Administrative Law Prof Blog

Due process - GPS monitoring of state employee

From the New York Law Journal, "Panel Backs Use of GPS Device on State Worker's Personal Car" by John Caher, reviewing Cunningham v. New York State Dep't of Labor, N.Y. App. Div. 3d Dep't, No. 512036, Nov. 23, 2011. Opening paragraphs:

The state Inspector General's placement of a GPS tracking device on the private vehicle of a government employee suspected of falsifying attendance records did not violate the employee's rights, a deeply divided appeals panel held Wednesday.

The Appellate Division, Third Department, which was previously reversed when it upheld the warrantless use of a GPS device to track a criminal suspect, said the electronic surveillance was justified and reasonable in this civil matter because traditional methods, such as following the employee, had been thwarted.

But a two-judge dissent said the government went too far and tracked the employee's movements not only when he was supposed to be working, but when he was on a family vacation.

This is a civil matter, no criminal charges involved. The employee was fired. So we are dealing here with a matter of due process. From the opinion:

A search conducted by a public employer investigating workrelated misconduct of one of its employees is judged by the standard of reasonableness under all the circumstances, both as to the inception and scope of the intrusion. Closely related, but typically applied when the search was conducted by an entity other than the administrative body seeking to use the evidence in a disciplinary proceeding, is the exclusionary rule in the noncriminal context; such rule is applied by balancing the deterrent effect of exclusion against its detrimental impact on the process of determining the truth. In noncriminal proceedings, the clarity of the law at the time the governmental official acts can be pertinent to the reasonableness of the action and the deterrent effect.

Slip op. at 4 (citations and quotation marks omitted). From the article:

Justice Lahtinen said that due to Mr. Cunningham's prior disciplinary record, officials had a "reasonable suspicion" of continuing misconduct and had an obligation "to curtail the suspected ongoing abuse of work time not only to preserve its integrity, but also to protect taxpayers' monies." He said the means of pursuing that mission—installation of a GPS on an employee's personal vehicle—was reasonable.

"To establish a pattern of serious misconduct…it was necessary to obtain pertinent and credible information over a period of time," Justice Lahtinen wrote. "Obtaining such information for one month was not unreasonable in the context of a noncriminal proceeding involving a high-level state employee with a history of discipline problems who had recently thwarted efforts to follow him in his nonwork-related ventures during work hours."

Two justices dissented, giving the employee a right of appeal to the N.Y. Court of Appeals. The case was decided under the New York Constitution, not the U.S. Constitution. With such a strong dissent and a recent New York decision requiring a warrant for GPS tracking in criminal cases (People v. Weaver, 12 N.Y.3d 433 (2009)), it will be interesting to see what the N.Y Court of Appeals does with this. EMM

Policy: Congressional approval of regulations?

From PrawfsBlawg, "Regulatory Changes, Part 2: Congressional Approval of Regulations" by Bill Araiza (Brooklyn):

The second idea I want to talk about is the proposal to require congressional approval before regulations take effect.  Under current law, major regulations are subject to a disapproval vote by Congress (not a legislative veto, but a full-blown statute wiping out the reg -- the statutory provision allows some fast-tracking of such disapproval votes, which is what it adds to Congress's inherent power to wipe out a regulation by statute).  S. 299 and H.R. 10, the latter of which is known as the Regulations from the Executive in Need of Scrutiny (REINS) Act of 2011, would change this. ... Say this provision is enacted, and Congress votes up a particular regulation.  Does the regulation get any judicial review at all, beyond classic rational basis review, since now it's the product of Congress and not an agency?  In other words, would this provision do away with "arbitrary and capricious" review of the major rules subject to that provision's congressional vote requirement?  It's hard to see an answer other than "yes" -- i.e., no A&C review.  That might be OK in light of the fact that it would be Congress essentially doing the hard look review (though it's surely doubtful whether Congress's criteria on review would be similar to those of a court's on judicial review).  But if so, then this provision would work a massive change in the role of the courts in our administrative law system -- an "avulsive change," to use Justice Scalia's disparaging language from United States v. Mead Corp..  It's this type of realization that illustrates just how far-reaching (yes, radical) some of these provisions are.

EMM

Policy: More formal rulemaking?

From PrawfsBlawg, "Regulatory Changes, Part 1" by Bill Araiza (Brooklyn):

It's interesting when everything you thought was settled in a field you teach is suddenly up for grabs.   Administrative law professors have been thinking a lot about recent proposed changes to the administrative process, some of which unsettle forty year-old understandings, and others of which reach back and significantly amend the Administrative Procedure Act itself. ... I'll start with one example.  One of the primary reform bills under consideration, the Regulatory Flexibility Act (S. 1606/H.R. 3010), mandates a formal hearing concerning the agency's use of data supporting the proposed rule when a party makes out a prima facie case that the agency has misused that data or used bad data.  It then seems to require a second formal hearing on the merits of the rule itself. ... To my knowledge there's no administrative law scholar who favors increased emphasis on formal rulemaking, at least not as a general matter.  It will be interesting to see if, after all this time and all this consensus, this and other such changes get serious hearings, either before or after the election.

EMM

Equitable tolling - not

The impact of the doctrine of sovereign immunity extends beyond its own limits to give governments an edge in many areas of litigation. One is in the doctrine of equitable tolling, which permits courts to bypass statutes of limitation when the defendant has actively misled the plaintiff as to when something must be filed.

A federal employee's untimely filing of a disability discrimination complaint with the Equal Employment Opportunity Commission cannot be salvaged by equitable tolling, the U.S. Court of Appeals for the First Circuit held Nov. 10. The doctrine of equitable estoppel is interpreted quite narrowly, especially in cases against the government, the court said. It found that the plaintiff, a clinical social worker with the Department of Veterans Affairs, failed to show that she received inadequate notice of the statute of limitations, that a motion for appointment of counsel was pending, that she was led to believe that she had done everything required, or that affirmative misconduct on the part of the defendant lulled her into inaction. Farris v. Shinseki, 1st Cir., No. 11-1080, 11/10/11.

80 U.S.L.W. 669. EMM

New administrative law articles

From the University of Washington's Current Index to Legal Periodicals:

• Skerry, Mark Brian. Note. When regulation becomes personal: asserting retaliatory enforcement claims against regulatory agencies. 21 Health Matrix 279-305 (2011). [H]|[L]|[W]
• Festschrift in Honor of Paul R. Verkuil. [Includes photographs.] Articles by Justice Antonin Scalia, Matthew Diller, Michael Herz, David Boies, Gail B. Agrawal, Justice Stephen Breyer, Ronald M. Levin, Jerry L. Mashaw, Peter L. Strauss, Sally Katzen, Sarah L. Stafford, Arthur J. Jacobson, Michel Rosenfeld, Jeffrey L. Harrison, Kevin M. Stack, Jeffrey S. Lubbers, Richard J. Pierce, Jr. and Sidney A. Shapiro; postscript by Paul A. Verkuil. 32 Cardozo L. Rev. 2159-2482 (2011). [H]|[L]|[W]
  • Introduction. 32 Cardozo L. Rev. 2159 (2011). [H]|[L]|[W]
  • Biography: Paul R. Verkuil. 32 Cardozo L. Rev. 2161-2162 (2011). [H]|[L]|[W]
  • Bibliography of Paul R. Verkuil. 32 Cardozo L. Rev. 2163-2166 (2011). [H]|[L]|[W]
  • Scalia, Justice Antonin. Paul R. Verkuil. [Includes photograph.] 32 Cardozo L. Rev. 2167-2170 (2011). [H]|[L]|[W]
  • Diller, Matthew. Paul Verkuil as institution builder: the Cardozo story. 32 Cardozo L. Rev. 2171-2172 (2011). [H]|[L]|[W]
  • Herz, Michael. Dean Verkuil. 32 Cardozo L. Rev. 2173-2176 (2011). [H]|[L]|[W]
  • Boies, David. Public control of business revisited. 32 Cardozo L. Rev. 2177-2181 (2011). [H]|[L]|[W]
  • Agrawal, Gail B. Lessons in leadership: a law student and her dean. 32 Cardozo L. Rev. 2183-2187 (2011). [H]|[L]|[W]
  • Breyer, Justice Stephen. The executive branch, administrative action, and comparative expertise. 32 Cardozo L. Rev. 2189-2201 (2011). [H]|[L]|[W]
  • Levin, Ronald M. Statutory time limits on judicial review of rules: Verkuil revisited. 32 Cardozo L. Rev. 2203-2239 (2011). [H]|[L]|[W]
  • Mashaw, Jerry L. Rethinking judicial review of administrative action: a nineteenth century perspective. 32 Cardozo L. Rev. 2241-2253 (2011). [H]|[L]|[W]
  • Strauss, Peter L. On the difficulties of generalization--PCAOB in the footsteps of Meyers, Humphrey's Executor, Morrison, and Freytag. 32 Cardozo L. Rev. 2255-2283 (2011). [H]|[L]|[W]
  • Katzen, Sally. Governing in the information age: technology as a tool of democratic engagement. 32 Cardozo L. Rev. 2285-2291 (2011). [H]|[L]|[W]
  • Stafford, Sarah L. Outsourcing enforcement: principles to guide self-policing regimes. 32 Cardozo L. Rev. 2293-2323 (2011). [H]|[L]|[W]
  • Jacobson, Arthur J. Outsourcing incompetence: an essay in honor of Paul Verkuil. 32 Cardozo L. Rev. 2325-2337 (2011). [H]|[L]|[W]
  • Rosenfeld, Michel. Constitutional versus administrative ordering in an era of globalization and privatization: reflections on sources of legitimation in the post- Westphalian polity. 32 Cardozo L. Rev. 2339-2367 (2011). [H]|[L]|[W]
  • Harrison, Jeffrey L. Regulation, deregulation, and happiness. 32 Cardozo L. Rev. 2369-2389 (2011). [H]|[L]|[W]
  • Stack, Kevin M. Agency independence after PCAOB. 32 Cardozo L. Rev. 2391-2419 (2011). [H]|[L]|[W]
  • Lubbers, Jeffrey S. Paul Verkuil's projects for the Administrative Conference of the U.S. 1974-1992. 32 Cardozo L. Rev. 2421-2443 (2011). [H]|[L]|[W]
  • Pierce, Richard J., Jr. Paul Verkuil: an outstanding scholar in his spare time. 32 Cardozo L. Rev. 2445-2457 (2011). [H]|[L]|[W]
  • Shapiro, Sidney A. Paul Verkuil and pragmatic adjustment in government. 32 Cardozo L. Rev. 2459-2480 (2011). [H]|[L]|[W]
  • Verkuil, Paul R. Postscript. 32 Cardozo L. Rev. 2481-2482 (2011). [H]|[L]|[W]

EMM

New Arizona opinion covering multiple topics

A new opinion from the Arizona Court of Appeals, Scenic Arizona v. City of Phoenix, No. 1 CA-CV 09-0489 (Nov. 17, 2011), is sort of a one-stop-shop for some important state-level administrative law issues. Video billboards lose. I don't have time to discuss it today, but it has lots of citations on the following topics:

• Standing, especially when there is a specific statute involved.
• Interpreting remedial statutes.
• Jurisdiction of municipal boards.
• Plain language.
• Pleading injury in an administrative context.
• Statutory interpretation - several considerations.
• Judicial deference to agency interpretation.
• The meaning of legislative inaction.

I'll try to put some time into examining this case next week. EMM

 

Where does this fit in the APA?

The Copyright Office of the Library of Congress (let's not talk about a unified executive here) maintains a list of "specialty stations"—television stations that are allowed to charge a lower copyright rate than other stations. This is important for cable systems, because they can carry distant specialty stations for much less than the cost of other stations. Peter Tannenwald (Fletcher, Heald & Hildreth, Arilington, Virginia) reviews this odd list in "Copyright Office: Making a List, Checking It Twice" on his firm's CommLawBlog.

[T]he FCC recognized that cable carriage of certain “specialty stations” might be desirable even if they originated far away from the cable system, because specialty stations are usually not locally available outside the largest markets. Accordingly, the Commission established a regulatory classification for such stations[.]

The FCC no longer cares, but the copyright rate differential is still in place so cable companies, stations, and rights holders care. So the Copyright Office sort of maintains this list.

[S]ince 1989 the CO [Copyright Office] has used a kind of honor system. Stations which believe that they would have qualified for “specialty status” under the FCC’s definition last in effect in 1981 can so certify in an affidavit to the CO. The CO will put each such self-certifying station on the CO’s “specialty station” list – but not before (a) other potentially interested parties are invited to comment on the claim and (b) the claiming station has a chance to respond to such comments.

What happens when that barrage of pleadings and counter-pleadings has ended? The CO simply adds all claimant stations to the list. If objections have been raised about any particular station, a notation of the objection(s) is included in the listing. The CO does not itself try to resolve any disagreements: its position for more than 20 years has been, and remains, that the CO “should not itself verify the specialty station status of particular stations”.

Is this a regulation? An adversarial determination of fact? What is it? Can the MPAA somehow block inclusion of a station from this list? This might be an interesting exercise for a class discussion on which parts of the APA apply to which sorts of agency actions. EMM

New administrative law article

From the University of Washington's Current Index to Legal Periodicals:

• Taylor, Daniel C. Note. Taking Touhy too far: why it is improper for federal agencies to unilaterally convert subpoenas into FOIA requests. 99 Geo. L.J. 1227-1261 (2011). [H]|[L]|[W]

EMM

NPR program: "Poisoned Places"

National Public Radio and the Center for Public Integrity have produced a documentary, "Poisoned Places: Toxic Air, Neglected Communities", on failures in regulatory control under the Clean Air Act. It only picks on failures, but you and your librarians should be able to find information on successes with little trouble. "There's an old saying that victory has 100 fathers and defeat is an orphan." 1961 J. F. Kennedy News Conference 21 Apr. in PUBLIC PAPERS OF PRESIDENTS OF U.S. (1962) 312.

But perhaps it is worthwhile to look at regulatory failure. Irrespective of the conclusions of this documentary, I suggest looking at the entire system for the failure points:

• The statute itself.
• The agency's interpretation of the statute.
• The organization of the enforcement effort, both internal and necessary outside support.
• The resourcing (funding, people, talent) of the enforcement effort from above.
• The leadership of the enforcement effort, above and within at all levels.
• The management of resources (funding, people, equipment, ...) within the enforcement effort.
• The availability and management of information for the enforcement effort.
• The motivation of those doing the enforcing.
• The balance of power between the enforcement effort and the regulated entities—resources, talent, law, vigor, ...
• The impact of third parties, including other governments and agencies, on the enforcement effort.
• Other things I can't remember right now.

Could be an interesting class discussion. Regulatory systems can go wrong in so many ways that it is amazing they function at all. EMM

Interpreting regulations - potential class discussion

Another interesting interpretation case from Larry Friedman's Customs Law blog: "Airflow Remand: Worth Reading". Opening paragraph:

Airflow Technologies is one of my favorite cases of the past few years. In it, the Federal Circuit reversed the Court of International Trade and held that the tariff description "straining cloth" in HTSUS heading 5911 only applies to cloth used for straining solid particles from liquids. Whatever clearing the air or other gases of particulates may be called, it is not straining. The Federal Circuit remanded to the Court of International Trade for additional consideration. The CIT has now issued its remand decision, and it is interesting.

This could be a fun case for a class discussion about a practical problem of interpretation. EMM

Interpreting regulations

Larry Friedman (Barnes/Richardson, Chicago) discusses an interesting interpretation problem in "Hitachi: Shall = Should" on his Customs Law blog. Opening paragraph:

Sometimes, people complain that lawyers can't speak or write in simple English. Usually, I am sympathetic to this complaint. But, there are time when lawyer language has to be complicated to anticipate and avoid later arguments about what some text means. If your argument in a contract dispute is "We all know I was not supposed to paint the house in the rain," but you can't point to that in the contract, you are in a weak (but not untenable) position. If you have a contract that covers when, how, and in what conditions you are supposed to paint, it will be easier to resolve the dispute. So, up to a point, legalese has a place. Hitachi Home Products is all about how courts grapple with bad drafting and important points left out of laws.

EMM

Dickinson on preemption

New on SSRN: "Calibrating Chevron for Preemption" by Gregory M. Dickinson (Ropes & Gray, Boston), 63 ADMIN. L. REV. (2011). Abstract:

Now almost three decades since its seminal Chevron decision, the Supreme Court has yet to articulate how that case’s doctrine of deference to agency statutory interpretations relates to one of the most compelling federalism issues of our time: regulatory preemption of state law. Should courts defer to preemptive agency interpretations under Chevron, or do preemption’s federalism implications demand a less deferential approach? Commentators have provided no shortage of possible solutions, but thus far the Court has resisted all of them.

This Article makes two contributions to the debate. First, through a detailed analysis of the Court’s recent agency-preemption decisions, I trace its hesitancy to adopt any of the various proposed rules to its high regard for congressional intent where areas of traditional state sovereignty are at risk. Recognizing that congressional intent to delegate preemptive authority varies from case to case, the Court has hesitated to adopt an across-the-board rule. Any such rule would constrain the Court and risk mismatch with congressional intent - a risk it accepts under Chevron generally but which it finds particularly troublesome in the delicate area of federal preemption.

Second, building on this previously underappreciated factor in the Court’s analysis, I suggest a novel solution of variable deference that avoids the inflexibility inherent in an across-the-board rule while providing greater predictability than the Court’s current haphazard approach. The proposed rule would grant full Chevron-style deference in those cases where congressional delegative intent is most likely - where Congress has expressly preempted some state law and the agency interpretation merely resolves preemptive scope - while withholding deference in those cases where Congress has remained completely silent as to preemption and delegative intent is least likely. This rule packages the Court’s core concerns into a text-based, bright-line rule that tracks congressional intent more closely than do any competing proposals, without sacrificing administrability.

EMM

When statutes require regulations

Usually I don't post about the actions of specific agencies, but Trent Dykes (DLA Piper, Seattle) has an interesting post in his firm's The Venture Alley blog, "Crowdfunding Bill Overwhelmingly Approved by House". It's the kind of analysis we sometimes need to do for clients or scholarship—examining a new statute to determine the issues that it leaves to executive agencies to resolve. The subject of Mr. Dykes' post is a new federal "crowdfunding" bill:

Like other capital formation bills we’ve discussed, the House of Representatives has overwhelmingly approved (by a vote of 407-17) the “Entrepreneur Access to Capital Act,” H.R. 2930.  Subject to certain limitations, H.R. 2930 would allow businesses to raise money selling unregistered securities using “crowdfunding.”

After describing the salient legal changes made by the bill, Mr. Dykes goes on to identify some of the issues requiring regulations:

The bill would require SEC rulemaking to carry out these provisions within 180 days.  This seems wise, since it is easy to imagine numerous topics that are critical to understanding how to safely use this exemption.  Here are just a few notable questions off of the top of my head:

• How is annual income calculated? ...
• What audited financial statements are needed in offerings up to $2 million? ...
• Who is a “potential investor”?  ...
• What is an adequate “target offering amount”? ...
• What happens to funds being held by a qualified third party intermediary?  ...
• How do the resale provisions work?  ...
• Can crowdfunding offerings be “integrated” with other offerings?  ...

If you have enough of a securities law background to understand what he's talking about, it makes for interesting reading. Often statutes that require agency interpretation give little indication of what that interpretation might be, and the devil is very much in such details. EMM

New administrative law article

From the University of Washington's Current Index to Legal Periodicals:

• Ochoa, Omar. Note. Accounting for FASB: why administrative law should apply to the Financial Accounting Standards Board. 15 Tex. Rev. L. & Pol. 489-526 (2011). [H]|[L]|[W]

EMM

Strauss: "Deference" is too confusing

On RegBlog, Peter L. Strauss (Columbia) has posted a summary of an upcoming article, "Deference" is Too Confusing - Let's Call Them "Chevron Space" and "Skidmore Weight". Opening paragraphs:

The reigning administrative law mystery of the last third of a century, Chevron “deference,” has never seemed especially mysterious, controversial or difficult to me.  In trying to work out why Chevron has not seemed difficult to me, I’ve found “deference” at the heart of the confusion.

Justice Stevens, the author of Chevron, captured the problem in a sentence denying the utility of the U.S. Supreme Court’s analogous and equally confusing approach to equal protection issues.  Multi-level deference analysis, like “tiers of scrutiny” equal protection analysis, “does not describe a completely logical method of deciding cases, but rather is a method the Court has employed to explain decisions that actually apply a single standard in a reasonably consistent fashion.”

And further on:

Steering clear of commonly used review concepts that may muddle rather than clarify the structure’s operation, I avoid the term “deference” and argue that instead of “Chevron deference” and “Skidmore deference,” one could more profitably think in terms of “Chevron space” and “Skidmore weight.”

Interesting idea. EMM

New administrative law articles

From the University of Washington's Current Index to Legal Periodicals:

• Annual Review of Administrative Law. 79 Geo. Wash. L. Rev. 1343-1629 (2011). [H]|[L]|[W]
  • Mendelson, Nina A. Rulemaking, democracy, and torrents of e-mail. 79 Geo. Wash. L. Rev. 1343-1380 (2011). [H]|[L]|[W]
  • Sant' Ambrogio, Michael D. Agency delays: how a principal-agent approach can inform judicial and executive branch review of agency foot-dragging. 79 Geo. Wash. L. Rev. 1381-1448 (2011). [H]|[L]|[W]
  • Stephenson, Matthew C. and student Miri Pogoriler. Seminole Rock's domain. 79 Geo. Wash. L. Rev. 1449-1504 (2011). [H]|[L]|[W]
  • Nagle, John Copeland. Saxe's aphorism. (Reviewing John F. Manning and Matthew C. Stephenson, Legislation and Regulation.) 79 Geo. Wash. L. Rev. 1505-1534 (2011). [H]|[L]|[W]
  • Healey, Christopher P. Student essay. Updating the SEC's exemptive order process under the Investment Company Act of 1940 to fit the modern era. 79 Geo. Wash. L. Rev. 1535-1557 (2011). [H]|[L]|[W]
  • Pruitt, Andrew. Student essay. Judicial deference to retroactive interpretative Treasury regulations. 79 Geo. Wash. L. Rev. 1558-1591 (2011). [H]|[L]|[W]
  • Weiss, Joshua. Student essay. Defining executive deference in treaty interpretation cases. 79 Geo. Wash. L. Rev. 1592-1612 (2011). [H]|[L]|[W]
  • Welzien, Alexa E. Student essay. MSHA's pattern of violations authority: reviving an untapped resource of enforcement power. 79 Geo. Wash. L. Rev. 1613-1629 (2011). [H]|[L]|[W]
• Gibson, Tannera George. Not in my neighborhood: Memphis and the battle to preserve Overton Park. 41 U. Mem. L. Rev. 725-744 (2011). [H]|[L]|[W]
• Harkness, Donna. The process of determining what process is due: the continuing saga of Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1 (1978). 41 U. Mem. L. Rev. 745- 768 (2011). [H]|[L]|[W]

EMM

Interpretation question

A recent Arizona Court of Appeals opinion provides a possible discussion or exam question. Special Events Service, Inc. and Zurich American Insurance Co. v. Roberto Dominguez, No. 2 CA-IC 2011-0010 (Nov. 1, 2011):

¶1 In this statutory special action, petitioners employer Special Events Service, Inc. (Special Events) and its insurance carrier Zurich American Insurance Co. (Zurich) challenge the administrative law judge.s (ALJ) decision upon hearing and decision upon review, which closed respondent employee Roberto Dominguez's claim as an unscheduled injury and applied the principle of res judicata to the carrier's notice designating the disability as unscheduled. For the reasons stated below, we set aside the award.

Like other states, Arizona's workers compensation statutes and regulations provide for various forms to be completed by claimants, employers, and insurance carriers.

¶2 ... [O]n April 26, 2010, [the insurance carrier] filed a notice of claim status ("Form 104") closing the claim and stating [claimant]'s injury had resulted in a permanent disability.

¶3 On the same day, [the carrier] filed a notice of permanent disability and request for determination of benefits ("Form 107"), which stated [the claimant] had an "[u]nscheduled permanent partial disability" pursuant to A.R.S. [Arizona Revised Statutes] § 23-1044(C). On June 29, a [carrier] senior claims examiner received a telephone call from the [Arizona Industrial Commission] advising that [the carrier] had filed the incorrect form and instead should file a notice of permanent disability or death benefits ("Form 106"). On July 30 [95 days after the Form 107 was filed - ed.], [the carrier] filed a Form 106 "[r]escinding" the April Form 107 and stating [the claimant] had an eighteen percent disability to the "upper extremity," which was compensable as a scheduled injury pursuant to A.R.S. § 23-1044(B)(12).

¶4 [The claimant] filed a request for a hearing before the commission, arguing the Form 106 [the carrier] had filed in July was void because "[t]he April 26, 2010 form 107 notice has become final and the carrier cannot 'rescind it' after . . . 90 days has expired." The ALJ held a two-day hearing and decided the Form 107 filed in April was "entitled to finality pursuant to the principles of res judicata." Therefore, she directed the claim to be closed as an unscheduled injury.

(Quotations and citations omitted.) Not stated is the fact that identifying this claim as an "unscheduled injury" is much better for the claimant than the 18% disability compensable as a scheduled injury.

Under A.R.S. § 23-947(A), parties have 90 days to file a request for a hearing after notice of a determination by the commission, insurance carrier or self-insuring employer. If nobody requests a hearing, A.R.S. § 23-947(B) provides that the determination "is final and res judicata to all parties." So what's the problem here?

Forms 104 and 106 are "determinations" that can be "protested" in the administrative process. Per Ariz. Admin. Code R20-5-106(A)(6), the forms have the protest rights printed on them. Form 107 doesn't because it is not a determination—it is a request that the Industrial Commission make a determination. So the 90 day res judicata rule does not apply. The Court looked at both the language of the statute—that it is a "determination" that can become final if not timely protested—and deferred to the Commission's interpretation of the statute in that Form 107 does not have protest rights set out on it.

The claimant has a policy argument here that allowing this kind of paper-shuffling allows the carrier to delay payments, but the Court of Appeals pointed out that the Industrial Commission has the authority to hammer insurance carriers who fail to process claims in a timely manner. EMM