Dowd v. Director of Div. of Employment Sec.

• Decision Date: 18 January 1984
• Citation: 390 Mass. 767,459 N.E.2d 471
• Parties: James R. DOWD v. DIRECTOR OF the DIVISION OF EMPLOYMENT SECURITY et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 471

459 N.E.2d 471

390 Mass. 767

James R. DOWD v. DIRECTOR OF the DIVISION OF EMPLOYMENT SECURITY et al.

¹

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Sept. 15, 1983.

Decided Jan. 18, 1984.

James R. Dowd, pro se.

George J. Mahanna, Asst. Atty. Gen., for Director of the Div. of Employment Sec., submitted a brief.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

LYNCH, Justice.

Pursuant to G.L. c. 151A, § 42, James R. Dowd appeals from the decision of a judge of a District Court affirming the decision of the board of review of the Division of Employment Security (DES), which had upheld the determination of the review examiner. We reverse the judgment of the District Court and remand the case to DES for further proceedings consistent with this opinion.

On July 31, 1981, a claims director in the Quincy employment security office handed Dowd a notice of disqualification for unemployment benefits under the Employment Security Law. See G.L. c. 151A, § 25(e) (2). ² At that time, Dowd told her that he would be moving to Pennsylvania and was concerned about the ten-day deadline for filing an appeal. G.L. c. 151A, § 39(b ). She assured him that he could file his claim in Pennsylvania and that the Massachusetts office would forward his records to Pennsylvania upon notification by the Shenandoah office. Dowd reported to the Shenandoah, Pennsylvania, office on August 4, 1981, and again on August 13, 1981, at which time certification for the week ending August 8, 1981, was taken. An appeal was actually taken on August 17, 1981, when Dowd filed a Notice of Interstate Appeal. A hearing was held in Shenandoah on September 15, 1981, in order to determine whether good cause existed for Dowd's failure to request a hearing within the ten-day period during which an appeal may be taken as a matter of right. G.L. c. 151A, § 39(b ). ³ Dowd was present, as was a representative from the Shenandoah employment security office (though not the representative Dowd had spoken with on any of his visits to the office). The electronic recording of the testimony taken at the hearing and the written record were reviewed by a review examiner in Boston on September 28, 1981. The examiner concluded that Dowd's reason for filing his appeal late did not constitute good cause and he affirmed the denial of benefits. The board of review likewise affirmed. Dowd then appealed to the Dorchester Division of the District Court Department, pursuant to G.L. c. 151A, § 42.

Dowd argues that neither the review examiner nor the board of review made findings of fact with regard to what Dowd considers the material issue--what happened at the Shenandoah office on August 4, 1981. Dowd claims that at that time he was informed that he could not appeal until his records arrived from Massachusetts. He maintains that again, on August 13, he was told that he would have to wait for his records to arrive from Massachusetts before he could file his appeal. We conclude that the procedure followed in this case was defective.

The Interstate Benefit Payment Plan is a program which allows a worker who has lost his job in one State (the liable State) to collect unemployment compensation even though he currently resides in another State (the agent State). 26 U.S.C. § 3304(a)(9)(A) (1976). Both Massachusetts and Pennsylvania participate in this program. G.L. c. 151A, § 66. Pa.Stat.Ann. tit. 43, § 792 (Purdon 1964 & Supp.1982).

The procedure by which Massachusetts handles the mechanical task of the determination of interstate claims is described in 430 Code Mass.Regs. § 4.05 (1981) as follows: "(a) The agent State shall, in connection with each claim filed by an interstate claimant, ascertain and report to the liable State in question such facts relating to the claimant's availability for work and eligibility for benefits as are readily determinable in and by the agent State. (b) The agent State's responsibility and authority in connection with the determination of interstate claims shall be limited to investigation and reporting of relevant facts."

The procedure adopted by the DES, while reserving to itself the actual decision making, delegates the fact finding to the agent State. In this case, the significant factual issue was what was said by and to Dowd when he went to the employment security security office in Shenandoah. In order to resolve this issue, the credibility of the witnesses must be assessed by the fact finder. ⁴ Since in this case the examiner in Pennsylvania simply mailed the record of the hearing to Massachusetts where a Massachusetts examiner made the decision, no one, neither the evidence taker nor the decision maker, assessed the credibility of the witnesses or resolved the conflict in their testimony.

The resolution of conflicts in testimony is one aspect of the fact finding process in an administrative proceeding. ⁵ Pursuant to the Interstate Benefit Payment Plan, Massachusetts has delegated to the agent State the responsibility for "investigation and reporting of relevant facts," 430 Code Mass.Regs. § 4.05(b) (1981). This responsibility requires that the agent State resolve conflicts in testimony. ⁶

The decision in Dowd's case turns very much on credibility. The dispute is about what happened at the Shenandoah unemployment office on August 4, 1981: what, exactly, Dowd asked for and what, exactly, he...