                   IN THE COURT OF APPEALS OF IOWA

                                  No. 16-1084
                            Filed November 8, 2017

WELLS PHARMACY NETWORK, L.L.C.
    Plaintiff-Appellant,

vs.

IOWA BOARD OF PHARMACY,
     Defendant-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg,

Judge.



      A pharmacy appeals the district court’s ruling dismissing its petition for

immediate judicial review of an agency’s procedural order prior to the scheduled

contested case hearing. AFFIRMED.




      Michael M. Sellers of Sellers, Galenbeck & Nelson, Des Moines, for

appellant.

      Thomas J. Miller, Attorney General, and Meghan L. Gavin, Assistant

Attorney General, for appellee.



      Considered by Danilson, C.J., McDonald, J., and Scott, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
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SCOTT, Senior Judge.

       This case involves the interplay of the doctrine of exhaustion of

administrative remedies and the statutory provision allowing immediate judicial

review of a procedural order. An administrative procedural ruling is subject to

immediate judicial review if two conditions are satisfied: “[1] all adequate

administrative remedies have been exhausted and [2] review of the final agency

action would not provide an adequate remedy.” Iowa Code § 17A.19(1) (2015).

Upon our review, we affirm the district court’s dismissal of Florida-based Wells

Pharmacy Network, L.L.C.’s petition seeking immediate judicial review of the

Iowa Board of Pharmacy’s procedural order prior to the scheduled contested

case proceeding.       See Salsbury Labs. v. Iowa Dep’t of Enviorn Quality, 276

N.W.2d 830, 837 (Iowa 1979) (“Under section 17A.19(1), however, an

inadequate administrative remedy still must be exhausted if judicial review from

the final agency action is adequate. This test is not so easily met.”).

       Agency Action.         On November 4, 2015, the board commenced a

contested case proceeding by issuing a “statement of charges and notice of

hearing” against Wells. Wells responded with a “combined motion to dismiss and

memorandum” as to the first four counts charged.1 After conducting a hearing,

the board’s written ruling noted the “motion to dismiss tests the legal sufficiency

of a challenged pleading,” addressed the pharmacy’s challenge to each count in

detail, and denied the motion.2


1
  The final two counts concerned the pharmacy’s failure to report the discipline assessed
against it by the state of Maine.
2
   The board’s January 2016 ruling stated: count I (dispensing a prescription without
verifying a valid patient-practitioner relationship), the correction of a scrivener’s error to
                                             3

       Wells Petition for Judicial Review. Prior to the contested case hearing

scheduled for March 2016, Wells sought immediate judicial review by filing a

“petition for judicial review and request for stay.”         Wells alleged the board’s

“procedural order [is] reviewable under Iowa Code section 17A.19(1),” claiming it

“should not be forced to proceed through a time-consuming and expensive fact

finding process.” Wells asked the district court to remand with directions for the

board to grant its motion to dismiss the four charges.

       Board Motion to Dismiss Judicial Petition. In response, on February 18,

2016, the board filed a motion to dismiss the petition under the doctrine of

exhaustion of administrative remedies, which provides the pharmacy may obtain

judicial review of agency action only after that action is officially sanctioned and

thereafter reviewed within the agency to the fullest extent provided by law. See

North River Ins. Co. v. Iowa Div. of Ins., 501 N.W.2d 542, 545 (Iowa 1993); see

also City of Des Moines v. City Dev. Bd., 633 N.W.2d 305, 309 (Iowa 2001)

(noting the doctrine “exists principally to prevent courts from interfering with the

administrative process until it has been completed”). The board argued “Wells is

essentially asking this court to grant [an] immediate judicial review of a

procedural ruling,” and while there is a “narrow exception” to the statutory

“requirement for final agency action,” the pharmacy’s petition does not meet


charge the applicable administrative rule leaves the pharmacy with sufficient time to
prepare for the hearing; count II (regularly compounding commercially available
products) the issue requires factual determinations after an evidentiary hearing; count III
(failing to provide records to the board in a timely matter) the board’s rules do not use
different timeliness standards for its non-emergency record requests; and count IV
(failure to perform a prospective drug use review) the charge is adequately pled, and if
Wells “requires additional articulation” of the facts supporting the count, it may take
action under the administrative rules to (1) file a request for a more definite and detailed
statement and (2) conduct discovery to obtain additional information.
                                           4

either of the requirements for “immediate review.” See Pro Farmer Grain v. Iowa

Dep’t of Agric., 427 N.W.2d 466, 467 (Iowa 1988); Richards v. Iowa State

Commerce Comm’n, 270 N.W.2d 616, 619 (Iowa 1978). The board concluded, if

the district court finds Wells has made “a valid request for immediate judicial

review, every prehearing order in a contested case would be subject to such

review, undermining the entire administrative law scheme.”

       Pharmacy Resistance to Motion to Dismiss. Wells resisted, claiming it

was entitled to proceed under the “futility exception” as the exhaustion doctrine

“has never been thought to be absolute.” Salsbury Labs., 276 N.W.2d at 837.

Therefore, if the pharmacy board “is incapable of granting the relief sought during

the subsequent administrative proceedings, a fruitless pursuit of these remedies

is not required.” Id. As to the board being “incapable” and later proceedings

being “fruitless,” Wells argued it had “presented matters of law to the board in a

motion to dismiss, and obtained a ruling. There is no indication or likelihood that

the board will modify its ruling.” Thus, the “available administrative remedy has

been exhausted and re-litigation of issues is futile.” Finally, “Wells submits that it

should not be required to litigate matters of law twice before the same agency to

achieve exhaustion of administrative remedies.”3




3
  As noted before the district court, Wells argued the board should not have a second
chance during a contested case hearing as such a hearing would be “futile.” On appeal
and for the first time, Wells contends that the board already had “two chances to review
its jurisdiction; once while charging Wells and again when Wells’s motion to dismiss was
presented[, that] is enough.” Because this argument was not presented to the district
court, we decline to consider it on appeal. See Meier v. Senecaut, 641 N.W.2d 532, 537
(Iowa 2002) (ruling it is not a sensible exercise of appellate review to resolve an issue
without the benefit of a lower court determination). In any event, under the district
court’s thorough analysis, this argument is similarly meritless.
                                           5

       District Court Ruling. The district court’s April 5, 2016 order granted the

board’s motion to dismiss the petition for judicial review, stating chapter 17A

“serves an important check on agency decision-making, ensuring the agency has

a chance to correct mistakes before the decision is sent to the district court.” The

court found persuasive the following quote from the Iowa Supreme Court:

       [A]lthough the Sierra Club argues it would be futile to ask the
       agency to reverse its own prior decision, we do not agree with this
       position. For more than thirty-five years, agencies in this state have
       decided many issues within their purview. We have no evidence to
       suggest agencies will conduct declaratory order proceedings in a
       biased, unprofessional manner and without regard for the rules
       promulgated by the legislature. As one [Pennsylvania] court aptly
       noted, “[c]ourts should not lightly assume the futility of a party’s
       pursuing an administrative remedy; instead, it is to be assumed that
       the administrative process, if given the opportunity, will discover
       and correct its errors.”

Sierra Club Iowa Chapter v. Iowa Dep’t of Transp., 832 N.W.2d 636, 647-48

(Iowa 2013) (citation omitted). Despite Wells’s belief “another decision is not

possible,” the district court found the pharmacy board “is capable of granting the

relief sought and should be afforded a chance to correct errors it might find.”

Thus, “Wells has not demonstrated” the pharmacy board “is incapable of granting

the relief sought.   At this time, Wells has not given” the pharmacy board “a

chance to correct its own errors, should it find any.” The court dismissed Wells’s

petition for judicial review for failing to exhaust “all administrative remedies.”

       Post-ruling Litigation. Wells filed motion to amend and enlarge in April

2016, arguing “because the agency failed to correct errors of law when given one

full and clear opportunity to do so, further attempts are futile and unnecessary. A

petition for judicial review is now appropriate.” On June 22, the district court

summarily denied the motion, affirming the entirety of its prior ruling.
                                              6

       Wells’s Current Appeal.          On June 24, 2016, Wells filed a “notice of

interlocutory appeal.”      The supreme court granted a stay of agency action

pending resolution of the appeal and accepted the appeal as an appeal taken as

a matter of right, not as an interlocutory appeal.4                     On appeal, Wells

acknowledges its petition asked the district court to review an “intermediate

agency order” and seeks a remand for the district court to consider its petition for

judicial review. We review for correction of errors at law. Ghost Player, L.L.C. v.

State, 860 N.W.2d 323, 326 (Iowa 2015). We find no error in the district court’s

thoughtful analysis, and we agree with the court’s reasoning and conclusions.

Further discussion would not augment or clarify existing case law. See Iowa Ct.

R. 21.26(1)(a), (c)-(e). We therefore affirm by memorandum opinion.

       AFFIRMED.

SUMMARY

This case involves the interplay of the doctrine of exhaustion of administrative
remedies and the statutory provision allowing immediate judicial review of a
procedural order. OPINION HOLDS: We affirm by memorandum opinion the
district court’s decision that dismissed a Florida-based pharmacy’s petition
seeking immediate judicial review because of the pharmacy’s failure to exhaust
administrative remedies.




4
  Although Wells’s appellate brief asked the Iowa Supreme Court to retain this matter in
order to resolve whether there is “vitality to the ‘futility exception,’” the court transferred
the appeal to this court.
