Willardson v. DWS

Willardson v. DWS

IN THE UTAH COURT OF APPEALS
 

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Christian N. Willardson,

Petitioner,

v.

Department of Workforce Services, Workforce Appeals Board,

Respondent.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040949-CA
 

F I L E D
(April 21, 2005)
 

2005 UT App 183

 

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Original Proceeding in this Court

Attorneys: Christian N. Willardson, South Jordan, Petitioner

Pro Se

Suzan Pixton, Salt Lake City, for Respondent

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Before Judges Billings, Bench, and Jackson.

PER CURIAM:

    Christian N. Willardson petitions for judicial review of the decision of the Workforce Appeals Board (Board), which concluded that his appeal of an Administrative Law Judge's (ALJ) decision was untimely filed without good cause. This matter is before the court on the Board's motion for summary disposition.

    The ALJ issued and mailed its decision to Willardson on July 29, 2004. The decision specifically advised Willardson that it would "become final unless, within thirty days from July 29, 2004, further written appeal is made to the Workforce Appeals Board." Willardson filed his appeal on September 1, 2004, two days beyond the thirty-day limit. The Board allowed Willardson an opportunity to explain the reasons for the delay. In response, Willardson argued that his appeal was timely because August 29 was a Sunday and his appeal was postmarked on August 30, the last day of the appeal period. The Board concluded that Willardson had not shown good cause for filing an untimely appeal.

    Utah Administrative Code R994-508-104 governs the determination of good cause for late filing of an agency appeal. See Utah Admin. Code R994-508-104. Good cause is limited to circumstances where

(1) the appellant received the decision after the expiration of the time limit for filing the appeal . . . ; (2) the delay in filing the appeal was due to circumstances beyond the appellant's control; or (3) the appellant delayed filing the appeal for circumstances which were compelling and reasonable.

Id.

    Willardson received the ALJ's decision within the appeal period and it was not beyond his control to timely file his appeal. Moreover, his reason for delay was not compelling and reasonable.

    Utah Administrative Code R994-508-302 provides in relevant part:

(1) The appeal from a decision of an ALJ must be filed within 30 calendar days from the date the decision was issued by the ALJ. This time limit applies regardless of whether the decision of the ALJ was sent through the U.S. Mail or personally delivered to the party. . . . No additional time for mailing is allowed.

(2) In computing the period of time allowed for filing a timely appeal, the date as it appears in the ALJ's decision is not included. The last day of the appeal period is included in the computation unless it is a Saturday, Sunday, or legal holiday when the offices of the Department are closed. If the last day permitted for filing an appeal falls on a Saturday, Sunday, or legal holiday, the time permitted for filing a timely appeal will be extended to the next day when the Department offices are open.

(3) The date of receipt of an appeal to the Board is the date the appeal is actually received by the Board, as shown by the Department's date stamp on the document or other credible evidence such as a written or electronic notation of the date of receipt, and not the post mark date from the post office. . . .

Utah Admin. Code R994-508-302(1)-(3).

    This court has consistently held that an untimely appeal deprives the agency of jurisdiction. See Autoliv ASP, Inc. v. Workforce Appeals Bd., 2000 UT App 223,¶18, 8 P.3d 1033 ("Because [Petitioner's] appeal was not timely filed, the agency did not have jurisdiction to consider the issue of fault."); Armstrong v. Department of Employment Sec., 834 P.2d 562, 568 (Utah Ct. App. 1992) (concluding Board did not err in declining to address merits of untimely appeal). Pursuant to Utah Administrative Code R994-508-302, it is clear that Willardson's appeal was untimely because it was not received by the Board within thirty days of the ALJ's decision. See Utah Admin. Code R994-508-302(3). Willardson has failed to establish any good cause for filing a late appeal.

    Therefore, the Board did not err in deciding it lacked jurisdiction to consider the merits of the appeal because it was filed late and without good cause. Accordingly, we grant the motion for summary disposition and affirm the Board's decision.

______________________________

Judith M. Billings,

Presiding Judge

______________________________

Russell W. Bench,

Associate Presiding Judge

______________________________

Norman H. Jackson, Judge