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Coto v. Citibank FSB

December 14, 2006

VERA M. COTO, PETITIONER,
v.
CITIBANK FSB, RESPONDENT.



Petition for Review of a Decision of the District of Columbia Office of Administrative Hearings

The opinion of the court was delivered by: Thompson, Associate Judge

ESP-101408-05

Submitted November 8, 2006

Before KRAMER and THOMPSON, Associate Judges, and KING, Senior Judge.

On April 7, 2005, the Department of Employment Services ("DOES") denied Vera Coto's claim for unemployment benefits. Coto faxed her notice of appeal to the Office of Administrative Hearings ("OAH") on April 11, 2005, well within the ten-day appeal period established by D.C. Code § 51-111 (b). In a Final Order dated May 23, 2005, OAH dismissed the appeal as untimely, explaining that Coto "never filed a hard copy of the appeal document with [OAH], as required by OAH Rule 2810.2." We reverse and remand.

I. Procedural Background

DOES found that the circumstances of Coto's discharge from her employment constituted "gross misconduct," D.C. Code § 51-110 (b)(1) (2001 ed.), and on that basis denied Coto's claim for unemployment benefits. The denial notice (the "Claims Determination") contains a certification of mailing to Coto's employer, Citibank FSB - California ("Citibank"). The address for Citibank shown on the Claims Determination is a Hartford, Connecticut post office box. The Claims Determination was accompanied by a Notice of Appeal Rights, which stated that an appeal could be either mailed to OAH or filed in person.

After receiving the Claims Determination, Coto contacted DOES regarding how to appeal the determination. DOES provided her with the telephone number for OAH. Coto contacted OAH and was provided with a telephone number which she used to fax a notice of appeal to OAH.*fn1

When Coto later called OAH to see whether her faxed appeal document had been received, an OAH clerk informed her that the appeal notice, faxed on April 11, 2005, had in fact been received. We note that the OAH administrative record contains a copy of Coto's faxed notice of appeal bearing an OAH file stamp showing the date and time "2005 Apr 11 A 11:44."

As OAH found in its May 23, 2005 Final Order, the OAH clerk with whom Coto spoke "did not inform [her] of the requirement to file a hard copy of the appeal within three business days of the faxed transmission of the appeal." What OAH referred to as the "requirement to file a hard copy of the appeal within three business days of the faxed transmission" was found in the former OAH rule then codified at 1 DCMR § 2810.2 (2005), which provided:

Unless otherwise provided by statute or these Rules, documents may be faxed to [OAH] 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.*fn2

On April 25, 2005, OAH issued an order acknowledging receipt of Coto's faxed April 11, 2005 appeal notice, but informing Coto that she must submit a copy of the Claims Determination to avoid dismissal of her appeal. The certificate of service that accompanied the April 25, 2005 OAH order shows that no copy was sent to Citibank because there was "no information provided by claimant" in her faxed appeal notice.

On May 4, 2005, OAH issued a scheduling order, setting a hearing on Coto's appeal for May 20, 2005. The scheduling order, which was sent both to Coto and to Citbank at the Hartford, Connecticut post office box address, stated that the issues to be considered at the hearing were "Jurisdiction, including Timeliness, and Misconduct." Neither OAH's April 25 order nor its May 4 scheduling order made any mention of a requirement that Coto file a hard copy of her appeal notice.

No representative of Citibank attended the May 20 hearing. The questions and testimony were limited to the issues of the timeliness and jurisdiction. Coto provided no ...


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