Date: 06-09-2022

Case Style:

Christine Larson v. North Dakota Workforce Safety and Insurance

Case Number: 2022 ND 118

Judge:

Gerald VandeWalle

James S. Hill

Court:

IN THE SUPREME COURT STATE OF NORTH DAKOTA

On appeal from The District Court of Burleigh County, South Central Judicial District,

Plaintiff's Attorney:

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Defendant's Attorney: Jacqueline S. Anderson, Special Assistant Attorney General,

Description:

Bismarck, ND - Workers Compensation lawyer represented Appellant with appealing from a judgment of the Workforce Safety & Insurance.

In a notice of decision dated January 27, 2021, Workforce Safety &
Insurance (“WSI”) informed Larson that it had determined Active Nutrition is
an employer subject to N.D.C.C. tit. 65, the Workforce Safety and Insurance
Act, and that Active Nutrition was required to submit all earned wages for all
employees for the previous four years and pay premiums, assessments,
penalties, and interest accrued. The notice of decision also advised Larson that
she could appeal the decision by “[s]ubmit[ting] a written request to WSI
within 30 days to have the decision reconsidered[.]”
[¶3] On February 25, 2021, Larson mailed a written request for
reconsideration to WSI. WSI received the request on March 1, 2021. On March
10, 2021, WSI sent Larson notice it received her request for reconsideration
but the request was not timely. The notice also informed Larson that WSI’s
decision dated January 27, 2021 was final.
[¶4] On May 27, 2021, Larson sent WSI a second request for reconsideration.
Larson argued her first request for reconsideration was timely because WSI’s
notice of decision was served by regular mail and therefore three additional
days should be added to the time computation under N.D.R.Civ.P. 6(e). On June
8, 2021, WSI informed Larson it had received her second request, the request
was not timely, and the decision was final.
[¶5] Larson filed a notice of appeal and specification of errors in the district
court, appealing from “WSI’s June 8, 2021 determination.” Larson argued her
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request for reconsideration was timely. She alternatively requested a writ of
mandamus determining her request for reconsideration was timely and
directing WSI to proceed as prescribed under N.D.C.C. ch. 65-04 and review
the merits of her request for reconsideration.
[¶6] WSI moved for dismissal, arguing the district court did not have
jurisdiction to hear the appeal because Larson did not appeal from an
appealable order. WSI asserted Larson did not comply with statutory
procedures for requesting reconsideration of WSI’s notice of decision, the
decision was final, and the decision may not be appealed. WSI also requested
the court deny Larson’s request for a writ of mandamus. Larson opposed WSI’s
motion.
[¶7] After a hearing, the district court granted WSI’s motion to dismiss the
appeal and denied Larson’s request for a writ of mandamus. The court
concluded it did not have jurisdiction to hear the appeal. The court also
concluded there was no basis in fact or law to support Larson’s request for a
writ of mandamus and Larson has no legal right to a writ of mandamus.
II
[¶8] On appeal, Larson does not clearly argue that the district court erred in
dismissing her appeal or that she appealed from an appealable order. Larson
instead argues her request for reconsideration of WSI’s decision was timely
filed and WSI should issue a final agency order on the merits. WSI contends
the district court properly dismissed the appeal because Larson did not appeal
from an appealable order and the court lacked jurisdiction.
[¶9] The district court dismissed Larson’s appeal, concluding it did not have
jurisdiction. The court determined Larson was attempting to appeal from an
unappealable informal notice of decision and Larson did not comply with
N.D.C.C. § 28-32-42. The court explained WSI took action on the request for
reconsideration, it advised Larson her request was not timely, WSI’s January
27, 2021 decision was final under N.D.C.C. § 65-04-32(2), and the appeal to the
district court was untimely.
3
[¶10] “Appeals to the district court from decisions in administrative
proceedings are statutory in nature and are not matters of original jurisdiction,
but involve the exercise of appellate jurisdiction conferred by statute.” Inwards
v. N.D. Workforce Safety & Ins., 2014 ND 163, ¶ 9, 851 N.W.2d 693; see also
Ellis v. N.D. Workforce Safety and Ins., 2020 ND 14, ¶ 7, 937 N.W.2d 513
(holding appeals from an administrative agency to a district court are governed
by statute). The appellant must satisfy the statutory requirements for an
appeal for the court to have subject matter jurisdiction. Inwards, at ¶ 9. The
issue of subject matter jurisdiction is a question of law when jurisdictional facts
are not in dispute, and the issue is reviewed de novo on appeal. Ellis, at ¶ 7.
[¶11] Section 65-04-32, N.D.C.C.1, provides procedural rules for an employer
to dispute a decision by WSI regarding the fund and premium payments
thereto issued under N.D.C.C. ch. 65-04, stating:
1. The organization may issue a notice of decision based on an
informal internal review of the record and shall serve notice of the
decision on the parties by regular mail. The organization shall
include with the decision a notice of the employer’s right to
reconsideration.
2. An employer has thirty days from the day the notice of decision
was mailed to file a written petition for reconsideration. . . . The
organization shall reconsider the matter by informal internal
review of the information of record. Absent a timely and sufficient
request for reconsideration, the notice of decision is final and may
not be reheard or appealed.
3. After receiving a petition for reconsideration . . . the organization
shall serve on the parties by regular mail an administrative order
including its findings of fact, conclusions of law, and order, in
response to the petition for reconsideration. . . . If the organization
does not issue an order within sixty days of receiving a request for
1 Section 65-04-32, N.D.C.C., was amended effective August 1, 2021, changing the 30-day time
requirements to 45 days. 2021 N.D. Sess. Laws ch. 502, § 2. The notice of decision in this case was
issued prior to the amendment and the prior version of the statute applies.
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reconsideration, a party may request, and the organization shall
promptly issue, an appealable determination.
4. A party has thirty days from the date of service of an
administrative order to file a written request for rehearing. . . .
Absent a timely and sufficient request for rehearing, the
administrative order is final and may not be reheard or appealed.
. . .
6. An employer may appeal a posthearing administrative order to
district court in accordance with chapter 65-10. Chapter 65-10 does
not preclude the organization from appealing to district court a
final order issued by a hearing officer under this title.
An employer’s appeal of a decision issued by WSI under chapter 65-04 is
governed by N.D.C.C. chs. 65-10 and 28-32. N.D.C.C. § 65-04-32(6); N.D.C.C. §
65-10-01. Section 28-32-42, N.D.C.C., governs appeals from an agency decision
and states, “Any party to any proceeding heard by an administrative agency,
except when the order of the administrative agency is declared final by any
other statute, may appeal from the order within thirty days after notice of the
order has been given as required by section 28-32-39.”
[¶12] Section 28-32-42(1), N.D.C.C., authorizes appeals from a final agency
order, except when the order of the administrative agency is declared final by
any other statute. Section 65-04-32, N.D.C.C., provides the procedure for an
employer to dispute WSI’s decision. Section 65-04-32(2), N.D.C.C., states the
notice of decision based on an informal internal review becomes final and may
not be reheard or appealed if there is not a timely and sufficient request for
reconsideration. Therefore, the notice of decision is final and the employer may
not appeal if the employer did not timely request reconsideration.
[¶13] Here, Larson petitioned for reconsideration of the notice of decision
based on an informal internal review. WSI informed Larson her petition for
reconsideration was untimely and the notice of decision was final. Larson filed
a second petition for reconsideration. In a letter dated June 8, 2021, WSI
denied Larson’s second request, explaining it was untimely and the decision
5
was final. Larson appealed to the district court from WSI’s “June 8, 2021
determination.”
[¶14] Under N.D.C.C. § 65-04-32(2), WSI’s January 27, 2021 decision was final
and cannot be appealed. The June 8, 2021 determination was not an
appealable order under N.D.C.C. §§ 28-32-42 and 65-04-32. We conclude the
district court did not err in determining it did not have jurisdiction and
dismissing Larson’s appeal.
III
[¶15] Larson alternatively argues, if she did not appeal from an appealable
order, a writ of mandamus should be issued directing WSI to find her request
for reconsideration was timely and to issue a final agency order. She contends
her request for reconsideration was timely because she was allowed three
additional days to mail her request when N.D.C.C. § 65-04-32(2) and
N.D.R.Civ.P. 6(e)(1) are read together.
[¶16] This Court and the district court have the authority to grant writs of
mandamus under N.D.C.C. § 32-34-01, which states:
The writ of mandamus may be issued by the supreme and district
courts to any inferior tribunal, corporation, board, or person to
compel the performance of an act which the law specially enjoins
as a duty resulting from an office, trust, or station, or to compel
the admission of a party to the use and enjoyment of a right or
office to which the party is entitled and from which the party is
precluded unlawfully by such inferior tribunal, corporation, board,
or person.
[¶17] “A petitioner for a writ of mandamus must show there is ‘no plain,
speedy, and adequate remedy in the ordinary cause of the law’ and that they
have ‘a clear legal right to the performance of the particular act sought to be
compelled by the writ.’” Motisi v. Hebron Pub. Sch. Dist., 2021 ND 229, ¶ 10,
968 N.W.2d 191 (quoting Bradley v. Beach Pub. Sch. Dist. No. 3, 427 N.W.2d
352, 352 (N.D. 1988)). The district court’s decision on a writ of mandamus will
not be reversed on appeal unless the court abused its discretion. Motisi, at ¶
6
10. A court abuses its discretion when it acts in an arbitrary, unreasonable, or
unconscionable manner, or it misinterprets or misapplies the law. Id.
[¶18] The district court denied Larson’s request for a writ of mandamus. The
court concluded there was no basis in law or fact supporting the request. The
court explained Larson’s request for reconsideration was not timely, WSI
correctly applied the language of N.D.C.C. § 65-04-32(2), WSI’s decision on the
untimeliness of the request for reconsideration is final, and Larson has no legal
right to a writ of mandamus.
[¶19] Larson cannot appeal from WSI’s decision because its decision is final
and may not be appealed. Because Larson cannot appeal, a writ of mandamus
is the only relief available from the alleged error.
[¶20] Larson argues WSI erred in determining she did not timely request
reconsideration of the notice of decision. The notice of decision was issued on
January 27, 2021. Under N.D.C.C. § 65-04-32(2), Larson was required to “file”
a petition for reconsideration within 30 days from the day the notice of decision
was mailed. Larson mailed her request for reconsideration on February 25,
2021, which was within 30 days. However, WSI did not receive the petition
until March 1, 2021, which was 33 days after the date of the notice of decision.
[¶21] In construing a statute, words are given their plain, ordinary, and
commonly understood meaning, unless they are specifically defined or unless
contrary intention plainly appears. N.D.C.C. § 1-02-02. When the language of
the statute is clear and unambiguous, the letter of the statute is not to be
disregarded under the pretext of pursuing its spirit. N.D.C.C. § 1-02-05. “[W]e
construe statutes in a way which does not render them meaningless because
we presume the Legislature acts with purpose and does not perform idle acts.”
Christiansen v. Panos, 2022 ND 27, ¶ 9, 969 N.W.2d 709 (quoting Dubois v.
State, 2021 ND 153, ¶ 22, 963 N.W.2d 543).
[¶22] Section 65-04-32(2), N.D.C.C., states an employer has 30 days from the
day the notice of decision was mailed to “file” a petition for reconsideration.
Title 65, N.D.C.C., does not specifically define the word “file.” See N.D.C.C. §
65-01-02. “File” generally means “[t]o deliver a legal document to the court
7
clerk or record custodian for placement into the official record.” Black’s Law
Dictionary 772 (11th ed. 2019); see also Hudye Grp. LP v. Ward Cty. Bd. of
Comm’rs, 2022 ND 83, ¶ 11 (holding the word “filed” as used in the statute has
consistently meant to place in the custody of the officer charged with keeping
the record); Ex parte State ex rel. Breitling, 128 So. 788, 788-89 (Ala. 1930)
(holding the word “file” in the statute requires delivery to the required official);
Lambert v. Home Fed. Sav. & Loan Ass’n, 481 S.W.2d 770, 773 (Tenn. 1972)
(holding to “file” with the clerk means actual delivery to the clerk); Mears v.
Mears, 143 S.E.2d 889, 890 (Va. 1965) (holding the requirement to “file” means
to “deliver” the paper). We conclude the word “file,” as used in N.D.C.C. § 65-
04-32(2), means to deliver the request for reconsideration to the recipient.
[¶23] Under the plain language of the statute, Larson had 30 days to file her
request for reconsideration. Although the notice of decision sent to Larson
stated she had 30 days to “submit” a request for reconsideration, N.D.C.C. §
65-04-32(2) required her to “file” the request within 30 days, which required
delivery to WSI within 30 days. We caution WSI to be more careful in giving
notice that a request for reconsideration must be filed within 30 days. Larson
was required to comply with the statutory requirements to request
reconsideration. WSI did not receive Larson’s request for reconsideration
within 30 days from the date of the notice of decision.
[¶24] Larson contends her request was not untimely because WSI mailed the
notice of decision to her and therefore she had three additional days to file her
request for reconsideration under N.D.R.Civ.P. 6(e). Rule 6(e)(1) states,
“Whenever a party must or may act within a prescribed period after service
and service is made by mail or third-party commercial carrier under Rule 5,
three days are added after the prescribed period would otherwise expire under
N.D.R.Civ.P. 6(a).”
[¶25] The parties to this appeal rely on Shafer v. Job Serv. N.D., 464 N.W.2d
390 (N.D. 1990), and Ellis, 2020 ND 14, which both addressed whether
N.D.R.Civ.P. 6(e) applied to extend time requirements related to appeals from
administrative actions.
8
[¶26] This case is different than Shafer and Ellis. In both Shafer and Ellis, we
were determining whether N.D.R.Civ.P. 6(e) applied to statutory requirements
for an appeal from an agency to the district court. In this case, Larson’s
argument would require us to determine the Rules of Civil Procedure apply to
the statutory procedure required for an agency’s internal review of its own
decision. However, in a case not cited to us we rejected similar arguments.
[¶27] In Amoco Oil Co. v Job Serv. N.D., 311 N.W.2d 558, 560 (N.D. 1981), we
decided whether an intra-agency appeal was timely filed. The employer
requested the agency review an appeals referee decision, and the agency
denied the employer’s request on the basis that the request was untimely and
the referee’s decision had become final. Id. at 559-60. The employer was
required by the statute to file the request for review within twelve days of the
date of mailing the notice of decision, and the employer argued it had three
additional days to request review under N.D.R.Civ.P. 6(e). Id. at 561-62. We
rejected the employer’s argument and concluded the appeal was untimely,
explaining:
We are not aware of any rule or case law which provides that the
rules of civil procedure apply to proceedings within an agency or
intra-agency appeals as distinguished from appeals from the
decision of an agency to the district court. We have held that the
court-adopted rules apply to appeals from an administrative
agency to the district court, and for that matter, appeals from the
district court to the Supreme Court; but no case has been called to
our attention and our research does not reflect a decision of this
Court which has held that the Court-adopted rules of procedure
apply to intra-agency appeals and procedures.
The rules that may have application are contained in the
administrative regulations adopted pursuant to [N.D.C.C. §§] 28-
32-02, 28-32-02.1 and 28-32-03, and set out in the Administrative
Code . . .
The cases to which [the employer] has referred in support of
its position that the time should not be strictly adhered to all
involved appeals from an administrative agency to the court, as
distinguished from an appeal from one section or echelon to
another within the agency an intra-agency appeal.
9
Id. at 562.
[¶28] Larson has not directed us to any recent cases in which we have held the
rules of civil procedure apply to intra-agency appeals. The rationale we used
in Amoco still applies.
[¶29] Under N.D.C.C. § 65-04-32(2), the legislature fixed the time for filing a
request for reconsideration at thirty days from the date the notice of decision
was mailed. The legislature set the time for filing a petition for reconsideration
including the time for service by mail. The legislature contemplated the notice
of decision would be served by mail and limited the time for filing a request for
reconsideration to thirty days. We decline to extend that time period through
the application of N.D.R.Civ.P. 6(e)(1).

Outcome: Larson’s request for reconsideration was not timely, WSI correctly
applied the law, and Larson was not entitled to reconsideration of WSI’s
decision. Larson has not shown she has a clear legal right to review of WSI’s
initial decision determining Active Nutrition is an employer. Because there is
no violation of the law to correct, the district court did not abuse its discretion
by denying Larson’s request for a writ of mandamus.

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