Petition for Review of a Decision of the District of Columbia Office of Administrative Hearings (ESP 101517-05).
The opinion of the court was delivered by: Fisher, Associate Judge
Submitted February 1, 2006
Before REID and FISHER, Associate Judges, and STEADMAN, Senior Judge.
Petitioner's claim for unemployment benefits was denied, but the merits of that decision are not before us. When he sought administrative review, the Office of Administrative Hearings ("OAH") concluded that petitioner's request for a hearing had not been timely filed, and dismissed for lack of jurisdiction. We remand for further consideration.
On March 31, 2005, William Anderson, a Claims Examiner with the Office of Unemployment Compensation, Department of Employment Services, denied Mr. McDowell's claim for unemployment benefits, concluding that he was ineligible because he had been discharged for gross misconduct. See D.C. Code § 51-110 (b)(1) (2001). Mr. Anderson signed a certificate of service stating that on April 4, 2005, a copy of the determination was mailed to Mr. McDowell. Any request for an administrative appeal would have been due ten days later. D.C. Code § 51-111 (b). Mr. McDowell did not request a hearing until April 22, and an Administrative Law Judge ordered him to show cause why his appeal should not be dismissed as untimely.
In response, Mr. McDowell asserted that when he had not received a decision within the time predicted, he made inquiry by telephone. A Mr. Carter told McDowell that his claim had been denied, but that he "should wait to receive the determination letter in the mail before filing an appeal." When the decision did not arrive by April 9, he attempted to contact Mr. Anderson. They finally spoke on April 13, 2005, and McDowell explained that he had never received a determination letter. Mr. McDowell alleges that Anderson agreed to fax the decision to him and to mail another copy. At least part of this account is corroborated by the record, which contains a fax cover sheet from Mr. Anderson dated April 13, 2005, and addressed to Mr. McDowell. In addition, a copy of the Determination By Claims Examiner bears the handwritten notation "Sent 4-13-05" followed by what appear to be the initials of Mr. Anderson.
Mr. McDowell also alleged that Mr. Anderson "stated that the letter must have gotten lost in the mail, and that he would update my copy to reflect the date of 4/13/05." In a "Corrected Copy" of his response to the show cause order, Mr. McDowell added: "[Mr. Anderson] also represented that Office of Administrative appeals will honor the update."*fn1 In a submission to this court, petitioner elaborated: "[Mr. Anderson] continued by stating that I will have until 4/23/05 to file an appeal and that he would mail me a copy immediately."
In a Final Order issued on May 20, 2005, OAH concluded that the administrative appeal was untimely and dismissed it for lack of jurisdiction. This appeal followed.
In dismissing the administrative appeal, OAH relied upon cases which hold that "[t]he ten day period provided for . . . appeals under the Unemployment Compensation Act . . . is jurisdictional, and failure to file within the period prescribed divests the agency of jurisdiction to hear the appeal." Lundahl v. District of Columbia Dep't of Employment Servs., 596 A.2d 1001, 1002 (D.C. 1991). However, we frequently have explained that "a prerequisite to the jurisdictional bar is notice to the claimant of the decision and of any right to an administrative appeal of the decision." Id. at 1003. Moreover, "[w]e have held in cases arising under the unemployment insurance statute that 'an ambiguous notice is inadequate as a matter of law to trigger the operation of the statutory time limitations within which to file an intra-agency appeal.'" Montgomery v. District of Columbia Dep't of Employment Servs., 723 A.2d 399, 400 (D.C. 1999) (citations omitted).*fn2 See also Zollicoffer v. District of Columbia Pub. Schools,735 A.2d 944, 948 (D.C. 1999) (applying principle to an intra-agency appeal to the Superintendent of Public Schools).
In some instances we have held that a written notice of appeal rights was ambiguous. See, e.g., Zollicoffer, 735 A.2d at 947 (failure of notice and regulations to explain whether "ten days" means ten calendar days, ten business days, or ten school days); Montgomery, 723 A.2d at 400 (failure of notice to explain what constitutes "filing"); Cobo v. District of Columbia Dep't of Employment Servs., 501 A.2d 1278, 1280 (D.C. 1985) (failure to specify whether "ten days" means calendar days); Ploufe v. District of Columbia Dep't of Employment Servs., 497 A.2d 464, 465 (D.C. 1985) (notice did not state that "ten days" meant ten calendar days as opposed to ten business days). In other cases, we have concluded that sending multiple notices created ambiguity (even when they related to legally distinct claims). See, e.g., Lundahl, 596 A.2d at 1002 ("confusion created by . . . two separate notices of appeal rights sent to her by DOES in less than one week"); Cobo, 501 A.2d at 1280. Most importantly for present purposes, we have also held that ambiguity was compounded when employees of the administrative agency gave erroneous oral or written advice to the claimant. See, e.g., Selk v. District of Columbia Dep't of Employment Servs., 497 A.2d 1056, 1058 (D.C. 1985) (DOES employee assured claimant that ten-day period for appeal meant ten business days); Ploufe, 497 A.2d at 465 ("Petitioner's confusion was compounded when, before 10 calendar days had passed, she called DOES to clarify [the time limit for appeal] and was told by an employee that 'day' indeed meant 'work day.'"). Cf. Thompson v. District of Columbia Dep't of Employment Servs., 848 A.2d 593, 594 (D.C. 2004) (complaint of erroneous advice provided by Department of Employment Services Office of the General Counsel; issue not preserved for appeal).
We recently revisited this issue in D.C. Water & Sewer Auth. v. District of Columbia Dep't of Employment Servs., 843 A.2d 750 (D.C. 2004). In that case an ALJ had issued an order on February 12, 2003, awarding worker's compensation to the claimant. A section of the order explained that an application for review would have to be filed within thirty days. Thus, the application would have been due on or before March 14, 2003. However, on March 11, 2003, the ALJ issued an errata order which corrected the case number and "also stated that 'the application for review must be filed within thirty days of the filing of this errata,' making the application for review due on April 10, 2003." Id. at 751. The petitioners filed their application for review on March 21, 2003.
The Director of the Department of Employment Services dismissed the application for review as untimely, but we reversed and remanded for a disposition on the merits. After summarizing our holdings in Ploufe and Cobo about ambiguous ...