Kivalu v. USOR , 2012 UT App 152 ( 2012 )

IN THE UTAH COURT OF APPEALS
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Taniela F. Kivalu, ) PER CURIAM DECISION
)
Petitioner, ) Case No. 20120072‐CA
)
v. )
) FILED
Utah State Office of Rehabilitation, ) (May 24, 2012)
Division of Rehabilitation Services, )
) 2012 UT App 152Respondent. )
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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
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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.
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James Z. Davis, Judge
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William A. Thorne Jr., Judge
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Stephen L. Roth, Judge
20120072‐CA 2