2012 COA 150
Colo. Ct. App.2012Background
- Chittenden, a licensed clinical social worker, was investigated by the Board for alleged unlawful, unprofessional, and unethical conduct tied to court-ordered therapy of a minor.
- The Board opened investigation 2011-001224 and reviewed the complaint and response.
- Chittenden petitioned for a declaratory order contending the Board lacked jurisdiction over a fee dispute and seeking immunity from discipline for certain statements.
- The Board issued an Order refusing to rule on the petition, stating ruling would not terminate the controversy and that other remedies existed.
- Chittenden appealed, and the Board moved to dismiss parts of the appeal; the court sought briefing on whether a “not to decide” order is an appealable disposition.
- The court ultimately held that, absent §24-4-106(8), an order disposing of a petition for a declaratory order is reviewable only if it is final agency action.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether final agency action is required for review of a declaratory-order disposition | Chittenden argues no final action is needed for judicial review under §24-4-105(11) | Board argues final agency action under §24-4-106(2) is required | Yes; final agency action required for review unless §24-4-106(8) applies |
| Whether the Order disposing of the petition was final agency action | Order constitutes final action on the petition | Order is not final; proceeding ongoing | No; Order did not constitute final agency action |
| Whether the appeal should be dismissed for lack of final agency action | N/A | N/A | Appeal dismissed for lack of final agency action |
| Whether the §24-4-105(11) construction aligns with APA structure and policy | Interlocutory judicial review should be allowed | Interpretation would conflict with finality rules; not favored | Disagree with interlocutory review; finality required |
Key Cases Cited
- Dizon v. Riley, 515 P.2d 1139 (Colo.App.1973) (final agency action not required in all contexts (Colo. App.))
- Bell v. New Jersey, 461 U.S. 773 (1983) (final order required for judicial review absent explicit exception)
- Lopez-Samaya v. Colorado State Board of Medical Examiners, 887 P.2d 8 (Colo.1994) (Board order final when properly labeled and issued as final)
- Dixon, Colorado State Board of Optometric Examiners v., 165 Colo. 488, 440 P.2d 287 (1968) (relevant precedent on finality and declaratory-judgment context)
- Saxe v. Board of Trustees of Metropolitan State College, 179 P.3d 67 (Colo.App.2007) (declaratory-judgment action context, not directly finality of agency action)
- Keystone v. Flynn, 769 P.2d 484 (Colo.1989) (illustrates finality/intent to issue a final order)