Opinion
Case No. 20060513-CA.
Filed October 5, 2006. (Not For Official Publication).
Original Proceeding in this Court.
Jesus R. Lopez, Magna, Petitioner Pro Se
Geoffrey T. Landward, Salt Lake City, for Respondent. Workforce Appeals Board, Department of Workforce. Services.
Before Judges Billings, McHugh, and Orme.
MEMORANDUM DECISION
Jesus R. Lopez petitions for judicial review of the final order of the Workforce Appeals Board, Department of Workforce Services (the Board). This case is before the court on its sua sponte motion for summary disposition based upon lack of jurisdiction, and the Board's motion for summary disposition based upon lack of a substantial question for review.
A petition for review of an agency's final order must be filed "within 30 days after the date of the written decision or order." Utah R. App. P. 14(a). The Board issued its final order denying Lopez's motion for reconsideration on May 22, 2006. Lopez filed his petition for review on June 5, 2006. Accordingly, Lopez timely filed his petition for review, and this court has jurisdiction to review Lopez's petition.
Lopez's docketing statement listed the date of the final agency order from which he sought review as January 3, 2006. However, this was the date the Administrative Law Judge issued its decision, not the date of the final administrative order from which Lopez truly appeals.
In its motion for summary disposition, the Board argues that the issues Lopez sets forth for review in his docketing statement "are so insubstantial as not to merit further proceedings and consideration" by this court. Utah R. App. P. 10(a). We agree.
Lopez first asserts that the Board erred by not allowing him to be represented by a union representative during the course of the administrative proceedings. However, Lopez did not make this request for representation until approximately one month after his original hearing before the Administrative Law Judge (ALJ). After Lopez filed his appeal of the ALJ's decision, the Board was forced to remand the case to the ALJ because the tape of the original proceedings could not be transcribed. Accordingly, the matter was remanded for the limited purpose of "reconstructing the original hearing." The remand order expressly stated that "[b]oth parties are advised that no new witnesses or evidence will be accepted by the administrative law judge at the rescheduled hearing." At the hearing, the ALJ informed Lopez's union representative that he could not participate because he did not attend the original hearing and they were there merely to reconstruct the original record. If the ALJ allowed Lopez's union representative to participate, it risked substantially altering the substance of the record that it was merely attempting to recreate. Neither Lopez nor his union representative objected.
After the record was reconstructed in the second hearing, the Board, without scheduling any additional hearing, issued its decision affirming the ALJ's order denying Lopez benefits. Based upon this procedural posture, the Board did not deprive Lopez of the right to have representation during the course of the proceedings. Further, even if we were to conclude that the Board had unreasonably restricted Lopez's right to non-legal union representation in some manner, Lopez has not demonstrated that he suffered any prejudice as a result of that restriction. See Utah Code Ann. § 63-46b-16(4) (2004) (stating that "[t]he appellate court shall grant relief only if, on the basis of the agency's record, it determines that a person seeking judicial review has been substantially prejudiced").
Lopez next asserts that the Board erred in refusing to review several documents and in refusing to issue several subpoenas for other documents. This request was not made until after the hearing before the ALJ. The Department of Workforce Services' administrative rules state that "[a]bsent a showing of unusual or extraordinary circumstances, the Board will not consider new evidence on appeal if the evidence was reasonably available and accessible at the time of the hearing before the ALJ." Utah Admin. Code R994-508-305(2) (2005). The Board determined that Lopez failed to meet this standard and, accordingly, refused to review the new documents or subpoena Qwest for additional documents. The record demonstrates that the Board did not abuse its discretion or in any way depart from normal agency rules in making this decision. Accordingly, the Board appropriately refused to review the new evidence, which Lopez failed to submit to the ALJ. See Allen v. Department of Workforce Servs., 2005 UT App 186, ¶ 6, 112 P.3d 1238 (stating that an agency's findings of fact will only be overturned if they are not supported by substantial evidence, and that an agency's decisions applying facts to the law "`are [only] subject to judicial review to assure that they fall within the limits of reasonableness and rationality'" (citations omitted)).
Finally, Lopez argues that he was "incompetent to stand trial" due to physical and mental problems. However, this issue was never properly raised before either the ALJ or the Board. Accordingly, this issue is deemed waived and Lopez cannot raise the issue for the first time on a petition for judicial review.See Ashcroft v. Industrial Comm'n, 855 P.2d 267, 268-69 (Utah Ct. App. 1993).
The final decision of the Board is affirmed.
Judith M. Billings, Judge, Carolyn B. McHugh, Judge, and Gregory K. Orme, Judge.