Auerbach v. State, No. 359-6-14 Wncv (Teachout, J., February 25, 2015)

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                                                      STATE OF VERMONT

SUPERIOR COURT                                                                                         CIVIL DIVISION
Washington Unit                                                                                        Docket No. 359-6-14 Wncv

CAROL AUERBACH
    Appellant

           v.

STATE OF VERMONT, OFFICE
OF PROFESSIONAL REGULATION
     Appellee

                                                     DECISION ON APPEAL

        In the course of applying for her Vermont licensed nursing assistant license, which was
granted, Ms. Auerbach reported that she had not been professionally disciplined before. The
Board of Nursing later discovered that it had disciplined her licensed practical nurse license
many years earlier. Several charges were specified against Ms. Auerbach due to the alleged
misrepresentation. After a hearing, the Board found that she had misrepresented her disciplinary
history and revoked her license.1

        Ms. Auerbach then appealed to an Office of Professional Regulation (OPR) appellate
officer. Before the appeal was heard, however, the OPR prosecuting attorney (the State) filed a
motion to dismiss arguing that Ms. Auerbach’s notice of appeal was not filed in a timely fashion
because it was not received by OPR within the appeal period. The appellate officer agreed and
dismissed the appeal. Ms. Auerbach then appealed to this court. The sole issue here is whether
Ms. Auerbach filed her notice of appeal with OPR within the 30-day appeal period following the
Board’s disciplinary decision.

           Facts

        The appellate officer took evidence on this issue.2 Both Ms. Auerbach and Ms. Amaral,
the OPR docket clerk, testified. The appellate officer found that Ms. Amaral told Ms. Auerbach
that she could file her notice of appeal by fax and, if she did, she should follow up with a
hardcopy. A few days before the 30-day appeal period ran, Ms. Auerbach faxed her notice of
appeal to OPR’s fax machine but did not follow up the fax with a hardcopy. That she faxed her
notice of appeal was documented both by her testimony at the hearing and a printed fax receipt

1
    Due to a technical malfunction, no transcript of the hearing before the Board exists.
2
  Evidence was taken at a “preliminary pre-hearing conference.” Conference Transcript 2. The parties were not
warned that the motion to dismiss would be addressed or that evidence would be taken. For that reason, the
appellate officer sought the parties’ assent to address the motion at that time rather than later when they would have
known to be prepared. As the transcript reflects, most of the conference then was consumed by Ms. Auerback’s
confusion or indecision about how to proceed and her ambiguous responses to the appellate officer’s repeated
requests for assent. Ms. Auerbach eventually appeared to assent.
showing that she successfully sent a fax to OPR’s fax machine within the appeal period.
However, at the time the fax was transmitted, Ms. Amaral was on vacation. When she returned,
there was no evidence in the office that anyone had Ms. Auerbach’s faxed notice of appeal. Ms.
Auerbach, upon learning this, immediately sent in a hardcopy of her notice of appeal but by then
the appeal period had expired. The late notice of appeal did not include a statement of questions.
Based on these facts, the appellate officer concluded that Ms. Auerbach had failed to file her
notice of appeal in a timely fashion and granted the motion to dismiss.

        In arguing the motion to dismiss, the State took the position that there was no timely
notice of appeal because the faxed notice was not received. The lack of receipt was documented
by Ms. Amaral’s testimony that the faxed notice of appeal was not placed in Ms. Auerbach’s file
or otherwise brought to Ms. Amaral’s attention.

         Analysis

        Ms. Auerbach had 30 days to file her notice of appeal. 3 V.S.A. § 130a(a). OPR’s
Administrative Rules of Practice provide: “Regardless of the method of delivery employed,
filing occurs only upon receipt by the Docket Clerk or the hearing authority, as the case may be.”
Vt. Admin. Code 20-4-3:3.6(c) (emphasis added).

        There is no dispute that the notice of appeal was faxed to the correct fax number (as the
fax receipt documents) with OPR’s express permission within the appeal period. Nevertheless,
the State argued and the appellate officer ruled that the notice was not received because it did
not, for whatever reason, get placed in Ms. Auerbach’s file or otherwise make it into the actual
possession of the docket clerk. This understanding of “receipt” is foreclosed by Coles v. Coles,
2013 VT 36, ¶¶ 7–8, 193 Vt. 605 (concluding that “receipt” for purposes of V.R.A.P. 4 means
when the thing arrives at its destination, not when the person to whom it is addressed takes actual
possession of it). Receipt refers to delivery. The court sees no reason that the concept of receipt
should be any different here. See Vt. Admin. Code 20-4-3:2.4 (incorporating V.R.A.P. 4). The
notice of appeal was received when it was successfully faxed. That it might have gotten lost
thereafter and not made it to the file or the docket clerk is irrelevant.3 That it was successfully
faxed was established as a matter of fact.

        The appellate officer also noted that Ms. Auerbach did not submit a statement of
questions, did not send copies of her filings to the OPR prosecuting attorney, and did not follow
up the faxed notice of appeal with a paper notice of appeal as instructed. None of these issues
appears to be jurisdictional, however. Statements of questions generally are not jurisdictional.
In re Guardianship of L.B., 147 Vt. 82, 84 (1986) (noting that the failure to timely file a
statement of questions for appellate review does not require dismissal on jurisdictional grounds).
Pro se parties often fail to copy other parties on their filings yet their cases typically are not
3
  To the extent that one might question whether the fax, though successfully sent to the OPR fax machine,
nevertheless did not arrive there (if that is possible), the issue would be akin to a paper notice getting lost in the
mail. Lost mail is an ordinary, legitimate basis for excusable neglect. See Abuelyaman v. Illinois State Univ., 667
F.3d 800 (7th Cir. 2011) (“The term ‘excusable neglect’ . . . refers to the missing of a deadline as a result of such
things as misrepresentations by judicial officers, lost mail, and plausible misinterpretations of ambiguous rules.”
(citation omitted)). Ms. Auerbach filed her paper notice of appeal as soon as she learned that OPR did not have her
faxed notice.

                                                           2
dismissed as a result. The failure to file a paper notice of appeal as a follow up to the faxed
notice of appeal did not comply with Ms. Amaral’s instructions but was not jurisdictional. There
is no dispute that Ms. Auerbach was given permission to file her notice of appeal by fax. OPR
was not required to allow that, but it chose to do so.

        Ms. Auerbach’s notice of appeal was timely. The State’s motion to dismiss was granted
in error.

                                             ORDER

        For the foregoing reasons, the decision of the appellate officer dismissing the appeal is
reversed. This case is remanded to the appellate officer for further proceedings consistent with
this decision.

       Dated at Montpelier, Vermont this 24th day of February 2015.


                                                     _____________________________
                                                     Mary Miles Teachout,
                                                     Superior Judge




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