PAVIAN, INC. vs. ROBERT E. HICKEY, JR., & another. [Note 1]

MARSHALL, C.J. General Laws c. 151A, § 40, governs the timeliness of administrative appeals involving unemployment insurance claims. [Note 2] The sole issue in this case is whether an

Page 491

employee's appeal to the board of review (board) of the division of unemployment assistance (division) [Note 3] was filed within the thirty-day appeals period required by G. L. c. 151A, § 40, when it was postmarked before, but not received by the board until after, the statutory appeals period had expired. A judge in the District Court concluded that the appeal was timely. The Appeals Court disagreed and reversed. Pavian, Inc. v. Hickey, 70 Mass. App. Ct. 477 (2007). We granted the employee's application for further appellate review, and now affirm the judgment of the District Court. [Note 4]

1. Background. Robert Hickey, Jr., was employed by Pavian, Inc. (Pavian), as a chef. On December 8, 2004, Pavian discharged Hickey for the alleged theft of plastic bags and for serving the remains of a leg of lamb to himself and another employee as an employee meal. Hickey applied for unemployment benefits to the division, which approved his application. Pavian then requested and received a hearing before a review examiner, who concluded that Hickey was not entitled to benefits because he had been discharged for "deliberate misconduct in wilful disregard of the employing unit's interest." G. L. c. § 151A, § 25 (e) (2). The transmission memorandum accompanying the examiner's decision notified Hickey that he "may Appeal this Decision to the Board of Review. The last date to file an Appeal is April 15, 2005."

Title 801 Code Mass. Regs. § 1.01(4)(b) (postmark rule), applicable to proceedings before the board and other administrative agencies, provides that "[a]ll papers filed by U.S. mail shall be deemed filed on the date contained in the U.S. postal cancellation stamp or U.S. postmark . . . ." Represented by counsel, and in reliance on the regulation, Hickey mailed his appeal to the board in an envelope postmarked April 15, 2005. [Note 5] The board received the application on April 19, 2005. After

Page 492

somewhat extended proceedings before the board, [Note 6] the board reversed the decision of the review examiner and on August 25, 2005, concluded that Hickey was entitled to receive unemployment benefits. [Note 7]

Pursuant to G. L. c. 30A, § 14, Pavian then filed a complaint for judicial review in the District Court, [Note 8] claiming for the first time that Hickey's appeal to the board was not timely. [Note 9] A judge in the District Court disagreed, holding that the "effective" date of the appeal was the date on which it was postmarked. The Appeals Court disagreed. In essence, the Appeals Court concluded that by applying the postmark rule of 801 Code Mass. Regs. § 1.01(4)(b) to the thirty-day period to "file an application for a review" pursuant to G. L. c. 151A, § 40, the District Court judge impermissibly overrode the Legislature's intent that application for review actually be received by the board within the appeal period ("receipt rule"). [Note 10] Pavian, Inc. v. Hickey, supra at 482-483. The Appeals Court reversed the judgment in favor of Hickey and remanded the case for dismissal of Hickey's appeal. Id. at 483.

Page 493

2. Discussion. In reversing the District Court, the Appeals Court relied principally on our decision in Falmouth v. Civil Serv. Comm'n, 447 Mass. 814 (2006). There we held that the court would defer to the decision of the Civil Service Commission (commission) to apply the postmark rule to its administrative appeals where the relevant statutory provision provided that a grievant may "appeal in writing" to the commission, see G. L. c. 31, § 43, and where the Legislature empowered the commission to adopt the procedural rules necessary to conduct its business, see G. L. c. 31, § 2 (g). Id. at 815, 817. We reasoned that, because the statutory language neither specifies "any particular act required to perfect an appeal," nor identifies any particular place in which an appeal must be filed, we would not unsettle the longstanding reliance on the postmark rule. Id. at 819.

General Laws c. 151A nowhere defines the term "file." Thus, although G. L. c. 151A, § 40, permits the construction reached by the Appeals Court and urged by Pavian, neither the statute itself nor our decision in Falmouth v. Civil Serv. Comm'n, supra, demands it. The substantial deference owed to an agency's interpretation of a statute it is charged to enforce "includes approving an interpretation of statutory language that may be read in two ways." Alliance to Protect Nantucket Sound, Inc. v. Energy Facilities Siting Bd., 448 Mass. 45, 50-51 n.6 (2006). Such deference is particularly appropriate here because the legislative history of the statute does not evince any legislative intent to dislodge the postmark rule in determining the timeliness of appeals to the board. Moreover, the issue arises against the backdrop of a legislative directive of thirty years to provide uniformity to the procedural rules of agency determinations, of which the postmark rule is one. [Note 11]

In 1978, the Commissioner of Administration, [Note 12] as directed

Page 494

by the Legislature, promulgated the Standard Adjudicatory Rules of Practice and Procedure, 801 Code Mass. Regs, §§ 1.00, 138 Mass. Reg. 167-205 (Dec. 29, 1978) (standard rules). Among other regulations, the standard rules contained the postmark rule. Id. at 191-192. [Note 13] As the Appeals Court recognized, "the standard adjudicatory rules include the postmark rule," Pavian, Inc. v. Hickey, supra at 483, and the standard rules "apply to the board proceeding in question in this case." Id. at 479. In view of this long-standing practice of the board, we may defer to the agency's rule-making decision. This is so for another reason.

In 1990, after the postmark rule had been in force for eighteen years specifically for the board, and for twelve years generally in the standard rules, the Legislature revisited and extensively amended G. L. c. 151A, governing unemployment compensation. St. 1990, c. 154. Among other changes, G. L. c. 151A, § 40, see St. 1970, c. 421, was amended to increase the appeals period from ten days to thirty days, see St. 1990, c. 154, § 29. The amendment did not undermine the division's long-standing use of the postmark rule in such circumstances. When the Legislature revisits and amends a statute without changing the language at issue after a court or agency has construed it, we may conclude that the Legislature intended to incorporate authoritative agency and judicial interpretations of the language into the amended statute. We may presume the Legislature was aware of the board's long-standing application of the postmark rule to appeals lodged before it, and certainly the Legislature knew how to direct the board to apply a different procedural rule. See Falmouth v. Civil Serv. Comm'n, supra at 820 n.8 ("[W]e may presume that the Legislature has been aware of the commission's adoption of the postmark rule during the last twenty-five years. . . . The absence of any legislative objection whatsoever during that time is telling" [citation omitted]). See also Alves's Case, 451 Mass. 171,

Page 495

180 (2008) (because we presume "that the Legislature is aware of the 2002 decision by the board . . . and has not acted to amend the statute, we cannot state that the board's continual reliance on its holding . . . is unreasonable").

To a lesser extent, the Appeals Court also relied on our holdings in Harper v. Division of Water Pollution Control, 412 Mass. 464, 466-467 (1992), and Garrett v. Director of the Div. of Employment Sec., 394 Mass. 417, 420 (1985). Those opinions are distinguishable for two reasons. First, the statutes at issue expressly state that filing is perfected in a particular place. [Note 14] Second, those cases concerned judicial review and not administrative appeals, and therefore did not carry with them the postmark rule's long history of use and persistent vitality in standard administrative procedure. [Note 15]

Although the Appeals Court concluded that the postmark rule was incompatible with the word "file" in G. L. c. 151A, § 40, there are many regulatory and statutory circumstances in which the date of "filing" is defined as the date of mailing. As described above, the standard rules include the postmark rule. See 801

Page 496

Code Mass. Regs. § 1.01(4)(b). Other agencies have expressly defined "file" to include the postmark rule. [Note 16] Many rules that refer to filing set forth criteria for determining the moment at which filing has occurred. See, e.g, Mass. R. Civ. P. 77 (c), 365 Mass. 837 (1974) (papers "shall be deemed to have been filed as of the date of receipt"). Indeed, the filing deadlines with which claimants may be most familiar -- the Commonwealth's and the United States's annual deadlines to "file" taxes -- both employ the postmark rule. [Note 17]

Construing the filing requirement of G. L. c. 151A, § 40, to permit the postmark rule also comports with the statute's general purpose. The Legislature has directed the unemployment benefits statute to be "construed liberally in aid of its purpose, which purpose is to lighten the burden which now falls on the unemployed worker and his family." G. L. c. 151A, § 74. Workers who are discharged from their jobs through no fault of their own face hardship and anxiety, which should not be exacerbated by administrative procedures governing their appeals. There is only one division office in the Commonwealth. Exclusive use of the receipt rule could force hardship on many claimants requesting

Page 497

appeals by requiring them either to travel great distances or to pay for expedited means of transmission (such as facsimile or messenger service) with funds they do not have or cannot afford to pay. No matter how far in advance a claimant mails his or her application for review, he or she can never be certain that it will be received on time. It would be excessively burdensome and costly to require claimants remote from the division's office to monitor rigorously the transmission of their applications to be certain that their appeals were timely, as exclusive use of the receipt rule would require. [Note 18]

3. Conclusion. For the foregoing reasons, we conclude that by enacting G. L. c. 151A, § 40, the Legislature did not intend to reject the postmark rule as it applies to appeals to the board of review.

Judgment affirmed.