Kivalu v. USOR
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IN THE UTAH COURT OF APPEALS ooOoo Taniela F. Kivalu, Petitioner, v. Utah State Office of Rehabilitation, Division of Rehabilitation Services, Respondent. ) ) ) ) ) ) ) ) ) ) PER CURIAM DECISION Case No. 20120072 CA F I L E D (May 24, 2012) 2012 UT App 152 Original Proceeding in this Court Attorneys: Taniela F. Kivalu, Orem, Petitioner Pro Se Mark L. Shurtleff and Brent A. Burnett, Salt Lake City, for Respondent Before Judges Davis, Thorne, and Roth. ¶1 Taniela F. Kivalu seeks review of the State Superintendent of Public Instruction s decision affirming the Utah State Office of Rehabilitation, Division of Rehabilitation Services s denial of benefits associated with Kivalu relocating to Tonga to pursue a teaching position. This matter is before the court on its own motion for summary disposition based upon lack of jurisdiction. ¶2 Kivalu initiated the underlying proceeding pursuant to the federal Vocational Rehabilitation Services statutes, which establish eligibility for benefits and the process for adjudicating a party s rights under the statutes. See generally 29 U.S.C. § 722 (2006). Under the statute each state is required to prepare a plan on how it will provide vocational rehabilitation services under the federal program. See id. § 721(a)(1). Utah enacted its plan in the State Office of Rehabilitation Act. See generally Utah Code Ann. § 53A 24 103 (2009). Under the federal statute, a party may challenge an initial decision to deny benefits to a hearing officer. See 29 U.S.C. § 722(c)(5)(A). If a party is not satisfied with the hearing officer s decision, he may seek an impartial review of the decision of the hearing officer under subparagraph (A) by the chief official of the designated State agency. Id. § 722(c)(5)(D). Kivalu sought such a review by the State Superintendent of Public Instruction, who denied Kivalu s appeal. ¶3 The federal statutes dictate how a party may seek judicial review of a final administrative order. See id § 722(c)(5)(J). Specifically, an aggrieved party may bring a civil action for review of such decision. The action may be brought in any State court of competent jurisdiction or in a district court of the United States of competent jurisdiction without regard to the amount in controversy. Id.; see also 34 C.F.R. § 361.57(i)(1). Thus, if Kivalu desired judicial review of the State Superintendent of Public Instruction s final decision, he was required to file a complaint in either state or federal district court. Under the applicable statutes, this court lacks the jurisdiction to review the State Superintendent of Public Instruction s decision. Accordingly, this proceeding is dismissed. ____________________________________ James Z. Davis, Judge ____________________________________ William A. Thorne Jr., Judge ____________________________________ Stephen L. Roth, Judge 20120072 CA 2
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