concurring:
I join the opinion of the court; indeed, I am its author. I think it appropriate, however, to add a few comments from my own perspective.
Hilliard claims that he was wrongfully accused of misconduct and unlawfully denied unemployment compensation. By withdrawing from the case and acknowledging that it had no witness, the employer effectively conceded the merits of Hilli-ard’s claim to such compensation. Any claim of misconduct has been waived.
Nevertheless, Hilliard loses because his appeal was untimely. Hilliard testified, however, that he never received notice of the Claims Examiner’s decision until his time to appeal had expired. The ALJ credited this testimony. Moreover, it is undisputed that, as soon as he learned, by his own initiative, of the Examiner’s adverse decision, Hilliard acted promptly to prosecute his appeal. It is difficult to imagine what more Hilliard could have done to protect his rights.
“Our duty, to paraphrase Mr. Justice Holmes in a conversation with Judge Learned Hand, is not to do justice but to apply the law and hope that justice is done.” Bifulco v. United States, 447 U.S. 381, 402, 100 S.Ct. 2247, 65 L.Ed.2d 205 (1980) (Burger, C.J., concurring). In this case, the overall rule is not unreasonable; by holding that “actual notice” is not required where “adequate notice” has been provided, the courts avoid a swearing match in each individual case regarding receipt of actual notice. Nevertheless, I apprehend that in Mr. Hilliard’s case, applying the law, as we are bound by our oath to do, has not vindicated the hope that justice be done. For these reasons, my vote to affirm is a reluctant one.