Appeal from Labor Relations Board
F. Karnedy, Chair Richard T. Cassidy and Matthew M. Shagam of
Rich Cassidy Law, South Burlington, for Appellant.
J. Donovan, Jr., Attorney General, and Sarah London,
Assistant Attorney General, Montpelier, for Appellee.
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll,
1. Grievant Edward von Turkovich appeals the decision of the
Vermont Labor Relations Board denying his motion to enlarge
the time for him to file a notice of appeal. We affirm.
2. Grievant filed an employment grievance with the Board in
January 2017. Grievant's employer filed an answer and a
motion to dismiss the next month. Grievant filed a memorandum
in opposition to the motion to dismiss in late March 2017. On
the same day, the attorney representing grievant (attorney)
moved offices. Prior to the move, attorney's law firm
notified the United States Postal Service (USPS) that it
should forward the firm's mail to the new address.
Attorney did not update the firm's address with the
Board, as required by Board rule. Vermont Labor Relations
Board Rules of Practice § 12.4 [hereinafter Rules of
%201/part1.htm (requiring attorney to notify Board if address
changes while matter is pending). On June 13, 2017, the Board
dismissed the grievance. That same day, the Board mailed the
order dismissing the grievance to the address attorney had
provided, which was attorney's former address. The
Board's envelope read "return service requested,
" which led the USPS to return the order to the Board
rather than forwarding it to attorney. The USPS took
thirty-four days to do so, returning the mail on July 17,
2017. It is unknown what caused the delay in returning the
mail. When returning the mail, the USPS provided the Board
with attorney's forwarding address. The Board mailed the
order to attorney a second time on July 18, 2017, this time
to the current address, as provided by the USPS, and attorney
received it on July 20, 2017. The Board also posted the
decision on its website three days after it issued the order.
3. Grievant moved the Board for more time to appeal the
dismissal. The Board follows the Vermont Rules of Appellate
Procedure in reviewing appeals. V.R.A.P. 1 (stating Vermont
Rules of Appellate Procedure apply to appeals of
administrative decisions). According to the rules, a party
must file an appeal within thirty days of the date the order
being appealed was entered. V.R.A.P. 4(a). If a party fails
to timely file, the party may request an extension of time in
which to appeal. V.R.A.P. 4(d). To qualify for an extension,
the party must file within thirty days of the initial appeal
period, and he or she must show that the failure to file
within the initial appeal period was due to "excusable
neglect or good cause." V.R.A.P. 4(d)(1). In this case,
the Board's order did not reach attorney until after the
initial appeals period had passed. Attorney therefore
requested the Board to extend the time in which to appeal.
The Board denied the request, concluding there was no showing
of excusable neglect or good cause, and therefore there was
no basis to permit an extension of time. This appeal
4. Attorney concedes that he made a mistake and cannot show
good cause. Therefore, the only issue on appeal is whether
the Board erred in finding the failure to file was not due to
excusable neglect. We review the Board's decision for an
abuse of discretion. In re Stowe Cady Hill Solar,
LLC, 2018 VT 3, ¶ 17, Vt., 182 A.3d 53 ("[W]e
review an agency's procedural rulings for abuse of
discretion."); Clark v. Baker, 2016 VT 42,
¶ 20, 201 Vt. 610, 146 A.3d 326 ("The decision of
the trial court in deciding whether there has been excusable
neglect is discretionary, and our review is for abuse of
discretion."). We will not disturb the Board's
decision unless it "declined to exercise its discretion
or has done so on untenable or unreasonable grounds."
Stowe Cady Hill Solar, LLC, 2018 VT 3, ¶ 17.
5. Any discussion of our approach to this standard must begin
with In re Town of Killington, 2003 VT 87A, 176 Vt.
60, 838 A.2d 98. In that case we discussed the legal standard
for excusable neglect at length, and we reiterate that
analysis here. Id. Vermont Rule of Appellate
Procedure 4 is "substantially identical" to its
federal counterpart, so we have found federal authority
helpful in articulating the excusable neglect standard.
Id. ¶ 16; Clark, 2016 VT 42, ¶ 18
(relying on federal law to determine excusable neglect
standard under V.R.A.P. 4 because Vermont rule "was
taken from the identical federal rule"). Following
federal case law, we have identified several factors bearing
on whether a party's failure to file constitutes
excusable neglect: " 'the danger of prejudice to the
nonmovant, the length of the delay and its potential impact
on judicial proceedings, the reason for the delay, including
whether it was in the reasonable control of the movant, and
whether the movant acted in good faith.' " Town
of Killington, 2003 VT 87A, ¶ 16 (quoting
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.
P'ship, 507 U.S. 380, 395 (1993) (alterations
omitted)); see also Clark, 2016 VT 42, ¶ 18
(stating Pioneer provides "the definitive
explanation of the excusable neglect standard"). We give
particular attention to whether the delay "was within
the reasonable control of the movant." Town of
Killington, 2003 VT 87A, ¶ 16. Although the
excusable neglect standard is an " 'elastic
concept' that requires an equitable determination, "
federal courts have made clear the "threshold" for
excusable neglect "remains high." Id.
(quoting Pioneer Inv. Servs. Co., 507 U.S. at 392).
We have affirmed this "appropriately hard line, "
particularly when neglect "stems from factors totally
within the control of a party or its attorney."
Id. ¶ 17 ("Notwithstanding the flexibility
of the 'excusable neglect' concept, its application .
. . must remain strict lest there be a de facto enlargement
of the appeal-filing time . . . ."). Accordingly, a
party generally will not show excusable neglect if the party
"fails to follow the clear dictates of a court rule,
" Silivanch v. Celebrity Cruises, Inc., 333
F.3d 355, 366 (2d Cir. 2003) (quotation and alterations
omitted), or cannot show "substantial diligence, and
professional competence, but as the result of some minor
neglect, compliance was not achieved." Ragguette v.
Premier Wines & Spirits, 691 F.3d 315, 328 (3d Cir.
2012) (quotation and alterations omitted). The neglect of a
party's attorney is attributable to the party.
Clark, 2016 VT 42, ¶ 18.
6. In this case, attorney failed to update his mailing
address with the Board in a timely manner, as required by
Board rules. Rules of Practice § 12.4. As a result,
grievant did not receive notice of the Board's order
within the thirty-day appeals window. Applying the
Pioneer test articulated by the United States
Supreme Court, we agree with the Board that the factors of
delay, prejudice, and good faith weigh in favor of grievant.
But our primary focus must be the reason for the delay. The
delayed notice was within attorney's control and is
analogous to a breakdown in internal office procedures, which
we repeatedly have found is not excusable neglect. See
Coles v. Coles, 2013 VT 36, ¶ 10, 193 Vt. 605,
73 A.3d 681 (observing failure to open mail due to
attorney's vacation is not excusable neglect);
Killington, 2003 VT 87A, ¶ 19 (rejecting
excusable neglect argument based on office procedure
breakdown); Bergeron v. Boyle, 2003 VT 89, ¶
22, 176 Vt. 78, 838 A.2d 918 (rejecting excusable neglect
argument based on internal office breakdown resulting from
attorney's vacation and stating these "more commonly
occurring situations . . . do not constitute excusable
neglect"); see also Jin v. Metro. Life Ins.
Co., No. 95 CIV. 4427(DFE), 2003 WL 21436211, at *3-4
(S.D.N.Y. June 20, 2003), aff'd, 88 Fed.Appx.
456 (2d Cir. 2004) (rejecting excusable neglect argument
where attorney changed secretaries and moved offices,
resulting in failure to calendar appeal deadline or find
copies of judgment mailed to attorney). It was not
"unforeseeable human error" beyond attorney's
control. George Harms Const. Co. v. Chao, 371 F.3d
156, 165 (3d Cir. 2004) (finding error due to mail-handling
procedure excusable when procedures had been reliable for six
years and "loss of the citations was an unforeseeable
human error beyond [company's] reasonable control").
7. Grievant argues that although attorney had control over
updating contact information and mail forwarding, he did not
have control over the Board's decision to request
"return service, " which prevented mail forwarding
to his new address, or the thirty-four days the USPS took to
return the mail. Nor could have attorney foreseen the delay
in receiving the order. Given that those factors outside of
attorney's control contributed significantly to the delay
in filing, attorney argues the failure was excusable. We
disagree. Attorney could have avoided the present result
simply by updating his mailing address with the Board between
March 2017, when he moved, and June 2017, when the Board
mailed the order.
8. Grievant also argues that when the Board emphasized
attorney's mistake in its analysis, it conflated the
"good cause" and "excusable neglect"
standards and ruled that "any mistake is per se
inexcusable." We do not understand the Board as saying
that any mistake precludes excusable neglect, and we do not
hold so here. By definition, excusable neglect is relevant
only when there is a mistake, and heavily weighting the
"reason for the delay, including whether it was in the
reasonable control of the movant" does not render all
mistakes per se inexcusable. Clark, 2016 VT 42,
¶ 18 (quotation omitted) (noting that excusable neglect
standard "requires failure to comply with a filing
deadline attributable to negligence" and upholding trial
court's determination that attorney's error was
excusable neglect despite emphasizing "reason for the
delay" factor as most important (quotation and
alteration omitted)). It merely preserves an appropriately
strict standard. See Town of Killington, 2003 VT
87A, ¶ 17 (affirming excusable neglect standard
"must remain strict lest there be a de facto
enlargement" of appeals period and noting "the
legal system would groan under the weight of a regimen of
uncertainty in which time limitations were not rigorously
enforced" (quotation omitted)).
9. Accordingly, we conclude the Board did not abuse its
discretion in holding that grievant's failure to ...