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Appeal from the Industrial Commission of the State of Idaho.

The decision of the Industrial Commission is affirmed.

Vernon K. Smith Jr., Boise, for appellant.

Lawrence G. Wasden, Attorney General, Boise, for respondent. Cheryl George 

argued.

____________________________________

W. Jones, Justice

I. NATURE OF THE CASE

This case arises from the Idaho Department of Labor‘s (the Department‘s) determination 

that Vernon K. Smith (Smith) willfully failed to file a fourth quarter 2007 Idaho Employer‘s 

Quarterly Unemployment Insurance Tax Report. Smith appealed the Department‘s 

determination to the Appeals Examiner and the Appeals Examiner affirmed the Department. 

Smith appealed to the Industrial Commission (the Commission). The Commission determined 

Smith‘s appeal to be untimely. Smith appeals that determination to this Court.

II. FACTUAL AND PROCEDURAL BACKGROUND

The Appeals Examiner affirmed the Department‘s decision assessing Smith‘s tax liability

on May 1, 2008, and a written decision was issued to Smith stating that May 15, 2008, was the 

last day to appeal to the Commission. Smith sent a notice of appeal by mail and by facsimile. 

Smith sent the facsimile at 5:22 p.m. on May 15, 2008, and the Commission received Smith‘s 

appeal by mail on May 28, 2008. The envelope arrived with a private-postage-meter stamp 

IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 35651

VERNON K. SMITH, JR.,

 Employer/Appellant, 

v. 

 

IDAHO DEPARTMENT OF LABOR,

 

 Respondents. 

 

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Boise, August 2009 Term

2009 Opinion No. 117

Filed: October 1, 2009

Stephen W. Kenyon, Clerk
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dated May 15, 2008, but also bore a U.S. Postal Service (USPS) backstamp from Watsontown, 

Pennsylvania, dated May 20, 2008.

Smith concedes that the facsimile was sent after the May 15 time limit because facsimiles 

are deemed to be received the following day if they arrive after 5:00 p.m.1 However, Smith 

argues that the private-postage-meter stamp on the mailed appeal demonstrates that it was timely 

filed on May 15, 2008. This contention is supported by an affidavit from John M. Gibson, 

Smith‘s office manager, who stated that he sent the appeal by facsimile on May 15 and then put 

the appeal in an envelope, applied postage to the envelope with the private postage meter, and 

deposited the appeal in the mail by taking the envelope to the post office that same day. In his 

brief, Smith noted the anomalous nature of the Watsontown backstamp, stating that ―[w]here 

such a mark came from on the reverse side of the envelope is both mystical and quite interesting, 

as the letter was being sent [from] Boise, Idaho, not Watsontown, PA.‖

The Department, however, contends that the Watsontown stamp is a ―postmark,‖ 

indicating that the USPS did not take custody of Smith‘s mailpiece until May 20, 2008, five days 

after the appeal deadline. The Commission held that Smith‘s appeal was not timely filed, and

therefore dismissed Smith‘s appeal. Smith appeals that determination to this Court.

III. ISSUES ON APPEAL

1. Whether the notice of appeal was timely served upon the Idaho Industrial Commission 

pursuant to I.C. §§ 72-1368(5), -1368(6).

2. Whether the Idaho Department of Labor is entitled to recover attorney‘s fees on appeal 

pursuant to I.C. § 12-117.

IV. STANDARD OF REVIEW

When reviewing a decision of the Industrial Commission, this Court freely reviews 

questions of law. Uhl v. Ballard Med. Prod., Inc., 138 Idaho, 653, 657, 67 P.3d 1265, 1269 

(2003). This Court will not disturb findings of fact unless the findings are clearly erroneous. Id. 

Findings of fact are not clearly erroneous if they are supported by substantial and competent 

evidence. Id.

V. ANALYSIS

A. The Appeal Was Not Timely Served upon the Idaho Industrial Commission 

Pursuant to I.C. §§ 72-1368(5), -1368(6).

 

1 Rule 2(D)(3) of the Rules of Appellate Practice and Procedure under the Idaho Employment Security Law provides 

that, ―An appeal transmitted by facsimile and received by the Commission on a weekend, holiday, or after 5:00 p.m. 

on a business day shall be deemed filed on the next business day.‖
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Smith‘s basic argument is that the private postage meter mark dated May 15 is a 

postmark.

The Idaho Employment Security Law is codified at I.C. §§ 72-1301 to -1385. ―The 

commission is authorized to hear and decide matters appealed to it in accordance with the 

provisions of this chapter . . . .‖ Id. § 72-1332. ―The statutory requirements governing the right 

to appeal under the Employment Security Act are mandatory and jurisdictional.‖ Fouste v. Dep’t 

of Employment, 97 Idaho 162, 168, 540 P.2d 1341, 1347 (1975).2 ―Unless an interested party 

shall within fourteen (14) days after service of the decision of the appeals examiner file with the 

commission a claim for review or unless an application or motion is made for a rehearing of such 

decision, the decision of the appeals examiner shall become final.‖ I.C. § 72-1368(6). 

The Director of the Department is charged with administration of the Employment 

Security Law and ―shall have the authority pursuant to [the Idaho Administrative Procedure Act] 

to adopt, amend, or rescind rules as he deems necessary for the proper performance of all duties 

imposed upon him by law.‖ Id. §§ 72-1318, -1333(1)–(2). According to the Idaho Code, special 

rules govern appeals before the Commission: 

Appeal procedures shall be governed by the provisions of section 72-1368(6), (7), 

(8), (9) and (11), Idaho Code. . . . The provisions of the Idaho administrative 

procedure act . . . regarding contested cases and judicial review of contested cases 

are inapplicable to proceedings involving interested employers under this chapter.

I.C. § 72-1361; see also id. § 72-1368(12) (stating that the Idaho administrative procedure act

(IDAPA) is not applicable to employment-security appeals); Henderson v. Eclipse Traffic 

Control and Flagging, Inc., No. 34526, 2009 WL 1564538 (Idaho June 5, 2009) (stating that 

proceedings before the commission are not subject to the IDAPA). ―The commission shall 

decide all claims for review filed by any interested party in accordance with its own rules of 

procedure not in conflict herewith.‖ Id. § 72-1368(7).

Appeals before the Commission are governed by the Rules of Appellate Practice and 

Procedure Under the Idaho Employment Security Law [hereinafter ―Commission Appellate 

 

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The letter sent to Smith notified him of the Appeals Examiner‘s decision and that he had fourteen days from the 

date of the mailing of the decision to appeal to the Industrial Commission by mail or facsimile:

If the appeal is mailed, it must be postmarked no later than the last day to appeal. An appeal filed 

by facsimile transmission received after 5:00 p.m. will be deemed received by the Commission on 

the next business day. A late appeal will be dismissed.

(emphasis in original). 
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Rules‖], promulgated pursuant to I.C. §§ 72-508 and -1368(7). Under the Commission 

Appellate Rules, ―filing‖ occurs by mail when the appeal is mailed, and the date of mailing is 

―determined by the postmark on the envelope containing the appeal.‖ Comm‘n App. R. 2(D); 

see also Dep’t of Employment v. Drinkard, 98 Idaho 222, 225, 560 P.2d 1312, 1315 (1977) 

(―[T]he date of the postmark on a claim for review is deemed to be the date of its filing with the 

Commission.‖); In re Dominy, 116 Idaho 727, 729, 779 P.2d 402, 404 (1989) (same). A 

postmark is ―[a] stamp or mark put on letters or other mailable matter received at the post-office 

for transmission through the mails.‖ Black’s Law Dictionary (6th ed.). The USPS defines a 

postmark as a ―postal cancellation imprint on letters[,] flats[,] and parcels. The imprint shows 

[the] date and the name, state, and ZIP Code of the post office or sectional center facility that 

accepted custody of the mailpiece.‖ USPS Pub. 32 at 90, (July 5, 2007) available at 

http://www.usps.com.

The Commission incorrectly found that May 20, 2008, the date stamped on Smith‘s 

appeal envelope in Watsontown, Pennsylvania, was the date ―on which the U.S. Postal Service

took custody of Claimant‘s protest for the express purpose of delivering it to the Commission.‖ 

The Watsontown mark was not a postmark but a backstamp. To ―backstamp‖ a mailpiece is 

merely ―[t]o mark the back of a mailpiece with a postmarking or cancelling device to show that 

the piece was received, dispatched, or missent.‖ USPS Pub. 32 at 12. The Watsontown stamp

merely indicates that the piece had been missent to Pennsylvania and was being rerouted back to 

Idaho. Because the backstamp does not establish when the USPS actually received the piece, it 

cannot be a valid postmark to establish the date an appeal was filed with the Commission. Aside 

from Smith‘s postage-meter mark, the backstamp is the only mark that appears on the envelope, 

so the envelope never has been postmarked at all.

In addition, the private postage-meter mark on Smith‘s appeal cannot substitute for a 

postmark to establish the date of the appeal filing to the Commission. The Commission 

Appellate Rules are clear that the date of filing is ―determined by the postmark on the envelope.‖ 

Comm‘n App. R. 2(D). A postmark can only be applied by the USPS itself to indicate whether, 

when, and where the post office accepted the piece of mail or to show that there is a defect in the 

mailpiece or its affixed postage. USPS Pub. 32 at 12, 90. In contrast, the United States Postal 
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Service Domestic Mail Manual3defines a postage-meter machine as a ―device or system of 

components a customer uses to print evidence that postage required for mailing has been paid.‖4 

USPS Dom. Mail Manual § 604.4.1.1. Thus, ― ̳the metered stamp [in private offices] has little, if 

any, probative force as evidence of the date of mailing.‘‖ Texas Beef Cattle Co. v. Green, 862 

S.W.2d 812, 814 (Tex. Ct. App. 1993) (modification in original) (quoting Albaugh v. State Bank, 

586 S.W.2d 137, 138 n.2 (Tex. Ct. App. 1979)). Like a backstamp, a postage-meter mark cannot 

be a postmark because it does not indicate if, when, or where the USPS accepted custody of the 

mailpiece. The user can easily print an inaccurate date or deliver the mail on a different date 

than that indicated by the postage meter on the envelope. The sender can also simply omit part 

or all of the date from the mailpiece and send the letter at any time. USPS Dom. Mail Manual § 

604.4.5.2.c. 

It is true that even though the mark is simply evidence that the customer paid postage, 

metered mailpieces bearing a date ―must be deposited or presented‖ to the USPS on the meterstamp date according to the rules that the USPS imposes on meter users. Id. § 604.4.5.2.a. If the 

mailpiece is not deposited on the meter-stamp date, a date correction must be applied to the 

piece. Id. § 604.4.4.1.a. Nonetheless, despite the USPS policy against accepting a mailpiece 

with an incorrect postage-meter date, the USPS cannot closely scrutinize all of the millions of 

meter-marked dates on the mail it processes. See Lin v. Unemployment Comp. Bd. of Review, 

735 A.2d 697, 700 (Pa. 1999) (―[A meter mark] lacks the inherent reliability of the official 

United States postmark.‖). In short, the meter mark is merely evidence of whether postage was 

paid—not when it was placed in USPS custody. Accordingly, Smith‘s appeal was properly 

dismissed.

Finding that Smith‘s appeal was not timely filed is consistent with this Court‘s holdings

in Moore v. Melaleuca, 137 Idaho 23, 43 P.3d 782 (2002), and In re Dominy, 116 Idaho 727, 779 

P.2d 402 (1989), both of which interpreted similar provisions designating the postmark date as 

 

3 The United States Postal Service Domestic Mail Manual contains internal rules governing the postal system. See 

39 C.F.R. § 111.1 (2009) (incorporating the Manual by reference). It can be found at http://pe.usps.gov.

4 The postage meters are available through authorized meter providers and may be leased or rented, but may not be 

sold or resold. USPS Dom. Mail Manual § 604.4.1.2.a. Customers using postage meters must enter into an 

agreement with the United States Postal System (USPS) and agree to ―abide by all rules and regulations governing 

its use.‖ Id. § 604.4.2.1. The postage meter must be inspected by the manufacturer on a scheduled basis and may be 

examined by the USPS. Id. § 604.4.2.1.d. The USPS may deny the use of the postage meter machine to any 

customer who fails to comply with the rules and regulations. Id. § 604.4.2.4. 
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the date of filing an appeal. In Moore, the appellant in an unemployment claim delivered her 

appeal to the U.S. Post Office in Idaho Falls around 5:30 on the final day of filing, but when the 

notice arrived at the Commission, it was postmarked for the following day in a different city. Id. 

This Court nonetheless upheld the Commission‘s ruling that the delivery was timely because the 

appellant had obtained a letter from the USPS claiming fault for the untimely postmark. Id. By 

contrast, in Dominy, the appellant, his lawyer, and his lawyer‘s secretary all submitted affidavits 

attesting that the notice of appeal had been timely sent from Weiser, Idaho. Dominy, 116 Idaho 

at 728, 779 P.2d at 403 However, the appellant only submitted an affidavit from the USPS 

stating that a mailpiece sent from Weiser would not be postmarked until it was received in Boise, 

leaving uncertainty as to when it was actually sent. Id. This Court held that, despite the 

affidavits, there was simply not enough evidence to overcome the presumption that a piece of 

mail is sent on the date of its postmark. Id., at 729, 779 P.2d at 404. Read together, these cases 

require that, in the absence of a USPS postmark, an appellant must provide evidence from the 

USPS to verify that the mailpiece was sent on a particular day. The USPS routinely postmarks 

stamped mail but does not ordinarily postmark metered mail. Thus, to ensure that a mailed 

notice is timely filed, parties should always either use an ordinary postage stamp to ensure that 

the mailpiece is postmarked or specifically request a postmark on metered mail to verify when 

the USPS took custody.

Here, Smith‘s appeal bears a postage-meter mark but no postmark. The meter mark is an 

inherently unreliable means of demonstrating when a mailpiece is sent and cannot substitute for 

an actual postmark. Smith has no other evidence from the USPS to indicate when the USPS took 

custody of the appeal mailpiece, only an affidavit from his office manager attesting that the mark 

is accurate. Thus, there is substantial evidence to support the Commission‘s finding that the 

appeal was untimely filed.

B. The Idaho Department of Labor Is Not Entitled to Recover Attorney’s Fees on 

Appeal Pursuant to I.C. § 12-117.

Reasonable attorney‘s fees and costs are available to the prevailing party under Idaho 

Code § 12-117 ―if the court finds that the party against whom the judgment is rendered acted 

without a reasonable basis in fact or law.‖ The issue of whether a postage-meter mark can 

substitute as a postmark when determining the filing date of an appeal is an issue of first 

impression in Idaho and one on which other state courts disagree. Compare Bennett, 42 S.W.3d 

at 590 (holding that the postmark presumptively indicates the date of mailing), Texas Beef Cattle 
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Co., 862 S.W.2d at 814 (same), Konfirst v. Willow CSN Inc., No. 1737-N, 2006 WL 3803469, *1 

(Del. Ch. Dec. 14, 2006) (unpublished opinion) (same), and Corona v. Boeing Co., No. 47792-7-

I, 2002 WL 339353, *3 (Wash. Ct. App. Mar. 4, 2002) (unpublished opinion) (same), with

Chevron U.S.A., Inc. v. Dep’t of Revenue, 154 P.3d 331, 337 (Wyo. 2007) (holding that the 

state‘s private postage meter stamp constitutes a ―postmark‖), 1000 Friends of Oregon v. 

Columbia County, 917 P.2d 543, 544 (Or. Ct. App. 1996) (stating that the date of filing can run 

from the date a mailpiece is metered), and Frandrup v. Pine Bend Warehouse, 531 N.W.2d 886, 

890 (Minn. Ct. App. 1995) (holding that metered mail can be timely even if the postmark is not).

Accordingly, Smith acted with a reasonable basis in law and the Department is not 

entitled to attorney fees. Costs on appeal to Respondent.

VI. CONCLUSION

For the foregoing reasons we affirm the Industrial Commission‘s decision dismissing 

Smith‘s appeal as untimely.

Chief Justice EISMANN, Justices BURDICK, J. JONES and HORTON, CONCUR.