint alleged that they would be forced to proceed through
the administrative process with inadequate discovery to challenge the department’s jurisdiction.
We have never been called upon to delineate what facts fulfill the requirement to review
an interlocutory order under § 42-35-15(a). The physicians agree with the first hearing justice that
review of an interlocutory order is appropriate only where further agency review “would be futile
or would destroy the effectiveness of the relief sought[.]” See Almeida v. Plasters’ and Cement
Masons’ Local 40 Pension Fund, 722 A.2d 257, 259 (R.I. 1998). We observe that this rule governs
the exception to the requirement that all administrative remedies must be exhausted before a court
10
General Laws 1956 § 42-35-12 provides in part: “Any final order adverse to a party in a
contested case shall be in writing or stated in the record. Any final order shall include findings of
fact and conclusions of law, separately stated. Findings of fact, if set forth in statutory language,
shall be accompanied by a concise and explicit statement of the underlying facts supporting the
findings. * * * Included with the final order shall be a separate notice advising the parties of the
availability of judicial review[.]”
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reviews a final order. Id. Because the physicians do not challenge the standard that the first hearing
justice used, we therefore assume without deciding that that standard governs this inquiry.
From our review of the record, the physicians have not demonstrated how being forced to
proceed through an administrative proceeding without possessing all the discovery that they sought
would make review of any final order of the department futile or would destroy the effectiveness
of appellate review of any final order of the department.
Without doubt, the physicians would have been well within their rights to raise this issue
before the department, or before the Superior Court if they lost the underlying administrative action
and appealed the final order. Even though interlocutory orders, subject to narrow exceptions, are
not immediately appealable, this rule does not foreclose the possibility of review of the correctness
of the order after a final order or judgment has been entered. In the context of interlocutory orders
in the Superior Court, as a general rule those orders can be reviewed as part of a party’s appeal of
the final judgment. See Greensleeves, Inc. v. Smiley, 942 A.2d 284, 291 (R.I. 2007) (holding that
an appeal from final judgment that disposes of all remaining claims and encompassed all prior
orders was sufficient under appellate rules to review a prior order); State v. Piedmont Funding
Corporation, 121 R.I. 27, 29, 394 A.2d 694, 695 (1978) (“[A] final judgment or order for purposes
of appealability is one that terminates all the litigation arising out of the action between the parties
on the merits.”). In other words, any defendant who is aggrieved by a final judgment in a plaintiff’s
favor may argue on appeal that the trial justice should have granted its earlier motion to dismiss.
Additionally, the hearing officer’s belief that the Order was final and her inclusion of a notice of
a right to appeal along with the Order does not bind this Court, nor does it bind the Superior Court.
Second, it cannot be gainsaid that the physicians may well be successful in the
administrative proceeding. Although their ability to attack the jurisdiction of the department over
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the merits of the charges brought against the physicians arguably could have been affected by a
lack of discovery, the physicians may have in the end prevailed either on the merits of the charges
against them or on the alleged jurisdictional issue.
We are of the opinion that the intervention of the Superior Court would have been
inappropriate in this case and we agree with the first hearing justice that what was before him was
interlocutory and therefore premature. We have said that “[j]udicial review of interlocutory rulings
of administrative agencies must be ‘sparingly exercised in order to avoid inundation by preliminary
issues that may ultimately be resolved or become moot in the course of litigation at the
administrative level.’” North Kingstown School Committee v. Wagner, 176 A.3d 1097, 1099 n.3
(R.I. 2018) (brackets and deletion omitted) (quoting La Petite Auberge, Inc., 419 A.2d at 279 n.5).
We therefore unhesitatingly affirm the first hearing justice’s order and judgment granting
the department’s motion.
B
Default Judgment
The department argues that the second hearing justice exceeded his discretion when he
entered default judgment in favor of the physicians. We agree.
As we have said in the context of our remand orders, “this Court has been clear that ‘lower
courts that receive our remand orders may not exceed the scope of the remand or open up the
proceeding to legal issues beyond the remand.’” State v. Arciliares, 194 A.3d 1159, 1162 (R.I.
2018) (deletion omitted) (quoting Butterfly Realty v. James Romanella & Sons, Inc., 93 A.3d 1022,
1031-32 (R.I. 2014)). This principle applies equally to our orders to the Superior Court. In our
opinion, the second hearing justice exceeded the scope of our order.
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We ordered that the Superior Court retain this case for the sole purpose of determining
“whether respondent DOH complied with the Hearing Officer’s conditional dismissal order of
May 9, 2014 and, if not, * * * whether the said order was self-executing.” Thereafter, the second
hearing justice ordered the department to return the original record, that had been submitted to the
first hearing justice. We certainly appreciate the dilemma in which the second hearing justice
found himself when he was informed that the record that he was ordered to review had been lost.
The second hearing justice decided to resolve that dilemma by entering a default judgment against
the department.
It is our opinion, however, that that action exceeded our mandate. We therefore are
constrained to quash the judgment of the Superior Court. Although the second hearing justice was
unable to fulfill our mandate because of the lost records, the case was before him for a limited
purpose with a very specific mandate. In our opinion, the second hearing justice should have
transmitted the case to this Court either without resolving the issue or resolved the issue himself
on the basis of the record before the Superior Court at that time.
In any event, we are of the opinion that, under the provisions of the Administrative
Procedures Act, a default judgment against an agency in this instance was inappropriate. This
unique issue is one of first impression because we have been unable to find any caselaw, either in
our own or federal jurisprudence, where an agency has been subject to a default judgment for
having lost the original administrative record. To the contrary, caselaw abounds that remand to
the agency is the appropriate remedy for curing deficiencies in the record. See Champlin’s Realty
Associates v. Tikoian, 989 A.2d 427, 448 (R.I. 2010); Lemoine v. Department of Mental Health,
Retardation and Hospitals, 113 R.I. 285, 290, 320 A.2d 611, 614 (1974); Holliston Sand Co. v.
Zoning Board of Review of Town of North Smithfield, 98 R.I. 93, 93, 200 A.2d 9, 9-10 (1964).
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In Holliston Sand, we held that the appropriate remedy for a zoning board’s failure to create
an administrative record was a remand to the zoning board for a de novo hearing. Holliston Sand
Co., 200 A.2d at 9-10. In Lemoine, we held that § 42-35-15(g) grants to the Superior Court the
power to remand a case to an agency and that “is a broad grant of power * * * in a proper case, to
correct deficiencies in the record and thus afford the litigants a meaningful review.” Lemoine, 320
A.2d at 614. In Champlin’s Realty, we explained that “[r]emand to the agency generally is the
proper remedy ‘under a variety of circumstances.’” Champlin’s Realty Associates, 989 A.2d at 448
(quoting 2 Am. Jur. 2d Administrative Law § 574 at 489, 490 (2004)). However, we have also said
that a remand is not the proper remedy if it “would not provide decisive new information” because
“the facts and issues have been developed and clarified[.]” Id. at 449.
Turning to the case at hand, we are of the opinion that a default judgment was not the
appropriate remedy to resolve the issue of the lost original administrative record. Our own caselaw
and § 42-35-15 indicate that an entry of default judgment against an agency is not the path to travel
because of a defect in the administrative record. This is consistent with the analogous federal
caselaw interpreting the similar federal Administrative Procedures Act.
The United States Supreme Court has said that “if the reviewing court simply cannot
evaluate the challenged agency action on the basis of the record before it, the proper course, except
in rare circumstances, is to remand to the agency for additional investigation or explanation.”
Florida Power & Light Company v. Lorion, 470 U.S. 729, 744 (1985).
The United States Court of Appeals for the Tenth Circuit has held that “the designation of
the Administrative Record, like any established administrative procedure, is entitled to a
presumption of administrative regularity.” Bar MK Ranches v. Yuetter, 994 F.2d 735, 740 (10th
Cir. 1993). The court further held that “[t]he court assumes the agency properly designated the
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Administrative Record absent clear evidence to the contrary.” Id. Thus, the court requires a
showing that the record may be incomplete before permitting limited discovery to complete the
record. Id.
The United States Court of Appeals for the Second Circuit has similarly held that
“[s]upplementation of [the] record upon remand to the agency may be necessary when the record
does not support the agency action, when the agency has not considered all relevant factors, or
when the reviewing court simply cannot evaluate the challenged action on the basis of the record
before it.” National Audubon Society v. Hoffman, 132 F.3d 7, 14 (2nd Cir. 1997). The court further
held that “an extra-record investigation by the reviewing court may be appropriate when there has
been a strong showing in support of a claim of bad faith or improper behavior on the part of agency
decisionmakers or where the absence of formal administrative findings makes such investigation
necessary[.]” Id.
All three of those cases stand for the proposition that either remand to the agency or limited
discovery is the appropriate remedy for either an incomplete record or a deficiency in the record.
Therefore, it is our opinion that, if the physicians had made a showing that the
administrative record in this case was incomplete, the remedy would be either remand to the
department or to allow limited discovery to cure the deficiency, not default judgment.
Furthermore, from our review of the record, the physicians have not made a sufficient
showing that the record is incomplete. The physicians have relied on the fact that the record is not
the original record, as well as on speculation based on the fact that the indexes do not match. We
find the federal caselaw persuasive that some kind of showing must be made to indicate that the
record is incomplete. See National Audubon Society, 132 F.3d at 14. This showing cannot be the
mere allegation that the record is incomplete. See Ammex, Inc. v. United States, 62 F. Supp. 2d
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1148, 1156 (Ct. Int’l Trade 1999) (“[A] party must provide the Court with reasonable,
non-speculative grounds to believe that materials considered in the decision-making process are
not included in the record.”).
Even though the issue seems centered on the fact that the department was unable to provide
the original record, the nub of the issue here is really whether the record is complete, not whether
it is the original record. 11 If the physicians had indicated that some e-mails were missing, the
hearing officer’s order was missing, or some other relevant document was missing, then the second
hearing justice could have ordered limited discovery or a remand to the department to locate or
provide the missing documents. The physicians have not made any kind of showing that
something is missing, but rather have speculated that something could be missing.
Even if we were to assume that the inconsistent indexes are sufficient to make a showing
that the administrative record is incomplete, it is our opinion that remand to the Superior Court for
the sole purpose of completing the record would not be in the best interests of justice in this case.
See Champlin’s Realty Associates, 989 A.2d at 449. We already have before us the Order and the
transcript of the hearing that gave rise to that Order. 12 This information is sufficient to answer
both the issue of whether the physicians’ complaint stated a claim on which relief could be granted
and whether the Order was self-executing. Remand would not bring forward any “new decisive
information.” See id. All that remand would accomplish is further delaying the final resolution of
11
Although the second hearing justice ordered the department to submit the original record and
the department failed to comply with this order, the entry of a default judgment is not appropriate.
Section 42-35-15(d) requires only that the agency transmit the original or a certified administrative
record. It does not expressly require the original record. Therefore, the second hearing justice
should not have confined the department to transmitting the original record, but instead should
have ordered that the department transmit either the original or a certified record. At that time, the
physicians could have challenged whether the relevant record was complete.
12
After oral argument and at our request, the department provided the transcript of the hearing
before the board.
- 17 -
this hoary case. It cannot escape our notice that this case is approaching seven years of age, but
that nothing substantive has been heard with respect to the charges lodged against the physicians.
We therefore quash the second hearing justice’s order entering default judgment against
the department, and we remand the case to the Superior Court with instructions that the Superior
Court remand the case to the Rhode Island Department of Health to continue the formal
administrative hearing forthwith and, we stress, without further delay.
IV
Conclusion
For the reasons set forth in this opinion, we affirm the order and judgment of the Superior
Court dated March 2, 2015, and quash the judgment of the Superior Court dated November 8,
2016. We affirm the dismissal of the physicians’ appeal as interlocutory. In addition, we quash
the entry of default judgment against the department. We remand this case to the Superior Court
with instructions that the court remand the case to the Rhode Island Department of Health and to
order the Department of Health to, without delay, continue the formal administrative hearing
concerning the charges and specifications leveled against the plaintiffs.
- 18 -
STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
SUPREME COURT – CLERK’S OFFICE
OPINION COVER SHEET
Mohammad Banki, M.D., D.M.D., et al. v. Michael D.
Title of Case
Fine, M.D., et al.
No. 2015-96-M.P.
Case Number No. 2017-17-M.P.
(PC 14-3692)
Date Opinion Filed January 22, 2020
Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
Indeglia, JJ.
Written By Associate Justice Francis X. Flaherty
Source of Appeal Providence County Superior Court
Judicial Officer From Lower Court Associate Justice Jeffrey A. Lanphear
For Plaintiffs:
Jennifer R. Cervenka, Esq.
Christy B. Durant, Esq.
Attorney(s) on Appeal Emily J. Migliaccio, Esq.
For Defendant:
Joseph K. Alston, Esq.
Michael W. Field, Esq.
SU‐CMS‐02A (revised June 2016)