Double LL Contractors, Inc. v. State ex rel. Oklahoma Dept. of Transp., 81149

• Decision Date: 27 February 1996
• Docket Number: No. 81149,81149
• Citation: 1996 OK 30,918 P.2d 34
• Parties: DOUBLE "LL" CONTRACTORS, INC., Appellee. v. STATE of Oklahoma, ex rel. OKLAHOMA DEPARTMENT OF TRANSPORTATION, Appellant.
• Court: Oklahoma Supreme Court

Page 34

918 P.2d 34

1996 OK 30

DOUBLE "LL" CONTRACTORS, INC., Appellee. v. STATE of Oklahoma, ex rel. OKLAHOMA DEPARTMENT OF

TRANSPORTATION, Appellant.

No. 81149.

Supreme Court of Oklahoma.

Feb. 27, 1996.

Rehearing Denied June 12, 1996.

Juliet N. Brennan, D.D. Hayes, Bonds, Matthews, Bonds & Hayes, Muskogee, for Appellee.

Louis D. Persons, II, State of Oklahoma ex rel. Department of Transportation, Oklahoma City, Cydney Campbell, Dennis Box, Williams, Box, Forshee & Bullard, Oklahoma City, for Appellant.

ALMA WILSON, Chief Justice:

Double "LL" Contractors, Inc. (Double "LL") is an Oklahoma corporation engaged principally in the business of bridge construction. For most of its existence, Double "LL" has been certified as a Disadvantaged Business Enterprise (DBE) as part of a federal program designed to assist business entities owned and operated by members of disadvantaged groups, primarily ethnic minorities and women, that bid for contracts in highway construction projects. The program is administered jointly by the Oklahoma Department of Transportation (ODOT) and the United States Department of Transportation (USDOT). The criteria and procedures of the program are established by federal statutes and by rules and regulations promulgated by USDOT. Certification of business entities as DBEs is the responsibility of ODOT. Once certified, a DBE is open to periodic review by ODOT in order to determine whether certification should be continued. In the event that certification is revoked, the aggrieved party may appeal to USDOT which can either affirm or reverse ODOT's decision.

In 1991, the Operations Review & Evaluations Division of ODOT conducted an audit of Appellee as a part of a DBE qualifications review and concluded that Double "LL's" certification should be revoked. ODOT notified Double "LL" that it was to be decertified and that it could request a hearing before a DBE Board as provided for by federal law. Following Double "LL's" request, three days of oral evidentiary hearings were held in October of 1991 at which Appellee was represented by counsel. On January 14, 1992, the Board confirmed the decertification.

After the Board's decision, Double "LL" sought and received an injunction from the District Court of Muskogee County temporarily restraining ODOT from implementing the decertification. Double "LL" also sought the court's review of ODOT's order. ODOT moved for Summary Judgment arguing that the court lacked jurisdiction. The court found that it had jurisdiction, reviewed and reversed ODOT's order, and instructed the agency to reinstate Double "LL's" DBE certification.

The issue before this Court is whether the district court had jurisdiction to review ODOT's order. We hold that it did not.

Section 318 of the Oklahoma Administrative Procedures Act (OAPA) creates a cause of action for judicial review of administrative actions taken by state agencies. ¹ Judicial review is available to parties who have been aggrieved by the final order of an agency in an individual proceeding. 75 O.S.1991, § 318. However, if the process out of which the final order is made is not an individual proceeding or if the order is not final, then a cause of action does not lie and judicial review is improper.

In Stewart v. Rood, 796 P.2d 321, 326 (Okla.1990) ², we held that the OAPA itself does not serve as an independent grant of jurisdiction for judicial review of the issuance of licenses by state agencies. However, we also held that if an agency is required by a statute other than the OAPA or by constitutional mandate to provide notice and opportunity for trial-type hearings when issuing licenses, then the agency's action comes within the scope of the OAPA's provisions concerning individual proceedings and is, thus, subject to judicial review under section 318. Stewart, 796 P.2d at 327-328. We reasoned that trial-type hearings were equivalent to the process of individual proceedings set forth in Article II of the OAPA. ³ Stewart, 796 P.2d at 327.

The OAPA defines "license" as follows: " 'License' includes the whole or part of any agency permit, certificate, approval, registration, charter, or similar form of permission required by law." 75 O.S.1991, § 250.3(3). We have no difficulty ruling that DBE certification operates as the issuance of a license as defined by the OAPA.

No state statute requires opportunity for trial-type hearings in the issuance of a DBE certification by ODOT. ⁴ However, the district court, citing Stewart, found a constitutional mandate that it reasoned brought the instant case within the scope of the OAPA, thus making itself competent to review ODOT's order. Double "LL" adopts the court's reasoning on appeal.

Double "LL" appears to make the following argument. Double "LL" possesses a constitutionally protected property interest in its DBE certification. It cannot be deprived of that interest without due process. The process due is a trial-type hearing. Therefore, ODOT is under a constitutional mandate to give notice and opportunity for a trial-type hearing if it is to revoke Double "LL's" certification. As a result, under Stewart, such a mandate brings ODOT's action within the scope of OAPA's provisions concerning individual proceedings and, thus, renders it subject to judicial review.

We need not reach the issue as to whether DBE certification is a property interest protected by due process nor whether the process due is a trial-type hearing because we conclude that the court lacked jurisdiction even if ODOT's action was taken as part of an individual proceeding.

We conclude that the district court was without jurisdiction for two reasons: First, the order of ODOT was not a final order as required for judicial review by section 318 of the OAPA; and, second, Double "LL's" resort to the courts violated the common law rule of exhaustion of administrative remedies. While the notions of finality and exhaustion are closely linked, it is helpful to maintain an analytical distinction when discussing them. ⁵ The distinction is presently appropriate because the notion of finality relevant to the instant case is tied to statutory language while the notion of exhaustion exists in the common law.

It is evident that ODOT's decertification of Double "LL" constituted an order as defined by the OAPA. ⁶ However, the question arises as to whether the order was final. If the order was not final then judicial review was not appropriate under section 318. Absent specific statutory provisions to the contrary, an order is final under section 318 when the administrative process ends and legal obligations resulting from that process are imposed. Conoco v. State Dept. of Health, 651 P.2d 125, 127 (Okla.1982). ⁷

In order to receive federal highway funds, ODOT is required by the Surface Transportation and Uniform Relocation Assistance Act of 1987 (STURAA) ⁸ to implement a DBE set-asides program in the awarding of contracts. All parameters of the DBE program are established by STURAA and by rules and regulations of the United States Department of Transportation (USDOT) as codified at 49 C.F.R. Part 23.

The State of Oklahoma operates its own separate DBE program. In 1987, the Oklahoma Legislature enacted the Oklahoma Minority Business Enterprise Assistance Act (OMBEA) which establishes preferences for Minority Business Enterprises (MBEs) ⁹ in the procurement of state contracts. 74 O.S.1991, § 85.45. The act sets the criteria for determining whether a business entity is an MBE and empowers the State Purchasing Director to accord certification. 74 O.S.1991, § 85.45e. Any person adversely affected by the denial of certification may appeal according to procedures set forth in the OAPA. 74 O.S.1991, § 85.45e(D). However, the Legislature specifically exempted ODOT from the provisions of the OMBEA. 74 O.S.1991, § 85.45c(C). Exemption of ODOT from OMBEA evidences intent on the part of the Oklahoma Legislature to defer to the federal DBE program created by STURAA.

Consequently, the DBE program administered by ODOT is defined and regulated wholly by federal law. Federal statutes and USDOT rules and regulations not only establish the criteria for determining DBE certification but also provide for administrative remedy when certification is denied or revoked. Under 49 C.F.R. 23.55(a), a party whose DBE certification is revoked by a state agency has the right to appeal to USDOT. The Secretary of Transportation has the discretion to sustain decertification during the pendency of the appeal but only after providing the aggrieved party with the opportunity to show cause by written statement as to why eligibility should continue. 49 C.F.R. 23.55(c). As a result, the administrative process does not end and legal obligations are not definitively imposed until USDOT considers the matter on appeal and either reverses or affirms decertification.

In the case at bar, ODOT denied Double "LL" continued DBE certification. Double "LL" then sought relief in state court before pursuing the available administrative remedy, namely, appeal to USDOT. Because the administrative process was not at an end, the order of ODOT to deny continued certification to Double "LL" was not a final order and, therefore, not subject to judicial review under the OAPA.

The district court also lacked jurisdiction under the common law rule of exhaustion of administrative remedies. As a general rule, judicial review of an agency order is not permitted until all administrative remedies have been exhausted. Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 463, 82 L.Ed. 638 (1938); Lone Star Helicopters, Inc. v. State, 800 P.2d 235, 237 (Okla.1990); Martin v. Harrah Independent School District, 543 P.2d 1370, 1372 (Okla.1975). However, premature judicial review is permissible when administrative remedies are inadequate. Mattoon v. City of Norman, 617 P.2d 1347, 1350 (Okla.1980). Remedies are inadequate when unavailable, ineffective or futile...