Bartenders and More v. Colorado Department of Labor and Employment

     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                 SUMMARY
                                                          December 21, 2023

                               

No. 22CA2006, Bartenders v Department of Labor — Labor and
Industry — Colorado Wage Claim Act — Appeals of
Administrative Actions — Deadline to Commence Action for
Judicial Review

     A division of the court of appeals considers the novel issue of

whether an appeal of an agency decision is timely where the

applicable statute specifies that the time for appealing begins to run

when the agency mails its decision, the appellants could not discern

from the decision when it was mailed, and the appellants’ appeal

would have been late if the agency had mailed the decision on the

date it was issued. The division holds that, under these

circumstances, the appellants’ appeal is not untimely even though

it was filed past the deadline premised on the issuance date.
     The division also considers and rejects the agency’s argument

that the appellants’ actual notice of the agency decision started the

time for their appeal.

     Accordingly, the judgment is reversed, and the division

remands the case to the district court to adjudicate the appellants’

appeal on the merits.
COLORADO COURT OF APPEALS                                        

Court of Appeals No. 22CA2006
City and County of Denver District Court No. 22CV31392
Honorable Karen L. Brody, Judge


Bartenders and More, a Colorado corporation, and Kristina Eccles,

Plaintiffs-Appellants,

v.

Colorado Department of Labor and Employment, Division of Labor Standards
and Statistics, a state administrative agency,

Defendant-Appellee.


                         JUDGMENT REVERSED AND CASE
                          REMANDED WITH DIRECTIONS

                                    Division VI
                           Opinion by JUDGE LIPINSKY
                          Welling and Gomez, JJ., concur

                          Announced December 21, 2023


Jennifer L. Gokenbach, Denver, Colorado, for Plaintiffs-Appellants

Philip J. Weiser, Attorney General, Evan Brennan, Assistant Attorney General,
Denver, Colorado, for Defendant-Appellee
¶1    This case presents a novel question in Colorado: whether an

 appeal of an agency decision is timely where the applicable statute

 specifies that the time for appealing begins to run when the agency

 mails its decision, the aggrieved party could not discern from the

 decision when it was mailed, and the aggrieved party filed its appeal

 after the designated time if the agency mailed the decision on the

 date it was issued. We also consider the related question whether,

 under these circumstances, the aggrieved party’s actual notice of

 the agency decision started the time for appealing the decision.

¶2    Plaintiffs, Bartenders and More and Kristina Eccles (jointly,

 Bartenders), appeal the district court’s order dismissing their

 complaint for judicial review of the decision (the Decision) of the

 Colorado Department of Labor and Employment, Division of Labor

 Standards and Statistics (the Division) that Bartenders is liable for

 fines under the Colorado Wage Claim Act, sections 8-4-101 to -125,

 C.R.S. 2023. In its order, the district court found that “Bartenders

 failed to timely file [its] complaint for judicial review . . . within the

 35 day deadline [specified in section 8-4-111.5(5), C.R.S. 2023],




                                      1
 depriving [the] Court of subject matter jurisdiction” over Bartenders’

 appeal.

¶3    Bartenders argues that the district court erred by (1) finding

 that the Decision informed Bartenders that it was mailed on April

 12, 2022, and, thus, that Bartenders’ time to appeal began to run

 on that date; and (2) deciding, in the alternative, that Bartenders’

 receipt of actual notice of the Decision via email on April 12, 2022,

 was sufficient to start the clock for the appeal period. We agree

 with Bartenders’ arguments and reverse.

            I.   Background Facts and Procedural History

¶4    Bartenders provides staffing for private and corporate events.

 On November 5, 2021, the Division issued a citation and notice of

 assessment to, and imposed a $10,900 fine against, Bartenders for

 its alleged violation of the Wage Claim Act. (This appeal does not

 concern the merits of the Division’s allegations against Bartenders,

 and we take no position on them.)

¶5    Bartenders appealed the citation and fine, and a hearings

 officer of the Division conducted an evidentiary hearing. (The

 Decision refers to the hearing officer as a “hearings officer,” so we


                                    2
 do the same.) On April 12, 2022, the hearings officer issued the

 Decision, in which he affirmed the earlier assessment, in part, and

 reduced the fine to $9,900. The first page of the Decision specified

 a decision date, in bold:




¶6    (Bartenders’ mailing and email addresses are redacted from

 the images included in this opinion.)

¶7    Below the signature of the hearings officer, a section of the

 Decision, also in bold, addressed the appeal period:




                                   3
¶8     A certificate of service immediately follows the “APPEAL AND

  OTHER RIGHTS” section, followed by the hearings officer’s

  signature:




  (The record does not indicate IDS’s relationship to the Division —

  for example, whether IDS is a state agency, a department within the

  Division, or a third-party contractor.)

¶9     Bartenders received the Decision by mail on April 15, 2022.

  The record contains no further information regarding the mailing

  date, such as a postmark on the envelope containing the Decision

  that Bartenders received.

¶ 10   Bartenders does not dispute that the Division also emailed the

  Decision to Bartenders on April 12, 2022, and, therefore,

  Bartenders received actual notice of the Decision on that date. Like

  the “APPEAL AND OTHER RIGHTS” section of the Decision, the

  Division’s transmittal email mentions the time period to appeal:




                                     4
  Like the Decision, the email does not state the date on which the

  Decision was mailed.

¶ 11   At 12:14 a.m. on May 18, 2022 — thirty-six days following the

  date of the Decision — Bartenders filed its complaint for judicial

  review of the Decision pursuant to section 8-4-111.5(5). The

  Division moved to dismiss the complaint, arguing that it was

  untimely and, therefore, that the district court lacked jurisdiction

  over Bartenders’ appeal.

¶ 12   The district court agreed with the Division, stating that

  “Bartenders failed to timely file [its] complaint for judicial review

  under . . . [section 8-4-111.5(5)] within the 35 day deadline,

  depriving [the] Court of subject matter jurisdiction” over the appeal.

  The district court supported its decision with its finding that the


                                      5
  statements in the Decision, including the certificate of service,

  apprised Bartenders that the Decision was mailed on April 12,

  2022. The district court also found, in the alternative, that

  Bartenders’ receipt of actual notice of the Decision via email on

  April 12, 2022, was sufficient to start the time for Bartenders’

  appeal on that date.

                              II.   Analysis

                         A.   Standard of Review

¶ 13   Whether and when notice was mailed is a question of fact.

  See EZ Bldg. Components Mfg., LLC v. Indus. Claim Appeals Off., 

 (Colo. App. 2003). We review findings of fact for clear

  error, “meaning that we won’t disturb such findings if there is any

  evidence in the record supporting them.” Woodbridge Condo. Ass’n

  v. Lo Viento Blanco, LLC, 

, 

, 606,

  aff’d, 

, 

.

¶ 14   But we review de novo the district court’s conclusion that the

  mailing date of the Decision can be discerned from the text of the

  Decision. See GMAC Mortg. Corp. v. PWI Grp., 

  (Colo. App. 2006) (“The interpretation of a written document

  presents a question of law subject to de novo appellate review.”).
                                     6
  We are not bound by the district court’s interpretation of the

  Decision. See Colard v. Am. Fam. Mut. Ins. Co., 

  (Colo. App. 1985) (holding that an appellate court is not bound by a

  trial court’s interpretation of a written document).

¶ 15   We also review de novo the district court’s reading of section 8-

  4-111.5(5), see MDC Holdings, Inc. v. Town of Parker, 

 (Colo. 2010), and the district court’s “determination of [its]

  subject matter jurisdiction” over Bartenders’ appeal, see Medina v.

  State, 

 (Colo. 2001).

                            B.   Applicable Law

¶ 16   Section 8-4-111.5(5) specifies the deadline for appealing the

  Division’s decisions. The statute states, in relevant part, that “[a]ny

  party to the administrative proceeding may appeal the hearing

  officer’s decision only by commencing an action for judicial review

  in the district court of competent jurisdiction within thirty-five days

  after the date of mailing of the decision by the [D]ivision.”

  § 8-4-111.5(5) (emphasis added).




                                      7
           C.   Because Bartenders Could Not Discern When
                 the Decision Was Mailed, It Did Not Know
                        the Deadline for Its Appeal

¶ 17   Bartenders argues that it could not discern the date on which

  the Decision was mailed and, therefore, it did not know the deadline

  for its appeal. Bartenders notes that the certificate of service in the

  Decision only indicates “the date that the hearing officer handed the

  Decision to the IDS staff, not the date that the staff put the

  Decision in the mail.” In addition, Bartenders asserts that the

  statement in the Decision and in the transmittal email that the

  deadline to appeal is thirty-five days from “the decision date” is not

  an accurate statement of the law. We agree.

¶ 18   To resolve this appeal, we need not decide when the Division

  mailed the Decision or whether the record supports the district

  court’s determination of that date. We know the Decision was

  mailed on one of four dates — April 12, 2022; April 13, 2022; April

  14, 2022; or April 15, 2022 — because the Decision is dated April

  12, 2022, and Bartenders received the Decision in the mail on April

  15, 2022. Moreover, we need not decide whether an individual who

  provides a document to a third party for mailing on a specified date


                                     8
  can accurately state in a certificate of service that the document

  was mailed on such date. (We also need not decide whether the

  date on which IDS mailed a Division decision can constitute “the

  date of mailing of the decision by the [D]ivision.” § 8-4-111.5(5)

  (emphasis added).)

¶ 19   Rather, we must determine whether the Decision contained

  the date of the event — mailing by the Division — that starts the

  time for an appeal of a Division decision under section 8-4-111.5(5),

  such that Bartenders could discern from the Decision the deadline

  for its appeal.

¶ 20   The Division offers four related arguments in support of its

  contention that the Decision contained a mailing date of April 12,

  2022. The Division argues, first, that the mailing date appears on

  the face of the Decision; second, that the date appears in the

  certificate of mailing at the end of the Decision; third, that the

  Division provided proof that it submitted the Decision to IDS for

  processing on that date (i.e., a screenshot showing that the hearing

  officer placed the Decision in a file for processing as outgoing mail);

  and fourth, that Bartenders could discern the mailing date from the


                                     9
  statement in the Decision and the Division’s transmittal email that

  the Decision “is final unless you appeal it within 35 calendar days

  of the decision date listed above.”

¶ 21   The Division’s first argument fails because the date of the

  Decision was not necessarily the date on which the Decision was

  mailed. There is a material distinction between issuing an

  administrative decision and mailing it. Cf. Fontanari, Tr. of

  Fontanari Fam. Revocable Tr. v. Colo. Mined Land Reclamation Bd.,

  

, ¶ 24, 

, 623 (interpreting “issuance” to

  mean “sending out or distributing officially”). The mere inclusion in

  the Decision of the date on which the hearings officer issued it did

  not communicate when the Division mailed the Decision.

¶ 22   We also reject the Division’s second argument — that the date

  on which the hearings officer provided the Decision to IDS for

  mailing means that the Decision was mailed on that date. Under

  section 8-4-111.5(5), it is the “mailing of the decision by the

  [D]ivision” — not the date on which the Division provides the

  Decision to a third party for mailing — that triggers the deadline to

  appeal. For this reason, a decision of the Division must include the


                                    10
  date on which the Decision was placed in the mail, and not merely

  the date of an intermediate step in the mailing process. See, e.g.,

  Theede v. U.S. Dep’t of Lab., 

, 1266 (10th Cir. 1999)

  (“Service by mail is complete upon mailing.” (quoting Fed. R. Civ. P.

  5(b) (1999))).

¶ 23   For this same reason, the Division’s third argument — that

  “the Division provided proof” that it submitted the Decision to IDS

  — also does not establish the date on which the Division mailed the

  Decision. Such “proof” is a screenshot from an unidentified web

  page that the Division attached to its motion to dismiss:




¶ 24   Like the certificate of service in the Decision, the screenshot

  does not contain a mailing date. It merely refers to the hearings

  officer’s request to IDS to mail “19-0005 (second investigation)

  Bartenders and More et al.” (And even if the screenshot contained
                                    11
  the date on which the Decision was mailed, the Division did not

  provide the screenshot to Bartenders until after Bartenders had

  filed its complaint for judicial review and after the Division’s urged

  deadline for doing so had passed.)

¶ 25   In addition, we reject the Division’s fourth argument that,

  regardless of the mailing date, Bartenders knew from the statement

  regarding the appeal period in the Decision and the transmittal

  email that the deadline for appealing the Decision was thirty-five

  days from April 12, 2022. The statement that “[t]his decision is

  final unless you appeal it within 35 calendar days of the decision

  date listed above” is meaningless, however, in the absence of a

  mailing date. Section 8-4-111.5(5) specifies that an appeal of a

  decision of the Division must be initiated “within thirty-five days

  after the date of mailing of the decision by the [D]ivision” — not

  within thirty-five days of the date of the decision. In the same way

  that “[a] rule may not modify or contravene an existing statute,” a

  statement in an administrative decision may not modify or

  contravene statutory text. Colo. Consumer Health Initiative v. Colo.




                                    12
  Bd. of Health, 

 (Colo. App. 2010) (citing Ettelman

  v. Colo. State Bd. of Acct., 

 (Colo. App. 1992)).

¶ 26   For these reasons, we hold that the district court clearly erred

  by finding that the Decision contained the mailing date of the

  Decision and, thus, Bartenders could discern the deadline for its

  appeal.

             D.   Bartenders’ Actual Notice of the Decision
                    Did Not Start the Time for Its Appeal

¶ 27   The Division asserts that, even if the Decision did not contain

  the date on which it was mailed, Bartenders’ time to appeal began

  to run when it received actual notice of the Decision via email on

  April 12, 2022. We reject this contention based on the plain

  language of section 8-4-111.5(5) and principles of fundamental

  fairness and due process.

¶ 28   The parties devote a considerable portion of their arguments

  on actual notice to whether section 8-4-111.5(5) is a “jurisdictional”

  statute. Bartenders asserts that section 8-4-111.5(5) is

  jurisdictional and, therefore, the Division must strictly comply with

  what Bartenders argues is a mailing requirement in the statute.

  The Division responds that the statute is not jurisdictional and, for

                                    13
  that reason, an aggrieved party’s receipt of actual notice of a

  Division decision is sufficient to start the time for the appeal of that

  decision. For two reasons, this jurisdictional debate does not aid

  our resolution of whether actual notice, in the absence of a mailing

  date in the Division decision, can start an aggrieved party’s time to

  appeal that decision.

¶ 29   First, the parties mean two different things when arguing

  whether section 8-4-111.5(5) is “jurisdictional” — and both parties

  are partially correct. We agree with Bartenders that section

  8-4-111.5(5) is jurisdictional in the sense that, once the time to

  appeal — thirty-five days from mailing — passes, the district court

  lacks jurisdiction over an appeal of the Division’s decision. See,

  e.g., Speier v. Indus. Claim Appeals Off., 

 (Colo.

  App. 2008) (holding that, because “[t]he statutory time periods

  within which workers’ compensation petitions to review must be

  filed are jurisdictional,” the Industrial Claim Appeals Office lacks

  jurisdiction over petitions for review filed after the statutory time

  period has run); Sanchez v. Straight Creek Constructors, 

  App. 19, 21, 

 (1978) (characterizing appellate

  deadlines as “unmistakably jurisdictional in nature”).

¶ 30   We also agree with the Division that mailing is not a

  jurisdictional prerequisite to a party’s ability to file an appeal of a

  Division decision. Section 8-4-111.5(5) does not condition the

  finality, or a party’s right to file an appeal, of a Division’s decision

  on the mailing of that decision. Indeed, nothing in the statute says

  that the Division must mail its decisions, that its decisions are only

  final upon mailing, or that a party may only file an appeal of a

  Division decision if the Division has mailed it.

¶ 31   Second, and more importantly, the contours and limitations of

  the jurisdictional nature of section 8-4-111.5(5) have no bearing on

  whether actual notice can substitute for notice by mail to start the

  time to appeal a decision of the Division. Instead, it is the plain

  language of the statute that controls our analysis.

¶ 32   The plain and ordinary meaning of the language in section

  8-4-111.5(5) is that a party must commence its appeal of a Division

  decision within “thirty-five days after the date of mailing of the

  decision by the [D]ivision.” (Emphasis added.) Because this


                                      15
  language is unambiguous, we construe it as written and apply its

  words in accordance with their plain and ordinary meaning. See

  Edwards v. New Century Hospice, Inc., 

, 

; see also 84 Lumber Co. v. Cont’l Cas. Co., 

 (5th Cir. 2019) (holding that the provision of notice by email

  does not satisfy an unambiguous statutory provision requiring that

  notice “shall be served by mailing the same by registered or certified

  mail” (quoting 

 (2023))). Thus, providing an

  aggrieved party with a decision of the Division by actual notice

  alone cannot start the appeal period because section 8-4-111.5(5)

  unambiguously states that the appeal period only begins to run

  when the Division mails its decision.

¶ 33   Moreover, we cannot read section 8-4-111.5(5) without

  considering principles of fundamental fairness and due process.

  The Division cannot start the time for an appeal of one of its

  decisions by mailing the decision unless that date is communicated

  to the aggrieved party. Otherwise, that party would lose its

  appellate rights if it filed its appeal more than thirty-five days




                                     16
  following the mailing date — even though the Division never

  disclosed when it mailed the decision.

¶ 34   We next turn to Feldewerth v. Joint School District 28-J, 

 (Colo. App. 1999), which is central to the parties’

  arguments on actual notice. The decision underscores how due

  process principles are integral to our interpretation of section 8-4-

  111.5(5). In Feldewerth, a division of this court examined

  Colorado’s Teacher Employment, Compensation, and Dismissal Act

  of 1990, which protects teachers’ due process property interests in

  their employment. 

. At the time of the events in

  Feldewerth, section 22-63-302(2), C.R.S. 1997, required a school

  district to deliver a notice of intent and related materials to a

  teacher by certified mail after deciding to dismiss the teacher. In

  addition, the statute provided that, if the teacher wanted to contest

  the dismissal, the teacher was required to file a notice of objections

  and a request for a hearing “within seven days of the teacher’s

  receipt of the notice of intended dismissal.” Feldewerth, 

 (emphasis added) (citing § 22-63-302(3), C.R.S. 1997).




                                     17
¶ 35   In Feldewerth, the school district had dismissed a teacher, but

  it had not provided the teacher with notice by certified mail as

  section 22-63-302(2) required. Instead, the school district, with the

  consent of the teacher’s attorney, provided the notice of termination

  to the teacher’s attorney. Feldewerth, 

. Several

  months after his attorney had received notice, the teacher appealed

  his dismissal to the district court, asserting that the school district

  was required to strictly comply with the certified mailing

  requirement and that its failure to do so “meant that the board did

  not have jurisdiction to proceed.” 

 The district court vacated the

  school district’s dismissal decision on the grounds that the school

  district had not provided the teacher with proper notice of its

  termination decision and, therefore, “did not properly invoke

  jurisdiction over the dismissal action.” 

¶ 36   On appeal, a division of this court held that the certified

  mailing requirement in section 22-63-302(2), C.R.S. 1997, was

  intended to “ensure compliance with due process mandates” and,

  specifically, “to provide proof of service and of the date of service, so

  that no controversy respecting the time within which the teacher is


                                     18
  to file objections and to request a hearing could arise.” Feldewerth,

  

.

¶ 37   Nonetheless, the division held that the teacher’s due process

  rights had not been violated. 

 Because the teacher’s attorney

  had agreed in advance to accept delivery of the school district’s

  documents, due process was satisfied even though the school

  district had not complied with the statutory certified mail

  requirement. 

 Thus, the teacher received sufficient notice of his

  deadline to contest the school district’s dismissal decision. He

  knew that such deadline began to run from the date of his “receipt

  of the notice” and that his attorney had agreed in advance to accept

  the school district’s documents and thereby bypass the statutory

  certified mailing requirement.

¶ 38   In contrast, Bartenders’ receipt of actual notice of the Decision

  on April 12, 2022, did not inform it when the time for its appeal

  began to run because, as we explain above, the Decision did not

  contain a mailing date. The mailing of the Decision was the only

  event that could start the time for Bartenders’ appeal. Without this

  critical information, Bartenders could not determine the deadline


                                    19
  for its appeal. See Schmidt v. Commonwealth, 

  (Pa. 1981) (observing that, if a taxpayer does not receive notification

  of the mailing date of the agency decision that commences the

  appeal period, he or she “can have no reliable basis for knowing the

  number of days remaining in which to file a petition for review”).

¶ 39   Under the Division’s reasoning, an administrative agency

  could force an aggrieved party to guess the deadline for the party’s

  appeal of the agency’s decision. But as a matter of fundamental

  fairness, a party aggrieved by the decision of an administrative

  agency must be provided with notice of the deadline for its appeal.

  See, e.g., Patterson v. Indus. Comm’n, 

, 

 (1977) (holding that when an attorney “through no

  fault of his own is denied notice of a critical determination in a

  proceeding and consequently does not complete the procedural

  requisites necessary to preserve his client’s right to appeal . . .

  [f]undamental fairness . . . dictates that claimant’s review be

  permitted”); see also Schmidt, 

 (holding that the

  applicable statutory mailing requirement is not “a vehicle whereby

  an appeal could be dismissed . . . when the denial of such an


                                     20
  appeal would be manifestly unjust to the taxpayer who was never

  informed of the mailing date”). A government agency cannot so

  easily defeat the appellate rights of parties against whom it ruled.

  As the United States Supreme Court stated so eloquently, “the

  Government should turn square corners in dealing with the people.”

  Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 

,

  ___,

 (2020) (quoting St. Regis Paper Co. v.

  United States, 

 (1961) (Black, J., dissenting)).

¶ 40   Thus, we hold that, to comport with principles of fundamental

  fairness and due process, a court lacks jurisdiction over an appeal

  of a Division decision filed more than thirty-five days after the

  Division mailed the decision to the aggrieved party — but only if the

  Division informed that party when the Division mailed the Decision.

¶ 41   Lastly, the Division contends that “Bartenders’ own conduct”

  — its “attempt to initiate [its] appeal in the middle of the night 35

  days and 14 minutes later” — establishes that the Division had

  effectively communicated to Bartenders that the Decision was

  mailed on April 12, 2022. This undeveloped contention appears to

  build on the Division’s actual notice argument. But Bartenders’


                                    21
  early morning filing of its complaint is of no consequence to our

  analysis.

¶ 42   Because Bartenders’ receipt of actual notice of the Decision on

  April 12, 2022, did not apprise it of the mailing date of the Decision,

  the actual notice the Division provided to Bartenders could not start

  the thirty-five-day time period for Bartenders’ filing of a complaint

  for judicial review.

                             III.   Disposition

¶ 43   The judgment is reversed. The case is remanded to the district

  court to adjudicate Bartenders’ appeal on the merits.

       JUDGE WELLING and JUDGE GOMEZ concur.




                                     22