Chambers v. Idaho Board of Pharmacy ( 2022 )

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 49356
CINDY A. CHAMBERS, )
)
Petitioner-Appellant, ) Boise, May 2022 Term
)
v. ) Opinion filed: August 24, 2022
)
IDAHO BOARD OF PHARMACY AND ) Melanie Gagnepain, Clerk
AGENCY, )
)
Respondent. )
Appeal from the District Court of the Fourth Judicial District of the State of
Idaho, Ada County. Samuel Hoagland, District Judge.
The judgment of the district court is affirmed.
Bernadette Cecile Buentgen, Eagle, for Appellant. Bernadette Buentgen argued.
Lawrence G. Wasden, Idaho Attorney General, Boise, for Respondent. Alexandra
Breshears argued.
__________________________________________________________________
MOELLER, Justice.
The Idaho Board of Pharmacy (“Board”) filed an administrative complaint against Cindy
A. Chambers, a pharmacist, alleging that she dispensed a controlled substance without a valid
prescription. Chambers prevailed before the Board and it determined that she was entitled to
recover her reasonable attorney fees and costs; however, she failed to comply with the 14-day
deadline for requesting her award. When she filed a request almost seven months after the deadline
had passed, the Board denied her request upon finding that she failed to show good cause for the
late filing. Chambers then sought judicial review from the district court, which dismissed her
petition. Chambers now appeals to this Court, maintaining that both the Board and the district court
erred by applying the wrong legal standard. For the following reasons, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 2018, Chambers was a pharmacist working at a Sav-On Pharmacy for Albertsons, LLC,
in Boise, Idaho. She was the “Pharmacist-in-Charge” at the Boise pharmacy during all times at
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issue in this case. On September 25, 2018, a Board compliance officer conducted a routine
inspection of the Sav-On pharmacy’s records where Chambers is employed. During the audit, the
compliance officer found a record showing Chambers had dispensed 50 mg of Tramadol, a
Schedule IV medication, on July 14, 2018, without an accompanying valid prescription. Board
staff filed an administrative complaint against Chambers, alleging she violated the statutes or rules
governing the practice of pharmacy in Idaho by dispensing a controlled substance without a valid
prescription.
At the hearing before the Board, Chambers presented evidence that she rejected the original
Tramadol prescription, written by a veterinarian for a dog, because it lacked the required
information, “including, but not limited to, the drug name and strength.” Because of this immediate
rejection, the prescription was never scanned into Sav-On’s electronic records system. The dog’s
owners subsequently returned to Sav-On with an additional prescription to acquire the medication.
However, Chambers rejected the second prescription because it still lacked the necessary
information. Chambers testified that she then called the prescribing veterinarian by phone to
verbally obtain the necessary information to create a valid prescription. Chambers reduced the
verbal prescription to writing and provided it to a pharmacy technician for processing. Chambers
then dispensed 50 mg of Tramadol to the dog’s owners. Additional evidence was submitted to
show a pharmacy technician had failed to scan the valid prescription into the record-keeping
system, but that the veterinarian confirmed that she prescribed the 50 mg of Tramadol to the dog’s
owners and that she later verified the prescription with Chambers over the phone.
From these findings, the Board concluded “there is no evidence in the record alleging or
suggesting any efforts by [Chambers] to divert any drugs.” In its final order, issued on May 6,
2019, the Board concluded that Chambers acted reasonably and dismissed the administrative
complaint. The Board also determined that Chambers was entitled to recover attorney fees and
costs. The final order did not specify a deadline for requesting attorney fees, but stated: “. . .
pursuant to Idaho Code sections 12-117(5) and 54-1728(6), [Chambers] is entitled to recover her
reasonable attorney’s fees and defense costs necessarily and actually incurred in this matter, which
[Chambers] may apply for in accordance with Rule 741 of the Idaho Rules of Administrative
Procedure of the Attorney General (IDAPA 04.11.01.741).”
Rule 741, referred to in the final order, generally provides that the time for filing a request
for attorney fees awarded by an agency is “(14) days from the service date of the final order” unless
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the final/preliminary order specifically extends that time. IDAPA 04.11.01.741. Thus, where the
time is not specifically set forth in a statute, rules of the agency, or the final order itself, “the
deadline for filing for costs and/or fees and/or for moving for an extension of the time to file for
costs and fees is fourteen (14) days from the service date of the final order or preliminary order.”
IDAPA 04.11.01.741.02(c). Additionally, “[t]he agency may exercise its discretion to consider
and grant an untimely filing for costs and/or fees for good cause shown.” IDAPA
04.11.01.741.02(d). The certificate of mailing for the final order indicates it was served on
Chambers’ attorney on May 7, 2019, making May 21, 2019, the deadline to file a request for
attorney fees.
Almost seven months (204 days) later, on December 11, 2019, Chambers filed a request
for $6,761.25 in attorney fees through her counsel, Bernadette Buentgen. The Board filed an
objection to this request, arguing it was untimely and lacked a showing of good cause to explain
the late filing. Buentgen then submitted a second declaration in support of the request for attorney
fees, which included detailed information concerning her health status from 2006 forward. In her
declaration, Buentgen explained that she was diagnosed with Chronic Myeloid Leukemia 13 years
earlier and, following her diagnosis, underwent targeted chemotherapy from 2006 until November
2013. Her daily medications “had numerous side-effects, including overwhelming fatigue.” To
reach remission, Buentgen underwent a stem cell transplant in 2014. The procedure was successful
but not without complications: Buentgen contracted GVHD (graft vs. host disease), which required
additional medications and blood transfusions until 2017. While Buentgen has been “leukemia free
for six years,” she reports that she “still [has] a compromised immune system and continues to
struggle with fatigue.” She explained in the declaration that her “new normal changes daily” and
requires constant reassessments and adjustments.
On reviewing this second declaration, the Board informed Buentgen she had again failed
to explain any “specific events between May 2019 and December 2019” that “prevented [her] from
filing or seeking an extension of time to file.” Buentgen then filed a third declaration in support of
the request for attorney fees, which argued her health conditions were good cause and “there [was]
no showing of harm or prejudice” to the Board. This third declaration also included information
from Buentgen that she “did not calendar the fourteen (14) day deadline,” and “did not anticipate
. . . an issue concerning the payment of [her] attorney fees if the bill was presented more than
fourteen (14) days after the Final Order.” She conceded, however, that “possibly . . . was a mistake
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on [her] part.” Additionally, Buentgen explained that she is a solo practitioner without “the
resources to hire someone to prepare the statement of attorney fees.”
The Board conducted a hearing on the attorney fees matter on April 9, 2020. At the hearing,
Buentgen argued that “prejudice is a determining factor in whether good cause is shown.” She
explained in full:
So the issue here is not whether the Board is awarding attorney’s fees. That’s
already been decided. The issue is whether the documentation showing what the
attorney’s fees were was timely filed. And if it wasn’t, what prejudiced [sic] was
caused to the Board, which I submit was none. And the reason for the delay I feel
was reasonable, given the circumstances.
And I do admit that I didn’t look at the 14 days, because first off the order is
silent, so that it reverts back to that. I think a reasonable person would allow the
petitioner -- I’m sorry, the respondent time to file the memorandum basically -- the
memorandum of cost, which is what I did with the declaration.
. . . you can’t just look at my health in a vacuum. I had other work that I was
doing during that time period. I am a sole practitioner. I don’t have any employees.
Additionally, this type of declaration is based on personal information and belief,
so it would require me to prepare it; that I do suffer from extreme fatigue; and that
I have to prioritize. And I didn’t think that was going to be an issue, quite frankly.
And I think a reasonable person would allow the document to be filed after the 14
days.
Lastly, she added that there was “absolutely no prejudice or hardship” to either the petitioner or
the Board, stating: “in fact it allows them a longer period of time to pay the attorney’s fees,
therefore being able to budget those into their budget.” Notably, the Board expanded the time
allowed for both parties to present their arguments and answer questions from Board members. At
the conclusion of the hearing, the Board denied Chambers’ untimely request for attorney fees
because “the Board [could] not find that good cause existed to warrant a delay of more than six
months.”
Chambers then filed a petition for judicial review with the district court, arguing the Board
erred in denying the attorney fees because it applied a good cause standard without considering
the lack of prejudice. Following full briefing and argument, the district court affirmed the Board’s
decision and dismissed the petition. The district court concluded that the plain language of IDAPA
Rule 741 gives the agency discretion to consider an untimely request for fees for “good cause
shown.” However, nothing in the rule required the Board to consider a lack of prejudice as good
cause for a late filing. The district court further noted that “Idaho Code § 12-117(5) does not
mandate that a prevailing party obtain its fees when it did not properly comply with the rules
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regarding applying for fees.” Ultimately, because Buentgen failed to specify how her current health
issues caused the seven-month delay, and because she admitted “the failure to timely file for
attorney fees was due to her error and misreading of the rules,” the court found that there was
substantial and competent evidence supporting the Board’s decision. Accordingly, it concluded
that the Board “was well within its discretion to deny an untimely request on these facts and find
that good cause had not been demonstrated.”
Chambers timely appealed the district court’s dismissal of her petition for judicial review
to this Court.
II. STANDARD OF REVIEW
This case comes before the Court on a petition for judicial review of a final order by the
Idaho Board of Pharmacy. Idaho’s Administrative Procedure Act (“APA”) governs agency actions
and provides that a reviewing court “shall affirm the agency action unless the court finds that the
agency’s findings, inferences, conclusions, or decisions are: (a) in violation of constitutional or
statutory provisions; (b) in excess of the statutory authority of the agency; (c) made upon unlawful
procedure; (d) not supported by substantial evidence on the record as a whole; or (e) arbitrary,
capricious, or an abuse of discretion.” I.C. § 67-5279(3). The APA also states that a reviewing
court “shall not substitute its judgment for that of the agency as to the weight of the evidence on
questions of fact.” I.C. § 67-5279(1).
“When reviewing a decision by the district court acting in its appellate capacity under the
[APA], this Court analyzes the record independently of the district court.” Hawkins v. Bonneville
Cnty. Bd. of Comm’rs, 151 Idaho 228, 231, 254 P.3d 1224, 1227 (2011). We also freely review
questions of law. Id. However, “[w]here the district court has affirmed the Board’s actions, we will
uphold its decision provided the Board’s findings were supported by substantial and competent
evidence.” Id.Additional standards of review will be addressed in turn.
III. ANALYSIS
A. The Board applied the correct standard of review.
Chambers first argues that “the Board abused its discretion by failing to apply the correct
standard of review” required by Rule 741 of IDAPA. Although her argument rests on the discretion
given the Board under Rule 741 “to consider and grant an untimely filing for costs and/or fees for
good cause shown,” Chambers ultimately contends she is entitled to relief because the Board “did
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not consider, nor did it find any prejudice caused by an untimely request for attorney’s fees.” She
also alleges that the Board’s final order “failed to give a specific date to file a declaration and failed
to state the rule in the Notice of Due Process in an attempt to avoid paying attorney fees.” The
Board argues that Rule 741 only requires a “good cause” analysis, not a separate consideration of
prejudice. Additionally, it points out that the final order gave notice that any request for costs and
attorney fees be made “in accordance with Rule 741.” We agree with the Board on both points.
There is no abuse of discretion where the Board: “(1) correctly perceived the issue as one
of discretion; (2) acted within the outer boundaries of its discretion; (3) acted consistently with the
legal standards applicable to the specific choices available to it; and (4) reached its decision by the
exercise of reason.” Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018).
Without specifying which Lunneborg standards were violated, Chambers appears to make two
separate contentions suggesting that the Board failed to act consistently with the applicable legal
standard: first, that the Board was required to consider prejudice in its determination of whether
there was good cause to permit an untimely request for attorney fees; and second, that attorney
fees are mandatory under Idaho Code section 12-117(5) regardless of IDAPA’s deadlines.
1. The Board and the district court properly applied the good cause standard because
Rule 741 does not require consideration of prejudice.
IDAPA Rule 741 states that the agency “must allow no fewer than fourteen (14) days from
the service date of the final order or the preliminary order for the party to whom costs and/or fees
were awarded . . . to file necessary papers . . . quantifying and otherwise supporting costs or fees.”
Generally, the applicable statute, rules of the agency, or the final order or preliminary order will
specify the filing deadline; however, Rule 741 provides for a 14-day deadline as a default where
the statute or final order is otherwise silent. IDAPA 04.11.01.741. Such is the case here: the
Board’s order did not provide Chambers with an express deadline, but it directed her instead to
Rule 741 which provided her with 14 days to file either a memorandum of costs or request an
extension of time to file the necessary paperwork to recover her costs and fees.
Additionally, Rule 741 grants the agency “discretion to consider and grant an untimely
filing for costs and/or fees for good cause shown.” Id. (emphasis added). It is noteworthy that
prejudice is not mentioned in Rule 741. It only states that the Board’s decision is dependent on
whether “good cause” is shown. This Court has typically addressed good cause in the context of
delays in serving pleadings, motions, or other court filings. We have held that “[t]here is no bright-
line test in determining whether good cause exists.” Harrison v. Bd. of Pro. Discipline of Idaho
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State Bd. of Med., 145 Idaho 179, 183, 177 P.3d 393, 397 (2008). However, to ascertain whether
good cause exists for delays and untimeliness, courts typically “look to factors outside of the
plaintiff's control,” such as sudden illness, natural catastrophe, or evasion by third parties. Id.Nevertheless, we have expressly held that a “[l]ack of prejudice is irrelevant to the good cause
analysis.” Id.Although Chambers cites two cases to support her argument—Ada County Highway Dist.
By and Through Fairbanks v. Acarrequi, 105 Idaho 873, 673 P.2d 1067 (1983) and Sammis v.
Magnetek, Inc., 130 Idaho 342, 348, 941 P.2d 314, 320 (1997)—she mischaracterizes both
holdings. Acarrequi dealt only with Idaho Rule of Civil Procedure 54, which simply permits time
periods to be enlarged at the discretion of the trial court. 105 Idaho at 874–75, 673 P.2d at 1068–
69. Here, there was no motion to enlarge time filed until it was too late. Similarly, the Sammis
Court rejected a plaintiff’s assertion that a lack of prejudice should be considered in the good cause
analysis under Idaho Rule of Civil Procedure 4(a)(2). 130 Idaho at 348, 941 P.2d at 320. This
Court explained that the rule only required a showing of “good cause” for “why such service was
not made” within the deadline’s time frame. Id.This Court has never applied a prejudice standard in place of, or even as part of, a good
cause analysis. Importantly, the plain language of Rule 741 does not include the word “prejudice”
or any similar language that would trigger questions of harm or substantial rights to either party.
The rule focuses only on timeliness, deadlines, and whether there is “good cause” for any delay.
See IDAPA 04.11.01.741. The rule also directs that the determination of good cause lies within
the discretion of the agency. Id. Therefore, only the good cause standard was applicable here. This
was the legal standard and inquiry employed by the Board and the district court in considering the
untimely request for attorney fees. There can be no abuse of discretion when the reviewing agency
applies the exact standard prescribed by the governing rule.
2. Although Idaho Code section 12-117(5) provides for an award of attorney fees under
certain circumstances, the district court properly affirmed the Board’s determination
that Chambers waived her right to recover her attorney fees by failing to timely file
the request.
As part of her prejudice argument, Chambers also argues that attorney fees are mandatory,
regardless of filing deadlines. She cites specifically to Idaho Code section 12-117(5) (amended in
2018), which is the governing statutory authority for the Board’s award of fees. Idaho Code section
12-117(5) provides for an award of attorney fees to a prevailing party in an administrative
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proceeding where a licensing authority and a licensee are adverse parties. Such was the underlying
case here and the Board determined that, under section 12-117(5), Chambers was entitled to
recover her reasonable attorney’s fees and defense costs. However, Chambers still needed to apply
for recovery of her attorney fees and costs upon completion of the administrative proceedings.
IDAPA 04.11.01.741.01.
In civil cases and agency actions, the failure to timely file a memorandum of costs
following an award of attorney fees generally results in the waiver of that right. See Medrano v.
Neibaur, 136 Idaho 767, 769–70, 40 P.3d 125, 127–28 (2002); Harney v. Weatherby, 116 Idaho
904, 908, 781 P.2d 241, 245 (Ct. App. 1989). See also I.A.R. 40(c) (“Failure to file a memorandum
of costs within the period prescribed by this rule shall be a waiver of the right to costs.”). For
example, in Medrano, this Court determined that the Industrial Commission abused its discretion
upon awarding attorney fees after counsel “missed [the 10-day] deadline by six months with no
explanation for the delay.” 136 Idaho at 769–70, 40 P.3d at 127–28. While the prevailing party in
Medrano was originally entitled to an award of attorney fees for succeeding in its case, Medrano
waived the award by failing to submit a memorandum of costs and fees until after “the deadline
had long passed.” Id. The same result occurred in Harney v. Weatherby, where the prevailing party
waived the right to recover his award of attorney fees and costs when he filed his memorandum of
costs fifty-five days late. 116 Idaho at 908, 781 P.2d at 245.
Chambers has not explained why this general rule should not likewise apply to an
administrative proceeding. We conclude there is no reason to adopt a different rule for this case
and, therefore, Chambers waived her right to recover her fees and costs by failing to timely submit
a memorandum of costs and fees. She had 14 days to submit her memorandum, yet she waited
almost seven months. The Board did not abuse its discretion because it applied the correct legal
standard when it denied Chamber’s untimely request for costs and fees. Nothing in Idaho Code
section 12-117(5) absolved Chambers of the requirement in Rule 741 to timely file the necessary
papers in support of her requested costs and fees.
B. The Board’s finding that Chambers failed to demonstrate good cause for her untimely
request for attorney fees was supported by substantial and competent evidence.
Chambers next argues that the Board and the district court “grossly minimized the medical
condition of [Buentgen]” and that counsel’s extreme fatigue over the time period at issue was
substantial evidence of good cause. No one disputes the medical hardships apparently faced by
Buentgen over the years; however, the Board made its determination to deny the untimely request
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on the basis counsel failed to provide specific medical details concerning her condition during the
seven months in question. The district court affirmed on similar grounds. We agree that the Board’s
decision is supported by substantial and competent evidence.
Where there is conflicting evidence, an “agency’s findings are binding on this Court as
long as they are supported by substantial and competent evidence, regardless of whether [the
Court] might have reached a different conclusion.” Chisholm v. Idaho Dep’t of Water Res., 142
Idaho 159, 164, 125 P.3d 515, 520 (2005). “Substantial and competent evidence is relevant
evidence that a reasonable mind might accept to support a conclusion.” Id. (citation omitted).
Substantial evidence is “more than a mere scintilla” but “less than a preponderance of evidence.”
Id.Here, the Board correctly applied the standard of good cause, which generally looks to
circumstances and factors outside the party’s control. See Harrison, 145 Idaho at 183, 177 P.3d at
397. It primarily considered the evidence proffered by Chambers’ counsel, Buentgen, to explain
her delay in requesting fees. Without disregarding the extensive medical issues Buentgen has faced
over the years, the Board concluded that Chambers failed to provide good cause for her untimely
filing. The Board focused on the fact that Buentgen failed to provide any specific medical events
or circumstances during the relevant period at issue—from May to December 2019—that would
justify the late filing.
The medical history provided in Buentgen’s declarations centers on her cancer diagnosis
in 2006, her subsequent chemotherapy treatments, and her stem cell transplant in 2014. Her
medical history also indicates ongoing fatigue and complications, stating that constant adjustments
in concern for her health are part of her “new normal.” However, when the declarations addressed
the events of 2019 that contributed to the delay, the explanations offered by Buentgen had little or
nothing to do with her health. For example, Buentgen explained that she failed to calendar the
deadlines, she is a solo practitioner without support staff, and stated that she “didn’t think that was
going to be an issue, quite frankly.” Such admissions were not limited to her declarations. Under
query from the Board and district court below—and during oral argument before this Court—
Buentgen repeatedly conceded that the missed deadline was her error in failing to sufficiently read
over the IDAPA rules and calendar the deadline.
Chambers is effectively asking this Court to apply a new standard for her benefit, one akin
to the excusable neglect standard set forth in Idaho Rule of Civil Procedure 60(b). However, that
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is not the governing standard here. Chambers, through her counsel, was required to show good
cause for the seven-month delay, and she has failed to do so. As the district court summarized:
Buentgen admitted in declarations and at the hearing that the failure to timely
file for attorney fees was due to her error and misreading of the rules. She detailed
health issues, however, nothing specific over the seven month time period at issue,
which would have impacted her ability to timely request fees and costs. Instead, the
error was one of misjudgment.
We agree and conclude that there was substantial and competent evidence in the record below to
support the Board’s determination. Its decision to deny the untimely request for attorney fees was
well within its discretion.
Chambers raises additional arguments on appeal, including whether the Board’s decision
was arbitrary and capricious, whether the Board’s order denied Chambers of due process, and
whether the Board’s failure to consider prejudice resulted in prejudice to her substantial rights.
Each of these arguments is based on her initial assertion that the Board was required by Idaho law
to consider prejudice. Yet, as we have explained, this is not the standard under Rule 741. Harrison,
145 Idaho at 183, 177 P.3d at 397 (“Lack of prejudice is irrelevant to the good cause analysis.”).
Thus, the Board’s decision applied the correct legal standard and its final determination was based
on substantial and competent evidence. Accordingly, we need not consider Chambers’ remaining
issues on appeal.
C. Chambers is not entitled to attorney fees on appeal.
Chambers requests attorney fees on appeal pursuant to Idaho Code sections 12-117(5) and
54-1728(7). These statutes allow for an award of reasonable attorney fees to the prevailing party
“in any administrative proceeding or administrative judicial proceeding involving as adverse
parties a licensing authority and a licensee.” I.C. 12-117(5). Inasmuch as Chambers is not the
prevailing party on appeal, she is not entitled to an award of attorney fees.
IV. CONCLUSION
For the foregoing reasons, we affirm the district court’s determination to dismiss the
petition for judicial review. As the prevailing party, the Board is entitled to costs as a matter of
course. I.A.R. 40(a).
Chief Justice BEVAN, Justices BRODY, STEGNER and ZAHN CONCUR.
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