Opinion
CV185043922
12-20-2018
John MENDES v. ADMINISTRATOR, UNEMPLOYMENT COMPENSATION ACT et al.
UNPUBLISHED OPINION
Jon C. Blue, Judge Trial Referee
I. INTRODUCTION.
The dispositive issue in this unemployment compensation appeal is whether the appellant, John Mendes, had proper notice of his hearing before the appeals referee. After a careful review of the record, the court finds that he did not.
The administrator ruled Mendes eligible for unemployment benefits effective October 22, 2017 and notified the employer, A & E Glass ("A & E"), of its chargeability on November 7, 2017. On November 9, 2017, A & E appealed the administrator’s decision to the appeals division. The appeals division held a hearing of the appeal on January 16, 2018. A & E appeared at the hearing, but Mendes did not. The issue presented is whether Mendes had appropriate notice of that hearing.
On January 17, 2018, the referee reversed the administrator’s ruling. On February 6, 2018, Mendes filed a timely motion to reopen. On February 16, 2018, the referee conditionally granted the motion to reopen. A new hearing was held on May 14, 2018, in which both A & E and Mendes participated. The new hearing did not address the merits of Mendes’ application. The sole issue was whether Mendes had "good cause for his prior failure to appear." (R. 35.) On May 29, 2018, the referee denied the motion to reopen and reinstated the January 17, 2018 decision.
On June 15, 2018, Mendes filed a timely appeal to the Board of Review ("Board"). On July 20, 2018, the Board affirmed the decision of the referee.
On August 20, 2018, Mendes filed a timely appeal to the Superior Court. The appeal was heard on December 20, 2018.
II. AGENCY FINDINGS
Mendes did not file a timely motion to correct the Board’s findings. This failure "prevents further review of those facts found by the board ... In the absence of a motion to correct the findings of the board, the court is not entitled to retry the facts or hear evidence. It considers no evidence other than that certified to it by the board, and then for the limited purpose of determining whether ... there was any evidence to support in law the conclusions reached." Cragg v. Administrator, 160 Conn.App. 430, 437, 125 A.3d 650 (2015). (Internal quotation marks and citation omitted; emphasis added.)
The Board’s findings on the issue of notice are as follows:
The claimant testified that he failed to appear at the referee’s January 16, 2018 hearing because he did not receive the referee’s hearing notice. However, the claimant admitted that he may have mistakenly discarded the referee’s notice with other junk mail. The claimant also admitted that he had received all other correspondence from the agency. [Therefore], we concur in the referee’s determination that the claimant did not provide credible evidence that he did not receive the referee’s hearing notice.
Decision of Board, at 3.
The referee’s findings on the issue of notice were as follows:
1. On January 3, 2018, the staff of the Middletown Appeals Division offices mailed the form UC-346, Notice of Hearing Before a Referee, to the claimant at his correct address of record. The notice was not returned as being undeliverable by the United States Postal Service.
2. The claimant has resided at his address of record for at least ten years.
4. The claimant is uncertain as to whether or not he inadvertently discarded the hearing notice without opening the envelope in which it was mailed.
Decision of Referee, at 2. The Decision further finds that Mendes received a number of subsequent mailings at his "correct address." Id.
III. DISCUSSION
"An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). The dispositive question presented in this appeal is whether Mendes had notice comporting with this constitutional requirement.
Since the notice in question was notice by mail, the "mailbox rule" must be considered. The mailbox rule "provides that a properly stamped and addressed letter that is placed into a mailbox or handed over to the United States Postal Service raises a rebuttable presumption that it will be received." Echavarria v. National Grange Mutual Insurance Co., 275 Conn. 408, 418, 880 A.2d 882 (2005).
The Board made no independent finding concerning the actual mailing of the notice. It instead, implicitly adopted the findings of the Referee. The Referee found as follows: "On January 3, 2018, the staff of the Middletown Appeals Division offices mailed the form UC-346, Notice of Hearing Before a Referee, to the claimant at his correct address of record. The notice was not returned as undeliverable by the United States Postal Service."
The finding of the Referee fails to satisfy the mailbox rule for three different reasons. (1) the Referee made no finding as to whether the Notice was properly stamped. (2) although the Referee made a conclusory finding that the notice was mailed "to the claimant at his correct address of record," the finding nowhere states what that "correct address of record" is. In the absence of this information, it is impossible to determine whether the address in question was, indeed, "correct." (3) Most important of all, the evidentiary basis for the Referee’s finding nowhere appears. The only parties appearing at the "hearing to address the issues raised by the claimant’s motion" were Mendes and his employer. (R. 36.) Neither of those parties could possibly have had any knowledge of the circumstances of mailing of the notice by the Middletown Appeals Division office staff.
The lack of an evidentiary basis for the findings below is alone dispositive of the present appeal. "The court’s ultimate duty is only to decide whether, in light of the evidence, the board has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion." Marquand v. Administrator, 124 Conn.App. 75, 79, 3 A.3d 172 (2010), cert. denied, 300 Conn. 923, 15 A.3d 630 (2011). (Internal quotation marks and citation omitted; emphasis added.) In unemployment compensation appeals, the court must determine "whether there was any evidence to support in law the conclusions reached." P.B. § 22-9(a). The record in this case reveals no evidence for the finding of notice in question. Notice cannot be found adequate under these circumstances.
The absence of proper notice is not ameliorated by Mendes’ statement that he "may have mistakenly discarded the referee’s hearing notice with other junk mail." This statement is in no way an admission that Mendes actually received the notice in the first place. The burden of providing proper notice remains squarely on the Board.
The form of notice must also be considered. The notice ostensibly sent to Mendes was sent by regular, rather than certified, mail. Given the importance (in many cases, the vital importance) of unemployment compensation to unemployed persons, there is little excuse in modern times for not using certified mail to notify unemployed persons of hearings affecting their livelihood. Certified mail is routinely used to give notice of state judicial proceedings to self-represented parties. Federal courts are increasingly skeptical of notice sent by regular, rather than certified, mail in immigration cases. See Ba v. Holder, 561 F.3d 604, 607 (6th Cir. 2009), and authorities cited therein. It is not clear why a less reliable form of notice should be used for unemployment compensation hearings. When regular mail is used, "[m]ost letters are delivered, but some aren’t." Joshi v. Ashcroft, 389 F.3d 732, 735 (7th Cir. 2004). Even if the requirements of the "mailbox rule" are formally satisfied, the use of regular mail creates only a "weak" presumption of delivery. Id. There is no reason to extend a "strong presumption to cases in which notice was sent by regular mail." Ghounem v. Ashcroft, 378 F.3d 740, 744 (8th Cir. 2004). Accord Silva-Carvalho v. Mukasey, 517 F.3d 156, 160 (2nd Cir. 2008).
This matter need not be further discussed here, however, since, for reasons discussed above, the mailbox rule has not been satisfied in the first place. Since the mailbox rule has not been satisfied, there is no presumption of delivery and the fundamental requirement of notice has not been satisfied.
The appropriate form of relief must now be considered. The case plainly must be remanded. The question for the court is whether the case should be remanded for further findings on the issue of notice or for a new hearing on the substantive issue of whether Mendes is entitled to the unemployment compensation benefits he seeks.
When the Board fails to make a requisite finding within its sphere of administrative competence, the proper judicial response is to remand the case "for further administrative proceedings to resolve this question of fact." Acro Technology, Inc. v. Administrator, 25 Conn.App. 130, 136, 593 A.2d 154 (1991). When, however, an administrative agency misapprehends the law, the court must act in a more forthright manner. The Supreme Court explained this distinction long ago in the seminal case of Securities & Exchange Commission v. Chenery Corp., 318 U.S. 80 (1943):
If the action rests upon an administrative determination-an exercise of judgment in an area which [the legislature] has entrusted to the agency-of course it must not be set aside because the reviewing court might have made a different determination were it empowered to do so. But if the action is based upon a determination of law as to which the reviewing authority of the courts does come into play, an order may not stand if the agency has misconceived the law.Id., at 94. Thus, while "[g]enerally speaking, a court ... should remand a case to an agency for decision of a matter that statutes place primarily in agency hands"; Immigration & Naturalization Service v. Ventura, 537 U.S. 12, 15 (2002) (emphasis added); a similar remand is not required "if the agency has misconceived the law." Securities & Exchange Commission v. Chenery, Corp., supra, 318 U.S., at 94.
This distinction is important, because, while the Board of Review and the Referee have statutorily bestowed administrative competence to determine matters of eligibility, they have no corresponding administrative competence to determine the adequacy of notice. The adequacy of notice, being a fundamental requirement of due process, is squarely within the competence of the court.
Under all the circumstances of the case, the court cannot find adequate notice here. The lack of adequate notice deprived Mendes of his fundamental right to due process of law.
IV. CONCLUSION
The appeal is sustained. Pursuant to P.B. § 22-9(a), the Board is ordered to remand the case to a referee for a new hearing on the merits. The court respectfully suggests that notice to Mendes be sent by certified mail.