Griffin v. Ark. Dep't of Health & Human Servs.
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ARKANSAS COURT OF APPEALS
DIVISION III
No.
CA08-674
MICHAEL GRIFFIN,
Opinion Delivered 11
MARCH 2009
APPELLANT
APPEAL FROM THE COLUMBIA
COUNTY CIRCUIT COURT,
[NO. CV2003-251-4]
V.
ARKANSAS DEPARTMENT OF
HEALTH and HUMAN SERVICES,
APPELLEE
THE HONORABLE CAROL
CRAFTON ANTHONY, JUDGE
AFFIRMED
D.P. MARSHALL JR., Judge
Arkansas put Michael Griffin’s name on the Child Maltreatment Central
Registry after the State Police concluded that abuse allegations against him were true.
Griffin, a National Guard member, appealed the findings almost three years later. He
claimed that the Soldiers’ and Sailors’ Civil Relief Act applied, thereby tolling his
deadline to appeal while he was in active service.
The DHS hearing
officer—essentially an administrative law judge—concluded that the Act applied, but
that Griffin’s appeal was still untimely. She ordered that his name remain on the
Registry. The circuit court affirmed the hearing officer’s decision.
Griffin challenges the circuit court’s order, raising several points on appeal. Our
review is directed not to the circuit court’s decision, but to the decision of the
administrative agency. Dep’t of Health & Human Servs. v. R.C., 368 Ark. 660, 667, 249
S.W.3d 797, 803 (2007). Our review is thus limited to the two issues addressed by the
hearing officer—the timeliness of Griffin’s appeal and the application of the Act. We
cannot reach all the other points that Griffin urges on appeal.
The Administrative Procedure Act establishes different standards of judicial
review depending on the kind of issue presented. Ark. Code Ann. § 25-15-212(h)
(Repl. 2002). Here, the material facts are undisputed matters of the calendar. The
question, then, is one of law: did the Department’s decision barring Griffin’s appeal as
untimely violate the Soldiers’ and Sailors’ Civil Relief Act? Ark. Code Ann. § 25-15212(h)(1). Because the Department is not charged with administering the Soldiers’ and
Sailors’ Civil Relief Act, we give no deference to the Department’s reading of the Act.
Cf. Cave City Nursing Home, Inc. v. Arkansas Dep’t of Human Servs., 351 Ark. 13,
23–24, 89 S.W.3d 884, 890 (2002).
Griffin was a member of the Army National Guard. He testified that he
received orders in March 2000 and began training then in various states. The March
orders are not in the record. On 6 November 2000, while Griffin was home for a visit
from military training in Colorado, he received a Determination Notification by
certified mail. It stated that, after an investigation, the State Police had determined that
sexual abuse allegations made by Griffin’s foster daughter were true.
The
Determination also stated that Griffin could appeal by requesting an administrative
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hearing within thirty days. Ark. Code Ann. § 12-12-512(c)(1)(C) (Supp. 2007).
Sixteen days later, Griffin received orders instructing him to report for active duty. He
reported on 1 December 2000 and was deployed to Bosnia shortly thereafter. Griffin
was released from active duty and came home from October 2001 through April or
May 2002. Then he apparently returned to duty. Griffin did not file his appeal
requesting an administrative hearing until September 2003.
After a hearing, the hearing officer concluded that the Soldiers’ and Sailors’ Civil
Relief Act applied to Griffin’s circumstances. The Act tolls the statute of limitations
applicable to service members during military service. It provides that the period of
military service “may not be included in computing any period limited by law,
regulation, or order for the bringing of any action or proceeding . . . by or against the
servicemember or [his or her] heirs, executors, administrators, or assigns.” 50 U.S.C.
app. § 526 (Supp. 2005). As to members of the Army National Guard such as Griffin,
the Act applies when the member is “under a call to active service authorized by the
President or the Secretary of Defense for a period of more than 30 consecutive days.”
50 U.S.C. app. § 511(2)(A)(ii) (Supp. 2005). The Act also applies to Guard members
(and other reserve-force members) during the period between receiving orders to
report and reporting for military service. 50 U.S.C. app. § 516(a) (Supp. 2005).
The words of this Act are plain and unambiguous. Rylwell L.L.C. v. Arkansas
Development Finance Authority, 372 Ark. 32, 36, 269 S.W.3d 797, 800 (2007). And we
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agree with the hearing officer that the Act applies to Griffin. Small v. Kulesa, 90 Ark.
App. 108, 111–13, 204 S.W.3d 99, 101–03 (2005).
As the hearing officer also concluded, however, the Act’s tolling provisions do
not help Griffin. She reasoned that Griffin got an additional thirty days to appeal the
Determination when he returned from active duty in October 2001. The record is
not completely clear about when Griffin first received orders. If, as he testified,
Griffin received orders to report for training in March 2000, and was on active duty
through October 2001, then the hearing officer correctly held that Griffin had thirty
days starting in October 2001 to appeal the Determination. But if he did not receive
his orders until 22 November 2000, as the hearing officer found, then we are not
convinced that the Department applied the tolling statute correctly. Under this
scenario, sixteen days elapsed between Griffin receiving the Determination and getting
his orders to report for duty. The Act would thus entitle Griffin to only fourteen
additional days to appeal after he returned from active duty in October 2001.
But the specific application of the tolling provision is moot here. Quinn v.
Webb Wheel Products, 334 Ark. 573, 576, 976 S.W.2d 386, 387–88 (1998). Even
giving Griffin the benefit of a full thirty days starting in October 2001, his 2003 appeal
was still untimely as a matter of law. Griffin’s name should therefore remain on the
Child Maltreatment Central Registry.
Affirmed.
ROBBINS and BROWN, JJ., agree.
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