Arizona Court of Appeals, Division One holds that if an agency does not provide a rule for service of an administrative decision, the decision must be formally served on the affected party for the time to appeal to run.

A university student received a failing grade and challenged it through the university’s grievance policy.  The university emailed the student a letter stating that the grade was upheld and the university’s decision was final.  Nine months after that letter, the student filed an administrative appeal in superior court.  The superior court dismissed the appeal as untimely under A.R.S. § 12-904, which provides that any appeal of an adverse administrative decision must be filed “within thirty-five days from the date when a copy of the decision sought to be reviewed is served upon the party affected.”

The dispute on appeal was over whether the student was properly served with the administrative decision.  A.R.S. § 12-904 provides that, when an agency does not adopt a rule or provide for a particular method of service, “a decision shall be deemed to have been served when personally delivered or mailed by certified mail . . . .”  The university argued that the email served the purpose of the statute, because the student had notice of the decision when she received the university’s letter by email.  The Court rejected the university’s argument and held that to comply with the statutory service requirement, the university needed to send the decision by certified mail to trigger the 35-day clock.  Because the university did not comply with the service requirement, the Court found that the appeal was timely.

Judge Foster authored the opinion, in which Judges Brown and Weinzweig concurred.  

Disclosure: Osborn Maledon attorneys were involved with this case.

Posted by: John Bullock