The opinion of the court was delivered by: Schwelb, Associate Judge
On Petition for Review of a Decision of the District of Columbia Office of Administrative Hearings (ESP101251-05)
Before SCHWELB, FARRELL, and FISHER, Associate Judges.
Opinion for the court by Associate Judge SCHWELB.
Concurring opinion by Associate Judge SCHWELB at p. 9.
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.
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 ...