Hill v. District Unemployment Compensation Board

• Decision Date: 29 March 1973
• Docket Number: No. 6344.,6344.
• Citation: 302 A.2d 226
• Parties: Mariann L. HILL, Petitioner, v. DISTRICT UNEMPLOYMENT COMPENSATION BOARD, Respondent.
• Court: D.C. Court of Appeals

302 A.2d 226

Mariann L. HILL, Petitioner, v. DISTRICT UNEMPLOYMENT COMPENSATION BOARD, Respondent.

No. 6344.

District of Columbia Court of Appeals.

Submitted October 24, 1972.

Decided March 29, 1973.

Mariann L. Hill, pro se.

Russell L. Carter, Washington, D. C., with whom George A. Ross and Bill L. Smith, Washington, D. C., were on the brief, for respondent.

Before PAIR, YEAGLEY and HARRIS, Associate Judges.

PAIR, Associate Judge:

By this petition for review, petitioner has challenged for the third time an order of the District of Columbia Unemployment Compensation Board (the Board) denying her unemployment benefits for the period commencing March 9, 1970, and ending May 31, 1970.¹

The case was brought here for the first time after the Board, by resolution entered June 9, 1970, denied petitioner unemployment benefits for the period involved. The Board's resolution affirmed a decision of its appeals examiner who concluded, from the record made at a hearing conducted by an Illinois hearing referee pursuant to a reciprocal agreement,² that petitioner had not been available for work during such period as required by D.C. Code 1967, § 46-309.

Upon examination of that record it appeared to be so inadequate and incomplete that meaningful judicial review of the Board's resolution and order was impossible. We therefore and without reaching the merits, remanded the record to the Board³ with directions to make and certify to the court appropriate findings of fact and conclusions of law as required by the District of Columbia Administrative Procedure Act (D.C.APA), D.C.Code 1967, § 1-1501 et seq. (Supp. V, 1972).

Responsive to our mandate, the Board prepared and submitted to the court detailed findings of fact and conclusions of law from which it again concluded that petitioner was not entitled to unemployment benefits for an indefinite period commencing March 1, 1970.

Petitioner again complained to this court respecting the Board's disposition of her claim. Upon our review of the administrative record, it appeared that the findings of fact upon which the Board based its order were without any significant support in the testimony adduced at the hearing before the Illinois hearing referee.⁴ Thus the court, being unable to make a considered judgment as to whether there had been a fair hearing and a result supported by substantial evidence, reversed the decision of the Board and remanded with directions to grant petitioner a new hearing on her claim for unemployment benefits.⁵

Thereafter and pursuant to a reciprocal arrangement, a State of Illinois hearing referee conducted on December 4, 1971, a new hearing, and on December 6, 1971, transmitted to the Board's appeals examiner a cassette recording of the proceedings.

The Board's appeals examiner reviewed the record of the proceedings⁶ and made findings of fact from which he again concluded that petitioner failed, during the period involved, to meet the availability requirements of D.C.Code 1967, § 46-309(d), and was for that reason not entitled to unemployment benefits. The Board, concluding upon review of the record that the decision of the appeals examine) was supported by the evidence, resolved on May 2, 1972, to adopt as its own the findings and conclusions upon which the decision of the appeals examiner was based. Such findings and conclusions of the Board are, of course, conclusive upon this court if supported by evidence in the whole of the administrative record. D.C.Code 1967, § 46-311(f). See AEM, Inc. v. Ecke, 106 U.S.App.D.C. 240, 271 F.2d 506 (1959). We proceed, therefore, to consideration of petitioner's contention that the decision of the Board is not supported by the evidence.

The pertinent findings as recited in the Board's resolution of May 2, 1972, are in substance that petitioner's testimony and that of her two witnesses is in conflict with statements set forth in the "IB-2 reports" filed by petitioner with the Illinois Bureau of Employment Security. Specifically, the Board's findings were that, although counseled to search diligently for employment, petitioner, by her own admissions, made, prior to May 9, 1970, an average of only one job contact weekly and thereafter only two such contacts.

Uncontroverted at the hearing, however, was petitioner's testimony, corroborated by her two witnesses, that she was available for work during the entire period; that she had made constant effort to obtain employment; that she had registered with both the Illinois local and state employment agencies; and that, in addition, she had made numerous job contacts. Uncontroverted also was petitioner's testimony that she had been instructed to list only the job contacts who accepted her application for employment and that later, when she was instructed to list all job contacts whether or not her application was accepted, she complied.

Petitioner concedes that during the weeks ending March 7 and 21, 1970, respectively, she was handicapped in her search for employment — first, because of difficulty in obtaining transportation to the job markets; and, secondly, because of problems in respect to heating and utilities which developed when she moved into her new home. Petitioner stated, however, that when she found that transportation was available in the nearby city of Harvey and "learned how the buses ran and everything", she made job contacts as far away as Chicago.

The Board seems to have recognized that petitioner experienced these difficulties because in its findings it made much of such difficulties and the fact that petitioner's new home was about one mile from public transportation.

Significantly enough, there is no showing in the record whatsoever that the Board, in disposing of petitioner's claim, considered whether under the circumstances there was good cause for petitioner's failure to comply fully, during the two weekly periods, with the requirement of availability:⁷ Moreover, and compounding the difficulty we face in reviewing the Board's findings and conclusions, is the absence of a report or comment by the Illinois hearing referee in regard to any conflict or inconsistency between the testimony of petitioner and her witnesses at the hearing and statements — attributed to petitioner — set forth on the interstate claim forms. See Board Regulation 18:305.6.

Involved, therefore, is substantially the same problem confronted and disposed of by the court in Simmons v. District Unemployment Compensation Bd., D.C.App., 292 A.2d 797 (1972), where, as here, neither the Board nor its appeals examiner heard the testimony or was in a position to judge the credibility of the witnesses.

Quoting with approval from the Administrative Law Treatise of Professor Davis,⁸ we said in Simmons, supra at 800:

The Supreme Court has admonished generally that "[t]he one who decides must hear." Morgan v. United States, 298 U.S. 468, 481, 56 S.Ct. 906, 912, 80 L.Ed. 1288 (1936). This court has recognized that when opportunity on the part of an administrative board to hear the witnesses and "observe their demeanor in the act of testifying" is lacking, and "weight and credibility of witnesses" is involved, due process is also lacking. Feldman v. Board of Pharmacy of District of Columbia, D.C.Mun.App., 160 A. 2d 100, 103 (1960). See Shawley v. Industrial Commission, 16 Wis.2d 535, 114 N.W.2d 872, 875-876 (1962).

Because any final disposition on this record must be controlled by Simmons, supra, and Feldman v. Board of Pharmacy of District of Columbia, D.C.Mun.App., 160 A.2d 100 (1960), it would in our view be unrealistic to expect that another hearing before an Illinois hearing referee would be productive of a useful result. Moreover, considerations of fundamental fairness persuade us that petitioner, now a resident of the State of Illinois, should not at this late date be required to attend, with her witnesses, a hearing on her claim conducted by the Board in the District of Columbia.

Thus, we come to the final stage of litigation which began when the Board, without apparent regard for the provisions of D.C.Code 1967, § 46-311(b), and its Regulation 18:302. and without any good cause disclosed by the record, refused to honor its initial and unchallenged determination made March 10, 1970, that petitioner was entitled to unemployment benefits, subject of course to compliance with D.C.Code 1967, § 46-309.

But litigation, like controversy, must end sometime. Accordingly, we reverse the Board's decision, and remand to the Board with directions to pay petitioner full benefits to which her unemployment entitled her for the period commencing March 9, 1970, and ending May 31, 1970.⁹

So ordered.

HARRIS, Associate Judge (concurring in part and dissenting in part):

I agree with the majority that the Board erred in this case in effectively disregarding petitioner's sworn testimony before the Illinois hearing referee without having the benefit of any findings or any type of a credibility evaluation from that referee. Nonetheless, I respectfully dissent from the majority's direction to the Board "to pay petitioner full benefits."

When a claim is made for unemployment benefits, an initial determination as to a claimant's apparent entitlement is made by the Board under D.C.Code 1972 Supp., § 46-311(b). Such a determination is essentially a mathematical computation, based upon a claimant's wage and employment record for a base period.¹

In addition to providing that an initial determination shall be made as to a claimant's benefits, among other provisions the amended § 46-311(b) states:

If, subsequent to such initial determination, benefits with respect to any week for which a claim has been filed ...