by Gene Doyle, LMSW
As part of the Stipulation and Order of Settlement in Meachem v Wing, 99 Civ. 4630 (S.D.N.Y. April 20, 2005), Deputy General Counsel for Administrative Hearings, Russell J. Hanks, issued an April 13, 2005 memorandum on "Fair Hearing Training; Meachem v Wing." Under the heading, "Mailing affidavits" (at p. 2), Mr. Hanks stated that:
"In cases where affidavits are offered to establish the local agency’s procedures with respect to mailing a document, the hearing officer should evaluate whether the affidavit is appropriate for the type of document mailed, and determine whether the presumption of mailing the document was established in the appellant’s case. To that end, the evidence presented should correspond with the process described in the affidavit. The hearing officer should also evaluate whether the agency has the appellant’s correct address in its records, and , if not, whether the appellant ever properly and timely notified the agency of the his/her correct address.
"In sum, the hearing officer should examine and consider all the documents and other evidence in the record in order to determine whether or not the mailing procedure alleged in the affidavit(s) was used for the mailing in question."
Under the heading, "Developing the hearing record" (at p. 2), Mr. Hanks instructed that
"If the appellant alleges non-receipt of a mailed document, the hearing officer should explain to both parties that the agency will first be asked to provide evidence that establishes the document was properly mailed and, if mailing is established, the appellant will have a full and fair opportunity to explain why the document at issue was not received. The hearing officer may find an appellant’s uncorroborated testimony as sufficient to rebut the agency’s claim that the appellant was mailed a notice. If the appellant identifies a document which appears to the hearing officer can corroborate the appellant’s testimony on a material issue, the hearing officer should ask the appellant whether he or she would like an adjournment for that purpose and, if so, an adjournment should be granted. The hearing officer may issue subpoenas or take other action, pursuant to 18 NYCRR 358-5.6(b)(8), to compel production of either witnesses or documents."
ALJs attended a three-hour Continuing Legal Education (CLE) course on April 15, 2005 in accordance with the Meachem Stipulation and Order of Settlement.
Meachem was a class action brought by New York City recipients who request fair hearings to contest the reduction or discontinuance of their Public Assistance (PA), Medical Assistance (MA) and/or Food Stamp (FS) benefits for failing to respond to a prior letter, notice, or any other mailing from the New York City Human Resources Administration (HRA) scheduling an appointment or otherwise requiring some other action by the recipient.
According to the CLE course description,
"This course is designed to improve hearing officer performance through an increased awareness of recent court decisions and settlements addressing procedural due process requirements at administrative hearings. There will be discussion of the various procedural due process requirements as they arise in the context of cases addressing the issue of proof of mailing, as raised in the federal class action, Meachem v. Wing, 99 Civ. 4630. This course will address the proper means of conducting an OTDA administrative hearing, including, among other matters, making an opening statement, identifying parties on the record, taking evidence and developing the record, subpoenas, adjournments and handling proof of mailing issues."
One of the Office of Administrative Hearings (OAH) trainers explained in the introduction to the CLE materials that
"I can tell you from personal experience, reviewing more than 8000 hearing records during the discovery phase of the Meachem lawsuit and in defending numerous Article 78 proceedings, that the complaints as to the hearing process alleged by the Meachem plaintiffs were not wholly unfounded. The manner in which hearings are conducted must now conform to a more formal procedure than has been required of our hearings historically. Our hearings must be more consistent and structured. The courts are now requiring that our hearings more consistently and reliably adhere to certain hallmarks of procedural due process. This training is intended to provide you with guidelines that offer more consistency and structure, protect the due process rights of our appellants and attain the goals of well-established records and well-reasoned decisions that will withstand Article 78 challenge."
Id. at p. 2.
The CLE materials provide a detailed framework for ALJs to evaluate agency claims of mailing and appellant claims of non-receipt:
"B. When do issues related to proof of mailing arise?
"The question of whether or not an agency mailed a significant piece of correspondence and the question of whether or not an appellant received a significant piece of correspondence cause proof of mailing issues to arise.
"If the appellant says, 'I didn't get the letter (or notice, or other form of essential mail which gives rise to a discontinuation or reduction in benefits or SOL [Statute of Limitations] issue),' then the issue as to receipt of mail has been presented.
"C. How is proof of mailing established?
"If the appellant alleges non-receipt of a mailed document, the hearing officer should explain to both parties that the agency will first be asked to provide evidence that establishes the document was properly mailed and, if mailing is established, the appellant will have a full and fair opportunity to explain why the document at issue was not received.
"1. Agency's presentation
"When the appellant raises the non-receipt of a document concerning which the failure to respond is the basis for the agency's notice, the agency must present proof of mailing of the document and receipt by the appellant. In order to establish receipt by the appellant of the subject document, the agency will typically rely on two evidentiary presumptions:
"a. that regular office mailing procedures took place in this case in order to get the document into the possession of the US Postal Service - to establish that the document was mailed.
"b. the regularity of the US Mail - to establish that the document was received.
"To successfully establish the first presumption, the agency must show there is:
"• an established office mailing procedure, and
"• that the procedure was followed in this particular case
"The agency will attempt to do this with a mailing affidavit or through direct testimony by someone familiar with the process or with this specific mailing. The mailing affidavit must describe a regular office mailing procedure that is relevant to the document in question. The affidavit must also establish a basis, or nexus, for asserting that the document in this case followed that procedure. This can be shown by the affidavit clearly stating, for instance, that if the document follows the described mailing procedure, the file copy of the document will contain a particular marking in the upper right hand corner of the document. The agency must then show that their file copy contains that marking. Remember, we are working with presumptions. If the presumption is not established, the evidence must fail.
"a. Affidavits - Should be applicable to the mailing, current and complete.
"1) The hearing officer should evaluate whether the affidavit is appropriate for the type of document mailed. For example, does it refer to a specific kind of appointment notice. Also, the evidence presented should correspond with the process described in the affidavit (e.g., a manually-addressed letter but the affidavit describes a computer-generated letter).
"2) Is the affidavit current and reliable?
"Stale-dated affidavits - agency representatives should always testify whether or not the process described in the affidavit was the process in place at the time of the mailing. This should apply whether the affidavit post-dates or pre-dates the mailing. If the affidavit pre-dates the mailing by more than a year - it should be rejected.
"3) Is the affidavit complete? Is the complete mailing process described?
"Examine the affidavit to confirm that it establishes to your satisfaction the regular office mailing procedure for the type of mailing at issue. If there is a deficiency in the agency's affidavit, ask the agency's representative to comment on your concern. For example, the affidavit refers to the mailing of a document not in issue or the affidavit refers to a nexus that has not been established by the agency's representative.
"b. Direct testimony - An agency representative may testify as to the agency's mailing process.
"c. Client Notice System mailings. If CNS [Client Notice System] notices are the subject of a claim of non-receipt, the agency MUST present affidavits from OTDA's Division of Information Technology. That operation is responsible for mailing CNS notices and therefore prepares the affidavit concerning mailing of those notices but HRA is responsible for the submission at the hearing.
"2. Appellant's rebuttal
"If there is some question as to whether or not the agency has established mailing of the essential correspondence, the ALJ should probe and question sufficiently to establish a record that would support a finding that either the presumption was established or that it was not established.
"If the agency fails to establish mailing and receipt, their case fails. However, because our hearing officers are not authorized to make final determinations at the hearing, we must still at this point turn to the appellant as if the agency established mailing and receipt to obtain the appellant's cross exam and direct case.
"If the agency establishes the presumption of mailing and receipt to the ALJ's satisfaction, the burden of going forward shifts to the appellant. It is recommended that an ALJ wait for the agency to complete its presentation.
"• If the agency establishes its prima facie case, the appellant may attempt to overcome the agency's use of the presumption of regular office practice by showing, for instance, that the document was not properly addressed.
"• Also, the appellant may attempt to overcome the presumption of the regular delivery of the US mail by showing, for instance, that his/her mailbox was broken or that he/she filed a complaint of non-delivery with the USPS [United States Postal Service], etc...
"Appellants should be afforded a full opportunity to address the alleged failure to receive the correspondence. If little information is provided, the following are a few, nonexclusive avenues of inquiry:
"• Correct address and address of record (not always the same).
"• Was a change of address timely and properly reported.
"• Was a change of address made to the residence address or mailing address and was it properly recorded.
"• Reliability of mail delivery.
"• Expectation of the mailing.
"• Does the agency have any indication in the case record of returned mail?
"Adjournments to obtain documents or witnesses - Adjournments are appropriate when there is good cause for not bringing them to the hearing (§358-5.3(a)) or 'when in the judgment of OAH or the hearing officer the parties' due process rights would best be sewed by adjourning the fair hearing, or if there are special circumstances which make proceeding with the case fundamentally unfair' (§358-5.3(b)). Typically, the need for documents or witnesses related to issues of non-receipt of mail arise for the first time at the hearing and therefore adjournments may well be appropriate.
"D. Evaluating the evidence
"Initially, the ALJ must decide if the presumption of receipt has been established. If not, the agency has not established a necessary element of its case. If the presumption of receipt is established, then the ALJ must next evaluate whether the appellant's explanation successfully rebuts the presumption. Is the explanation plausible and believable? Did the appellant testify in a credible manner? What are those facts established at the hearing that support a finding that the correspondence was not received? The rationale relied upon to find either in favor of receipt of mail or non-receipt of mail should be clearly articulated in the "DISCUSSION" section of the DAFH [Decision After Fair Hearing]. The future need to engage in this exercise should be kept in mind by the ALJ as the hearing is being held. Thus, be certain that before closing the hearing, your record is as well developed as the circumstances permit.
"Credibility calls are not just applicable to hearing appellants. Witnesses or written statements must also be examined for credibility. For example, agency representatives may make unclear assertions related to the their interactions with the appellant. Conflicting information may surface within agency documentation. In any instance in which the credibility of an account arises as a concern, the ALJ has the responsibility to develop the record sufficiently in order to make a well-reasoned judgment as to what are the supported facts of the case.
"After allowing the witness to provide her/his account, consider its believability and compare it to other independent evidence presented. Be a proactive fact finder. If something does not make sense to you, say so and seek clarification. If conflicting statements have been made or inconsistent accounts exist, actively seek an explanation from hearing participants. If a party says it needs additional time to provide the information you seek, afford that additional time to the party.
"E. 'Discussion' section of the decision
"1. In all cases, summarize the proof presented. What has been proven and what has not been proven. What has been rebutted and what has not been rebutted.
"2. When credibility is in issue, the basis for the determination should be included in the decision as specifically as possible. For example, if the appellant's testimony is found to be vague and inconsistent, some explanation should be included to explain why it is so found Please note that the lack of documentary evidence is not a per se basis for finding an appellant's testimony incredible. A hearing officer may find uncorroborated testimony to be credible, especially where it is found to be uncontradicted or internally consistent. See Russ Hanks' memo dated December 11, 1996.
"If you believe a witness or a given account, explain why. If the reverse is true, explain why. Rely only on facts supported by the record. Be able to point to a statement made, a document submitted, a fact corroborated - or, in the instance of an account that is not believable, refer to matters not corroborated. You may also rely on your subjective impression of the appellant's believability, for instance, based upon you observation and response to the appellant's demeanor.
"Note: Do not find an appellant not credible simply because the testimony presented was self-serving. Most testimony is self-serving and is not inherently unreliable.
"Probing of the testimony and development of the record should produce a sound basis for making a credibility determination.
"3. Find the balance. Without being unnecessarily verbose, err on the side of thoroughness" (emphasis in original).
Id. at pp. 10-14.
In a July 19, 2011 memorandum by Daniel Bloodstein, an OAH attorney, ALJs were reminded
"of the requirements concerning mailing issues that resulted from the settlement in the case of Meachem v. Wing. Recent circumstances indicate there may be a lack of clarity on the part of some hearing officers concerning how to proceed with proof of mailing issues, including the analysis of affidavits and supporting evidence presented by the Agency."
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