Petition for Review of a Decision of the District of Columbia Office of Administrative Hearings ES-P-05-101490.
The opinion of the court was delivered by: Fisher, Associate Judge
Before: FARRELL and FISHER, Associate Judges, and SCHWELB, Senior Judge.*fn1
Appellant's claim for unemployment benefits was denied, but the merits of that decision are not before us. When he sought review, the Office of Administrative Hearings ("OAH") concluded that appellant's request for a hearing had not been timely filed and dismissed his administrative appeal for lack of jurisdiction. See D.C. Code § 51-111 (b) (2001) (establishing ten-day time limit for administrative appeal from initial determination awarding or denying unemployment benefits). We reverse and remand for consideration of the merits.
On April 13, 2005, a Claims Examiner with the Office of Unemployment Compensation, Department of Employment Services, denied Mr. Calhoun's claim for unemployment benefits, concluding that he was ineligible because he had been discharged from his job for gross misconduct. See D.C. Code § 51-110 (b)(1) (2001). A certificate of service states that a copy of the determination was mailed to him that same day.
Subsequent events are described in the Findings of Fact portion of the Final Order issued by OAH:
Appellant contacted the Department of Employment Services ("DOES") regarding his determination and how to appeal the determination. On April 19, 2005, DOES faxed Appellant the Office of Administrative Hearings "Request For Hearing To Appeal A Determination Of A Claims Examiner In An Unemployment Insurance Matter" form and the fax number for this administrative court. DOES did not inform Appellant that he was required to mail in a hard copy of the appeal. Appellant completed the form and faxed it to this administrative court. Appellant later called a clerk in this administrative court to see if his appeal had been received. The clerk informed him that his appeal faxed on April 19, 2005, had been received. The clerk did not inform him about the requirement to file a hard copy of the appeal. No hard copy of the appeal was ever filed with this administrative court.
"[T]he requirement to file a hard copy" refers to OAH Rule 2810.2 (1 DCMR § 2810.2), which at that time stated as follows:
Unless otherwise provided by statute or these Rules, documents may be faxed to this administrative court in a manner prescribed by the Clerk, and any such document shall be considered filed as of the date the fax is received, provided that a hard copy is filed with the Clerk within three (3) business days of the transmission (emphasis added).*fn2
In its Final Order OAH reasoned that "[s]ince this administrative court did not receive a hard copy of Appellant's appeal, it must treat this appeal as never having been filed."*fn3 OAH does not dispute that it received the request for a hearing on April 19, well before the time for appeal expired on April 25.
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.'"*fn4 Montgomery v. District of Columbia Dep't of Employment Servs., 723 A.2d 399, 400 (D.C. 1999) (citations omitted). See also McDowell v. Southwest Distribution, ___A.2d ___, No. 05-AA-626 (D.C. May 25, 2006).
In some instances we have held that a written notice of appeal rights was ambiguous. See, e.g., Zollicoffer v. District of Columbia Public Schools, 735 A.2d 944, 947 (D.C. 1999) (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 ...