This is a detailed outline of a Continuing Legal Education session for Administrative Law Judges (ALJs) pertaining to "Proof of Mailing," prompted by litigation in Meachem v Wing, 99 Civ. 4630 (S.D.N.Y.).
This outline provides the following guidance:
"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 a hearing Appellant received a significant piece of correspondence cause 'proof of mailing' issues to arise. These are not issues which are foreign to upstate hearings.
"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)', then, the issue as to receipt of mail has been presented.
"C. How is 'proof of mailing' established?
"It is important to note at this point that a focus, exclusively on proving that a piece of correspondence has been mailed, may mislead an ALJ into believing that that is the only, or most essential issue. Actually, an Appellant's denial of receipt of an important piece of mail gives rise to a series of issues and concerns, which are outlined below.
"1. The Agency has the burden of going forward. The Agency must establish that the piece of mail was mailed appropriately and to the correct address.
"a. Affidavits - Should be current and applicable to the mailing.
"b. Direct testimony - Agency representative testify to the process.
"c. Client Notice System mailings.
"2. Once the Agency has established the presumption of mailing 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 has failed to establish some aspect of mailing the essential correspondence, the ALJ should probe and question sufficiently to establish a record which would support a finding that the correspondence was or was not appropriately mailed and should have arrived at the Appellant's address of record.
"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, non-exclusive avenues of inquiry:
"a. Correct address and address of record (not always the same).
"b. Reliability of mail delivery.
"c. Expectation of the mailing.
"D. Evaluating the evidence.
"Initially, the ALJ must decide if the presumption of mailing has been established. If not, the Agency has not established a necessary element of its case. If so, then the ALJ must next evaluate the Appellant's explanation for failing to act upon the correspondence. Is the explanation plausible and believable? What are those facts established at the hearing which 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 'Decision' section of the [Decision After Fair Hearing (DAFH)]. 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.
"E. Pitfalls to avoid.
"a. Affidavits should be complete, current and applicable.
"b. Adjournments should be provided to enable a party to provide any documentary evidence supporting oral testimony."
|
