Petition for Review of an Order of the District of Columbia Office of Administrative Hearings. (ESP108075-07).
The opinion of the court was delivered by: Steadman, Senior Judge
Submitted October 23, 2008
Before WAGNER, NEBEKER, and STEADMAN, Senior Judges.
Petitioner, Rona Wright-Taylor, was denied unemployment compensation by the Department of Employment Services (DOES). She appealed to the Office of Administrative Hearings (OAH), but her appeal was "dismissed for lack of jurisdiction" as untimely filed beyond the ten-day limit for such appeals. Before us, petitioner argues that OAH has jurisdiction to review the DOES determination because she mailed her initial request for a hearing before OAH within the ten-day filing period. Because the regulations governing the procedures for timely filing of a notice of appeal at issue here are rule-based and not statutory, and because OAH provided ambiguous notice to petitioner of the appeal process, we reverse and remand the case to OAH for a hearing on the merits.
The final order of the Administrative Law Judge (ALJ) of the OAH dismissing petitioner's appeal made the following findings of fact, which we take as given.*fn1 "The DOES Claims Examiner's Determination was certified as mailed to the parties on June 21, 2007. . . . On Monday, July 2, 2007, Claimant hand carried her request for a hearing to her local U.S. Post Office in Elkins Park, Pennsylvania, and mailed it first class mail, in an envelope addressed to The Office of Administrative Hearings, 941 North Capitol Street, NW, Suite 9100, Washington, DC 20002."This was OAH's correct address.
"Having not heard back from [OAH], Claimant telephoned the Clerk's Office on July 20, 2007, and spoke with a member of the staff who informed her that there was no record of her request for a hearing having arrived [at OAH]. The staff member told Claimant that he would conduct a search and let her know if he found her submission. Claimant again telephoned [OAH] on July 27, 2007, at which time a staff member told her nothing had been found and invited her to send a letter enclosing a copy of her initial request. Claimant mailed a copy of her initial request, together with a cover letter. . . . Claimant telephoned the Clerk's Office on August 6, 2007, and was told that there was no record of her second mailing arriving [at OAH]. However, on August 7, 2007, a staff member telephoned Claimant advising her that her letter and enclosure had arrived."
On August 13, 2007, OAH served petitioner with an Order to Show Cause why her request should not be dismissed for failure to file in a timely fashion. Petitioner issued a response, and OAH held a hearing.*fn2 On October 4, 2007, the ALJ dismissed petitioner's claim for lack of jurisdiction because she did not file within the statutory ten-day filing period, citingD.C. Code § 51-111(b) (2001).The ALJ at three points expressly acknowledged that petitioner had "testified credibly." He ruled, however, that "a filing is deemed filed when it is date stamped by [OAH] or, if the filing arrives in an envelope bearing a U.S. Postal Service postmark, [OAH] may consider the postmark for determining timeliness.OAH Rules 2805, 2899. Here, Claimant's initial request for a hearing never arrived at [OAH] and thus, there is no postmark to establish timeliness. Accordingly, there is no evidence the appeal was filed within the statutory period." The ALJ concluded that because the appeal was not timely filed within the statutory ten-day period, OAH lacked jurisdiction to hear the appeal.
We begin our analysis by recognizing our consistent holdings that the statutory tenday period within which a petitioner must file his or her notice of appeal is "jurisdictional." See Chatterjee v. Mid Atlantic Reg'l Council of Carpenters, 946 A.2d 352, 354 (D.C. 2008) ("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.'") (quoting Calhoun v. Wackenhut Servs., 904 A.2d 343, 345 (D.C. 2006)).*fn3 We also
take note, however, of recent Supreme Court cases significantly clarifying the proper use of the word "jurisdictional" in such contexts.
The Supreme Court first distinguished mandatory jurisdiction rules from claim-processing rules in Kontrick v. Ryan. 540 U.S. 443, 453 (2004) (holding that bankruptcy rules prescribed by the Supreme Court "do not create or withdraw federal jurisdiction.") (internal citation omitted); see also Eberhart v. United States, 546 U.S. 12, 15-16 (2005) (holding that claim-processing rules setting forth time limits for a defendant's motion for a new trial grounded on a reason other than newly discovered evidence are not jurisdictional). In Arbaugh v. Y & H Corp., the Court emphasized that "time prescriptions, however emphatic, are not properly typed jurisdictional." 546 U.S. 500, 510 (2006) (internal citations and quotation marks omitted). However, in Bowles v. Russell, the Court's most recent decision regarding jurisdiction limitations under claim-processing rules, the Court distinguished statutory time limits from rule-based time limits for taking an appeal, the former being truly jurisdictional and the latter being subject to equitable exceptions to their formal requirements. 551 U.S. 205 (2007).
The operative statutory provision that is usually cited as setting the ten-day time limit for unemployment compensation appeals is D.C. Code § 51-111(b) (2001), formerly codified at D.C. Code § 46-112(b) (1981) and D.C. Code § 46-311(b) (1973). See Burton v. NTT Consulting, LLC, 957 A.2d 927, 929 (D.C. 2008) ("D.C. Code § 51-111(b) (2001) sets forth the deadline for filing an administrative appeal for unemployment compensation."). It does so, admittedly, in a somewhat backhanded and confusing way. Subsection (b) provides that "an agent of the Director" (now called the claims examiner) shall make an "initial determination" of eligibility. It then provides that "the claimant and interested parties shall be given notice thereof and permitted to appeal therefrom to the Director and the courts as is provided in this subchapter for notice of, and appeals from, decisions of appeal tribunals."*fn4
Subsequently, subsection (b) provides that "[t]he Director 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." This quoted passage is the only reference in subsection (b) to a ten-day period, and makes no mention of an appeal.*fn5 We do note that subsection (d) ...