Bhalerao v. Illinois Department of Financial and Professional Regulations et al

Filing 26

MEMORANDUM Opinion and Order Signed by the Honorable Robert M. Dow, Jr on 11/29/2011. Mailed notice(tbk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JAYANT C. BHALERAO, M.D.,
Plaintiff,
v.
ILLINOIS DEPARTMENT OF FINANCIAL
AND PROFESSIONAL REGULATIONS,
ET AL.,
Defendant.

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Case No.: 11-CV-7558
Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER
This matter is before the Court on Plaintiff Jayant Bhalerao, M.D.’s motion for
preliminary injunction. For the reasons set forth below, the motion is respectfully denied.
I.

Background
Plaintiff Jayant Bhalerao has been licensed as a physician in Illinois since 1973,

specializing in cardiology and internal medicine.

For the past ten years, he has practiced

medicine at a clinic in Orland Park, Illinois, where he sees approximately 10-15 patients per day.
In 1999, a patient accused Dr. Bhalerao of inappropriately touching her during an examination,
and the Henry County State’s Attorney charged him with one count of criminal sexual abuse and
one count of misdemeanor battery related to that accusation. Dr. Bhalerao entered a plea of not
guilty and testified on his own behalf at trial. On June 27, 2000, a jury acquitted Dr. Bhalerao of
the criminal sexual abuse charge, but returned a guilty verdict on the charge of misdemeanor
criminal battery. Plaintiff did not appeal the conviction. Dr. Bhalerao has never been convicted
of a sex offense. Following the verdict, Dr. Bhalerao was ordered to pay a fine of $2,500.00.
The court did not impose any additional punishment as part of his sentence, such as

imprisonment, probation, or community service, nor was Dr. Bhalerao required to register as a
sex offender.
On September 19, 2000, the Illinois Department of Financial and Professional Regulation
(“IDFPR”), which is charged with issuing, renewing and disciplining professional licenses,
including health professionals, filed a disciplinary action against Dr. Bhalerao, charging him
with “unprofessional conduct” under the Medical Practice Act. See 225 ILCS 60/22(A)(5). In
July 2002, Dr. Bhalerao and the Medical Disciplinary Board entered a Stipulation and
Recommendation for Settlement and submitted that recommendation to the Director.

On

December 30, 2002, the Acting Director of IDFPR entered an order (the “2002 Order”) adopting
the recommendation, which reprimanded Dr. Bhalerao’s license and required him to have a
chaperone present whenever he examined a female patient. Dr. Bhalerao has complied with the
conditions of the 2002 Order, and his license has remained in good standing and active status
since 2002.

The reprimand resulting from the 2002 Order is the only discipline on Dr.

Bhalerao’s record.
Effective August 20, 2011, the Illinois General Assembly added a new section, 20 ILCS
2105/2105-165, to the Civil Administrative Code of Illinois. Section 2105-165 mandates the
permanent revocation of the licenses of health care workers in certain circumstances. Section
2105-165 provides in pertinent part:
(a) When a licensed health care worker, as defined in the Health Care Worker
Self-Referral Act, (1) has been convicted of a criminal act that requires
registration under the Sex Offender Registration Act; (2) has been convicted of a
criminal battery against any patient in the course of patient care or treatment,
including any offense based on sexual conduct or sexual penetration; (3) has been
convicted of a forcible felony; or (4) is required as a part of a criminal sentence to
register under the Sex Offender Registration Act, then, notwithstanding any other
provision of law to the contrary, the license of the health care worker shall by
operation of law be permanently revoked without a hearing.

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20 ILCS 2105/2105-165 (emphasis added). On October 7, 2011, Dr. Bhalerao received a Notice
of Intent to Issue Permanent Revocation Order (“Notice”) from the IDFPR, notifying him that
his medical license was to be revoked because of a “[c]onviction of a criminal battery against a
patient in the course of patient care or treatment.” The Notice provided Dr. Bhalerao with the
opportunity to challenge the revocation for three reasons: (1) that he was incorrectly identified
as the person with the conviction; (2) that the conviction has been vacated, overturned, or
reversed, or a pardon has been granted; or (3) the conviction was not a disqualifying conviction.
Dr. Bhalerao concedes that none of these defenses apply to him. The Notice indicated that it
would become effective 20 days from its date (October 5, 2011) or on October 25, 2011.
Dr. Bhalerao filed his complaint and a motion for temporary restraining order on October
24, 2011. On October 25, 2011, the Court entered a temporary restraining order (“TRO”) [11],
which expired in the first instance on November 8, 2011. The Court entered an order [21] on
November 8 extending the TRO for “good cause” shown until November 22, 2011. The TRO
has been extended by agreement of the parties until November 29, 2011, to allow the Court time
to issue its written ruling after taking full briefing and oral argument. On November 2, 2011, Dr.
Bhalerao filed an amended complaint and motion for preliminary injunction. Plaintiff claims
that § 2105-165 is unconstitutional because it violates his rights to procedural and substantive
due process, it violates the “Contracts Clause,” and it violates constitutional prohibitions against
ex post facto laws and laws that result in double jeopardy. Plaintiff also argues that revocation of
his license is barred by the statute of limitations set forth in a separate statute (the Medical
Practice Act) and res judicata.

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II.

Standard for Preliminary Injunction
Like all forms of injunctive relief, a preliminary injunction is “an extraordinary remedy

that should not be granted unless the movant, by a clear showing, carries the burden of
persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (emphasis in original); see also
Goodman v. Ill. Dep’t of Financial & Professional Reg., 430 F.3d 432, 437 (7th Cir. 2005)
(same). To justify a preliminary injunction, Plaintiff must show that he is “likely to succeed on
the merits” of his claims, that he is likely to suffer irreparable harm without an injunction, that
the harm he would suffer without the injunction is greater than the harm that preliminary relief
would inflict on Defendants, and that the injunction is in the public interest. Michigan v. U.S.
Army Corps of Engineers, 2011 WL 3836457, at *2 (7th Cir. 2011) (citing Winter v. Natural
Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)).
If the moving party meets its initial burden, then the court must consider the irreparable
harm that the nonmoving party will suffer if preliminary relief is granted, balancing such harm
against the irreparable harm the moving party will suffer if relief is denied. Storck USA, L.P. v.
Farley Candy Co., 14 F.3d 311, 314 (7th Cir. 1994). The court also considers the public interest
served by granting or denying the relief, including the effects of the relief on non-parties. Id.;
see also Winter, 129 S. Ct. at 376-77 (“courts of equity should pay particular regard for the
public consequences in employing the extraordinary remedy of injunction”). The court weighs
all of these factors, “sitting as would a chancellor in equity” (Abbott, 971 F.2d at 12) and
applying a “sliding scale” approach, under which “the more likely plaintiff will succeed on the
merits, the less the balance of irreparable harms need favor plaintiff’s position.” Ty, Inc. v. The
Jones Group, 237 F.3d 891, 895 (7th Cir. 2001). As the Seventh Circuit has stressed, “[t]he
sliding scale approach is not mathematical in nature, rather ‘it is more properly characterized as

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subjective and intuitive, one which permits district courts to weigh the competing considerations
and mold appropriate relief.’” Id at 895-96 (quoting Abbott Labs, 971 F.2d at 12).1
Here, Plaintiff has met his burden of demonstrating that he is likely to suffer irreparable
harm without an injunction and that the harm he would suffer without the injunction is greater
than the harm that preliminary relief would inflict on Defendants.

Specifically, he has

demonstrated that he has an ascertainable right in his medical license. See Smith v. Department
of Registration and Ed., 106 N.E.2d 722, 726 (Ill. 1952) (“It has been universally held that a
license to practice medicine is a ‘property right,’ within the meaning of the constitutional
guarantees of due process of law.”). He also has shown that without an injunction, he will suffer
irreparable harm from being unable to continue in his career as a physician. Finally, he has
demonstrated that he has no adequate remedy at law in this matter, because monetary damages
fall short of remedying the loss associated with the revocation of his medical license and the end
to his chosen occupation. Because Dr. Bhalerao has met his burden with respect to these
elements, the Court moves expediently to the primary concern—whether Plaintiff has any chance
of success on the merits.
III.

Analysis
A.

Likelihood of Success on the Merits
1.

Substantive due process challenge

Plaintiff primarily advances two substantive due process arguments.

First, Plaintiff

contends that § 2105-165(a) has been applied retroactively as to him. And second, Plaintiff
maintains that § 2105-165(a) deprives him of a recognized property interest without a rational
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Even if a district court decides that the moving party has not satisfied one of the threshold requirements
for a preliminary injunction, the court of appeals has urged the district court “to conduct at least a cursory
examination” of all of the factors, both to expedite appellate review and to protect the interests of the
parties. Girl Scouts of Manitou Council, Inc. v. Girl Scouts of America, Inc., 549 F.2d 1079, 1087 (7th
Cir. 2008).

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basis. See, e.g., General Auto Svc. Station v. City of Chi., 526 F.3d 991, 997 (7th Cir. 2008)
(analyzing both types of claims under substantive due process). Substantive due process protects
fundamental liberty interests against infringement by the government. Reno v. Flores, 507 U.S.
292, 301-02 (1993); Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992). In this case, no
fundamental right is at issue (see Dittman v. State of Cal., 191 F.3d 1020, 1031 n.5 (9th Cir.
1999) (noting that Supreme Court has never recognized fundamental right to pursue one’s
chosen occupation)); however, Plaintiff has stated a “generalized” liberty interest in pursuing his
chosen field (see id. at 1029) (noting that early Supreme Court cases suggested such an interest).
Because a fundamental right is not involved, substantive due process requires only that “the
practice be rationally related to a legitimate governmental interest, or alternatively phrased, that
the practice be neither arbitrary or irrational.” General Auto Svc., 526 F.3d at 1000 (quoting Lee
v. City of Chicago, 330 F.3d 456, 461 (7th Cir. 2003)); see also Schware v. Bd. of Bar
Examiners, 353 U.S. 232, 239 (1957) (noting that state may legitimately set requirements for
occupational qualification, but such requirements “must have a rational connection with the
applicant’s fitness or capacity to practice”).
With regard to retroactivity, Plaintiff’s argument assumes that a statute that relies in part
upon antecedent facts—such as his earlier criminal battery conviction—necessarily operates
retroactively (or retrospectively).

However, “[a] statute does not operate ‘retrospectively’

merely because it is applied in a case arising from conduct antedating the statute’s enactment, []
or upsets expectations based in prior law. Rather, the court must ask whether the new provision
attaches new legal consequences to events completed before its enactment.” Landgraf v. USI
Film Products, 511 U.S. 244, 269-270 (1994). Thus, “[a] statute is not made retroactive merely
because it draws upon antecedent facts for its operation.” Cox v. Hart, 260 U.S. 427, 435 (1922);

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see also Reynolds v. United States, 292 U.S. 443, 449 (1934) (“A statute is not rendered
retroactive merely because the facts or requisites upon which its subsequent action depends * * *
are drawn from a time antecedent to the enactment.”).
The Seventh Circuit’s recent decision in United States v. Leach is instructive. In Leach,
the court upheld the Sex Offender Registration and Notification Act (“SORNA”), a law that
requires sex offenders to register in every jurisdiction in which they live, work, and attend
school, notify government officials when changing residence, and provide personal identifying
information. United States v. Leach, 639 F.3d 769 (7th Cir. 2011). The court identified Leach’s
complaint in terms that mirror an argument advanced by Dr. Bhalerao: that the law at issue
“effectively increases the punishment” for the prior offense. The court recognized that SORNA
“imposes significant burdens on * * * offenders who * * * may have committed their crimes and
completed their prison terms long before the statute went into effect” but also noted that the law
targeted “only the conduct undertaken by convicted sex offenders after its enactment.” The court
further clarified that, although “[a]ll of these requirements are triggered without respect to the
date of the convictions,” even “that does not make them retrospective: SORNA merely creates
new, prospective legal obligations based on the person’s prior history.” Id. at 773.
Here, even though the General Assembly clearly intended § 2105-165(a) to be used to
revoke health care licenses of individuals who had been convicted of certain offenses prior to the
effective date of the new statute, it is not being applied retroactively as that term is understood in
the case law. In other words, while § 2105-165 applies to convictions that predate the statute, it
is not retrospective. Like the statute at issue in Leach, § 2105-165 is “triggered without respect
to the date of the convictions” (see Leach, 639 F.3d at 773), but that alone does not make it
retroactive. To be sure, § 2105-165 “draws on antecedent facts for its operation” (Cox, 260 U.S.

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at 435), but it does not impose “new legal consequences” to “completed events” such as
Plaintiff’s conviction or his practice of medicine in the years since that conviction. Rather, the
statute looks prospectively at Plaintiff’s right to continue practicing medicine in the future. See
also INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984) (characterizing deportation as
“look[ing] prospectively to the respondent’s right to remain in this country in the future”). It
does not impinge on the right that Plaintiff had in the preceding years to practice—for example,
by divesting him of any profits that he earned prior to its enactment or deeming unauthorized his
practice of medicine during the time between his conviction and the revocation of his license.
Put another way, the statute “creates present and future effects on present and future conduct,
and has no effect on past conduct.” Collins v. Montgomery County Bd. of Prison Inspectors, 176
F.3d 679, 684 (3d Cir. 1999).
This analysis is supported by the Seventh Circuit’s observation that “[i]t would border on
the absurd to argue that these aliens might have decided not to commit drug crimes, or might
have resisted conviction more vigorously, had they known that if they were not only imprisoned
but also, when their prison term ended, ordered deported, they could not ask for a discretionary
waiver of deportation.” See LaGuerre v. Reno, 164 F.3d 1035, 1041 (7th Cir. 1998) (upholding
a law removing the possibility of discretionary relief from deportation for alien convicts).
Plaintiff was found guilty of criminal battery against a patient and did not rely on any law that
would provide him the possibility of better results if he decided to forego an appeal. Rather,
during the pendency of the criminal trial through the decision not to appeal, Plaintiff’s license
was subject to revocation at the discretion of IDFPR (under the Medical Practice Act)2 due to his
conduct and conviction. The reasoning of the court in LaGuerre applies here in that it seems
2

The Medical Practice Act, which was in effect at all relevant times, permitted IDFPR, in its discretion,
to revoke Plaintiff’s license for his conduct. See 225 ILCS 60/22(A)(5).

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superficial to argue that Plaintiff “might have decided not to commit” the battery “or might have
resisted conviction more vigorously” had he known that he faced not only criminal penalties but
also might not be entitled to the exercise of the IDFPR’s discretion in regard to whether his
license would be revoked. In fact, by the time that the IDFPR filed its 2000 complaint against
Plaintiff that could have—but did not—result in the revocation of his license, the time for
appealing Plaintiff’s conviction already had passed without the filing of a notice of appeal.
Plaintiff also contends that § 2105-165(a)’s revocation of his license runs afoul of the
substantive due process requirement that “the practice be rationally related to a legitimate
governmental interest * * *.” General Auto Svc., 526 F.3d at 1000 (quoting Lee v. City of
Chicago, 330 F.3d 456, 461 (7th Cir. 2003)); see also Schware v. Bd. of Bar Examiners, 353 U.S.
232, 239 (1957).

The Court respectfully disagrees.

All that Defendants need show is a

“conceivable” rational basis for statute, which is readily discernable. The General Assembly’s
interest in regulating the medical profession and protecting the public from health care workers
who have been convicted of battery against their own patients cannot seriously be questioned.
For more than a century, courts consistently have upheld statutes that withhold or revoke
occupational licenses for failure to meet or comply with conditions imposed by the state for
societal protection. See, e.g., Dittman, 191 F.3d at 1030-31; Abramson v. Gonzalez, 949 F.2d
1567, 1580-81 (11th Cir. 1992) (upholding statute requiring professionals to have state license
before holding themselves out as psychologists); Wineblad v. Dep’t of Educ. & Regis, 515
N.E.2d 705, 709 (Ill. App. Ct. 1st Dist. 1987) (holding that applying a new statutory licensing
requirement of taking a certifying exam to previously licensed nurses was not an improper
retroactive application of the statute) (citing Rios v. Jones, 63 Ill.2d 488 (1976); Brown v.
McGarr, 774 F.2d 777 (7th Cir. 1985)). Furthermore, courts have upheld statutes that require or

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allow revocation of professional licenses after a licensee has been convicted of a crime. See,
e.g., Hawker, 170 U.S. 189 (upholding statute forbidding felons from practicing medicine after
discussing general power of states to regulate professions, including requiring good character
and determining what evidences a lack of good character); Weiss v. N.M. Bd. of Dentistry, 798
P.2d 175, 180 (N.M. 1990) (noting that permitting revocation of license on basis of criminal
conviction “also reflects a legislative policy that public confidence in practitioners of a
profession should not be undermined by the licensing of convicted felons” and that “it is within
the legislative prerogative, in defining ‘the qualifications one shall possess in order to engage in
the practice of dentistry’ [] to prescribe the conditions under which the privilege [] or the
‘property right’ [] of so practicing shall be enjoyed”) (internal citations omitted); Warmouth v.
Del. State Bd. of Examiners in Optometry, 514 A.2d 1119 (Del. Super. 1985) (affirming statute
under which “conviction of a crime may be the sole basis for revocation of a license”).
In short, as the foregoing cases demonstrate, professional licenses always have been
subject to regulation. Moreover, the Illinois Supreme Court has noted that the General Assembly
has not only the right, but also the “duty to require that medical license applicants possess good
moral character.” Abrahamson v. Ill. Dept. of Prof. Reg., 606 N.E.2d 1111, 1118 (Ill. 1992).
The legislature’s interest in regulating the medical profession and protecting the public from
health care workers who have been convicted of batteries against their own patients is rationally
related to § 2105-165(a)’s license revocation for convicted professionals. The best that can be
said for Plaintiff’s position is that application of the statute in the particular (and in all likelihood
atypical) circumstances of this case leads to a harsh result. Here, we have a Plaintiff who
previously escaped revocation of his license following a criminal battery conviction after
thorough vetting by the appropriate regulators and continued to practice medicine for a decade

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since.

The Court does not doubt that Dr. Bhalerao would be a strong candidate for a

discretionary waiver of the revocation statute if such a waiver were authorized. But the General
Assembly has now made mandatory what previously was discretionary, stripping away from its
creation (the IDFPR) the authority to treat misdemeanants like Dr. Bhalerao more leniently than
others who fall within the ambit of § 2105-165. In so doing, the General Assembly has drawn a
bright line3 and cast a wide net.
To the extent that the Court might favor a regime that blurred the line or narrowed the
scope of the new law through continued agency discretion, the Court must remain cognizant that
the General Assembly is the primary expositor of Illinois public policy and is given wide latitude
in making classifications and drawing lines, especially in the exercise of its prerogatives
concerning public health, safety, and welfare. See, e.g., Mathews v. Diaz, 426 U.S. 67, 83 (1976)
(noting that “it remains true that some line is essential [and] that any line must produce some
harsh and apparently arbitrary consequences * * * * When this kind of policy choice must be
made, we are especially reluctant to question the exercise of congressional judgment.”); City of
Chicago v. Shalala, 1998 WL 164889, at *12 (N.D. Ill. Mar. 31, 1998) (“Congressional line
drawing necessarily implies that people with differing circumstances will be placed on either
side of the line. This court is not empowered to second-guess Congress’ decision as to where to
place that line”) (internal citations omitted). Put another way, the Court—indeed, any court—
may not second-guess the legislature’s judgment so long as it has a rational basis. Here, the
statutory language itself directly links revocation of the medical license and some kind of
criminal misfeasance during the course of patient care or treatment. At the level of generality at
3

Plaintiff appeared in his complaint to contend that the line drawn was not so bright, because the statute
was intended to apply to sexual predators, not to persons (like Plaintiff) who committed only a
misdemeanor criminal battery. However, in response to the Court’s repeated probing of the issue,
Plaintiff has acknowledged that his conduct clearly falls within the scope of the mandatory statutory
revocation and that any attempt to argue otherwise, either to the agency or the Court, would be futile.

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which it is written, the rational basis for the statute is self evident from its plain text. And the
fact that the statute covers tough cases that lie at the margins of its reach—like this one—does
not alter the rational basis inquiry. For all of these reasons, Plaintiff lacks a negligible chance of
success on the merits of his substantive due process challenge.
2.

Procedural due process challenge

Plaintiff also argues that the procedure provided in § 2105-165(a) is invalid as applied to
him on procedural due process grounds. In contrast to substantive due process claims, “[i]n
procedural due process claims, the deprivation by state action of a constitutionally protected
interest in ‘life, liberty, or property’ is not in itself unconstitutional; what is unconstitutional is
the deprivation of such an interest without due process of law.” Doe by Nelson v. Milwaukee
County, 903 F.2d 499, 502 (7th Cir. 1990); see also Brokaw v. Mercer County, 235 F.3d 1000,
1020-21 (7th Cir. 2000). Thus, a procedural due process claim involves a two-part analysis:
First, a court looks at whether the defendants deprived the plaintiff of a protected liberty or
property interest, and if so, then the court must assess what process was due. See Hamlin v.
Vaudenberg, 95 F.3d 580, 584 (7th Cir. 1996); Brokaw, 235 F.3d at 1020; LaBella Winnetka,
Inc. v. Village of Winnetka, 628 F.3d 937, 943-44 (7th Cir. 2010) (“To state a Fourteenth
Amendment claim for the deprivation of a property interest without due process, a plaintiff must
demonstrate that (1) he had a constitutionally protected property interest, (2) he suffered a loss of
that interest amounting to a deprivation, and (3) the deprivation occurred without due process of
law.”).
In this case, Plaintiff has alleged a liberty interest in his employment. “The concept of
liberty protected by the due process clause has long included occupational liberty—‘the liberty to
follow a trade, profession, or other calling.’” Wroblewski v. City of Washburn, 965 F.2d 452, 455

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(7th Cir. 1992) (citing Lawson v. Sheriff of Tippecanoe County, 725 F.2d 1136, 1138 (7th Cir.
1984)). The Due Process Clause of the Fourteenth Amendment does not make the denial of a
liberty interest actionable; it only makes the denial of a liberty interest without due process
actionable. “‘[D]ue process is flexible and calls for such procedural protections as the particular
situation demands.’” Gilbert v. Homar, 520 U.S. 924, 930 (1997) (quoting Morrissey v. Brewer,
408 U.S. 471, 481 (1972). Accordingly, when the risk of revoking a license erroneously is very
low and the government’s interest in revocation is high—and it typically is considered high when
it acts to protect the public—a hearing prior to revocation may not be necessary. Gilbert, 520
U.S. at 930-31 (holding no pre-deprivation hearing necessary for suspension for employee who
was charged with felony); People ex rel. Eppinga v. Edgar, 492 N.E.2d 187, 190-91 (Ill. 1986)
(no hearing in revocation of drunk drivers’ license was necessary when risk of erroneously
revoking the license was low and the government interest in revocation was high); see also
Mathews v. Eldridge, 424 U.S. 319, 335 (1976); McGarr, 774 F.2d at 784 -785.
Here, the risk that Plaintiff’s license is being revoked erroneously is remote. Plaintiff
admits the only facts required for revocation under § 2105-165(a)—that he is a licensed
physician in Illinois and that he has been convicted of criminal battery against a patient in the
course of treatment or care. And he also concedes that he cannot challenge the revocation on the
only factual bases possible under § 2105-165: (1) that he was incorrectly identified as the person
with the conviction; (2) the conviction has been vacated, overturned, reversed, or a pardon has
been granted; or (3) the conviction at issue is not a qualifying conviction under the statute.
Because Plaintiff has conceded all facts necessary for revocation of his license and also admits
that he does not fall within any recognized exception, a hearing would not benefit him. By

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contrast, “[i]n establishing the requirements for licensing health care professionals,” the State’s
interests “are of great importance.” Wineblad, 515 N.E.2d at 709
It also bears noting that Plaintiff received due process in the underlying criminal action.
Section 2105-165(a) requires that prior to revocation, the licensee must have been convicted of
one of the criminal offenses listed. A criminal conviction has been described as “conclusive
evidence” of both bad character and that the convict committed the offense. See Hawker, 170
U.S. at 196 (“[I]f [the legislature] may make a violation of criminal law a test of bad character,
what more conclusive evidence of the fact of such violation can there be than a conviction duly
had in one of the courts of the state?”); S.C. State Bd. of Dental Examiners v. Breeland, 38
S.E.2d 644, 649 (S.C. 1946) (holding that conviction was “conclusive evidence” that respondent
committed the offense); Smith v. Sheahan, 959 F. Supp. 841, 845 (N.D. Ill. 1997) (noting that in
Illinois “disciplinary proceedings, a conviction is conclusive evidence that the attorney has
committed acts that subject him or her to discipline; the court will not go behind the
conviction”). Plaintiff does not claim an absence of due process at the criminal trial and in fact
concedes that he pleaded not guilty and testified at trial in his own defense.
In short, taking into account all of the factors that inform the due process analysis, the
Court concludes that Plaintiff has been accorded all of the process that is due—both in regard to
his underlying conviction and the current revocation proceeding. The fact that Plaintiff does not
have a viable basis for invoking the administrative review process under § 2105-165(a) does not
alter the analysis. Nor is there any basis upon which Plaintiff can demand as a matter of due
process the exercise of agency discretion where the General Assembly has acted to remove any
such discretion to advance its public policy goals. Simply put, Plaintiff does not have any

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chance of success on the merits of his claim that § 2105-165(a) violates his right to procedural
due process.
3.

Double Jeopardy

Plaintiff also maintains that revocation of health care licenses under § 2105-165(a) for
criminal convictions violates the prohibition against double jeopardy under both the federal and
state constitutions. See, e.g., People v. Levin, 623 N.E.2d 317, 327-28 (Ill. 1993) (the double
jeopardy clause of our state constitution is to be construed in the same manner as the double
jeopardy clause of the federal constitution); In re P.S., 676 N.E.2d 656, 662 (Ill. 1997) (same).
“The Double Jeopardy Clause of the Fifth Amendment protects a criminal defendant from
repeated prosecutions for the same offense.” Oregon v. Kennedy, 456 U.S. 667, 671 (1982).
“The protection against multiple punishments prohibits the Government from punishing twice, or
attempting a second time to punish criminally for the same offense.” United States v. Ursery,
518 U.S. 267, 273 (1996).

To determine whether a license revocation is punishment for

purposes of the double jeopardy clause, courts consider whether the General Assembly intended
the proceedings to be civil. See Cox v. Commodity Futures Trading Comm’n., 138 F.3d 268, 272
(7th Cir. 1998) (“The first step in our analysis is to determine whether the legislature in
establishing the penalizing mechanism, indicated either expressly or impliedly a preference for
one label or the other”) (quotations omitted). If so, courts assess whether the proceedings are
nevertheless so punitive that the proceedings may not be legitimately viewed as civil in nature
despite the General Assembly’s intent. Id. (“Turning to the second stage of analysis, we must
determine whether, notwithstanding this legislative preference, the sanction operates in such a
way as to transform it into a criminal penalty.”).

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Here, the General Assembly included § 2105-165 in the Civil Administrative Code,
rather than in the Criminal Code, 720 ILCS 5/1-1 et seq. It was drafted as an agreed bill between
the State Medical Society and the Illinois Coalition against Sexual Assault (see 97th General
Assembly, Debate of HB 1271 (Third Reading), 4/11/2011) and appears to have been
precipitated at least in part by a Chicago Tribune investigation revealing that 16 doctors who had
been convicted of sex offenses were still licensed to practice. In addition to the mandatory
license revocation discussed above, the new law requires chaperones and notification to patients
for licensed health care workers who have been charged with, but not yet convicted of, such a
crime. 20 ILCS 2105/2105-165(c). Based on the Court’s assessment of these circumstances, it
seems clear that the legislative purpose behind the statute is civil—to protect public health,
safety, and welfare—and not to impose additional punishment for these health care workers’
crimes.
Turning to the second inquiry, in determining whether a statute has a punitive effect,
notwithstanding the General Assembly’s civil intent, the court’s inquiry is structured according
to the seven factors set forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963).
See Cox v. Commodity Futures Trading Comm’n., 138 F.3d at 272. Those factors are: (1)
whether the sanction involves an affirmative disability or restraint; (2) whether it has historically
been regarded as a punishment; (3) whether it comes into play only on a finding of scienter; (4)
whether its operation will promote the traditional aims of punishment, retribution, and
deterrence; (5) whether the behavior to which it applies is already a crime; (6) whether an
alternative purpose to which it may rationally be connected is assignable for it; and (7) whether it
appears excessive in relation to the alternative purpose assigned. Mendoza-Martinez, 372 U.S. at
168-69; see also People v. Malchow, 193 Ill.2d 413 (2000).

16

In Cox, the Seventh Circuit

considered whether an administrative sanction by the Commodity Futures Trading Commission
revoking the plaintiff’s floor broker registration and permanently barring him from trading in
markets regulated by the Commission constituted double jeopardy for his criminal conviction for
the same activities. The court determined that the revocation did not constitute double jeopardy.
The current situation presents a similar scenario in which the State seeks to revoke Plaintiff’s
medical license for criminal behavior; thus, the analysis conducted by the Seventh Circuit in
Cox, following the Supreme Court in Hudson v. United States, 522 U.S. 93 (1997), is instructive.
First, with respect to whether the “sanction” involves an affirmative disability or restraint,
the Cox court explained that this occurs when “the sanction in question smacks of the infamous
punishment of imprisonment.” Cox, 138 F.3d at 272-73 (citing Hudson, 522 U.S. at 99-103).
The court found that “[w]hile a registration revocation certainly keeps respondent from engaging
in certain activities, it does not approach the infamous punishment of imprisonment.” Id. at 273.
Similarly, § 2105-165 is limited to the revocation of health care professionals’ licenses and is not
akin to the far more serious punishment of imprisonment. This observation is not meant to
diminish the seriousness, particularly to Dr. Bhalerao, of license revocation. Nevertheless, even
after the new law is applied to Dr. Bhalerao, there will be no restraints on his liberty and he will
be legally free to pursue any line of work that does not require a medical license.
Second, the revocation of a voluntarily granted privilege, like a license, is not something
that courts have regarded as a punishment. See Hudson, 522 U.S. at 104 (recognizing that
“revocation of a privilege voluntarily granted * * * is characteristically free of the punitive
criminal element”) (internal quotations omitted).

Instead, changing the requirements for

licensure in Illinois has historically been viewed as a civil determination for the protection of the
public, rather than as a criminal penalty. “License revocation is not a criminal prosecution and is

17

neither a judgment of the illegality of such acts nor the infliction of a punishment for them * * *
* Thus, revocation of a professional license is not a criminal sanction * * *.”

Rasky v.

Department of Registration & Ed., 410 N.E.2d 69, 74-79 (Ill. App. Ct. 1st Dist. 1980) (internal
citations omitted); see also Roach Enterprises, Inc. v. License Appeal Comm’n. of City of
Chicago, 660 N.E.2d 276, 282 (Ill. App. Ct. 1st Dist. 1996) (“the revocation of a liquor license
for violating the conditions of its issuance does not constitute punishment for purposes of the
restriction on double jeopardy”); People v. Lavariega, 676 N.E.2d 643 (Ill. 1997) (holding that
summary suspension of a defendant’s driver’s license was not punishment for purposes of state
and federal double jeopardy clauses).
The third Kennedy factor asks “whether the sanction comes into play only on a finding of
scienter.” The Sex Offender Act appears to come into play upon a finding of scienter, which is a
necessary element of each of the crimes identified in the Sex Offender Act, including
misdemeanor battery.

See 720 ILCS 5/12-3 (“[A] person commits battery if he (or she)

intentionally and knowingly without legal justification and by any means causes bodily harm to
an individual or makes physical contact of an insulting or provoking nature with an individual.”);
see also Cox, 138 F.3d at 273 (looking at whether the relevant crimes require scienter). This
factor weighs in favor of Plaintiff.
The fourth factor asks whether the operation of the sanction will promote the traditional
aims of punishment such as retribution and deterrence. Even if § 2105-165 acts as a deterrent in
some cases, this does not necessarily transform the penalty from civil to criminal. “While
revoking a person’s registration will likely deter the transgressor and others from future illegal
conduct, the mere presence of this purpose is insufficient to render a sanction criminal, as
deterrence may serve civil as well as criminal goals.” Cox, 138 F.3d at 273 (quoting Hudson,

18

522 U.S. at 104). As noted by the Illinois Supreme Court, “it is unlikely that those not already
deterred from committing sex offenses by the possibility of a lengthy prison term will be
deterred by the additional possibility of community notification. Moreover, even an obvious
deterrent purpose does not necessarily make a law punitive.” People v. Malchow, 739 N.E.2d
433, 440 (Ill. 2000) (citing Department of Revenue of Montana v. Kurth Ranch, 511 U.S. 767,
780 (1937)). Here, Plaintiff’s license was already subject to possible revocation for his criminal
conviction, and thus the change in the law—from discretionary revocation to mandatory
revocation—does not appear to have been intended as an additional deterrent or retribution.
Rather, the aim primarily serves the civil goal of protecting the integrity of the medical
profession.
With respect to the fifth factor, § 2105-165 applies only to behavior that is already
criminal. Thus, this factor weighs in Plaintiff’s favor. See also Malchow, 739 N.E.2d at 440.
However, as noted by the court in Cox, “[t]his fact is insufficient to render the * * * sanctions
criminally punitive * * * particularly in the double jeopardy context.” 138 F.3d at 273 (quoting
Hudson, 522 U.S. at 105).
The final two Kennedy factors—whether there is an alternative purpose for the sanction
and whether the sanction appears excessive in relation to the alternative purpose assigned—lend
themselves to consideration together. The Seventh Circuit has described “alternative purpose” to
mean a purpose other than a punitive purpose. Cox, 138 F.3d at 273-74. In this case, the
alternative purpose for the sanction appears to be the “actual intended purpose,” which is to
protect public health, safety, and welfare and ensure the integrity of a professional field. Id.
However, the seventh factor—whether the sanction appears excessive in relation to the
alternative purpose assigned—is not so easily slotted. It is true, as Defendants repeatedly point

19

out, that Illinois courts have found that in establishing requirements for licensing health care
professionals, “the State’s interests are of great importance.” Wineblad, 515 N.E.2d at 709.
Certainly, preventing sex offenders, and even others with criminal convictions arising out of
patient conduct, from having access to patients advances the goal of protecting public health,
safety, and welfare. But whether that sanction is excessive, particularly given the present
circumstances, is not so easily decided. The court in Cox repeatedly stressed the fact that the
statute at issue only created a presumption that a person was unfit for registration and that the
Commission retained the discretion to grant the registration if the registrant shows that he does
not pose a threat to the market. Cox, 138 F.3d at 273-74. The court also pointed out that
revocation was not the only option available to the Commission and that the Commission had the
discretion to register conditionally, suspend, or place restrictions on the registration of any
person found to have been convicted of a felony or to have engaged in the requisite behavior. Id.
In concluding, the court specifically noted that “[b]ecause the Commission is charged with
protecting the integrity of the markets, and it has discretion regarding the appropriate sanction,
§§ 8a(2)(D) and (E) do not create an ‘excessive’ sanction.” Cox, 138 F.3d at 273-74.
Here, when the IDFPR had discretion, it found that Dr. Bhalerao was fit to practice
medicine (albeit with a chaperone present whenever he examined a female patient).

Dr.

Bhalerao has complied with the conditions of the 2002 Order. His license has remained in good
standing and active status since 2002, and the reprimand resulting from the 2002 Order is the
only discipline on Dr. Bhalerao’s record. Now, the IDFPR no longer has discretion regarding the
appropriate sanction, resulting in the imminent revocation of Dr. Bhalerao’s license to practice
medicine.

These facts render this case distinguishable from Cox—and more favorable to

Plaintiff—in regard to the seventh factor.

20

Although some of the Kennedy factors (the third, fifth, and seventh) favor Plaintiff, on
balance the Court cannot conclude that § 2105-165 operates in such a way as to transform it into
a criminal penalty. Revoking the licenses of doctors who have been convicted of battering a
patient in the past certainly helps to protect the welfare of future patients. Indeed, there are clear,
non-punitive goals advanced by the statute:
The practice of medicine in Illinois is lawfully prohibited by the State except on
the conditions it imposes, and the State’s legitimate concern for maintaining high
standards of professional conduct extends beyond the initial licensing. The
practice of medicine, in addition to skill and knowledge, requires honesty and
integrity of the highest degree, and inherent in the State’s power is the right to
revoke the license of those who violate the standards it set.
Kaplan v. Department of Registration and Ed., 361 N.E.2d 626, 631 (Ill. App. Ct. 1st Dist.
1977). In Kaplan, the Illinois Appellate Court ruled that revoking a doctor’s medical license for
the conviction of a crime was “not a second criminal proceeding placing the physician in double
jeopardy.” Kaplan v. Department of Registration and Ed., 361 N.E.2d 626, 631 (Ill. App. Ct. 1st
Dist. 1977). Rather, the court found the purpose to be “to maintain sound, professional standards
of conduct for the purpose of protecting the public and the standing of the medical profession in
the eyes of the public * * * * It has long been the law that the conviction of a criminal offense or
felony is a sufficient ground for revocation of a physician’s license, even where the offense is not
related to the professional itself * * *.” Id.
The protection of the public from healthcare professionals who have been convicted of
the listed crimes provides a non-punitive goal for § 2105-165: allowing convicted healthcare
professionals to continue to practice would give them access to patients and patient information,
after they have already been found to have violated a patient’s trust. Illinois courts have
recognized the special trust relationship between a patient and healthcare professional:

21

A person who would flee from a needle-wielding stranger on the street willingly
rolls up his sleeve for his needle-wielding doctor because he trusts him * * * *
Patients are at no higher risk of being sexually assaulted in general, but they are at
an infinitely higher risk of being assaulted under the pretext of care or in the
course of an otherwise legitimate medical examination. This hospital sexual
assault differs fundamentally from a situation in which a doctor sexually assaults
a patient on the street, or in a bar, or in the hallway leading to his office. The
potential for sexual abuse in the modern medical setting is evinced by the extreme
pains conscientious health-care providers take to ensure they will never be
accused of it.
Kaufmann v. Jersey Community Hosp., 919 N.E.2d 1077, 1094-95 (Ill. App. Ct. 4th Dist. 2009).
In sum, although certain factors suggest that the sanction at issue is a “criminal” one, in light of
the circumstances as a whole, those factors are insufficient to “override legislative intent and
transform what has been denominated a civil remedy into a criminal penalty.” Hudson, 522 U.S.
at 99. In the face of legislative intent and the language of Illinois courts’ regarding the special
trust relationship between a patient and a physician and the high standards sought in the field of
healthcare, this Court concludes that the license revocation required by § 2105-165 constitutes a
civil sanction, not a criminal punishment. Thus, the Court determines that Plaintiff does not have
a chance of success on the merits of his double jeopardy claim.
4.

Ex Post Facto Clause

Plaintiff also maintains that § 2105-165(a) is an unconstitutional ex post facto law. The
Ex Post Facto Clause prohibits retroactive punishment. U.S. CONST. art. I, § 9, cl. 3. The
Supreme Court has held that “the constitutional prohibition on ex post facto laws applies only to
penal statutes which disadvantage the offender affected by them.” Collins v. Youngblood, 497
U.S. 37, 41 (1990); see also O'Grady v. Village of Libertyville, 304 F.3d 719, 723 (7th Cir.
2002). In other words, the Clause “is aimed at laws that retroactively alter the definition of
crimes or increase the punishment for criminal acts.”

California Dept. of Corrections v.

Morales, 514 U.S. 499, 505 (1995) (citations and quotations omitted). “[T]wo critical elements

22

must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it
must apply to events occurring before its enactment, and it must disadvantage the offender
affected by it.” Weaver v. Graham, 450 U.S. 24, 29 (1981). The ex post facto clause applies
only to criminal laws. Harisiades v. Shaughnessy, 342 U.S. 580, 594 (1952) (“It always has
been considered that that which it forbids is penal legislation which imposes or increases
criminal punishment for conduct lawful previous to its enactment.”); O’Grady, 304 F.3d at 723.
The Supreme Court has emphasized the restriction to penal statutes and thus a civil statute “will
implicate ex post facto concerns only if it can be fairly characterized as punishment.” U.S. v.
Leach, 639 F.3d 769, 772 (7th Cir. 2011) (quoting Bae v. Shalala, 44 F.3d 489, 492 (7th Cir.
1995)).
As previously discussed, the Court does not believe that § 2105-165(a) is retroactive
because it only targets conduct (holding a license and practicing medicine) undertaken after its
enactment. See also Leach, 639 F.3d at 773 (“SORNA merely creates new, prospective legal
obligations based on the person’s prior history”). It does not penalize Dr. Bhalerao for the past
ten years; rather, it bars him going forward. Furthermore, for § 2105-165(a) to violate the Ex
Post Facto Clause, it must be both retrospective and penal. Id. Yet it is not a law that falls into
one of the traditional categories of prohibited criminal laws. The clear intent of § 2105-165(a),
whether it achieves that intent or not, is to protect the public health, safety, and welfare. See,
e.g., Smith v. Doe, 538 U.S. 84 (2003) (finding the Alaska Sex Offender Registration Act is
designed to protect the public and is non-punitive in nature); Hawker, 170 U.S. 189 (holding that
criminal conviction can be used by State as evidence of a lack of good character and basis to
revoke medical license, and law regarding same is not ex post facto). Thus, Plaintiff has no
likelihood of success on his ex post facto argument.

23

5.

The Contracts Clause

Plaintiff next contends that the Contracts Clause prohibits the “retroactive application of
the Sex Offender Act” to Plaintiff. The Contracts Clause provides that “No State shall * * * pass
any * * * Law impairing the Obligations of Contracts.” U.S. Const. Art. I, § 10. First, it is
debatable whether the 2002 Order meets the required elements of a contract under Illinois law.
Although Plaintiff and the Disciplinary Board had previously entered a stipulation
recommending settlement to the IDFPR’s Director, it was not binding on the IDFPR. The
Director issued the 2002 Order, and Plaintiff, who did not sign the order, was not a party to that
order but was required to follow its dictates. But even if the 2002 Order were a consent order,
Plaintiff’s argument still fails. The Contracts Clause notwithstanding, contractual rights remain
subject to the police power of the state. See Keystone Bituminous Coal Ass’n v. DeBenedictis,
480 U.S. 470, 503 (1987) (“It is to be accepted as a commonplace that the Contracts Clause does
not operate to obliterate the police power of the States”) (quoting Home Building & Loan Ass’n
v. Blaisdell, 290 U.S. 398, 445 (1934)); Lincoln Towers Insurance Agency, Inc. v. Boozell, 684
N.E.2d 900, 903-04 (1997); see also Commonwealth Edison Co. v. Illinois Commerce Com'n,
924 N.E.2d 1065, 1086-88 (Ill. App. Ct. 2d Dist. 2009). The state always retains the authority to
safeguard the interests of its citizens. Sanelli v. Glenview State Bank, 483 N.E.2d 226 (1985).
Put differently, “[o]ne whose rights, such as they are, are subject to state restriction, cannot
remove them from the power of the State by making a contract about them. The contract will
carry with it the infirmity of the subject matter.” Hudson County Water Co. v. McCarter, 209
U.S. 349, 357 (1908).
Here, the legislature enacted § 2105-165 for the purpose of protecting the public from
health care professionals, who, like Plaintiff, have been convicted of batteries against their

24

patients and certain other crimes. The legislature determined that the discretionary provisions of
the Medical Practice Act were insufficient to serve the public and that mandatory revocation was
required for health care professionals convicted of those crimes listed in § 2105-165(a).
Accordingly, the legislature exercised its police power to protect the public. Plaintiff has not met
his burden of demonstrating that the Court should substitute its judgment for the Illinois General
Assembly in these circumstances or that he has any prospect of success on the merits of a
Contracts Clause claim in light of the cases discussed above.
6.

Statute of limitations

Plaintiff also argues that the five-year statute of limitations in § 22 of the Medical
Practice Act, 225 ILCS 60/22, bars the revocation of his medical license under § 2105-165(a)
because the IDPFR disciplined him based on his criminal conviction more than five years ago.
Under Illinois law, to determine whether a statute of limitations applies to § 2105-165(a), the
Court must determine whether the General Assembly intended a particular limitations period to
apply. See People ex rel. Dept. of Labor v. K. Reinke, Jr. and Company/Reinke, 746 N.E.2d 12,
15 (Ill. App. Ct. 1st Dist. 2001). “In addition to the language chosen by the legislature, the court
should consider the reason for the law, the evil to be remedied, and the purpose to be obtained
thereby.” Id. “Legislative intent is best evidenced by the language used by the legislature, and
where an enactment is clear and unambiguous a court is not at liberty to depart from the plain
language and meaning of the statute by reading into it exceptions, limitations or conditions that
the legislature did not express.” Kraft, Inc. v. Edgar, 138 Ill.2d 178, 189 (1990) (emphasis
added). While the State may be at times bound by statutes of limitations, Illinois courts consider
the nature of the right sought to be asserted in determining whether a statute of limitations
applies to the State when the statute does not specify a limitations period. Reinke, 746 N.E.2d at

25

15. “[T]he determination whether a government’s action is immune from a statute of limitations
depends on whether the right sought to be asserted is a right belonging to the ‘general public’
rather than to the government or to ‘some small and distinct subsection of the public at large.’”
Id. at 16 (citing City of Shelbyville v. Shelbyville Restorium, Inc., 451 N.E.2d 874 (1983)).
Here, there is no indication that the General Assembly intended that the statute of
limitations set forth in the Medical Practice Act to apply to the newly enacted section of the Civil
Administrative Code. The language of both enactments refutes this theory. First, in relevant
part, the statute of limitations in the Medical Practice Act states that “all proceedings to suspend,
revoke, place on probationary status, or take any other disciplinary action as the Department may
deem proper, with regard to a license on any of the foregoing grounds, must be commenced
within 5 years next after receipt by the Department of a complaint alleging the commission of or
notice of the conviction order for any of the acts described herein.” 225 ILCS 60/22(A). By its
terms, this statute of limitations applies only to “proceedings to * * * revoke * * * with regard to
a license on any of the foregoing grounds.” 225 ILCS 60/22(A). Because this limitations period
relates specifically to discretionary disciplinary actions taken by IDFPR against medical
licensees under § 60/22(A) of the Medical Practice Act, it is limited by its terms to only those
actions.
Second, the placement and terms of § 2105-165(a) indicate that the General Assembly
did not intend the limitations period for the Medical Practice Act to apply to actions under §
2105-165. The General Assembly placed § 2105-165 in the Civil Administrative Code, not in
the Medical Practice Act, and § 2105-165 does not incorporate any statute of limitations,
including the limitations period set forth in the Medical Practice Act. Rather, § 2105-165(a)
requires permanent revocation of licenses of health care professionals who have committed the

26

listed offenses without a hearing and “notwithstanding any other provision of law to the
contrary.” 20 ILCS 2105/2105-165(a) (emphasis added).
Because it does not incorporate a statute of limitations and asserts a public right, § 2105165 is consistent with legislative enactments that are not intended to have a statute of limitations.
See Reinke, 746 N.E.2d at 15-17 (determining that catchall five-year statute of limitations in the
Code of Civil Procedure did not apply because action brought under § 12(b) of the Act “asserts a
right belonging to the general public” and “[t]he legislature likely believed that an action by a
State agency to enforce compliance with a wage law involved a public right and was immune
from statutes of limitation.”). Like the Reinke statute, § 2105-165 does not incorporate a
limitations period and asserts a public right of protection against health care workers that have
been convicted of certain crimes. In short, for all of these reasons, the five-year statute of
limitations in § 22 of the Medical Practice Act does not bar the revocation of Plaintiff’s medical
license under § 2105-165(a) of the civil Administrative Code, and Plaintiff’s arguments to the
contrary cannot succeed.
7.

Res judicata

Plaintiff’s final contention is that res judicata prevents the revocation of his license,
presumably because the available relief under § 2105-165(a)—mandatory license revocation—is
among the forms of relief available under the Medical Practice Act. The applicability of res
judicata rests on three elements: “(1) an identity of the parties or their privies; (2) identity of the
cause of action; and (3) a final judgment on the merits.” Prochotsky v. Baker & McKenzie, 966
F.2d 333, 334 (7th Cir.1992); see also Alvear-Velez v. Mukasey, 540 F.3d 672, 677 (7th Cir.
2008). Res judicata applies to administrative hearings if “the administrative agency is acting in a
judicial capacity and resolves disputed issues of fact properly before it where the parties have

27

had an adequate opportunity to litigate.” United States v. Utah Constr. & Mining Co., 384 U.S.
394, 422 (1966); see also Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104, 107-08.
However, courts have applied res judicata much more flexibly in the administrative context.
See, e.g., Alvear-Velez, 540 F.3d at 677; Int'l Harvester Co. v. OSHA, 628 F.2d 982, 986 (7th
Cir.1980) (“This court does not adhere to a rigid view of the doctrine in the administrative
context.”); see also Collins v. Pond Creek Mining Co., 468 F.3d 213, 229 n. 3 (4th Cir.2006)
(“[R]es judicata of administrative decisions is not encrusted with rigid finality that characterizes
the precept in judicial proceedings.”); Bravo-Pedroza v. Gonzales, 475 F.3d 1358, 1359 (9th Cir.
2007); Sharp Kabushiki Kaisha v. Thinksharp, Inc., 448 F.3d 1368, 1372 (Fed. Cir. 2006);
Facchiano v. U.S. Dep't of Labor, 859 F.2d 1163, 1167 (3d Cir. 1988).
In United States v. Fisher, the Seventh Circuit found that res judicata did not bar agency
action under statutory amendments that conflicted with a prior consent decree. 864 F.2d 434,
439 (7th Cir. 1988). The court noted that the Superfund amendments under which that suit was
filed were enacted four years after the consent decree was signed, and that the amendments
directed the EPA in no uncertain terms to take peremptory steps to protect the public health. The
court then concluded that the EPA had “no authority to refuse to enforce the statute just because
its staff made commitments before Congress spoke.” 864 F.2d at 439. As Fisher suggests, in
determining whether the doctrine of res judicata should be applied with less rigidity than usual,
courts have placed great weight on the identity of the institution of government responsible for
the change in law. “Notably, although changes in case law almost never provide a justification
for instituting a new action arising from the same dispute that already has been litigated to a final
judgment, statutory changes that occur after the previous litigation has concluded may justify a

28

new action.” Alvear-Velez v. Mukasey, 540 F.3d 672, 678 (7th Cir. 2008); see also Federated
Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 398-99 (1981); Fisher, 864 F.2d at 439.
Here, even if the IDFPR’s 2002 Order were considered a “consent decree,”4 § 2105165(a) requires “in no uncertain terms” that health care workers who have been convicted of
criminal battery against patients will lose their licenses by operation of law. The General
Assembly has altered the landscape, and, under the new regime, the IDFPR does not have the
authority to refuse to enforce § 2105-165(a). After the passage of § 2105-165(a), a person
convicted of criminal battery against a patient is no longer allowed to hold a license to practice
medicine; mandatory revocation is no longer one of several consequences that can be applied—it
is the only permissible course for the IDFPR. This statutory change created a course of action
which was unavailable during the disciplinary proceedings in 2002: The IDFPR could not have
brought an action under § 2105-165(a) mandating revocation in the prior disciplinary action
because § 2105-165(a) had not yet been enacted. See Alvear-Velez, 540 F.3d at 678. Moreover,
because “[t]he relevant change in the law here is statutory in nature, as opposed to a change in
case law, and that change is being applied in the administrative context” (id. at 680), the
arguments for applying res judicata are less persuasive. In sum, under the case law cited above,
application of res judicata would not be appropriate in the circumstances of this case because it
(i) would be inconsistent with the newly enacted legislation and (ii) would frustrate the General
Assembly’s decision to mandate the revocation of medical licenses of health care workers
convicted of certain offenses.

4

As previously noted, whether the 2002 order can be considered a “consent decree” is a debatable
proposition. See supra pp. 23-24.

29

III.

Conclusion
For the reasons set forth above, the Court concludes that Plaintiff has not shown a

likelihood of success on the merits.

Therefore, the Court denies Plaintiff’s motion for a

preliminary injunction.

Dated: November 29, 2010

___________________________________
Robert M. Dow, Jr.
United States District Judge

30