1 F.3d 1231 (1st Cir. 1993), 93-1138, Kelly v. Nordberg

Docket Nº:93-1138.
Citation:1 F.3d 1231
Party Name:Danny M. KELLY, Plaintiff, Appellant, v. Niles L. NORDBERG, et al., Defendants, Appellees.
Case Date:August 17, 1993
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
FREE EXCERPT

Page 1231

1 F.3d 1231 (1st Cir. 1993)

Danny M. KELLY, Plaintiff, Appellant,

v.

Niles L. NORDBERG, et al., Defendants, Appellees.

No. 93-1138.

United States Court of Appeals, First Circuit

August 17, 1993

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA1 Rule 36 regarding use of unpublished opinions)

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

Danny M. Kelly on brief pro se.

Scott Harshbarger, Attorney General, and Steve Berenson, Assistant Attorney General, on Memorandum in Support of Appellee's Motion for Summary Affirmance, for appellee.

D. Mass.

VACATED AND REMANDED.

Before Breyer, Chief Judge, Selya and Stahl, Circuit Judges.

Per Curiam.

The narrow question before us is whether plaintiff was required to exhaust state administrative remedies before bringing this suit. Plaintiff appears pro se seeking unspecified damages, injunctive and declaratory relief against the Massachusetts Department of Employment and Training's ("DET's") practice of disqualifying for unemployment benefits those persons who travel outside of the State for the dual purpose of seeking work and engaging in other activities. The district court granted to defendant a judgment on the pleadings. We vacate and remand without prejudice to consideration of any other issue in the case.

A grant of judgment on the pleadings is subject to plenary review. International Paper Co. v. Jay, 928 F.2d 480, 482 (1st Cir. 1991). We accept as true all of the non-movant's factual allegations and draw all reasonable inferences in his favor. Santiago de Castro v. Morales Medina, 943 F.2d 129, 130 (1st Cir. 1991). We are aided here by the parties' apparent agreement as to the administrative posture of plaintiff's claim.

According to the complaint, plaintiff was qualified to receive unemployment benefits of $282 per week beginning in September, 1991, after he lost his job as a software engineer at Wang Laboratories. He sought new employment locally and in the midwest. When he filed a required periodic claim for benefits in December, 1991, he certified that he would be in Chicago, Illinois from December 23, 1991 until January 5, 1992. He alleged that his reason for travel was to look for work and to visit family and friends. He also certified that while he was there he actively sought work, and was "available" for employment. 1

The DET denied plaintiff any benefits for the two weeks he was in Chicago because of the dual purpose of his trip. According to both parties' pleadings, the agency's rule, as reflected in its "Service Representative Handbook," is that a claimant who travels or stays outside of the registration area must do so "for the SOLE purpose of seeking new employment or reporting for a pre-arranged job or job interview" in order to qualify for benefits. 2 Answer Exh. D., Complaint ¶ 7. Based on plaintiff's written answers to questions about his trip, a DET adjudicator decided that plaintiff's trip "did not meet the requirements of the law because ... looking for employment was not the sole purpose of the trip." Answer ¶ 7, Exh. D.

Under M.G.L. c. 151A, § 39(b), a claimant may seek reconsideration of the DET's initial determination by requesting a de novo hearing before a review examiner. In the absence of such a request, the initial determination is final. The parties agree that plaintiff did not request agency review, but the DET spontaneously treated plaintiff's correspondence as a notice of appeal, advising plaintiff of a hearing date. Plaintiff did not appear at the scheduled hearing and did not respond to a further notice from the DET offering to consider any justifications for his failure to appear. DET dismissed the appeal.

Plaintiff instead filed this complaint pro se alleging that DET's travel rule unconstitutionally infringed on his right to travel and to enjoy the same benefits as lifelong residents of Massachusetts. 3 Defendant answered and moved for judgment on the pleadings on the ground that plaintiff had failed to exhaust his administrative remedies and failed to state a claim. At the hearing on the motion, the judge inquired whether DET was...

To continue reading

FREE SIGN UP