Late Administrative Appeal Dismissed — ARAP 4(a) Could Not Save Appeal

A physician missed administrative and judicial deadlines for appealing a decision of the Alabama State Board of Medical Examiners. On its own motion, the Court of Civil Appeals dismissed his appeal. Brunson v. Ala. State Bd. of Med. Examiners, No. 2090751 (Ala. Civ. App. Mar. 25, 2011).

The Board revoked the physician’s certificate to dispense controlled substances. This occurred on February 17, 2010; three months later, on May 17, 2010, he appealed the revocation to the Court of Civil Appeals. The court has exclusive appellate jurisdiction of such decisions under Ala. Code § 34-24-380(c), as enacted in 2008. 

The appellate court determined that the doctor’s appeal was late. Section 20-5-53(b) of the Alabama Code provides that a party may obtain judicial review of an order revoking a controlled-substances certificate by filing a written petition for review in accordance with § 41-22-20. That statute in turns sets out two relevant deadlines. First, the aggrieved party must file a notice of appeal with the Board within 30 days of receiving the adverse decision. Second, the party must file a petition for judicial review in court within 30 days of filing the administrative notice of appeal.

The doctor had missed both deadlines. Although his appellate docketing statement indicated that he had filed a “notice of intent to appeal” on March 24, 2010 — itself more than 30 days after the Board’s decision — the appellate record did not show that a notice of appeal was ever filed with the Board. Moreover, “and perhaps most saliently,” the doctor did not file a petition for judicial review in the Court of Civil Appeals until May 17, 2010.

The appeal could not be saved by the normal 42-day filing deadline of Rule 4(a) of the Alabama Rules of Appellate Procedure. The appellate court first doubted the “facial applicability of Rule 4(a) in a setting in which there is no ‘trial court’ with which to file a notice of appeal.” Even if Rule 4(a) could apply to administrative decisions, the legislature had effectively abrogated that rule (in this setting) by subjecting appeals from Board decisions on controlled-substances certificates to the requirements of § 41-22-20. Because the physician had not complied with that statute’s deadlines, his appeal was dismissed.