IN THE COURT OF APPEALS OF IOWA

No. 14-1764

Filed October 28, 2015

AMJAD BUTT, M.D.,

Plaintiff-Appellant,

vs.

IOWA BOARD OF MEDICINE,

Defendant-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom, 

Judge. 

Amjad Butt, M.D., appeals the district court’s ruling on judicial review 

upholding the agency’s remand decision. AFFIRMED IN PART, REVERSED IN 

PART, AND REMANDED WITH DIRECTIONS.

David L. Brown of Hansen, McClintock & Riley, Des Moines, and R. 

Ronald Pogge and Amy B. Pellegrin of Hopkins & Huebner, P.C., Des Moines, 

for appellant.

Thomas J. Miller, Attorney General, and Jordan G. Esbrook and Meghan 

L. Gavin, Assistant Attorneys General, for appellee.

Heard by Vogel, P.J., and Vaitheswaran and Bower, JJ.
2

VAITHESWARAN, Judge.

This appeal from an agency’s remand decision raises several issues,

including whether the agency exceeded this court’s remand directions by making 

a fact finding and whether, if it did, the fact finding was supported by substantial 

evidence.

I. Background Facts and Proceedings 

This is the second appeal arising from the Iowa Board of Medicine’s 

discipline and sanction of Dr. Amjad Butt in Board Case No. 02-08-154. See Butt 

v. Iowa Bd. of Med., No. 12-1118, 2013 WL 2637283 (Iowa Ct. App. June 12, 

2013). The board issued a citation and warning, imposed a $5000 civil penalty, 

required Dr. Butt to successfully complete a professional boundaries program, 

and placed him on probation for five years. Id. at *7. 

The facts leading to the discipline were set forth in detail in our first

opinion. See id. at *1. We find it unnecessary to repeat all the facts here. The 

relevant portion of the opinion for purposes of this appeal was our conclusion that 

substantial evidence supported the following fact findings of the board: (1) Dr. 

Butt “[m]ade offensive comments to Nurse # 2 [Portz] during their meeting on 

February 11, 2008, and threatened to ‘crush’ her,” and (2) Dr. Butt “[a]sked 

Employee # 1 [Peska], in a joking manner, if she would leave her husband and 

have his baby.” Id. at *15. Based on these two fact findings, we affirmed 

the board’s conclusion that Dr. Butt engaged in unethical and/or 

unprofessional conduct in violation of Iowa Code sections 147.55(3) 

and 272C.10(3) [(2007)] and Iowa Administrative Code rule 653–

23.1(4) as charged in Count I in that he acted unprofessionally 

when he made offensive and threatening statements to Portz and 

when he made unprofessional comments to Peska. 
3

Id. We “otherwise reversed the findings and conclusions as to that count.” Id.

We remanded “and directed the district court to remand these proceedings to the 

agency to determine the propriety of the discipline imposed in light of our 

conclusion.” Id.

On remand, the board did not hold an evidentiary hearing; the agency 

simply heard arguments from counsel. After summarizing the procedural history, 

the board stated:

The Board continues to have serious concerns that Respondent 

engaged in offensive, threatening and intimidating conduct toward 

clinic staff. The Board is concerned that Respondent’s threatening 

and offensive statements undermined effective communication with 

clinic staff. The Board believes that such conduct interferes with, or 

has the potential to interfere with, patient care and/or the effective 

functioning of health care staff.

(Emphasis added). The board re-imposed the original sanctions, reasoning as 

follows:

Given the nature and seriousness of these violations, the Board 

believes that its original sanctions are still appropriate and are 

necessary for the protection of the public. The Board believes that 

these violations are best remediated by requiring Respondent to 

complete of a Board-approved Professional Boundaries course and 

a five year probationary period, subject to Board monitoring. The 

Board was not persuaded by Respondent’s argument that the 

Board should modify its prior sanctions in this case.

The board also declined to withdraw a report it made to the National Practitioner 

DataBank (NPDB). The board reasoned that “it was required by [federal law] to 

file a report.” 

On judicial review of the remand decision, the district court affirmed the 

agency decision. This appeal followed. 
4

Dr. Butt now contends (A) the board’s “new and additional findings of fact”

were unsupported by substantial evidence; (B) the board’s reporting to the NPDB

was grounds for reversal; (C) the discipline imposed by the board was 

inconsistent with prior practice and was otherwise arbitrary, capricious, or an 

abuse of discretion; (D) the negative impact on his rights was grossly 

disproportional to the benefits accruing to the public interest; and (E) the board 

violated his right to procedural due process. 

II. Analysis

A. New or Additional Findings of Fact & Substantial Evidence

1. New or Additional Finding of Fact

The Iowa Supreme Court has stated:

When an appellate court remands a case to a trial court for some 

stated further proceeding, the nature and extent of that proceeding 

are circumscribed. The authority of the court on remand is limited 

to the matters specified by the appellate court. Put another way, 

the trial court has no authority to act on matters outside the 

appellate court’s mandate. [T]he same rule applies to an 

administrative agency. 

Winnebago Indus., Inc. v. Haverly, 727 N.W.2d 567, 573 (Iowa 2006).

As noted, the remand decision stated, “The Board believes that such 

conduct interferes with, or has the potential to interfere with, patient care and/or 

the effective functioning of health care staff.” According to Dr. Butt, this language 

is a “widen[ing of the board’s] previous factual findings and conclusions of law 

. . . to allege Dr. Butt caused patient harm.” The board responds that the 

language is simply a recapitulation of an agency rule quoted by this court in its 

prior opinion. Notwithstanding well-articulated written and oral advocacy by 

board counsel, we find the board’s argument unpersuasive.
5

Our prior opinion recounted the board’s initial statement of charges and 

the statutory and regulatory provisions alleged to have been violated. See Butt, 

2013 WL 2637283, at *1. We quoted several provisions, including ones the 

board found were not violated. See, e.g., Iowa Admin. Code r. 653-13.7(6) 

(stating, “A physician shall not engage in sexual harassment. Sexual 

harassment is defined as verbal or physical conduct of a sexual nature which 

interferes with another health care worker’s performance or creates an 

intimidating, hostile or offensive work environment.”). One of the quoted 

provisions was Iowa Administrative Code rule 653-13.7(5), which states:

A physician shall not engage in disruptive behavior. Disruptive 

behavior is defined as a pattern of contentious, threatening, or 

intractable behavior that interferes with, or has the potential to 

interfere with, patient care or the effective functioning of health care 

staff.

 

We specifically pointed out the board’s rejection of the single charge involving 

patients. See Butt, 2013 WL 2637283, at *6. And, as discussed, we found 

substantial evidence to support only two fact findings, both of which related to 

physician-employee interactions and neither of which mentioned patient care. 

On remand, the board was to reconsider the penalty in light of our 

rejection of several fact findings. The board was afforded no authority to make 

additional fact findings or determinations of ultimate fact. See Winnebago, 727 

N.W.2d at 573. Our opinion became the law of the case. See id. (“The doctrine 

of the law of the case represents the practice of courts to refuse to reconsider 

what has once been decided.” (Citations omitted)). 

Without authorization, the board added a statement not contained in its 

original decision concerning Dr. Butt’s interference or potential interference with 
6

patient care. The board prefaced the statement with the language, “The Board 

believes.” The board neither cited nor quoted rule 653-13.7(5). 

Given the absence of a citation to rule 653-13.7(5), the board argues the 

rule was incorporated by reference within the cited rule governing unethical or 

unprofessional conduct. See Iowa Admin. Code r. 653-23.1(4). In its view, rule 

653-23.1(4) includes ‘violation of the standards and principles of medical ethics” 

and “[s]ection 653-13.7 is a rule on medical ethics which addresses ‘standards of 

practice’ for ‘office practices’ and includes a prohibition on ‘disruptive behavior.’” 

If we were to accept the board’s argument, the board could find a violation of any 

of the varied “standards of practice” contained in the rule, whether specifically 

charged or not.1 This is an irrational, illogical, and wholly unjustifiable 

interpretation of rule 653-23.1(4). See Evercom Sys., Inc. v. Iowa Utils. Bd., 805 

N.W.2d 758, 763 (Iowa 2011) (“We will [] review the Board’s interpretation of the 

rules it has promulgated . . . under the same deferential standard we used to 

review the Board’s interpretation of the statute.”); see also Al-Jurf v. Iowa Bd. of 

Med., No. 12-0293, 2013 WL 3830159, at *4 (Iowa Ct. App. July 24, 2013) 

(stating professional boards are clearly vested “with authority to interpret the 

chapters at issue”). 

Notably, the board’s own charging document did not incorporate all the 

rule 653-13.7 standards by reference. Instead, the board cited a single standard 

from the rule, the standard relating to sexual harassment. See 653 Iowa Admin. 

 

1 The rule proscribes everything from neglect of a patient to receipt of compensation for 

patient referrals. 
7

Code r. 653-13.7(6). Rule 653-13.7(5) on disruptive behavior was not 

mentioned.

We conclude the statement, “The Board believes that such conduct 

interferes with, or has the potential to interfere with, patient care and/or the 

effective functioning of health care staff,” was an agency finding of fact. We 

further conclude the finding of fact was not authorized by our remand directions. 

2. Substantial Evidence

Anticipating this conclusion, the board asserts, “Even if the Court views 

the Board’s recitation of [the] agency rule as a finding of fact, [] the statement is 

appropriate and not grounds for reversal.” In its view, “The Board made the 

statement in order to answer” the question of the appropriate discipline. The 

board contends, “Adequate patient care requires nurses, doctors, and clinic 

employees to work together closely” and “Dr. Butt’s disruptive behavior does 

have the potential to jeopardize patient care, in that nurses and employees that 

are badly treated may avoid doctors or fail to communicate effectively about 

patient care.” 

The board seems to argue it did nothing more than draw the obvious 

inferences that “adequate patient care requires nurses, doctors, and clinic 

employees to work together closely” and disruptive behavior could jeopardize 

patient care. But inferences, whether obvious or not, must amount to more than 

speculation and must be subject to reasonable deduction from the record. See 

Lewis v. State ex. rel. Miller, 646 N.W.2d 121, 124 (Iowa 2002) (“An inference is 

not legitimate if it is based upon speculation or conjecture.” (citation omitted)). 

The board’s finding that Dr. Butt’s conduct interfered with or had the potential to 
8

interfere with patient care could not reasonably be deduced from the record. See 

id. 

The board’s appellate brief cites no record evidence supporting the finding 

of an actual or potential threat to patient care. When pressed at oral argument, 

board’s counsel cited one of the employee’s expressions of fear of Dr. Butt. The 

board did not make a specific finding that Nurse Portz feared Dr. Butt. Assuming 

such fear can be gleaned from the record, the board found and our opinion 

stated Nurse Portz “never even worked with Dr. Butt.” Butt, 2013 WL 2637283,

at *4. As for employee Peska, our opinion notes she became “nervous” as a 

result of Dr. Butt’s comments.2 See id. at *13. Even if nervousness were 

synonymous with fear, the board points to no evidence Peska was involved with 

patient care.3 

Because the board’s finding that Dr. Butt interfered or potentially interfered 

with patient care could not reasonably be deduced from the record, it follows the 

finding was not supported by substantial evidence. See Iowa Code 

§ 17A.19(10)(f) (2013). We reverse the board’s remand decision to the extent it 

included this unauthorized fact finding, the patient care portion of which is also 

unsupported by substantial evidence. We remand to the district court for an 

 

2 The paper “certified copy” of the agency record does not include the original hearing 

transcript. The electronic record includes excerpts from the original hearing transcript. It 

is unclear why the electronic version deviates from the paper version. Relying on the 

table of contents to the original hearing transcript included in the electronic version, we 

have reviewed the transcript pages that should correspond to Employee Peska’s 

testimony. No mention is made of her fear of Dr. Butt. As for Nurse Portz’s testimony, 

we cannot find it in the electronic or paper version of the record. Her written statement, 

however, is included in both records and states, “I am also hoping for a long life ahead of 

me. If something does happen to me; I hope Medical Associates will enlighten 

investigators of the preceding event that has occurred with Dr. Butt.”

3 The record includes the agency’s original fact findings in their entirety, which state 

“Employee #1 [Peska] worked as a scheduler.” 
9

order directing the board to file an amended decision striking the following 

sentence: “The Board believes that such conduct interferes with, or has the 

potential to interfere with, patient care and/or the effective functioning of health 

care staff.” 

B. Refusal to Withdraw Report to National Practitioner DataBank

As noted, Dr. Butt asked the Board to withdraw its report from the NPDB.

4

 

On remand, the board declined the request. 

At oral arguments, Dr. Butt conceded the board is required to report 

sanctions and discipline to the Databank. See Iowa Admin. Code r. 653-25.32

(“The board shall report final decisions to the appropriate organizations, including 

but not limited to the National Practitioner DataBank . . . .”). He takes issue with 

the board’s decision to answer “Yes” to the following question: “Is the Adverse 

Action Specified in this Report Based on the Subject’s Professional Competence 

or Conduct, Which Adversely, or Could have Adversely Affected, the Health or 

Welfare of the Patient?” He asserts this portion of the report was “false and not 

based on evidence in the record.” 

Federal regulations governing the NPDB state:

Persons and entities are responsible for the accuracy of 

information which they report to the NPDB. If errors or omissions 

are found after information has been reported, the person or entity 

which reported it must send an addition or correction to the NPDB

. . . as soon as possible. The NPDB will not accept requests for 

readjudication of the case by the NPDB, and will not examine the 

underlying merits of a reportable action.

 

4

In our first appeal, we did not decide whether the board should have withdrawn its 

report to the NPDB. Accordingly, our opinion did not become the law of the case on the 

issue of NPDB reporting. See State ex. rel. Goettsch v. Diacide, 596 N.W.2d 532, 537 

(Iowa 1999) (stating the law of the case doctrine only applies to so much of the prior 

opinion that was essential to the determination required by the court). 
10

45 C.F.R. § 60.6 (2013). This provision requires the board to inform the NPDB of

our conclusion in Part IIA concerning the unauthorized and largely unsupported 

remand finding and the striking of that finding. Absent the finding, there is no 

evidentiary support for the “Yes” answer to the question on the NPDB form 

concerning patient care. Accordingly, we remand to the district court to remand 

to the agency with directions to (1) include in its amended decision a statement 

that the report to the NPDB will be amended to answer “No” to the question,

based on the evidentiary record made in Case No. 02-08-154, and (2) submit the 

amended decision to the NPDB within thirty days of its issuance.

C. Discipline 

Dr. Butt next argues the board’s decision to impose the same sanctions 

originally imposed was “inconsistent with prior practice and otherwise arbitrary, 

capricious, or an abuse of discretion.” In his view, because this court “reversed a 

portion of the Board’s initial findings upon which the original sanctions were 

imposed, . . . then reason would follow that those same sanctions would not be 

appropriate for a lesser set of facts.” 

As the board points out, Dr. Butt failed to articulate how the sanctions 

were inconsistent with prior practice. Accordingly, we will not consider this 

standard of review. See Iowa Code §17A.19(10)(h). 

Turning to the “arbitrary and capricious” standard cited by Dr. Butt, agency 

action is “arbitrary and capricious” if it was made “without regard to the law or 

facts.” Greenwood Manor v. Iowa Dep’t of Pub. Health, State Health Facilities 

Council, 641 N.W.2d 823, 831 (Iowa 2002). It is clear from our prior opinion that 
11

the board had grounds to discipline Dr. Butt. Accordingly, reversal is not 

mandated under this standard of review. See Iowa Code § 17A.19(10)(n).

We are left with the question of whether the imposition of the same 

sanctions constituted an abuse of discretion. Id. The board is authorized to 

impose a broad range of disciplinary sanctions, including revocation, suspension, 

restriction, probation, additional education or training, physical or mental 

evaluation, and civil penalties, citations, and warnings. See Iowa Admin. Code r. 

653-25.25(1). In “determining the nature and severity of the disciplinary 

sanction,” the board, in its “discretion,” “may [] consider[]” several factors: 

a. The relative seriousness of the violation.

b. The facts of the particular violation.

c. Any extenuating circumstances or other countervailing 

considerations.

d. Number of prior complaints, informal letters or disciplinary 

charges.

e. Seriousness of prior complaints, informal letters or 

disciplinary charges.

f. Whether the licensee has taken remedial action.

g. Such other factors as may reflect upon the competency, 

ethical standards and professional conduct of the licensee.

Iowa Admin. Code r. 653-25.25(2). These rules vest the board with discretion to 

determine the sanction. See Hagen v. Iowa Dental Bd., No. 13-0162, 2013 WL 

4769330, at *5 (Iowa Ct. App. Sept. 5, 2013). 

In ordering remand for reconsideration of the penalty, this court did not 

require the sanction to be lowered in light of our reversal of certain fact findings. 

See Butt, 2013 WL 2637283, at *15. We left it to the board to evaluate the 

propriety of the sanctions. Id. Under these circumstances, we are convinced 

there was no abuse of discretion in the imposition of the same sanctions. See 
12

Burns v. Bd. of Nursing of State of Iowa, 528 N.W.2d 602, 605 (Iowa 1995) 

(“When the licensing board is made up of members of the profession they are 

licensing, the court should not second guess the board’s discretion to determine” 

sanctions.). Accordingly, we affirm the sanctions imposed by the board on 

remand.5

D. Grossly Disproportional

Dr. Butt contends the sanctions were grossly disproportionate to his 

conduct. See Iowa Code §17A.19(10)(k) (authorizing reversal where the agency 

action is “[n]ot required by law and its negative impact on the private rights 

affected is so grossly disproportionate to the benefits accruing to the public 

interest from that action that it must necessarily be deemed to lack any 

foundation in rational agency policy”). He focuses on the costs he incurred as a 

result of the sanctions. This court rejected a similar argument in Hagen, 2013 

WL 4769330, at *5-6 (rejecting claim that potential monetary collateral 

consequences of the board’s discipline render an otherwise appropriate sanction 

grossly disproportionate). Similarly, we conclude the monetary outlay by Dr. Butt 

does not render the sanction “so grossly disproportionate to the benefits accruing 

to the public interest from that action that [the agency action] must necessarily be 

deemed to lack any foundation in rational agency policy.” See id. at *5.

E. Due Process

Dr. Butt contends his constitutional right to due process was violated when 

the board’s presiding officer discussed the time consuming nature of “repeat 

 

5 As noted, we have separately considered the report to the NPDB.
13

hearings.” This issue was not preserved for our review. Fisher v. Iowa Bd. of 

Optometry Exam’rs, 478 N.W.2d 609, 612 (Iowa 1991). 

III. Disposition

We affirm the sanctions imposed by the agency on remand and the 

balance of the decision, excluding the following statement: “The Board believes 

that such conduct interferes with, or has the potential to interfere with, patient 

care and/or the effective functioning of health care staff.” We reverse this agency 

statement as an unauthorized fact-finding, which is largely unsupported by 

substantial evidence.

We remand to the district court for an order directing the board to file an 

amended decision striking the statement. We further remand to the district court 

to remand to the agency with directions to (1) include in its amended decision a 

statement that the report to the National Practitioner Databank will be amended 

to answer “No” to the question on the NPDB form concerning patient care, based 

on the evidentiary record made in Case No. 02-08-154, and (2) submit the 

amended decision to the NPDB within thirty days of its issuance.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH 

DIRECTIONS.