                                           No. 05-055

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2005 MT 314N


DOUGLAS G. AMSDEN,

              Petitioner and Appellant,

         v.

STATE OF MONTANA DEPARTMENT OF
PUBLIC HEALTH AND HUMAN SERVICES,

              Respondent and Respondent.



APPEAL FROM:         District Court of the Thirteenth Judicial District,
                     In and for the County of Yellowstone, Cause No. DR 04-337,
                     The Honorable Russell Fagg, Judge presiding.


COUNSEL OF RECORD:

              For Appellant:

                     Douglas G. Amsden (pro se), Billings, Montana

              For Respondent:

                     Cary B. Lund, Special Assistant Attorney General, Department of Public
                     Health and Human Services, Helena, Montana


                                                         Submitted on Briefs: November 2, 2005

                                                                  Decided: December 12, 2005
Filed:


                     __________________________________________
                                       Clerk
Justice John Warner delivered the Opinion of the Court.

¶1    Pursuant to § I, para. 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall

not be cited as precedent.     Its case title, Supreme Court cause number and

disposition shall be included in this Court’s quarterly list of noncitable cases

published in the Pacific Reporter and Montana Reporters.

¶2    Douglas G. Amsden (Amsden) appeals from a judgment of the Thirteenth

Judicial District Court, Yellowstone County.      The District Court affirmed an

administrative order that dismissed both Amsden’s claims of discrimination and

his request for a fair hearing to pursue assistance under an Individualized Plan for

Employment (IPE). We affirm.

¶3    Amsden is handicapped. The Montana Department of Public Health and

Human Services (DPHHS) provided Vocational Rehabilitation to Amsden in

accordance with an IPE.       The IPE specifically provided for the startup of

Amsden’s proposed business, which would engrave plastic signs.

¶4    Under the terms of the IPE, Amsden was to be self-employed by June 30,

2001. DPHHS extended this deadline to September 30, 2001. However, by

August 2001, no sales had been made by Amsden’s business, nor had he been able

to master the use of the engraving machine. DPHHS refused to provide additional

funding for Amsden’s IPE after August 20, 2001.

¶5     Amsden appealed DPHHS’ decision refusing to fund his IPE, and requested

an administrative review. A fair hearing was held and the Hearing Officer ruled in


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favor of DPHHS, concluding DPHHS’ termination of the IPE was appropriate.

The Administrator of DPHHS’ Quality Assurance Division affirmed the Hearing

Officer’s decision. Amsden then filed a Petition for Judicial Review. In its Order

dated November 13, 2002, the District Court affirmed DPHHS’ decision.

¶6     Amsden then filed a request for another administrative fair hearing to

dispute DPHHS’ denial of assistance under his IPE, and also added a claim that he

was discriminated against under § 49-3-203, MCA. In response, DPHHS filed a

motion to dismiss. The Hearing Officer granted the motion to dismiss both claims

on two grounds: (1) the DPHHS Office of Fair Hearings was an improper forum

for the pursuit of a discrimination complaint arising out of the Montana Human

Rights Act; and, (2) the renewed claim for IPE funding did not present a contested

case since Amsden’s claim was barred by res judicata.

¶7     Following the dismissal by the Hearing Officer, Amsden appealed to the

District Court.   The District Court affirmed the Hearing Officer’s dismissal.

Amsden now appeals to this Court.

¶8     The Court has determined to decide this case pursuant to § 1, para. 3(d) of

our 1996 Internal Operating Rules, as amended in 2003, which provides for

memorandum opinions. It is manifest on the face of the briefs and the record that

the appeal is without merit.

¶9     Amsden argues the District Court erred in affirming the Hearing Officer’s

dismissal of his discrimination claims. However, a hearing may be dismissed

when “the department does not have jurisdiction over the subject matter of the


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appeal procedure.”       Rule 37.5.313(e), ARM.          Amsden’s allegations of

discrimination fall under the Human Rights Act, specifically § 49-3-203, MCA,

pertaining to “[a]ll educational, counseling, and vocational guidance programs and

all apprenticeship and on-the-job training programs of state and local

governmental agencies[.]”     The Montana Human Rights Act requires that a

complaint be filed with the Department of Labor and Industry for such

discriminatory practices. Sections 49-2-501(1), 49-2-509(7), MCA; Harrison v.

Chance (1990), 244 Mont. 215, 220, 797 P.2d 200, 203. Thus, jurisdiction over

such discrimination cases rests exclusively with the Montana Human Rights

Commission,     and    the   Hearing    Officer   properly      dismissed   Amsden’s

discrimination claim for lack of subject matter jurisdiction.

¶10    The next issue on appeal is whether Amsden’s request for a fair hearing

was properly barred by res judicata. A party is barred from re-litigating a matter

that the party has already had the opportunity to litigate. Glickman v. Whitefish

Credit Union Assoc. (1998), 287 Mont. 161, 166, 951 P.2d 1388, 1391. The

doctrine of res judicata applies when four criteria are met: the parties are the

same; the subject matter of the claim is the same; the issues are the same and relate

to the same subject matter; and the capacities of the persons are the same in

reference to the subject matter and the issues. Glickman, 287 Mont. at 166, 951

P.2d at 1391.

¶11    The issues raised by Amsden, regarding economic and technology

assistance under the IPE, were previously litigated, resulting in a Fair Hearing


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Decision in favor of DPHHS, issued January 25, 2002.           Therefore, further

litigation on this matter is barred by res judicata. As such, Amsden has failed to

show an “adverse action,” as defined under Rule 37.30.1401(2), ARM.           His

request for a fair hearing was properly dismissed under Rule 37.5.313(f), ARM.

¶12   Affirmed.

                                               /S/ JOHN WARNER




We Concur:

/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS




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