A pro se litigant can be deemed vexatious for filing repetitive complaints alleging bad faith for issues previously already ruled upon

In Clifton, Applicant sustained an injury in 2015 that was accepted and closed with temporary disability benefits but no permanent impairment after a hearing in 2017. Applicant then filed two successive bad faith complaints in March and April 2018. The first complaint in March 2018 alleged multiple violations in the processing of the claim including denial or delay in approving appointments, failure to respond to a request to see a psychologist, delay in approving medications, failure to pay IME travel expenses, and delay in paying benefits. The Industrial Commission of Arizona (“ICA”) found a violation for unreasonable delay in paying IME travel expenses but denied the other allegations. The second complaint in April 2018 alleged Respondents refused to respond to Applicant inquiry whether he was entitled to wages from 11/30/2015 to 12/03/2015. The ICA denied that complaint. . Applicant also filed a request for investigation regarding payment of wages. Applicant was not satisfied with the ICA’s responses and requested a hearing on both complaints and the request for investigation. Applicant then failed to comply with discovery and the claims were dismissed with prejudice. Applicant appealed to the Arizona Court of Appeals (“the Court“) and the dismissal was affirmed.

In June 2019, Applicant filed another administrative complaint again alleging bad faith in the handling of his claim. This third complaint repeated the allegations of the second complaint from April 2018 and further complained about a 09/06/2018 check for $142.08, and that Respondents lack of responsiveness regarding what the 09/06/2018 check was for. Respondents filed a motion to designate Applicant a “vexatious litigant” due to the repetitive filings of bad faith complaints pertaining to the same injury despite the prior rulings by the ICA on the same issues. Respondents argued that Applicant was once again disputing whether he was owed more for temporary disability benefits and questioned the check for $142.08 that was issued to cover temporary total disability benefits 11/30/2015 to 12/03/2015 and was calculated correctly based on the ICA approved average weekly wage. Respondents asked that Applicant be precluded from filing any more bad faith complaints without getting prior approval from the ICA and Chief ALJ Administrative Law Judge (“Chief ALJ”).

The Chief ALJ issued a letter giving Applicant until 07/29/2019 to respond to Respondents’ motion. Applicant did not respond and the Chief ALJ issued a formal order designating Applicant a vexatious litigant. The Chief ALJ found that the third complaint raised the same or similar issues as previously filed. The Chief ALJ held that Applicant could not file any new requests for relief including a new Request for Hearing, new Petition to Reopen, pleading, motion, Bad Faith Complaints, or other documents without the approval of the Chief ALJ.

Applicant filed a request for review and argued in part that he did timely file a response to Respondents’ motion and that the three complaints were not about the same issue. Respondents argued this was harassment and the third complain was the same as the prior complaints. The Chief ALJ then issued a decision upon review affirming the prior order.

Applicant then appealed to the Court and argued that he did not raise the same issues in the third complaint and therefore, he is not a vexatious litigant. The Court disagreed and affirmed the Chief ALJ’s order.

The Court held that A.R.S. § 23-941.02 gave the Chief ALJ the authority to identify a pro se litigant as a vexatious litigant if the litigant engages in “vexatious conduct.” Vexatious conduct is defined as engaging in any one of six separate patterns of conduct, including repetitive filings. When a motion alleging vexatiousness is filed, the pro se litigant must be given 30 days to respond. A vexatious litigant designation “applies only to the claim at issue before the ALJ, and once identified as a vexatious litigant, the litigant may not file a new request for hearing, pleading, motion, or other document without prior approval of the Chief ALJ.

The Court held that in reviewing the claims file in its entirety and the bad faith complaints, the evidence supported the Chief ALJ’s findings that Applicant repeatedly filed documents or requests for relief that were subject to the prior rulings by the ICA in the same claim.

The Court concluded that the issues raised in the third complaint were sufficiently similar to be considered repetitive and affirmed the Chief ALJ’s order.

Clifton v. Indus. Comm’n of Ariz., 2020 WL 5803293 (Sept. 29, 2020).

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