Opinion
No. CV 11-5035376-S
June 2, 2011
MEMORANDUM OF DECISION
The present motion to dismiss arises in the context of an administrative appeal brought by the pro se plaintiff, Randy Hassan. The plaintiff appeals a decision by the defendant, the Connecticut Medical Examining Board, denying the plaintiff's request for reinstatement of his medical license. On April 8, 2011, the defendant filed a motion to dismiss on the ground that the court lacks subject matter jurisdiction. The defendant argues that the plaintiff failed to file and serve his appeal within forty-five days after mailing of the final agency decision, in violation of General Statutes § 4-183. In his opposition, filed April 25, 2011, the plaintiff argues that his appeal should not be dismissed because the Superior Court clerk's office received the appeal paperwork within the forty-five-day period mandated by the statute.
The defendant also notes that the plaintiff's complaint, mailed to the defendant on March 29, 2011, was not sent via certified or registered mail as required by General Statutes §§ 4-182(c)(1) and (2), but does not argue that the court lacks personal jurisdiction due to insufficient service of process.
LAW
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009). "Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003).
General Statutes § 4-183 contains provisions of Connecticut's Uniform Administrative Procedure Act (UAPA), which governs the appeal of administrative decisions to the Superior Court. Section 4-183(c) provides, in relevant part: "Within forty-five days after mailing of the final decision under section 4-180 . . . a person appealing as provided in this section shall serve a copy of the appeal on the agency that rendered the final decision at its office or at the office of the Attorney General in Hartford and file the appeal with the clerk of the superior court . . ."
General Statutes § 4-183(c) further provides that nonresidents must file administrative appeals "with the clerk of the court for the judicial district of New Britain." The defendant argues that the nonresident plaintiff's appeal should have been returned to New Britain. Because the court rules that the plaintiff's suit is untimely, it need not reach this issue.
"There is no absolute right of appeal to the courts from a decision of an administrative agency . . . The UAPA grants the Superior Court jurisdiction over appeals of agency decisions only in certain limited and well delineated circumstances . . . It is a familiar principle that a court which exercises a limited and statutory jurisdiction is without jurisdiction to act unless it does so under the precise circumstances and in the manner particularly prescribed by the enabling legislation." (Citations omitted; internal quotation marks omitted.) Pine v. Department of Public Health, 100 Conn.App. 175, 180, 917 A.2d 590 (2007).
"A statutory right to appeal [an administrative decision] may be taken advantage of only by strict compliance with the statutory provisions by which it is created . . . Such provisions are mandatory, and, if not complied with, the appeal is subject to dismissal . . . The failure to file an appeal from an administrative decision within the time set by statute renders the appeal invalid and deprives the courts of jurisdiction to hear it." (Citations omitted; emphasis in original; internal quotation marks omitted.) Hefti v. Commission on Human Rights and Opportunities, 61 Conn.App. 270, 273, 763 A.2d 688, cert. denied, 255 Conn. 948, 769 A.2d 62 (2001).
"[General Statutes §] 4-183(c) requires that both service on the agency and the filing of the appeal with the Superior Court occur within the forty-five day period." Searles v. Department of Social Services, 96 Conn.App. 511, 514, 900 A.2d 598 (2006). A plaintiff's failure to comply with the filing and service requirements set forth in § 4-183(c) will therefore deprive the Superior Court of subject matter jurisdiction over that administrative appeal.
DISCUSSION
In the present case, the defendant agency mailed its final decision to the plaintiff on October 15, 2010. Pursuant to General Statutes § 4-183(c), the plaintiff was required to file his appeal with the Superior Court and to serve the appeal upon the defendant agency within forty-five days of October 15, 2010 — no later than Monday, November 29, 2010.
The defendant agency first mailed its final decision to the plaintiff on September 22, 2010. The September 22, 2010 mailing was returned to the defendant because of an error in the plaintiff's address. The final decision was re-mailed on October 15, 2010. The date of this latter mailing is operative for purposes of the present motion.
The plaintiff's original submission to the Superior Court, dated October 20, 2010, was returned to him on November 11, 2010 due to "Lack of nature of document, e.g. lack of name of designation of pleading, motion or request." The returned submission was accompanied by a note from an assistant clerk, which stated: "This paperwork was received by Superior Court in Hartford; however it is unclear what you are seeking and whether this is meant to commence an action in Superior Court. The fee waiver form you submitted is for an appeal of a criminal matter to the Appellate Court and it appears that your papers are directed to the Medical Examining Board. If you are seeking to commence an action in Superior Court to appeal a decision of the Medical Examining Board, please see General Statutes § 4-183. Enclosed are a civil summons form, which must accompany a complaint, and a fee waiver form for civil cases filed with the Superior Court. You may wish to consult an attorney regarding your rights and CT court procedures."
The plaintiff's fee waiver application, dated November 29, 2010, was filed with the court on December 21, 2010. It was denied on December 21, 2010 due to "defective summons." The plaintiff submitted a revised summons, dated January 7, 2011, which was signed by an assistant clerk on March 17, 2011. The plaintiff's fee waiver was granted by the court on March 17, 2011.
The court notes that the forty-five-day period was not tolled by the plaintiff's December 21, 2010 fee waiver application, as the application was not filed within the time permitted for filing an appeal. See General Statutes § 4-183(m); Searles v. Department of Social Services, 96 Conn.App. 511, 513-14, 900 A.2d 598 (2006) (fee waiver application will toll forty-five day period only if it is filed "within the time permitted for filing an appeal").
The plaintiff's administrative appeal was ultimately filed with the Superior Court on April 1, 2011. The plaintiff's notarized affidavit, submitted to the court with the plaintiff's complaint and summons, attests that the plaintiff "Mailed his Hartford, CT Superior Court appeal, Randy Hassen, MD v. The Connecticut Medical Examining Board, to the Connecticut Medical Examining Board" on March 29, 2011.
The plaintiff was required to serve and file his appeal on or before November 29, 2010. The date of the plaintiff's filing with the Superior Court, April 1, 2011, and the date of service on the defendant agency, March 29, 2011, are both well beyond the November 29, 2010 deadline. Such an untimely filing is in violation of the forty-five-day requirement set forth in General Statutes § 4-183(c), and so deprives the court of its subject matter jurisdiction over the plaintiff's appeal. "The forty-five day filing requirement of § 4-183(c) is a mandatory jurisdictional requirement." Hefti v. Commission on Human Rights and Opportunities, supra, 61 Conn.App. 274. Despite consideration of the plaintiff's status as a pro se litigant, the court is bound by this rule of law.
It is noted that the plaintiff's untimely filing is due to errors and omissions in the various documents he submitted to the court. The resulting delay does not excuse his noncompliance with the statute's forty-five-day appeal period, which is mandatory and strictly enforced by the courts. See Searles v. Department of Social Services, 96 Conn.App. 511, 514, 900 A.2d 598 (2006); Hefti v. Commission on Human Rights and Opportunities, 61 Conn.App. 270, 273, 763 A.2d 688, cert. denied, 255 Conn. 948, 769 A.2d 62 (2001).
The defendant's motion to dismiss is granted.