Wasilefsky v. Maine Department of Labor

STATE OF MAINE SUPERIOR COURT
KENNEBEC, ss. LOCATION: AUGUSTA
DOCKET NO. AUGSC-AP-66

MARIE WASILEFSKY )
)
Petitioner, )
)
V. ) ORDER ON RESPONDENTS'
) MOTION TO DISMISS
MAINE DEPARTMENT OF LABOR )
and UNEMPLOYMENT )
INSURANCE COMMISSION )
)
Respondents. )

This matter is before the court on the Respondents' Motion to Dismiss dated

February 14, 2019.

PROCEDURAL BACKGROUND
The Maine Unemployment Insurance Commission ("MUIC") issued the

Petitioner an adverse decision on August 8, 2018. On August 30, 2018, Petitioner's

counsel hand delivered the Notice of Appeal to the Office of the Attorney General and

mailed a copy of said notice to the Department of Labor ("DOL"). Although the exact

date is unknown, Petitioner's counsel hand delivered the Notice of Appeal to the

Capital Judicial Center sometime "thereafter" but within thirty days of August 8, 2018

when the MUIC mailed the adverse decision to the Petitioner.

Petitioner's attempted filing was returned to her by the clerk's office for failure to

provide a Summary Sheet. 1 Petitioner refiled her Notice of Appeal with the court on

1
M.R. Civ. P. S(h)(l) requires that "[A]ny pleading which sets forth a claim for relief ... shall be
accompanied by a properly completed and executed Summary Sheet which is available in blank
form at the clerk's office." Pleadings filed under M.R. Civ. P 80(c) are not exempt from the

1
October 12, 2018. On January 18, 2019, the court entered an Order that it would dismiss

the case if no motion to remain on the docket was filed within fourteen days because no

return of service had been filed with the court when Petitioner refiled on October 12.

Petitioner responded on January 25, 2019, with certified mail return receipts showing

that the Respondents were served on August 30, 2018. On January 28, 2019, the court

ordered that the case remain on the docket and vacated its prior January 18 Order.

Respondents moved to dismiss the case with prejudice on February 14, 2019, for

lack of jurisdiction pursuant to Maine Rule of Civil Procedure 12(b )(1) as Petitioner did

not file her petition for review within thirty days of her receipt of decision from the

MUIC pursuant to 5 M.R.S. § 11002(3). On March 4, 2019, Petitioner objected to the

Motion to Dismiss arguing that her failure to provide a summary sheet should be

considered a "minor procedural irregularity" and her filing with the court should be

considered timely.

DISCUSSION

Decisions of the MUIC may be appealed pursuant to the Maine Administrative

Procedures Act ("MAPA"). 26 M.R.S. § 1194(8). The MAPA entitles a person aggrieved

by final agency action to judicial review in the Superior Court under the rules set forth

by -the statute. 5 M .R.S. § 11001(1). When a party to an administrative proceeding

appeals that agency's final action, "[t]he petition for review shall be filed within 30 days

after receipt of notice . . .." § 11002(3). The Law Court has made clear that "[t]he time

limit for filing a petition for review of a final agency action pursuant to the [MAPA] is

Summary Sheet requ irem ent. M.R. Civ . P. S(h )(3). Filings that are received but do not comply
with the Summary Sheet requirement are returned by the clerk as incomplete, and the clerk
d oes not docket the attempted filing. M.R. Civ. P. 5(£). "The offeror may refile the documen ts
when all elements are complete. The filing will be docketed when the complE;!te filing is
received." Id.

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jurisdictional." Fournier v. Dep't of Corr., 2009 ME 112, CJ[ 2,983 A.2d 403. If the petition is

not timely filed the court lacks jurisdiction and must dismiss the petition. Mutty v. Dep't

of Corr., 2017 ME 7, 'IT 8, 153 A.3d 775; M.R. Civ. P. 12(h)(3). The thirty-day time limit

"must be applied uniformly and consistently" regardless of whether parties are

represented by counsel or not. Fournier, 2009 ME 112, 1 2, 983 A.2d 403. Therefore, a

party seeking review of final agency action must, within thirty days after receiving

notice of an adverse decision, "properly complete and file" with the Superior Court: (1)

the petition for review; (2) a complete summary sheet; and (3) the filing fee. 2 Id. 'IT 6.

Here, Petitioner's first filing was incomplete because she did not include a

Summary Sheet as required by Maine Rule of Civil Procedure 5(h)(l). A Summary Sheet

was not provided to the court until October 12, 2018, when the Petitioner refiled. As the

MUIC issued its adverse decision to the Petitioner on August 8, 2018, this is well

beyond the thirty day time limit mandated by statute and reinforced by caselaw. 3

The Petitioner argues that no party is harmed by the late filing as they were

noticed, and the refiling should be considered a "minor procedural irregularity." The

2
An alternative to the filing fee is an application to proceed without payment supported by
appropriate documentation. Fournier v. Dep 't ofCorr., 2009 ME 112, <J[ 6, 983 A.2d 403. That is not
at issue in this case.

3
The appropriate date for beginning the thirty day timeframe is when the Petitioner "received
notice of the agency decision, not the final agency action date." Mutty v. Dep't of Corr., 2017 ME
7, <J[ 10, 153 A.3d 775 (citation omitted). Here, in her Notice of Appeal dated August 24, 2018,
Petitioner concedes that the MUIC mailed her its decision on August 8, 2018. Had she received
the adverse decision even the day before her Notice of Appeal, August 23, 2018, that would put
the deadline for her to properly and completely file her petition by September 24, 2018 (as
September 22 was a Saturday). Petitioner's complete filing on October 12, 2018, would still be
beyond the thirty-day deadline.

3
•I

court is unconvinced by Petitioner's argument. Regardless of harm to any party, a

complete lack of jurisdiction is not a "minor procedural irregularity." 4

CONCLUSION

Because the Petitioner did not completely and correctly file her petition with the

court within thirty days of receiving the adverse agency decision, it was not timely filed

and this court lacks jurisdiction.

The entry is:

Respondents' Motion to Dismiss with prejudice is GRANTED.

The Clerk is directed to enter this Order on the docket for this case by incorporating it

by reference. M.R. Civ. P. 79(a).

Dated: ~/z '1 i?-0/'f
Ju · · e
Maine Superior Court

4
Petitioner's cite to Cheoros v. Cheoros, 1997 ME 37, 690 A.2d 974, is both unavailing and
distinguishable. There, the Law Court was addressing whether the Superior Court had
jurisdiction to act on a motion for attorney's fees that was improperly filed in the Law Court
instead of the trial court, and where the Law Court never remanded the case. Id. at 975-76. The
Court explained that the procedural issue did "not contain as a necessary condition that the
Law Court remand the case or give the Superior Court explicit directions in order for the
Superior Court to retain jurisdiction." Id. at 976. Therefore, in that case, the irnprope1· filing in
the Law Court was a "minor procedural irregularity." Id. Here, the MAP A, Fournier, and the
Rules of Civil Procedure are explicit: the petition, including a summary sheet and the filing fee
had to be filed no later than thirty days after the Petitioner received the adverse decision.

4