The opinion
EDMONDS, J.,
concurring.
The issue in this case is whether employer or claimant was obligated to file a request for hearing before the Director under temporary OAR 436-001-0015 (1995). According to the majority and the dissent, the resolution of the issue turns on whether the administrative law judge’s (ALJ’s) decision became “void” or “voidable” as the result of the retroactive effect of Senate Bill 369 (1995). The majority holds, “[a]ll that the ‘retroactivity clause’ of SB 369 accomplishes is to render the ALJ’s order subject to being set aside via an adjudicative act.” 168 Or App at 42. The dissent would hold that “[t]he ALJ’s decision was void as of the effective date of the 1995 amendments. Therefore, the employer was not obliged to seek review of that decision.” 168 Or App at 48.
I agree with the dissent that the ALJ’s decision was a legal nullity once the 1995 amendments became effective. By transferring jurisdiction over the matter to the Director from the Hearings Division, the retroactive legal effect of the amendments operated as if the ALJ’s decision had not occurred. However, the amendments left unaddressed the procedural status of employer’s appeal to the Board. That *45 issue is governed by temporary OAR 436-001-0015 (1995). Until the Board acted on employer’s appeal by vacating the order that directed employer to provide vocational assistance, claimant could not have been deemed a “requesting party” under the rule.
Temporary OAR 436-001-0015 (1995) provided, in pertinent part:
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“(b) On or after June 7,1995 and before September 17, 1995, any appropriate request for review filed with the Board or its Hearings Division (the Board) on a matter where review now lies with the director * * * shall be deemed a timely filing with the director provided that:
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“(B) the requesting party formally files for review in writing with the director within 90 days of the effective date of this rule.” (Emphasis added.)
The Director’s decision that claimant could not become a “requesting party” under the rule until after the Board dealt with employer’s appeal constitutes a plausible interpretation of its own rule that promotes orderly administrative procedure. Under the Director’s interpretation, employer, not claimant, was the party who, in the language of the rule, had an appropriate request for review pending with the Board. Claimant could not have become a “requesting party” under the rule until the Board acted to divest itself procedurally from all claims pending before it. Thus, it is immaterial whether the ALJ’s decision was “void” or “voidable.” 1 The proper question before us is whether the Director’s decision to deem employer as the “requesting party” is a plausible interpretation of its own rule, and I would uphold the Director’s decision on that basis under Don’t Waste Oregon Com. v. Energy Facility Siting, 320 Or 132 , 881 P2d 119 (1994).
I question the propriety of applying common-law concepts about judgments to the administrative law process. In my view, the question is whether the Director had the authority to fashion a subset of its own rule to accomodate the circumstances of this claim. I would hold that it had such authority.