Kidd Intern. Home Care, Inc. v. Prince

• Decision Date: 22 February 2007
• Docket Number: No. 05-AA-131.,05-AA-131.
• Citation: 917 A.2d 1083
• Parties: KIDD INTERNATIONAL HOME CARE, INC., Petitioner, v. Vonda K. PRINCE, Respondent.
• Court: D.C. Court of Appeals

917 A.2d 1083

KIDD INTERNATIONAL HOME CARE, INC., Petitioner, v. Vonda K. PRINCE, Respondent.

No. 05-AA-131.

District of Columbia Court of Appeals.

Argued May 22, 2006.^*

Decided February 22, 2007.

Rosalind R. Ray, for petitioner.

No appearance for respondent.

Before REID and FISHER, Associate Judges, and SCHWELB, Senior Judge.^**

SCHWELB, Senior Judge:

Kidd International Home Care, Inc. (Kidd or the employer) has asked this court to review a Final Order of the District of Columbia Office of Administrative Hearings (OAH), in which the OAH ruled that Kidd was liable for unemployment compensation to its former employee, Vonda K. Prince, whom Kidd had discharged for gross misconduct. In so holding, the OAH reversed a determination favorable to the employer by a Claims Examiner of the District of Columbia Department of Employment Services (DC DOES). The basis for the OAH's ruling was that no representative of Kidd appeared at the hearing which had previously been scheduled by the OAH to consider the merits of Ms. Prince's appeal from the Claims Examiner's decision.

In effect, the OAH entered a default award in Ms. Prince's favor. Before this court, Kidd asserts that it received no notice either of Ms. Prince's appeal from the Claims Examiner's determination or of the scheduling of a hearing by the OAH. Ms. Prince, the respondent, has not filed a brief in this court or participated in any way in the proceedings before us. We reverse the decision of the OAH and remand the case to that Office for a hearing on the merits.

I.

On November 9, 2004, Kidd discharged Ms. Prince for the alleged sexual solicitation of a female customer. On November 14, 2004, Ms. Prince applied for unemployment compensation benefits. On November 23, 2004, the employer filed a detailed response to Ms. Prince's application, providing chapter and verse of Ms. Prince's alleged misconduct. On December 7, 2004, a Claims Examiner of DC DOES' Office of Unemployment Compensation ruled that Ms. Prince was disqualified from receiving compensation on account of her gross misconduct. Although the Certificate of Service accompanying the Claims Examiner's ruling was confusing and, in our view, inadequate,¹ his or her determination, which was accompanied by a "Notice of Appeal Rights," was evidently received both by Ms. Prince and by the employer, and it is a part of the record before this court.

On December 16, 2004, Ms. Prince appealed to the OAH from the decision of the Claims Examiner denying her benefits. The record indicates, however, that Ms. Prince did not serve a notice of her request for a hearing on the employer. Indeed, Ms. Prince's submission consisted of a single handwritten page on which she wrote:

This is a request for a hearing.

                        Thank you
                        Mrs. Prince
                

The record contains an envelope addressed to the OAH by Ms. Prince, but no indication that the employer was notified of Ms. Prince's request.

On December 28, 2004, the OAH issued a Scheduling Order directing the parties to appear before the OAH on January 13, 2005 at 10:30 A.M. The Order stated, inter alia: "Failure of a party to appear at the hearing may result in a default, dismissal, or other unfavorable outcome." The Scheduling Order was accompanied by a Certificate of Service which reflected that the Order was mailed to Ms. Prince and to

                    Kidd International Home Care Service
                    6856 Eastern Avenue, N.W
                    Washington, D.C. 20012
                

No suite number was designated. The street address on the Scheduling Order corresponds to that reflected in Kidd's correspondence, except that Kidd's stationery shows that Kidd occupies Suite 286.

On January 14, 2005, an Administrative Law Judge (ALJ) of the OAH issued a Final Order in which she reversed the determination of the Claims Examiner and held that Ms. Prince was entitled to benefits. The ALJ so ruled because, to quote her Order:

This administrative court [OAH] issued a Scheduling Order and Notice of In-Person Hearing on December 28, 2004, scheduling a hearing for January 13, 2005 at 10:30 a.m. Appellant Prince appeared on her [own] behalf; no representative of Appellee/Employer appeared at the January 13, 2005 hearing.

The employer filed a timely petition for review of the Final Order of the OAH. In the brief filed in support of its petition, the employer explained its position as follows:

Without Kidd International Home Care, Inc.'s knowledge, Prince filed for an appeal of [the Claims Examiner's] finding and was given a court date. Kidd International Home Care, Inc. did not receive notice of this hearing's scheduling. When the uninformed Petitioners did not show for the hearing, Ms. Prince was gratuitously granted benefits and the Claims Examiner's findings were reversed as of January 13, 2005.

Although Ms. Prince and counsel for the Department of Employment Services were both served with the employer's brief, neither responded. Only counsel for the employer appeared for oral argument before this court.

II.

Counsel for the employer represents, and it is indeed undisputed in the record that although the OAH's Scheduling Order was accompanied by a Certificate of Service, the employer did not receive the Order. The employer contends that, under these circumstances, it was denied an opportunity for a hearing and deprived of property without due process of law.

Assuming that Kidd in fact did not receive the OAH's Scheduling Order, that fact alone would not necessarily constitute a violation of due process. Although it may appear unfair, from the perspective of an employer, to be required to pay unemployment compensation as a result of the employer's failure to appear at a hearing of which it did not receive actual notice, such a result would be permissible, and consistent with our precedents, so long as notice of the hearing was properly mailed and not returned to the sender. "In order to satisfy due process, notice must be accomplished by a method reasonably calculated to afford the party an opportunity to be heard." Carroll v. District of Columbia Dep't of Employment Servs., 487 A.2d 622, 623 (D.C.1985) (per curiam) (quoting Wise v. Herzog, 72 App. D.C. 335, 337, 114 F.2d 486, 488 (1940)) (internal quotation marks omitted); see generally Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950). But notice is "constitutionally sufficient if it was reasonably calculated to reach the intended recipient when sent." Jones v. Flowers, 547 U.S. 220, ___, 126 S.Ct. 1708, 1714, 164 L.Ed.2d 415 (2006). "The Constitution . . . does not require with regard to notice that the state . . . erect an ideal system for the administration of justice which is impervious to malfunctions." Carroll, 487 A.2d at 623 (citations and internal quotation marks omitted; emphasis in original). "[T]he alleged failure of an individual to receive [mail sent to the correct address] under these circumstances does not constitute a deprivation of due process." Id. at 624 (citations omitted). "Adequate" notice, rather than "actual" notice, is all that the Constitution guarantees. Chavis v. Heckler, 577 F.Supp. 201, 205 (D.D.C.1983).

The question in this case is whether the notice said to have been provided to the employer was constitutionally adequate. We held in Thomas v. District of Columbia Dep't of Employment Servs., 490 A.2d 1162 (D.C.1985), that a notation in the agency record to the effect that notice was mailed was constitutionally insufficient:

Although printed on both forms are the words "Dated and Mailed," followed by a date, the mere existence of these forms in the agency file do[es] not constitute proof, in the absence of any certification or description of agency mailing procedures, that any notice was actually mailed.

Id. at 1164 (emphasis added); accord, Kidd Int'l Home Care, Inc. v. Dallas, 901 A.2d 156, 159 (D.C.2006); Bobb v. Howard Univ. Hosp., 900 A.2d 166, 168 (D.C.2006) (both quoting Thomas). In this case, the Scheduling Order was accompanied by a Certificate of Service,² which arguably distinguishes the situation before us from Thomas and its recent progeny. Nevertheless, we conclude for several reasons³ that in this case, the existence of the Certificate of Service is not sufficient.

First, the Certificate of Service attached to the Scheduling Order did not include in the employer's address the unit number listed on Kidd's stationery. This omission, together with the unrefuted representation by Kidd's counsel that the Scheduling Order was not received, raises at least a plausible possibility that the Order was misdelivered.

Second, a Certificate of Service is generally deemed sufficient assurance that notice has been received, for courts apply what is known as the "common law mailbox rule." Huizar v. Carey, 273 F.3d 1220, 1223 n. 3 (9th Cir.2001). This rule creates a rebuttable presumption that a letter properly addressed, stamped, and mailed, and not returned to the sender, has been delivered to the addressee. 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); see also 9 JOHN HENRY WIGMORE, EVIDENCE § 2519 (Chadbourn ed.1981). Here, of course, the letter was incompletely addressed. Evidence that the Scheduling Order was not returned to the sender, i.e., to the OAH, would strengthen the presumption, see Sitcov v. District of Columbia Bar, 885 A.2d 289, 302 (D.C.2005); Columbia Fin. Co., 141 A.2d at 187, and perhaps counterbalance the omission of the unit number from the address, but the record in this case contains no affirmative proof that the Scheduling Order was not returned. If the Order was returned, then the OAH was plainly required to undertake further measures to effect service. Jones v. Flowers, 126 S.Ct. at 1716-18.

Third, Ms. Prince has not filed a brief or otherwise participated in the proceedings in this court. "A party who fails to file a brief will not be heard at oral argument...