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Burton v. NTT Consulting

October 9, 2008


Petition for Review of a Decision of the District of Columbia Office of Administrative Hearings (ES-P-07-107104).

Per curiam.

Argued September 24, 2008

Before PRYOR, WAGNER, and KING, Senior Judges.

Petitioner Felecia Burton appeals from the Office of Administrative Hearings' (OAH) order denying her motion for relief from a final order denying her unemployment compensation. Burton argues OAH abused its discretion by denying the motion. We agree and remand the case to OAH for further proceedings.


Burton applied for unemployment compensation with the Department of Employment Services (DOES) after her employer, NTT Consulting, Inc. (NTT), terminated her for excessive absenteeism. A DOES claims examiner determined that such misconduct disqualified Burton from receiving unemployment compensation. At the bottom of the claims determination, the claims examiner certified that a copy of the claims determination was mailed to the claimant and to the employer on March 30, 2007. Although the claims examiner certified the claims determination was mailed on March 30, a notation on the top right corner of the document certified that another copy was mailed on April 13, 2007.*fn1 Burton acknowledges that the claims determination listed the address at which she was living at the time.

A notice of appeal rights was attached to the claims determination. D.C. Code § 51-111 (b) (2001) sets forth the deadline for filing an administrative appeal for unemployment compensation. The statute provides two alternative triggers for the ten-day appeal period and requires that "[t]he Director [of DOES] shall promptly notify the claimant and any party to the proceeding of its determination, and such determination shall be final within 10 days after the mailing of notice thereof to the party's last-known address or in the absence of such mailing, within 10 days of actual delivery of such notice." D.C. Code § 51-111 (b) (emphasis added). The notice of appeal attached to the claims determination sets forth requirements consistent with the governing statutory provision.

On April 17, 2007, Burton appealed the claims examiner's determination to OAH, and OAH scheduled a hearing on the matter for May 9, 2007, at 10:30 a.m. The certificate of service contained in the scheduling order states that it was mailed on April 25, 2007. The address listed for Burton is the same one listed for her on the claims determination.

Neither Burton nor NTT appeared at the hearing, and neither party sent a representative. At some point later that day, Burton checked her post office box and discovered OAH's scheduling order. Upon realizing she could not attend the hearing, Burton called OAH to explain that she had received the scheduling order on the same day it was scheduled to take place. An OAH employee advised her to fax a letter explaining her situation, which Burton did the next day.*fn2 In her letter, Burton explained that she was not aware of the scheduling order until May 9, the scheduled date of the hearing, and that the order had not been in her post office box when she last checked it on May 3. Burton also said she had rented a post office box due to problems with mail delivery to her home address, to which the claims determination and scheduling order were addressed. OAH characterized Burton's letter as a "Motion for Reconsideration."

Apparently unaware of Burton's pending motion for reconsideration, the administrative law judge (ALJ) entered a final order on May 15, 2007, dismissing her appeal for lack of jurisdiction. The ALJ based his decision on the purported March 30, 2007, date of service, which gave Burton until April 9, 2007, to file her appeal. While the ALJ noted the April 13, 2007, date of re-mailing, he nevertheless concluded he could not determine the correct date of service because Burton did not appear at the hearing to explain why a copy of the claims determination was mailed again.*fn3

On June 5, 2007, Burton submitted a letter to OAH titled "Motion for Relief." In her letter, Burton again explained that she rented a post office box due to the delayed delivery of mail to her home address. Burton also said she believed once she had a post office box, mail would be delivered only to that address rather than to her home.

On June 13, 2007, the OAH issued an order denying Burton's motion for relief. In the order, the ALJ rejected Burton's explanation for her absence at the hearing and stated that Burton should have checked her post office box for the scheduling order more frequently. Although the ALJ recognized that the motion could be considered as one for relief from a final order under 1 DCMR § 2833.2, the administrative equivalent of Super. Ct. Civ. R. 60 (b), he did not address the grounds for relief under that rule or why Burton could not satisfy them. Instead, the ALJ stated that Burton's motion, while timely filed, "stated no errors of law" and "raise[d] no substantive basis for relief."



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