Pentskiff Interpreting v. Department of Health , 2013 UT App 157 ( 2013 )

2013 UT App 157_________________________________________________________
THE UTAH COURT OF APPEALS
PENTSKIFF INTERPRETING SERVICES,
Petitioner,
v.
DEPARTMENT OF HEALTH, DIVISION OF MEDICAID
AND HEALTH FINANCING OFFICE OF FORMAL HEARINGS,
Respondent.
Memorandum Decision
No. 20110824‐CA
Filed June 20, 2013
Original Proceeding in this Court
Lonnie Eliason, Attorney for Petitioner
John E. Swallow and Brent A. Burnett, Attorneys
for Respondent
JUDGE MICHELE M. CHRISTIANSEN authored this Memorandum
Decision, in which J. FREDERIC VOROS JR. concurred. JUDGE
GREGORY K. ORME concurred in the result.
CHRISTIANSEN, Judge:
¶1 Pentskiff Interpreting Services (Pentskiff) seeks review of a
decision by the Utah Department of Health, Division of Medicaid
and Health Financing Office of Formal Hearings (the Division) that
it lacked jurisdiction to review Pentskiff’s claims against Healthy
U Managed Health Plan (Healthy U). We conclude that Pentskiff’s
petitions to this court were filed prior to any final agency action by
the Division and are therefore premature.1
1. Even if Pentskiff’s petitions for review had been timely filed
following a final agency action, and our jurisdiction thus properly
(continued...)
Pentskiff Interpreting Servs. v. Department of Health
¶2 On March 28, 2011, Pentskiff filed a hearing request with the
Division to consider 226 claims for interpretation services that had
not been paid by Healthy U (the first administrative case).
Pentskiff’s case was dismissed by a Division administrative law
judge (ALJ) on August 30, 2011, for lack of jurisdiction. Pentskiff
timely sought reconsideration of the ALJ’s decision by the
Division’s deputy director. Before the deputy director issued his
response, however, Pentskiff petitioned this court for judicial
review on September 19, 2011. On September 30, 2011, the deputy
director denied Pentskiff’s request for reconsideration, again for
lack of jurisdiction, stating, “You will need to seek a judicial forum
to resolve your dispute with Healthy U.” The deputy director’s
decision also provided notice of Pentskiff’s right to petition for
judicial review within thirty days.
¶3 On September 13, 2011, Pentskiff requested another hearing
relating to an additional 233 claims that had not been paid by
Healthy U (the second administrative case). The ALJ—not the same
ALJ who ruled in the first administrative case—dismissed this case
on September 16, 2011, for lack of jurisdiction. Pentskiff timely
sought reconsideration before the Division’s deputy director.
Again, before the deputy director issued his response, Pentskiff
petitioned this court for judicial review on October 11, 2011. On
October 18, 2011, the deputy director denied Pentskiff’s request for
reconsideration and again advised, “You will need to seek a
judicial forum to resolve your dispute with Healthy U.” Also, the
deputy director provided notice of Pentskiff’s right to petition for
judicial review within thirty days. Both petitions for judicial review
have been consolidated into one case before this court.
1. (...continued)
invoked, we would conclude, as we did in Pentskiff Interpreting
Servs. v. Department of Health, 2013 UT App 156, that the Division
“was precluded from exercising jurisdiction over Pentskiff’s
claim.” Id. ¶ 8.
20110824‐CA 2 2013 UT App 157Pentskiff Interpreting Servs. v. Department of Health
¶4 “As a threshold matter, we must determine whether we
have jurisdiction” to review Pentskiff’s claims. See Maverik Country
Stores, Inc. v. Industrial Comm’n, 860 P.2d 944, 947 (Utah Ct. App.
1993). Pentskiff filed its petitions for judicial review after the ALJs’
decisions, but before resolution of its requests for reconsideration.
Thus, we must determine if the ALJs’ decisions constitute final
agency action.
¶5 Utah Code section 78A‐4‐103(2) grants judicial review of “a
final order or decree resulting from . . . a formal adjudicative
proceeding of a state agency.” Utah Code Ann. § 78A‐4‐103(2)(a)(i)
(LexisNexis 2012) (emphasis added). Additionally, the Utah
Administrative Procedure Act provides that “the Court of Appeals
has jurisdiction to review all final agency action resulting from
formal adjudicative proceedings.” Id. § 63G‐4‐403(1) (LexisNexis
2011) (emphasis added); see also id. § 63G‐4‐401(1) (“A party
aggrieved may obtain judicial review of final agency action . . . .”
(emphasis added)).
¶6 An agency action is considered final when it meets a three‐
part inquiry:
“(1) Has administrative decisionmaking reached a
stage where judicial review will not disrupt the
orderly process of adjudication?;
(2) Have rights or obligations been determined or
will legal consequences flow from the agency action?;
and
(3) Is the agency action, in whole or in part, not
preliminary, preparatory, procedural, or
intermediate with regard to subsequent agency
action?”
Heber Light & Power Co. v. Utah Pub. Serv. Comm’n, 2010 UT 27, ¶ 7,
231 P.3d 1203 (quoting Union Pac. R.R. Co. v. Utah State Tax
20110824‐CA 3 2013 UT App 157Pentskiff Interpreting Servs. v. Department of Health
Commʹn, 2000 UT 40, ¶ 16, 999 P.2d 17). “All three questions must
be answered in the affirmative for an order to qualify as final
agency action.” Id.
¶7 Because Pentskiff filed its petitions with this court prior to
resolution of the reconsideration requests, we conclude that the
ALJs’ decisions do not satisfy the three‐part test. First, the ALJs’
decisions had not “reached a stage where judicial review would not
disrupt the orderly process of adjudication.” See id. At the time
Pentskiff filed for judicial review, its requests for reconsideration
were pending. The orderly process of adjudication would have
been disrupted by having judicial review take place while the
Division’s deputy director was evaluating the requests for
reconsideration. Second, no “rights or obligations” or “legal
consequences” could flow from the ALJs’ decisions while
resolution of the requests for reconsideration were pending. See id.Because the deputy director’s decision could override any action
taken by either ALJ, no legal rights, obligations, or consequences
would take effect until the requests for reconsideration were
issued. Finally, the ALJs’ decisions in this case were “intermediate
with regard to subsequent agency action.” See id. When it requested
reconsideration, Pentskiff became obligated to abide by the deputy
director’s response, thus making the ALJs’ decisions an
intermediate step subject to subsequent agency action by the
deputy director. Because the ALJs’ decisions fail to meet the three‐
part test, they do not constitute final agency action. As a result,
Pentskiff’s petitions to this court are premature and we lack
jurisdiction to review them.
¶8 Our decision is consistent with McCoy v. Utah Disaster
Kleenup, 2003 UT App 49, 65 P.3d 643. In that case, Utah Disaster
Kleenup (Kleenup) filed a petition for review with this court one
day before the Utah Labor Commission issued a final order
denying Kleenup’s request for reconsideration. See id. ¶ 8. We
noted that the Labor Commission’s final order “included a notice
that the parties had thirty days from the date of that final order to
petition this court for review.” Id. ¶ 20. Kleenup never filed the
20110824‐CA 4 2013 UT App 157Pentskiff Interpreting Servs. v. Department of Health
petition for review during that thirty‐day window. Id.Consequently, because Kleenup’s petition was premature, and
because Kleenup never filed a subsequent petition during the
thirty‐day period, we lacked jurisdiction and dismissed. Id.
¶9 Like Kleenup, Pentskiff filed petitions for judicial review
before the deputy director responded to Pentskiff’s requests for
reconsideration. Also, Pentskiff never petitioned for judicial review
during the thirty‐day period following the deputy director’s
denials. See Utah Code Ann. § 63G‐4‐401(3)(a) (LexisNexis 2011)
(“A party shall file a petition for judicial review of final agency
action within 30 days.”).
¶10 Pentskiff argues that the “request for reconsideration is not
a prerequisite for seeking a judicial review which means that the
judicial review can be done independently from reconsideration.”
Pentskiff relies on Utah Code section 63G‐4‐302(1)(b), which
provides, “Unless otherwise provided by statute, the filing of the
request [for reconsideration] is not a prerequisite for seeking
judicial review of the order.” See id. § 63G‐4‐302(1)(b). Though it is
true that a request for reconsideration is not a prerequisite for
judicial review, Pentskiff mistakenly construes this to mean that
judicial review and reconsideration may be pursued at the same
time. “Although the step of seeking reconsideration is optional,
once reconsideration is initiated, it must be followed through
before seeking judicial review.” Rathmann v. Labor Comm’n, 2011
UT App 110, ¶ 3, 252 P.3d 868 (per curiam) (citing Maverik Country
Stores, Inc. v. Industrial Comm’n, 860 P.2d 944, 951 (Utah Ct. App.
1993)). Furthermore, we have noted that the availability of a
request for reconsideration “does not provide a petitioner the
opportunity to pursue both routes concurrently.” See Maverik, 860
P.2d at 951 n.11. Rather, “a petitioner who decides to file a request
for reconsideration no longer has a ‘final agency action’ from which
to appeal. The petitioner must wait until the request is either
responded to in writing or denied by operation of law.” Id. Thus,
Pentskiff was obligated to wait to seek review of the ALJs’
20110824‐CA 5 2013 UT App 157Pentskiff Interpreting Servs. v. Department of Health
decisions until after the deputy director resolved its requests for
reconsideration.
¶11 Pentskiff also claims that the Division “intended to cloud
and dismiss the matter through distorting the judicial process” by
providing misleading appeal instructions. Pentskiff contends that
it strictly followed the appeal procedures attached to the ALJs’
decisions. However, neither of the appeal procedures outlined by
the ALJs provide misleading information.
¶12 With regard to the first administrative case, the appeal
instructions state, “Within 30 days after the date that the final
agency order or denial of reconsideration is issued, you may appeal
the order or denial to the Utah Court of Appeals.” (Emphasis
added.) This language explains that judicial review is only
available once reconsideration is denied, if that option is pursued;
otherwise, the appeal can directly follow the ALJ decision. Notably,
the appeal instructions include a citation to Utah Code section 63G‐
4‐302, which provided that a request for reconsideration is
available “if the [agency] order would otherwise constitute final
agency action.” See Utah Code Ann. § 63G‐4‐302(1)(a) (emphasis
added). Inclusion of the word “otherwise” means that by filing a
request for reconsideration, the original agency order—in this case
the ALJ decision—no longer constitutes final agency action.
Maverik, 860 P.2d at 951 n.11.
¶13 As to the second administrative case, the appeal instructions
state, “If a request for reconsideration is filed and denied, a petition
may be filed within thirty (30) days of the denial for
reconsideration.” Though perhaps the appeal instructions could
have provided more guidance, there is no indication that the
Division “intended to cloud [the] appealing process,”as alleged by
Pentskiff.
¶14 In conclusion, we determine that the ALJs’ dismissals do not
constitute final agency actions, because Pentskiff requested
reconsideration of those decisions. “Petitioners who choose to take
20110824‐CA 6 2013 UT App 157Pentskiff Interpreting Servs. v. Department of Health
advantage of the statutory provision that allows them to request
reconsideration must thereafter accept the consequences, one of
which is that an appeal to the judicial system cannot be made until
the agency acts on the request.” Maverik, 860 P.2d at 951 n.11.
Pentskiff’s petitions for judicial review were premature and
therefore, we lack jurisdiction and must dismiss. See Varian‐Eimac,
Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1989) (“When a
matter is outside the court’s jurisdiction it retains only the
authority to dismiss the action.”).
20110824‐CA 7 2013 UT App 157