Trask v. Dept. of Employment & Training (99-143); 170 Vt. 589; 749 A.2d 1130
[Filed 25-Jan-2000]
ENTRY ORDER
SUPREME COURT DOCKET NO. 99-143
JANUARY TERM, 2000
Geoffrey Trask } APPEALED FROM:
}
}
v. } Employment Security Board
}
Department of Employment and Training }
} DOCKET NO. 11-98-036-01
In the above-entitled cause, the Clerk will enter:
Claimant Geoffrey Trask appeals the Employment Security Board's
dismissal of his appeal from a claims adjudicator's determination. The
Board concluded that his appeal was untimely filed. Claimant now argues
that (1) the appeal was timely filed; (2) he was denied due process by a
five-day delay between the determination and his receipt of the decision;
and (3) he was denied "prompt notice in writing" of the determination in
violation of 21 V.S.A. § 1348(a). We affirm.
Claimant filed a claim for unemployment compensation benefits on
January 5, 1997. On October 9, 1998, the claims adjudicator determined
that claimant had erroneously received temporary workers' compensation
benefits in excess of his weekly unemployment compensation benefit amount
totaling $5,425.00, and was liable to repay these overpaid benefits to the
Department of Employment and Training (DET). This determination was
mailed by certified mail and claimant received it on October 15, 1998.
Claimant's appeal rights were stated at the end of the determination:
YOUR APPEAL RIGHTS: This determination may be appealed
within thirty (30) calendar days from the determination date shown
above. Your appeal must be in writing and may be filed in person at
any District Office or at the Central Office in Montpelier. The appeal
may also be filed by mail, in which case the postmark date is
considered the date of appeal, or fax, in which case the fax date is
considered the date of appeal.
(Emphasis added.) The thirty-day appeal period expired on Sunday, November
8, 1998. Because the post office is closed on Sundays, claimant mailed
his appeal on Monday, November 9, 1998, thirty-one days after the claims
adjudicator's determination. DET received the appeal on Thursday,
November 12, 1998.
On December 8, 1998, the chief appeals referee conducted a telephone
hearing. The following day, the referee dismissed the appeal for lack of
jurisdiction, stating that because claimant's appeal was filed more than
thirty days after the determination date, it was untimely and could not be
considered on its merits. On January 6, 1998, claimant appealed this
decision to the Board. The Board held a hearing on January 28, 1999. On
February 23, 1999, the Board affirmed the referee's decision.
On appeal to this Court, claimant first agues that the appeal was
timely filed because he could not mail his request to appeal on the
thirtieth day of the appeal period, as it fell on a Sunday, but he did
mail it on the thirty-first day, a Monday.
In Allen v. Vermont Employment §. Bd., 133 Vt. 166, 333 A.2d 122
(1975), we held that a timely appeal is jurisdictional, and that V.R.C.P.
6(a) & (e), do not apply in the unemployment compensation administrative
appeal process.(FN1) See id. at 170, 333 A.2d at 124. Claimant concedes
that Allen applies here. He does not ask us overrule it, but rather to
carve out a fairness-based public policy exception to Allen. We decline
claimant's invitation.
It should be noted at the outset that claimant was not in the
circumstance of attempting to file an appeal on the thirtieth day of the
appeal period but finding the district or central office closed by
reason of the weekend or a holiday. Nor is this a case in which DET
received claimant's mailed notice of appeal on the first business day
following the expiration of the thirty-day appeal period. In either of the
preceding examples, claimant's notice of appeal would have been timely
despite the fact that DET would not have received it until the
thirty-first day. In liberally construing its appeal period to allow a
claimant the benefit of the thirty-first day when the previous day falls on
a Sunday or holiday, DET meets the concerns of even the dissenters in
Grievance of Roy, 147 Vt. 403, 519 A.2d 1147 (1986), who urged a "liberal
construction" of the right of appeal allowing a timely filing on the
thirty-first day where an administrative agency has not provided for actual
receipt of notice of appeal on a weekend or holiday. Id. at 406, 519 A.2d
1149-50 (Gibson, J., dissenting). Indeed, DET considers a mailed notice
of appeal to be timely filed no matter when it is received, so long as it
has been postmarked within the thirty-day appeal period. These liberal
policies are more generous than Allen assigned to unemployment
compensation appeal deadlines, and noting that "[a]n agency's
interpretation of its own regulation is controlling unless it is plainly
erroneous or inconsistent with the regulation," Cronin v. Department of
Social Welfare, 145 Vt. 187, 188, 485 A.2d 1253, 1254 (1984), we allow
them to stand as the ceiling to Allen's floor.
However, even under DET's forgiving deadlines, claimant's appeal here
fails. His appeal was mailed - not filed - one day after the appeal
period expired, and was not received until three days after that. In
arguing that we should extend a fairness-based exception to Allen's
exclusion of V.R.C.P. 6 in unemployment compensation appeals to his case,
claimant cites many federal cases interpreting the near-identical F.R.C.P.
6. However, these cases are distinguishable from the instant case because
they all involve filing a notice of appeal on the first business day after
the expiration of the appeal period, rather than a mailing of the appeal
on the thirty-first day as occurred here. Thus, claimant's argument is
unpersuasive under either Allen or the liberal agency regulations.
Accordingly, we affirm the Board's conclusion that claimant's appeal was
untimely.
Claimant next argues that he was denied procedural due process because
of the five-day delay between the issuance of the determination on October
9, 1998 and his receipt of the decision on October 13, 1998. Claimant
contends that the delay hindered his ability to timely request and receive
documents from his workers' compensation attorney that would have aided in
formulating the substance of his appeal, and forced him to wait until the
last possible moment before mailing his appeal in the hope that these
documents would arrive in time.
DET acknowledges that the delay is inexplicable, and, we might add,
regrettable. Nevertheless, claimant received the determination within a
week of the date it was issued, and still had more than three weeks to
file an appeal within the thirty-day appeal period. Moreover, to preserve
his appeal, claimant needed only to file a written notice; he did not need
the documents that he was allegedly awaiting. If he was confused about
what was required to notice his appeal - a claim he has not made - his
failure to alert the Board of his uncertainty or that he was facing a time
problem defeats his due process argument. Claimant's inaction here falls
short of Roy's requirement that a claimant "employ appropriate diligence
to safeguard his own interests, and not simply do nothing." Grievance of
Roy, 147 Vt. at 405, 519 A.2d at 1149.
Finally, claimant contends that the five-day delay violated 21 V.S.A. §
1348(a)'s requirement of written "[p]rompt notice" of the determination.
However, this argument is unavailing. The notice claimant received here
allowed him a reasonable amount of time to preserve his appeal, and
occurred by an acceptable method of delivery. See 21 V.S.A. § 1357
(notice adequate if delivered personally or sent by ordinary or certified
mail to claimant's last address of record). Thus, claimant received
"[p]rompt notice" of the October 9, 1998, determination within the meaning
of § 1348(a).
Affirmed.
BY THE COURT:
_______________________________________
Jeffrey L. Amestoy, Chief Justice
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
James L. Morse, Associate Justice
_______________________________________
Denise R. Johnson, Associate Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
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Footnotes
FN1. V.R.C.P. 6 reads, in pertinent part:
(a) Computation. In computing any period of time prescribed or
allowed by these rules, by order of court, or by any applicable
statute, the day of the act, event, or default from which the
designated period of time begins to run shall not be included. The
last day of the period so computed shall be included, unless it is a
Saturday, a Sunday, or a State or federal legal holiday, or, when the
act to be done is the filing of some paper in court, a day on which
weather or other conditions have made the office of the clerk
inaccessible, in which event the period runs until the end of the
next day which is not one of the aforementioned days. When the
period of time prescribed or allowed is less than 11 days,
intermediate Saturdays, Sundays, and legal holidays shall be
excluded in the computation.
(e) Additional Time After Service by Mail. Whenever a party has
the right or is required to do some act or take some proceedings
within a prescribed period after the service of a notice or other
paper upon the party and the notice or paper is served upon the
party by mail, three days shall be added to the prescribed period
unless the notice or other paper is served by the court