Giles v. Oakridge

Giles v. Oakridge Case No. 20010565-CA

IN THE UTAH COURT OF APPEALS

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Glenda W. Giles,
Petitioner,

v.

Oakridge Country Club and/or Workers Compensation Fund, Wasatch Crest Mutual Insurance, Employers' Reinsurance Fund, IRS, Adecco fka TAD Technical Services Corporation and/or Liberty Mutual Insurance Company, Transportation Insurance Company, Pacific Employers' Insurance Company, and Utah Labor Commission,
Respondents.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010565-CA

F I L E D
(December 6, 2001)

2001 UT App 381

 

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Original Proceeding in this Court

Attorneys: 
Glenda W. Giles, Eureka, Montana, Petitioner Pro Se
Floyd W. Holm, Salt Lake City, for Respondents  Oakridge Country Club and Workers Compensation Fund
Michael E. Dyer and Kristy L. Bertelsen, Salt Lake City, for Respondents Adecco and Liberty Mutual

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Before Judges Greenwood, Jackson, and Davis.

PER CURIAM:

Petitioner Glenda Giles seeks judicial review of an order of the Utah Labor Commission denying her request for appointment of an Administrative Law Judge who is not employed by the Commission. This case is before the court on respondents' motions to dismiss the petition for lack of jurisdiction.

This court has jurisdiction to review "final orders and decrees resulting from formal adjudicative proceedings of state agencies." Utah Code Ann. § 78-2a-3(2)(a) (1996). Our review of agency proceedings is governed by the Utah Administrative Procedures Act (UAPA), codified at Utah Code Ann. §§ 63-46b-1 to -22 (1997 & Supp. 2001). "As provided by statute, . . . the Court of Appeals has jurisdiction to review all final agency action resulting from formal adjudicative proceedings." Utah Code Ann. § 63-46b-16(1) (1997) (emphasis added).

In Barker v. Public Serv. Comm'n, 970 P.2d 702 (Utah 1998), the Utah Supreme Court construed the term "final agency action" to include an order "disposing completely of discrete issues," while leaving other issues for further determination. Id. at 706. Nevertheless, the court distinguished those orders that are "preliminary, preparatory, procedural, or intermediate with regard to subsequent agency action of that agency or another agency." Id. The order in this case denying appointment of an independent ALJ is clearly preliminary, preparatory, and procedural. It neither resolves any substantive issue nor imposes any obligation on a party. Under Barker, the order is not final agency action for purposes of seeking judicial review under section 63-46b-16(1).

Giles cites a 1988 version of a statutory provision she contends allows judicial review of any Commission order regardless of whether it is final agency action. The language of that repealed statute now appears in Utah Code Ann. § 34A-1-303(6) (1997). This statute describes the actions that this court may take in judicial review of the Commission's orders. The statute does not enlarge the right to judicial review of final agency action under section 63-46b-16, and does not by "explicit reference" express the intention to supercede UAPA's provisions. Utah Code Ann. § 63-46b-1(1) (Supp. 2001).

Because we conclude that the Commission's order does not constitute "final agency action" for purposes of obtaining judicial review, we lack jurisdiction to consider the petition for review on the merits. The issues raised therein may, however, be considered in any subsequent petition seeking judicial review of final agency action. "It is a court's first duty to determine if it has jurisdiction," and "[i]f the court concludes it does not have jurisdiction, it retains only the authority to dismiss the action." Barney v. Division of Occupational & Prof'l Licensing, 828 P.2d 542, 543-44 (Utah Ct. App. 1992) (per curiam).

We dismiss the petition for review, without prejudice to a timely petition for review filed after entry of an order constituting final agency action.

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Pamela T. Greenwood, Presiding Judge

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Norman H. Jackson, Associate Presiding Judge

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James Z. Davis, Judge