Hilliard v. Adecco Usa, Inc.

• Decision Date: 27 April 2006
• Docket Number: No. 05-AA-409.,05-AA-409.
• Citation: 897 A.2d 790
• Parties: Derek HILLIARD, Petitioner, v. ADECCO USA, INC., Respondent.
• Court: D.C. Court of Appeals

897 A.2d 790

Derek HILLIARD, Petitioner, v. ADECCO USA, INC., Respondent.

No. 05-AA-409.

District of Columbia Court of Appeals.

Submitted March 14, 2006.

Decided April 27, 2006.

Derek Hilliard, pro se.

Before SCHWELB, FARRELL, and FISHER, Associate Judges.

Opinion for the court by Associate Judge SCHWELB.

SCHWELB, Associate Judge:

Derek Hilliard has asked this court to review a final order of an Administrative Law Judge (ALJ) of the Office of Administrative Hearings (OAH) dismissing as untimely Hilliard's appeal from the denial by the District of Columbia Department of Employment Services (DC DOES) of his claim for unemployment compensation. Although the equities favor Hilliard—the ALJ credited Hilliard's testimony that he did not receive notice of the denial within the ten-day statutory period, and Hilliard's employer effectively withdrew from the case—we are required, for jurisdictional reasons, to affirm.

I.

The somewhat limited record before us discloses that Hilliard was discharged by his employer, Adecco, USA, Inc., for alleged misconduct. He applied for unemployment compensation, but on February 24, 2005, a DC DOES Claims Examiner found that he was

discharged from [his] most recent work for unacceptable and improper conduct because [he was] found in the port-a-potty doing and [sic] illegal substance.

The Claims Examiner advised Hilliard that

[y]ou are disqualified from receiving benefits from the date shown above until such time as you have been employed in each of ten (10) weeks (whether or not consecutive), have earnings from this employment equal to not less than ten (10) times your Weekly Benefit Amount, and become unemployed through no fault of your own.

The Examiner certified that a copy of her decision was mailed to Hilliard at 1916 22nd Street, S.E., Washington, D.C. 20020, on "2-24-05." In an accompanying "Notice of Appeal Rights," Hilliard was advised that he had the right to request a hearing before OAH and that

[y]our hearing request must either be POSTMARKED by the U.S. Postal Service (rather than a private postage meter) or ACTUALLY RECEIVED by the Office of Administrative Hearings within ten (10) days of the mailing date of the claims examiner's determination that you are appealing, or, if this determination was not mailed to you, within ten (10) days of actual delivery of this determination.

On March 21, 2005, almost a month after the Claims Examiner issued her order, Hilliard signed a "Request for Hearing" in which he stated that

I never received any documentation as to the reason why my claim has been denied. As of today I've yet to receive any paper in this matter; if I hadn't gone into the center I wouldn't have found out about my status.

Hilliard also submitted a statement that he had "never at any time been under the influence of anything legal or illegal while on the job," that this "slanderous" accusation had never been brought to his attention, and that he had been told that the reason for his discharge was "that I was late." Hilliard "respectfully request[ed] that I have the opportunity to address my [accuser] face to face."

On March 25, 2005, the Principal ALJ for the OAH issued an order scheduling a hearing in the matter for April 8, 2005. The Order apprised the parties, inter alia, that "since current information indicates that there are serious questions concerning the timeliness of the appeal, that issue will be considered at the hearing." The Order further stated that the issues to be considered include "Jurisdiction, including Timeliness, and Misconduct."

On April 4, 2005, a Claims Service Representative of the employer notified OAH that "I would like to withdraw our appeal [sic] as the 1st hand witness in this case is not available and will not be in the future." The employer thus effectively conceded, in advance of the hearing, that it could not present any evidence of misconduct on Hilliard's part. On April 8, 2005, the scheduled date for the hearing, Hilliard appeared pro se, but no one representing the employer was present.

On April 20, 2005, the ALJ issued a Final Order dismissing Hilliard's appeal on the ground that it was not timely filed and that the OAH therefore lacked jurisdiction over the matter. The ALJ's reasoning was as follows:

In accordance with D.C. Official Code § 51-111(b), any party may file an appeal from a Claims Examiner's Determination within ten (10) calendar days after the mailing of the notice of the determination to the party's last-known address or, in the absence of such mailing, within ten (10) calendar days of actual delivery of the notice. The notice contains a certificate of service dated February 24, 2005. Therefore, the parties had until March 4, 2005 (ten calendar days) to file an appeal. Appellant's appeal was filed on March 22, 2005. The appeal was not timely filed.

Appellant testified that he moved in the early part of March 2005. Appellant did not inform the Department of Employment Services ("DOES") of this change of address. However, at the time the Claims Determination was mailed in February, 2005, it was mailed to Appellant's last-known address.

While I credit Appellant's testimony that he did not receive any mailings from DOES at his old address, his testimony does not provide a basis for overcoming the presumption "that correspondence mailed and not returned to the agency is received." McCaskill v. D.C. Dep't of Employment Servs., 572 A.2d 443, 445 (D.C.1990); Dusenbery v. United States, 534 U.S. 161, 167-71, 122 S.Ct. 694, 151 L.Ed.2d 597 (2002). Here there is an executed certificate of service, Appellant has confirmed that the service address used was his last-known address at the time of mailing, and there is a lack of evidence that the Claims Determination was returned as undeliverable. Id.

The issue of subject matter jurisdiction is a serious one, reflecting the legislature's determination as to what the outer bounds of this administrative court's authority is to hear and decide cases. This administrative court must adhere to these limits and is without authority to waive them. Gosch v. D.C. Dep't of Employment Servs., 484 A.2d 956, 957 (1984) (holding no jurisdiction to consider an appeal where the time prescribed for filing has expired and noting that the Supreme Court has approved even shorter time limits in the face of due process challenges).

The District of Columbia Court of Appeals has long held that, if proper notice has been provided, the "ten day period for ... appeals under the Unemployment Compensation Act ... is jurisdictional, and failure to file within the period prescribed divests [an administrative tribunal] of jurisdiction to hear the appeal." Lundahl v. D.C. Dep't of Employment Servs., 596 A.2d 1001 (D.C. 1991) (citing cases); Gaskins v. District Unemployment Comp. Bd., 315 A.2d 567 (D.C.1974) (no jurisdiction to consider an untimely appeal even where notice of claims determination was received by appellant in aftermath of death in family). Appellate jurisdictional requirements cannot be waived. Customers Parking, Inc. v. District of Columbia, 562 A.2d 651, 654 (D.C.1989). Such jurisdictional requirements vindicate important legislative policies in preventing staleness and promoting repose where a matter has already been heard and decided by a lower tribunal.

Because "in order to act [this] [tribunal] must have jurisdiction[,]" Slater v. Biehl, 793 A.2d 1268, 1271 (D.C.2002), and it does not, this appeal must be dismissed.

II.

On April 29, 2005, Hilliard filed a timely petition for review in this court. He stated in his petition that

[t]he appeal wasn't timely filed by no [fault] of my own. As I testified, that D.O.E.S. at no time sent any documents to the address where I reside. I didn't change my address because I was still living at the same address as soon as my checks started coming. Per my agreement with Mr. Williams.¹

Hilliard subsequently filed a pro se brief. Together with the brief, he submitted a notarized statement from his prospective landlord, Michael Williams, stating that the arrangement between the two men that Hilliard was to live in Williams' basement at 1916 22nd Street, S.E., had not yet begun because Hilliard had not yet begun to receive unemployment compensation checks.²

The employer has filed nothing at all in this court.

III.

We are confronted here with an extraordinary situation. Mr. Hilliard has been denied unemployment compensation for alleged misconduct, but the employer has, for all practical purposes, acknowledged that it cannot prove the misconduct. The dismissal of Hilliard's claim is based upon his failure to file a timely administrative appeal, but he testified, without contradiction, that he never received notice of the denial of the claim, and the ALJ expressly credited this testimony. Nevertheless, we are compelled by our precedents to affirm the ALJ's decision.

We note at the outset that one aspect of the ALJ's decision requires some clarification. The ALJ wrote, as we have seen, that Hilliard's testimony that he did not receive any mail from DC DOES at his 22nd Street, S.E. address, which testimony the ALJ believed, did not provide a basis for overcoming the presumption that correspondence mailed but not returned to the agency has been received. This may be an overstatement. There is indeed a presumption, sometimes known as the "common law mailbox rule," Huizar v. Carey, 273 F.3d 1220, 1223 n. 3 (9th Cir. 2001), to the effect that a letter properly addressed, stamped, and mailed, and not returned to the sender, has been delivered to the addressee, but it is uniformly held that this presumption is rebuttable. Toomey v. District of Columbia, 315 A.2d 565, 567 (D.C.1974) (per curiam); Columbia Fin. Co. v. Worthy, 141 A.2d 185, 186 (D.C.1958); Holt v. George Washington Life Ins. Co., 123 A.2d 619, 620 (D.C.1956); Legille v. Dann, 178 U.S.App. D.C. 78, 82-83, 544 F.2d 1, 5-6 (1976); Huizar, 273 F.3d at 1223 n. 3; 9 JOHN HENRY...