On Petition for Review of a Decision of the District of Columbia Office of Administrative Hearings (ESP104583-06).
The opinion of the court was delivered by: Fisher, Associate Judge
Before FARRELL and FISHER, Associate Judges, and STEADMAN, Senior Judge.
Petitioner Samar Chatterjee asks us to review a decision by the Office of Administrative Hearings ("OAH") dismissing his administrative appeal for lack of jurisdiction. Although she specifically "credit[ed] [Mr. Chatterjee's] testimony that [he] did not receive the [notice of his ineligibility for unemployment compensation] until after it was too late for him to file a timely appeal," the Administrative Law Judge ("ALJ") found that his "testimony [did] not provide a basis for overcoming the presumption 'that correspondence mailed and not returned to the agency is received,'" quoting McCaskill v. District of Columbia Dep't of Employment Servs., 572 A.2d 443, 445 (D.C. 1990). Because the ALJ failed to resolve disputed issues of material fact relating to OAH's jurisdiction, we reverse and remand for further proceedings. See Rodriguez v. Filene's Basement Inc., 905 A.2d 177, 180 (D.C. 2006) (OAH must make "findings of fact on each materially contested issue of fact").
The Mid Atlantic Regional Council of Carpenters ("MARCC") discharged Mr. Chatterjee on May 17, 2006. When he applied for unemployment benefits, the District of Columbia Department of Employment Services ("DOES") determined that he was disqualified because he had been discharged for misconduct. The DOES claims examiner wrote:
You were discharged from your job with your most recent employer for failure to follow instructions by your supervisor. Failure to comply with the request of your supervisor shows a disregard of the employer's best interest. Therefore, it is considered that you were discharged for misconduct occurring in your most recent work. Gross misconduct has been established.
Near the bottom of that same form, the claims examiner "certif[ied] that a copy of this document was mailed to the employer/claimant at the above address on 6/13/2006."
Included with the determination was a notice of appeal rights, informing Mr. Chatterjee that a request for a hearing must either be POSTMARKED by the U.S. Postal Service . . . or ACTUALLY RECEIVED by the Office of Administrative Hearings within ten (10) calendar days (including weekends and holidays) 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) calendar days (including weekends and holidays) of actual delivery of this determination. [(Emphasis in original.)]
Ten days after the purported mailing date would have been June 23, 2006. OAH received his request for a hearing on July 3, 2006, in an envelope postmarked June 30, 2006. At the bottom of his request, Mr. Chatterjee noted in handwriting that he "received the attached Determination only on June 27, 2006."
At a hearing on December 14, 2006, the ALJ considered whether OAH lacked jurisdiction because the request for a hearing had been filed too late. She questioned Mr. Chatterjee about when he received the determination form, and noted that his envelope was postmarked on June 30, 2006, seven days beyond the ostensible deadline for filing. Mr. Chatterjee reiterated that he had not received the determination form until June 27. (He did not keep the envelope in which it arrived.) When pressed for an explanation of why it took so long for him to receive the form, Mr. Chatterjee suggested two possibilities: (1) "the mail has often been . . . late on certain things[,]" and (2) "whatever they indicate that they're posting, they don't really post them on that particular date."After taking the jurisdictional question under advisement, the ALJ heard evidence on the issue of misconduct.
The ALJ issued a Final Order on December 26, 2006, holding that OAH did not have jurisdiction to rule upon petitioner's challenge to the finding that he had been discharged for misconduct.*fn1 Although the ALJ believed Mr. Chatterjee's claim that he did not receive the determination until June 27, 2006, "after it was too late for him to file a timely appeal,"she nevertheless found that this "testimony does not provide a basis for overcoming the presumption 'that correspondence mailed and not returned to the agency is received.'" See McCaskill, 572 A.2d at 445.The determination form included "an executed certificate of service [(described above)] from the Claims Examiner, certifying that she mailed the Determination to the Claimant at his last-known address on June 13, 2006." Mr. Chatterjee "did not dispute that this was his address at the time of mailing," nor did he assert that there was "any ambiguity in the Determination." Because the request for a hearing was neither postmarked nor received within ten days after June 13, 2006, the ALJ dismissed the appeal for lack of jurisdiction. Mr. Chatterjee filed a timely petition for review in this court.
Our decisions repeatedly have affirmed the rule that "'[t]he ten day period provided for [administrative] 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.'" Calhoun v. Wackenhut Servs., 904 A.2d 343, 345 (D.C. 2006) (quoting Lundahl v. District of Columbia Dep't of Employment Servs., 596 A.2d 1001, 1002 (D.C. 1991)). We do not retreat from those holdings today, but "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. (citing Lundahl, 596 A.2d at 1003). Moreover, the period for noting an appeal does not begin to run when the order is issued. According to the express language of the statute, "such determination shall be final ...