Petition for Review of a Decision of the District of Columbia Department of Employment Services
Newman and Ferren, Associate Judges, and Pryor, Senior Judge. Opinion for the court by Associate Judge Ferren. Dissenting opinion by Senior Judge Pryor at p. 14.
The opinion of the court was delivered by: Ferren
Petitioner seeks review of a decision by the Department of Employment Services ("DOES" or "the agency") ruling that he was ineligible for unemployment benefits. An agency claims examiner had made an initial determination that petitioner was eligible for benefits. The agency sent petitioner's employer, the District of Columbia, *fn1 notice of this initial determination. The District -- which said it did not receive the notice and learned of the agency's determination only by chance -- did not notify DOES it was appealing the determination until more than three weeks after the ten-day jurisdictional limit imposed by D.C. Code § 46-112 (b) (1987) had expired. The only question before us is the timeliness of the District's appeal of the initial determination, which, in turn, hinges on the question whether DOES sent notice of the initial determination to the District's "last-known address" within the meaning of § 46-112 (b). Either DOES properly sent notice to the District's "last-known address," with the result that the District filed its appeal too late; or DOES failed to use the proper address, with the consequence that commencement of the appeal period was tolled until the notice was actually delivered to the District. See id. Although the address to which DOES mailed the notice was not altogether incorrect, the agency's Office of Appeals and Review ("OAR") ultimately ruled that DOES knew of a more complete address that should have been used, that DOES accordingly did not send notice of its initial determination to the District's "last-known address," and thus that the District's appeal immediately upon learning of the agency's determination was timely. We conclude that this ruling is not supported by substantial record evidence. We therefore reverse and remand for further proceedings.
On February 22, 1988, a claims examiner determined that petitioner was eligible to receive unemployment benefits. 7 DCMR § 305.5 (1986). The same day, the agency sent notice of the initial determination, including notice of the right to appeal the decision within ten days, to petitioner's employer at the following address:
The District, as employer, filed an appeal on March 25, 1988 -- 32 days after notice of the initial determination was mailed. *fn2 The appeals examiner held a hearing and issued a decision reversing the initial determination that petitioner was eligible for benefits. Petitioner appealed to OAR which remanded the case to the appeals examiner to determine, among other things, if the employer's appeal had been timely filed.
At the hearing on remand on the issue of timeliness, the District introduced a copy of an internal DOES memorandum, dated March 1, 1982, entitled "Forwarding of UC-170 Forms for District of Columbia Government Agencies." The memorandum, which presumably was evidence of an instruction from the District government (as employer) to DOES, stated in relevant part:
Effective immediately, all UC-170's involving a District Government agency, as the last employer, must be sent to the following address:
Unemployment Compensation Monitoring Section