David McGilvray, individually and on behalf of the State of Alabama v. William M. Perkins, individually and in his official capacity as executive director of the Alabama Board of Medical Examiners (Appeal from Montgomery Circuit Court: CV-23-900747).

Rel: June 21, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern

Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts,

300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other

errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA

OCTOBER TERM, 2023-2024

_________________________

SC-2023-0966

_________________________

David McGilvray, individually and on behalf of the State of

Alabama

v.

William M. Perkins, individually and in his official capacity as

executive director of the Alabama Board of Medical Examiners,

et al.

Appeal from Montgomery Circuit Court

(CV-23-900747)

SC-2023-0966

MITCHELL, Justice.

After being fired from the Alabama Board of Medical Examiners

("the Medical Board") for sending a sexually explicit email to his

coworkers, David McGilvray brought two lawsuits in an effort to obtain

retiree-health-insurance benefits. In the first suit, he sued the executive

director of the Medical Board and the CEO of the Local Government

Health Insurance Board ("the Insurance Board"); but the Montgomery

Circuit Court entered summary judgment against him because his claims

were time-barred. In his second suit -- the subject of this appeal --

McGilvray sued the executive director of the Medical Board and the

members of the Medical Board ("the Medical Board defendants") in both

their official and individual capacities. 1 The Medical Board defendants

moved to dismiss his complaint based on, among other things, the

1The Medical Board defendants are William M. Perkins, the

executive director of the Medical Board, and the members of the Medical

Board: Mark H. LeQuire, Charles M.A. Rogers IV, Aruna T. Arora,

Gregory W. Ayers, Julia L. Boothe, Tonya E. Bradley, Eli L. Brown,

Hernando D. Carter, Nina S. Ford Johnson, Beverly F. Jordan, George T.

Koulianos, Dick Owens, William Jay Suggs, David R. Thrasher, Jane

Ann Weida, and Amanda J. Williams.

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doctrines of State immunity and res judicata. The Montgomery Circuit

Court then dismissed the suit. We affirm.

Facts and Procedural History

McGilvray worked as an investigator for the Medical Board for over

16 years. In March 2019, Sarah Moore, the executive director of the

Medical Board at the time, fired McGilvray for using his work computer

to access and email sexually explicit material to his coworkers. As part

of the termination, the Medical Board asked the Insurance Board -- the

entity that administers the Medical Board's employee-health-insurance

plan -- to cancel McGilvray's health-insurance benefits.

The day he received the letter terminating his employment,

McGilvray sent a letter to the Medical Board, its members, and Moore

stating that, because the Medical Board's members had not yet voted to

ratify his termination, he was retiring. He later wrote a letter to the

Insurance Board asking it not to cancel his health insurance because, he

said, as a retiree, he was entitled to retiree-health-insurance benefits. In

April 2019, the Medical Board ratified the termination of McGilvray's

employment. A week later, the Insurance Board denied his request for

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retiree-health-insurance benefits because, it said, he had been fired for

cause and had not retired.

In March 2020, McGilvray filed a claim with the Alabama Board of

Adjustment, seeking retiree-health-insurance benefits as well as backpay

for accrued vacation time and sick leave. The Board of Adjustment

dismissed his claim for lack of subject-matter jurisdiction. Then, in

August 2021, McGilvray filed a grievance with the Insurance Board

asking for an administrative review regarding his entitlement to retiree-

health-insurance benefits. In his request for an administrative review,

he argued that, because he had been covered by the Medical Board's

health plan for more than 10 years and had been 66 years old at the time

his employment with the Medical Board ended, he was entitled to retiree-

health-insurance benefits under the terms of the Local Government

Health Insurance Plan. After reviewing the grievance, the Insurance

Board denied his request.

In April 2022, McGilvray filed a lawsuit ("the prior action") in the

Montgomery Circuit Court against the executive director of the Medical

Board and the CEO of the Insurance Board in their official capacities. In

his complaint, McGilvray sought injunctive and declaratory relief to

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obtain what he had requested from the Insurance Board -- retiree-health-

insurance benefits for him and his family. All parties moved for summary

judgment.

In a reasoned order, the circuit court denied McGilvray's motion for

summary judgment and granted the defendants' motions. In doing so,

the court held that McGilvray's claims were governed by the Alabama

Administrative Procedure Act, § 41-22-1 et seq., Ala. Code 1975.

Accordingly, the court said, McGilvray had been required to file his

claims within 30 days of the final administrative decision by the

Insurance Board. See § 41-22-20(d), Ala. Code 1975. Because McGilvray

had filed his lawsuit well after the expiration of that 30-day limitations

period -- the final agency decision was rendered in September 2021 and

McGilvray did not file suit until April 2022 -- the circuit court held that

his claims were time-barred. McGilvray timely filed a postjudgment

motion to alter, amend, or vacate the judgment, which the circuit court

denied. McGilvray did not appeal.

Six months later, McGilvray initiated another action in the

Montgomery Circuit Court. This time he sued the Medical Board

defendants in their official and individual capacities for the same

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injunctive relief that he had sought in the prior action -- again, to obtain

retiree-health-insurance benefits for him and his family. He also added

a breach-of-contract claim for damages and injunctive relief, as well as a

claim, on his own behalf and purportedly on behalf of the State, alleging

that the Medical Board defendants had committed "nonfeasance,

misfeasance, and malfeasance."

The Medical Board defendants moved to dismiss the complaint

against them, arguing that res judicata barred McGilvray's new claims

and that the Medical Board defendants were entitled to State and State-

agent immunity. In doing so, they attached the record from the prior

action. The circuit court granted the Medical Board defendants' motion

to dismiss without stating its rationale and denied McGilvray's

subsequent motion to alter, amend, or vacate the judgment. McGilvray

appealed.

Standard of Review

This Court reviews judgments of dismissal de novo. Johnson v.

Washington, [Ms. SC-2022-0897, June 30, 2023] ___ So. 3d ___, ___ (Ala.

2023). We must determine whether, "when the allegations of the

complaint are viewed most strongly in the pleader's favor, it appears that

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the pleader could prove any set of circumstances that would entitle her

to relief." Nance v. Matthews, 622 So. 2d 297, 299 (Ala. 1993).

Analysis

On appeal, McGilvray asks us to reverse the circuit court's

judgment because, he says, the Medical Board defendants are not

entitled to State or State-agent immunity and his claims are not barred

by res judicata. We reject his request. As discussed below, his breach-

of-contract claim, to the extent it seeks damages from the Medical Board

defendants in their official capacities, is barred by State immunity; and

to the extent that claim seeks injunctive relief, it is barred by res judicata.

Likewise, all of his other claims are barred by res judicata.

A. State Immunity

State immunity "removes subject-matter jurisdiction from the

courts." Alabama State Docks Terminal Ry. v. Lyles, 797 So. 2d 432, 435

(Ala. 2001). Consequently, we must first address whether McGilvray's

claims are barred by that doctrine. See Aland v. Graham, 287 Ala. 226,

229, 250 So. 2d 677, 678 (1971) (stating that this Court "will take notice

of the question of jurisdiction at any time or even ex mero motu").

Because State immunity does not shield the Medical Board defendants

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from claims brought against them in their individual capacities, that

doctrine bears only on McGilvray's official-capacity claims. See Ex parte

Pinkard, 373 So. 3d 192, 201 (Ala. 2022).2

Article I, § 14, of the Alabama Constitution of 2022 provides that

"the State of Alabama shall never be made a defendant in any court of

law or equity." This Court has long held that § 14's grant of State

immunity strips courts of jurisdiction over any claim that seeks to "take

away any property of the State, or fasten a lien on it, or interfere with

disposition of funds in the treasury, or compel the State, indirectly, by

controlling its officers or employees, to perform any contract or to pay any

debt." Wallace v. Malone, 279 Ala. 93, 98, 182 So. 2d 360, 363 (1964).

Because a claim against a State officer in his or her official capacity

"would directly affect a contract or property right of the State," McGilvray

cannot recover damages on his breach-of-contract claim against the

2State-agent immunity, which is relevant to McGilvray's

individual-capacity claims, is not jurisdictional. See Ex parte Sawyer,

984 So. 2d 1100, 1107 (Ala. 2007). We need not address its application

here.

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Medical Board defendants in their official capacities. Ex parte Cooper,

[Ms. SC-2023-0056, Aug. 25, 2023] ___ So. 3d ___, ___ (Ala. 2023).

There are, however, certain types of claims against State officers in

their official capacities that are not shielded by § 14 because they do not

seek the State's funds or to impair the State's property or contractual

rights. See Ex parte Moulton, 116 So. 3d 1119, 1131 (Ala. 2013) (listing

several such claims). McGilvray argues that his official-capacity claims

fall outside § 14 for several reasons. Specifically, he contends, his claims

are allowed by Moulton because they seek only "to compel State officials

to perform their legal duties," "to compel State officials to perform

ministerial acts," and injunctive relief based on allegations that the

"State officials in their representative capacity … acted fraudulently, in

bad faith, beyond their authority, or in a mistaken interpretation of law."

McGilvray's brief at ix; see also Moulton, 116 So. 3d at 1137. McGilvray's

official-capacity claims for injunctive relief are the types of claims that,

as Moulton recognized, fall outside of § 14's protection.

The Medical Board defendants nonetheless argue that State

immunity should apply because, they contend, McGilvray's official-

capacity claims are factually unsupported. But the Medical Board

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defendants' argument goes to the merits of McGilvray's claims (that is,

whether McGilvray can eventually succeed), not this Court's subject-

matter jurisdiction (that is, whether McGilvray has presented claims

that fall within one or more of the Moulton categories). Accordingly,

although State immunity bars McGilvray's official-capacity breach-of-

contract claim for damages, that doctrine does not shield the Medical

Board defendants from his other claims for relief.

B. Res Judicata

The Medical Board defendants argue that, to the extent

McGilvray's claims against them are not barred by immunity, we should

affirm the circuit court's dismissal of those claims based on res judicata.

Res judicata precludes "the relitigation of a claim that was, or could have

been, adjudicated in a prior action." Bradberry v. Carrier Corp., 86 So.

3d 973, 985 (Ala. 2011). For res judicata to apply there must be "(1) a

prior judgment on the merits, (2) rendered by a court of competent

jurisdiction, (3) with substantial identity of the parties, and (4) with the

same cause of action presented in both actions." Equity Res. Mgmt., Inc.

v. Vinson, 723 So. 2d 634, 636 (Ala. 1998). All those elements are met

here.

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SC-2023-0966

1. Prior Judgment

First, there was a prior judgment on the merits. In November 2022,

in an almost identical case, the Montgomery Circuit Court entered

summary judgment against McGilvray. That court held that McGilvray's

claims were barred by the statute of limitations for administrative

appeals. See § 41-22-20(d). McGilvray did not appeal the judgment.

And, contrary to McGilvray's contentions, a judgment based on the

statute of limitations is a judgment on the merits. See Plaut v.

Spendthrift Farm, Inc., 514 U.S. 211, 228 (1995) (explaining that "[t]he

rules of finality … treat a dismissal on statute-of-limitations grounds the

same way they treat a dismissal for failure to state a claim, for failure to

prove substantive liability, or for failure to prosecute: as a judgment on

the merits").

2. Competent Jurisdiction

The second element of res judicata -- that the prior court had

jurisdiction -- is also satisfied. The Insurance Board has "complete

discretion and final authority to interpret the terms and conditions of the

[Local Government Health Insurance Program]." § 11-91A-9, Ala. Code

1975. If the Insurance Board denies a person benefits, then the

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Insurance Board's organic statute governs how and when that person

may appeal.3 That statute provides that a person may appeal an adverse

decision from the Insurance Board to a claims administrator. Id. If the

person receives an adverse determination from a claims administrator,

he or she may appeal further to the Montgomery Circuit Court, which

has exclusive jurisdiction over appeals from the denial of benefits by the

Insurance Board. Id.

In substance, the prior action was McGilvray's attempt to appeal

an adverse agency decision to the Montgomery Circuit Court. After the

Insurance Board denied him retiree-health-insurance benefits, he

appealed that decision within the agency and lost. McGilvray then asked

the Montgomery Circuit Court to declare that he is a retiree under the

terms of the program and that he and his dependents are entitled to

retiree-health-insurance benefits, thus challenging the Insurance

Board's decision. Because we treat a filing "according to its substance,

rather than its form or its style," Ex parte Bender Shipbuilding & Repair

3An "organic statute" is "[a] law that establishes an administrative

agency or local government." Black's Law Dictionary 1705 (11th ed.

2019).

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Co., 879 So. 2d 577, 584 (Ala. 2003), McGilvray's challenge was governed

by the rules set forth in the Insurance Board's organic statute.

Consequently, the Montgomery Circuit Court -- where McGilvray filed

the prior action -- had exclusive jurisdiction over the prior action. The

decision in the prior action was therefore "rendered by a court of

competent jurisdiction." Equity Res. Mgmt., Inc., 723 So. 2d at 636.

McGilvray nonetheless insists that the Montgomery Circuit Court

was without jurisdiction in the prior action because, he says, the circuit

court's conclusion that his complaint was time-barred divested it of

jurisdiction. But the statute of limitations is an affirmative defense, not

a jurisdictional bar. See Cathedral of Faith Baptist Church, Inc. v.

Moulton, 343 So. 3d 500, 508 (Ala. 2021). Accordingly, whether a claim

is time-barred does not implicate the jurisdiction of a court.

3. Substantial Identity

Moving to the third element of res judicata, McGilvray argues that,

because he has now brought a claim on behalf of the State, the parties

are not substantially identical. But McGilvray does not provide any

authority for the proposition that he may sue on behalf of the State. And

this Court has held that "[i]t is manifest that this tribunal can recognize

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no other representative of the State than the Attorney-General," absent

specific statutory authority to the contrary. Ex parte State (In re

Stephenson), 113 Ala. 85, 86, 21 So. 210, 210 (1897); see, e.g., § 6-6-591,

Ala. Code 1975 (authorizing quo warranto actions "in the name of the

[S]tate"). Section 6-2-33(3), Ala. Code 1975 -- the statute on which

McGilvray relies for his claim on behalf of the State -- is not an exception

to that rule; it merely states that certain actions "brought by or on behalf

of the State" have a 10-year limitations period. Because McGilvray has

not presented any reasoned argument as to why he can bring this suit on

behalf of the State, he cannot proceed on behalf of the State. As a result,

the plaintiffs in this case and the prior action are completely identical.

4. Same Cause of Action

Finally, this case and the prior action involve the same cause of

action. McGilvray argues that this case and the prior action are different

because he has altered the wording of his complaint, added a breach-of-

contract claim, and brought a claim purportedly on behalf of the State.

But as noted above, McGilvray has not provided any reasoned argument

in support of his claim purportedly on behalf of the State. He therefore

cannot rely on that claim to introduce a different cause of action.

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As for his other claims, the doctrine of res judicata " ' "applies not

only to the exact legal theories advanced in the prior case, but to all legal

theories and claims arising out of the same nucleus of operative facts." ' "

Greene v. Jefferson Cnty. Comm'n, 13 So. 3d 901, 913 (Ala. 2008) (quoting

Old Republic Ins. Co. v. Lanier, 790 So. 2d 922, 928 (Ala. 2000)). Here,

all of McGilvray's remaining claims -- to the extent they are not barred

by State immunity or improperly brought on behalf of the State -- come

from the same set of facts as his claims in the prior action: the

termination of his employment and the Insurance Board's denial of his

request for retiree-health-insurance benefits. He had the "opportunity to

litigate" those claims in 2022 but did not do so. Bond v. McLaughlin, 229

So. 3d 760, 767 (Ala. 2017). McGilvray's remaining claims are therefore

barred by res judicata.

Conclusion

McGilvray has merely refiled the same lawsuit for retiree-health-

insurance benefits using different labels, and the circuit court correctly

dismissed it. We affirm the judgment.

AFFIRMED.

Parker, C.J., and Wise, Bryan, Stewart, and Cook, JJ., concur.

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Shaw, Sellers, and Mendheim, JJ., concur in the result.

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