Brown v. Office of the Director of Regulation

This action was brought to appeal a final decision of the Defendant, Office of the Director of Regulations, denying the Plaintiffs application for a gaming license. The final decision was dated January 27, 2003. This appeal was filed February 24, 2003. The Defendant filed a Motion to Dismiss alleging that the appeal was not timely filed. For the following reasons, the Motion to Dismiss is denied.1

This appeal is governed by Mohegan Tribal Ordinance (M.T.O.) No.2002-13. That provides, in relevant part, that a “civil action under this ordinance shall be brought by filing an appeal with the Clerk of the Gaming Disputes Court within twenty days after mailing of the final decision by the agency ...” MTO 2002-13, Sec. 3(c). There is no dispute that this appeal was filed on February 24, 2003. The dispute concerns the date of “mailing of the final decision.” The defendant requests, in effect, that the court conclusively presume that the date of mailing was the date of the letter, January 27, 2003. If that were so, the final date for the filing of the appeal would have been February 16, 2003, and the appeal would have been too late. The court will not draw that presumption. This appeal was sent by certified mail. There was a green return receipt from the post office stamped February 6, 2003. *555The Plaintiff received oral notice from his mother, (who lives with him at the address to which the letter was addressed), that the post office attempted to deliver the letter to him at that address on February 6, but he was not at home. He went to the post office on February 6, and received and signed for, the letter on that date. There was no evidence of any effort on the part of the post office to deliver the letter prior to that date. This appeal was filed February 24, 2003. The court holds that for purposes of a Motion to Dismiss, the date of mailing was the date stamped on the return receipt, February 6, 2003. This appeal was filed February 24, 2003, 18 days after the date of mailing. This appeal was therefore timely filed, and the Motion to Dismiss is denied.