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Department of Transportation v. Keeley

Superior Court of Delaware

September 11, 2018

Department of Transportation, Appellant/Employer-Below,
Laura A. Keeley, Appellee/Grievant-Below.

          On Appeal from Decision of the Merit Employee Relations Board Docket No. 17-06-672



         This 11th day of September, 2018, upon consideration of appellee (below-grievant) Laura A. Keeley's ("Keeley") Motion to Dismiss[1], appellant (below-employer) Department of Transportation's ("DelDOT") Motion to Stay[2], the parties' respective Responses thereto[3], and the parties' oral arguments, it appears to the Court that:

         Factual and Procedural Background

         1. Keeley was a former employee of DelDOT.[4] In August 2016, Keeley requested an advanced salary upon her promotion to her then-current position.[5] DelDOT granted the salary increase, but not at the salary level Keeley was initially seeking.[6] Thus, Keeley brought a merit grievance (the "Grievance") to contest the result.[7] The Grievance proceeded through the internal grievance Step process as outlined in Merit Rule 18.[8]

         2. Having succeeded at Step 1 but failing Steps 2 and 3, Keeley eventually filed an appeal to the Merit Employee Relations Board ("MERB").[9] At a hearing conducted on March 1, 2018, the MERB found that DelDOT had not timely appealed the Step 1 decision, which was rendered by Keeley's then-direct supervisor, to Step 2, so the matter was final and binding at Step 1. The MERB then held that it had no jurisdiction to consider the matter on its merits.[10] The MERB also issued a written order, dated March 27, 2018 (the "March 27 Order"), in which it not only affirmed its oral decision made at the hearing, but further modified the Step 1 decision and ordered DelDOT to pay Keeley a lump sum of back pay at the salary level she was seeking.[11] The March 27 Order was mailed out one day later, on March 28, 2018.[12]

         3. DelDOT filed a Motion for Reconsideration on April 12, 2018, seeking to have the MERB modify its March 27 Order to delete the portion that orders DelDOT to pay Keeley.[13] The MERB, in a second order dated June 20, 2018 (the "June 20 Order"), denied DelDOT's Motion for Reconsideration.[14] On June 29, 2018, DelDOT filed a Notice of Appeal, appealing both the March 27 and June 20 Orders to this Court.[15] Keeley filed a Motion to Dismiss the Appeal, and DelDOT filed a Motion to Stay Enforcement of the MERB's June 20 Order. These pending Motions are the subject of this Memorandum Opinion and Order.

         Motion to Dismiss

         4. Superior Court Civil Rule 72(i) provides that an appeal from a board decision may be dismissed "for untimely filing of an appeal, for appealing an unappealable interlocutory order, for failure of a party diligently to prosecute the appeal, for failure to comply with any rule, statute, or order of the Court or for any other reason deemed by the Court to be appropriate."[16]

         5. Keeley contends that the Appeal should be dismissed because it is untimely and/or otherwise invalid. Specifically, Keeley argues that, with regard to the March 27 Order, the Appeal is untimely because it was filed more than three months after that Order was issued. In addition, Keeley argues that DelDOT has no right to appeal the June 20 Order because DelDOT did not timely file its Motion for Reconsideration. This untimeliness, Keeley argues, deprived the MERB of jurisdiction to consider the Motion for Reconsideration, and hence, the June 20 Order is a nullity.

         6. The Court will first consider the validity of the Appeal as it pertains to the June 20 Order. Keeley's argument boils down to whether DelDOT's Motion for Reconsideration was timely filed before the MERB. If a MERB rule existed that addresses this issue, that rule should govern.[17] However, the Merit Rules do not provide for motions for reconsideration.[18] Therefore, the Court will apply, by analogy, Superior Court Civil Rule 59(d) ("Rule 59(d)") to decide the issue of the timeliness of DelDOT's Motion for Reconsideration.[19]

         7. Rule 59(d) provides that a motion to alter or amend a judgment must be filed and served "not later than 10 days after the entry of the judgment."[20] However, there is no "date of entry" in this case, because the MERB does not maintain a formal docket as this Court does. Alternatively, Keeley suggests that the 10-day period started to run from March 27, 2018, i.e., the date the Order was signed, while DelDOT contends that the starting date should be March 28, 2018, i.e., the date the Order was mailed.[21] The Court agrees with DelDOT.

         8. The date of mailing/notification has significance in appealing a final decision of an administrative board. The Administrative Procedures Act ("APA"), which provides general guidance for all administrative proceedings and appeals therefrom, states that an appeal from such a decision shall be filed "within 30 days of the day the notice of the decision was mailed."[22] Other administrative agencies, that have regulations in place addressing post-hearing or post-decision motions, also use "date of mailing/notification" to calculate the period of time for filing such motions. For example, the Unemployment Insurance Appeal Board allows a party to file a motion for rehearing at any time within 10 days after "the date of notification [of its final decision] or mailing thereof."[23] The Industrial Accident Board even goes further. It allows any party who intends to challenge its decision, within ten days "after receipt of the [] decision," to file a motion to request additional testimony or argument.[24]

         9. The above-referenced statutes and rules demonstrate the intention of their enacting bodies to permit sufficient time for the aggrieved party, after she receives notice, to determine whether to move to re-argue a board's final decision. The same rationale also exists under Rule 59(d), where the filing period starts on the day of entry, rather than the day the judge signs the order. Through the Court's electronic filing and docketing system, parties are immediately notified when a Court order is entered. Taking into consideration the principle of giving parties sufficient notification, the Court finds that March 28, 2018 is the better place to start the 10-day calculation. Therefore, DelDOT's Motion for Reconsideration is timely filed, and the Appeal is valid with regard to the June 20 Order.

         10. The Court will next consider whether the Appeal is timely as to the March 27 Order. The Court finds that it is. It is well-established that a timely-filed Rule 59 motion tolls the finality of a judgment of this Court and the time period for appealing it.[25] Thus, the March 27 Order did not become final or appealable until the MERB resolved DelDOT's Motion for Reconsideration by issuing its June 20 Order. This Appeal was filed on June 29, 2018 and thus well within the 30-day period to appeal the two MERB Orders as provided in the APA. Since the Appeal is timely and valid with regard to both MERB Orders, Keeley's request to dismiss the Appeal is without merit.

         Motion ...

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