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Metcalf v. Felec Services (6/6/97), 938 P 2d 1023
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
EDWARD K. METCALF, )
) Supreme Court No. S-7884
) Superior Court No.
v. ) 3AN-95-9086 Civil
FELEC SERVICES, and CIGNA ) O P I N I O N
INSURANCE COMPANIES, )
) [No. 4828 - June 6, 1997]
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
John Reese, Judge.
Appearances: Edward K. Metcalf, pro se,
Anchorage. James E. Hutchins, Faulkner, Banfield, Doogan & Holmes,
Anchorage, for Appellees.
Before: Compton, Chief Justice, Matthews,
Eastaugh, and Bryner, Justices. [Fabe,
Justice, not participating.]
BRYNER, Justice, dissenting.
We must decide whether it was error to dismiss Edward
Metcalf's superior court workers' compensation appeal under
authority of Appellate Rule 511.5 because Metcalf failed to timely
file his opening superior court brief. We reverse.
II. FACTS AND PROCEEDINGS
Metcalf appealed from the September 29, 1995, decision
and order of the Alaska Workers' Compensation Board. His opening
superior court brief was originally due February 1, 1996. Metcalf
timely moved for a six-month extension of time in which to submit
his opening brief; if granted, his motion would have extended the
filing date to August 1, 1996. Superior Court Judge Dana Fabe
granted Metcalf a ninety-day extension. His brief was thus due May
1. Metcalf, who was pro se, moved to "amend"the extension order
to obtain the full six months he had requested. Superior Court
Judge John Reese denied the motion to "amend"and later denied
Metcalf's further motion for permission to file his brief July 31.
On May 28 the appellees moved pursuant to Appellate Rule 511.5 to
dismiss Metcalf's appeal because he had not filed his brief. [Fn.
On July 31 Metcalf tendered his opening brief to the
superior court, where it was lodged.
On August 15 Judge Reese granted the appellees' motion to
dismiss; he later denied Metcalf's timely motion for
reconsideration. Alaska R. Civ. P. 77(k)(4).
Metcalf alleged that permanent disability caused by a
brain concussion (suffered in the industrial accident which is the
subject of his workers' compensation claim) justified extending the
time in which to file his opening brief. He also alleged that he
has to spend eighteen hours a day in bed or resting and can be up
for only three two-hour periods daily without getting bad
headaches, that the stress of preparing one of his supreme court
briefs permanently disabled his digestive system and gave him a
skin condition, and that stress caused by intensive work on his
appeal briefs caused internal bleeding in his digestive system.
There is substantial doubt about Metcalf's credibility, given
findings by the Alaska Workers' Compensation Board in its September
29, 1995, decision and order that he is "not a credible witness"
and that he "could work for more than six hours in a day if he
wanted." Nonetheless, the validity of these findings was one of
the topics Metcalf attempted to address in his superior court
appeal. This topic was actually discussed in the opening brief he
lodged with the superior court July 31, 1996. [Fn. 2]
This court reviews a superior court's dismissal of an
appeal from an administrative agency decision for lack of
prosecution under Appellate Rule 511.5 for abuse of discretion.
Geczy v. State, Dep't of Natural Resources, 924 P.2d 103, 104
(Alaska 1994) (citing Cowitz v. Alaska Workers' Compensation Bd.,
721 P.2d 635, 638 n.2 (Alaska 1986)). An abuse of discretion will
be found only when a decision is "arbitrary, capricious, manifestly
unreasonable, or . . . stems from an improper motive." Sheehan v.
University of Alaska, 700 P.2d 1295, 1297 (Alaska 1985) (citations
We conclude that it was an abuse of discretion to grant
the motion to dismiss under Appellate Rule 511.5 despite Metcalf's
failure to file his brief timely. Even though Metcalf
unquestionably failed to timely file the brief per the controlling
extension order, the superior court had actually received the brief
more than two weeks before it entered the dismissal order. The
excuse tendered by Metcalf -- his continuing work-related
disability -- was interrelated with substantive appellate issues he
was attempting to raise. If it was true that he had suffered a
permanent disability and that he slept eighteen hours a day,
substantial justification for further extension of time was
demonstrated by this pro se litigant. We also note that Felec
Services and Cigna Insurance Companies, in moving to dismiss, made
no showing that they would be prejudiced by the filing delay. For
example, appellees did not demonstrate that the delay would hamper
their ability to controvert Metcalf's claim on its merits. Given
that the brief had already been lodged and that appellees
demonstrated no prejudice, the harsh remedy of dismissal could be
justified only if there had been some controlling principle, such
as a need to punish the wrongdoer, deter like conduct, preserve the
integrity of the fact finding process, or protect the dignity of
the court. The superior court identified no such justification.
The failure to abide by the court's extension order might well have
justified imposition of some sanction, and had appellees
demonstrated that they incurred unnecessary costs, some appropriate
remedy might have been fashioned. Those circumstances themselves,
however, would not justify complete dismissal of Metcalf's appeal.
We also note that there is no reason to think delay worked in
Metcalf's favor, such that only dismissal could prevent Metcalf
from using delay to his benefit. The record does not suggest that
the court considered, and rejected as ineffective, any less extreme
sanction or remedy. [Fn. 3] Cf. Underwriters at Lloyd's London v.
Narrows, 846 P.2d 118 (Alaska 1993) (setting aside default judgment
imposed as sanction for defendant's discovery violation where the
trial court failed to consider the effectiveness of any lesser
For these reasons, the order of dismissal is VACATED and
the matter is REMANDED to the superior court for further
proceedings. This court's order of February 19, 1997, staying the
superior court's consideration of the cross-appeal, is VACATED.
BRYNER, Justice, dissenting.
I find myself unable to agree with this court's reversal
of the superior court's order dismissing Metcalf's appeal.
Metcalf received an adverse ruling from the Workers'
Compensation Board and filed an appeal in the superior court.
After being notified of the due date for his opening brief, he
moved for a six-month extension. The extension would have changed
the due date from February 1, 1996, to July 31. To justify this
extraordinary delay, Metcalf advanced a conclusory assertion that
a 1982 head injury required him to sleep eighteen hours a day and
made it impossible for him to file the brief within the normal time
frame. Metcalf did not substantiate his claims of mental
incapacity and physical impairment, and he made no effort to
explain why an extension of less than six months would not have
sufficed. Despite these shortcomings -- and over Felec's
opposition -- the superior court granted Metcalf a ninety-day
extension to May 31. The court expressly warned Metcalf, however,
that "no further extensions will be granted."
Metcalf almost immediately began trying to circumvent the
court's "no further extensions"order. Twelve days after the court
granted Metcalf the ninety-day extension, he filed a "Motion for an
Amendment to . . . [the] Order Granting a 90 Day Extension." In
this motion, Metcalf sought to "amend"the ninety-day extension
order by extending it to cover the full period of delay originally
requested. To support the motion, Metcalf repeated the same
conclusory claims that he had advanced in his motion for a six-
month extension; he offered no further insight into why the just-
granted ninety-day extension was insufficient.
The superior court understandably rejected Metcalf's
attempt at an "amendment." Undeterred, Metcalf, on April 8, 1996,
filed a "Motion to Accept a Late File on July 31, 1996[.]" The
"late file"date Metcalf requested was, again, the date on which
his brief would have been due had his originally requested six-
month extension been allowed. And again, Metcalf made no attempt
to substantiate the need for a six-month extension; he simply
asserted that he had already shown that the extension was
The superior court denied Metcalf's "late file"motion.
The briefing deadline passed with no brief being filed. On May 29,
Felec moved to dismiss the appeal. Within several days, Metcalf
filed an opposition to the motion. The superior court took no
immediate action. On July 31, the date designated in his original
extension motion, Metcalf filed his brief, offering no further
justification or explanation.
Felec moved to strike the brief as ninety days overdue.
Metcalf promptly opposed the motion, but once again offered nothing
new. On August 15, 1996, the superior court granted Felec's motion
to dismiss the appeal, finding it "well taken." Metcalf thereafter
appealed to this court, seeking to litigate the merits of the
Workers' Compensation Board's decision. This court allowed the
appeal to proceed, but ordered it limited to the issue of whether
the superior court erred in dismissing the case; we directed that
this issue be considered on an expedited basis and without
briefing. This court now concludes that the superior court erred
in ordering dismissal. I disagree.
Admittedly, an untimely brief should rarely provide
occasion for dismissal. As the court aptly observes, the dismissal
for untimeliness in this case seems particularly harsh because it
was ordered after the untimely brief had already been filed. [Fn.
1] However, Metcalf's case presents exceptional circumstances.
Metcalf has been litigating this case for seventeen years
and has pressed his claims through seven decisions by the Workers'
Compensation Board and two prior decisions by this court. In the
past, the Board has found Metcalf responsible for delaying the
litigation -- a finding expressly affirmed by this court in Metcalf
v. Felec Servs., Mem. Op. & J. No. 662 (Alaska, April 21, 1993).
The Board has also found Metcalf responsible for unreasonably
refusing to undertake appropriate medical treatment -- a finding
likewise affirmed by this court. See Metcalf v. Felec Servs., 748
P.2d 1386, 1388 (Alaska 1990). Most recently, the Board has found
Metcalf's claims of impairment to be incredible -- a finding
Metcalf has not appealed.
Metcalf's history of litigiousness and procrastination,
his apparent lack of credibility before the Board, his failure to
submit any meaningful substantiation of his claim of impairment,
his failure to offer even a semblance of an explanation for his
purported inability to file a brief within the ninety-day extension
actually allowed, his promptness in responding to adverse orders
and motions, and his resourceful but transparent attempts to end-
run the superior court's order barring any further extensions all
belie Metcalf's claims of mental incompetency and physical
impairment; these same considerations bespeak Metcalf's wilfulness
in disregarding the superior court's scheduling orders, and his
obstinate insistence on having his own way.
The order dismissing Metcalf's case should be overturned
only if the superior court abused its discretion. See Geczy v.
State, Dep't of Natural Resources, 924 P.2d 103, 104 (Alaska 1994).
Given the exceptional nature of this case, I am unable to find an
abuse of discretion. Unlike the court, I do not view the dismissal
order as a purely punitive measure. [Fn. 2] The superior court is
a high-volume forum in which efficient case management and
integrity of scheduling orders are matters of keen interest and
paramount importance. Under the unique circumstances presented
here, acceptance by the superior court of Metcalf's late-filed
brief would have been tantamount to an abdication of that court's
authority to manage its own caseload. This court's decision does
little but send litigants like Metcalf an unmistakable signal to
litigate at their own pleasure.
Accordingly, I dissent.
Alaska Rule of Appellate Procedure 511.5 provides:
(a) If an appellant or an appellant's
counsel fails to comply with these rules, the clerk shall notify
the appellant and the appellant's counsel in writing that the
appeal will be dismissed for want of prosecution unless the
appellant remedies the default within 14 days after the date of
notification, time to be computed in accordance with Rule 502(c).
If the appellant fails to comply within the 14-day period, the
clerk shall issue an order dismissing the appeal for want of
prosecution. In no case, except by order of the court on a motion
to reinstate the appeal, shall the appellant be entitled to remedy
the default after the appeal has been dismissed under this rule.
(b) The dismissal of an appeal under
subsection (a) shall not limit the authority of the court to impose
monetary sanctions under Rule 510.
(c) The court may, upon motion of a
party or its own motion, dismiss an appeal for failure to comply
with these rules, whether or not prior notice of default has been
Appellate Rule 511.5 is made applicable to superior court appeals
by Appellate Rule 606(a).
Because there is a pending superior court cross-appeal, we
considered Metcalf's appeal on an expedited basis. We stayed the
superior court cross-appeal pending resolution of Metcalf's appeal
in this court. We are ruling on the basis of the record below,
including the appellees' superior court motion to dismiss, their
opposition to Metcalf's supreme court motion to docket this appeal,
and their opposition to Metcalf's motion for full court
reconsideration of a single justice order denying Metcalf's motion
to docket this appeal.
One such remedy might have been accelerating or limiting any
oral argument, or, in the event Metcalf prevailed, denying him
costs. The potential ineffectiveness of other remedies is mirrored
in the ineffectiveness of dismissal: Metcalf's exercise of his
right to appeal the dismissal has substantially added to the delay.
This case would be closer to final resolution if the superior court
had accepted Metcalf's brief and considered the appeal and cross-
appeal on their merits.
This harshness may be more seeming than real. By waiting to dismiss the case until after the
originally-requested six-month deadline had passed and Metcalf had filed his brief, the superior court
in effect allowed Metcalf one last opportunity to substantiate his claim of impairment and explain his
need for a full six months. When Metcalf failed to offer any additional justification for his dilatory
filing, the court dismissed the case. To fault the court for waiting under these circumstances will only
encourage judges to act precipitously in dismissing administrative appeals involving tardy briefing.
For this reason, I do not believe that an exploration of lesser sanctions was required, as the
court suggests. In any event, the lack of any exploration of lesser sanctions seems inconsequential,
in context. Metcalf has no significant financial resources and would thus be impervious to any form
of monetary sanction. And given that this was an administrative appeal, it did not lend itself to any
of the lesser procedural and evidentiary sanctions that are normally available in civil cases that are
awaiting trial or being tried. The court suggests no lesser sanctions that could realistically have been
considered or applied in this case.