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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Shea v. State, Dept. of Administration, Division of Retirement and Benefits (04/10/2009) sp-6358
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| SHIRLEY L. SHEA, | ) |
| ) Supreme Court No. S- 12869 | |
| Appellant, | ) |
| ) Superior Court No. 3AN-07-8162 CI | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, DEPART- | ) |
| MENT OF ADMINISTRATION, | ) No. 6358 April 10, 2009 |
| DIVISION OF RETIREMENT AND | ) |
| BENEFITS, | ) |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Eric A. Aarseth, Judge.
Appearances: Steven J. Priddle, Law Office
of Steven J. Priddle, Anchorage, for
Appellant. Brenda Page, Assistant Attorney
General, Anchorage, Virginia B. Ragle, Senior
Assistant Attorney General, and Talis J.
Colberg, Attorney General, Juneau, for
Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Carpeneti, and Winfree, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
We consider here whether it was an abuse of discretion
not to extend by six days the time for filing a superior court
administrative appeal. By order distributed May 21, 2007, the
Public Employees Retirement System (PERS) denied Shirley Sheas
occupational disability benefits claim. On June 20 and June 21,
Sheas lawyer attempted to file an appeal, but was not successful
until June 26, 2007, six days after the thirty-day appeal
deadline. The superior court denied Sheas requests to accept the
appeal, effectively rejecting the appeal as untimely. Because
Shea demonstrated good cause for an extension and because there
was no showing of prejudice to the state or the court, we hold
that it was an abuse of discretion not to extend the appeal
deadline under Alaska Appellate Rule 502(b)(2).
II. FACTS AND PROCEEDINGS
When Shirley Shea, a state employee, applied for both
occupational and non-occupational disability benefits, the
administrator found that Shea was eligible only for non-
occupational disability benefits. Shea appealed to the Office of
Administrative Hearings, and an administrative law judge drafted
an opinion denying her appeal. The Office of Administrative
Hearings issued an order adopting the draft opinion on May 21,
2007, and on the same day mailed the opinion and order to Sheas
attorney, Steven J. Priddle, and to the Assistant Attorney
General representing the state. The order adopting the opinion
stated that it was the final administrative determination in this
matter and that judicial review could be obtained by filing an
appeal in the Alaska Superior Court in accordance with Alaska R.
App. P. 602(a)(2) within 30 days after the date of this decision.
According to affidavits later filed in the superior
court, employees of Priddles law office first attempted to file
Sheas superior court appeal on Wednesday, June 20, thirty days
after the administrative opinion and order were mailed. But the
court clerk erroneously informed them that the appeal had to be
taken to the Alaska Workers Compensation Board for filing.1
After then unsuccessfully attempting to file Sheas appeal at the
Workers Compensation Board that same day, the employees returned
to the courthouse to try again but arrived after it had closed.
On the morning of Thursday, June 21, one of the employees
returned to the court and again attempted to file the appeal but
was again refused by the clerk of court because of a caption
issue and bond requirement.2
In an affidavit, Sheas attorney explained to the
superior court that he then intended to file Sheas amended notice
of appeal on Monday, June 25, but was unable to do so because his
motor home suffered a mechanical failure and left him stranded at
Valdez Creek until after the court had closed.
On Tuesday, June 26, 2007, thirty-six calendar days
after the administrative order was mailed, Sheas representatives
filed the notice of appeal and a motion for late filing. The
state opposed the motion. The superior court denied the motion
for late filing without prejudice, and invited Shea to file a
second motion to accept late filing of appeal demonstrating good
cause for the late filing.
Shea filed a motion for reconsideration. The motion
argued that the deadline for filing was actually June 25, 2007,
and that the superior court should relax the thirty-day filing
deadline because exigent circumstances prevented Sheas attorney
from filing by June 25, resulting in what the motion described as
a one-day delay, to June 26. The state opposed the motion,
arguing that the deadline for filing was June 20 and that Shea
had failed to establish grounds for relaxing Appellate Rule
602(a). The superior court denied the motion for
reconsideration. The parties seem to agree that the order
denying Sheas motion for reconsideration terminated the
administrative appeal.
Shea appealed the denial. On November 5, 2008, we
heard oral argument on her appeal, and on November 7 we issued an
order reversing the denial order and remanding with instructions
to allow the appeal.3 This opinion explains why we issued that
order.
III. DISCUSSION
A. Standard of Review
We review de novo a superior courts interpretation of
court rules,4 and exercise our independent judgment in
interpreting court rules.5 Under the independent judgment
standard we adopt the rule of law that is most persuasive in
light of precedent, reason, and policy.6
We review for abuse of discretion a superior courts
decision to grant or deny an extension of time.7 A court abuses
its discretion if it issues a decision that is arbitrary,
capricious, manifestly unreasonable, or . . . stems from an
improper motive.8
B. The Deadline for Filing Sheas Appeal Was June 20.
Appellate Rule 602(a)(2) states in pertinent part that
[a]n appeal may be taken to the superior court from an
administrative agency within 30 days from the date that the
decision appealed from is mailed or otherwise distributed to the
appellant. The deadline for filing an appeal from the
administrative order distributed on May 21, 2007 was June 20,
2007.
Shea argues on appeal, as she did in the superior
court, that the deadline for filing was June 25. Relying on
former Appellate Rule 502(c), she contends that the deadline was
extended by three days because the agency decision being appealed
was mailed.9 She reasons that the deadline then would have
fallen on June 23, a Saturday; per Appellate Rule 502(a), this
would have given Shea until the end of the day on Monday, June
25, in which to file her appeal.10
Former Rule 502(c) extended deadlines by three days
after a document was served by mail; documents distributed by
courts are not served. Parties, not courts, serve documents.
Former Rule 502(c) therefore did not extend Sheas time for filing
her notice of appeal.11
Shea apparently attempted to file in a timely manner on
June 20 and, when her attorneys representatives were unable to do
so that day, she unsuccessfully attempted to file one day later;
ultimately she successfully filed the papers on June 26. Sheas
notice of appeal was therefore six days late when it was filed on
June 26.
C. It Was an Abuse of Discretion Not To Extend the
Deadline.
Shea also argues that an extension under Appellate Rule
502(b) should have been granted, whether the deadline was June 20
or June 25.12
Appellate Rule 502(b) states that an appellate court
may in its discretion . . . on motion of a party[] showing good
cause . . .[v]alidate an act done after the expiration of [a
specified] time period.13 This rule applies to a superior court
acting as an appellate court considering an administrative
appeal.14
At oral argument before us the state appeared to argue
that, instead of applying Appellate Rule 502(b)s good-cause
analysis, we have applied Appellate Rule 521s surprise or
injustice analysis to cases reviewing late-filed notices of
appeal. But there is no doubt that the express text of Appellate
Rule 502(b) permits an appellate court to validate an act done
after the expiration of the applicable time period, and we have
relied on Appellate Rule 502(b) in deciding whether intermediate
appellate courts abused their discretion by declining to extend
the time in which to file an appeal.15 It is therefore necessary
in this case to decide whether it was an abuse of discretion not
to grant Sheas request to extend the time to commence the appeal
under Appellate Rule 502(b).
The state alternatively contended at oral argument
before us that even if Appellate Rule 502(b) did apply, the
superior court implicitly found no good cause in this case. The
state contended that there was no good cause because the delay
was solely attributable to the errors of Shea and Priddle, who
waited until the last minute and then filed extremely deficient
pleadings.
We have considered whether it was an abuse of
discretion not to extend the time for filing notices of appeal in
two cases, Beavers v. Alaska Construction, Inc.16 and Dobrova v.
State, Department of Revenue, Child Support Services Division.17
We held in both cases that the superior court did not abuse its
discretion by declining to extend the time under Appellate Rule
502(b).18 Both are distinguishable. In Beavers we held that it
was not abuse of discretion to deny a motion for extension of
time when an attorney failed to file an appeal by the deadline.19
We noted that Beavers never contended below, nor does he contend
on appeal, that his attorney can demonstrate good cause for the
delay justifying relief under Rule 502(b).20 In this case Sheas
lawyer demonstrated good cause for the delay. Beavers is
therefore inapplicable.
In Dobrova we held that the superior court did not
abuse its discretion when it denied Dobrovas motion to accept an
untimely appeal.21 We reasoned that the superior court file [at
the time of the denial] unequivocally showed that [Dobrovas
attorney] received actual notice of the order on remand more than
thirty days before Dobrova sought to file his untimely appeal
from that order; and Dobrova failed to advance any facts to
dispute this showing or to justify his delay after receiving the
notice.22 But we also remanded for reconsideration of the motion
in light of supplemental information that might demonstrate good
cause.23 Here, although actual notice of the order was mailed to
Sheas representatives more than thirty days before they finally
filed the untimely appeal, they alleged unrebutted facts in the
superior court justifying most of the delay. Dobrova is
therefore inapplicable.
We disapprove any language in Dobrova that can be read
to require a movant under Appellate Rule 502(b) to show excusable
neglect in a motion to validate an act done after the expiration
of the time period.24 Former Appellate Rule 38(b), the
predecessor to Appellate Rule 502(b)(2), authorized a post-
expiration extension of time upon a showing of either cause or
excusable neglect.25 In 1980 Alaska Supreme Court Order 439
renumbered Appellate Rule 38(b) as Appellate Rule 502(b)(2), and
amended it to eliminate the excusable neglect language.26
Appellate Rule 502(b) now requires only a showing of good cause
for an out-of-time application for extension of time.
By comparison, Alaska Rule of Civil Procedure 6(b)
contains an explicit provision authorizing enlargement after
expiration of the specified period where the failure to act was
the result of excusable neglect. A movant under Appellate Rule
502(b)(2) is not required to make that showing.
Dobrova cited Hartland v. Hartland27 for the proposition
that a showing of excusable neglect was sufficient to warrant
relief under Alaska Rule of Civil Procedure 60(b).28 Hartland is
inapposite because the text of Civil Rule 60(b)(1), the rule at
issue there, explicitly authorizes relief from a judgment upon a
showing of excusable neglect. The text of Appellate Rule
502(b)(2) authorizes an extension of time upon a showing of good
cause.
Sheas motion for reconsideration demonstrated good
cause under Appellate Rule 502(b)(2) for a six-day extension of
the deadline to file her appeal. We must therefore determine
whether the court abused its discretion by denying the motion for
reconsideration.29
In Sheehan v. University of Alaska the superior court
denied Sheehans request for a second extension of time to which
the appellees had stipulated to file an opening brief in her
administrative appeal, and then dismissed the appeal.30 We held
that it was an abuse of discretion to dismiss the appeal because
the court acted arbitrarily in opt[ing] for the . . . extreme
approach of dismissing Sheehans appeal instead of a lesser
sanction.31 In so holding, we considered both that Sheehans
dilatory behavior was significant and that a superior court has
considerable discretion in these matters.32 But we ultimately
decided that proper resolution of this dispute hinges on
consideration of the precise reasons supplied by the trial court,
the lack of demonstrable prejudice suffered by the defendants or
the trial court, and the policy of hearing a case on the merits.33
Here the superior court did not give explicit reasons
for denying Sheas motion for reconsideration. Its order simply
stated that Shea failed to make a sufficient showing that the
[deadline] should not be enforced. We therefore consider the
prejudice to the state and to the court, and the policy of
hearing cases on their merits.
As in Sheehan, there is no plausible indication that
Sheas six-day delay prejudiced the state or the court. The state
alleged no prejudice below. Before us it contends only that it
would be prejudiced by the need to determine the amounts of
benefits that must be paid in the coming year, and the amounts of
contributions that must be made to PERS to fund those benefits.
This contention was waived because it was not asserted below,34
where Shea might have challenged the factual basis for any claim
of prejudice attributable to the delay. In any event, the states
argument is unpersuasive because it is unsupported by any facts,
disputed or otherwise, and because it is not self-evident that
the brief delay in this case materially hindered the states
ability to plan benefits and contributions for the coming year.
There is likewise no indication the court was
prejudiced. In Sheehan, although we noted that Sheehans constant
tardiness went beyond normal excusable oversight, we concluded
that nothing indicated that her dilatory behavior represented an
affront to the courts authority.35 The court identified no
prejudice in its orders denying Sheas first motion and her motion
for reconsideration. Sheas behavior was less egregious than that
which we found insufficient in Sheehan.
[T]he law favors deciding cases on their merits.36
There is no reason not to adhere to that policy in this case,
given the brief delay, the prima facie showing of good faith
attempts to file in a timely manner, and the absence of
prejudice.
The state has listed alleged deficiencies in the notice
of appeal and the attempts to file and serve.37 Considering the
brevity of the delay and the absence of prejudice, these
deficiencies have no bearing on the good cause issue in this
case. Moreover, despite any deficiencies, the appeal papers
unsuccessfully submitted June 20 and June 21 demonstrate the good
faith of Sheas representatives in trying to file a timely appeal.
Shea also argues that it was an abuse of discretion not
to relax Appellate Rule 602(a)(2) under Appellate Rule 521, which
allows rules to be relaxed or dispensed with by the appellate
courts where a strict adherence to them will work surprise or
injustice. Given our discussion of Appellate Rule 502(b)(2), it
is not necessary to consider whether it was an abuse of
discretion to decline to relax Appellate Rule 602(a)(2) under
Appellate Rule 521.
IV. CONCLUSION
We therefore confirm our November 7, 2008 order that
REVERSED the order denying Sheas motion for reconsideration and
that REMANDED this matter to the superior court for further
proceedings.
APPENDIX A
In the Supreme Court of the State of Alaska
Shirley L. Shea, )
) Supreme Court No. S-12869
Appellant, )
) Order
v. )
)
State of Alaska, Department of )
Administration, Division of )
Retirement and Benefits, )
)
Appellee. ) Date of Order: November 7,
2008
)
Trial Court Case # 3AN-07-8162 CI
Before: Fabe, Chief Justice, Matthews, Eastaugh, Carpeneti,
and Winfree, Justices.
This case concerns the timeliness of an administrative
appeal appellant filed in the superior court in June 2007. The
appeal should have been commenced June 20, 2007. After
unsuccessful attempts to file beginning June 20, the appeal was
not successfully filed until June 26. The superior court
ultimately rejected the appeal as untimely on the ground
appellant failed to make a sufficient showing that the appellate
rules should not be enforced. Appellant appeals that ruling to
us.
Upon consideration of the parties briefs, the record on
appeal, and the oral arguments presented November 5, 2008,
It Is Ordered:
1. The superior court order of August 23, 2007 denying
appellants motion for reconsideration is Reversed. Appellant
demonstrated good cause under Appellate Rule 502(b)(2) for an
enlargement of time of six days in which to commence or perfect
the appeal, and it was an abuse of discretion not to grant the
motion for reconsideration and accept the notice of appeal. It
was therefore error to dismiss the appeal.
2. This matter is Remanded to the superior court for
further proceedings.
3. An opinion elaborating on the basis for this order will
be issued.
Entered at the direction of the court.
Clerk of the Appellate Courts
/s/ Tiffany Mu¤oz
Tiffany Mu¤oz, Deputy Clerk
_______________________________
1 The clerks mistaken belief that Sheas appeal should
have been filed with the Alaska Workers Compensation Board may
have been attributable to aspects of Sheas notice of appeal,
including an erroneous reference to proceedings . . . before the
Alaska Workers Compensation Board, failure to identify the agency
from which the appeal was being taken, and references to
employment-related disability. The record does not contain
copies of the papers the employees were said to have tried to
file on June 20, but does contain copies of the papers the
employees attempted to file on June 21.
2 The appeal papers did not include the $750 cost bond or
cash deposit required by Alaska Appellate Rule 602(e)-(g).
3 Our November 7 order is attached as Appendix A.
4 Cameron v. Hughes, 825 P.2d 882, 884 n.2 (Alaska 1992)
(holding that superior courts interpretation of appellate rule
is reviewed de novo).
5 City of Kodiak v. Parish, 986 P.2d 201, 202 (Alaska
1999) (holding that we apply independent judgment standard of
review when interpreting court rules); Ford v. Municipality of
Anchorage, 813 P.2d 654, 655 (Alaska 1991) (stating that [s]ince
this case involves the interpretation of a civil rule, we
exercise our independent judgment).
6 Ford, 813 P.2d at 655 (citing Guin v. Ha, 591 P.2d
1281, 1284 n.6 (Alaska 1979)).
7 Dobrova v. State, Dept of Revenue, Child Support Servs.
Div., 171 P.3d 152, 156 (Alaska 2007) (holding that superior
court did not abuse its discretion by declining to extend time to
file appeal); Sheehan v. Univ. of Alaska, 700 P.2d 1295, 1297
(Alaska 1985) (holding that it was abuse of discretion for
superior court to decline to extend time to file appellate
brief).
8 Dobrova, 171 P.3d at 156 (quoting Sheehan, 700 P.2d at
1297).
9 Appellate Rule 502(c) was amended, effective October
15, 2007. Supreme Court Order 1639. The version of the rule in
effect when Shea filed her notice of appeal read:
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 other paper is served upon the
party by mail, three days shall be added to
the prescribed period. This paragraph does
not extend any time period calculated from a
date under Civil Rule 58.1 or Criminal Rule
32.3.
10 Appellate Rule 502(a) states, in pertinent part, The
last days of the period so computed is to be included, unless it
is a Saturday, Sunday or legal holiday, in which event the period
runs until the end of the next day which is neither Saturday,
Sunday nor a holiday.
11 Shea also argued in the superior court that Appellate
Rule 502(a) extended her deadline by one day because Memorial
Day should have been excluded. Appellate Rule 502(a) states in
pertinent part that [w]hen the period of time prescribed or
allowed is less than seven days, intermediate . . . holidays
shall be excluded in the computation. (Emphasis added.) Because
the filing period was thirty days, and not less than seven days,
Appellate Rule 502(a) was plainly inapplicable.
12 Shea did not move in the superior court for an
extension of time under Appellate Rule 502(b). Her failure to
ask for relief under that rule in the superior court does not
preclude her from relying on it here. The plain error rule
allows us to review issues not raised in the superior court if an
obvious mistake has been made which creates a high likelihood
that injustice has resulted. Tenala, Ltd. v. Fowler, 921 P.2d
1114, 1124 (Alaska 1996) (quoting Miller v. Sears, 636 P.2d 1183,
1189 (Alaska 1981)) (holding that it was plain error to dismiss
counter- and cross-claims with prejudice because opposing parties
would not have been prejudiced by less severe sanction of
dismissal without prejudice). All of the factual circumstances
requiring relief under Appellate Rule 502(b) were established in
Sheas superior court motion papers arguing other theories for
allowing the appeal.
Notwithstanding our sympathy for courts when the
lawyers fail to cite controlling authority, it would be a grave
injustice to foreclose an administrative appeal under the factual
circumstances advanced by Shea in the court below.
13 Appellate Rule 502(b) reads:
Rule 502. TimeComputation and Extension.
. . . .
(b) Extensions of Time. When by these
rules or by a notice given thereunder or by
order of the appellate court an act is
required or allowed to be done at or within a
specified time, the appellate court may in
its discretion, either on motion of a party,
showing good cause, or sua sponte:
(1) Extend the time period, either
before or after its expiration or
(2) Validate an act done after the
expiration of the time period.
Motions to extend a time period, or to
validate an act done after the expiration of
the time period, must comply with Rule 503.
Time periods specified in the Appellate
Rules, including time periods for doing an
act or filing a document in the trial court,
may be extended only by the appellate courts
and not by the trial court. In a matter
requesting review of or appealing a criminal
conviction or sentence, this rule does not
authorize an appellate court, or the superior
court acting as an intermediate appellate
court, to validate the filing of a notice of
appeal, petition for review, or petition for
hearing more than 60 days after the
expiration of the time specified in the rule
or statute or in the last extension of time
previously granted.
14 Appellate Rule 601(c) states, [o]n any point not
addressed in [the section containing rules regarding the superior
court as an appellate court], procedure in appeals to the
superior court shall be governed by the provisions of Parts Two
and Five of these rules . . . .
15 Dobrova v. State, Dept of Revenue, Child Support Servs.
Div., 171 P.3d 152 (Alaska 2007); Beavers v. Alaska Constr.,
Inc., 787 P.2d 643 (Alaska 1990).
16 Beavers v. Alaska Constr., Inc., 787 P.2d 643 (Alaska
1990).
17 Dobrova v. State, Dept of Revenue, Child Support Servs.
Div., 171 P.3d 152 (Alaska 2007).
18 Dobrova, 171 P.3d at 158; Beavers, 787 P.2d at 644-45.
19 Beavers, 787 P.2d at 644.
20 Id. (emphasis in original).
21 Dobrova, 171 P.3d at 158.
22 Id. at 157.
23 Id. at 159.
24 Id. at 157-58.
25 Alaska Supreme Court Order No. 439 (Oct. 21, 1980);
Alaska Supreme Court Order No. 259 (Nov. 5, 1976).
26 Alaska Supreme Court Order No. 439 (Oct. 21, 1980).
27 Hartland v. Hartland, 777 P.2d 636, 644-45 (Alaska
1989).
28 Dobrova, 171 P.3d at 157.
29 A motion for reconsideration normally may not raise
arguments not made previously. Cf. Katz v. Murphy, 165 P.3d 649,
661 (Alaska 2007) (Alaska Civil Rule 77(k), which governs motions
for reconsideration, does not allow the moving party to raise new
grounds as a basis for reconsideration; instead the rule only
allows reconsideration of points that were overlooked or
misconceived despite having been properly raised.). But here the
court denied Sheas original motion without prejudice and
expressly invited a second motion. Although Shea styled the
second motion a motion for reconsideration, that motion
permissibly raised new arguments and new facts in light of the
courts invitation.
30 Sheehan v. Univ. of Alaska, 700 P.2d 1295, 1295-96
(Alaska 1985).
31 Id. at 1298.
32 Id.
33 Id.
34 Lee v. State, 141 P.3d 342, 352 (Alaska 2006) (citing
Miller v. Sears, 636 P.2d 1183, 1189 (Alaska 1981) (We decline to
review claims not raised below except to the extent that they may
constitute plain error. Plain error exists where an obvious
mistake has been made which creates a high likelihood that
injustice has resulted.)).
35 Sheehan, 700 P.2d at 1298.
36 Id.
37 The alleged deficiencies include failure to identify
the agency that was a party to the appeal before the [Office of
Administrative Hearings] or show service on the head of the
agency as required by Appellate Rule 602(c)(1)(E); [t]he notice
erroneously stated that the [Office of Administrative Hearings]
decision from which the appeal was taken was issued on April 6,
2007; [t]he notice was not accompanied by a cost bond as required
by Appellate Rule 602(c)(1)(C) or a motion for extension of time
to file the cost bond under Appellate Rule 602(c)(2); and [t]he
designation of transcript filed with the notice erroneously
referred to proceedings before the Alaska Workers Compensation
Board, appeals from which are outside the jurisdiction of the
superior court.
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