WAI CHENG, Petitioner-Appellant, vs. JOHN STANLEY, JESSICA BRASE, LANA HERTEEN and LISA WALTON, Respondents-Appellees.
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IN THE COURT OF APPEALS OF IOWA
No. 9-677 / 08-0737
Filed October 7, 2009
WAI CHENG,
Petitioner-Appellant,
vs.
JOHN STANLEY, JESSICA BRASE,
LANA HERTEEN and LISA WALTON,
Respondents-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Joel D. Novak, Judge.
Appellant appeals the district court’s dismissal of her motion for a rule to
show cause. AFFIRMED.
Wai Ling Cheng, West Des Moines, pro se.
Connie Diekema, Des Moines, for appellee Lana Herteen
David Brown, Des Moines, for appellee Lisa Walton.
Mark Schultheis of Nyemaster Law Firm, Des Moines, for appellees John
Stanley and Jessica Brase.
Considered by Vogel, P.J., and Potterfield, J., and Beeghly, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2009).
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VOGEL, P.J.
Wai Cheng appeals the district court’s ruling on judicial review dismissing
her application for rule to show cause.
The Iowa Department of Inspections and Appeals (DIA) issued a
subpoena duces tecum in a matter pending with the Department of Human
Services brought upon the appeal of Cheng. Alleging noncompliance with the
production requested, Cheng sought enforcement of the subpoena duces tecum
through the DIA with an application for rule to show cause. An administrative law
judge (ALJ) for the DIA, after citing Iowa Code section 17A.13 (2007),
determined: “[w]hile the undersigned has authority to and is required to issue
subpoenas upon the request of a party, any attempt to enforce those
proceedings must be made through the district court.” Cheng then filed a rule to
show cause in a separate civil action in district court. After finding Cheng failed
to exhaust her administrative remedies, the district court concluded it did not
have subject matter jurisdiction and dismissed the application. Cheng appeals,
asserting the district court had jurisdiction to issue a rule to show cause. We
affirm.
Subpoenas can be utilized and issued by the agency, and are available to
all parties in contested cases before an agency. Iowa Code § 17A.13(1). Any
motion with regard to the requested discovery is handled within the agency. See
Iowa Admin. Code r. 481-10.13(17A) (“Motions in regard to discovery shall be
ruled on by the ALJ.”). While an administrative proceeding is initially heard by an
ALJ, the decisions of the ALJ are subject to review by the agencies for which
they act as presiding officers. Iowa Code § 10A.801(3)(a), (10). When the ALJ
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makes a proposed decision, that decision becomes the final decision of the
agency unless there is an intra-agency appeal within the time provided by rule.
Iowa Code § 17A.15(3). The agency, in this case the director, then has the
power to administer and enforce the ALJ ruling, issuing a final agency decision.
Iowa Code § 17A.15(3); see also Iowa Code § 10A.104(6), (9).
Not until a final agency decision is made can a party file a petition for
judicial review. Iowa Code § 17A.19(1); Shors v. Johnson, 581 N.W.2d 648, 650
(Iowa 1998) (“It is well established that a party must exhaust any available
administrative remedy before seeking relief in the courts.
The exhaustion
doctrine applies when (1) an adequate administrative remedy exists, and (2) the
governing statute requires the remedy to be exhausted before allowing judicial
review.”).
“We believe the legislature intended that discovery problems in
administrative proceedings be settled before the agency whenever possible and,
in any event, that judicial review ordinarily await final agency action.”
See
Christensen v. Iowa Civil Rights Comm’n, 292 N.W.2d 429, 431 (Iowa 1980).
Therefore, only upon final agency action, may the aggrieved party seek judicial
review to enforce compliance with the subpoena. Iowa Code § 17A.19(1); see
also Iowa Code § 10A.104(6) (stating the agency director “may enlist the
assistance of a court of competent jurisdiction in requiring the person’s
compliance”).
We acknowledge the Iowa Administrative Procedure Act lacks some
clarity as to the path a litigant is required to take in seeking enforcement of a
subpoena. Compare Iowa Code § 17A.13 (“[A]gency subpoenas shall be issued
to a party on request. . . . In proceedings for enforcement, the court shall issue
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an order requiring [the discovery requested] . . . under penalty of punishment for
contempt in cases of willful failure to comply.”), with Iowa Code § 10A.801(10)
(providing ALJ decisions are subject to review by the agency) and Christensen,
292 N.W.2d at 431 (“Sections 17A.13 and 17A.19 do not give nonagency parties
a right of immediate recourse to the courts. Discovery disputes are subject to
review on the same terms as other agency action.”).
Cheng’s ability to follow the correct procedures was then complicated by a
misleading finding of the ALJ, “[a]ny efforts by [Cheng] to enforce said
subpoenas must be made in district court.” The district court subsequently found
Cheng had not exhausted her administrative remedies through the DIA. We
understand Cheng’s frustration and confusion.
However, proceeding pro se,
Cheng is nonetheless charged with following the administrative appeal
procedures in accordance with the Iowa Administrative Procedure Act, as well as
Iowa case law.1 Iowa Code § 17A.19.2 The ALJ’s ruling on application to show
cause was a proposed decision, and therefore subject to review by the DIA, the
agency for which the ALJ acted as presiding officer. Iowa Code § 10A.801(10).
Without a final agency decision, Cheng should have sought enforcement of her
appeal through the DIA. See Christensen, 292 N.W.2d 429 at 431.
1
Our opinions are binding on Iowa’s courts as soon as they are filed. State v. Harris,
741 N.W.2d 1, 9 (Iowa 2007).
2
Cheng chose to represent herself pro se in this proceeding. We do not utilize a
deferential standard when persons choose to represent themselves.
The law does not judge by two standards, one for lawyers and the other
for lay persons. Rather, all are expected to act with equal competence. If
lay persons choose to proceed pro se, they do so at their own risk.
Metropolitan Jacobson Dev. Venture v. Bd. of Review, 476 N.W.2d 726, 729 (Iowa Ct.
App. 1991).
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As the district court stated, “[Cheng] has not sought enforcement of the
subpoena at issue through the appropriate administrative channels within the
Department of Inspection and Appeals.”
Cheng failed to exhaust her
administrative remedies, and therefore the district court did not have authority to
hear Cheng’s application.
AFFIRMED.
We affirm the decision of the district court.
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