Johnson v. Department of Commerce

               THE UTAH COURT OF APPEALS

                       KATE JOHNSON,
                         Petitioner,
                              v.
                  DEPARTMENT OF COMMERCE,
                        Respondent.

                      Per Curiam Opinion
                        No. 20221126-CA
                    Filed December 14, 2023

               Original Proceeding in this Court

       April L. Hollingsworth and Katie Panzer, Attorneys
                         for Petitioner
         Sean D. Reyes and Sarah E. Goldberg, Attorneys
                         for Respondent

     Before JUDGES GREGORY K. ORME, RYAN M. HARRIS, and
                       AMY J. OLIVER.

PER CURIAM:

¶1    Kate Johnson petitions for review of the Department of
Commerce’s (the Department) order dismissing her request for
agency review as untimely.

¶2     Utah Code section 63G-4-301(1)(a) provides that where
agency review of an adjudication is permitted, “the aggrieved
party may file a written request for review within 30 days after
the issuance of the order” with the designated review entity. The
request for review must state the date on which it was mailed.
Utah Code § 63G-4-301(1)(b)(iii). The Department has established
rules to implement the statute. “[A]n aggrieved party may obtain
agency review of a final order by filing a request with the
executive director within 30 calendar days after the issuance of
                Johnson v. Department of Commerce


the order.” Utah Admin. Code R151-4-901(1)(a). “This 30-day
deadline is jurisdictional.” Id. R151-4-901(1)(b).

¶3     Department rules also set out requirements for filing
documents. Filing may be accomplished by first class or certified
mail. Id. R151-4-401(2)(a)(ii). A filing by mail is complete when
received and date stamped by the Department. Id. R151-4-
401(2)(b)(i). Filing may also be accomplished by “attachment to
electronic mail.” Id. R151-4-401(2)(a)(iii). However, a filing by
email will be complete only when meeting certain other
requirements. Id. R151-4-401(2)(b)(ii). An email filing will be
complete upon transmission if received during the Department’s
business hours and if the party filing the document “also mails
the document to the [Department] . . . the same day, as evidenced
by a postmark.” Id. R151-4-401(2)(b)(ii)(B), (D)(I). “The burden is
on the party filing the document to ensure that a filing is properly
completed.” Id. R151-4-401(2)(c).

¶4     An adjudication order (the Order) imposing sanctions on
Johnson was issued on September 2, 2022. The Order was
transmitted to Johnson’s counsel (Counsel) by email at about 6:00
p.m. the same day. The Order included a notice of the right to seek
administrative review. The notice stated,

       Agency review of this order may be obtained by
       filing a request for agency review with the Executive
       Director of the Department of Commerce, 160 East
       300 South, Box 146701, Salt Lake City, Utah 84114-
       6701, within thirty (30) days after the date of this
       order. . . . The laws and rules governing agency
       review of this proceeding are found in Section 63G-
       4-101 et seq. of the Utah Code and Rule 151-4 of the
       Utah Administrative Code.

The thirty-day time to file a request for review ran to October 2.
Because October 2 was a Sunday, the time expired on the next
business day, Monday October 3.


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                Johnson v. Department of Commerce


¶5     On Friday September 30, 2022, Counsel sent a request for
agency review of the adjudication order by email to a Department
Administrative Law Judge (ALJ). Shortly after the email was
received, the ALJ responded to Counsel and identified a
deficiency in her filing. “I trust you are aware that under the
Department UAPA Rule, an electronic filing is not complete
unless it is also mailed the same day (as evidenced by a postmark).
Utah Admin. Code R151-4-401. You must meet this mailing
requirement.” Counsel acknowledged the ALJ’s email the
following day, stating that she had not been aware of the mailing
requirement.

¶6     Although Counsel could have corrected the filing in a
timely manner by filing on October 3, she did not file a new
request for review until October 5, two days after the time to file
had expired. Counsel asserted in that filing that the request was
timely filed from the date of service of the Order. The Department
moved to dismiss the agency appeal as untimely. The Executive
Director granted the motion in an order dated November 30, 2022.
Johnson filed a timely petition for judicial review of the agency
dismissal.

¶7     Johnson argues that the request for agency review was
timely filed and the Department erred in dismissing the request.
She contends that the statute requires only that a request for
review be “in writing to the proper address.” She also asserts,
without support, that the term “mail” is commonly construed to
include email. 1 Accordingly, she argues, the email transmission of


1. In her reply memorandum, Counsel notes that the statute does
not define the term “mail” and argues that “the meaning of the
term is presumed to change with the times when it is not expressly
defined.” However, this misstates the rules of statutory
interpretation. Where a statutory term is not defined, a court
“must interpret the statutory language according to the plain
                                                    (continued…)


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                Johnson v. Department of Commerce


the request for review was sufficient to meet the jurisdictional
requirements for filing under the statute.

¶8      However, Counsel does not address the Department rule
that clarifies the filing requirements. The plain language of the
rule indicates that mail and email are, indeed, different methods
of filing. Utah Admin. Code R151-4-401. Furthermore, the filing
rule expressly provides that a document transmitted by email will
not be considered filed unless it is also mailed. 

 R151-4-
401(2)(b)(ii)(D)(I). As explained in the Executive Director’s order
of dismissal, the allowance for an email transmittal with a
contemporaneous mailing is a benefit for a party approaching the
filing deadline. Because the filing of a mailed document is not
complete until received, a party may transmit the document
electronically as a placeholder followed by the mailed document
postmarked the same day. However, absent a mailed document,
a filing is not complete under the Department rules.

¶9     Furthermore, the thirty-day time for properly filing a
request for review is jurisdictional. 

 R151-4-901(1)(b). “To
preserve the right to challenge an agency decision, an interested
party must file a request for review within thirty days. If no such
request is filed, the agency action is final and conclusive.” Living
Rivers v. DWQ, 

, 

 (citing Utah Code
§ 63G-4-301(1)(a)). Because Counsel did not timely mail the
request for review, the filing was not complete and the Executive


meaning of its text.” John Kuhni & Sons, Inc. v. Labor Comm’n, 

, 

 (quotation simplified). The
dictionary definition of a term is a “starting point” in determining
a term’s meaning. See id. ¶ 13. In Kuhni & Sons, the court, in
interpreting the phrase “certified mail,” noted that the dictionary
definition of “mail” was “one or more items that have been
properly addressed, stamped with postage, and deposited for
delivery in the postal system.” Id. (citing Mail, Black’s Law
Dictionary (10th ed. 2014)) (quotation simplified).


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                Johnson v. Department of Commerce


Director correctly determined that it lacked jurisdiction to
consider the request for review on its merits. 2

¶10 Counsel also argues that the Executive Director erred in
finding no good cause to extend the time for filing the request for
review. “[T]he executive director may extend the deadline [for
filing a request for review] only for good cause shown.” Utah
Admin. Code R151-4-901(1)(c). “[G]ood cause to justify an
extension means special circumstances beyond the control of the
person requesting agency review that prevents a timely filing of
the request.” 

 R151-4-901(1)(d). Good cause “comes into play in
situations in which there is no fault—excusable or otherwise.”
Freight Tec Mgmt. Group Inc. v. Chemex Inc., 

,

 (quotation simplified). “Accordingly, it requires the
moving party to show the deadline cannot be met despite the
[party’s] diligent efforts.” 

 (quotation simplified).

¶11 The Executive Director noted that Counsel acknowledged
that she was unaware of the filing requirements for requests for
review. The Executive Director also noted that an attorney is held
responsible for knowing the applicable laws and rules, “and
particularly so where [the Order] gave notice of the applicable
procedural rules and the ALJ notified Counsel by response email
that the electronic filing did not meet the filing requirements.”3


2. Counsel argues that the second filing on October 5 constitutes
an amended pleading that should relate back to the emailed
request. However, the timely filing of a request for review is a
jurisdictional requirement. Counsel has not shown that it is a
pleading that may be amended before responsive pleading is
served under R151-4-204 of the Utah Administrative Code where
the filing itself is not complete under the rules.

3. Counsel stated that she was out of town and could not get a
postmark on September 30, and that she would file early the
                                                 (continued…)


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                Johnson v. Department of Commerce


The Executive Director concluded that “any misunderstanding of
the applicable filing requirements by [Counsel] is not good cause
to extend the filing deadline.”

¶12 Counsel has not shown that the Executive Director erred in
finding that good cause was not established. She has not
demonstrated any special circumstance beyond her control.
Instead, on review here, she argues that the deadline should have
been extended based on excusable neglect. “Excusable neglect is
an admittedly neglectful delay that is nevertheless excused by
special circumstances.” Id. ¶ 27 (quotation simplified). However,
the Executive Director could extend the time “only for good cause
shown.” Utah Admin. Code R151-4-901(1)(c). 4 Although good
cause and excusable neglect may have some commonality, “the
two standards are distinct.” Freight Tec, 

.
Regardless, “inadvertence, ignorance of the rules, or mistakes
construing the rules do not usually constitute ‘excusable
neglect.’” Serrato v. Utah Transit Auth., 

, 

 (quotation simplified), cert. denied, 

 (Utah
2001). 5



following week. Counsel had time to correct the filing by October
3, but did not file anything further until October 5. She does not
explain why she could not have filed the request for review on
October 3.

4. Even if excusable neglect applied in this setting, the matter was
not preserved because it was not argued to the Executive Director
and so is not properly before this court on review. See Esquivel v.
Labor Comm'n, 

, 

.

5. Counsel asserted that her October 5 filing was timely because it
was within thirty days of service of the Order. However, the
triggering event for the time to run was not service, but the
                                                     (continued…)


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                Johnson v. Department of Commerce


¶13 For the foregoing reasons, we decline to disturb the
Department’s decision.




issuance of the Order. See Utah Code § 63G-4-301(1)(a) (providing
a request for agency review must be filed “within 30 days after
the issuance of the order”); Utah Admin. Code R151-4-901(1)(a)
(providing that a request for review must be filed “within 30
calendar days after the issuance of the order”). It is well-settled
that the date of issuance of an agency order is the date of the order.
See Dusty’s, Inc. v. Auditing Div. of the Utah State Tax Comm’n, 

 (Utah 1992) (stating “the date the order constituting
the final agency action issues is the date the order bears on its
face”); see also Perez v. South Jordan City, 

, 

.


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