Decision Geraldo DeOliveira v. OAG, LB-08-396 (DALA, 2009)

Date: 08/28/2009
Organization: Division of Administrative Law Appeals
Docket Number: LB-08-396
  • Petitioner: Geraldo DeOliveira and New Creation Flooring, Inc.,
  • Respondent: Office of the Attorney General-Fair Labor Division
  • Appearance for Petitioner: James B. Duggan, Esq.
  • Appearance for Respondent: Bruce M. Trager, Esq.
  • Administrative Magistrate: Mark L. Silverstein, Esq.

Table of Contents

Summary of Decision

An appeal challenging a $3,000 civil penalty assessed in a citation issued by the Attorney General's Fair Labor Division for failure to furnish records regarding wage payments, in violation of M.G.L. c. 151, § 19(3), is dismissed for lack of jurisdiction because it was not filed within the ten-day appeal period prescribed by M.G.L. c. 149, § 27C(b)(4).

That the petitioners lacked counsel to assist them in recognizing grounds for appealing the penalty until the appeal period had run was a matter of personal choice rather than the result of defective appeal rights notice in the Fair Labor Division's citation, and therefore did not toll the appeal period. The petitioners' challenge to the constitutionality of the statutory ten-day appeal period is noted as having been raised and, with the operative dates and absence of circumstances tolling the appeal period established, the claim is preserved for review by the Superior Court if the petitioners seek it.

Background and Discussion

Respondent Office of the Attorney General-Fair Labor Division issued a citation to petitioners Geraldo DeOliveira and New Creation Flooring, Inc. (No. MW080050, dated April 16, 2008) assessing a $3,000 civil penalty against them for unintentionally failing to furnish wage payment records to the Division, in violation of M.G.L. c. 151, § 19(3). In a section entitled "Right to Appeal This Citation," the citation advised the petitioners that:

You have the right to appeal the issuance of this citation to the Division of Administrative Law Appeals ("DALA"). A notice of this appeal must be filed with both the Attorney General and DALA within 10 days from receipt of the citation.

(Emphasis in original.)

A copy of the citation was sent to the petitioners by certified mail, and the certified mail receipt shows that it was received on April 17, 2008. The petitioners filed a notice of appeal dated June 11, 2008 with DALA and the Attorney General, and the respondent Fair Labor Division moved to dismiss the appeal for lack of jurisdiction based upon its untimeliness. The petitioners opposed the motion. For the reasons set forth below, the motion is granted.


A statutory ten-day appeal period governs challenges to a citation such as this one. M.G.L. c. 149, § 27C(b)(4) provides that "[a]ny person aggrieved by any citation or order issued pursuant to this subsection may appeal said citation or order by filing a notice of appeal with the attorney general and the division of administrative law appeals within ten days of the receipt of the citation or order."

The date from which the applicable ten-day appeal period started to run was April 17, 2008, the date of receipt shown by the certified mail receipt. [fn. 1] As the tenth day following April 17, 2008 fell on a Sunday (April 27, 2008), the ten-day appeal period expired, per M.G.L. c. 4, § 9, on the "next succeeding business day," which was Monday, April 28, 2008. The petitioners' appeal was filed on June 11, 2008, well after the ten-day period for appealing the citation had expired.

The petitioners do not contest these operative dates and assert, instead, that (1) the petitioners were without counsel until the day they filed their appeal, and accordingly the ten-day appeal period should be extended to preserve the petitioners' appeal rights (which I treat as an argument that the ten-day appeal period should be tolled), and (2) the ten-day appeal period prescribed by M.G.L. c. 149, § 27C(b)(4) is unconstitutional on its face because it "presents a hypertechnical bar to administrative review of an agency decision without any support in law, or reason" that would leave citizens (the petitioners among them) unable to seek review of Attorney General action such as the citation and penalty challenged here, and because the statute includes no provision by which the ten-day appeal period may be extended, whether for good cause shown or otherwise.

1. Extension and tolling of appeal period

Statutory limitations of time for commencing adjudicatory appeals at DALA challenging agency action, such as the ten-day period for appealing a fair labor citation prescribed by M.G.L. c. 149, § 27C(b)(4), are jurisdictional requirements that a forum such as DALA cannot extend, but the commencement or expiration of the time limit may be suspended, or "tolled," in limited circumstances. See Matter of Conroy Development Corp., Docket Nos. DEP-06-865/866/867, Recommended Final Decision, 14 DEPR 52, 56 (Mass. Div. of Admin. Law App., Apr. 27, 2007), adopted by Final Decision, 14 DEPR 182 (Mass. Dep't of Envtl. Prot., Aug. 23, 2007) (principle enunciated in context of 10-day limitation of time prescribed by the Wetlands Protection Act, M.G.L. c. 131, § 40, for seeking Department of Environmental Protection review of wetlands permits issued under the Act by local conservation commissions).

Tolls of statutory time limitations on appeals may be provided by statute-for example, M.G.L. c. 260, § 7, which tolls the time within which a minor or a person incapacitated by reason of mental illness may bring a claim-or by caselaw. Caselaw-based tolls recognize events or conduct beyond the control of the appealing party that genuinely cause it to miss the appeal deadline, among them defective notice of the action the party wishes to challenge, or some other action or omission by the opposing party that estops it from contesting the appeal as time-barred. See, e.g., White v. Peabody Construction Co., Inc., 386 Mass. 121, 434 N.E.2d 1015, 1023 (1982) (discussing estoppel to raise the statute of limitations as a defense in civil actions, under M.G.L. c. 260, § 12, where a defendant fraudulently conceals the existence of a cause of action-for example, by making representations that it knew or should have known would induce the plaintiff to defer bringing suit, and the plaintiff delayed doing so in reliance upon the representation). In contrast, some actions by others, including a defaulting party's own counsel, may not generate sufficient "extraordinary circumstance" to justify tolling the applicable limitations period, particularly when the party exercises no personal diligence in meeting a time limitation. Cf. Cordle v. Guarino, 428 F.3d 46, 48-49 (1st. Cir. 2005)(no tolling of time to file federal habeas petition on account of neglect by petitioners' counsel to file it or advise the petitioner of the deadline for doing so, petitioner's ignorance of the deadline, or the incarceration itself, because the petitioner waited eight years after her conviction, and over three years after the applicable time limit expired, before seeking habeas relief on her own). Similarly, confusion or mistaken impressions regarding appeal rights or the applicable appeal period does not suffice to toll the appeal period, and neither does the appealing party's belated recognition that it had grounds for appealing. See Conroy, 14 DEPR at 57; see also Matter ofThomsen, Docket No. 2002-085, Recommended Final Decision, 9 DEPR 281, 282-83 (Mass. Dep't of Envtl. Prot., Office of Admin. Law App., Dec. 5, 2002), adopted by Final Decision, 9 DEPR 281 (Mass. Dep't of Envtl. Prot., Dec. 12, 2002).

The petitioners assert neither defective notice to them of the citation nor any other conduct on the Attorney General's part that caused them to defer appealing until the ten-day appeal period had expired. The only reason they offer for filing no appeal until June 11, 2008 was that they did not have counsel until that time. Implicit in this argument is that, without counsel, the petitioners did not recognize that they could or should appeal the citation.

With no assertion to the contrary, the petitioners' lack of counsel until well after the appeal period had run appears to have been a matter of personal choice rather than the result of action or omission by another party. Whatever the reason was for obtaining counsel belatedly, however, the citation stated the petitioners' appeal rights and the ten-day deadline for appealing clearly and accurately enough to be understood even without counsel's assistance. The petitioners do not assert that they were confused about their appeal rights or the time for appealing the citation. There are presented, in short, no circumstances beyond the petitioners' control that caused them to miss the ten-day deadline for appealing the citation despite diligence on their part. No tolling of the ten-day appeal period is justified here, consequently, and the appeal was time-barred.

2. Constitutionality of ten-day appeal period

The petitioners also challenge the ten-day appeal period prescribed by M.G.L. c. 149, § 27C(b)(4) as unconstitutional. It is their argument, in essence, that a short limitations period such as this one ensures the forfeiture of legitimate claims through inadvertence or inability to obtain counsel and frame and file an appeal within the time prescribed, and therefore renders ineffective the right to appeal that the statute prescribes.

The petitioners' argument implicates no discretionary action by the Fair Labor Division or by DALA. The application of the statutory appeal period is entirely calendar-based and requires no factfinding other than to establish the operative events and dates-the date on which the petitioners received the citation and the ten-day appeal period starting running (above, at 2-3), the last date on which the petitioners could have commenced an appeal and the later date on which they filed one (above, at 3), and the absence of any event tolling the appeal period's running or expiration (above, at 4-5). No sifting of facts is needed, however, to determine whether the appeal period should apply, because M.G.L. c. 149, § 27C(b)(4) allows no exercise of discretion as to its applicability.

The petitioners' constitutional challenge is directed, then, entirely at the legislature's decision to apply a short, ten-day limitations period to appeals such as this one, and it is therefore one that the Superior Court may hear directly without any prior exhaustion of remedies in this forum. See Liability Investigative Fund Effort, Inc. v. Medical Malpractice Joint Underwriting Association of Massachusetts, 409 Mass. 734, 569 N.E.2d 797, 803 (1991) (claim by physicians that statute authorizing the insurance commissioner to set rates for medical malpractice insurance violated the United States Constitution and the Massachusetts Declaration of Rights, e.g. because it allegedly effected an unconstitutional taking, was not a ratemaking challenge to be decided first by the insurance commissioner and then appealed, and the dismissal of the physicians' Superior Court action was therefore vacated); Hartford Accident and Indemnity Co. v. Comm'r of Insurance, 407 Mass. 23, 551 N.E.2d 502, 504-05 (1990) (because the insurance commissioner was without statutory authority to adjudicate a constitutional challenge to a statute apportioning among insurance companies the expenses and losses of providing involuntary or "residual" motor vehicle liability insurance to persons who otherwise could not obtain coverage, the Superior Court should not have dismissed a declaratory judgment action challenging the statute's constitutionality for failure to exhaust administrative remedies).

Neither DALA's establishing statute, M.G.L. c. 7, § 4H, nor M.G.L. c. 149, directs that the constitutionality of the applicable time limitation be challenged at DALA in the first instance or, if it is, that DALA decide whether the time limitation is constitutional, and no directive to do so is properly read into M.G.L. c. 149, § 27C(b)(4)'s general statement of appeal rights. See Hartford Accident, 551 N.E.2d 502, 504-05. The petitioners' challenge to the constitutionality of the ten-day appeal period that applies here should be determined not by DALA but, instead, by the Superior Court, either on appeal of this decision pursuant to M.G.L. c. 30A (the next step provided by M.G.L. c. 149, § 27C(b)(4)) upon the record of this proceeding, or by way of a separate declaratory judgment action. See Liability Investigative Fund Effort, 569 N.E.2d at 803-04.

The petitioners' challenge to the ten-day appeal period prescribed by M.G.L. c. 149, § 27C(b)(4) is therefore noted as having been raised, and, with the operative dates and absence of circumstances tolling the appeal period established (above, at 2-6), this claim is preserved for review by the Superior Court if the petitioners seek it.


Because the petitioners filed this appeal more than ten business days after they received the citation, and the ten-day appeal period prescribed by M.G.L. c. 149, § 27C(b)(4) was not tolled, the appeal was untimely and, thus, jurisdictionally defective. This appeal is dismissed, accordingly, for lack of jurisdiction, pursuant to 801 CMR 1.01(4)(a).





Mark L. Silverstein
Administrative Magistrate

Dated: August 28, 2009

1/ The Fair Labor Division asserted that the date of receipt was April 22, 2008, but the certified mail receipt shows this to have been the date on which the receipt was date-stamped as having been received by the Division. The "date of delivery" of the certified mailing is handwritten on the receipt as "4/17/08." However, even if the appeal period were computed from April 22, 2008 (making May 2, 2008 the tenth and last day on which a timely appeal could have been filed), the petitioners' appeal on June 11, 2008 was still filed after the ten-day appeal period expired.

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