Opinion
No. 11–P–1769.
2012-07-2
Ilidio CRUZ'S CASE.
By the Court (BERRY, MILKEY & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The following facts are undisputed. Following a hearing, an administrative judge of the Department of Industrial Accidents (department) awarded temporary partial disability benefits to the employee, Ilidio Cruz, and the self-insured employer appealed to the department reviewing board (board). The board issued a decision on May 17, 2010, concluding that the employee had not met the heightened causation standard of G.L.c. 152, § 1(7A), and reversing the decision of the administrative judge.
Counsel for the employee filed a notice of appeal on June 18, 2010. Notice that the record had been assembled was mailed on July 30, 2010. Counsel for the employee failed to docket the appeal within ten days of receiving notice of the assembly of the record as required by Mass.R.A.P. 10(a), as amended, 430 Mass. 1605 (1999). Even after being prompted by a letter from counsel for the self-insured alerting him that the docketing deadline had passed, counsel for the employee failed to act. Finally, over one year later, on or about August 8, 2011, new counsel for the employee petitioned a single justice of this court for leave to docket the appeal late pursuant to Mass.R.A.P. 10(a)(3), as amended, 378 Mass. 937 (1979). The self-insured filed an opposition and at the same time filed a motion to dismiss with the department seeking dismissal of the appeal for failure to timely docket pursuant to Mass.R.A.P. 10(c), as amended, 417 Mass. 1602 (1994). The single justice stayed the motion for leave to docket the appeal late pending a decision on the motion to dismiss. The board found that the failure to docket the appeal was the result of inexcusable neglect and dismissed the appeal. The employee's appeal of that order is currently before us. In addition, the single justice referred the motion for leave to docket the appeal late to this panel “so that, in the event that panel should determine that the order of dismissal by the Reviewing Board was of no effect because it is without power to dismiss an appeal filed in this court as required by law—a question on which [the single justice expressed] no opinion—it may determine its merits in the first instance.” Discussion. Pursuant to Mass.R.A.P. 10(c), if a party fails to timely docket an appeal, “the lower court may, on motion with notice by any appellee, dismiss the appeal, but only upon a finding of inexcusable neglect; otherwise, the court shall enlarge the appellant's time for taking the required action.” There can be no doubt that the board was authorized to entertain a motion pursuant to rule 10(c), as the term “lower court,” as used in the Rules of Appellate Procedure “means the single justice, court, appellate division, board, commission, or other body whose decision is the subject of an appeal.” Mass.R.A.P. 1(c), as amended, 454 Mass. 1601 (2009). See Secretary of Admn. & Fin. v. Commonwealth Employment Relations Bd., 81 Mass.App.Ct. 81, 84–85 (2012). Moreover, the employee does not argue that the single justice lacked the discretion to stay the motion to docket late pending the board's decision on the motion to dismiss.
This resolves the issue referred to us by the single justice.
“The test to determine whether the [board] was warranted in dismissing the plaintiff's appeal is whether [it] abused [its] discretion.” Russell v. McOwen–Hanelt, 413 Mass. 106, 109 (1992), quoting from McCarthy v. O'Connor, 398 Mass. 193, 196 (1986). “We can find abuse of discretion by the trial judge only by deciding ‘that no conscientious judge, acting intelligently, could honestly have taken the view expressed by him.’ “ Hartmann v. Boston Herald–Traveler Corp., 323 Mass. 56, 60 (1948), quoting from Davis v. Boston Elev. Ry., 235 Mass. 482, 502 (1920). We discern no such abuse of discretion here.
The employee places the blame for his failure to comply with the Rules of Appellate Procedure squarely at the feet of his former attorney and argues he should not be held responsible for his attorney's error. “[W]e have said that an appeal should not be dismissed for failure to follow the rules of appellate procedure if the procedural error was not attributable to the appellant,” Mailer v. Mailer, 387 Mass. 401, 406 (1982), but there, citation is made to procedural irregularities caused by a failure of the clerk's office. As for errors by an attorney, we have said that “[t]he concept of excusable neglect does not embrace ‘[a] flat mistake of counsel about the meaning of a statute or rule’ or other ‘garden-variety oversight[s].’ “ Ibid., quoting from Goldstein v. Barron, 382 Mass. 181, 186 (1980). Rather, “[e]xcusable neglect calls for unique or extraordinary circumstances.” Ibid. Here, no explanation was offered for the attorney's failure to docket the appeal. Moreover, the board was aware that the attorney also had failed to submit a brief on appeal of the administrative judge's decision. The employee has not shown that this was anything other than counsel's chosen course of conduct, and we discern no reason to disturb the decision of the board.
Decision of reviewing board dismissing appeal affirmed.