Freeman v. Employment Department ( 1998 )

LANDAU, P. J.

Claimant seeks review of a final order of the Employment Appeals Board (board) denying him unemployment benefits on the ground that he failed to timely request a hearing from the administrative decision denying his application for benefits. We affirm.

The facts are not in dispute. Claimant submitted a claim for unemployment benefits. He was not represented by counsel. On July 1, 1997, the Employment Department (department) mailed him an administrative decision denying his claim. ORS 657.269 requires a claimant who receives such a denial to file a “request for [a] hearing” within 20 days of the administrative decision. OAR 471-040-0005 describes the ways in which a claimant may request a hearing:

“Requests for hearing may be filed on forms provided by the state employment offices of the Department or similar offices in other states. However, use of the form is not required provided the party specifically requests a hearing.”

The department’s decision advised claimant that if he did not agree with the decision denying his claim for benefits, he should refer to enclosed forms about his appeal rights. The department advised him to file his request for a hearing within 21 days.

Claimant did not submit a hearing request form to the department. On July 18,1997, he did send a letter to the department, which stated, “I disagree with the decision denying me benefits.” The department returned the letter with a note stating, “You need to add a line that says T request a hearing.’ ” Claimant added that language to a second hearing request, but the request was not received until well after the 21-day deadline.

An administrative law judge (ALJ) concluded that, under OAR 471-040-0005, a claimant desiring a hearing must timely file the department’s request form or submit some other writing that “specifically requests” a hearing. The ALJ further concluded that, in this case, claimant did neither and dismissed the hearing, leaving in place the administrative decision denying benefits. The board affirmed.

On review, claimant contends that the board erred in affirming the dismissal of his hearing. Claimant does not contest the fact that he failed to submit a timely request for a hearing. He acknowledges that OAR 471-040-0005 requires that a claimant either submit a hearing request form or submit a different writing that “specifically requests” a hearing. He further acknowledges that he failed to “specifically request” a hearing in conformance with that rule. His sole contention on review is that the rule itself is “in error” because it requires more than mere “substantial compliance” with ORS 657.269. According to claimant, he is not required to comply with the requirements of the rule, because he complied with the requirements of the statute.

We addressed, and rejected, the same argument in Haskins v. Employment Dept., 156 Or App 285, 965 P2d 422 (1998). In that case, the claimant requested a hearing but failed to sign the hearing request, as required by an applicable administrative rule. The department dismissed the hearing for failure to comply with the rule, and the board affirmed. Id. at 287. On review, the claimant argued that her failure to comply with the rule should not preclude granting the hearing request. We disagreed:

“[Claimant’s] contention is that her failure to comply with the rule is of no consequence, because the statute makes no mention of a signature requirement. That the statute makes no mention of a signature requirement, however, is beside the point. The administrative rule does mention such a requirement, and that rule has the effect of law.”

Id. at 288.

The same reasoning leads to the same result in this case. ORS 657.269 requires a “request for [a] hearing.” Assuming, for the sake of argument, that the statute does not require a writing that “specifically requests a hearing,” the fact remains that the administrative rule does contain such a requirement, and that rule has the effect of law. Claimant concedes that he did not comply with the rule. His assignment of error therefore must fail.¹

Claimant insists that the procedural rules should not be applied against him so strictly, because he appeared pro se. Claimant was informed of his need to timely submit a hearing request. He did not do that. He submitted instead a letter that contained no request for a hearing. See Bennett v. Board of Optometry, 125 Or App 66, 71, 865 P2d 362 (1993), rev den 318 Or 582 (1994) (“an agency is not compelled to excuse a pro se litigant from procedural requirements”). Whatever latitude we afford pro se litigants in appropriate cases does not excuse claimant’s failure to request a hearing in this case.²

Affirmed.

1 The dissent takes us to task for oversimplifying claimant’s argument. According to the dissent, claimant’s argument is not that the rule does not apply at all, but is instead that the proper interpretation of the rule must be tempered by due respect for substantial compliance with the more general requirements of the statute. In describing claimant’s arguments, however, we have taken him at his own words'.

“[T]he Department relied on OAR 471-[0]40-[0]005 to conclude that Claimant failed to request a hearing. This Court is not bound to rule for the Department on the basis of this regulation, since the proper inquiry is whether the Department has complied with its statutory duty under ORS 657.269. * *

(Emphasis added.) That contention, as we have noted, was disposed of in Haskins.

Even the argument as recast by the dissent is unavailing. According to the dissent, the department’s construction of its own rules cannot be sustained in this case, because that construction — interpreting “specifically requests a hearing” to mean exactly what it says — does not make allowances for substantial compliance with the general purposes of the statute. We disposed of that argument, too, in Haskins, in which we noted that an agency’s construction of its own rules may not be set aside if consistent with the ordinary meaning of the relevant terms in the applicable statutes and rules. Haskins, 156 Or App at 288-89, citing Don’t Waste Oregon Com. v. Energy Facility Siting, 320 Or 132, 142, 881 P2d 119 (1994).

2 The dissent again complains that we have misread claimant’s argument. Once again, however, we have taken the argument as expressed in claimant’s own brief, in which he contends that enforcing the administrative rale in this case “would be particularly harsh given a * * * line of cases which has established that pro se litigants in contested case proceedings are to be afforded some latitude in procedural requirements.”

According to the dissent, claimant’s real argument is that the AL J erred in failing to fully develop the facts to ascertain whether claimant had substantially complied with the statute. That argument, however, begs the question whether failure to comply with the specific requirements of an applicable administrative rule can be “cured” by substantial compliance with a general statute. Again, Haskins answered that question contrary to the position that the dissent takes in this case.