191 A.3d 974
Vt.2018Background
- Edward von Turkovich filed an employment grievance with the Vermont Labor Relations Board in January 2017; his attorney moved offices in March 2017 but did not update the Board with the new address as required by Board rule.
- The Board dismissed the grievance on June 13, 2017 and mailed the order to the attorney’s old address; the envelope requested “return service,” so USPS returned it to the Board instead of forwarding it, taking thirty-four days to do so.
- Upon return, USPS provided the attorney’s forwarding address; the Board remailed the order July 18, 2017, and the attorney received it July 20, 2017; the Board also posted the decision on its website shortly after issuance.
- The attorney requested an extension of the 30-day appellate filing period under V.R.A.P. 4(d) (seeking relief based on “excusable neglect”); the Board denied the request, finding no excusable neglect or good cause.
- The Labor Relations Board applied the excusable-neglect standard drawn from federal law and Vermont precedent; the Supreme Court reviews such decisions for abuse of discretion and affirmed the Board.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the failure to file a timely appeal was due to "excusable neglect" under V.R.A.P. 4(d) | Attorney argues USPS forwarding decision and the thirty-four day USPS delay were beyond his control and make the late filing excusable | Board (and State) argue attorney’s failure to update his address with the Board was within his control and amounts to attorney neglect attributable to the client | Court held no excusable neglect: attorney’s failure to update the Board was within his control and analogous to internal office procedural breakdowns, which do not satisfy excusable neglect |
Key Cases Cited
- Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380 (sets multi-factor excusable-neglect test)
- In re Town of Killington, 176 Vt. 60, 838 A.2d 98 (adopts federal Pioneer factors for V.R.A.P. 4 excusable-neglect analysis)
- Clark v. Baker, 201 Vt. 610, 146 A.3d 326 (attorney neglect attributable to client; reliance on federal law)
- Coles v. Coles, 193 Vt. 605, 73 A.3d 681 (internal office failures, including unopened mail during attorney vacation, do not constitute excusable neglect)
- Bergeron v. Boyle, 176 Vt. 78, 838 A.2d 918 (rejecting excusable neglect based on attorney vacation and office-procedure breakdown)
- Stowe Cady Hill Solar, LLC, 182 A.3d 53 (agency procedural rulings reviewed for abuse of discretion)