MIKEL K. WHITING, APPELLANT,
v.
FLORIDA DEPARTMENT OF LAW ENFORCEMENT, ET AL., APPELLEE
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Mikel Whiting, a dismissed FDLE employee, appealed his termination to the Public Employees Service Commission but filed his appeal one day late. The court affirmed the dismissal of his appeal because he failed to timely file within the statutory 14-day deadline and did not qualify for equitable tolling.
Whiting failed to timely file his appeal, having filed one day late on April 5, 2002, when the deadline was April 4, 2002. He does not qualify for equitable tolling because his claim rests solely on his mistaken belief about when the time period ended and unavailability of PERC's fax machine, neither of which constitutes the extraordinary circumstances required for equitable tolling.
[1] An appeal from a notice of final agency action must be filed within 14 calendar days from the date of receipt of the notice.
[2] Untimely petitions in administrative hearings concerning substantial rights are subject to dismissal.
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Join FLexlaw to unlock all legal intelligence“Section 120.569(2)(e) compels dismissal of untimely petitions in administrative hearings concerning substantial rights.”
Establishes the mandatory nature of dismissing late-filed administrative appeals
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Join FLexlaw to unlock all legal intelligenceWhiting was a career service employee of FDLE from October 1, 1999 to March 21, 2002, when he was dismissed. He received notice of dismissal by certif…
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Mikel Whiting (Whiting) appeals a final order of the Public Employees Service Commission (PERC), which adopted a hearing officer’s recommended order and dismissed his appeal in an employment termination case. We affirm because the record reflects that Whiting failed to timely file his appeal from the Notice of Final Agency Action of Dismissal.
Whiting was a career service employee of the Florida Department of Law Enforcement (FDLE) from October 1,1999 to March 21, 2002. He was dismissed on March 21, 2002, when a notice of final agency action of dismissal was delivered to him. Whiting filed a notice of appeal with PERC on April 5, 2002. However, FDLE filed a motion to dismiss the appeal as untimely. The basis for this motion was that Whiting was served with the notice by certified mail, return receipt requested on March 20, 2002,1 and was personally served with another notice the next day, March 21, 2002.
Pursuant to § 110.227(5), Whiting had 14 calendar days from the date he received the notice to file his appeal. Accepting the date of service as March 21, 2002, Whiting’s last day to file the appeal was April 4, 2002. At the hearing, Whiting stated he understood that the 14 days did not commence until the day after he was served, i.e., on March 22, 2002 (which is accurate). Whiting explained he attempted to fax his notice of appeal to PERC on April 4, 2002, but that his attempts were unsuccessful. He concluded “I elected to complete the fax on April 5, 2002 in the morning hours.” (emphasis added). Unfortunately for Whiting, this was one day late.
Section 120.569(2)(e) compels dismissal of untimely petitions in administrative hearings concerning substantial rights. See Cann v. Dept. of Children & Family Services, 813 So. 2d 237, 239 (Fla. 2d DCA 2002). Late filing is presumed to constitute a waiver of rights. Appel v. Florida Dept. of State, Div. of Licensing, 734 So. 2d 1180 (Fla. 2d DCA 1999).
We also conclude Whiting’s testimony is insufficient to support a claim of equitable tolling. Machotes v. Dept, of Administration, 523 So. 2d 1132, 1134 (Fla. 1988). Equitable tolling requires that the party be misled or lulled into inaction; that he was prevented from asserting his rights in some extraordinary way; or that he has timely asserted his rights in the wrong forum. Mochales. In this case, Whiting has claimed only his mistaken belief as to when the time period ended, and that PERC’s fax was not available to him at the time he wanted to fax his notice.
AFFIRMED.
PETERSON and ORFINGER, JJ., concur. . Whiting disputes that the envelope received that day contained the Notice.
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Eric Michael Patz, M.D. v. Dep't OF Health, 864 So. 2d 79 (Fla. 3d DCA 2003)…r lulled into inaction, that he was in some extraordinary way prevented from asserting his rights, or that he mistakenly asserted his rights in the wrong forum. Thus, equitable tolling does not apply. See Whiting v. Florida Dept. of Law Enforcement, 849 So. 2d 1149, 1151 (Fla. 5th DCA 2003)(affirm-ing dismissal of an untimely petition for an administrative hearing under section 120.569(2)(c) because Whiting’s mistaken belief as to when the time period for filing a petition ended was insufficient to support a c…
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O'Donnell's Corp. v. Himrod Ambroise, 858 So. 2d 1138 (Fla. 5th DCA 2003)…neglect has been eliminated as an exception to the dismissal requirement of the statute, equitable tolling remains as a viable exception. See Machules v. Department of Admin., 523 So. 2d 1132 (Fla.1988); Whiting v. Florida Dep’t of Law Enforcement, 849 So. 2d 1149 (Fla. 5th DCA 2003); see also Cann v. Department of Children & Family Servs., 813 So. 2d 237 (Fla. 2d DCA 2002). Application of equitable tolling as an exception to the dismissal requirement of section 120.569(2)(c) clearly indicates that the provis…
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Williams v. Albertson's, Inc., 879 So. 2d 657 (Fla. 5th DCA 2004)…tions period and the courthouse was open. Instead, the attorney chose to help another attorney with a personal matter on the last day to file. As Albertson’s notes, these facts are closer to those in Whiting v. Florida Department of Law Enforcement, 849 So. 2d 1149 (Fla. 5th DCA 2003). In Whiting, the appellant attempted to fax his notice of appeal on the last day to file. After two unsuccessful attempts to- fax, the appellant “elected” to try-again the next day. This Court held those facts were insufficient t…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- MacHules v. Dep't OF Admin., 523 So. 2d 1132 (Fla. 1988)
- Cann v. Dep't of Child. & Fam. Servs., 813 So. 2d 237 (Fla. 2d DCA 2002)
- Appel v. Fla. Dep't of State, 734 So. 2d 1180 (Fla. 2d DCA 1999)