Rehearing and Appeal of Final Administrative Actions

By Daniel G. Martin
Vol. 32 July 2004

At the conclusion of an administrative hearing in the Office of Administrative Hearings (“OAH”), the Administrative Law Judge who presided over the case will prepare a written decision setting forth findings of fact, conclusions of law, and, in most cases, an order for the disposition of the matter. After the Administrative Law Judge completes the decision, the agency from which the case arose will review the decision and make a determination (with certain exceptions) to accept, reject or modify the decision. The agency will then issue its final administrative decision. See Arizona Revised Statutes ("A.R.S.") § 41-1092.08(B). [For further discussion of the post-hearing review process, see After the Hearing, The OAH Newsletter, Vol. 29 (October 2003))] Alternatively, an agency may fail to take action with respect to a decision, in which case the decision will be certified by OAH as the final administrative decision. See Arizona Revised Statutes ("A.R.S.") § 41-1092.08(D). [For further discussion of certification, see Certification of Administrative Decisions, The OAH Newsletter, Vol. 31 (May 2004)]

If a party disagrees with a final administrative decision, that party may file a motion for rehearing or review of the decision. See A.R.S. § 41-1092.09. Motions for rehearing or review must be filed not later than thirty days after service of the decision (thirty-five days if the decision is served by mail). See A.R.S. § 41-1092.09(A)(1). Although specific grounds for rehearing or review vary from agency to agency, typical grounds include irregularity in the proceedings, error in the admission or rejection of evidence, newly discovered evidence that could not, with reasonable diligence, have been discovered prior to hearing, accident or surprise that could not have been prevented by ordinary prudence, and excessive or insufficient penalties. Motions for rehearing or review must be in writing, and should be submitted directly to the agency from which the case arose.

Upon receipt of a timely motion for rehearing or review, and after the opposing party has been given an opportunity to respond, the agency will make a determination to grant or deny the motion. See A.R.S. § 41-1092.09(D). In some instances (such as is the case with the Registrar of Contractors), the agency will request that the Administrative Law Judge who heard the case submit a recommendation to grant or deny the motion, or to modify the decision.

If the agency grants a motion for rehearing or review, the agency may itself modify the decision or it may return the matter to OAH for further proceedings. If the agency denies a party’s motion for rehearing or review, or if the party remains dissatisfied with the agency’s decision at the conclusion of the rehearing/review process, the party may appeal the agency’s decision to the Arizona Superior Court. See A.R.S. § 41-1092.08(H). Generally speaking, a party is not required to file a motion for rehearing or review as a prerequisite to the filing of an appeal in Superior Court; nonetheless, a party considering an appeal of a final administrative decision should consult the statutes and rules specific to the agency from which the case arose to determine if the filing of a motion for rehearing or review is necessary. In most instances, a party may appeal a final administrative decision immediately after that decision is issued.

An appeal of a final administrative decision, more specifically referred to as a complaint for judicial review of an administrative decision, must be filed with the Arizona Superior Court not later than thirty-five days after the final administrative decision is served on the appealing party (forty days if the decision is served by mail). See A.R.S. § 12-904. Appeals of final administrative decisions are assigned to the Appeals Department of the Maricopa County Superior Court, which hears and decides all administrative appeals as well as appeals from the limited jurisdiction courts within Maricopa County. Maricopa County Superior Court Judge Michael D. Jones is the judge currently assigned to the Appeals Department, and presides over all administrative appeals.

Not later than ten days after a complaint for judicial review of an administrative decision is filed with the Superior Court, the party who filed the complaint must file a notice of the action with OAH. See A.R.S. § 12-904(B); see also Arizona Administrative Code (“A.A.C.”) R2-19-122 (requiring that copy of complaint be filed with OAH). Failure to comply with this requirement may result in the dismissal of the appeal.

After the notice of the appeal is filed, OAH prepares the administrative record for transmission to Superior Court. The administrative record consists of (1) the original agency action from which review is sought, (2) any motions, memoranda or other documents submitted by the parties to the appeal, (3) any exhibits admitted as evidence at the administrative hearing, and (4) the decision by the administrative law judge and any revisions or modifications to the decision. See A.R.S. § 12-904(B)(1)-(4)

. The administrative record does not automatically include a copy of the transcript of the administrative hearing. Although all administrative hearings are recorded (generally in a digital format), it is the responsibility of the appealing party, at that party’s expense, to obtain a copy of the hearing record and to prepare a transcript for inclusion in the administrative record. See A.R.S. § 12-904(B)(5); see also A.A.C. R2-19-122(B). [For more information on downloading digital audio files from the OAH website, see How to Download a Digital Audio File, The OAH Newsletter, Vol. 29 (October 2003))] If the appealing party fails to prepare a transcript, any other party to the appeal may do so by filing a notice with OAH within ten days after receiving notice of the complaint and by providing for preparation of the transcript at that party’s own expense. See A.R.S. § 12-904(B)(5).

Under A.R.S. § 12-910(E), the Superior Court Appeals Department may affirm, reverse, modify or vacate and remand the agency decision. A.R.S. § 12-910(E) states that the Court shall affirm the agency action unless the Court concludes “that the action is not supported by substantial evidence, is contrary to law, is arbitrary and capricious or is an abuse of discretion.” The Court may hold an evidentiary hearing in order to make the above determination. See A.R.S. § 12-910(A). However, the decision to do so is in the discretion of the Court, and is not a matter of right. Often, parties will not be permitted to offer additional evidence, and will instead be limited to oral argument on the underlying record. Final decisions, orders, judgments or decrees of the Appeals Department may be appealed to the Arizona Supreme Court. A.R.S. § 12-913.

As can be seen from the foregoing, the rehearing and appeal process is comprised of a number of steps and is governed by relatively short deadlines. Parties who are considering filing a motion for rehearing or a complaint for judicial review of an administrative decision should fully acquaint themselves with the applicable statutes and rules to ensure that their filings are both timely and in compliance with the requirements of the law.