Michael Cruess v. Connecticut State Employees Association et al. (2013)

RULING ON MOTIONS TO DISMISS

The primary question raised by the two motions to dismiss in this case is whether the court has jurisdiction to hear an appeal under the Uniform Administrative Procedure Act (UAPA) when the plaintiff attempts to excuse his failure to serve the agency and to file the appeal within forty-five days of the agency's decision by submitting an affidavit under General Statutes § 4–183(d) that attempts to explain the late filing and establish the lack of prejudice to the agency.   For the reasons stated below, the court answers that question in the negative and grants the motions to dismiss.

I

The historical facts are undisputed.   On October 7, 2011, the plaintiff, Michael Cruess, filed a complaint with the defendant Connecticut State Board of Labor Relations (board) alleging that his labor union, defendant Connecticut State Employees Association (CSEA), had breached its statutory duty of fair representation in connection with a grievance that the plaintiff had filed against the state department of transportation following his termination from employment.   The board dismissed the complaint on August 16, 2013 and mailed a copy of its decision to the plaintiff on that day.

On October 1, 2013, the plaintiff served the initial complaint in this matter, which he entitled “Complaint on Appeal,” naming only CSEA and CSEA employee Joanna James (James) as defendants.   The complaint contained two counts that are both entitled “Breach of Duty to Fully and Fairly Represent Pursuant to Conn. Gen.Stat. § 7–468 ․” On October 9, 2013, the plaintiff served an “Amended Complaint on Appeal” naming the board as a third defendant and adding a third count entitled “Appeal of Agency Decision as to Connecticut State Board of Labor Relations, Pursuant to Conn. Gen.Stat. 4–183(c).”  The plaintiff filed this amended complaint in court on October 10, 2013.¹

Also on October 10, the plaintiff's attorney filed an affidavit stating that “through clerical inadvertence, the [board] was not cited in the original Summons and Complaint ․” The plaintiff added:  “Accordingly, the undersigned immediately amended the original Summons and Complaint to add a necessary party, more specifically, the Board.”   The plaintiff concluded:  “The instant action was commenced within the forty-five (45) day statutory period as required by § 4–183 and although service was not made upon the Board contemporaneous with the service that was perfected upon the other named parties, no prejudice has reasonably been occasioned by service subsequently made upon the Board within eight (8) days of the initial service being perfected.” (# 106.)

CSEA and James now move to dismiss on the ground that the exclusive means to raise a claim of denial of fair representation is by administrative appeal from the board, which the plaintiff has allegedly not done in counts one and two.   The board moves to dismiss on the ground that the administrative appeal in count three is untimely.²

II

CSEA and James rely on Piteau v. Board of Education, 300 Conn. 667, 15 A.3d 1067 (2011).   In that case, our Supreme Court held that “an employee alleging a breach of the duty of fair representation under § 7–468(d) initially must seek relief before the board of labor relations, and jurisdiction lies in the Superior Court only for purposes of an appeal from an adverse order of the board of labor relations.”  Id., 683.³

Although Piteau involved a municipal employee, the holding logically extends to state employees such as the plaintiff who allege a breach of duty of fair representation under the nearly identical provisions of General Statutes §§ 5–271(d) and 5–272(b)(4).⁴  This point is especially true because the codification of a union's duty of fair representation for both state and municipal employees occurred as part of the enactment of the same public act.   See Martinez v. AFSCME Clerical Local 318, Superior Court, judicial district of Waterbury, Docket No. CV09 5014052 (October 22, 2012, Pittman, J.);   Public Acts 1993, No. 93–426.

The plaintiff does not dispute these principles.⁵  Instead, the plaintiff argues that he did take an administrative appeal and that counts one and two constitute that appeal.   Resolution of this argument requires interpretation of the pleadings, which is a question of law for the court.   See Grenier v. Commissioner of Transportation, 306 Conn. 523, 536, 51 A.3d 523 (2012).   Review of the complaint reveals that the plaintiff labels his first two counts as claims for breach of the duty of fair representation arising under § 7–468, rather than an administrative appeal of the board's decision under General Statutes § 4–183.   The allegations mention the administrative appeal in passing but do not claim that the board erred.   Instead, they allege that CSEA and James breached their duty to fully and fairly represent the plaintiff.   Indeed, the only aspect of counts one and two that suggests an administrative appeal is the fact that the plaintiff labels the complaint “Amended Complaint on Appeal.”   In all other respects, these counts state a direct action against CSEA and James, rather than an appeal of the board's decision.   Because under Piteau the court has jurisdiction over fair representation claims only by way of an administrative appeal from the board, the court lacks jurisdiction over counts one and two.   Accordingly, the court grants the motion of defendants CSEA and James to dismiss counts one and two.⁶

III

The board moves to dismiss the plaintiff's administrative appeal in count three on the ground that the plaintiff did not serve the board or file the appeal within forty-five days of the mailing of the board's decision, as required by General Statutes § 4–183(c).  The plaintiff opposes the motion on the ground that he filed an affidavit under § 4–183(d) explaining the reason for the original failure to serve the board and establishing that the failure to make timely service did not prejudice the board.

A

The board relies primarily on § 4–183(c).  Section 4–183(c), which is part of the UAPA, provides as follows:  “(1) Within forty-five days after mailing of the final decision under section 4–180 or, if there is no mailing, within forty-five days after personal delivery of the final decision under said section, or (2) within forty-five days after the agency denies a petition for reconsideration of the final decision pursuant to subdivision (1) of subsection (a) of section 4–181a, or (3) within forty-five days after mailing of the final decision made after reconsideration pursuant to subdivisions (3) and (4) of subsection (a) of section 4–181a or, if there is no mailing, within forty-five days after personal delivery of the final decision made after reconsideration pursuant to said subdivisions, or (4) within forty-five days after the expiration of the ninety-day period required under subdivision (3) of subsection (a) of section 4–181a if the agency decides to reconsider the final decision and fails to render a decision made after reconsideration within such period, whichever is applicable and is later, a person appealing as provided in this section shall serve a copy of the appeal on the agency that rendered the final decision at its office or at the office of the Attorney General in Hartford and file the appeal with the clerk of the superior court for the judicial district of New Britain or for the judicial district wherein the person appealing resides or, if that person is not a resident of this state, with the clerk of the court for the judicial district of New Britain.   Within that time, the person appealing shall also serve a copy of the appeal on each party listed in the final decision at the address shown in the decision, provided failure to make such service within forty-five days on parties other than the agency that rendered the final decision shall not deprive the court of jurisdiction over the appeal.   Service of the appeal shall be made by United States mail, certified or registered, postage prepaid, return receipt requested, without the use of a state marshal or other officer, or by personal service by a proper officer or indifferent person making service in the same manner as complaints are served in ordinary civil actions.   If service of the appeal is made by mail, service shall be effective upon deposit of the appeal in the mail.”

Section 4–183(c) thus requires “that both the filing and the service of the appeal must be accomplished within [a] forty-five-day period.”  Glastonbury Volunteer Ambulance Ass'n, Inc. v. Freedom of Information Commission, 227 Conn. 848, 852, 633 A.2d 305 (1993).   The forty-five day service requirement established by § 4–183(c) is “a prerequisite to subject matter jurisdiction ․ If there is no service at all on the agency within the forty-five-day period, the court lacks subject matter jurisdiction over the appeal by virtue of the clear implication of the language in § 4–183(c) ․” (Citations omitted;  internal quotation marks omitted.)  Id., 854–56.

In this case, the board mailed its decision on August 16, 2013.   The forty-five-day period for serving and filing an appeal thus expired on October 1, 2013.   The plaintiff served the agency and filed an amended complaint in the nature of an administrative appeal on October 9 and 10, respectively.   Thus, looking only at § 4–183(c), the court lacks subject matter jurisdiction over the appeal because the plaintiff served and filed his appeal beyond the forty-five-day period for doing so.   The fact that the plaintiff had filed a lawsuit naming other parties within forty-five days does not save the plaintiff, as the “forty-five-day service requirement established by § 4–183(c) is jurisdictional in nature, and cannot be waived or circumvented for any reason.”  Godaire v. Freedom of Information Commission, 141 Conn.App. 716, 719, 62 A.3d 598 (2013).

B

The plaintiff, however, relies on the affidavit he filed pursuant to § 4–183(d).  Subsection (d) provides as follows:  “The person appealing, not later than fifteen days after filing the appeal, shall file or cause to be filed with the clerk of the court an affidavit, or the state marshal's return, stating the date and manner in which a copy of the appeal was served on each party and on the agency that rendered the final decision, and, if service was not made on a party, the reason for failure to make service.   If the failure to make service causes prejudice to any party to the appeal or to the agency, the court, after hearing, may dismiss the appeal.”   The plaintiff argues that this language authorizes the court to deny the motion to dismiss based on his affidavit, which establishes that the failure to serve the agency on time was inadvertent and that the late service did not prejudice the agency.

Neither the language of the statute nor the case law supports the plaintiff's position.   The UAPA creates a distinction between an “agency,” which refers to a entity or “officer authorized by law to make regulations or to determine contested cases,” and a “party,” which refers to a person or entity whose legal rights are determined by an agency.   See General Statutes §§ 4–166(1),7 (8).⁸  Section 4–183(d) distinguishes between these two entities by providing that a plaintiff shall file an affidavit “stating the date and manner in which a copy of the appeal was served on each party and on the agency that rendered the final decision ․” Subsection (d) continues by providing that “if service was not made on a party, [the affidavit shall state] the reason for failure to make service.”   In other words, subsection (d) creates the opportunity for a plaintiff to explain the failure to make timely service on a party, but not on the agency.⁹

The court should, of course, strive to read subsection (d) to harmonize with other provisions of the statute, particularly subsection (c) here.   See Tully v. Department of Human Resources, 225 Conn. 13, 21, 28, 621 A.2d 719 (1993).   Of critical importance is the language in subsection (c) providing:  “Within [the forty-five day period], the person appealing shall also serve a copy of the appeal on each party listed in the final decision at the address shown in the decision, provided failure to make such service within forty-five days on parties other than the agency that rendered the final decision shall not deprive the court of jurisdiction over the appeal.”

The clear implication of this provision is that, consistent with the principles stated above, failure to serve the agency within forty-five days, unlike failure to serve a nonagency party within forty-five days, does deprive the court of subject matter jurisdiction.   This language harmonizes readily with the interpretation of subsection (d) suggested here, as it allows for an affidavit to excuse a late filing against a party, which does not implicate subject matter jurisdiction, while recognizing that the failure to serve and file against the agency in a timely manner does have jurisdictional consequences.

The case law bolsters this interpretation.   Thus, in Bittle v. Commissioner of Social Services, 249 Conn. 503, 521–22, 734 A.2d 551 (1999), the court explained:  “Section 4–183(d) provides a standard for dismissing appeals when parties other than agencies are not served, or are served with defective papers.   This statutory standard is met upon a showing of actual prejudicial consequences stemming from a failure of service;  a mere showing of untimely service is not grounds for dismissal.   In other words, when a party other than the agency does not receive appeal documents within the prescribed time, an appellant's right to appeal is not exposed to automatic dismissal based on lack of subject matter jurisdiction.”   In Tully v. Department of Human Resources, supra, 225 Conn. 28–29, the court found that subsection (d) also applies if there is merely an arguable defect in the process (there, a lack of specific language directing the defendant to file an appearance on or before the second day after the return day) that the plaintiff had otherwise timely served on the agency.   See also Yellow Cab Co. of New London v. Department of Transportation, 127 Conn.App. 170, 179–80, 13 A.3d 690, cert. denied, 301 Conn. 908, 19 A.3d 178 (2011) (subsection (d) available in case of failure to serve non-agency party within forty-five days).   In no instance has any decision known to the court held that subsection (d) allows the plaintiff to seek relief when there is a complete failure to serve the agency and file the appeal within forty-five days, as happened here.   Accordingly, the plaintiff cannot resort to subsection (d) to cure his failure to serve the agency and file the appeal within forty-five days of the board's decision.

IV

The court grants the motions to dismiss.   It is so ordered.

Carl J. Schuman

Judge, Superior Court

FOOTNOTES

FN1. The plaintiff has since filed a second Amended Complaint on Appeal (# 113), which is substantively the same as the prior one..  FN1. The plaintiff has since filed a second Amended Complaint on Appeal (# 113), which is substantively the same as the prior one.

FN2. On November 4, 2013, the court, Miller, J., granted the plaintiff's October 18, 2013 motion to cite in the board as an additional defendant.   Neither party contends that that decision addressed the jurisdictional issue raised here..  FN2. On November 4, 2013, the court, Miller, J., granted the plaintiff's October 18, 2013 motion to cite in the board as an additional defendant.   Neither party contends that that decision addressed the jurisdictional issue raised here.

FN3. Section 7–468 is entitled “Rights of employees and representatives.   Duty of fair representation.”   Subsection (d) provides:  “When an employee organization has been designated in accordance with the provisions of sections 7–467 to 7–477, inclusive, as the exclusive representative of employees in an appropriate unit, it shall have a duty of fair representation to the members of that unit.”   See also General Statutes § 7–470(b)(3) (“Employee organizations or their agents are prohibited from ․ (3) breaching their duty of fair representation pursuant to section 7–468 ․”.  FN3. Section 7–468 is entitled “Rights of employees and representatives.   Duty of fair representation.”   Subsection (d) provides:  “When an employee organization has been designated in accordance with the provisions of sections 7–467 to 7–477, inclusive, as the exclusive representative of employees in an appropriate unit, it shall have a duty of fair representation to the members of that unit.”   See also General Statutes § 7–470(b)(3) (“Employee organizations or their agents are prohibited from ․ (3) breaching their duty of fair representation pursuant to section 7–468 ․”

FN4. Section 5–271(d) provides:  “When an employee organization has been designated, in accordance with the provisions of this chapter, as the exclusive representative of employees in an appropriate unit, it shall have a duty of fair representation to the members of that unit.”  Section 5–272(b)(4) provides:  “Employee organizations or their agents are prohibited from breaching their duty of fair representation pursuant to section 5–271.”.  FN4. Section 5–271(d) provides:  “When an employee organization has been designated, in accordance with the provisions of this chapter, as the exclusive representative of employees in an appropriate unit, it shall have a duty of fair representation to the members of that unit.”  Section 5–272(b)(4) provides:  “Employee organizations or their agents are prohibited from breaching their duty of fair representation pursuant to section 5–271.”

FN5. In fact, although the plaintiff was a state employee, the plaintiff alleges a denial of the duty of fair representation under § 7–468, which is precisely the statute at issue in Piteau..  FN5. In fact, although the plaintiff was a state employee, the plaintiff alleges a denial of the duty of fair representation under § 7–468, which is precisely the statute at issue in Piteau.

FN6. To the extent that the plaintiff suggests that they have satisfied Piteau by adding count three, which does allege an administrative appeal, that argument does not help the plaintiff because count three, as discussed below, suffers from a separate jurisdictional defect..  FN6. To the extent that the plaintiff suggests that they have satisfied Piteau by adding count three, which does allege an administrative appeal, that argument does not help the plaintiff because count three, as discussed below, suffers from a separate jurisdictional defect.

FN7. Section 4–166(1) defines “Agency” as follows:  “1) “[E]ach state board, commission, department or officer authorized by law to make regulations or to determine contested cases, but does not include either house or any committee of the General Assembly, the courts, the Council on Probate Judicial Conduct, the Governor, Lieutenant Governor or Attorney General, or town or regional boards of education, or automobile dispute settlement panels established pursuant to section 42–181 ․”.  FN7. Section 4–166(1) defines “Agency” as follows:  “1) “[E]ach state board, commission, department or officer authorized by law to make regulations or to determine contested cases, but does not include either house or any committee of the General Assembly, the courts, the Council on Probate Judicial Conduct, the Governor, Lieutenant Governor or Attorney General, or town or regional boards of education, or automobile dispute settlement panels established pursuant to section 42–181 ․”

FN8. Section 4–166(8) defines “Party” as follows:  “[E]ach person (A) whose legal rights, duties or privileges are required by statute to be determined by an agency proceeding and who is named or admitted as a party, (B) who is required by law to be a party in an agency proceeding or (C) who is granted status as a party under subsection (a) of section 4–177a ․”.  FN8. Section 4–166(8) defines “Party” as follows:  “[E]ach person (A) whose legal rights, duties or privileges are required by statute to be determined by an agency proceeding and who is named or admitted as a party, (B) who is required by law to be a party in an agency proceeding or (C) who is granted status as a party under subsection (a) of section 4–177a ․”

FN9. The following (and last) sentence of subsection (d) states:  “If the failure to make service causes prejudice to any party to the appeal or to the agency, the court, after hearing, may dismiss the appeal.”   This sentence also distinguishes between “party” and “agency.”   When read in conjunction with the prior sentence, quoted in the text above, this sentence appears to mean that if the failure to serve a party in a timely manner causes prejudice to either the party or the agency, the court may dismiss the appeal..  FN9. The following (and last) sentence of subsection (d) states:  “If the failure to make service causes prejudice to any party to the appeal or to the agency, the court, after hearing, may dismiss the appeal.”   This sentence also distinguishes between “party” and “agency.”   When read in conjunction with the prior sentence, quoted in the text above, this sentence appears to mean that if the failure to serve a party in a timely manner causes prejudice to either the party or the agency, the court may dismiss the appeal.

Schuman, Carl J., J.