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SJC-12119

             BHARANIDHARAN PADMANABHAN vs. BOARD OF
               REGISTRATION IN MEDICINE & another.1


                          June 27, 2017.


Board of Registration in Medicine.   Administrative Law,
     Decision.

      The petitioner, Bharanidharan Padmanabhan, appeals from a
judgment of a single justice of the county court dismissing his
petition for relief in the nature of certiorari pursuant to
G. L. c. 249, § 4. On May 18, 2017, we issued an order
affirming the single justice's judgment and indicated that this
opinion would follow.

     In 2010, Padmanabhan, a medical doctor, was terminated from
his position at Cambridge Health Alliance, a termination that he
alleges was based on false claims that he harmed patients and in
retaliation for certain actions that he took, including
reporting purported insurance fraud. Subsequent to his
termination, the Board of Registration in Medicine (board)
commenced disciplinary proceedings against him, and referred the
matter to the Division of Administrative Law Appeals (DALA).2
Following an evidentiary hearing that spanned eight days, the
DALA magistrate issued his recommended decision in August, 2015.
The board subsequently remanded the case to the magistrate, in

    1
        Division of Administrative Law Appeals.
    2
       The parties do not specifically state, and the record
before us does not appear to indicate, when exactly the Board of
Registration in Medicine began its investigation of Padmanabhan.
It issued its statement of allegations against him in July,
2014.
                                                                   2


January, 2016, asking the magistrate to elaborate on certain
parts of his decision and, among other things, to include
credibility determinations and clarify certain inconsistencies
in the decision. In March, 2016, the magistrate issued an order
indicating that he was preparing a revised recommended decision
for the board in response to the remand order.

     Shortly thereafter, Padmanabhan filed a "Renewed Complaint
in the Nature of a Petition for a Writ of Certiorari" in the
county court. In the petition he argued that his due process
rights had been violated in various ways during the course of
the board proceedings. He also argued that the recommended
decision issued by the magistrate in August, 2015, became final
in February, 2016, pursuant to 801 Code Mass. Regs.
§ 1.01(11)(c)(3) (1998), and that his petition thus did not stem
from, or seek relief from, an interlocutory ruling but rather
what was, in effect, a final decision of the board. The board
moved to dismiss the petition on the basis that the proceedings
before it had not yet concluded and that it had not yet issued a
final decision. The single justice dismissed the petition
without a hearing.3

     In his appeal, Padmanabhan continues to argue that the
magistrate's recommended decision became the board's final
decision pursuant to 801 Code Mass. Regs. § 1.01(11)(c)(3), and
that his appeal is thus not interlocutory. The regulation
provides that if an agency such as the board "fails to issue a
final decision within 180 days of the filing or re-filing of [a]
tentative decision, the initial decision shall become the final
decision of the [a]gency, not subject to further [a]gency
review." In Padmanabhan's view, the magistrate's recommended
decision, issued in August, 2015, became the board's final
decision in February, 2016, 180 days after it was issued. After
the board received the recommended decision, however, it
remanded the case to the magistrate for additional findings and

     3
       Padmanabhan previously filed a similar petition for relief
in the county court in 2014. In that petition, he sought review
of the DALA magistrate's denial of his motion to dismiss the
disciplinary proceedings. A single justice allowed DALA's
motion to dismiss the petition on the basis that the
magistrate's decision was interlocutory, not subject to judicial
review at that time, and that Padmanabhan would be entitled to
seek review pursuant to G. L. c. 112, § 64, at the conclusion of
the disciplinary proceedings before the board. Padmanabhan did
not appeal from the dismissal of this earlier petition.
                                                                   3


clarification, pursuant to 801 Code Mass. Regs.
§ 1.01(11)(c)(2), and it did so within 180 days of having
received the recommended decision. In other words, the remand
was timely. In that circumstance, according to the board, when
it recommits a tentative decision to the presiding officer -- in
this case the DALA magistrate -- the 180-day period referred to
in 801 Code Mass. Regs. § 1.01(11)(c)(3) will begin to run anew
when a revised decision is refiled. See 801 Code Mass. Regs.
§ 1.01(11)(c)(2) ("[t]he same procedural provisions applicable
to the initial filing of the tentative decision shall apply to
any re-filed tentative decision after recommital").

     We agree in the circumstances presented here that the
board's decision was not yet final when Padmanabhan filed his
petition in the county court, and that his attempt to have
review at that juncture was premature.4 We note as well that
when the board issues a final decision, the appropriate avenue
to seek review is by a petition pursuant to G. L. c. 112, § 64,
not via a petition for relief in the nature of certiorari, as
Padmanabhan filed here. See, e.g., Picciotto v. Appeals Court
(No. 2), 457 Mass. 1002, 1002, cert. denied, 562 U.S. 1044
(2010), and cases cited ("certiorari relief designed to correct
errors not otherwise reviewable by motion or by appeal"
[quotation and citation omitted]). The single justice, in
short, did not err or otherwise abuse his discretion in
dismissing the petition.

     Although Padmanabhan's argument regarding finality is
ultimately unavailing, we are not unsympathetic to his
situation. The board issued its statement of allegations
against him in July, 2014, almost three years ago, and

    4
       The circumstances here differ from those presented in
McGuiness v. Department of Correction, 465 Mass. 660 (2013),
where we also considered 801 Code Mass. Regs. § 1.01(11)(c)(3).
In that case, a Civil Service Commission (commission) vote on
whether to adopt a DALA magistrate's findings of fact and
recommended decision resulted in a two-to-two tie. See id. at
662. We concluded that the tie vote amounted to a "failure to
make a final decision" and, pursuant to 801 Code Mass. Regs.
§ 1.01(11)(c)(3), resulted in the magistrate's decision becoming
the final decision of the commission by default. See id. at
666. In doing so we noted that the commission "did not fail to
act for want of effort; it did not act because it could not,
given the voting deadlock." Id. Here, however, the board did
act.
                                                                   4


Padmanabhan claims that his medical career has essentially been
in limbo ever since. We do not condone the lengthy disciplinary
process to which Padmanabhan has been subjected. Indeed, we
have serious concerns about the potential for repeated
recommitals and, in turn, repeated re-settings of the 180-day
clock pursuant to 801 Code Mass. Regs. § 1.01(11)(c)(2), and to
the elongated process that could result. In this case, as it
turns out, the DALA magistrate issued his amended recommended
decision in August, 2016, while this appeal has been pending,
and the board has since adopted that decision and suspended
Padmanabhan's license.5 For Padmanabhan, therefore, it appears
that the end of the administrative process is imminent. He now
has the opportunity to pursue judicial review of the final
decision of the board, which he may do pursuant to G. L. c. 112,
§ 64. In that appeal, he will be free to raise issues related
to the procedural aspects of the disciplinary process and the
length of time that process took in his case.6

     For these reasons, we affirmed the judgment of the single
justice.

     Bharanidharan Padmanabhan, pro se.
     Samuel M. Furgang, Assistant Attorney General, for Board of
Registration in Medicine & another.

    5
       In January, 2017, while this appeal was pending,
Padmanabhan filed an "Emergency Injunction" in this court asking
for a stay of any further proceedings before the board. The
board opposed the attempt to prohibit it from issuing a final
decision. A single justice denied the motion.

     Counsel for the board stated at the oral argument of this
case that the board has since adopted, with some modifications,
the magistrate's amended recommended decision but that, at that
point, the board had not yet determined whether to impose
discipline. According to papers subsequently filed by
Padmanabhan, the board issued an order of indefinite suspension
on May 11, 2017, effective thirty days from that date.
    6
       In addition to the concerns expressed above, we also are
troubled by the fact that counsel for the board was unsure of
the practical consequences of Padmanabhan's situation (e.g.,
whether he can effectively practice medicine, and get paid to do
so, pending the board's decision). It behooves the board to
understand its own disciplinary process and the effect of that
process on those subject to it.
