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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Squires v. Alaska Board of Architects, Engineers & Land Surveyors (04/17/2009) sp-6364
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| JOHN D. SQUIRES, | ) |
| ) Supreme Court No. S- 12722 | |
| Appellant, | ) |
| ) Superior Court No. 1JU-06- 849 CI | |
| v. | ) |
| ) O P I N I O N | |
| ) | |
| ALASKA BOARD OF ARCHITECTS, | ) No. 6364 - April 17, 2009 |
| ENGINEERS & LAND SURVEYORS, | ) |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, First Judicial District, Juneau,
Patricia A. Collins, Judge.
Appearances: Douglas K. Mertz, William F.
Cummings, Juneau, for Appellant. Jenna Rohr
Conley, Assistant Attorney General, Talis J.
Colberg, Attorney General, Juneau, for
Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Carpeneti, and Winfree, Justices.
WINFREE, Justice.
I. INTRODUCTION
John D. Squires disputes an agency denial of his
request for a waiver of one of two examinations typically
required to become a registered engineer. The superior court
affirmed the agency decision. Squires appeals, claiming the
agency erroneously concluded he had failed to present enough
verifiable evidence of the twenty years of engineering experience
required for an exam waiver. He asserts that the agency
erroneously imposed experience verification requirements that
were not set out in any statute or regulation. He also asserts
that the agency denied him due process by imposing experience
verification requirements that could not be met and by
disregarding evidence that he was sufficiently qualified to be a
registered engineer. He finally argues that the agency denied
him equal protection of the law by not treating him like certain
other applicants with the same background, training, and
experience.
We conclude that the agency: (1) did not impose
improper experience verification requirements by denying his exam
waiver request; (2) reasonably found Squires had failed to
demonstrate he was entitled to an exam waiver; and (3) did not
violate Squiress due process or equal protection rights. We
therefore affirm.
II. FACTS AND PROCEEDINGS
A. Statutory and Regulatory Background
Alaska Statute 08.48 governs engineer licensing in
Alaska. The Board of Registration for Architects, Engineers, and
Land Surveyors (Board) administers the registration process and
is statutorily empowered to adopt regulations.1
Alaska Statute 08.48.171 provides that an applicant for
engineer registration must be of good character and reputation
and shall submit evidence satisfactory to the board of the
applicants education, training and experience.2 There are two
ways to become a registered engineer in Alaska: by examination
and by comity.3
Examinations are administered pursuant to the Boards
procedures and standards regulations; the Boards procedures and
standards must meet the requirements of the recognized national
examining council for engineers.4 The Board typically requires
applicants to pass two exams. One is the Fundamentals of
Engineering exam (often called the FE, but referred to here as
the fundamentals exam), testing materials covered in
undergraduate engineering programs.5 The other is the Principles
and Practices of Engineering exam (often called the PE, but
referred to here as the professional exam), testing practical
applications of engineering theories.6 The Board may waive the
fundamentals exam for an applicant who submits satisfactory
evidence . . . to verify 20 years of professional experience.7
By comity a registered engineer from another state or
foreign country may apply for and obtain Alaska registration if
in the opinion of the board the prior registration meets all of
Alaskas requirements.8 However, a comity applicant need not have
taken a fundamentals exam in the earlier registration process.9
The application instructions for registration as an
engineer are of particular importance to this appeal. The
instructions provide that relevant work experience must be
verified by employers or supervisors using the Boards work-
experience verification forms. The instructions further provide
that relevant work experience must be verified by a U.S.-
registered engineer. These application instructions had been in
effect for at least six years before Squires applied for
registration as a professional engineer.
B. Facts and Proceedings
A. Squires graduated from college in 1969 with a degree
unrelated to engineering, but has worked in construction
engineering since the early 1970s. He received a masters degree
in engineering from the University of Washington in 1988. He has
never been a registered engineer in any jurisdiction.
Squires first applied for registration as an engineer
in Alaska in December 2003. The Board approved Squires to sit
for both the fundamentals exam and the professional exam.
Squires then applied for a fundamentals exam waiver, submitting
his resume and a summary of his engineering experience. He
advised that third-party verifications for his professional
experience would be arriving separately, but that many of the
people who supervised my engineering work 20 years ago are either
deceased or cannot be located [and this] may cause some
difficulties in my meeting the boards waiver requirements.
Squires took and passed the professional exam in April 2004.
In August 2004 the Board concluded that Squires had not
adequately verified the 240 months of professional experience
required for a waiver of the fundamentals exam under 12 AAC
36.090. The Board advised Squires that he had to verify at least
128 more months of professional experience to be eligible for an
exam waiver and invited him to submit additional information.
In February 2005 Squires resubmitted his exam waiver
request with an affidavit and a summary of his experience. The
Board again concluded that Squires had not verified 240 months of
professional experience. The Board advised Squires that only 100
months of professional experience had been verified by third-
party registered engineers. The Board reiterated that Squires
was still approved to sit for the fundamentals exam.
Squires appealed the Boards decision and requested a
hearing. An administrative hearing was held in September 2005.
In January 2006 the hearing officer issued a proposed Decision
and Order concluding, based on the Boards February 2005
calculations, that Squires had failed to adequately document
twenty years of relevant professional experience and was not
entitled to an exam waiver.
The Board did not act on the proposed decision at its
February 2006 meeting. Squiress attorney asked for an
opportunity to present to [the Board] a short, very summary brief
that says what we believe is wrong with [the hearing officers
proposed] decision. The Board granted the request, stating that
it would not take action until the next Board meeting. Squiress
attorney submitted additional materials to the Board and
indicated he had asked Squires to attempt to find more people who
could verify his work experience. The Boards executive director
responded that Squires should submit any additional information
by May 12, 2006.
In May 2006 Squires presented his case to the Board
with additional evidence, including a spreadsheet titled
Engineering Experience and letters of reference associated with
the listed positions. The Board then met with the hearing
officer and adopted the hearing officers January 2006 proposed
Decision and Order denying Squiress exam waiver request.10
Squires appealed to the superior court, which affirmed
the Boards decision. Squires appeals.
III. STANDARD OF REVIEW
When the superior court acts as an intermediate court
of appeal in an administrative matter, we independently review
and directly scrutinize the merits of the [agency] decision.11
We apply our independent judgment to questions of law
that do not involve agency expertise, including constitutional
questions12 and whether an agency action is a regulation.13 The
reasonable basis test applies when we review questions of law
involving agency expertise; under this test, we defer to the
agencys statutory and regulatory interpretation unless it is
unreasonable.14
We review an administrative agencys factual findings to
ensure they are supported by substantial evidence.15 Substantial
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support the Boards conclusion.16 We
determine only whether such evidence exists and do not choose
between competing inferences or evaluate the strength of the
evidence.17
IV. DISCUSSION
A. The Boards Third-Party Verification Requirement Is Valid and
Not a Regulation Required To Be Promulgated in Accordance with
the Administrative Procedure Act.
A. An applicant for registration as a licensed engineer must
demonstrate evidence satisfactory to the board of the applicants
education, training, and
experience.18 Before being allowed to take the fundamentals and
professional exams, an applicant must demonstrate satisfactory
evidence of minimum levels of education, training, and
experience.19 An applicant may obtain a waiver of the
fundamentals exam if satisfactory evidence is presented to the
Board verifying twenty years of professional experience.20 The
phrases evidence satisfactory to the board and satisfactory
evidence are not defined by statute or regulation.
The application instructions explain that an applicants
work experience must be verified by employers or supervisors
using Alaskas work-experience verification forms, and that [t]he
board will not give credit for work experience without the third
party verification, even if you have listed the experience. The
instructions also state that [a]pplicants must have their work
experience, including responsible charge, verified by a U.S.-
registered engineer. The provision for verification of work
experience by a third-party registered engineer does not appear
in any regulation or statute, but was in effect for at least six
years before Squires submitted his application.
Squires observes that AS 08.48.181 requires the Board
to comply with the Administrative Procedure Act (APA) in adopting
standards and procedures related to professional examinations.21
He thus argues that the Board, in determining that satisfactory
evidence of his professional experience required independent
third-party verifications by registered engineers, must comply
with the APA process for adopting new regulations.22 Because the
Board did not, Squires asserts that the independent verification
requirement is invalid. He essentially argues that the
independent verification requirement is an additional regulation,
rather than the kind of routine statutory interpretation within
the agencys discretion.23
In determining whether an agency policy or rule is a
regulation that must be promulgated in compliance with the APA
requirements, we examine its character and use.24 [O]ne of the
statutory indicia of a regulation is that it implements,
interprets or makes specific the law enforced or administered by
the state agency.25 Alaska Statute 44.62.640(a)(3) provides that
whether a regulation, regardless of name, is covered [by the APA]
depends in part on whether it affects the public or is used by
the agency in dealing with the public.26 It also states that
regulation does not include a form prescribed by a state agency
or instructions relating to the use of the form.27
Squires relies primarily on two cases to support his
argument. In Jerrel v. State Department of Natural Resources,
the Jerrels contested a Department of Natural Resources (DNR)
rule requiring identifying marks on animals on state grazing
leases to be visible from at least twenty feet.28 The relevant
regulation empowered the director to require that the livestock
be tagged, dyed, or otherwise marked, but did not specify any
particular level of visibility.29 DNR first pronounced the twenty-
foot rule in a letter to the Jerrels and conditioned renewal of
their land leases on compliance.30 The Jerrels proposed placing
tags on the manes of their animals.31 DNR informed them that
plastic tags would be insufficiently permanent, but retreated
from its twenty-foot visibility requirement by proposing
permanent tattoos.32 When the Jerrels proposed ear tattoos, DNR
again reversed its position in response to complaints from the
neighboring landowners and insisted on brands that would meet the
twenty-foot visibility requirement.33 The Jerrels argued that DNR
did not interpret its existing regulations in creating the twenty-
foot rule, but instead established a new regulation without
complying with the APA.34
We held that DNRs twenty-foot visibility requirement
included core characteristics of a regulation and was invalid
because the APAs procedural standards had not been satisfied.35
First, DNR created the requirement to interpret, make specific
and implement the statutory requirement that a mark or brand
show[] distinctly. 36 Second, DNR used the requirement as a tool
in dealing with the public, rather than as an internal guideline.37
We concluded that DNR actually based its decision to terminate
the Jerrels leases upon the fact that the Jerrels did not comply
with its policy. 38
In State v. Tanana Valley Sportsmens Assn, the Alaska
Board of Game issued verbal instructions to its agents modifying
the criteria for re-issuing hunting permits so that preference
would go to persons who relied most heavily on wild game for
sustenance.39 We held that regulations governing subsistence
hunting were subject to the APA requirements and that nothing in
the APA authorized the board to impose requirements not contained
in written regulations by means of oral instructions to agents.40
We explained that [o]bviously, such verbal additions to
regulations involving requirements of substance are unauthorized
and unenforceable.41
Squires acknowledges our holding in Alyeska Pipeline
Service Co. v. Alaska Department of Environmental Conservation42
that common sense statutory interpretations do not require formal
rulemaking. There we concluded that [a]lthough the [APA] may
require rulemaking in cases in which an agencys interpretation of
a statute is expansive or unforeseeable, or in cases in which an
agency alters its previous interpretation of a statute, obvious,
commonsense interpretations of statutes do not require
rulemaking.43 We explained:
Although the definition of regulation is
broad, it does not encompass every routine,
predictable interpretation of a statute by an
agency. Nearly every agency action is based,
implicitly or explicitly, on an
interpretation of a statute or regulation
authorizing it to act. A requirement that
each such interpretation be preceded by
rulemaking would result in complete
ossification of the regulatory state.[44]
We thus held the agencys rule allowing it to recoup costs
incurred defending permit appeals was a common sense
interpretation of a statute authorizing the agency to bill for
the cost of reviewing . . . permits, not a separate regulation
requiring compliance with the APA.45
Relying on Jerrel and Tanana Valley Sportsmens Assn,
Squires asserts that the third-party verifications required by
the application instructions are not solely a matter of the
internal management of the agency because they prescribe the only
acceptable type of proof to show each month of an applicants
professional career. He concludes that the third-party
verification requirement is a substantive requirement without
which an applicant [cannot] qualify for a license. Squires also
argues that unlike the cost recovery rule in Alyeska Pipeline
Service Co., the third-party verification requirement here is not
foreseeable from the existing authority. He claims that the
requirement should have been articulated in regulations subject
to the APA notice and hearing requirements because the phrase
satisfactory evidence, found in 12 AAC 36.090, could be
interpreted to mean anything from live testimony at a hearing to
an affidavit from the applicant himself.
We conclude that the third-party verification
requirement is not a regulation and need not have been
promulgated in accordance with the APA. The verification
requirement is not unforeseeable AS 08.48.201(3) requires an
engineers application to contain five references, three of whom
must be . . . engineers . . . having personal knowledge of the
applicants . . . education, training, or experience. Nor does
the verification requirement reflect a sudden shift in the Boards
interpretation of the phrase satisfactory evidence, given that
the requirement existed for at least six years before Squiress
waiver application. Finally, because a registered engineer is
likely best qualified to assess the quality of a prospective
engineers work, the third-party verification requirement is a
common sense interpretation of the phrase satisfactory evidence.
We recognize that the third-party verification
requirement has some of the same indicia of a regulation as in
Jerrel. It does in a sense interpret, make specific and
implement the statutory requirement of satisfactory evidence, and
it is a tool for dealing with the public as well as establishing
internal guidelines for evaluating applicant qualifications.46
But in Jerrel, we were primarily concerned that DNR singled out
the Jerrels for enforcement of a new rule and that such ad hoc
decision-making could allow agency action to be motivated by
improper influences.47 Squires presented no evidence that the
Board has applied its long-standing third-party verification
requirements unevenly.48 The third-party verification requirement
applies to all applicants for engineer registration in Alaska,
not just to persons seeking an exam waiver. Squires was able to
meet the verification requirements to sit for both the
fundamentals exam and the professional exam. The record also
demonstrates that other individuals have used third-party
verifications to meet the twenty-year requirement for a waiver of
the fundamentals exam.49 And unlike in Tanana Valley Sportsmens
Assn, where substantive changes to hunting permit requirements
were verbally issued to Board of Game agents,50 the third-party
verification requirement is plainly stated in writing in the
application instructions.
The APA is meant to reduce the risk of arbitrary
application and to inform the public of regulations. Squires has
not demonstrated that the third-party verification requirement in
the application instructions is obscure or creates a meaningful
risk of arbitrary application. Accordingly we conclude that the
third-party verification requirement is not a regulation and
affirm the superior courts decision on this issue.
B. Substantial Evidence Supported the Boards Conclusion that
Squires Failed To Present Sufficient Evidence that He Had Twenty
Years of Engineering Experience.
Squires argues that the Board erred by concluding that
he failed to present adequate evidence to merit a fundamentals
exam waiver. Squires claims he submitted evidence showing 309
months of engineering experience, exceeding the twenty years (240
months) required by 12 AAC 36.090(a), and that 280 of the 309
months were supported by third-party affidavits. Squires
acknowledges that not all of his third-party verifications were
from registered engineers, contravening the application
instructions. He also acknowledges that he alone attested to
twenty-nine months of experience. But Squires argues that he
failed to present the requisite third-party verifications from
registered engineers because he was the only engineer on the
project or because the project engineers had died or could not be
found.
Whether an applicant is qualified to become a
registered engineer is a question involving agency expertise.51
We therefore defer to the Boards interpretation of evidence
satisfactory to the board or satisfactory evidence unless
unreasonable. The Board has adopted the position (represented in
the application instructions) that fundamentals exam waivers will
be granted to applicants only if they present twenty years of
experience verified by third-party registered engineers. We
conclude that this is a reasonable interpretation of the
satisfactory evidence requirement in light of the public safety
issues involved and the fact that other individuals have been
granted exam waivers based on verification of twenty years of
experience.
Substantial evidence supports the Boards factual
findings about the amount of time Squires was credited for his
engineering experience and its ultimate conclusion that Squires
failed to submit satisfactory evidence of twenty years of
relevant experience. Based on the verifications Squires
submitted in February 2005, the Board awarded Squires credit for
100 months of professional experience. Our review of Squiress
February 2005 summary supports the Boards conclusion that Squires
did not adequately verify the required 240 months of professional
experience.
The February 2005 summary rarely identifies the name of
the employer or company for whom Squires worked. For example it
states that between 1974 and 1980, Squires [d]esigned numerous
concrete mixes for special needs, but it does not say for whom he
designed the mixes or where they were used. Squires allocated
thirty months for that work. Squires also credited himself ten
months for expert witness services performed over a ten-year
period. But he does not identify any cases or specify the exact
nature of his testimony. Squires gave himself double credit for
the time he was enrolled in the masters engineering program at
the University of Washington and doing other work, but
regulations provide that [e]ducation and work experience may not
be accumulated concurrently and that applicants may claim [a]
maximum of 12 months credit . . . for a calendar year.52 Some of
Squiress third-party verifications are similarly inappropriate,
for example addressing his good character but not his work on
specific projects.
The additional evidence Squires submitted at the May 2006
Board meeting fails to support his assertion that he verified 240
months of professional experience. Squires submitted a revised
explanation of his engineering experience with annotations to new
verification evidence, but the new evidence did not add up to the
additional 140 months needed for an exam waiver. Several
documents were general recommendation letters not written by
registered engineers. Others attested to his experience with
some detail, but were not from registered engineers. Several
third-party verifications from registered engineers already had
been accounted for in the Boards February 2005 calculations. A
new letter from one registered engineer stated only that he had
worked with Squires for over ten years and gave a single example
of a project, but was otherwise uninformative.
In light of the Boards interpretation of satisfactory
evidence and the evidence actually presented, the Board
reasonably concluded that Squires submitted insufficient evidence
of 240 months of professional engineering work. Substantial
evidence supports the Boards conclusion. We therefore affirm the
superior courts decision on this issue.
C. The Board Did Not Violate Squiress Due Process Rights
by Denying Him an Exam Waiver.
Squires argues that the Board violated his due process
rights by denying him an exam waiver. Specifically he argues
that the Board violated his due process rights by: (1) requiring
third-party verifications to prove the professional experience
needed to obtain an exam waiver; (2) refusing to accept his sworn
statements in lieu of third-party verifications; and (3) failing
to account for evidence he submitted after the hearing officer
made findings. Although Squires asserts he is challenging a
denial of substantive due process, these challenges to the
procedures for obtaining an exam waiver are more accurately
described as procedural due process claims. Squires also
contends it was a violation of due process to require him to take
the fundamentals exam even though he had already passed the
professional exam. This challenge to the Boards licensing
requirements amounts to a substantive due process claim. Because
we hold the Board did not violate Squiress due process rights,
procedural or substantive, we affirm the superior courts decision
on this issue.
1. The Board did not violate Squiress due process rights by
requiring third-party verifications for work experience.
We evaluate procedural due process claims under the
balancing test established in Mathews v. Eldridge,53 considering
several factors:
First, the private interest that will be
affected by the official action; second, the
risk of an erroneous deprivation of such
interest through the procedures used, and the
probable value, if any, of additional or
substitute procedural safeguards; and
finally, the Governments interest, including
the function involved and the fiscal and
administrative burdens that the additional or
substitute procedural requirement would
entail.[54]
Squires characterizes the third-party verification requirement
for an exam waiver as a refusal to grant him the right to
practice engineering without verification of his professional
experience by registered engineers. He claims the Board, in
maintaining this impossible requirement, deprived him of a
fundamental right to practice his profession. This
characterization is inaccurate because Squires is not barred from
obtaining an engineering license if he cannot produce the
required third-party verifications; he still may take and pass
the fundamentals exam. At stake here is Squiress interest in
obtaining a waiver for that exam. The Boards refusal to grant a
waiver does not deprive Squires of his livelihood; it merely
requires him to expend time and effort studying basic engineering
concepts. Although not insignificant, his interest in obtaining
an exam waiver is by no means fundamental.
Squires asserts that he provided third-party
verifications for his experience except when there was no
registered engineer supervising the job, or when the registered
engineer had died or was impossible to locate. He argues that
[i]t is a clear denial of substantive due process to deny his
application and his license on the basis of a requirement that
cannot, literally, be complied with. He suggests the Board
should, in its exam waiver procedures, maintain less stringent
proof requirements for documenting professional experience, such
as crediting his sworn testimony. Although past applicants
successful attempts to obtain exam waivers prove that the
requirement is not impossible to meet, it is true that
maintaining the rigorous requirement of third-party verifications
may deny exam waivers to applicants who have the professional
experience to qualify for them. However we believe the risk of
relaxing proof requirements for exam waivers outweighs the risk
of erroneously denying a waiver. The Boards mission is to ensure
the public health, safety, and welfare by regulating the practice
of engineering. The Board therefore has a significant interest
in ensuring that registered engineers are qualified. The third-
party verification requirement is a reasonable way for the Board
to determine an applicants experience. Given the nature of the
potential harm a collapsed bridge and resulting injuries to
persons and property, for example the Boards interests in
protecting the public by verifying professional qualifications
outweigh Squiress interest in not taking the fundamentals exam.
Squires quotes State v. Valley Hospital Assn55 for the
proposition that adherence to a valid regulation can be illegal
when there are unusual circumstances that make such adherence
highly unreasonable.56 He claims that his circumstances are
unusual enough to warrant a waiver of the third-party
verification requirement given the nature of his specialty, the
duration of his career, and the fact that many of his prospective
references are in Washington State. However we did not decide
Valley Hospital Assn on constitutional grounds,57 so the case
provides no support for Squiress due process claims. We held
adherence to the otherwise valid regulation in that case was
erroneous because it produced a result that both parties
acknowledged was inaccurate, and because the agencys reasons for
adhering to the regulation in the circumstances were so
insubstantial as to render [it] an abuse of discretion.58 Valid
and substantial reasons support the third-party verification
requirements here, and the Board disputes rather than concedes
that Squiress professional experience entitles him to an exam
waiver. Squiress reliance on Valley Hospital Assn is
unpersuasive.
We conclude that the Board did not violate Squiress due
process rights by requiring him to provide verification of his
professional experience by registered engineers to obtain a
fundamentals exam waiver.
2. The Board did not violate Squiress due process rights by
refusing to accept his sworn statements in lieu of third-party
affidavits from registered engineers.
Squires next argues that the Board improperly refused
to recognize his first-person testimony as sufficient for a
waiver, in the absence of any contradictory evidence in the
record. He claims that by ignoring his testimony the Board
violated his right to due process. This argument fails for the
same reason as his due process challenge to third-party
verifications: Squires has not demonstrated that his interest in
obtaining an exam waiver outweighs the governments interest in
ensuring the competency of registered engineers. The Board is
not obliged to present evidence to rebut Squiress self-serving
claims about his ability and experience. Rather Squires bears
the burden of verifying his own experience to the Boards
satisfaction.59 We agree with the Board that first-person
testimony about ones professional work experience, without
independent confirmation, would cast doubt on the professional
qualifications of people whose work can greatly impact the safety
of the public and private industry. The Boards refusal to credit
this testimony and waive the exam requirement for Squires did not
violate due process.
3. The Board did not violate Squiress procedural due process
rights by failing to account for evidence he submitted after the
hearing officer made his findings.
Squires argues that the Board denied him due process by
not considering evidence he submitted after his September 2005
hearing, but before the Board made its final decision in May
2006. He asserts that the Board erroneously adopted the hearing
officers January 2006 proposed decision, which was drafted before
Squires submitted additional evidence in May 2006.
We have held that an agency must consider highly
relevant current evidence.60 Once an agency makes an adjudicative
decision, it must articulate its reasons even if there is no
statutory duty to make findings.61
The Board did not violate Squiress due process rights
by adopting the hearing officers proposed decision without
amending it to address the evidence Squires submitted at the May
2006 meeting. Squires had ample opportunity to be heard not
only at his hearing in September 2005 but also at two separate
Board meetings in February and May 2006. He also had three
chances to submit third-party verifications to the Board: in
2004 when he first applied, in 2005 when he re-applied, and in
2006 when he approached the Board after the hearing officer
denied his waiver application. Because the evidence Squires
submitted at the May 2006 Board meeting was either redundant or
too general to adequately support his waiver request, it was not
highly relevant current evidence that may have had a bearing on
the outcome of his case. The Board already had accounted for the
time covered by many of the letters presented, and the remaining
letters failed to verify the 100 months of work experience
Squires would need to obtain a waiver.
In light of Squiress numerous opportunities to submit
information and the absence of highly relevant additional
information, we conclude that the Board did not violate Squiress
due process rights by adopting the hearing officers decision
without additional comment.
4. The Board did not violate Squiress substantive due process
rights by requiring him to take the fundamentals exam even though
he had already passed the professional exam.
Squires maintains that the Board denied him due process
by requiring him to pass an elementary exam even though he had
already passed an advanced exam. Because Squires challenges a
substantive requirement for obtaining an engineering license, he
asserts a denial of substantive due process.
The due process clause guarantees more than fair
process . . . it also includes a substantive component that
provides heightened protection against government interference
with certain fundamental rights and liberty interests.62 Squires
asserts that [t]he right to practice ones own profession is a
fundamental right.63 Although the right to practice ones
profession is protected by the due process clause, it is not
fundamental, and it may be regulated so long as those regulations
are reasonably related to a legitimate purpose.64
If any conceivable legitimate public policy for the
enactment is either apparent or offered by those defending the
enactment, the party challenging it must disprove the factual
basis for the justification.65 Squires argues that the
fundamentals exams purpose is to ensure basic competence among
new engineers entering the field. He contends that because he
has already demonstrated basic competence by working in
construction for thirty years, obtaining a masters degree in
engineering, and passing the more advanced and application-
specific professional exam, the fundamentals exam serves no
legitimate purpose. Even if the examination is redundant for an
applicant in his position, Squires does not show that the
requirement is unrelated to the Boards legitimate goal of
minimizing the risk of public harm posed by unqualified
engineers. He also argues that the only real connection with
requiring the [fundamentals exam] for such a person is the goal
of limiting competition with the senior engineers already
licensed, but such speculation, without more, does not disprove
that the regulation was adopted to ensure only competent
candidates are licensed as engineers in Alaska. The Board
therefore did not violate Squiress substantive due process rights
by requiring him to take the fundamentals exam.
D. A Different Waiver Standard for Registered Engineers
from Other Jurisdictions Does Not Violate Squiress
Equal Protection Rights.
By comity a registered engineer in another state or
Canada who has been practicing for five years or more may obtain
an Alaska license if the Board decides the prior registration
meets Alaskas requirements,66 excepting the fundamentals exam.67
Squires argues that the comity regulations violate his
equal protection rights because together with 12 AAC 36.090,
which governs exam waivers, they permit the Board to waive the
fundamentals exam for Canadian engineers who were educated in
Canada, have worked only five years, and have passed the Alaska
professional exam.68 Squires asserts that Canadian-educated
engineers need not take a fundamentals exam to become registered
engineers in Canada. Squires then contends that his situation is
identical to that of a Canadian engineer seeking registration by
comity under 12 AAC 36.105(c)(3) and that there is no practical
difference between Canadian engineers situation and his own.
The Alaska Constitution provides that all persons are
entitled to equal rights, opportunities, and protection under the
law.69 This command requires state and local governments to treat
similarly situated individuals alike.70 In equal protection
cases, the question is whether two groups of people who are
treated differently are similarly situated and therefore are
entitled to equal treatment under the constitution.71 To
determine whether differently treated groups are similarly
situated, we examine the states reasons for treating the groups
differently.72
The portion of a law treating two groups differently is
a classification.73 A law based on a non-suspect classification
will survive as long as a legitimate reason for the disparate
treatment exists and the law creating the classification bears a
fair and substantial relationship to that reason.74 A law based
on a suspect classification such as race, national origin, or
alienage or that infringes on fundamental rights will survive
only if it is necessary to achieve a compelling state interest.75
Squiress equal protection argument fails because he is
not similarly situated to licensed Canadian engineers seeking
registration by comity. The classification at issue here is not
national origin, but registration status. A Canadian engineer
may seek registration by comity only after already being
registered for at least five years in Canada.76 Under 12 AAC
36.105(b) a comity applicant must verify current registration
based upon education, experience, and examination requirements
that, in the opinion of the board, were at least equivalent to
the requirements of AS 08.48 [governing licensing for engineers]
and this chapter at the time that the applicants out of state
registration was issued. Although Canadian-educated engineers do
not have to take a fundamentals exam in Canada, they still must
obtain an undergraduate degree in engineering, work for four
years, and then take a professional exam to become registered
there.77
Both Canadian and American engineers registered in
other jurisdictions must meet the same requirements for
registration by comity in Alaska.78 Squires has never been a
registered engineer in any jurisdiction, so he is not similarly
situated to either American or Canadian engineers who already
have been registered in another jurisdiction, even though they
may have less work experience. And as the superior court noted
in its order, the twenty-year waiver rule applies the same
standard to both unregistered American and Canadian applicants.
We therefore affirm the superior courts decision on
this issue.
V. CONCLUSION
We AFFIRM the superior courts decision in its entirety.
_______________________________
1 AS 08.48.011, .101.
2 AS 08.48.201 further provides that a registered
engineer application shall:
(1) be on a form prescribed and furnished by
the board;
(2) contain statements made under oath,
showing the applicants education and a
detailed summary of the applicants technical
experience; and
(3) contain five references, three of whom
must be . . . engineers . . . having personal
knowledge of the applicants . . . education,
training, or experience.
12 Alaska Administrative Code (AAC) 36.010(b), (c) &
(i) (2005) collectively require that an applicant provide
documentation of the applicants education, work experience, and
responsible charge experience, as required by AS 08.48 and [12
AAC 36] and provide that an applicant will not be . . . approved
for registration until the applicants qualifications are accepted
by the board.
3 See AS 08.48.181 & 12 AAC 36.063 (registration upon
examination); AS 08.48.191(b) & 12 AAC 36.105 (registration by
comity or endorsement).
4 AS 08.48.011, .181; 12 AAC 36.100(c).
5 See 12 AAC 36.062. An applicant may qualify for the
fundamentals exam with either (1) successful completion of at
least 75 percent of the required credit hours for an accredited
undergraduate degree in engineering, or (2) a demonstration of
satisfactory evidence that the applicants educational and work
experience meet requirements detailed in the regulation. 12 AAC
36.062(a)(1)-(2). Education and work experience may not be
accumulated concurrently. A maximum of 12 months credit may be
claimed for a calendar year. 12 AAC 36.062(b).
6 See 12 AAC 36.063. An applicant may qualify for the
professional exam by (1) either passing or obtaining a waiver for
the fundamentals exam, and (2) demonstrating satisfactory
evidence of the applicants educational and work experience
sufficient to meet requirements set out in the regulation. 12
AAC 36.063(a)-(c). Education and work experience may not be
accumulated concurrently. A maximum of 12 months credit may be
claimed for a calendar year. 12 AAC 36.063(e).
7 12 AAC 36.090(a).
8 AS 08.48.191(b).
9 12 AAC 36.090(b), .105(b).
10 AS 44.62.500(a) provides that [i]f a contested case is
heard before an agency . . . the hearing officer who presided at
the hearing shall be present during the consideration of the case
and, if requested, shall assist and advise the agency.
11 Alyeska Pipeline Serv. Co. v. DeShong, 77 P.3d 1227,
1231 (Alaska 2003).
12 Church v. State, Dept of Revenue, 973 P.2d 1125, 1127
(Alaska 1999) (citing Madison v. Alaska Dep't of Fish and Game,
696 P.2d 168, 173 (Alaska 1985)).
13 Alaska Ctr. for the Envt v. State, 80 P.3d 231, 243
(Alaska 2003); Jerrel v. State, Dept of Natural Res., 999 P.2d
138, 141 (Alaska 2000).
14 Rose v. Commercial Fisheries Entry Commn, 647 P.2d 154,
161 (Alaska 1982) (citing United States v. RCA Alaska Commcns,
Inc., 597 P.2d 489, 498 (Alaska 1978) ); Weaver Bros., Inc. v.
Alaska Transp. Commn, 588 P.2d 819, 821 (Alaska 1978) (giving
agency interpretation deference if it has a reasonable basis in
law and in fact).
15 DeShong, 77 P.3d at 1231.
16 Lopez v. Admr, Pub. Employees Ret. Sys., 20 P.3d 568,
570 (Alaska 2001) (internal quotation marks and brackets
omitted).
17 Id. at 570.
18 AS 08.48.171.
19 12 AAC 36.062(a)(2), .063(a)(3).
20 12 AAC 36.090(a).
21 AS 08.48.181 provides:
Except as provided in AS 08.48.191, for
registration as a professional architect,
professional engineer, professional land
surveyor, or professional landscape
architect, a person shall be examined in this
state in accordance with the regulations of
procedure and standards adopted by the board
under AS 44.62 (Administrative Procedure
Act). The procedure and standards shall at
least meet the requirements adopted by
recognized national examining councils for
these professions. (Emphasis added.)
22 AS 44.62.190-.215; see also Alyeska Pipeline Serv. Co.
v. State, Dept of Envtl. Conservation, 145 P.3d 561, 573 (Alaska
2006).
23 AS 44.62.640(a)(3) defines a regulation:
[E]very rule, regulation, order, or standard
of general application or the amendment,
supplement, or revision of a rule,
regulation, order, or standard adopted by a
state agency to implement, interpret, or make
specific the law enforced or administered by
it, or to govern its procedure, except one
that relates only to the internal management
of a state agency; regulation does not
include a form prescribed by a state agency
or instructions relating to the use of the
form, but this provision is not a limitation
upon a requirement that a regulation be
adopted under this chapter when one is needed
to implement the law under which the form is
issued; regulation includes manuals,
policies, instructions, guides to
enforcement, interpretative bulletins,
interpretations, and the like, that have the
effect of rules, orders, regulations, or
standards of general application, and this
and similar phraseology may not be used to
avoid or circumvent this chapter; whether a
regulation, regardless of name, is covered by
this chapter depends in part on whether it
affects the public or is used by the agency
in dealing with the public.
24 Jerrel, 999 P.2d at 143.
25 Id. (internal quotation marks omitted).
26 AS 44.62.640(a)(3); see also Jerrel, 999 P.2d at 143.
27 AS 44.62.640(a)(3).
28 999 P.2d at 139.
29 Id. at 140 n.3.
30 Id. at 140, 142.
31 Id. at 142-43.
32 Id. at 143.
33 Id.
34 Id. at 143.
35 Id. at 143-44.
36 Id. at 143.
37 Id. at 143-44.
38 Id. at 144.
39 583 P.2d 854, 855 (Alaska 1978).
40 Id. at 858.
41 Id.
42 Alyeska Pipeline Serv. Co., 145 P.3d 561.
43 Id. at 573; see also Alaska Ctr. for the Envt, 80 P.3d
at 243-44. In the latter case, we held that an agency
interpretation of a regulation defining major energy facility was
not a regulation because it was merely a common sense
interpretation of the regulations applicability. Alaska Ctr. for
the Envt, 80 P.3d at 243-44. We distinguished Jerrel, explaining
that the rule at issue there was a new substantive requirement
that made that regulation more specific and thus a new
regulation, necessitating compliance with the [APA]. Id. at 244
n.40.
44 Alyeska Pipeline Serv. Co., 145 P.3d at 573.
45 Id. at 566, 573.
46 Jerrel, 999 P.2d at 143-44.
47 Id.
48 Squires argued that the Board irregularly enforced the
third-party requirement because Ms. Vinson, a licensing examiner
handling engineering applications, told him that the third-party
verification need not be from a supervisor. This argument lacks
merit. Ms. Vinson testified before the Board she told Squires
that if he could not find a supervisor, the Board sometimes would
accept verification of a registered engineer who also worked on
the project but did not supervise the applicant. Although the
Board may have made concessions on the supervisor requirement,
third-party verification from a registered engineer was still
required.
49 The Board receives only about six waiver applications
per year. Of that small group, it approves some and denies
others. The Boards current licensing examiner testified that in
the two years she held the position, she personally worked on
four other waiver applications, and those applicants successfully
verified twenty years of professional experience.
50 Tanana Valley Sportsmens Assn, 583 P.2d at 858.
51 See AS 08.48.171 (requiring applicant to submit
evidence satisfactory to the board of the applicants education,
training and experience); AS 08.48.191(b) (allowing comity
registration based on verified evidence if in the opinion of the
board the earlier registration meets requirements of AS 08.48);
12 AAC 36.010(b) (An applicant will not be . . . approved for
registration until the applicants qualifications are accepted by
the board.).
52 12 AAC 36.062(b) (eligibility standards for
fundamentals exam); 12 AAC 36.063(e) (eligibility standards for
professional exam).
53 424 U.S. 319 (1976).
54 Id. at 335.
55 116 P.3d 580 (Alaska 2005).
56 Id. at 586.
57 Id. at 584.
58 Id. at 587 (quoting Bellsouth Corp. v. FCC, 162 F.3d
1215, 1224 (D.C. Cir. 1999)) (internal quotation marks omitted).
In Valley Hospital Assn, we considered whether the Department of
Health and Social Services (DHSS) was required to recalculate the
reimbursement rate for the cost of treating Medicaid patients.
Valley Hospital under-reported its costs because of antiquated
bookkeeping, but ultimately identified the error. DHSS attempted
to strictly enforce a change in the method of calculating
reimbursement rates that would have resulted in an approximately
$700,000 detriment to Valley Hospital without giving it the
opportunity to submit updated, corrected costs. We held that
[u]nder the unusual circumstances of this case, we think DHSS was
required to make an exception to [the regulation], and to use
some more reasonable method of calculating Valleys ancillary
charges. Id. at 586. We explained that we reached this
conclusion because: (1) it was unclear whether the regulation at
issue was validly promulgated; (2) DHSS did not provide a
compelling reason to prefer using the hospitals old data;
(3) there was an inherent risk of error because the agency relied
on data that had been submitted without notice of how it might be
used; and (4) DHSSs staff knew at the time the hospital submitted
the data that the older data would result in a lower
reimbursement rate. Under the circumstances we concluded that
the hospital suffered a substantial injustice, offset by no
compelling justification. Id. at 587.
59 See AS 08.48.171 (requiring applicants to submit
evidence satisfactory to the board of the applicants education,
training and experience); 12 AAC 36.090(a) (requiring applicants
for exam waiver to submit satisfactory evidence of relevant work
experience). These provisions put the burden on the applicant to
present evidence of qualification.
60 State, Dept of Commerce & Econ. Dev. v. Schnell, 8 P.3d
351, 360 (Alaska 2000).
61 City of Nome v. Catholic Bishop of N. Alaska, 707 P.2d
870, 875 (Alaska 1985) (Such findings facilitate judicial review,
insure careful administrative deliberation, assist the parties in
preparing for review, and restrain agencies within the bounds of
their jurisdiction.).
62 Treacy v. Muni. of Anchorage, 91 P.3d 252, 268 (Alaska
2004) (quoting Troxel v. Granville, 530 U.S. 57, 65 (2000))
(internal quotation marks omitted).
63 Squires points out that the right to earn a living is a
fundamental right under the federal constitutions privileges and
immunities clause. Sheley v. Alaska Bar Assn, 620 P.2d 640, 643
(Alaska 1980); U.S. Const. art. IV, 2, cl. 2. The right to
engage in an economic endeavor within a particular industry is an
important right for state equal protection purposes. State v.
Enserch, 787 P.2d 624, 632 (Alaska 1989) (citing Comml Fisheries
Entry Commn v. Apokedak, 606 P.2d 1255, 1266 (Alaska 1980));
Alaska Const. art. I, 1. However the privileges and immunities
and equal protection clauses are inapposite to Squiress due
process claims.
64 See Conn v. Gabbert, 526 U.S. 286, 291-92 (1999)
([T]his Court has indicated that the liberty component of the
Fourteenth Amendments Due Process Clause includes some
generalized due process right to choose ones field of private
employment, but a right which is nevertheless subject to
reasonable government regulation.); Schware v. Bd. of Bar Examrs,
353 U.S. 232, 239 (1957) (A State can require high standards of
qualification, such as good moral character or proficiency in its
law, before it admits an applicant to the bar, but any
qualification must have a rational connection with the applicants
fitness or capacity to practice law.); Dittman v. California, 191
F.3d 1020, 1030-32 (9th Cir. 1999) (holding requirement that
applicant provide social security number in order to renew
acupuncturists license was rationally related to legitimate state
interest and did not violate due process).
65 Anderson v. State ex rel. Cent. Bering Sea Fishermens
Assn, 78 P.3d 710, 716 (Alaska 2003) (quoting Gonzales v. Safeway
Stores, 882 P.2d 389, 397-98 (Alaska 1988)).
66 AS 08.48.191(b); 12 AAC 36.105. In relevant part 12
AAC 36.105 states:
Engineer registration by comity[.]
. . . .
(b) An applicant for engineering registration
by comity shall submit verification of
current registration to practice engineering
in another licensing jurisdiction that was
based upon education, experience, and
examination requirements that, in the opinion
of the board, were at least equivalent to the
requirements of AS 08.48 and this chapter at
the time the applicants out of state
registration was issued. An applicant who
otherwise meets the requirements of this
section is not required to demonstrate having
passed the fundamentals of engineering
examination.
(c) An applicant for engineering registration
by comity shall
. . . .
(2) if the applicant has been practicing
engineering as a registered engineer for five
years or more in a state . . . of the United
States . . . provide two current letters of
reference from registered engineers
practicing the specific branch of engineering
for which the applicant has applied; or
(3) if the applicant has been practicing for
five years or more as a professional engineer
in Canada, under a license issued by a
provincial or territorial engineering
association or order,
(A) provide two current letters of reference
from engineers registered in a state,
territory, or possession of the United
States, the District of Columbia, or a
province or territory of Canada; and
(B) if the applicant has not taken an
examination that meets the requirements of
(b) of this section, pass the examination
listed in 12 AAC 36.100(c) in the branch of
engineering for which the applicant has
applied.
67 12 AAC 36.090(b); 12 AAC 36.105(b).
68 Squiress brief also alleges that the comity regulations
violate his due process rights, but he fails to offer any
argument or analysis to support this claim. We deem this
argument waived for lack of adequate briefing. See, e.g.,
Adamson v. Univ. of Alaska, 819 P.2d 886, 889 n.3 (Alaska 1991)
(concluding that an issue will not be considered on appeal when
it is only cursorily addressed in the opening brief).
69 Alaska Const. art. I, 1.
70 Gonzales v. Safeway Stores, Inc., 882 P.2d 389, 396
(Alaska 1994).
71 Pub. Employees Ret. Sys. v. Gallant, 153 P.3d 346, 349
(Alaska 2007).
72 Id.
73 Id.
74 Id. (internal quotation marks omitted).
75 Id. at 350.
76 12 AAC 36.105(c)(3).
77 Canadian Engineering Qualifications Bd., Guideline on
Admission to the Practice of Engineering in Canada 5, 15, 20
(2001).
78 Compare 12 AAC 36.105(c)(2) with subsection .105(c)(3).
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