OSMAN Y. MUSSE, Complainant
LUTHER MIDELFORT NORTHLAND, Respondent
An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter on August 15, 2014. Pursuant to Wis. Stat. § 111.39 (5), the last day to timely petition for LIRC review of that decision was thus September 5, 2014. On September 9, 2014, the Equal Rights Division advised the parties that "[a] Late Petition for Review was filed by the Complainant on September 8, 2014," and that the file was being forwarded the file to the commission.
The issue for decision is whether the complainant's petition for review was timely.
The file in this matter contained the petition and a business-size envelope in which the petition had presumably been enclosed; it also contained a larger U.S. Postal Service Priority Express Mail envelope in which the petition and the business-size envelope had presumably been enclosed. The petition, the inner business-size envelope, and the outer USPS Priority Express Mail envelope, each bore an ERD "Received" stamp showing the date September 8, 2014, and a time of 11:09 A.M.
The USPS Priority Express Mail envelope also bore a USPS mailing label. In a section of that label designated "Origin," it was indicated that the item had been accepted by the Post Office on September 4, 2014, and a "scheduled delivery date" of September 5, 2014 had been entered. In a section of that label designated "Delivery," there was an indication that a "delivery attempt" had been made at 9:55 A.M. on September 5, 2014.
Additionally, the Priority Express Mail envelope reflected that the item had been mailed to the ERD's Madison post office box.
The parties were provided with copies of the materials described above and were requested to submit statements of position on the issue of whether the petition for review was timely. In connection with this, the parties were also advised that the commission proposed to consider any information which might be available through the website of the USPS by entering the USPS tracking number shown on the mailing label of the petition. They were requested to advise the commission whether they objected to the commission considering that information and what their reasons were if they did so object. In their responses, neither party has objected to the commission considering the USPS tracking information, and it has therefore done so.
Near the top of the USPS tracking report there is this:
Updated Delivery Day: Saturday, September 6, 2014
Scheduled Delivery Day: Friday, September 5, 2014, 3:00 pm
Money Back Guarantee
Signed for By: WAIVED // MADISON, WI 53708 // 9:43 am
Below, under the heading "Product & Tracking Information," is this:
| DATE & TIME |
STATUS OF ITEM |
LOCATION |
| September 5, 2014, 9:43 am |
Delivered |
MADISON, WI 53708 |
| Your item was delivered at 9:43 am on September 5, 2014 in Madison, WI 53708. Waiver of signature was exercised at time of delivery |
||
| September 5, 2014, 9:41 am | Arrival at Post Office | MADISON, WI 53708 |
The statement of position submitted by the respondent argued that the petition was untimely because it appeared that it was delivered to the ERD's post office box on Saturday, September 6, a day on which the ERD was closed for business, and then received by the ERD on Monday, September 8. From this reference to September 6, it appears that the respondent is relying on the "Updated Delivery Day" entry near the top of the USPS tracking report; that date appears nowhere else in the record.
However, the commission is not persuaded by this argument. It is not clear, that the "Updated Delivery Day" entry means that the item was in fact delivered on September 6. It could be, that that entry instead reflects a mid-process revision of the expected delivery day. It could mean something else. The entry is ambiguous.
In contrast to the ambiguity of the "Updated Delivery Day" entry, the entry under the "Product & Tracking Information" heading is unambiguous: "Your item was delivered at 9:43 am on September 5, 2014 in Madison, WI 53708."
From the fact that the petition was mailed to the ERD's post office box, it follows that the delivery referred to would have been delivery into the ERD's post office box.
Mail sent to post office boxes of divisions of the Department of Workforce Development is collected from those post office boxes, early each business day, by employees of DWD's Administrative Services Division mail room operation, and then during that day it is delivered by them to the offices of those divisions.1(1)
Weighing all of the foregoing facts, the commission finds it most likely that what happened here was that the petition was delivered to the post office box of the ERD in Madison at 9:43 on the morning of September 5, but that because this was after the DWD mail service had made that day's collection of the box's contents, it was not picked up by the DWD mail service and delivered to the offices of the ERD until the next business day, which was the following Monday, September 8, 2014.
Given these findings, Springer v. LIRC et al., No. 91CV534 (Marathon Co. Cir Ct., Aug. 19, 1992), is potentially relevant.
In Springer, as here, the deadline to petition for LIRC review of a decision of a DWD division (in that case, workers compensation) was a Friday (May 31). As here, the petition for review was mailed to Madison from northern Wisconsin, one day before the deadline. As here, it was mailed to a post office box (in that case, the post office box of LIRC). As here, the petition ended up being stamped "Received" by the recipient agency (LIRC), on the following Monday (June 3).
LIRC dismissed the petition as untimely, and Springer appealed. The case was heard and decided by then-Judge (and now-Justice) Ann Walsh Bradley. Judge Bradley noted that it was unclear from the record whether the petition for review arrived on May 31 after LIRC's post office box had been emptied for that day, or whether it arrived after the May 31 date but sometime before the box was emptied on June 3. She then held:
This court holds that if the petition for review arrived on May 31, 1991 after the box was emptied for that day that the petition for review was timely filed. Unlike the case in Hilmes [v. DILHR, 147 Wis. 2d 48, 53, 433 N.W.2d 251 (1988)], the agency may have had a role in the late filing, if it was late. LIRC directed applicants to file at the post office box. Under this circumstance, the mail box is the same as the physical plant of LIRC. This case is similar to the holding of the court in Gunderson v. State, 106 Wis. 2d 611, 318 N.W.2d 779 (1982). There, the supreme court held that a petition was timely filed where appellant could prove that the petition had been physically received by an agent for the clerk of court on the day before it was actually in the physical possession of the clerk and date-stamped as received.
LIRC gave to applicants a post office box for a mailing address. If LIRC decided not to collect its mail for one day, or for a week, petitions which would otherwise be timely could be rejected for failure to comply with the statute of limitations. If LIRC advised the public that its post office box is the place to send petitions, then LIRC's post office box is its physical plant for the purpose of receiving mail.
On this basis Judge Bradley set aside LIRC's decision and remanded the matter for a hearing on the issue of when the petition arrived at LIRC's post office box.
The commission has followed Springer. See, e.g., Driggs v. HMU Management Corp. et ano., Claim No. 2003-012592 (LIRC WC Decision, July 14, 2005).
The commission concludes that Springer is on point and governs this case. The fact that it involved delivery of a workers' compensation petition to LIRC's post office box while this case involves delivery of an equal rights petition to the ERD's post office box, simply reflects the different laws in those two program areas as to where petitions must be filed. The issue of whether receipt at an agency's post office box is equivalent to receipt by the agency, is the same in both cases.
A circumstance found significant in Springer - that use of the agency's post office box was provided for by the agency - is effectively present here. The "Notice Of Appeal Rights" form provided by the ERD with ALJ's decisions, states that petitions for review may be mailed, and it includes the post office box address of the Madison office of the ERD as an address that may be used. Consistent with the reasoning of Springer, because the use of a post office box address is expressly allowed, delivery of a mailed item into that post office box is equivalent to delivery of that item to the post office box holder's premises.
The commission has considered the fact that the ERD has an administrative rule that defines the word "filing" to mean "the physical receipt of a document," Wis. Adm. Code § 218.02 (6), and that LIRC has an administrative rule that provides in material part that a petition for review filed by mail is deemed filed only when it is actually received by the commission or by the division of the department to which it is mailed, Wis. Adm. Code § LIRC 1.025. It concludes that those rules do not conflict with the holding of Springer. The purpose of those rules is simply to make clear that filing is not complete upon mailing to an agency, but only upon receipt by that agency. The holding of Springer is simply that, where an agency provides that mailing may be made to a post office box, receipt of that item at the agency's post office box is receipt by that agency. Springer and these rules thus can be read together to mean that in the circumstances covered by Springer, a document is "filed" when it is physically received at the post office box of the agency.
In Springer, there was no evidence in the record as to when the mailed item was delivered to the post office box to which it had been sent. Therefore, it was necessary that further hearing be held to resolve that factual issue. The commission does not find that to be necessary here. In this case, there is clear and specific evidence that the mailed item was delivered to the post office box of the ERD at 9:43 A.M. on September 5, 2014.
Based on the foregoing findings and conclusions, the commission therefore issues the following:
The complainant's petition for review was timely filed within the meaning of Wis. Stat. § 111.39 (5)(b). The commission will therefore proceed with review of the findings and order of the ALJ.
Dated and mailed
September 30, 2014
musseos_rpr : 110 : 794
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
NOTE:
With its statement of position regarding the timeliness of the petition for review, the respondent indicated that if the commission did not dismiss the petition for lack of timeliness, it wished to have a briefing schedule established and to have the commission conduct its review based on a transcript of the hearing. The respondent indicated that in that event, it would promptly request and supply a transcript of the hearing.
The respondent's request to have a briefing schedule established and to have the commission conduct its review based on a transcript of the hearing, is granted.
The commission will await the respondent's preparation of and filing of a transcript in this matter. Such transcript shall be prepared by an independent court reporter or transcriptionist and shall include a certification by the court reporter or transcriptionist that the transcript is an original, verbatim transcript of the proceedings. See, Wis. Adm. Code § LIRC 1.04 (6). Such transcript shall be prepared at the respondent's expense, and respondent shall file a copy of the transcript with the commission and serve a copy of the transcript on all other parties. See, Wis. Adm. Code § LIRC 1.04 (3).
The transcript should be filed within 60 days of the date of this decision.
Upon the filing of the transcript, a briefing schedule will be established.
cc:
Attorney Troy D. Thompson
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