COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, Beales and AtLee Argued at Richmond, Virginia

WILLIAM G. CLOWDIS, JR., M.D. MEMORANDUM OPINION  BY v. Record No. 1381-17-2 J UDGE WILLIAM G. PETTY FEBRUARY 13, 2018 VIRGINIA BOARD OF MEDICINE

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND W. Reilly Marchant, Judge William G. Clowdis, Jr., pro se Erin L. Barrett, Assistant Atto rney General (Mark R. Herring, Attorney General; Cynthia V. Ba iley, Deputy Attorney General; Allyson K. Tysinger, Senior Assi stant Attorney General, on brie f), for appellee.
On appeal, Dr. William Clowdis, Jr. challenges the circuit cou rt’s order affirming a 2013 order by the Virginia Board of M edicine. The 2013 order remove d the stay of suspension of Clowdis’s medical license because Clowdis had failed to abide b y conditions, including monitoring, required by a 2011 orde r by the Board. Clowdis con cedes that he withdrew from monitoring and was not in complia nce with the 2011 order. Clow dis nevertheless argues the circuit court erred for the f ollowing reasons in affirming the Board’s 2013 decision. I. The circuit court erred by fa iling to declare the Board’s O rders void, as each relied on the initial (non-appealable) suspension , for which there never existed s tatutory authority or subject matter jurisdiction. II. The Circuit court erred by failing to declare that the Boa rd automatically defaulted by operation of Va. Code §2.2-4021(B) in 2012 by not respond ing to Clowdis’[s] request for a case decision.

 Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.UNPUBLISHED- 2 - III. The Circuit court erred by res tricting the review of Clow dis’[s] appeal solely as to whether he complied with the 2011 Board Order for HPMP monitoring ( thereby upholding the Board’s ruling in limine to that effect at the 2013 hearing), which resulted in the court’s failure to review [fourteen enumerated actions by the Board]. For the reasons below, we affirm the circuit court’s decision.
B ACKGROUND Because the parties are fully c onversant with the record in th is case and this memorandum opinion carries no preced ential value, we recite onl y those facts and incidents of the proceedings as are necessar y to the parties’ understanding of the disposition of this appeal. We view the evidence in the li ght most favorable to the Board o f Medicine, the prevailing party below, granting to it the benefit of any reasonable inferences. Congdon v. Congdon, 40 Va. App. 255, 258, 258 S.E.2d 833, 835 (2003). On April 26, 2007, the Director of t he Department of Health Pr ofessions issued an order pursuant to Code § 54.1-2409 suspendi ng Clowdis’s license to pr actice medicine and surgery in the Commonwealth. The suspension was based upon the Department ’s receipt of evidence that Clowdis had been convicted of a f elony in the state of Colorado . The “Judgment of Conviction” document from the Colorado court showed that Clowdis was convic ted in 2005 after pleading guilty to felony menacing with a real or simulated weapon. Alt hough Clowdis had a right to appeal the decision pursuant to the Virginia Administrative Pro cess Act (VAPA), he chose not to do so. Instead, Clowdis petitioned the Virginia Board of Medic ine in 2011 for reinstatement of his license. The Board enter ed an order on May 24, 2011 (the “ 2011 order”) making specific findings of fact regarding Clo wdis’s 2005 conviction, his menta l health, and his fitness to practice medicine. The 2011 order stayed the suspension of Clo wdis’s license provided that he fully comply with the conditions s et by Virginia H ealth Practit ioners’ Monitoring Program. Once again, Clowdis did not appe al, pursuant to VAPA, the 2011 order; rather, he agreed to the- 3 - terms of the order and initialed each itemized condition separa tely. Initially, Clowdis complied with the monitoring conditions and the suspension of his licens e was stayed. In 2012, Clowdis made the decision to stop compl ying with the monitoring conditi ons and was expelled from the
program. After proper notice and heari ng, the Board issued an order on March 4, 2013, concluding that Clowdis had violated the t erms of the 2011 order. It cont inued indefinite suspension of Clowdis’s license to practice me dicine, with provision for the suspension to be stayed if Clowdis complied with all terms of the monitoring program. Clowdis tim ely appealed the Board’s March 4, 2013 decision to the circuit court. The circuit court affir med the Board’s de cision; Clowdis appealed to this Court.
C LOWDIS ’ S F AILURE TO A PPEAL THE 2007 A GENCY D ECISION “As an agency of the Commonwealt h, the Board [of Medicine] enjo ys the privileges of sovereign immunity.” Va. Bd. of Med. v. Va. Physical Therapy A ss’n., 13 Va. App. 458, 464, 413 S.E.2d 59, 63 (1991). The Commonwealth may waive its sover eign immunity and “may limit the right to sue to certa in specified causes, . . . and w hen it does so it can be sued only in the manner and upon the terms and cond itions prescribed. Complianc e with the conditions and restrictions set fort h in the statute is j urisdictional.” Id. at 465, 413 S.E.2d at 63 (alteration in original) (citation omitted). Simply put, “the General Assembl y has waived sovereign immunity only to allow a party to obtain judi cial review of the Board’s adoption of rules or the Board’s case decisions, as such are defined in the VAPA, in the manner provided in the VAPA .” Afzall v. Commonwealth, 273 Va. 226, 231, 639 S.E.2d 279, 282 (2007) ( quoting Va. Physical Therapy Ass’n, 13 Va. App. at 464, 413 S.E.2d at 63). Under the VAPA, a party has thirty days after service of the final order in t he case decision, to file a noti ce of appeal with the circuit court. Rule 2A:2.- 4 - Clowdis argues that the circu it court erred “by failing to decl are the Board’s Orders void, as each relied on the initial (non-appealable) 1 suspension, for which there never existed statutory authority or subject matter jurisd iction.” Clowdis has conflat ed authority to render a decision with the rendering of a poten tially erroneous decision. “The distinction between an acti on of a [tribunal] that is v oid ab initio rather than merely reversible is that the former involves the underlying authority of a [tribunal] to act on a matter whereas the latter involves act ions taken by a [tribunal] which are in error.” Jones v. Commonwealth, 293 Va. 29, 67, 795 S.E.2d 705, 727 (2017) (quoti ng Singh v. Mooney , 261 Va. 48, 51-52, 541 S.E.2d 549, 551 (2001)). An agency acting as a tribunal has jurisdiction to err, as well as to correctly decide the i ssues presented in a case, and the remedy to correct an error by the agency is to appeal the age ncy’s decision in accordance wit h the VAPA, not to collaterally attack the allegedly erroneous decision in a separate action. See Hicks v. Mellis, 275 Va. 213, 219-21, 657 S.E.2d 142, 145-46 (2008); De Avies v. De Avies, 42 Va. App. 342, 346, 592 S.E.2d 351, 353 (2004) ( en banc ) (“A voidable [reversible] orde r, however, cannot be set aside upon a ‘collateral attack.’”). Here, the Department clearly ha d statutory authority to suspend Clowdis’s license under Code § 54.1-2409(A) when it receive d evidence that Clowdis had been convicted of a felony in a Colorado court. Clowdis concedes that the Board had the author ity to make a factual determination as to whether he was a convicted felon for purpos es of the statute. He thus acknowledges that the Departme nt had subject ma tter jurisdictio n and its ruling is not void, even if it were erroneous as Clowdis claims. See De Avies, 42 Va. A pp. at 346, 592 S.E.2d at 353.
An erroneous ruling by an agency must be app ealed in a timely manner in acc ordance with the

1 Clowdis provides no legal autho rity to support the argument th at the suspension of his license pursuant to Code § 54.1-2409 w as not appealab le to the circuit court under VAPA.- 5 - VAPA. Clowdis simply did not do so. 2 Moreover, Clowdis entered an agreement in 2011 with the Board for reinstatement of hi s license predicated on certai n conditions, including monitoring. Clowdis did not appeal that or der either. The final, unappeale d, 2007 and 2011 orders became the law of the case, and it was not error for the agency to rel y on them in subsequent proceedings. The trial court , therefore, did not err in denyin g Clowdis’s motion to declare the Board’s March 4, 2013 order void on the basis that they relied on the 2007 order of suspension.
T HE C IRCUIT C OURT D ID N OT E RR IN R EFUSING

TO D ECLARE THE B OARD H AD “D EFAULTED ” Clowdis argues that “the Boar d automatically defaulted by opera tion of Code § 2.2-4021(B) in 2012 by not responding to C lowdis’[s] request for a case decision.” 3 “Under VAPA, the circuit court re views the agency’s action in a manner ‘equivalent to an appellate court’s role in an a ppeal from a trial court.’” B oone v. Harrison, 52 Va. App. 53, 61, 660 S.E.2d 704, 708 (2008) (quoting Mattaponi Indian Tribe v. Dep’t of Envtl. Quality ex rel. State Water Cont rol Bd., 43 Va. App. 690, 707, 601 S.E.2d 667, 676 (2004)). “The VAPA,

2 In 2007, the Department received do cumentation that Clowdis had pled guilty to a felony in Colorado. Pursuant to Code § 54.1-2409(A) the Depart ment suspended Clowdis’s license to practice medicine. Because this action by the Depar tment was not timely appealed by Clowdis, we need not address Clow dis’s contention that the “def er and dismiss” procedure used by the Colorado court did not cons titute grounds for suspension . We note, however, that Clowdis incorrectly argues th at “Code § 54.1-2409(A) provides f or mandatory suspension without a hearing if, and only if , the Director of Health Profe ssions has documentation of an actual conviction by a court of competent jurisdi ction.” (emphasis in original) . The statute does not so state.

3 Within this assignment of error , Clowdis argues the “Circuit c ourt erred by deferring to the Board interpretation of the Board’s obligations under the V APA”; the “Board defaulted when it failed to render a timely case decision”; the circuit “court erred by holding that existing Board Orders are immune to [Code] § 2.2-4021(B)”; the monitoring prog ram, “acting as the Board’s agent, implemented the Board’s 2011 Order in a manner that viol ated Clowdis’[s] Constitutional rights”; the circuit “court er red by analogizing the Board and [the monitoring program] to a [c]ourt (with criminal jurisdic tion) and Probation Officer, and in doing so, finding [the monitoring program] had authorit y to infringe upon Clowdis’[s] Constitutional and statutory rights (including substantive and procedural due process).”- 6 - however, does not vest circuit cour ts with appellate authority over all agency decisions. Only those within the defi nition of a ‘case decisi on’ fall within th e scope of the VAPA’s judicial review provisions.” Giannoukos v. Va. Bd. of Med. & Dep’t of H ealth Professions, 44 Va. App. 694, 699, 607 S.E.2d 136, 138 (2005) (citing Code § 2.2-4026). “[A] case decision represents a determination ‘under laws or regulations at the time’ that the named party is or may be in violation of ‘such laws or regul ations’ or out of compliance wi th some requirement for obtaining some right or benefit.” I d. at 699-700, 607 S.E.2d at 138 (quo ting Code § 2.2-4001). Code § 2.2-4021(B) provides that [i]n any informal fact-finding, f ormal proceeding, or summary c ase decision proceeding in which a hearing officer is not used or i s not empowered to recommend a findi ng, the board . . . shall render that decision within 90 days from the da te of the informal fact-find ing, formal proceeding, or completion o f a summary case decision proceeding . . . . The code section further provide s that if the agency does not r ender a decision within thirty days of a party’s notice to the age ncy that a decision is due, the d ecision is deemed to be in favor of the party. Code § 2.2-4021(B). Clowdis argues that his le tter dated November 16, 2011 to the D epartment of Health Professionals triggered the nine ty-day time limit for the Board to render a decision. The letter begins with the statement, “As we discussed by phone this after noon, I would appreciate your advice about my best option for pursuing work outside of the Co mmonwealth of Virginia, putting consequences against my V irginia medical license at ris k.” The letter di d not constitute “written notice to the agency t hat a decision is due” pursuant to Code § 2.2-4021(B). The letter did not reference “any informal f act-finding, formal proceeding , or summary case decision proceeding” that had already o ccurred but for which the agency had failed to issue a decision. Rather, the letter summarized t he history of Clowdis’s case and the difficulties Clowdis was having in complying with the Board-ordered monitoring. Neither the November 16, 2011 letter,- 7 - the communication with the age ncy regarding monitoring, nor Clo wdis’s threats of lawsuit qualify as written notice to the a gency that a decision was due pursuant to Code § 2.2-4021(B). Consequently, that code sect ion simply does not apply, and the circuit court did not err in declining to rule that th e Board had defaulted in 2012 by opera tion of Code § 2.2-4021(B).
T HE C IRCUIT C OURT D ID N OT E RR IN L IMITING THE S COPE OF I TS R EVIEW As discussed above, Clowdis fa iled to timely appeal the Depart ment’s suspension of his license in 2007 and the Board’s 2011 order staying the suspensi on upon his participation in the monitoring program. The only admin istrative order that Clowdis timely appealed was the March 4, 2013 order concluding that Clowdi s had violated the terms of the 2011 order. Nevertheless, Clowdis argues that the circ uit court “erred by restricting the review of Clowdis’[s] Appeal solely as to whether he comp lied with the 2011 Board Order for [Virginia Health Practitioners’ Monitoring Program] monitori ng (thereby upholding the Board’s r uling in limine to that effect at the 2013 hearing), which resulted i n the court’s failure to rev iew” other actions by the agency. 4 As we noted above, only those w ithin the definition of a “case decision” fall within the scope of the VAPA’s judicial r eview provisions. Giannoukos, 44 Va. App. at 699, 607 S.E.2d at 138. Furthermore, the circuit cour t had jurisdiction to review only those case decisions properly appealed in the manner provi ded by the VAPA. Afzall, 273 Va. a t 232, 639 S.E.2d at 282. As we noted above, the 2007 order was not appealed and became the law of the case. The Board issued the 2011 order a llowing a stay of suspension o f Clowdis’s license if he agreed to conditions, includi ng monitoring. Clowdis did not ap peal that order, and instead signed a participation agreement , which included a provision th at stated, “I understand and agree that my failure to comply with t his agreement as determined by [the monitoring program] in its

4 Clowdis lists fourteen actions by the Board that he argues wer e inappropriate actions by the Board but which he concedes a re not reviewable if the issue s on appeal are limited to the March 4, 2013 order.- 8 - sole discretion, may result in m y being reported to the Monitor ing Program Committee and to my respective licensing Board whi ch could result in disciplinar y action.” He also signed a monitoring agreement that clear ly stated that the monitoring wa s expected to last five years and included numerous monitoring requi rements. Clowdis initialed e ach provision of the agreement. Clowdis concedes that he faile d to comply with the monitoring agreement. Clowdis offered reasons to the Board for hi s withdrawal from the monito ring program, but the Board was not required to excuse his fa ilure to abide by the agreement. The Board was entitled to restrict its findings of fact t o whether Clowdis had violated the monito ring agreement he had signed. The Board was not required t o revisit the va lidity of the 2007 and 2011 orders during the hearing regarding Clowdis’s failure t o comply with the monitoring requi red by the 2011 order. Consequently, the circuit cour t did not err i n limiting its rev iew to that case decision by the agency. Giannoukos, 44 Va. App. at 698-700, 607 S.E.2d at 138.
C ONCLUSION Clowdis did not appeal pursuan t to VAPA the 2007 action by the Department of Health Professions or the 2011 order by t he Virginia Board of Medicine . Consequently, Clowdis cannot now argue that those agency deci sions were in error. Clowdis a cknowledges that he failed to comply with the requirements of the 2011 order staying suspensi on of his medical license. He thereby concedes there was subs tantial eviden ce to support the Board’s finding that he was not in compliance with the 2011 order. T he circuit court did not err in affirming the Board’s decision. We now also affirm. Affirmed.