TIME FOR FILING OF UNEMPLOYMENT COMPENSATION APPEALS

TIME FOR FILING OF UNEMPLOYMENT COMPENSATION APPEALS

The time limitations for appeal set forth by the statutes are deemed to be jurisdictional.

The time will not be extended though the 10th day falls on Saturday, a day on which the department's offices are closed.

                                                                   - - - - - - - - - - - - -

                                                               November 30, 1955

Honorable Peter R. Giovine
Acting Commissioner
Employment Security Department
Old Capitol Building
Olympia, Washington                                                                                                              Cite as:  AGO 55-57 No. 164

Dear Sir:

            By letter, previously acknowledged, you have asked our opinion with respect to the following questions:

            "1. Are the time limitations for appeal set forth by the statutes in question deemed to be jurisdictional?

            "2. Assuming an affirmative answer to question No. 1, does the Appeal Tribunal or the Commissioner have a right to accept as timely an appeal (in the case of the appeal tribunal) or a Petition for Review (in the case of the Commissioner) when the last day for filing the appeal or petition falls on Saturday, said day being one on which all offices of the Employment Security Department of the State of Washington are closed for  [[Orig. Op. Page 2]] business, and, due to that fact, the appeal or petition is not received by the designated party until the following Monday?"

            We answer your questions as follows:

            1. Yes.

            2. No.

                                                                     ANALYSIS

            The following statutes are applicable in a discussion of these questions:

            RCW 50.32.020:

            "The applicant * * * may file an appeal from any determination * * * with the appeal tribunal within ten days after the date of notification or mailing, * * *"

            RCW 50.32.070:

            "* * * Appeal from any decision of an appeal tribunal may be perfected so as to prevent finality of such decision if, within ten days from the date of mailing the appeal tribunal decision, or notification thereof, whichever is the earlier, a petition in writing for review by the commissioner is received by the commissioner * * * The time limit provided herein for seeking review * * *shall be jurisdictional."  (Emphasis supplied.)

            RCW 1.12.040:

            "The time within which an act is done shall be computed by excluding the first day and including  [[Orig. Op. Page 3]] the last, unless the last day is a legal holiday, and then it shall also be excluded."

            RCW 1.16.050, which sets forth individually the legal holidays to be observed in this state, does not include Saturday as a legal holiday.

            RCW 42.04.060:

            "All state elective and appointive officers shall keep their offices open for the transaction of business from eight o'clock a.m., to five o'clock p.m. of each business day from Monday through Friday, holidays excepted.  On Saturday, such offices may be closed."

            1. Appeals in matters of administrative law are statutory and not a common law right.  The cases ofMacVeigh v. Division of Unemployment Compensation, 19 Wn. (2d) 383, andJohnson v. Commissioner of Unemployment Compensation and Placement, 20 Wn. (2d) 730, cite Smith v. Department of Labor and Industries, 1 Wn. (2d) 305, where the court said, at page 308:

            "The giving of notice of appeal within the time prescribed by statute is jurisdictional.  Failure to comply with that jurisdictional requirement prohibits the joint board from considering the merits of a claimant's appeal."

            The supreme court said, inMud Bay Logging Company v. Department of Labor and Industries, 193 Wash. 275, at page 279:

            "A claim passed upon by the department becomes final after the time for appeal has expired.  If an appeal is not prosecuted within the time fixed by statute, the appeal will not lie.  Nafus v. Department of Labor and Industries, 142 Wash. 48, * * *"

            InNagel v. Department of Labor and Industries, 189 Wash. 631, the court referred to the general rule that "no officer or agency of the state has the right to waive the defense of the statute of limitations," citing Finn v. United  [[Orig. Op. Page 4]] States, 123 U.S. 227, 8 S. Ct. 82.  Further authority for this principle may be found inHibbard & Company v. Morton, 184 Wash. 569.

            In view of the case authority and the express language of RCW 50.32.070, the time limitations set forth must be considered jurisdictional.  The appeal tribunal and the commissioner are without authority to waive compliance therewith.

            2. In answer to your second question, RCW 1.12.040 provides the method of computing the time within which an act is done and provides that if the last day is a legal holiday, it shall be excluded.  Saturday is not a legal holiday (RCW 1.16.050).  Therefore, Saturday must be counted in the computation of the time in which an act is done.

            The Washington supreme court held that persons should be aware of the custom that state offices were closed on Saturday afternoon, and should conduct their affairs in accordance therewith.  State ex rel. McQuesten v. Hinkle, 130 Wash. 525 (1924); State ex rel. Earley v. Batchelor, 15 Wn. (2d) 149 (1942).  RCW 42.04.060, though permissive in language, supports those cases in that it provides statutory notice of the authority to close certain state offices on Saturday.

            Inherent in your question is the theory that RCW 50.32.020 provides for the "filing" of an appeal, rather than the "receipt" thereof.  The courts have held that the term "filing" means actual delivery to the proper officer within the specified time.  Broshjeit v. Administrator, New Haven County, Connecticut, Vol. 2, C.C.H. ‑ Unemployment Insurance Reporter, page 10, 164; National Vulcanized Fibre Company v. Unemployment Compensation Commission.  New Castle County, Delaware, 2 C.C.H. 11, 519.

            In view of the foregoing, we are of the opinion that the appeal tribunal and the commissioner are without power to accept as timely an appeal or petition under the circumstances set forth in your second question.

             [[Orig. Op. Page 5]]

            We hope the foregoing analysis will prove helpful.

Very truly yours,

DON EASTVOLD
Attorney General

H.E. WEILAND
Assistant Attorney General