Nelson v. District of Columbia Department of Employment Services , 1987 D.C. App. LEXIS 433 ( 1987 )

PER CURIAM:

In this appeal, petitioner Lana Nelson challenges the appeals examiner’s interpretation of the two calendar-quarters requirement of D.C.Code § 46-108(c)(2) (1986 Supp.), and on a variety of grounds, the decision of respondent, the District of Columbia Department of Employment Services (agency), that her pro se second-level intra-agency appeal was untimely. We reverse and remand for the agency to make findings relating to the adequacy of the notice of the appeals examiner’s decision and the notice of appeal procedure, and, in the event it reaches the merits, to determine whether the appeals examiner erred as a matter of law in denying petitioner’s application for benefits because her annual compensation was in the form of a single advance payment.

I

Ms. Nelson was president and executive director of Sunshine International for sixteen years until November 15, 1984, when it went out of business due to financial difficulties. She regularly received a lump sum advance payment once a year, the last in March 1984, when she received $20,000. Throughout its operation, Sunshine International regularly paid unemployment taxes to the District of Columbia.

Ms. Nelson’s application for unemployment compensation was initially denied on the ground she had not received wages in at least two quarters of the applicable base period. She appealed and received a hearing before an appeals examiner. After the hearing, the examiner instructed her that an appeal of his forthcoming decision to the agency’s Office of Appeals and Review had to be sent within ten days from the date of the decision (excluding weekends and holidays). The examiner issued a decision adverse to Ms. Nelson on June 14, 1985.

By letter of August 19,1986, Ms. Nelson requested information from the agency on the status of her notice of appeal, which she claimed she had filed by letter on July 8, 1985. She also claimed her notice of the appeals examiner’s decision was inadequate. Her stated reason was that

I received notice of the Decision while I was out of town. At the close of my interview with the Examiner, I asked him when I could expect a decision and was told that no specific date could be given. Therefore, as receipt of this Decision was untimely, I was unable to submit this appeal within the time stipulated.

II.

The agency responded on August 27, 1985 that it had never received the July 8 letter, but, in any event, a July 8 letter was not a timely appeal because it exceeded the ten-day mandatory filing period of D.C.Code § 46-112(e) (1981).

Ms. Nelson contends that because she told the examiner she would be out of town, the agency’s reliance on its normal practice of first-class mailed notice was not reasonably calculated to apprise her of the decision and to afford her an opportunity to appeal. See generally Gosch v. District of Columbia Department of Employment Services, 484 A.2d 956 (D.C.1984); Dozier v. District of Columbia Department of Employment Services, 498 A.2d 577 (D.C. 1985); Selk v. District of Columbia Department of Employment Services, 497 A.2d 1056 (D.C.1985); Thomas v. District of Columbia Department of Employment Services, 490 A.2d 1162 (D.C.1985). We disagree. The procedure relied upon by the agency is, in general, reasonable and adequate. The burden on the agency of guaranteeing actual notice on an individualized basis in each case clearly outweighs the burden on claimants, who it is reasonable to assume, in general have alternative means of assuring the receipt of their own mail.

Ms. Nelson also alleges, in an affidavit filed with her brief in this court, that she asked the appeals examiner, after the hearing, whether she could telephone the agency regarding the status of her case, and that the examiner responded that she could only receive notice of the decision by ordinary mailing procedures. She contends that because of her unavoidable need to be out of town for extended periods, the agency should at least have allowed her to telephone periodically to check on the status of her case. On its face, this claim is plausible; responding to telephone calls in those cases where a claimant is away from home, and awaiting notice of a decision, would not appear to place too great a burden on the agency. Claimants who must travel and who have no realistic means of checking their mail should be allowed some means of checking on their case. Otherwise, they can travel only at the risk of losing their appeal rights.

Ms. Nelson further alleges that she was misled by a statement on the form that is used to appeal the initial agency decision to an appeals examiner for a hearing. This form states, “IF YOUR APPEAL IS FILED LATE, THE REASON(S) MUST ALSO BE INCLUDED.” She argues that this language suggested to her that the entire agency appeals process, including second-level appeals, “is not so rigid that it cannot be extended for good reason.” We agree that the agency’s notice was ambiguous and that Ms. Nelson might have been lulled into inactivity by the agency’s failure to clarify her rights.¹

Because Ms. Nelson has raised these two contentions for the first time on appeal, the record is insufficient for this court to make a final resolution on either question. Ordinarily, the failure to present a claim below would preclude an appellant from raising the same contention on appeal. Arthur v. District of Columbia Nurses’ Examining Board, 459 A.2d 141, 145 n. 7 (D.C.1983). Here, however, a pro se² applicant for entitlement benefits has potentially been misled as to her appellate rights and may have received an inadequate opportunity to present her arguments to the agency. The only opportunity for her to protest was by means of a letter advising the agency that its notification procedures were inadequate, which she sent, and the record reveals that she has undertaken good faith efforts to adjudicate her claim properly.

Accordingly, we reverse and remand the case to the agency for an appropriate hearing and factual findings on: (1) whether Ms. Nelson was in fact misled in her second-level appeal by the statement on the appeals form at the initial level; (2) if so, whether she acted to her detriment in reliance on the representation in that form; and (3) if so, whether she has stated good reasons for her failure to make a timely appeal. If the agency rules against Ms. Nelson, it should then make factual findings as to: (1) whether the appeals examiner told her that she could not telephone the agency; (2) whether there is any procedure available for making a status inquiry; and (3) if not, whether there should be such a procedure in light of the burden it would place on the agency as balanced against fairness to applicants. See generally Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).

Ill

Proceeding to the merits, Ms. Nelson argues that in view of the length of her employment and the fact that her company fully paid D.C. unemployment compensation taxes, the agency’s “mechanical application of the statutory test” is contrary to the underlying purpose of the Unemployment Compensation Act, contrary to other sections of the Act, and ignores “the reality of petitioner’s salary payment arrangement with her employer_” The agency’s interpretation of the statute, she continues, has the effect of denying benefits to persons who are intended to be covered {i.e., permanent employees receiving sufficient compensation) simply because an employer chooses to pay wages in a nontraditional advance in a single payment. Thus, she concludes, there is an untenable result because she has worked in a full-time capacity for sixteen years, her employer has paid unemployment taxes throughout this period, and she is otherwise fully eligible for unemployment benefits but for the lump sum compensation scheme.

Only the appeals examiner has ruled on the merits of the case. Because her second-level appeal to the agency was dismissed as untimely, Ms. Nelson has failed to exhaust her administrative remedies on the merits of the case. Section 46-112(e) provides in pertinent part that, “Any decision of an appeal tribunal which is not so modified or so appealed within such 10-day period is final for all purposes, except as provided in § 46-113_” (Emphasis supplied.) Section 46-113 provides that, “Any person aggrieved by the decision of the [agency] may seek review of such decision in the District of Columbia Court of Appeals in accordance with the District of Columbia Administrative Procedure Act.” See D.C.Code § 46-116(a) (1986 Supp. notes). This language means that only the timeliness issue is “final” for purposes of appellate review and that the agency is entitled to make a determination on the merits, subject to further appellate review, should it reach this issue on remand.

This court has recently addressed the two-quarters requirement of '§ 46-108(c).³ In Anthony v. District of Columbia Department of Employment Services, 528 P.2d 883 (D.C.1987), the court deferred to the agency’s interpretation that § 46-108(c) requires a claimant actually to be paid wages in two of the four calendar quarters of the base period. The court viewed the language of § 46-108(c) as susceptible of being so construed: the statute does not require a contrary construction where a claimant is owed wages for work done. Citing Vedder v. District Unemployment Compensation Board, 360 A.2d 485, 487 (D.C.1976) (per curiam) (withheld taxes properly included in computing qualifying calendar wages) as reaching a consistent result, the court affirmed the agency’s determination that Mr. Anthony was ineligible for benefits because, due to his employer’s financial difficulties his wages were deferred and paid only in one quarter of his base period. Anthony, supra.

The agency in its brief on appeal has offered the same response here. It contends that the hearing examiner correctly determined Ms. Nelson’s ineligibility because Ms. Nelson was only paid in one quarter of her base period. It argues that such interpretation of the statute comports with its plain language, that the statute’s use of the words “paid,” “been paid,” and “actually received” is inconsistent with Ms. Nelson’s entitlement interpretation, and that the strict two-quarter eligibility requirements have been a feature of the statute for decades, citing Pub.L. No. 74-386, ch. 794, § 1, 49 Start. 946 (1935); Pub.L. No. 83-721, ch. 1139, 68 Start. 988 (1954). In so responding, however, the agency has not addressed Ms. Nelson’s contentions that exclusion of an entire category of elaim-ants who receive a lump-sum advance payment is inconsistent with the purpose of the statute and its overall scheme.⁴ Nothing in Anthony, supra, suggests that such contentions were raised either at the agency level or in the appeal to this court.⁵

Accordingly, if, on remand, the agency reaches the merits, it should consider whether its plain meanings interpretation of § 46-108(c)(2) is consistent with the twofold purposes of the Unemployment Compensation Act, which are “to protect employees against economic dependency caused by temporary unemployment and to reduce the necessity of relief or other [government-subsidized] welfare programs.” Von Stauffenberg v. District Unemployment Compensation Board, 148 U.S.App.D.C. 104, 107, 459 F.2d 1128, 1131 (1972) (humanitarian goals served by employer contributions); see also Jones v. District Unemployment Compensation Board, 395 A.2d 392, 395 (D.C.1978); District Unemployment Compensation Board v. Hahn, 130 U.S.App.D.C. 254, 257, 399 F.2d 987, 990 (1968).⁶

Judgment is reversed and case remanded for further proceedings consistent with this opinion.

1 . See Moore v. District of Columbia Department of Employment Services, 518 A.2d 710 (D.C. 1986), as modified on rehearing, 524 A.2d 39 (D.C.1987); Cobo v. District of Columbia Department of Employment Services, 501 A.2d 1278 (D.C.1985); Bailey v. District of Columbia Department of Employment Services, 499 A.2d 1223 (D.C.1985); Kittrell v. District of Columbia Department of Employment Services, 498 A.2d 1178 (D.C.1985); Ploufe v. District of Columbia Department of Employment Services, 497 A.2d 464 (D.C.1985).

2 . Counsel did not appear for Ms. Nelson during the proceedings before the agency.

3 . D.C.Code § 46-108(c) provides in pertinent part:

To qualify for benefits an individual must have: (1) Been paid wages for employment of not less than $400 in 1 quarter in his base period; (2) been paid wages for employment of not less than $450 in not less than 2 quarters in such period; and (3) received during such period wages the total amount of which is equal to at least one and one-half times the amount of his wages actually received in the quarter in such period in which his wages were the highest.

4 .Hughes v. District of Columbia Department of Employment Services, 498 A.2d 567 (D.C.1985); MCM Parking Co. v. District of Columbia Department of Employment Services, 510 A.2d 1041, 1043-44 (D.C.1986); Cumming v. District Unemployment Compensation Board, 382 A.2d 1010, 1013 (D.C.1978).

5 . Mr. Anthony was not represented by counsel in Anthony.

6 . Counsel for Ms. Nelson has provided in her brief on appeal to this cotut a number of citations including references to the legislative history of the two-quarters requirement which may be of assistance to the agency upon remand.