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Majority upholds dismissal of unemployment benefits appeal

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The Indiana Court of Appeals split today on whether a woman’s appeal after she was denied unemployment benefits should be reinstated. The woman claimed she missed the administrative law judge’s phone call because of confusion regarding different time zones.

S.S. appealed the denial of her unemployment benefits and a telephonic hearing was set. S.S. lives in Hammond and the administrative law judge was in Indianapolis. The notice she received said her hearing would be at 9:15 a.m. Eastern Standard Time and that the ALJ would call all the parties. The notice also gave instructions regarding different time zones in Indiana and said it's S.S.’s responsibility to know which time zone she is in and when the hearing will take place.

S.S. missed the ALJ’s call because she was in a federal building attending a food stamp hearing and believed the hearing was set for 10:15 a.m. Central Standard Time. Her appeal was dismissed, and her request for reinstatement was denied by the appeals director and the review board.

Chief Judge Margret Robb and Judge Patricia Riley affirmed in S.S. v. Review Board, No. 93A02-1006-EX-738. They concluded that S.S. was afforded due process and a reasonable opportunity for a hearing. They also held there weren’t any errors in the review board’s consideration of evidence or its denial of her request to reinstate her appeal. They noted she could have asked that the ALJ change the date or time of the unemployment hearing so she could attend both the food stamp and unemployment hearing, but she did not. The majority also decided that she wasn’t denied a reasonable opportunity to participate in a hearing even if she was confused by the time zones.

The majority also noted concern regarding the lack of statutory or regulatory authority governing the grant or denial of reinstatement of a Department of Workforce Development administrative appeal. The appeals director’s order cited a regulation that expired on Jan. 1, 2009, and hasn’t been readopted, wrote Chief Judge Robb. The review board’s appellate brief includes DWD Policy 2008-28, but that has not been promulgated as a rule.

“Absent authority in the statutes specifically governing the DWD, or in its properly promulgated regulations, there is simply no statutory or regulatory authority governing, among other things, the grant or denial of a request for reinstatement. Especially given that this issue is likely to recur with some frequency, we urge the DWD to promulgate an applicable rule. If the DWD fails to do so, then the legislature may need to take corrective action to fill this legal gap,” she wrote.

Judge Elaine Brown dissented, focusing on the review board’s denial of S.S.’s request for reinstatement. She believed S.S. timely filed her request as opposed to the arguments of the appeals director and review board that she filed it too early or too late.

“Plausible arguments about due process aside, and looking at the total picture, we have before us the situation of a stressed-out, financially strapped, unemployed woman who made the very common mistake of confusing the time for her hearing to be an hour later rather than an hour earlier than the stated time given the time zone she was in, a mistake made every day by those who must negotiate the two time zones existing among the various counties of Indiana,” she wrote.

She noted S.S.'s appeal may or may not have merit, but all she wants is to have the appeal heard.
 

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  1. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  2. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  3. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  4. I totally agree with John Smith.

  5. An idea that would harm the public good which is protected by licensing. Might as well abolish doctor and health care professions licensing too. Ridiculous. Unrealistic. Would open the floodgates of mischief and abuse. Even veteranarians are licensed. How has deregulation served the public good in banking, for example? Enough ideology already!

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