Opinion
No. CV 10-5033193 S
December 20, 2010
MEMORANDUM OF DECISION
A.
This is an unfortunate case. The court will give a brief rendition of the facts and will return to them in more detail later in the decision. The self-represented plaintiff appealed from a denial of benefits after losing her job. A hearing was held before an appeals referee on September 11, 2009 and the appeals referee affirmed the administrator's decision denying benefits. This decision was mailed on September 14, 2009. There is no claim the decision was not received by the plaintiff. As will be discussed, the plaintiff got a new job on September 10th and did not appeal within the requisite twenty-two days. She was laid off from the new job on October 17, 2010. Because of all this, however, the plaintiff only appealed the referee's decision on December 2, 2009. On December 23, 2009 the board dismissed the appeal for lack of jurisdiction and the plaintiff filed a timely motion to reopen the board's decision of December 23rd. A motion to reopen was then denied and the plaintiff appealed the board's decision to Superior Court pursuant to § 31-249b of the general statutes.
There is no dispute between the parties as to the underlying facts on which this case must be decided. In any event, as defense counsel notes, when no motion to correct has been filed the board's findings may not be challenged on appeal, Shah v. Administrator, 114 Conn. 170, 175 (2009). On appeal the trial court `does not retry the facts or hear evidence. It considers no evidence other than that certified to it by the board and then for the limited purpose of determining whether . . . there was any evidence to support in law the conclusions reached.'" Calman v. Administrator, 43 Conn.App. 779, 783-74 (1996). In Burnham v. Administrator, 184 Conn. 317, 322 (1981), the court said "Judicial review of the conclusions of law reached administratively is also limited. The court's ultimate duty is only to decide whether, in light of the evidence, the board of review has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion."
On the other hand, it must be kept in mind that when reviewing and interpreting particular provisions of the Unemployment Compensation Act, the admonition of the court in Derench v. Administrator, 141 Conn. 321, 324 (1954), must be treated as a guide; there the court said: "The purpose of the Unemployment Compensation Act is remedial, and its provisions are to be construed liberally as regards beneficiaries in order that it may accomplish its purpose." The court in Gumbs v. Administrator, 9 Conn.App. 131 (1986), noted this language but went on to say "it is also true that appeals within the unemployment compensation system must be taken in a timely fashion and if they are not, they come `too late' for review," Id., p. 133.
2.
As noted the referee affirmed the administrator's decision denying the plaintiff benefits on September 11, 2009. An appeal was not filed by the plaintiff until December 2, 2009. Section 31-248 of the general statutes provides in relevant part that "any decision of a referee . . . shall become final on the twenty second calendar day after the date on which a copy of the decision is mailed to the party, provided (1) any such appeal or motion which is filed after such twenty-one day period may be considered to be timely filed if the filing party shows good cause . . . for the late filing.
Section 31-237g-34(c) of the Regulations for State Agencies states a party has good cause for failing to file an appeal within the 21-day time from issuance of the referee's decision "if a reasonably prudent individual under the same or similar circumstances would have been prevented from filing a timely appeal." The regulations do not stop there but go on to say that: "In determining whether good cause has been shown the Board shall consider all relevant factors, including but not limited to:
(i) The extent to which the party has demonstrated diligence in its previous dealings with the Administrator and the Employment Security Appeals Division;
(ii) Whether the party was represented;
(iii) The degree of the party's familiarity with the procedures of the appeals division;
(iv) Whether the party received timely and adequate notice of the need to act;
(v) Administrative error by the Administrator or Employment Security Appeals Division; or the failure of the Administrator, the Appeals Division, or any other party to discharge its responsibilities;
(vi) Factors outside the control of the party which prevented a timely action;
(vii) The party's physical or mental impairment;
(viii) Whether the party acted diligently in filing an appeal once the reason for the late filing no longer existed;
(ix) Where there is substantial prejudice to an adverse party which prevents such party from adequately presenting its case, the total length of time that the action was untimely;
(x) Coercion or intimidation which prevented the party from promptly filing its appeal.
(xi) Good faith error, provided that in determining whether good faith error constitutes good cause, the Board shall consider the extent of prejudice to any other party, any prior history of late filing due to such error, whether the appeal is excessively late, and whether the party otherwise acted with due diligence.
In this case the Board of Review held on December 23, 2009, that the plaintiff "failed to demonstrate good cause" for filing a late appeal to the board of review. Therefore it decided to dismiss the appeal for lack of jurisdiction, Oslund v. Administrator, 3 Conn.App. 258, 260 (1985).
Citing prior rulings by the Board it rejected a good cause reason for the late filing of the appeal. It said that it has consistently held that a party's failure to read the notice of appeal rights constituted lack of due diligence barring a finding of good cause. It noted the Board has also ruled that a party's failure to seek a clarification of appeal rights also constitutes lack of due diligence. It further noted the referee's "decision contained a detailed notice of appeal rights along with a bold, capital lettered advisement that to be timely filed, the claimant must file an appeal by October 5, 2009."
In later denying the plaintiff's motion to reopen its prior ruling it again cited prior Board decisions and said: "the Board has consistently held that a party's indecisiveness as to whether to file an appeal does not constitute good cause for a subsequent late filing of that appeal . . . therefore the claimant's change of heart about filing an appeal once she was laid off from her new employment does not constitute good cause for the untimely filing of her original appeal to the board. We have also ruled that new employment does not excuse a claimant's late filing of his or her appeal . . ."
Before turning to the merits of the case the court would refer to the "Notice of Appeal Rights" attached to the referee's decision. In the December 23rd decision the Board referred to prior decisions holding failure to seek a clarification of appeal rights also constitutes lack of due diligence.
NOTICE OF APPEAL RIGHTS
This decision shall become final on the twenty-second (22nd) calendar day after the date of mailing unless, before that date, a party either appeals this decision to the Board of Review or moves the Referee to reopen, vacate, set aside or modify the decision. The appeal or motion may be mailed or faxed to the Appeals Division at the address or fax number listed in the heading of this decision. The appeal or motion may also be filed in person at any Connecticut Works/Job Center, or by the Internet at www.ctboard.org; PLEASE NOTE: To be timely filed, the appeal or motion must be actually received at any such office no later than the twenty-first (21st) calendar day after the date of mailing of this decision or, if filed by mail, must bear a legible United States Postal Service postmark showing that it was placed in the possession of the Postal Service for delivery within such twenty-one day period. Postmarks attributable to private postage meters are not acceptable, but you may use one of the private delivery services approved by the IRS: Airborne Express, DHL Worldwide Express, Federal Express, or United Parcel Service. If filed by fax or Internet, the appeal must be received by the Connecticut Appeals Division or the Department of Labor by 11:59 p.m. on the twenty-first day. The last day for filing an appeal or motion is listed at the end of the Referee's decision.
If the appeal or motion is late: Neither the Board of Review nor the Referee can entertain an untimely appeal or motion unless the appealing party can show good cause for failing to file the appeal or motion on time. Therefore, if your appeal or motion is late, you should explain why.
FORMS AND ASSISTANCE ARE AVAILABLE AT EACH CONNECTICUT WORKS/JOB CENTER OFFICE FOR USE IN PREPARATION OF AN APPEAL. Each appeal may be filed by means of the prescribed form or a typed or legibly written statement which describes and explains all reasons for the appeal. The Board issues a written decision addressing the legal and factual claims stated in every timely-filed appeal. Generally, appeals are decided by two of the three members of the Board on the basis of the existing record, and the Board does not hold a further hearing. An appeal may include, under separate headings, a request for a decision by the full three-member Board, a request for a further evidentiary hearing indicating the reasons for such request, or written argument in support of the appeal. NOTICE TO THE CLAIMANT: (1) If you appeal this decision, you should continue to file benefit claims, as directed, while unemployed to protect your benefit rights. (2) If you have already been paid unemployment compensation benefits and the decision of the Referee is against you, an overpayment will be established in your account which you may have to repay. Once this decision becomes final, you will not have another opportunity to contest the decision of ineligibility which created the overpayment.
3.
The plaintiff filed a statement as to why she filed a late appeal in support of her motion to the board to re-open the dismissal of her case for lack of jurisdiction. She said the appeal was filed "after the 21 day timeframe because I went back to full time employment on September 10, 2009 which was before the referee's decision that was sent out on September 14, 2009. I did not continue to file claims as scheduled because I was now working 40 hours a week making just as much as more than I would have received from unemployment." Unfortunately she was laid off from the new job October 17, 2009. She said she called to find out whether she could still appeal the original claim and was told that she could. She gave the same reason in her appeal to this court. She took the same position in her argument before this court. She thought that because her new, albeit short lived, job paid more than she would have gotten from unemployment benefits she was no longer qualified to receive them. She said "the paper" said (apparently referring to documents from the unemployment compensation appeals unit) that she did not think she was "eligible."
The court concludes that the plaintiff had an honest, good faith, erroneous opinion about her eligibility for unemployment benefits as a result of her new job.
The December 23, 2009 decision of the Board dismissing her appeal cites a lack of due diligence on her part; it is conclusory in the sense that it seems to base a lack of due diligence on the failure to appeal within the 21-day timeframe. But that is the question to be answered — is there a viable good cause exception that would waive that requirement.
As noted the defendant Administrator also notes that a party's failure to seek clarification of his or her appeal rights constitutes a lack of due diligence. But if one examines the "notice of appeal rights" attached to the referee's decision it merely discusses timeframes for the appeal, where the appeal is to be sent, and the appeal process. It mentions "good cause" and states if the appeal is late explain why this was filed late without more detail.
The Board's decision denying the motion to reopen also concludes "indecisiveness as" to whether to file an appeal does not constitute good cause nor does a "change of heart." The "ends of justice" did not require the Board in its opinion to reopen its December 23rd decision.
4.
Was there a good cause showing which would excuse the late filing of the appeal? Let us go to the state's own regulations (§ 31-237g-34c) which lists eleven factors the Board "shall" (not may) consider in determining whether a reasonably prudent person under the same or similar circumstances would have been prevented from filing a timely appeal — the predicate of any good cause analysis. The problem the court has is that in its somewhat cursory decisions on this matter it did not even allude to several factors imposed on it by the regulation. The court will review some of the relevant factors mentioned in the regulation. Was she diligent in "previous dealings with the Administrator" — what evidence is there of any previous dealings? She was unrepresented, which contributed to her error in judgment about her appeal rights, but that was not alluded to by the Board. Many people appearing before this agency are indigent and unrepresented and if statutory provisions should be interpreted liberally given the remedial purposes of the act a la Derench one would assume the state's own' regulations regarding the act' would also be liberally interpreted in defining the rights and protections given benefit applicants. There is no indication the plaintiff has had any familiarity with the procedures of appeals division and she did receive timely notice of her need to act — but that is not the problem here. The problem is whether there was a good faith error in failing to file the appeal. If there was then of course the failure to file the appeal can be characterized in hindsight as "indecisive" or the result of a "change of heart." But the final consideration alluded to in the regulations say one of the factors that "shall" be considered in making a good cause determination is whether there was "xi. Good faith error, provided that in determining whether good faith error constitutes good cause, the Board shall consider the extent of prejudice to any other party, any prior history of late filing due to such error, whether the appeal is excessively late, and whether the party otherwise acted with due diligence."
None of these subsection xi factors were considered by the Board. It appeared to simply note the appeal was filed late and conducted a procedural analysis of whether in fact the appeal was filed late and from that fact alone deduced the plaintiff was "indecisive," had an unacceptable "change of heart," did not act with "due diligence" etc. If that was the only consideration properly before the Board why do its own regulations talk about considering whether the applicant was "self represented" or "good faith error" — what does that factor entail, not one would think whether she had access to a calendar to count up the 22-day period. Why is substantial prejudice to the other party a factor or the total length of time that the appeal was untimely if the only thing to be considered is whether the time period for appeal has been met?
The court does not accept the Board's reasoning for its failure to reopen and remands the matter for it to conduct a full review of the good cause factors which might justify waiver of the time to appeal in accordance with its own regulations, see § 31-249b of general statutes. Accordingly the defendant's motion for judgment is denied.
Our court, for example, has considered the pro se status of the plaintiff in these unemployment compensation cases as a factor in deciding whether a case should be remanded, Fellin v. Administrator, 196 Conn. 440, 450 (1985).
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