Kenny R. Holley, Sr. v. Joe Davey et al. (2012)

MEMORANDUM OF DECISION

The plaintiff, Kenny Holley, Sr., appeals from a final decision of the department of social services (the department), and the denial of his motion for reconsideration thereon, upholding the department's discontinuance of his SAGA benefits.   The department has moved to dismiss the plaintiff's appeal as untimely.

The record shows that a department hearing officer issued a final decision on the plaintiff's objection to the discontinuance of benefits on May 11, 2011.   The plaintiff moved to reconsider on May 16, 2011.   The motion was denied on July 20, 2011 and mailed to the plaintiff on that date.

On August 31, 2011, the plaintiff obtained the signature of a Meriden Judicial District assistant clerk on the Civil Summons form to satisfy the recognizance bond.   On August 31, 2011 the plaintiff also filed for a waiver of filing and service fees.   This waiver was granted by a judge on September 1, 2011.   On September 7, 2011, a state marshal served the department with the appeal, and on September 8, 2011, the appeal was filed with the court.

The Uniform Administrative Procedure Act (UAPA) provides in § 4–183(c) that the plaintiff must file his appeal within forty-five days of the mailing of the final decision or the decision on a motion to reconsider.   The plaintiff must also serve his decision on the defendant within forty-five days.   The failure to meet these deadlines renders the court without subject matter jurisdiction to hear the appeal.   See Glastonbury Volunteer Ambulance Assn., Inc. v. Freedom of Information Commission, 227 Conn. 848, 852, 633 A.2d 305 (1993);  Hefti v. Commission on Human Rights & Opportunities, 61 Conn.App. 270, 273, 763 A.2d 688, cert. denied, 255 Conn. 948, 769 A.2d 62 (2001).

The court finds that forty-five days from July 20, 2011, the day the denial of reconsideration was mailed, was September 3, 2011.   Since that day was a Saturday and the following Monday was Labor Day, the deadline for filing and serving the appeal was extended to September 6, 2011.   As set forth above, the appeal was served by marshal on September 7 and filed on September 8. Therefore, the appeal was both untimely served and filed.

The plaintiff argued at oral argument on the department's motion to dismiss that he filed an application for a fee-waiver on August 31, 2011, at the time when the assistant clerk signed his recognizance bond, making his appeal timely filed.   See § 4–183(m).  “In any case in which a person appealing claims that he cannot pay the costs of an appeal under this section, he shall, within the time permitted for filing the appeal, file with the clerk of the court to which the appeal is to be taken an application for waiver of payment of such fees, costs and necessary expenses, including the requirements of bond, if any ․ The filing of the application for the waiver shall toll the time limits for the filing of an appeal until such time as a judgment on such application is rendered.”   This waiver was granted on September 1, 2011 and therefore the tolling provisions of § 4–183(m) are inapplicable.¹

The appeal is dismissed for lack of subject matter jurisdiction due to failure to comply with the deadlines set forth in UAPA § 4–183(c).²

Henry S. Cohn, Judge

FOOTNOTES

FN1. As in Lawson v. Commissioner of Motor Vehicles, 134 Conn.App. 614 (2012), the assistant clerk's signing of the recognizance bond does not constitute “filing” the administrative appeal under § 4–183(c)..  FN1. As in Lawson v. Commissioner of Motor Vehicles, 134 Conn.App. 614 (2012), the assistant clerk's signing of the recognizance bond does not constitute “filing” the administrative appeal under § 4–183(c).

FN2. The court, due to the lack of subject matter jurisdiction, does not consider the plaintiff's motions for contempt filed on March 20, 2012.   See Lawson v. Commissioner of Motor Vehicles, supra, 134 Conn.App. 615, n.4 (2012)..  FN2. The court, due to the lack of subject matter jurisdiction, does not consider the plaintiff's motions for contempt filed on March 20, 2012.   See Lawson v. Commissioner of Motor Vehicles, supra, 134 Conn.App. 615, n.4 (2012).

Cohn, Henry S., J.