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
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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 
5

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