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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                No. 13-AA-1038

                        GIRMA W. ADMASU, PETITIONER,

                                        V.

               7-11 FOOD STORE #11731G/21926D, RESPONDENT.

                       Petition for Review of an Order of the
             District of Columbia Office of Administrative Hearings
                                  (DOES-1325-13)

(Submitted November 25, 2014                           Decided January 29, 2015)

       Christopher A. Bates, Drake Hagner, Jennifer Mezey, and John C. Keeney,
Jr., were on the brief for petitioner.

      Before BLACKBURNE-RIGSBY and MCLEESE, Associate Judges, and KING,
Senior Judge.

      KING, Senior Judge: Petitioner, Girma Admasu, seeks review of a Final

Order issued by the Office of Administrative Hearings (“OAH”) on August 19,

2013, dismissing his appeal for lack of jurisdiction from a claim filed at the

Department of Employment Services (“DOES”) denying him unemployment

benefits. Admasu argues that his case meets the standard for excusable neglect and

the Administrative Law Judge (“ALJ”) abused her discretion in holding that there

was no excusable neglect to warrant an extension of the fifteen-day deadline. We
                                         2


agree that the ALJ abused her discretion by not adequately considering all of the

relevant factors for making a proper determination of excusable neglect. We

remand the case for a determination consistent with this opinion.



                                    I.       FACTS



       On March 15, 2013, Admasu applied for unemployment benefits after he

was fired from his job at the 7-11 Food Store for refusing to return to work. After

one week, Admasu followed up on his claim with DOES. On April 24, 2013

Admasu left the country on a sudden trip to Ethiopia to care for his sick parents,

who eventually died. On May 10, 2013, while Admasu was still in Ethiopia,

DOES mailed a “Determination to Claimant” letter and “D.C. Code and Notice of

Appeal Right” form denying Admasu‟s claim for unemployment benefits and

notifying him of the right to appeal within fifteen days under D.C. Code § 51-111

(b).



       Admasu‟s wife, who was “newly in this country,” remained at the couple‟s

residence in the United States and monitored his mail. She received the letter and

informed him via telephone that his claim had been denied; however, she did not

communicate to him the information concerning the notice of appeal and the
                                         3


fifteen-day deadline to appeal. See D.C. Code § 51-111 (b).1 The determination

letter and notice of appeal were both written in English. Admasu‟s native language

is Amharic and at that time he and his wife had little understanding of the English

language. Admasu returned from Ethiopia on July 21, 2013. Admasu went to the

DOES office on July 23, 2013, where he was provided a copy of the May 10th

letter and advised that he could appeal the determination to OAH. Admasu filed an

appeal that same day.



      On August 14, 2013, a hearing was held at OAH.               There was no

representation for the former employer, but Admasu was present and assisted by an

Amharic interpreter. In order to establish jurisdiction to hear the case, the ALJ

examined Admasu about his untimely filing of the appeal. Admasu informed the

ALJ that his trip to Ethiopia was sudden due to the circumstances concerning his

parents‟ health, thus he did not notify DOES of his departure. When asked if he

had internet access to check the status of his claim online, Admasu stated that he

      1
           “[A]fter an individual has filed a claim for benefits, an agent of the
Director designated by it for such purpose shall make an initial determination with
. . . respect to whether or not such benefit may be payable . . . the claimant and
other parties to the proceedings shall be promptly notified . . . [and] such
determination shall be final within 15 calendar days . . . the 15-day appeal period
may be extended if the claimant or any party to the proceeding shows excusable
neglect or good cause.” D.C. Code § 51-111 (b) (2012 Repl.).
                                          4


had checked the internet twice while he was in Ethiopia, but had also told “family”

to check the status. He testified that three weeks into the trip, his wife notified him

that DOES had denied his claim. Admasu claimed that he had no knowledge of

the appeals process or fifteen-day deadline and that his wife was “new to the

country” and didn‟t understand “enough English” to comprehend the notice of

appeal. He stated that the first time he had learned of the appeals process was at

the July 23rd visit to DOES. The ALJ told Admasu that he should have informed

DOES that he was leaving the country or should have left someone in charge who

could act on his behalf. The ALJ also stated that Admasu received the news of the

denial while he was in Ethiopia and should‟ve taken action at that time instead of

waiting until he returned. In addition to his testimony, Admasu presented his

passport bearing the travel stamps from Ethiopia and the United States, and an

airline passenger receipt dated July 20, 2013.



      On August 19, 2013, the ALJ issued a final order dismissing the appeal for

lack of jurisdiction due to Admasu‟s untimely filing. The ALJ concluded that

Admasu‟s appeal was filed 56 days after the deadline; there was no evidence

presented which would have established that Admasu would not have met the

fifteen-day deadline “with the exercise of ordinary care” nor did the record show

that it would have been “unduly burdensome” for his wife to file the appeal. The
                                        5


ALJ refuted Admasu‟s claim that his wife did not understand the entire content of

the letter by stating that there was some evidence that she was capable of

understanding the determination letter proven by the fact that she “accurately

reported the decision concerning his claim.” Applying the Supreme Court‟s four-

part test2 to determine whether excusable neglect existed to extend the fifteen-day

appeal deadline, the ALJ found that Adamsu failed to act in good faith by not

exercising his right to appeal within the deadline when “means were available” for

him to do so; that the length of the delay was almost two months long; and there

was “no material prejudice to the Employer.” See Pioneer Inv. Servs. Co. v.

Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993).



      The ALJ held that there was no evidence of “excusable neglect” and to find

otherwise in this case “would sanction one party‟s unexplained disregard of the

      2
          Pioneer involved an issue concerning a late filing under Federal Rule of
Bankruptcy Procedure 9006 (b) (1) where the court found that the rule authorized
the bankruptcy court to “accept late filings caused by inadvertence, mistake, or
carelessness, as well as by intervening circumstances beyond party‟s control.”
Pioneer, 507 U.S. at 388. The test requires the court to determine: (1) the danger
of prejudice to the other party; (2) the length of the delay and its impact on the
judicial proceedings; (3) the reason for the delay and whether it was within the
reasonable control of the movant; and (4) whether the movant acted in good faith.
Id. at 395.
                                          6


appeal rules and relieve it of even the modest duty to make a good faith effort to

file its appeal on time. This petition followed.



                                 II.    DISCUSSION



      We “must affirm an agency‟s decision unless it is arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law.”           District of

Columbia Dep’t of Mental Health v. Hayes, 6 A.3d 255, 257-58 (D.C. 2010)

(quoting Travelers Indemn. Co. of Ill. v. District of Columbia Dep’t of Emp’t

Servs., 975 A.2d 823, 826 (D.C. 2009)). The court “must be satisfied that the ALJ

„(1) made findings of fact on each material, contested factual issue, (2) based those

findings on substantial evidence, and (3) drew conclusions of law which followed

rationally from the findings.‟” Savage-Bey v. La Petite Acad., 50 A.3d 1055, 1060

(D.C. 2012) (quoting Walsh v. District of Columbia Bd. of Appeals & Review, 826

A.2d 375, 379 (D.C. 2003)). We review an ALJ‟s determination of whether

excusable neglect existed using the abuse of discretion standard of review. See

Snow v. Capitol Terrace, Inc., 602 A.2d 121, 123 (D.C. 1992) (no abuse of

discretion where trial court found excusable neglect).
                                          7


      On appeal, Admasu claims that the ALJ abused her discretion by not finding

excusable neglect for his late filing. He argues that this case satisfies the excusable

neglect standard under D.C. Code § 51-111 (b) and the Pioneer four-part test, with

the most important factor being the reason for his delay. Pioneer, 507 U.S. at 395.

Admasu asserts that “[t]here is . . . no[t] substantial evidence to support the ALJ‟s

finding that [he] failed to act in good faith.” He relies on the fact that he filed an

appeal two days after returning; his wife was incapable of acting on his behalf

because of her limited English comprehension; and OAH policy requires the

signature of the claimant on appeal forms, which prevented his wife from filing an

appeal on his behalf. Admasu argues that the signature requirement meant that he

would have had to fax or email the forms, but he did not have access to either

when he was in Ethiopia. Admasu also argues that the ALJ did not apply all of the

Pioneer factors, but only considered the element of good faith. In resolving this

issue, we examine the relevant statutory provision and case precedent in which

excusable neglect has been applied.



      The controlling statutory provision in this case is D.C. Code § 51-111 (b) of

the District of Columbia Unemployment Compensation Act. In 2010, the Act was

amended to extend the deadline to appeal from ten days until fifteen days, and
                                           8


extend beyond the fifteen days upon a showing of “excusable neglect or good

cause.” It now states, in relevant part:



             The Director shall promptly notify the claimant and any
             party to the proceeding of its determination, and such
             determination shall be final within 15 calendar days after
             the mailing of notice thereof to the party's last-known
             address or in the absence of such mailing, within 15
             calendar days of actual delivery of such notice. The 15-
             day appeal period may be extended if the claimant or any
             party to the proceeding shows excusable neglect or good
             cause.



      When resolving issues involving an extension of time for filing an appeal,

we have stated that “[e]xcusable neglect has been held to include lack of

knowledge of entry of a judgment, extraordinary cases such as physical disability

and unusual delay in the transmission of mail, and so-called „unique

circumstances.‟” Pryor v. Pryor, 343 A.2d 321, 322 (D.C. 1975) (citing Files v.

City of Rockford, 440 F.2d 811, 814-15 (7th Cir. 1971)). However, excusable

neglect does not apply to “run of the mill situations.” Snow, 602 A.2d at 125. See

also Washington Metro. Area Transit Auth. v. Brown, 619 A.2d 1188, 1192 (D.C.

1993) (trial court must determine whether failure to receive critical notices from

the court constitutes “unique circumstances” sufficient to show excusable neglect

within the meaning of D.C. App. R. 4 (a) (4)). “Excusable neglect seems to
                                          9


require a demonstration of good faith on the part of the party . . . and some

reasonable basis for non-compliance within the time specified in the rules.” Dada

v. Children’s Nat’l Med. Ctr., 715 A.2d 904, 908 (D.C. 1998) (quoting 4A Charles

Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1165 (2d ed.

1987)). We have held “that good cause is to be determined „in the light of the

circumstances of each case[,]”‟ Leiken v. Wilson, 445 A.2d 993, 1000 (D.C.1982),

and “in making that determination, this court has always found the moving party‟s

reasons . . . [are] key consideration[s].” Rest. Equip. & Supply Depot, Inc. v.

Gutierrez, 852 A.2d 951, 956-57 (D.C. 2004).



      In addition, this court has previously relied on the Supreme Court‟s four-

factor test in Pioneer for determining whether excusable neglect existed under

D.C. Code § 51-111 (b). Savage-Bey, 50 A.3d at 1061; Pioneer, 507 U.S. at 395.

The test requires consideration of “the danger of prejudice to the [other party], the

length of the delay and its potential impact on judicial proceedings, the reason for

the delay, including whether it was within the reasonable control of the movant,

and whether the movant acted in good faith.” Id. at 395; see also In re Estate of

Yates, 988 A.2d 466, 470 (D.C. 2010) (discussing the Pioneer factors and reversing

the trial court‟s decision due to its failure to examine the appellant‟s length of

delay and good-faith explanation in a case involving compensation for a court
                                        10


appointed guardian).    In Savage-Bey, three months after initially filing for

unemployment benefits, the petitioner filed an appeal to OAH on the same day that

she visited DOES and received notice regarding the denial of her unemployment

benefits.   Savage-Bey, 50 A.3d at 1059.     The ALJ held that the appeal was

untimely filed; petitioner did not meet the excusable neglect standard; therefore,

there was no jurisdiction to hear the appeal. Id. at 1060-61. We held that the ALJ

“should not have dismissed [the petitioner‟s] appeal as untimely” because the

excusable neglect standard was satisfied by using the Pioneer factors and in light

of “accomplish[ing] the legislative objective of minimizing the economic burden

of unemployment” by liberally construing provisions of the Unemployment

Compensation Act. Id. at 1063.



      In this case, we conclude that the ALJ did not properly apply the entire

Pioneer four-factor test in order to determine whether there was excusable neglect.

The ALJ relied on this court‟s holding in Rest. Equip. & Supply Depot, Inc.

concerning good cause, applied the Supreme Court‟s excusable neglect standard in

Pioneer, and emphasized the Eighth Circuit‟s holding in Lowry v. McDonnell

Douglas Corp.,3 that the reason for the delay is the most important factor to

      3
       In Lowry, the court recognized that “[t]he four Pioneer factors do not carry
equal weight; the excuse given for the late filing must have the greatest import”
                                                                     (continued…)
                                         11


consider when applying the Pioneer test. Pioneer, 507 U.S. at 395; Lowry v.

McDonnell Douglas Corp., 211 F.3d 457, 463 (8th Cir. 2000); Rest. Equip. &

Supply Depot, Inc., 852 A.2d at 956-57. However, the ALJ only discussed, in any

detail, one prong of the Pioneer test, “whether [Admasu] acted in good faith.” The

ALJ did acknowledge the reason for the delay, but faulted Admasu‟s response to

that delay and only briefly mentioned the two remaining factors: “length of the

delay” and “danger of prejudice to the [other party].” The ALJ‟s holding rests on

her conclusions that Admasu failed to have his wife file an appeal on his behalf;

that he did not notify DOES of his departure; and that he failed to make an effort to

meet the deadline himself. Our holding in Savage-Bey was based on each of the

factors stated in Pioneer, not merely the good-faith factor.          In making a

determination of whether excusable neglect exists, it is not enough for the ALJ to

only determine whether Admasu acted in good faith, but there must be a

conclusion based on all of the Pioneer factors with emphasis on the reason for the

delay.




(…continued)
and “the focus must be upon the nature of the neglect.” Lowry v. McDonnell
Douglas Corp., 211 F.3d 457, 463 (8th Cir. 2000).
                                         12


      Given the facts of this case and the factual findings of the ALJ, we are

troubled by the ALJ‟s treatment of what has been determined to be the most

important factor of the test, “reason for the delay, including whether it was within

the reasonable control of the [petitioner].” Lowry, 211 F.3d at 462. Admasu

testified that his reason for the late filing was due to his impromptu travel to

Ethiopia and his wife‟s lack of understanding the determination letter. The ALJ

concluded that there was an absence of evidence showing that Admasu was unable

to meet the deadline with the use of ordinary care and there was some evidence

that his wife understood the determination letter. This holding fails to take into

account the factual finding that Admasu was in Ethiopia with his sick parents; that

his wife had limited knowledge of the English language; and the fact that she could

not file an appeal on his behalf because the appeal form required Admasu‟s

signature. We think it essential for the fact-finder to give full consideration to all

reasons for the delay in order to make a valid inquiry under the D.C. Code § 15-

111 (b) “excusable neglect or good cause” exception.



      In addition, the record does not support the ALJ‟s conclusion that Admasu

failed to act in good faith. In Starling v. Jephunneh Lawrence & Assocs., we

suggested that excusable neglect existed where the appellant‟s attorney promptly

and diligently acted by filing an opposition to a motion for summary judgment on
                                          13


the same day he returned to the office, after missing the deadline due to his father‟s

death. Starling v. Jephunneh Lawrence & Assocs., 495 A.2d 1157, 1161- 62 (D.C.

1985). We remanded the case stating that the appellant may have been entitled to

relief on the grounds of excusable neglect. Id. at 1162. See also McMillan v.

Choice Healthcare Plan, Inc., 618 A.2d 664, 667 (D.C. 1992) (“In determining

whether the trial court abused its discretion, we evaluate each case in light of its

peculiar facts . . . considering . . . whether the moving party (1) had actual notice of

the proceedings; (2) acted in good faith; (3) took prompt action; and (4) presented

an adequate defense.”).



      Moreover, in Savage-Bey we found that the petitioner acted without delay

when she filed an appeal on the same day that she received a copy of her

determination letter. Savage-Bey, 50 A.3d at 1059. Here, the ALJ found that

Admasu filed the appeal once he received notice of the determination, two days

after his return. Contrary to the ALJ‟s statement that Admasu could have made a

good-faith effort to meet the fifteen-day deadline while he was out of the country,

Admasu only had access to the internet on two occasions while he was in Ethiopia

and there was no way he would have met the deadline. As with the appellants in

Savage-Bey and Starling, Admasu promptly exercised his right to appeal, which is

a demonstration of good faith.
                                          14




      Furthermore, we cannot agree with the ALJ‟s determination that finding

excusable neglect in this case would stretch the statute to the “point . . . [of] no

meaning of at all” and support a petitioner‟s disregard for the rule set by the

statute. In drafting the Unemployment Compensation Reform Amendment Act of

2010, the D. C. Council‟s purpose was to “extend eligibility [and] improve the

administration of the unemployment compensation program.”                D.C. Council

Comm. on Hous. and Workforce Dev., Report on Bill 18-455 at 1 (2010). This

case is an illustration of the legislators‟ intent to allow persons who fail to meet the

deadline an opportunity to have their claims heard on appeal. In addition, the ALJ

found that the delay in filing did not cause prejudice to 7-11 Food Store. We

conclude that there must first be a determination, in which all reasons for the delay

are considered, before speculation is raised that finding of excusable neglect would

jeopardize the meaning of the words in the statute.



      Accordingly, we remand this case to OAH to apply all of the Pioneer factors

for excusable neglect, giving consideration to Admasu‟s reason for the delay.



                                                      So ordered.
