William G. Clowdis, Jr., M.D. v. Virginia Department of Health Professions

• Court: Court of Appeals of Virginia
• Decided: October 21, 2025
• Docket: 1551243
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Fulton, Callins and Senior Judge Humphreys UNPUBLISHED

Argued at Richmond, Virginia

WILLIAM G. CLOWDIS, JR., M.D. MEMORANDUM OPINION* BY v. Record No. 1551-24-3 JUDGE ROBERT J. HUMPHREYS OCTOBER 21, 2025 VIRGINIA DEPARTMENT OF HEALTH PROFESSIONS, ET AL.

FROM THE CIRCUIT COURT OF CAMPBELL COUNTY John T. Cook, Judge

M. Paul Valois (James River Legal Associates, on briefs), for appellant.

M. Brent Saunders, Senior Assistant Attorney General (Jason S. Miyares, Attorney General; Robert B. Bell, Deputy Attorney General; Allyson K. Tysinger, Senior Assistant Attorney General, on brief), for appellees.

William G. Clowdis, Jr., M.D.,1 challenges the circuit court’s order granting the

Department of Health Professions’ and Board of Medicine’s plea in bar to his claims for

declaratory judgment. Clowdis sought a declaration that a 2007 order by the Department

suspending his medical license was void ab initio, as were two subsequent orders by the Board of

Medicine that were based in part on the 2007 order. He also sought a declaration that Code

§ 54.1-2409(A) is unconstitutional as applied to him because it permits the automatic suspension

* This opinion is not designated for publication. See Code § 17.1-413(A). 1 Clowdis filed this action under the pseudonym “Dr. John Doe, M.D.” and moved the circuit court for leave to proceed anonymously under Code § 8.01-15.1. The circuit court never ruled on that motion, and Clowdis did not assign error to the court’s failure to do so. Thus, this case has been restyled using his name. See Clowdis v. Owens, No. 230107 (Va. Aug. 14, 2023) (order) (restyling earlier related case in Clowdis’s name after he failed to seek Court’s leave to proceed under a pseudonym). of a medical license based on false information or error. The circuit court concluded that

Clowdis’s claims were barred by the statute of limitations under Code § 8.01-243(B) and by the

doctrine of sovereign immunity. This appeal follows.

BACKGROUND

On September 6, 2005, Clowdis pleaded guilty to two misdemeanors and a felony in

Colorado. The Colorado court sentenced Clowdis to a four-year diversion program with a return

date of September 6, 2009. The sentencing order expressly states: “JUDGMENT OF

CONVICTION IS NOW ENTERED.” The terms of the sentencing order required Clowdis to

complete domestic violence and child abuse classes, pay counseling costs “for Ms. Clowdis and

two minor children,” submit to random urinalysis testing, and not possess any firearms

“throughout the entire term” of the deferred judgment and sentencing. The order also required

Clowdis to pay restitution and provide his general residence location information for the benefit

of the victims, and it maintained a protective order until the end of the deferred judgment term.

The order permitted Clowdis to participate in electronic monitoring at the discretion of diversion

program authorities.

On March 16, 2007, the Office of the District Attorney for the First Judicial District of

Colorado issued Clowdis a “Certificate of Completion.” The document “verifies the attendance

and participation of [Clowdis] conforming to the guidelines established by [the district attorney’s

office].” It is signed by an individual named Bobbi Spicer, and the signature line is labeled

“Diversion Services.” The document does not otherwise explain its significance or what

Clowdis completed. Clowdis alleges that he “completed [the] diversion program” on March 16,

2007, and that his guilty plea and felony charge were withdrawn and his case dismissed with

prejudice by operation of the Colorado deferred judgment statute on that date. See Colo. Rev.

-2- Stat. § 18-1.3-102 (2007). The Colorado court entered an order dismissing the felony charge

with prejudice on August 19, 2008.

But before that dismissal, in April 2007, the Director of the Department issued an order

suspending Clowdis’s medical license under Code § 54.1-2409(A) because the Department had

received records from the Colorado court reporting that Clowdis had pleaded guilty to a felony.

Clowdis did not appeal or otherwise dispute the 2007 order.

On December 4, 2008, Clowdis petitioned the Board under Code § 54.1-2409(D) for

reinstatement of his medical license. The Board issued a “Statement of Particulars” on May 26,

2009, concluding that Clowdis “may be in violation” of various professional conduct laws,

including Code §§ 54.1-2915(A)(1), (2), (4), (14), (16), (18), (20) and 54.1-111(A)(6). These

potential violations were based on the underlying facts in the Colorado felony case as well as

various other issues the Board discovered while investigating Clowdis’s petition, generally

stemming from Clowdis’s struggles with mental illness and substance abuse.

The Board’s statement of particulars also noted that Clowdis had provided “false and/or

misleading information” in his petition for reinstatement and to a Department investigator during

the follow-up investigation.2 According to the statement, Clowdis answered “No” to the

question, “Do you have a physical disease, mental disorder, or any condition which could affect

your performance of professional duties?” But the Department investigator eventually

discovered, after questioning Clowdis about the felony charge, that Clowdis had “an extensive

history of mental illness” including “numerous diagnoses” from approximately 2001 to 2007.

The diagnoses included:

major depression with psychotic features; adjustment disorder; adjustment disorder with psychotic features, generalized anxiety

2 Clowdis attached the statement of particulars as an exhibit to the complaint and mentioned it in his allegations; thus, it is part of the pleading. Rule 1:4(i); Cal. Condo. Ass’n v. Peterson, 301 Va. 14, 22 (2022). -3- disorder; post traumatic stress disorder; delirium secondary to opiate and benzodiazepine dependence and/or withdrawal; manic episode; delusional and psychotic thinking; panic disorder; bipolar disorder I with psychosis; paranoia; narcissistic personality disorder; mood disorder; undifferentiated somatoform disorder secondary to narcissistic personality traits; inadequate coping skills; and seizure disorder related to benzodiazepine withdrawal.

Clowdis also answered “No” to the question of whether he had ever had his clinical

privileges suspended, revoked, or denied, or been otherwise disciplined by a health care facility

or entity. But, according to the statement of particulars, the Board’s investigation revealed that

in 2003, he filed a complaint in federal court against Carillion Health Care Plans, Inc. and

Carillion New River Valley Medical Center alleging that the former had wrongfully suspended

him as a preferred provider after he was charged with assault and battery, sexual battery, and

contributing to the delinquency of a minor in October 2000. Finally, the statement of particulars

noted that Clowdis’s written account of the felony charge to the Department investigator was

inconsistent with documentation the investigator had obtained from the Colorado court and with

Clowdis’s medical records.

Based on the statement of particulars, the Board required Clowdis to withdraw his request

for reinstatement and to undergo various medical and psychological evaluations before the Board

would formally consider his case. On May 19, 2011, the Board held a hearing on Clowdis’s

petition for reinstatement. At the hearing, Clowdis attempted to argue that he was not a

convicted felon, but the Board limited him to presenting evidence and argument regarding his

mental health and medical condition. In an order dated May 24, 2011, the Board concluded that

Clowdis had violated Code § 54.1-2915(A)(16) and (20) based on the disposition of the

Colorado case and its underlying facts. The Board also concluded that Clowdis had violated

Code § 54.1-2915(A)(2) and (14) through certain incidents of substance abuse and struggles with

mental illness. The Board continued the suspension of Clowdis’s license but ordered that the

-4- suspension would be stayed and his license reinstated upon his entry into the Virginia Health

Practitioners’ Monitoring Program (the Program). Shortly thereafter, Clowdis entered a

monitoring contract under the Program, and the Board provisionally reinstated his license. But

Clowdis was dismissed from the Program in 2012 because he withdrew from monitoring.

Clowdis later explained that the Program “prevented [him] from earning any wages, even in a

non-medical capacity, . . . prevented him from meeting his court-ordered child support

obligation[,] and . . . prevented him from leaving the Commonwealth.”

In 2013, the Board held a hearing on Clowdis’s violation of the 2011 order. Clowdis

again attempted to challenge the 2007 suspension order, but the Board disallowed it. The Board

entered an order finding that Clowdis had violated its 2011 order by failing to comply with the

terms of his Program contract and being dismissed from the Program. The Board suspended

Clowdis’s license but ordered that the suspension would be stayed if Clowdis entered another

Program contract. The Board also imposed a $5,000 monetary penalty and issued him a

reprimand. Clowdis appealed the 2013 order to a circuit court, which affirmed the suspension of

his license. Clowdis appealed the circuit court order to this Court, and we also affirmed. See

Clowdis v. Va. Bd. of Med., No. 1381-17-2, 2018 Va. App. LEXIS 34 (Feb. 13, 2018).

Clowdis filed a petition to the Board in May 2022 to be exonerated under Code

§ 54.1-2400(10)(i). Clowdis sent follow-up notices in August 2022 and February 2024, but the

Board did not act upon the request.3

In 2023, Clowdis filed a petition for writs of mandamus and prohibition in the Supreme

Court of Virginia against the Department, the Board, and the directors of both agencies; he

sought restoration of his medical license, a declaration that the 2007 order and all subsequent

3 The complaint states that the Board “refused to act” upon the petition, but it does not explain whether the Board responded in any way to the petition, or what reasons, if any, the Board gave for its refusal. -5- related orders were void ab initio, and an order directing the respondents to correct public

records of Clowdis’s license suspension status and history. See Clowdis v. Owens, No. 230107,

slip op. at 1 (Va. Aug. 14, 2023) (order). Clowdis argued that because he was never convicted of

a felony, the Department did not have jurisdiction to enter the 2007 order suspending his license

under Code § 54.1-2409(A). Id. at 2. Thus, according to Clowdis, the 2007 order was void ab

initio, as were the Board’s 2011 and 2013 orders relying on the 2007 order. Id.

The Supreme Court denied the petition. Id. at 2-4. The Court held that the writ of

mandamus was barred by the statute of limitations because a medical license is a property

interest; thus, Clowdis’s action to restore the license was subject to the five-year statute of

limitations applicable to “[e]very action for injury to property.” Id. at 3 (quoting Code

§ 8.01-243(B)). Each of the challenged orders was entered more than five years before the 2023

petition. Id.

The Supreme Court further held that, “[t]o the extent [Clowdis] asserts the 2007 order is

void and subject to challenge at any time, he has not demonstrated the Director of [the

Department] lacked jurisdiction to enter the 2007 order.” Id. at 3. Even if “the Director erred in

concluding the documentation demonstrated [Clowdis] was actually convicted of the felony

under Colorado law,” the Court explained, the error would “not render [the Department] without

jurisdiction to enter such a suspension order.” Id. Thus, the 2007 order was not void ab initio; if

it was erroneous, it was merely voidable. Id. A writ of mandamus did not lie because an order

voidable for error, rather than void ab initio, must be challenged by timely appeal or other

appropriate proceeding. Id. at 3-4. Finally, the Supreme Court concluded that a writ of

prohibition did not lie because there was no impending future action to prohibit. Id. at 4.

Clowdis brought the present declaratory judgment action in March 2024. The

Department and the Board filed a plea in bar and motion to dismiss, arguing that Clowdis’s

-6- claims for declaratory judgment were barred by sovereign immunity, the statute of limitations,

and the doctrines of res judicata and collateral estoppel. Based on the pleadings, the circuit court

concluded that Clowdis’s claims were time-barred under Code § 8.01-243(B) and barred by

sovereign immunity. Clowdis filed motions to stay the final order, for reconsideration, and for

leave to file an amended complaint. The court denied the motion to stay and did not rule on the

other motions.

On appeal, Clowdis assigns error to the circuit court’s conclusions that the statute of

limitations and sovereign immunity bar his claims. Clowdis also argues the circuit court’s denial

of his motion to stay the final order was erroneous because his motions for reconsideration and

for leave to file an amended complaint were meritorious and the court should have granted them.

ANALYSIS

I. Legal Background and Scope of Issues on Appeal

“A plea in bar asserts a single issue, which, if proved, creates a bar to a plaintiff’s

recovery.” Cornell v. Benedict, 301 Va. 342, 349 (2022) (quoting Massenburg v. City of

Petersburg, 298 Va. 212, 216 (2019)). “[W]here no evidence is taken in support of a plea in bar,

the trial court, and the appellate court upon review, consider solely the pleadings in resolving the

issue presented.” Massenburg, 298 Va. at 216 (quoting Lostrangio v. Laingford, 261 Va. 495,

497 (2001)). Under this approach, “we accept the plaintiff’s allegations in the complaint as

true,” and our review of the circuit court’s judgment is “‘functionally de novo.’” Plofchan v.

Plofchan, 299 Va. 534, 547-48 (2021) (quoting Massenburg, 298 Va. at 216). In addition, an

“[a]ppeal of a decision on a plea in bar of the statute of limitations involves a question of law

that we review de novo.” Robinson v. Nordquist, 297 Va. 503, 513 (2019) (quoting Van Dam v.

Gay, 280 Va. 457, 460 (2010)).

-7- “Every action for injury to property . . . shall be brought within five years after the cause

of action accrues.” Code § 8.01-243(B). As the Supreme Court has already held, Clowdis’s

medical license is a property interest subject to the limitation period in Code § 8.01-243(B).

Clowdis, No. 230107, slip op. at 3; see Va. Bd. of Med. v. Zackrison, 67 Va. App. 461, 482

(2017). Thus, the statute of limitations required him to bring an action for injury to his license

within five years of the action’s accrual. Id.

Clowdis asserts several reasons why the statute of limitations did not bar his claims, even

if it applies to them, but he has waived all but one of those arguments. For clarity, we will first

delineate the arguments Clowdis has waived and which argument we address on appeal.

In his effort to surmount the time-bar, Clowdis first argues that his claims are timely

under the continuing violation doctrine. “The continuing violation doctrine is one in ‘which acts

occurring outside the statute of limitations may be considered when there is a “fixed and

continuing practice” of unlawful acts both before and during the limitations period.’”

Commonwealth ex rel. Fair Hous. Bd. v. Windsor Plaza Condo. Ass’n, 289 Va. 34, 65 (2014)

(quoting Scoggins v. Lee’s Crossing Homeowners Ass’n, 718 F.3d 262, 271 (4th Cir. 2013)).

According to Clowdis, each act by the Board after the 2007 suspension order constituted a new

due process violation resetting the accrual date of the statute of limitations. But Clowdis did not

reference this argument in any assignment of error. “[T]he scope of argument on appeal is

limited by the assignments of error.” Dudley v. Est. Life Ins. Co., 220 Va. 343, 348 (1979).

“Only assignments of error listed in the brief will be noticed by this Court.” Rule 5A:20(c)(1).

Thus, we do not consider his argument that his claims are timely under the continuing violation

doctrine. See id.

Next, Clowdis argues that the statute of limitations cannot bar his claims because the

2007 order is void ab initio. “Objections to void ab initio judgments may be raised by any party

-8- in the case at any point during a valid direct or collateral proceeding where the voidness of the

order is properly at issue, including by a court for the first time on appeal.” Hannah v.

Commonwealth, 303 Va. 106, 120 (2024); see Clowdis, No. 230107, slip op. at 3 (concluding the

limitation period in Code § 8.01-243(B) applied to Clowdis’s claims but nonetheless analyzing

his challenge to the 2007 order’s validity “[t]o the extent [he] asserts the 2007 order is void and

subject to challenge at any time”). An action seeking a declaratory judgment that an order is

void ab initio is one such collateral proceeding. Bonanno v. Quinn, 299 Va. 722, 737 (2021).

Thus, we agree in principle that the statute of limitations would not bar Clowdis’s assertion that

the 2007 order is void ab initio. But Clowdis preserved only one of the several arguments he

advances on appeal to support his assertion that the order is void ab initio.

Clowdis first argues that the 2007 order is void ab initio because the Department’s

conclusion that he was convicted of a felony in Colorado constituted extrinsic fraud. Yet

Clowdis’s relevant assignment of error asserts that the 2007 order “is void ab initio for lack of

due process.” It does not assert fraud. As noted, “the scope of argument on appeal is limited by

the assignments of error.” Dudley, 220 Va. at 348. An assignment of error is like “a pleading,

and in the court of last resort it performs the same office as a . . . complaint in a court of original

jurisdiction.” Forest Lakes Cmty. Ass’n v. United Land Corp. of Am., 293 Va. 113, 123 (2017)

(quoting Puckett v. Commonwealth, 134 Va. 574, 579 (1922)). “[A]ssignments of error set

analytical boundaries for the arguments on appeal, provide a contextual backdrop for our

ultimate ruling, and demark the stare decisis border between holdings and dicta.” Id.; see also

Findlay v. Commonwealth, 287 Va. 111, 115-16 (2014). Thus, we do not consider his argument

that the order is void for extrinsic fraud. See id.

Clowdis next asserts that the 2007 order is void ab initio because it was entered in

violation of his procedural due process rights. Although Clowdis advances three lines of

-9- argument to support this point, he provides legal authorities and argument to back only one of

them.4

Clowdis argues his due process rights were violated when: (1) the Department initially

suspended his medical license under Code § 54.1-2409(A) without a hearing; (2) the Board did

not conduct a full hearing within the timeframe required by Code § 54.1-2409(D) after he

petitioned for reinstatement of his license; and (3) the Board “refused to allow him to challenge

the basis for the suspensions of his medical license” at the 2011 and 2013 hearings. In his

opening brief, Clowdis provides at least the basic analytical structure applicable to the first issue

(i.e., deciding whether a hearing is required before the government deprives a person of a

property interest). But the entirety of his argument in support of the second and third points is as

follows:

[Clowdis] was denied due process when the Board refused to conduct a timely hearing on his reinstatement petition. [Clowdis] was also denied due process at each of the two hearings on his reinstatement petition when the Board refused to allow him to challenge the basis for the suspensions of his medical license.

Clowdis cites to no legal authority whatsoever in support of these assertions.5

Clowdis’s failure to cite authority is significant because “due process ‘is not a technical

conception with a fixed content unrelated to time, place and circumstances,’ but involves

4 “Rule 5A:20(e) requires that an appellant’s opening brief contain ‘[t]he principles of law, the argument, and the authorities relating to each question presented.’” Bartley v. Commonwealth, 67 Va. App. 740, 744 (2017) (quoting Jones v. Commonwealth, 51 Va. App. 730, 734 (2008) (alteration in original), aff’d in part, vacated in part on other grounds, 279 Va. 52 (2010)). “A significant omission in this regard will result in waiver of the argument on appeal.” Ceres Marine Terminals v. Armstrong, 59 Va. App. 694, 708 (2012). We have found the “failure to provide legal argument and authority as required by Rule 5A:20(e)” to be “significant” when the appellant’s brief “leaves us without a legal prism through which to view his alleged error.” Bartley, 67 Va. App. at 746. 5 Indeed, Clowdis makes these unsupported statements within his argument that his claims are timely under the continuing violation doctrine, not in in support of his due process claim. - 10 - ‘intensely practical matters.’” Hood v. Commonwealth, 280 Va. 526, 536 (2010) (citations

omitted). “Determining what is required of the government to satisfy due process depends upon

the particular situation at issue and the interests involved.” Id. And when making these

determinations, we look to case law for guidance to understand how due process applies to novel

circumstances. See, e.g., id. at 536-37; McNally v. Va. Dep’t of Motor Vehicles, 80 Va. App.

483, 511-26 (2024).

Moreover, if an individual asserts that a proceeding fails to comply with due process in

multiple ways, each theory must be developed and explained. See Gilbert v. Homar, 520 U.S.

924, 935 (1997) (noting that “[w]hether respondent was provided an adequately prompt

post-suspension hearing . . . is a separate question” to whether he was entitled to a

pre-suspension hearing (emphasis omitted)); Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,

547 (1985) (holding that terminated plaintiff successfully stated a claim for a procedural due

process violation based on inadequate pre-deprivation process but failed to state a claim based on

delay between the termination and the full hearing). Merely asserting that a due process

violation has occurred does not ipso facto encompass every theory of how the Board failed to

provide the process due. For example, in determining whether the delay between the petition for

reinstatement and the full hearing was unconstitutionally lengthy in this case, this Court must

know the impact, if any, of Clowdis’s alleged misrepresentations in his petition and the related

investigation. But Clowdis “offers no case law” or analysis to help answer this question.6

Coward v. Wellmont Health Sys., 295 Va. 351, 366 (2018). Similarly, regarding his assertion

that he was never given an opportunity to challenge the factual basis of the 2007 ruling, Clowdis

6 In Cleveland Bd. of Educ., 470 U.S. at 547, the Supreme Court held that a nine-month gap between termination of an employee and a full hearing was not “unconstitutionally lengthy per se” and that the plaintiff had failed to state a due process claim partly because the complaint’s allegations “reveal[ed] nothing about the delay except that it stemmed in part from the thoroughness of the procedures.” Id. - 11 - relies on the premise that the 2007 order was not an appealable order under the Administrative

Process Act, but he provides no legal authority to support that premise either.

Since Clowdis has not attempted to do so, he apparently expects this Court to build his

arguments for him from the ground up. But “it is not the role of the courts, trial or appellate, to

research or construct a litigant’s case or arguments for him or her.” Coward, 295 Va. at 367

(quoting Bartley v. Commonwealth, 67 Va. App. 740, 746 (2017)). “The appellate court is not a

depository in which the appellant may dump the burden of argument and research.” Ceres

Marine Terminals v. Armstrong, 59 Va. App. 694, 708 (2012) (quoting Fadness v. Fadness, 52

Va. App. 833, 850 (2008)). Addressing the merits of such skeletal arguments would

inappropriately “require this court to be an advocate for, as well as the judge of the correctness

of, [Clowdis’s] position.” Id. (quoting Fadness, 52 Va. App. at 850). Clowdis’s failure to cite

legal authority for his alternative due process arguments is significant, so those arguments are

waived. Id.; Rule 5A:20(e). Thus, we address only Clowdis’s argument that his procedural due

process rights were violated because he was not provided with any hearing before the initial

suspension of his medical license under Code § 54.1-2409(A).7

II. Due Process

When the Department receives “documentation by any court or government agency that a

person licensed, certified, or registered by a board within the Department of Health Professions

has . . . been convicted of a felony,” the Director of the Department “shall immediately suspend,

without a hearing, the license, certificate, or registration of any person so disciplined, convicted,

or adjudged.” Code § 54.1-2409(A). The Director must then notify the person of the suspension

7 The legal sufficiency of Clowdis’s claims is not before us on this plea in bar; thus, we analyze whether Clowdis has alleged claims that the 2007 order is void ab initio only to determine the claims’ timeliness under Code § 8.01-243(B). See Cal. Condo. Ass’n, 301 Va. at 20. - 12 - in writing and provide a copy of the documentation the Director relied on in suspending the

license, certificate, or registration. Id.

“Any person who has been aggrieved by any action of . . . the Department of Health

Professions” or “any regulatory board within the Departments, . . . shall be entitled to a review of

such action.” Code § 54.1-109.8 “Appeals from such actions shall be in accordance with the

provisions of the Administrative Process Act (§ 2.2-4000 et seq.).” Code § 54.1-109.

Additionally, the individual may apply for reinstatement of his license and “shall be entitled to a

hearing not later than the next regular meeting of the board after the expiration of 60 days from

the receipt of such application.” Code § 54.1-2409(D).

“Section 1 of the Fourteenth Amendment to the United States Constitution provides, in

pertinent part, that ‘[n]o state . . . shall . . . deprive any person of life, liberty, or property, without

due process of law . . . .’”9 Zackrison, 67 Va. App. at 482 (alterations in original). When an

individual argues that he has been deprived of a property interest in violation of his right to

procedural due process, we employ “a two-step inquiry.” McManama v. Plunk, 250 Va. 27, 34

(1995). “The first inquiry is whether the interest is a property interest protected by procedural

due process guarantees; if so, the second is whether the procedures prescribed or applied are

sufficient to satisfy the due process ‘fairness’ standard.” Klimko v. Va. Emp. Comm’n, 216 Va.

750, 754 (1976).

“Because a physician may not practice medicine in Virginia without a license, a license

to practice medicine is a significant property interest, and ‘[t]he due process clause protects a

8 Code § 54.1-109 was amended in 2025 in a manner not relevant to this appeal. See 2025 Va. Acts ch. 341. 9 We assume without deciding that an order entered in violation of an individual’s procedural due process rights may be void ab initio. See Hannah, 303 Va. at 119-20 (recognizing that one basis for finding a judgment void ab initio is that the court “adopted an unlawful procedure” (quoting Watson v. Commonwealth, 297 Va. 347, 350 (2019))). - 13 - physician’s property interest in his professional license.’” Zackrison, 67 Va. App. at 482

(alteration in original) (citations omitted) (quoting Simopoulos v. Va. Bd. of Med., 644 F.2d 321,

333-34 (4th Cir. 1981) (Butzner, J., dissenting)). Thus, Clowdis was entitled to due process

regarding the suspension of his medical license.

“Once it is determined that due process applies, the question remains what process is

due.” Klimko, 216 Va. at 756 (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)).

“‘The answer to that question is not to be found in [a State’s] statute,’ but in the due-process

standard itself.” McNally, 80 Va. App. at 511 (alteration in original) (quoting Cleveland Bd. of

Educ., 470 U.S. at 541). “Due process requirements ‘are not technical, nor is any particular form

of procedure necessary.’” Klimko, 216 Va. at 760 (quoting Inland Empire Council v. Millis, 325

U.S. 697, 710 (1945)). Rather, due process is “flexible and calls for such procedural protections

as the particular situation demands.” McNally, 80 Va. App. at 511 (quoting Harvey v.

Commonwealth, 297 Va. 403, 417 (2019)). “The essence of due process is the requirement that

‘a person in jeopardy of serious loss [be given] notice of the case against him and opportunity to

meet it.’” Id. (alteration in original) (quoting Mathews v. Eldridge, 424 U.S. 319, 348 (1976)).

Generally, “[d]ue process protects ‘the opportunity to be heard’ by requiring, at a minimum,

‘some kind of notice’ and ‘some kind of hearing.’” Id. at 512 (quoting Fairfax Cnty. Sch. Bd. v.

S.C., 297 Va. 363, 376 (2019)).

The Supreme Court of the United States has “rejected the proposition that [due process]

always requires the State to provide a hearing prior to the initial deprivation of property.”

Gilbert, 520 U.S. at 930 (alteration in original) (quoting Parratt v. Taylor, 451 U.S. 527, 540

(1981), overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327 (1986)). In

cases “where a State must act quickly, or where it would be impractical to provide

- 14 - pre[-]deprivation process, post[-]deprivation process satisfies the requirements of the Due

Process Clause.” Id. (collecting cases).

“Courts typically determine whether a particular procedural protection is constitutionally

required by considering and balancing the three factors set forth in Mathews v. Eldridge.”

McNally, 80 Va. App. at 512; see Mathews, 424 U.S. at 335. Thus, we consider “the private

interest that will be affected by the official action,” “the risk of an erroneous deprivation of such

interest through the procedures used, and the probable value, if any, of additional or substitute

procedural safeguards,” and “the Government’s interest, including the function involved and the

fiscal and administrative burdens that the additional or substitute procedural requirement would

entail.” Id. (quoting Mathews, 424 U.S. at 335).

In this case, the Department has an obvious legitimate interest in moving quickly to

protect the public from a healthcare provider who presents a potential threat to public safety. See

Code §§ 54.1-2400(9), (14), -2408.1, -2915. The Department’s “mission . . . is to ensure safe

and competent patient care,” including “by licensing health professionals,” and “enforcing

standards of practice.” 18 VAC 76, Agency Summary. Thus, the Department and its constituent

boards are responsible for ensuring that health professionals are competent to practice “with

reasonable skill and safety.” See Code §§ 54.1-2400(15), -2915(14). Illness and substance abuse

present circumstances that create potential threats to a professional’s ability to practice safely

which the Department must address. Id. Individuals receiving medical care are often especially

vulnerable, and the threat posed by an incompetent or impaired healthcare provider is immediate

and grave. Indeed, for this reason, Department boards are empowered to take summary action,

including suspension of a license, in any case of “substantial danger to the public health or

safety.” Code § 54.1-2408.1. In Gilbert, the Supreme Court of the United States upheld the

constitutionality of a state university police officer’s suspension without notice and a hearing

- 15 - after he was charged with felony conspiracy to violate a controlled substance law. 520 U.S. at

926-27, 932. The Court noted, “the State has a significant interest in immediately suspending,

when felony charges are filed against them, employees who occupy positions of great public

trust and high public visibility, such as police officers.” Id. at 932. The same reasoning applies

here, and more compellingly given that the automatic suspension mandated in Code

§ 54.1-2409(A) is premised not on a felony charge, but on a felony conviction.

These serious governmental concerns outweigh Clowdis’s interest in avoiding a

temporary interruption in the use of his medical license. Although such a suspension is a

significant loss to the extent it interrupts an individual’s flow of income, the Supreme Court of

the United States has “emphasized that in determining what process is due, account must be

taken of ‘the length’ and ‘finality of the deprivation.’” Gilbert, 520 U.S. at 932 (quoting Logan

v. Zimmerman Brush Co., 455 U.S. 422, 434 (1982)). An individual who petitions the Board for

reinstatement of his medical license “shall be entitled to a hearing not later than the next regular

meeting of the board after the expiration of 60 days from the receipt of such application.” Code

§ 54.1-2409(D).10 Alternatively, an individual may appeal the suspension directly under the

Administrative Process Act.11 Code § 54.1-109; see Clowdis, No. 1381-17-2, slip op. at 3-5,

10 The dissent cites this statute in support of its analysis that because such a hearing did not take place until 2011, Clowdis was necessarily deprived of due process. The dissent’s analysis ignores that such a hearing was promptly scheduled by the Board upon Clowdis’s application but was delayed pending the Board’s investigation of additional concerns that came to light with respect to Clowdis’s mental health and substance abuse. The investigation into those concerns ultimately provided additional grounds for the suspension of Clowdis’s license to practice medicine completely independent of his “conviction” in Colorado. Moreover, those additional grounds are not contested in this appeal. 11 While the dissent is silent on the subject, the right provided by the Administrative Process Act to have the Board’s actions in this matter reviewed for their legality by both a circuit court and if appealed further, by this Court, is a significant part of the process which Clowdis was due. The fact that he chose not to pursue such a remedy does not equate to its deprivation by an agency of the Commonwealth. - 16 - 2018 Va. App. LEXIS 34, at *4-7. Thus, an individual whose license has been suspended has

multiple avenues for prompt recourse.12 See id.; Cleveland Bd. of Educ., 470 U.S. at 547

(holding that nine-month adjudication of employee’s wrongful termination claim after initial

termination was not “unconstitutionally lengthy per se”).

Moreover, Code § 54.1-2409(A) provides sufficient safeguards against “the risk of an

erroneous deprivation” of a medical license. McNally, 80 Va. App. at 512 (quoting Mathews,

424 U.S. at 335). The automatic suspension of the medical license only occurs “[u]pon receipt

of documentation by any court or government agency” that the practitioner has been convicted of

a felony. Code § 54.1-2409(A). The requirement that a court or government agency provide

documentation of the felony conviction bolsters the information’s reliability. In Saunders v.

Commonwealth, 62 Va. App. 793, 809 (2014), this Court found a report from a social worker to a

probation officer sufficiently reliable to be admissible in a probation revocation proceeding,

despite being hearsay, because the individuals’ positions as government officials gave the

evidence “substantial guarantees of trustworthiness.” Id. (quoting Henderson v. Commonwealth,

285 Va. 318, 327 (2013)). The statutory requirement of documentation from a court or

government agency similarly increases the reliability of the information upon which the

suspension is based.

The process provided in the underlying criminal case reinforces the Director’s initial

suspension as well. In Gilbert, the Court noted that a pre-suspension hearing was not required

for the university police officer charged with a felony drug crime partly because “the arrest and

12 As noted, we do not address Clowdis’s argument that he was denied due process based on the delay between his petition for reinstatement and the hearing because Clowdis failed to brief that issue beyond asserting that the hearing occurred outside the time provided in Code § 54.1-2409(D). Cf. Lee v. City of Norfolk, 281 Va. 423, 435 (2011) (“It is possible for a state agency to fail to adhere strictly to its regulations without violating the constitutional right to due process.”). - 17 - the filing of charges” against the employee assured that there were reasonable grounds to support

the suspension. 520 U.S. at 934. That reasoning applies with equal force to the initial

suspension in this case because underlying Colorado conviction came after Clowdis was afforded

the full panoply of rights available to criminal defendants. In addition, the Director’s review of

the documentation is itself another layer of protection against error. Thus, Code § 54.1-2409(A)

provides sufficient safeguards against a mistaken initial suspension of a medical license before a

full hearing is provided.13 See, e.g., Mitchell v. W.T. Grant Co., 416 U.S. 600, 619-20 (1974)

(holding statute requiring an affidavit justifying writ to repossess goods, issuance of writ by

13 Clowdis insists, and our dissenting colleague agrees in support of her position, that he was “never convicted of any felony.” But we are not bound by Clowdis’s legal conclusions asserted in his complaint when deciding this plea in bar. See Cal. Condo. Ass’n, 301 Va. at 20 (noting that “a plea in bar is partly like a demurrer” when it is decided on the pleadings). To that end, and in response to our colleague’s dissent, we note that the Supreme Court of Colorado has “held that in a deferred judgment and sentence agreement, the court’s acceptance of the defendant’s guilty plea ‘yields a conviction.’” McCulley v. People, 463 P.3d 254, 258 (Colo. 2020) (emphasis added) (quoting M.T. v. People, 269 P.3d 1219, 1221 (Colo. 2012)). Thus, “during the pendency of the deferred judgment and sentence period, a defendant may be treated for some purposes as ‘convicted,’ even though no judgment of conviction has entered.” Id. at 258 (emphasis added) (quoting Hafelfinger v. Dist. Ct. of Eighth Jud. Dist., 674 P.2d 375, 377 (Colo. 1984)); see M.T., 269 P.3d at 1221-22 (collecting cases). The defendant is “no longer ‘convicted’” only “upon the successful completion of the conditions of the deferred judgment and sentence agreement,” at which point “the defendant’s previously entered guilty plea ‘shall be withdrawn’ and the charge ‘shall be dismissed with prejudice’” under Colorado’s deferred judgment statute. Id. (emphasis added) (first quoting Hafelfinger, 674 P.2d at 377 n.3; and then quoting Colo. Rev. Stat. § 18-1.3-102(2)). If the court fails to enter an order, these effects occur “by operation of law” under the statute “once the deferred judgment is successfully completed.” Flores-Heredia v. People, 395 P.3d 800, 802 (Colo. 2017). Clowdis alleges he completed the “diversion program” on March 16, 2007, so his guilty plea and the felony charge were dismissed by operation of law on that date, before the April 2007 suspension order. But the sentencing order (attached to his complaint) entered on September 6, 2005, set the term of his deferred judgment at four years, with a return date of September 6, 2009. The judgment included several conditions; the “diversion program” was only one of those conditions. Thus, merely completing the “diversion program” in March 2007 does not necessarily equate to successful completion of the deferred judgment. Cf. Flores-Heredia, 395 P.3d at 802 (holding defendant successfully completed deferred judgment as of date of expiration of one-year deferred judgment period). In fact, the Colorado court did not enter an order dismissing the felony charge with prejudice until August 19, 2008. Thus, it appears that Clowdis was still “convicted” under Colorado law when the Director suspended his medical license in 2007. - 18 - judge, immediate hearing after the seizure, and dissolution of the writ absent proof justifying the

writ provided sufficient procedural safeguards, despite ex parte pre-deprivation procedure).

Finally, and despite Clowdis’s unsupported assertion to the contrary, Code §§ 54.1-109,

2.2-4025, et seq., clearly permitted him to seek prompt court review of the decision of the Board

had he chosen to do so.

Even if the 2007 order resulted from a mistake of fact, due process “has never been

construed to require that the procedures used . . . be so comprehensive as to preclude any

possibility of error.” McNally, 80 Va. App. at 512 (alteration in original) (quoting Mackey v.

Montrym, 443 U.S. 1, 13 (1979)). Code § 54.1-2409(A) provides sufficient pre-suspension

safeguards to licensed individuals by requiring documentation “by a court or government

agency” that an individual has been convicted of a felony. Thereafter, the individual may appeal

the order or apply for reinstatement of his license and obtain a full hearing under Code

§ 54.1-2409(D). See Clowdis, No. 1381-17-2, slip op. at 4-5, 2018 Va. App. LEXIS 34, at *6.

Clowdis did not appeal the 2007 order. He subsequently applied for reinstatement and received a

hearing by the Board. After the hearing, the Board suspended Clowdis’s license in 2011 for

reasons in addition to his guilty plea in the Colorado felony case.14 Under these circumstances, a

pre-suspension hearing was not required, and Clowdis received all the process he was due.

14 We do not address Clowdis’s argument that the Board denied him due process by barring him from challenging the basis of the 2007 order at the 2011 and 2013 hearings. Even so, we note that the complaint and its exhibits demonstrate the Board had multiple sufficient reasons for suspending his medical license notwithstanding the ultimate dismissal of the felony. See Code § 54.1-2915(A)(2) (substance abuse rendering him unfit for performance of professional duties), (A)(14) (inability to practice with reasonable skill or safety because of illness or substance abuse), and (16) (performing any act likely to deceive, defraud, or harm the public); see also Code § 54.1-2915(A)(10) (“[k]nowingly and willfully committing an act that is a felony under the laws of the Commonwealth or the United States”). The Board’s detailed findings reflect a significant history of mental illness, including at least two involuntary commitments. The record also reflects that, at one point, Clowdis had suicidal and homicidal ideations. See Code § 54.1-2915(A)(2), (4), (10), and (14). - 19 - For these reasons, Clowdis failed to demonstrate that the 2007 order is void ab initio as

entered in violation of his due process rights. Thus, his claims challenging the order are subject

to the five-year statute of limitations applicable to actions for injuries to property. Code

§ 8.01-243(B). Since Clowdis filed this action in 2024, more than five years after the challenged

2007 order, his claims are untimely. Id. Similarly, his claims attacking the 2011 and 2013

Board orders depend on the 2007 order’s being void ab initio and are similarly barred.

CONCLUSION

The circuit court correctly concluded that Clowdis’s claims are barred by Code

§ 8.01-243(B). For the same reasons, the circuit court correctly denied Clowdis’s motion to stay

the final order. Since our decision on the statute of limitations resolves the appeal, we need not

reach the alternative basis for the circuit court’s judgment regarding sovereign immunity.

The circuit court’s judgment is affirmed.

Affirmed.

- 20 - Callins, J., dissenting.

I agree with my colleagues that Clowdis failed to properly assert his extrinsic fraud

argument and that he failed to preserve his continuing violation doctrine argument. I also agree

that the limitation of Code § 8.01-243(B), which applies to “[e]very action for injury to

property,” applies to Clowdis’s property interest in his medical license and that no statute of

limitations can bar an action asserting that an order is void ab initio because such judgment is a

“complete nullity” and may be attacked “in any ‘valid direct or collateral proceeding where the

voidness of the order is properly at issue.’” Ayers v. Brooke Rd., LLC, 300 Va. 315, 323 (2021)

(first quoting Singh v. Mooney, 261 Va. 48, 52 (2001); and then quoting Bonanno v. Quinn, 299

Va. 722, 736-37 (2021)). Yet I would further hold that the 2007 order is void ab initio for lack

of due process, precluding the statute of limitations as a bar to Clowdis’s declaratory judgment

action. For the same reason, I would also hold Clowdis’s action is not barred by sovereign

immunity.

The Department suspended Clowdis’s medical license on April 26, 2007, after receiving

what arguably amounted to misconstrued information that Clowdis was convicted of a felony in

Colorado.15 Two years earlier, Clowdis had entered a conditional guilty plea to a felony subject

15 My colleagues contend that whether Clowdis was convicted of a felony is a legal conclusion. I disagree, and assert that, for purposes of suspending his license, whether Clowdis was convicted of a felony is a question of fact. See Code § 54.1-2409(B) (“The clerk of any court in which a conviction of a felony or an adjudication of incapacity is made . . . shall have a duty to report these findings.” (emphasis added)). It is the existence of a conviction which triggers the Board’s authority to suspend a medical professional’s license. See Code § 54.1-2409(A); cf. Dodson v. Commonwealth, 23 Va. App. 286, 299 (1996) (“It is the fact that the conviction exists, valid or invalid, that imposes the firearms disability on the defendant felon.” (emphasis added) (quoting United States v. Blevins, 802 F.2d 768, 770-71 (4th Cir. 1986))). Here, Clowdis’s matter did not involve a final judgment of conviction as a matter of fact. But even if my colleagues rightly characterize Clowdis’s felony conviction as conclusive, they do so without a firm basis in Colorado law. Indeed, they cast Colorado law as settled on this point, when in reality the effect of a non-final deferred judgment has not been authoritatively decided. See McCulley v. People, 463 P.3d 254, 258 (Colo. 2020) (holding that, for purposes of - 21 - to dismissal upon satisfaction of certain terms, including successful completion of a statutory

diversion program. At the time of the Department’s suspension order, the case was pending

dismissal. Indeed, it was ultimately dismissed, and no conviction stands. Still, the Board

suspended Clowdis’s medical license under § 54.1-2409 on the impression that Clowdis had in

fact been convicted of a felony and, as Clowdis rightly asserts, there is no procedure by which to

appeal a suspension under the statute.

Significant to today’s decision, Clowdis never received an opportunity to challenge the

underlying basis for his 2007 suspension. My colleagues contend that because due process does

not require only pre-deprivation hearings and further, because Clowdis received a hearing four

years after his license was suspended, his due process rights were thus satisfied. But this

contention misses the point—both of Clowdis’s argument and of due process protections.

According to his pleadings, upon learning of the suspension, Clowdis quickly inquired of

the Department to correct the factual error and revoke the suspension. Sometime in “late 2008”

the Board responded to Clowdis, instructing him to file a formal petition for reinstatement of his

license under Code § 54.1-2409(D) in order to correct the error. He filed the petition on

December 4, 2008.16 Under Code § 54.1-2409(D), Clowdis was “entitled to a hearing not later

than the next regular meeting of the board after the expiration of 60 days from the receipt of such

application.” The Board did not provide Clowdis a hearing at their next meeting, which occurred

the subject statute, the term “conviction” excludes successfully completed deferred judgments) (“[D]uring the pendency of the deferred judgment and sentence period, a defendant may be treated for some purposes as ‘convicted,’ even though no judgment of conviction has entered.” (emphasis added)); cf. People v. Figueroa-Lemus, 465 P.3d 565, 567 (2020) (“[A] deferred judgment and sentence is not a final judgment and therefore, unless and until revoked, it may not be subject to either direct appellate review or postconviction relief.”). Given that this Court does not even have the final say on Virginia law, we grasp beyond our reach to portend that we might have any authority regarding the interpretation of Colorado law. 16 By that date, Clowdis’s deferred judgment was satisfied, and his felony charge was dismissed with prejudice. - 22 - from February 19 through 21, 2009. Instead it issued a “Statement of Particulars” that included

the finding that Clowdis had been convicted of a felony. Later that year, the Board required

Clowdis to withdraw his reinstatement petition and undergo pre-hearing medical and

psychological evaluations. When the Board eventually granted Clowdis a hearing on his petition

on May 19, 2011, it did not permit Clowdis to argue or offer proof contrary to the Board’s

finding that he was convicted of a felony, leaving that factual finding unchallenged.

I agree with my colleagues that “[w]here no evidence is taken in support of the plea, the

[circuit] court, and the appellate court upon review, must rely solely upon the pleadings in

resolving the issue presented.” Robinson v. Nordquist, 297 Va. 503, 513-14 (2019) (quoting

Tomlin v. McKenzie, 251 Va. 478, 480 (1996)). “The facts as stated in the pleadings by the

plaintiff are taken as true for the purpose of resolving the special plea.” Gray v. Va. Sec’y of

Transp., 276 Va. 93, 97 (2008) (quoting Niese v. City of Alexandria, 264 Va. 230, 233 (2002)). I

also agree that, to the extent necessary, we “review de novo a [circuit] court’s ruling on a plea of

sovereign immunity.” Pike v. Hagaman, 292 Va. 209, 214 (2016). Similarly, we review de

novo a circuit court’s determination of the applicable statute of limitations. William H. Gordon

Assocs. v. Heritage Fellowship, 291 Va. 122, 136-37 (2016).

Clowdis challenges the applicability of a statute of limitations to his action, arguing that a

statute of limitations does not apply to actions challenging a judgment as void ab initio. See

Ayers, 300 Va. at 323. In relevant part, he argues that the 2007 order automatically suspending

his license is void ab initio because he was denied due process. He further argues that an action

for a declaratory judgment is not “an action wherein a judgment for money is sought” and thus

not a personal action under Code § 8.01-243(B) subject to the five-year limitation period. See

Code § 8.01-228.

- 23 - As our Supreme Court recognized in his predecessor case, and as my colleagues and I

reaffirm today, Clowdis’s medical license is a property interest subject to the five-year statute of

limitations. See Clowdis v. Owens, No. 230107, slip op. at 3 (Va. Aug. 14, 2023) (order); Code

§ 8.01-243(B). And as my colleagues and I likewise recognize, no statute of limitations can bar

an action asserting that an order is void ab initio.17 A judgment order is void ab initio when,

among other circumstances, a tribunal adopts an unlawful procedure. Hannah v.

Commonwealth, 303 Va. 106, 120 (2024) (quoting Watson v. Commonwealth, 297 Va. 347, 350

(2019)). This is the heart of Clowdis’s due process claim. See also Anthony v. Kasey, 83 Va.

338, 340 (1887) (“A departure from established modes of procedure will often render the

judgment void.” (quoting Windsor v. McVeigh, 93 U.S. 274, 283 (1876))).

This Court has previously held that a physician’s license to practice medicine represents a

constitutionally-protected “significant property interest.” Va. Bd. of Med. v. Zackrison, 67

Va. App. 461, 482 (2017). Where the government deprives a private citizen of a property

interest, “established modes of procedure” involve notice and a hearing, as required by the Due

Process Clauses of the Virginia Constitution and the United States Constitution. “Procedural due

process guarantees a litigant the right to reasonable notice and a meaningful opportunity to be

heard,” to provide “safeguards against a government’s arbitrary deprivation of certain interests.”

Mar v. Malveaux, 60 Va. App. 759, 772 (2012) (quoting Etheridge v. Med. Ctr. Hosps., 237 Va.

87, 97 (1989)), superseded by statute on other grounds, 2020 Va. Acts chs. 868, 1038 (amending

17 To be clear, “the form of the present litigation, which is a declaratory judgment suit, does not affect our analysis of the statute of limitations.” Kappa Sigma Fraternity, Inc. v. Kappa Sigma Fraternity, 266 Va. 455, 465 (2003). Appellate courts of this Commonwealth do not “permit a complainant to use the declaratory judgment statute as a vehicle to circumvent the statute of limitations applicable to the substance of a complaint” and, thus, render the statute of limitations meaningless. Id. Instead, the substance of a litigant’s complaint determines the applicable statute of limitations. Here, Clowdis asserts that the 2007 order injuriously interfered with his property interest in his medical license. - 24 - Code § 40.1-29(J) to provide a private right of action not available when Mar was decided), as

recognized in, Campbell v. Groundworks Operations, LLC, 82 Va. App. 580, 587 (2024). In

essence, “due process is the requirement that ‘a person in jeopardy of serious loss [be given]

notice of the case against him and opportunity to meet it.’” Mathews v. Eldridge, 424 U.S. 319,

348 (1976) (alteration in original) (quoting Joint Anti-Fascist Refugee Comm. v. McGrath, 341

U.S. 123, 171-72 (1951)). Thus, a procedural due process violation—which inherently involves

a departure from established modes of procedure—would render an order void ab initio rather

than voidable.

In deciding whether a violation of procedural due process has occurred, the United States

Supreme Court has “consistently . . . held that some form of hearing is required before an

individual is finally deprived of a property interest.” Id. at 333 (emphasis added). “It is

sufficient, where only property rights are concerned, that there is at some stage an opportunity

for a hearing.” Klimko v. Va. Emp. Comm’n, 216 Va. 750, 757 (1976) (quoting Arnett v.

Kennedy, 416 U.S. 134 (1974) (White, J., concurring in part and dissenting in part)). Not only is

an individual entitled to a hearing, but such hearing must also be “at a meaningful time and in a

meaningful manner.” Arnett, 416 U.S. at 178 (White, J., concurring in part and dissenting in

part) (emphases added) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). And “[w]here

a question of law is all that needs to be resolved,” written argument and the submission of

evidence alone may fulfill the requirement of a hearing. James v. Arlington Cnty. Bd. of

Supervisors, 226 Va. 284, 290 (1983).

Taking the facts pleaded as true, I would conclude that the 2007 order is void ab initio for

lack of due process. The Department suspended Clowdis’s medical license, believing Clowdis

was convicted of a felony. And although I agree with my colleagues that the Department had a

legitimate interest in moving quickly pre-deprivation, Clowdis was nonetheless entitled to a

- 25 - meaningful opportunity to be heard as soon as possible post-deprivation on the legitimacy of the

deprivation itself. See Mall Amusements, LLC v. Va. Dep’t of Alcoholic Beverage Control, 66

Va. App. 605, 614 (2016). Yet when he sought such opportunity to correct the Board’s

understanding that he had been convicted of a felony, the Board, over a year later, directed

Clowdis to his only recourse, the reinstatement process—a process which, in this instance,

presumed the correctness of the initial suspension action. Thus, Clowdis was denied the

opportunity to challenge the Board’s underlying factual finding. See, e.g., James, 226 Va. at 290

(holding that a meaningful hearing is one “appropriate to the nature of his case”).

The majority would point to the proceedings born of Clowdis’s 2008 reinstatement

petition as evidence of post-deprivation process, but this conclusion is only partly accurate.

According to Code § 54.1-2409(D), Clowdis was entitled to a hearing “not later than the next

regular meeting of the board after the expiration of 60 days from the receipt of such application.”

The Board held its next qualifying meeting February 19 through 21, 2009. But instead of

granting him a hearing then, according to his Complaint, the Board issued a Statement of

Particulars three months later, in May 2009, that persisted in the assertion that Clowdis had been

convicted of a felony. Further, the Board required Clowdis to withdraw his request for a hearing

on his petition for reinstatement until he had completed medical and psychological evaluations.

Meanwhile, it continued to incorrectly assert that Clowdis had been convicted of a felony and to

withhold his license to practice medicine. Thus, not only did the Board refuse to provide an

opportunity to be heard on the initial deprivation of Clowdis’s property rights, but it persisted in

thwarting Clowdis’s every subsequent effort for years thereafter. And each compounding injury

was premised on the 2007 suspension order.

As my colleagues note, the Board did finally grant a hearing on Clowdis’s petition for

reinstatement on May 19, 2011—four years after the Department’s initial deprivation. Yet even

- 26 - then, the Board prohibited Clowdis from offering argument or evidence on the factual basis of

the 2007 order. At subsequent hearings, Clowdis alleges the Board expressly forbade him from

challenging the factual basis of the 2007 order. Since then, the Board’s actions against Clowdis

derive from that 2007 order, and all the decisions on Clowdis’s previous claims derive from the

Board’s factual finding.18 As recently as 2022, Clowdis petitioned the Board for a new

factfinding to exonerate him, just as the Board had done for others in the past. However, the

Board again stated that Clowdis would need to file a petition for reinstatement.

The Board never afforded Clowdis an opportunity to be heard on his challenge to the

factual basis for its 2007 order. As a result, the Board violated Clowdis’s procedural due process

rights, and the 2007 order is void ab initio. Because the 2007 order is void ab initio, the circuit

court erred in sustaining the Department’s plea in bar on the grounds that Clowdis’s action was

time-barred.

Because I would hold that the circuit court erred as to the statute of limitations bar, I

would also evaluate Clowdis’s challenge to the Department’s assertion of sovereign immunity

and hold that the Department is not entitled bar to Clowdis’s due process claim under the

doctrine. Generally, “the Commonwealth is immune both from actions at law for damages and

from suits in equity to restrain governmental action or to compel such action,” including actions

for a declaratory judgment. DiGiacinto v. Rector & Visitors of George Mason Univ., 281 Va.

127, 137 (2011) (quoting Afzall v. Commonwealth, 273 Va. 226, 231 (2007)). However, our

Supreme Court has recognized that “sovereign immunity does not preclude declaratory and

18 The majority notes that at the time of the 2011 reinstatement hearing, there were several bases upon which the Board could suspend Clowdis’s license. Although that may be true, it doesn’t change the fact that the initial suspension was based on an inaccuracy and that Clowdis was deprived of his due process right to challenge the factual basis of the suspension. All subsequent proceedings stemmed from that initial deprivation. My colleagues seem to allude to a mootness issue, yet the question of mootness was not raised in this appeal. - 27 - injunctive relief claims based on self-executing provisions of the Constitution of Virginia or

claims based on federal law.” Id. Recently, this Court specifically held that the Due Process

Clause of Article I, § 11, of the Virginia Constitution is a self-executing provision. Ibanez v.

Albemarle Cnty. Sch. Bd., 80 Va. App. 169, 190 (2024). Here, Clowdis seeks declaratory

judgment under both a self-executing constitutional provision and federal law—a due process

claim under the Virginia Constitution and the Fifth and Fourteenth Amendments of the United

States Constitution. Regardless of its potential success on the merits, as pleaded, his due process

claim satisfies the exception sufficient to survive a sovereign immunity bar.

For the foregoing reasons, I would reverse the circuit court’s judgment in its entirety and

thus I respectfully dissent.

- 28 -