Former Pharmacist Wins Case Against Pharmacy Board, But Loses Attorney Fee Award—Why?

Is a pharmacy board protected from having to pay attorney fees? This is the issue that an Indiana Court of Appeals recently wrestled with.

Just the Facts: Mr. E was a pharmacist whose actions in knowingly producing and distributing dangerous drugs through his compounding pharmacy resulted in a federal criminal trial and conviction, and 33 months of jail time. As a result of the conviction, the state Pharmacy Board suspended his license in 2017. A year later, Mr. E chose not to renew his pharmacist’s license and let it expire. In 2019 the Board filed an administrative complaint to revoke Mr. E’s pharmacist’s license based on his federal conviction. Mr. E filed a petition for judicial review and a complaint for damages against the Board and its individual members related to the Board’s revocation of Mr. E’s expired pharmacy license. The trial court ultimately awarded Mr. E attorney’s fees and costs, explaining that the Board continued the action against Mr. E without any statutory basis and ignored Mr. E’s Constitutional rights to be free from ‘government harassment.’ The Pharmacy Board appealed the ruling, claiming that the members of the Board have quasi-judicial immunity, and thus are protected. The case went to the Court of Appeals.

The Court Decides: The Court began its discussion by noting that “judicial immunity shields judicial officers from suit.” The purpose of this, wrote the Court, was to preserve judicial independence and ensure that decisions are made on objective criteria and not out of fear of litigation. That same interest also justifies granting immunity to non-judicial officers who perform quasi-judicial functions. “Members of licensing boards who adjudicate disciplinary matters against licensees have absolute quasi-judicial immunity from suit because they are acting as the functional equivalent of judges,” concluded the Court. The Court rejected Mr. E’s argument that the Board members acted with “clear and complete absence of jurisdiction over both the parties and the subject matter,” an exception to judicial immunity. “The Board has broad authority to adjudicate matters relating to pharmacists’ licenses,” wrote the Court, as it agreed with the Board’s characterization of its actions as ‘a mistake’ rather than it having acted in complete absence of jurisdiction. The Court reversed the lower court’s award of attorney’s fees to Mr. E.

The Take Away: Don’t expect to be awarded fees in an action against a Pharmacy Board as long as the Board is acting under proper authority. Even though the Board in this case was found to have wrongly filed a license revocation against an already expired pharmacy license, this did not rise to the level of acting in complete absence of jurisdiction which might have allowed the former pharmacist to collect attorney fees.

Source: Indiana Board of Pharmacy, et al v. Paul Elmer. Court of Appeals of Indiana  (March 23) https://public.courts.in.gov/Decisions/api/Document/Opinion?Id=hGfuIfsI4DvBslTUMJDJcHuGKJEJHT7aVOBo0OCl8GrvDODclqn7epmVGRfFNf4u0