Opinion
No. F02-CP05-003090-A
June 21, 2007
MEMORANDUM OF DECISION RE MOTION TO DISMISS
This matter is an administrative appeal, brought pursuant to provisions of the Uniform Administrative Procedures Act, (UAPA) located generally at Conn. Gen. Stat. § 4-166 et seq., from the Department of Children and Families' (the Department) determination that "neglect" was substantiated with respect to the captioned minor. The Department filed a motion to dismiss the appeal for lack of subject matter jurisdiction. The claimed bases is that the appeal was neither served nor filed in a timely fashion. Argument on the motion was heard June 13, 2007. Counsel for the appellant filed an opposition on June 20, 2007 with leave of court.
Facts
For purposes of this motion, the following uncontested facts are relevant.
In October 2006, the appellants had an administrative hearing at the Department at which they contested the "neglect" substantiation regarding their daughter, the captioned minor. On January 8, 2007, the final decision of the Department, affirming the substantiation, was mailed, via certified mail, to counsel for the appellants. The decision was received on January 11, 2007. The appeal from that decision was filed on either February 22, 2007 or February 23, 2007. The Department was served with a true copy of the appeal on March 8, 2007.
Counsel for the appellants advised the court that he filed the appeal on February 22, 2007 but that the clerk's office required a bank check rather than counsel's Trustee check which he had provided to the clerk's office. He left the appeal with the clerk and submitted a bank check the following day, February 23, 2007. The appeal was date stamped as filed February 23, 2007.
Discussion
The Department avers that the appeal was neither filed nor served within the statutory framework. The appellants argue: (1) that the appeal was timely filed and that CGS § 4-183(c) does not require that both the filing of the appeal with the court and service upon the agency occur within 45 days; (2) that compliance with the statutory time frame is not required insofar as this court enjoys subject matter jurisdiction independent of the UAPA; (3) that equitable considerations should preclude strict enforcement of the statutory time frames. For the reasons set forth below, the Motion to Dismiss is GRANTED.
The Department's memorandum of law addresses only the timing of the filing of the appeal. However, at argument, the Department also relied upon the timing of the service upon the Department as a basis upon which this court should conclude it lacks subject matter jurisdiction.
Conn. Gen. Stat. § 4-183(c) provides in pertinent part:
(c)(1) Within forty-five days after mailing of the final decision under section 4-180 . . . a person appealing as provided in this section shall serve a copy of the appeal on the agency that rendered the final decision at its office or at the office of the Attorney General in Hartford and file the appeal with the clerk of the superior court for the judicial district of New Britain or for the judicial district wherein the person appealing resides . . . Within that time, the person appealing shall also serve a copy of the appeal on each party listed in the final decision at the address shown in the decision, provided failure to make such service within forty-five days on parties other than the agency that rendered the final decision shall not deprive the court of jurisdiction over the appeal.
The operative start date for calculating the passage of the 45 days is January 8, 2007, the date of the mailing. Royce v. FOIC, 1777 Conn. 584 (1979). February 22, 2007 is the 45th day contemplated under the statute when calculated as directed by the Supreme Court in Royce. Id. Although there was a question as to whether the appeal was filed on February 22, 2007 or February 23, 2007, resolution of this issue is not necessary because resolution of the other issue is dispositive.
Appellant argues that the use of a partially incorrect address vitiates the use of January 8, 2007 as the operative starting point on the theory that the mailing did not comply with the statute. He cites no authority for this proposition. However, even assuming an operative date of January 11, 2007, the date of receipt and the date by which any prejudice resulting from the incorrect zip code was cured, the appeal was not served on the Department within 45 days and the outcome remains the same.
Whether both the filing and the service upon the agency is required within 45 days is an issue that has been addressed consistently, repeatedly and dispositively by our Appellate and Supreme Courts. Glastonbury Volunteer Ambulance Ass'n., Inc. v. FOIC, 227 Conn. 848 (1993); Pine v. Department of Public Health, 100 Conn.App. 175 (2007); Searles v. Dept. of Social Services, 96 Conn.App. 511 (2006). The analysis begins with a recognition that administrative appeals are in all respects creatures of statute.
The failure of appellant's counsel to cite any of these precedents, which run directly contrary to the position he advocates, is troubling and an apparent abrogation of his obligations as an officer of this court. Rules of Professional Conduct 3.3(a)(2).
There is no absolute right of appeal to the courts from a decision of an administrative agency . . . The UAPA grants the Superior Court jurisdiction over appeals of agency decisions only in certain limited and well delineated circumstances." (Internal quotation marks omitted.) Id., 442. "It is a familiar principle that a court which exercises a limited and statutory jurisdiction is without jurisdiction to act unless it does so under the precise circumstances and in the manner particularly prescribed by the enabling legislation. (Internal quotation marks omitted.)Pine v. Department of Public Health, 100 Conn.App. 175 (2007), quoting, Searles v. Dept of Social Services, 96 Conn.App. 511, 513, 900 A.2d 598 (2006). Failure to meet the timing requirements for service and/or filing of an administrative appeal therefore renders the court without subject matter jurisdiction. Glastonbury Volunteer Ambulance Ass'n., Inc. v. FOIC, 227 Conn. 848 (1993); Pine v. Dept. of Public Health, supra, at 183; Searles v. Dept of Social Services, supra, at 514.
As to what precisely is required under CGS § 4-183(c), our Supreme Court in Glastonbury Volunteer Ambulance Ass'n., supra, held:
The plain language of §§ 4-183(c) . . . compels the conclusion that both the filing and the service of the appeal must be accomplished within the forty-five day period. The first sentence of the section begins with the adverbial phrase, "[w]ithin forty-five days after mailing of the final decision." The subject of the sentence is "person." Two verbs then follow: "serve" and "file." "Serve" is preceded by "shall," but "file" is not. The plainly evident intent, however, is that "shall" is to be read together with both "serve" and "file," and that the adverbial phrase, "within forty-five days," modifies both verbs. This conclusion becomes even clearer upon reading the second sentence, which begins with the adverbial phrase, "[w]ithin that time." Thus, throughout the first two sentences there is an emphasis on completion of required acts within forty-five days.
Id. at 852.
Insofar as the appeal was not served on the Department until March 8, 2007, the provisions of CGS § 4-183 were not met. The appeal is dismissed.
The appellants seek an equitable tolling of the statutory time limits. However, where statutory time limits implicate the court's subject matter jurisdiction, no such equitable tolling can occur. Pine v. Dept. of Public Health, supra. at 182. The appellant further contends that the court already has subject matter jurisdiction insofar as Patricia I. is herself within the jurisdiction of this court. Again, he cites no authority for such a novel proposition which is essentially an effort to bootstrap an administrative appeal to a child protection matter. Absent some statutory provision to the contrary, this court sees no basis upon which this court could or should ignore the clear applicability of the above-cited precedents.