“[R]eview of nonfinal agency actions should be undertaken only when the parties face the prospect of irreparable injury, with no practical means of procuring effective relief after the close of the proceedings.” (quotation marks omitted)
How later courts described this case
- “[R]eview of nonfinal agency actions should be undertaken only when the parties face the prospect of irreparable injury, with no practical means of procuring effective relief after the close of the proceedings.” (quotation marks omitted)
Written by the judges who cited it.
The opinion
MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2024 ME 43
Docket: Ken-23-266
Argued: February 8, 2024
Decided: May 30, 2024
Panel: STANFILL, C.J., and MEAD, HORTON, CONNORS, LAWRENCE, and DOUGLAS, JJ.
WADE T. HAMILTON
v.
BOARD OF LICENSURE IN MEDICINE
CONNORS, J.
[¶1] Wade T. Hamilton, M.D., appeals from a denial by the Superior Court
(Kennebec County, Murphy, J.) of his petition pursuant to M.R. Civ. P. 80C
challenging an order of the Board of Licensure in Medicine directing that he
undergo a neuropsychological evaluation.1 We dismiss the appeal as
nonjusticiable because there has been no final agency action and, in any event,
the challenged order is moot because Hamilton allowed his medical license to
lapse.
1 Hamilton argues that the Board abused its authority, that the Board violated his rights to due
process and free speech, and that the Office off the Attorney General violated 5 M.R.S. § 9055 (2024).
Our dismissal of the appeal as nonjusticiable removes any need to consider these arguments.
2
I. BACKGROUND
[¶2] “The following facts are drawn from the administrative record.”
See Utsch v. Dep’t of Env’t Prot., 2024 ME 10, ¶ 4, ---A.3d---.2
[¶3] In July 2021, Hamilton, a pediatric cardiologist, recommended that
a patient obtain a cardiac magnetic resonance imaging scan (MRI) because, he
said, there was “probably something wrong with [the patient’s] heart.” He told
the patient, however, that because she had received the COVID-19 vaccine, she
had been “injected with magnets and heavy metals” and it would not be safe for
her to enter an MRI machine. The patient’s mother subsequently contacted the
nurse practitioner who had referred the patient to Hamilton and expressed that
Hamilton had upset her and her daughter with his statements. In response, the
nurse practitioner filed a report regarding Hamilton with the Board. See 24
M.R.S. § 2505 (2024).3
2Hamilton challenged the Board’s order in a petition for judicial review pursuant to the Maine
Administrative Procedure Act, see 5 M.R.S. §§ 11001-11008 (2024), and included as an independent
claim a declaratory judgment action pursuant to 14 M.R.S. §§ 5951-5963 (2024). See M.R. Civ. P.
80C(i). He has not, however, pursued on appeal the Superior Court’s rejection of the declaratory
judgment claim. Therefore, we rely exclusively on the administrative record.
3 Title 24 M.R.S. § 2505 (2024) provides in relevant part:
Any professional competence committee within this State and any physician or physician
assistant licensed to practice or otherwise lawfully practicing within this State shall, and any
other person may, report the relevant facts to the appropriate board relating to the acts of
any physician or physician assistant in this State if, in the opinion of the committee, physician,
physician assistant or other person, the committee or individual has reasonable knowledge
of acts of the physician or physician assistant amounting to gross or repeated medical
3
[¶4] In conjunction with its investigation following the report, the Board
opened a complaint proceeding and requested that Hamilton undergo an
evaluation pursuant to 32 M.R.S. § 3286 (2024).4 Over time, this request
evolved into a demand that Hamilton undergo a neuropsychological evaluation.
This demand was contained in an order issued within the administrative
complaint docket. The order was entitled “Order Directing Evaluation,” stated
that it was issued as a “formal interim Order,” and included “preliminary
malpractice, misuse of alcohol, drugs or other substances that may result in the physician’s or
the physician assistant’s performing services in a manner that endangers the health or safety
of patients, professional incompetence, unprofessional conduct or sexual misconduct
identified by board rule. The failure of any such professional competence committee or any
such physician or physician assistant to report as required is a civil violation for which a fine
of not more than $1,000 may be adjudged.
4 Title 32 M.R.S. § 3286 (2024) provides in relevant part:
Upon its own motion or upon complaint, the board, in the interests of public health, safety
and welfare, shall treat as an emergency a complaint or allegation that an individual licensed
under this chapter is or may be unable to practice medicine with reasonable skill and safety
to patients by reason of mental illness, alcohol intemperance, excessive use of drugs, narcotics
or as a result of a mental or physical condition interfering with the competent practice of
medicine. In enforcing this paragraph, the board may compel a physician to submit to a
mental or physical examination by a physician or another person designated by the board.
Failure of a physician to submit to this examination when directed constitutes an admission
of the allegations against the physician, unless the failure was due to circumstances beyond
the physician’s control, upon which a final order of disciplinary action may be entered
without the taking of testimony or presentation of evidence. A physician affected under this
paragraph must, at reasonable intervals, be afforded an opportunity to demonstrate that the
physician can resume the competent practice of medicine with reasonable skill and safety to
patients.
For the purpose of this chapter, by practicing or by making and filing a biennial license to
practice medicine in this State, every physician licensed under this chapter who accepts the
privilege to practice medicine in this State is deemed to have given consent to a mental or
physical examination when directed in writing by the board and to have waived all objections
to the admissibility of the examiner’s testimony or examination reports on the grounds that
the testimony or reports constitute a privileged communication.
4
findings” to support its demand. Consistent with the language of section 3286,
the order warned Hamilton that failure to undergo the evaluation “may
constitute an admission of the allegations against him.”
[¶5] In response, Hamilton filed a petition for judicial review of agency
action pursuant to M.R. Civ. P. 80C, challenging the order.5 After briefing, the
Superior Court issued a decision denying the petition and entering judgment
for the Board. Shortly before the issuance of that decision, Hamilton’s license
in Maine expired and he did not renew it.6
II. DISCUSSION
A. The Board’s interim order was not final agency action.
[¶6] Under the Maine Administrative Procedure Act (APA), we review
“final agency action.” 5 M.R.S. § 11001(1) (2024). We review nonfinal action
only if the review of the final agency action “would not provide an adequate
remedy.” Id.
[¶7] As the challenged order states, consistent with section 3286, if
Hamilton refused to undergo an evaluation, the Board might deem that refusal
to be an admission of the allegations made against him. Any challenge that
5 As noted above, the petition added a subsequently abandoned claim for declaratory relief.
6 The administrative record indicates that Hamilton’s license expired on May 23, 2023. Hamilton
does not contest the Board’s assertion that he took no steps to renew his license.
5
Hamilton wished to make to the order directing the evaluation was fully
reviewable at the conclusion of the complaint proceedings, providing Hamilton
with an adequate remedy. Thus, his petition is premature and the order is
unreviewable under the APA. See Ne. Occupational Exch., Inc. v. Bureau of
Rehab., 473 A.2d 406, 410 (Me. 1984) (“[R]eview of nonfinal agency actions
should be undertaken only when the parties face the prospect of irreparable
injury, with no practical means of procuring effective relief after the close of the
proceedings.” (quotation marks omitted)).
B. Hamilton’s appeal is moot.
[¶8] Even if not premature, Hamilton’s challenge is moot. Because he is
no longer licensed in Maine, the Board no longer has authority to pursue his
evaluation. See 32 M.R.S. § 3286 (“[T]he board, in the interests of public health,
safety and welfare, shall treat as an emergency a complaint or allegation that
an individual licensed under this chapter is or may be unable to practice
medicine with reasonable skill and safety to patients by reason of mental
illness, alcohol intemperance, excessive use of drugs, narcotics or as a result of
a mental or physical condition interfering with the competent practice of
medicine. In enforcing this paragraph, the board may compel a physician to
6
submit to a mental or physical examination by a physician or another person
designated by the board.”).
[¶9] “Except in extraordinary circumstances . . . we will not address
issues that have lost their controversial vitality.” A.I. v. State, 2020 ME 6, ¶ 8,
223 A.3d 910. We may, in our discretion, see King Res. Co. v. Env’t Improvement
Comm’n, 270 A.2d 863, 870 (Me. 1970); 1A C.J.S. Actions § 80, apply an exception
to this rule and consider an appeal that is moot if
(1) sufficient collateral consequences will result from the
determination of the questions presented so as to justify relief;
(2) the appeal contains questions of great public concern that, in
the interest of providing future guidance to the bar and public we
may address; or (3) the issues are capable of repetition but evade
review because of their fleeting or determinate nature.
A.I., 2020 ME 6, ¶ 9, 223 A.3d 910. None of these exceptions apply here.
[¶10] Citing the first exception, Hamilton argues that while the complaint
remains pending “[he] cannot obtain licensure in Maine or elsewhere.” In
support of this assertion, he cites a website that he states shows that
“[a]pplications for clinical practice that are received while a complaint or
investigation is outstanding against the licensee in any jurisdiction shall be
pended and action on the application held until the Board has received results
of final action on all complaints and investigations.” Even if we could accept
this assertion as correct, it would indicate merely that a renewal application
7
will be suspended until the complaint is resolved, which only underscores that
Hamilton should have completed the complaint proceeding.
[¶11] Hamilton also complains about the stigma of having his name on
the Board’s disciplinary proceeding webpage. But that a disciplinary
proceeding was commenced, whether that proceeding had merit or not, is a
matter of fact that cannot be undone. Again, Hamilton’s avenue for redress was
to proceed through the complaint process and, if dissatisfied with that result,
to appeal from the Board’s final ruling.
[¶12] Finally, Hamilton argues that this case meets the public interest
exception to mootness and is capable of repetition. We disagree and, in any
event, decline his invitation to rule on the arguments he raises given his failure
to exhaust his administrative remedies and to present a ripe petition for review.
The entry is:
Judgment vacated. Remanded to the Superior
Court for dismissal of the petition for judicial
review as nonjusticiable.
8
James E. Belleau, Esq., and Adam R. Lee, Esq. (orally), Trafton, Matzen, Belleau
& Frenette, LLP, Auburn, for appellant Wade T. Hamilton
Aaron M. Frey, Attorney General, and Michael B. Miller, Asst. Atty. Gen. (orally),
Office of the Attorney General, Augusta, for appellee Board of Licensure in
Medicine
Kennebec County Superior Court docket number AP-2022-41
FOR CLERK REFERENCE ONLY