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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. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

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  4. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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