HARRISON v. State Dep't of Indus. RELATIONS

• Decision Date: 22 January 2010
• Docket Number: 2080886.
• Parties: Robert L. HARRISON v. STATE DEPARTMENT OF INDUSTRIAL RELATIONS.
• Court: Alabama Court of Civil Appeals

42 So.3d 132

Robert L. HARRISON
v.
STATE DEPARTMENT OF INDUSTRIAL RELATIONS.

2080886.

Court of Civil Appeals of Alabama.

January 22, 2010.

Robert L. Harrison, pro se.

Frank D. Marsh, gen. counsel, and Shirley Z. Brown, deputy gen. counsel, Alabama Department of Industrial Relations, for appellee.

PER CURIAM.

Robert L. Harrison appeals from a summary judgment in favor of the State Department of Industrial Relations ("DIR"). The summary judgment was based upon Harrison's failure to timely file an appeal of DIR's determination that he was ineligible to receive unemployment-compensation benefits.

The record indicates the following. Harrison, who has appeared pro se throughout these proceedings, filed a claim with DIR for unemployment-compensation benefits on February 24, 2008. On March 20, 2008, DIR mailed Harrison a "Notice of Determination" ("the notice") denying

42 So.3d 133

Harrison's claim. The notice consists of a completed preprinted form, known as a Form BEN-11, and includes instructions on how to appeal from an adverse ruling. The instructions state that an appeal must be filed within 15 calendar days from the date the notice is mailed to the claimant. In this case, the notice was mailed by first-class mail, postage prepaid, to Harrison's last known address, and it was not returned to DIR as undeliverable. Harrison claimed he did not receive the notice.

On December 9, 2008, more than eight months after the notice had been mailed, Harrison attempted to appeal from the denial of his claim. On December 11, 2008, DIR sent Harrison a notice that his appeal was deemed late, but DIR granted a hearing on the issue of the timeliness of his appeal. The hearing was held on February 24, 2009, after which the administrative hearing officer who heard the appeal issued a decision that Harrison's appeal was untimely. On February 26, 2009, that decision was mailed to Harrison at the same address as the other notices.

Harrison timely appealed the hearing officer's decision to the DIR Board of Appeals. The Board of Appeals "disallowed" Harrison's appeal. Harrison then timely filed an appeal with the Jefferson Circuit Court. DIR moved for a summary judgment on the ground that Harrison had failed to timely appeal the March 2008 determination denying his claim. After a hearing on the motion, the trial court entered a summary judgment in favor of DIR. Harrison timely appealed to this court.

"We review a summary judgment de novo. American Liberty Ins. Co. v. AmSouth Bank, 825 So.2d 786 (Ala. 2002).

"`We apply the same standard of review the trial court used in determining whether the evidence presented to the trial court created a genuine issue of material fact. Once a party moving for a summary judgment establishes that no genuine issue of material fact exists, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. "Substantial evidence" is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." In reviewing a summary judgment, we view the evidence in the light most favorable to the nonmovant and entertain such reasonable inferences as the jury would have been free to draw.'

"Nationwide Prop. & Cas. Ins. Co. [v. DPF Architects, P.C.], 792 So.2d [369] at 372 [(Ala.2001)] (citations omitted), quoted in American Liberty Ins. Co., 825 So.2d at 790."

Potter v. First Real Estate Co., 844 So.2d 540, 545 (Ala.2002).

The only issue Harrison raises on appeal is whether DIR violated § 41-22-16(d), Ala.Code 1975, of the Alabama Administrative Procedure Act ("the AAPA"), § 41-22-1 et seq., Ala.Code 1975, by sending the initial notice of the denial of his claim for benefits by first-class mail rather than by certified mail. Section 41-22-16(d) provides as follows:

"(d) Parties shall be notified either personally or by certified mail return receipt requested of any order and, unless waived, a copy of the final order shall be so delivered or mailed to each party or to his attorney of record. Provided, however, that, except as hereinafter provided, notification of any order other than a final decision or order subject to judicial review may, where permitted by existing statute, be delivered by first class mail, postage prepaid,

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and delivery shall be effective upon deposit of the notice and, unless waived, the final order in the mail; provided, the notification of the final order subject to judicial review, together with a copy of the final order, shall be delivered either by personal service as in civil actions or by certified mail, return receipt requested."

(Emphasis added.)

The issue whether the notice of determination, i.e., the completed DIR Form BEN-11, was a "final decision or order subject to judicial review" was not explicitly raised before the trial court. However, Harrison did argue in the trial court that DIR was required to send the notice to him by certified mail, return receipt requested, and that it violated the requirements of the AAPA when it mailed the notice by first-class mail. Therefore, implicit in the trial court's judgment is a determination that the notice at issue was not a "final decision or order subject to judicial review" required to be sent by certified mail.

In his argument that the notice had to be mailed to him by certified mail, Harrison ignores earlier provisions in § 41-22-16 that describe final orders that must be sent to the parties by certified mail. Those provisions provide as follows:

"(a) The final order in a proceeding which affects substantial interests shall be in writing and made a part of the record and include findings of fact and conclusions of law separately stated, and it shall be rendered within 30 days:

"(1) After the hearing is concluded, if conducted by the agency;

"(2) After a recommended order, or findings and conclusions are submitted to the agency and mailed to all parties, if...