Serdar v. DWS

IN THE UTAH COURT OF APPEALS

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Jonnie J. Serdar,

Petitioner,

v.

Department of Workforce Services, Workforce Appeals Board and Prism Partners,

Respondents.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040094-CA
 

F I L E D
(May 6, 2004)
 

2004 UT App 153

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Original Proceeding in this Court

Attorneys: Jonnie J. Serdar, Bluffdale, Petitioner Pro Se

Michael Medley, Salt Lake City, for Respondent Workforce Appeals Board

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Before Judges Billings, Orme, and Thorne.

PER CURIAM:

Jonnie J. Serdar seeks review of the decision of the Workforce Appeals Board disqualifying her from receiving unemployment compensation. This case is before the court on a sua sponte motion for summary disposition.

Utah Code section 63-4b-14(3)(a) (1997) requires a party to "file a petition for judicial review of final agency action within 30 days afer the date that the order constituting the final agency action is issued." The Board issued a decision denying Serdar's request for reconsideration on January 6, 2004. This final agency action notified Serdar that any further appeal must be submitted in writing to the Utah Court of Appeals within thirty days of the date the decision issued. Serdar filed her petition for review in this court on February 6, 2004, thirty-one days after the final agency action issued.

"[T]imely filing of a petition for judicial review . . . is jurisdictional." Silva v. Department of Workforce Servs., 786 P.2d 246, 247 (Utah Ct. App. 1990) (per curiam). "The appeal time commences when the final agency order issues and not when allegedly received by a party." Id.

Although conceding that her petition for review was filed on February 6, 2004, Serdar claims that she obtained an extension of the time in which to file the petition. However, although Serdar was granted an extension of the time in which to file her docketing statement and transcript request, this court did not, and could not, extend the statutory time for filing a petition for review. The statutes and rules governing judicial review of agency orders contain no provision allowing an extension of the time for filing a petition for review. See Utah R. App. P. 14 (stating a petition for review shall be filed within thirty days unless another time is provided by statute); see also Utah R. App. P. 18 (stating rule 4(e) does not apply to agency cases). In addition, Utah Code section 63-46b-1(9) (1997) precludes the agency from extending the time limit for seeking judicial review.

Because the petition for review was not filed within thirty days after the date final agency action issued, we lack jurisdiction. After a court has concluded that it lacks jurisdiction, it "retains only the authority to dismiss the action." Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1998). Because we lack jurisdiction, we cannot consider Serdar's arguments on the merits of the petition.

We dismiss the petition for review for lack of jurisdiction.

______________________________

Judith M. Billings,

Presiding Judge

______________________________

Gregory K. Orme, Judge

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William A. Thorne Jr., Judge