Arkansas Department of Human Services v. Curtis and Christine Welborn

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

JUNE 2, 1999

___ S.W.2d ___

1. Appeal & error -- petition for rehearing -- case relied upon by appellant distinguished. -- The appellate court was not bound by the "clearly wrong" standard of review that the court had applied in a case relied upon by appellant because, in that case, the administrative agency only interpreted state law, whereas in the case at bar, the administrative law judge attempted to interpret federal law.

2. Appeal & error -- petition for rehearing -- denied. -- Even had appellant been correct in its argument that the appellate court should have applied a "clearly wrong" standard of review, the argument would have had no effect because the court expressly found in the original opinion that the administrative law judge had clearly erred; the petition for rehearing was denied.

Supplemental Opinion on Denial of Rehearing.

D. Franklin Arey, III, Chief Counsel; Elisabeth McGee, Deputy Counsel, for appellant.

Ronald W. Metcalf, for appellees.

Terry Crabtree, Judge.

In its petition for rehearing, the appellant, Arkansas Department of HumanServices, asserts that we applied the wrong standard of review in reaching our decision in Arkansas Dept. of Human Services v. Welborn, 66 Ark. App. 122, ___ S.W.2d ___ (1999). Appellant claims that we improperly applied a de novo standard of review rather than a "clearly wrong" standard of review as in Ramsey v. Dept. of Human Services, 301 Ark. 285, 783 S.W.2d 361 (1990).

Appellant's reliance on Ramsey is misplaced. We are not bound by the standard of review that the court applied in Ramsey because in that case, the administrative agency only interpreted state law. In the case at bar, the administrative law judge attempted to interpret federal law. For that reason, Ramsey is distinguishable.

Even if appellant was correct in its argument that we should apply the "clearly wrong" standard of review, the argument would have no effect because we expressly found that the

ALJ clearly erred when we stated, "We find this interpretation to be clear error." Welborn, 66 Ark. App. 122, 125, ___ S.W.2d ___, ___ (emphasis added).

The petition for rehearing is denied.