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).

- 14 -
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.

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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.

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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)