80Cs and the complicated question of time to appeal — again

Practice area:

We have previously blogged on a Maine SJC decision rejecting an 80B appeal as untimely, with the Chief Justice in that case noting some problems and pitfalls under current law, and us noting a few more.  (Is your 80B clock ticking?)  Last Tuesday, the Court issued a decision rejecting an 80C appeal as untimely, so beware on that front as well.  (Bailey v. Dept. of Marine Resources, 2015 ME 128)

80Cs are appeals from state agency decisions governed by the Administrative Procedure Act.  80Bs are appeals of other governmental bodies, county and local.  (M.R. Civ. P. 80B and 80CBailey involved the DMR, so it’s governed by 80C.

Bailey received a letter from the DMR setting his 2014 elver quota at 4 pounds.  The letter was dated March 25, 2014, and was followed by the issuance of a 2014 elver transaction card following a meeting with the DMR on March 31.  Bailey didn’t appeal within 30 days of receipt of the elver card.  Instead, he sent a letter to the Commissioner asking for an explanation.  The commissioner responded, and Bailey filed his appeal July 10.  The SJC said that was too late.  The APA says you appeal within 30 days of receipt of notice of final agency action (5 M.R.S. s. 11002(3), and the SJC said that the final agency action was the card.  Final agency action is defined in section 8002(4) as a decision affecting the “legal rights, duties or privileges of specific persons, which is dispositive of all issues, legal and factual, and for which no further recourse, appeal or review is provided within the agency.”  That the card lacked fact-finding was immaterial, the SJC (opinion by Alexander, J.) said, because the card-decision resolved “all questions necessarily involved in the underlying subject matter.”     

So, here is my first batch of observations and questions:  you can get into the same mess under 80C as under 80B discussed previously – you might have to appeal a ruling before you know the agency’s reasoning.  Clearly, rulings with no explanation are inadequate for review and if left unadorned, the court would have to remand for factfinding.  See, e.g., 5 M.R.S. s. 9061 (decisions in adjudicatory proceedings “shall include findings of fact sufficient to apprise the parties and any interested member of the public of the basis for the decision.”)  Here, there apparently was no explanation in the card itself, and an explanatory letter came a while after.  If Bailey had appealed in a timely manner before the letter came, would the Commissioner have had jurisdiction to issue the letter?  Why isn’t the letter a ruling on a motion to reconsider?  Generally speaking, absent statutory language, filing a motion for reconsideration before an agency doesn’t stop an appeal clock.  But if the agency does reconsider, then can’t you appeal that?  If the letter had said 4.1 pounds, that would be a new “decision.”  If the letter sticks with 4.0, but provides the reasoning behind it, that’s not a part of the “decision,” although it’s necessary for judicial review?  What if the letter had said, “we gave you 4.0 pounds because you are a Muslim and we hate Muslims.” — too bad, you can’t challenge that ruling because it’s too late, even though you didn’t know you had a ground to appeal until then?

Second batch.  Under Section 9061, the agency must provide written notice of the party’s right to appeal.  This notice may also be required as a matter of due process.  See Freeport v. Greenlaw, 602 A.2d 1156, 1161 (1992).  Did such notice come with the elver card?  If not, then was the appeal timely, because the clock never started?  It seems fairly clear that under Section 9061, to start the appeal clock, such a notice was required.  See Seider v. Board of Examiners of Psychology, 1998 ME 78, 710 A.2d 890.  Section 9061 applies to decisions in “adjudicatory proceedings.”  “Adjudicatory proceeding” means “any proceeding before an agency in which the legal rights, duties or privileges of specific persons are required by constitutional law or statute to be determined after an opportunity for hearing.”  When does that constitutional right kick in?

Oh, how we love the wonderful and labrynthian world of administrative appeals.