P J v. Review Board

IN THE

Court of Appeals of Indiana FILED Sep 27 2024, 9:51 am P.J., CLERK Appellant Indiana Supreme Court Court of Appeals and Tax Court

v.

Review Board of the Indiana Department of Workforce Development, Appellee

September 27, 2024 Court of Appeals Case No. 24A-EX-659 Appeal from the Review Board of the Indiana Department of Workforce Development The Honorable Gabriel B. Paul, Chairman The Honorable Lawrence A. Dailey, Member The Honorable Heather D. Cummings, Member Trial Court Cause No. 24-R-199

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Opinion by Judge Bradford Judge Crone concurs and Judge Tavitas concurs in part and concurs in result in part with opinion.

Bradford, Judge.

Case Summary [1] After applying for unemployment benefits, P.J. was found ineligible because his

employment had been terminated for just cause. P.J. did not file a timely

appeal of the eligibility determination, and his subsequent appeal was dismissed

by the Department of Workforce Development Review Board (“the Review

Board”) for lack of jurisdiction. P.J. contends that the determination of

eligibility (“the DOE”) was inadequate to inform him that his application for

unemployment benefits had been denied and that his appeal was timely. P.J.

also contends that he should have been permitted to proceed in forma pauperis

on appeal. We affirm.

Facts and Procedural History [2] At some time during June or July of 2023, P.J. applied for unemployment

benefits. On July 27, 2023, the Department of Workforce Development

(“DWD”) sent P.J. the DOE informing him that he had been found to have

been “[d]ischarged for just cause.” Ex. Vol. p. 4. Specifically, the DOE

explained as follows:

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Circumstances of Case The claimant was discharged due to a work-related breach of duty. The information provided supports the allegation.

Conclusion of Case The claimant was discharged for just cause. IC-22-4-15-1(d) states a discharge for breach of duty reasonably owed an employer by an employee is disqualifying. It has been established that the claimant’s actions meet this definition. The employer is relieved of charge per IC-22-4-11-1(d)2. Benefits are reduced and suspended as shown below.

THIS DETERMINATION MAY RESULT IN AN OVERPAYMENT OF BENEFITS.

Legal Result of Case CLAIMANT: YOUR BENEFIT RIGHTS ARE SUSPENDED EFFECTIVE WEEK ENDING 07/08/2023…

RIGHT OF APPEAL: THIS DETERMINATION WILL BECOME FINAL ON 08/07/2023 IF NOT APPEALED. EITHER PARTY MAY APPEAL THIS DETERMINATION AND REQUEST A HEARING BEFORE AN ADMINISTRATIVE LAW JUDGE WITHIN TEN DAYS OF THE DATE THIS DETERMINATION WAS SENT. PLEASE SEE REVERSE SIDE FOR APPEAL PROCEDURE.

Ex. Vol. p. 4 (emphases and capitalization in original). With regard to P.J.’s right to appeal, the reverse side of the DOE provided as follows:

CLAIMANT: If the legal result of your case states that your weekly benefits have been reduced or suspended, or if your maximum benefit amount has been reduced, you have the right to appeal this decision.…

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CLAIMANT: If you have been disqualified you should continue to file vouchers on-line. You must continue to track your work searches and maintain all necessary documents should you win your case on your appeal.

Ex. Vol. p. 5 (emphases in original). P.J. did not appeal the DOE before the

August 7, 2023 deadline. [3] On October 9, 2023, P.J. appealed the DOE. On October 31, 2023,

Administrative Law Judge (“ALJ”) Ashley Musick dismissed P.J.’s appeal for

lack of jurisdiction, finding that P.J. had “failed to file a timely appeal to an

[ALJ].” Ex. Vol. p. 12. After P.J. appealed ALJ Musick’s decision, the Review

Board remanded the matter for a hearing on the timeliness of P.J.’s initial

appeal. The Review Board ordered the ALJ “to issue a decision in accordance

with the evidence presented at the hearing,” and stated that if P.J. “proves that

he filed a timely appeal of the DOE or had good cause for failing to file a timely

appeal, the [ALJ] must conduct a hearing on the merits of [P.J.’s] claim for

benefits.” Ex. Vol. p. 14. However, the Review Board ordered that if the ALJ

determined that P.J. had failed to prove that his appeal was timely or that he

“had good cause for failing to file a timely appeal, the [ALJ] shall reissue the

Notice of Dismissal.” Ex. Vol. p. 14. [4] On remand, ALJ Bryan Cogswell conducted a hearing on the timeliness of

P.J.’s appeal of the DOE. On January 16, 2024, ALJ Cogswell dismissed P.J.’s

appeal of the DOE, concluding that P.J. had failed to file a timely appeal. ALJ

Cogswell found that the DOE had been sent to P.J. on July 27, 2023, and that

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P.J. had indicated that he had received the DOE sometime in late July. Using

the date of July 31, 2023, ALJ Cogswell determined that, at the latest, P.J. had

been required to have filed any appeal of the DOE on or before August 10,

2023. While P.J. claimed during the evidentiary hearing that he had been

confused by the language included in the DOE, ALJ Cogswell concluded that

P.J. did not have good cause for filing a late appeal as he had been provided

with “the correct information” in the DOE. Appellee’s App. Vol. II p. 7. [5] On January 22, 2024, P.J. appealed ALJ Cogswell’s decision. The Review

Board affirmed ALJ Cogswell’s decision on February 16, 2024.

Discussion and Decision I. Review Board’s Dismissal of P.J.’s Appeal [6] The Indiana Unemployment Compensation Act (UCA) provides that any decision of the Review Board shall be conclusive and binding as to all questions of fact. When the decision of the Review Board is challenged, an appellate court makes a two-part inquiry into (1) the sufficiency of the facts found to sustain the decision and (2) the sufficiency of the evidence to sustain the findings of fact.…

The Review Board’s findings of basic facts are subject to a substantial evidence standard of review. We neither reweigh evidence nor judge the credibility of witnesses; rather, we consider only the evidence most favorable to the Review Board’s findings. We will reverse the decision only if there is no substantial evidence to support the Review Board’s findings.

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J.M. v. Rev. Bd. of Ind. Dep’t of Workforce Dev., 975 N.E.2d 1283, 1286 (Ind. 2012)

(internal citations and quotations omitted). P.J. challenges the dismissal of his

appeal of the DOE, claiming that he had been denied due process by the

allegedly inadequate DOE. He alternatively claims that due to the alleged

inadequacies, his appeal should have been considered to be timely.

A. Due Process

[7] Due process “is flexible and calls for such procedural protections as the

particular situation demands.” Mathews v. Eldridge, 424 U.S. 319, 334 (1976)

(internal quotation omitted). In Mathews, the United States Supreme Court

identified three factors a court should balance in considering whether a

claimant has received due process: (1) “the private interest that will be affected

by the official action;” (2) “the risk of an erroneous deprivation of such interest

through the procedures used, along with the probable value, if any, of

additional or substitute procedural safeguards;” and (3) “the [g]overnment’s

interest, including the function involved and the fiscal and administrative

burdens that additional or substitute procedural requirements would entail.” Id.

at 335. [8] It is undisputed that P.J. has a property interest in receiving unemployment

benefits. As for the second factor, the relevant statutory provisions protect

against an erroneous deprivation of a claimant’s interest by providing the

statutory right to appeal the initial eligibility determination to an ALJ and the

right to subsequent review by the Review Board. See Ind. Code § 22-4-17-3.

Further, with respect to the third factor, we agree with the Review Board that Court of Appeals of Indiana | Opinion 24A-EX-659 | September 27, 2024 Page 6 of 16

the government’s interest in preserving available funds to ensure that benefits

are available for prompt payment for qualified individuals “outweighs the

private interest in receiving a detailed explanation of the reasons benefits were

denied.” Appellee’s Br. p. 16. Given that both P.J. and the Review Board have

interests involved, we find that the procedural safeguards in place weigh in

favor of due process. As such, review of the Matthews factors alone, therefore,

does not establish a due-process violation. We therefore turn our attention to

P.J.’s contention that he was denied due process by alleged inadequacies in the

DOE.

[9] P.J. contends that he was denied due process because the DOE “fail[ed] to tell

[him] that DWD denied his application for benefits,” Appellant’s Br. p. 12,

claiming that “[w]ithout clear communication that a denial had been made, the

[DOE] does not pass the due process requirements for adequate notice.”

Appellant’s Br. p. 13. Alternatively, P.J. claims that he was denied due process

because the DOE was insufficient to provide him with notice of the reasons for

the eligibility determination. Indiana Code section 22-4-17-2(e) provides that

In cases where the claimant’s benefit eligibility or disqualification is disputed, the department shall promptly notify the claimant and the employer or employers directly involved or connected with the issue raised as to the validity of the claim, the eligibility of the claimant for waiting period credit or benefits, or the imposition of a disqualification period or penalty, or the denial of the claim, and of the cause for which the claimant left the claimant’s work, of the determination and the reasons for the determination.

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The Indiana Supreme Court has held, however, that detailed notice “is not

required in all instances.” Perdue v. Gargano, 964 N.E.2d 825, 833 (Ind. 2012).

Moreover, the United States Court of Appeals for the Seventh Circuit has

indicated that notice must merely convey “all of the salient information and

enable[ a claimant] to protect [his] interests.” Ho v. Donovan, 569 F.3d 677, 680

(7th Cir. 2009). [10] As is outlined above, the DOE clearly stated that P.J.’s employment was

determined to have been terminated for just cause and, as a result, P.J. was

disqualified from receiving benefits. The DOE also clearly stated that P.J.’s

benefit rights, i.e., unemployment payments, would be suspended effective the

week ending July 8, 2023, and that the DOE would become final if not

appealed by August 7, 2023. The DOE informed P.J. that if he chose to appeal

the decision, he could request a hearing before an ALJ and set forth the relevant

appeal procedures. [11] An individual is not eligible to receive unemployment benefits if he was

discharged from his employment for just cause. J.M., 975 N.E.2d at 1286.

Contrary to P.J.’s assertion that the DOE was misleading, vague, and

contradictory, we conclude that it clearly informed P.J. that his benefit rights

had been suspended, i.e., ended, because his employment had been terminated

for just cause, which disqualified him from receiving benefits pursuant to

Indiana Code section 22-4-15-1(d). The DOE also clearly informed P.J. that

the DOE would become final if he failed to appeal the decision within ten days.

While P.J. claims to have been confused by the DOE, his alleged confusion

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does not, without more, render the notice provided inadequate. Furthermore,

as the Review Board points out, the use of the word “suspended”—as opposed

to “denied”—in the DOE is appropriate because the relevant statutory

provisions provide that a claimant may, under certain circumstances, requalify

for benefits during the benefit period, which is valid for a calendar year. See

Ind. Code §§ 22-4-15-1, 22-4-2-21. P.J. received adequate notice of the reasons

for the eligibility determination and, as a result, was not denied due process.

B. Timeliness

[12] Relying on his assertion that the DOE was inadequate, P.J. argues that he had

good cause for not filing his appeal by the ten-day deadline. Having concluded,

however, that the DOE was adequate, we reach the same conclusion as both

ALJ Cogswell and the Review Board, i.e., that P.J. failed to file a timely appeal

of the DOE. The DOE clearly stated that any appeal must be filed within ten

days. As ALJ Cogswell found, P.J.’s appeal of the DOE was required to have

been filed on or before August 10, 2023. P.J.’s appeal was untimely as it was

not filed until October 9, 2023, nearly two months after the ten-day deadline

had passed. The DOE clearly stated the deadline for filing an appeal and we

are unconvinced that P.J. had good cause for failing to file a timely appeal.

II. Denial of Request to Proceed In Forma Pauperis on Appeal [13] P.J. requested permission to proceed in forma pauperis in the instant appeal. The

motions panel denied his request on March 22, 2024. While a “writing panel

has the inherent authority to reconsider any decision of the motions panel while Court of Appeals of Indiana | Opinion 24A-EX-659 | September 27, 2024 Page 9 of 16

an appeal remains pending,” we are “reluctant to overrule orders issued by the

motions panel unless we have determined that there is clear authority

establishing that the motions panel erred.” State v. Tyree, 237 N.E.3d 685, 690

(Ind. Ct. App. 2024) (internal quotations omitted). Further, a litigant “seeking

to proceed on appeal in forma pauperis need only convince the court of their

indigency.” Campbell v. Criterion Grp., 605 N.E.2d 150, 158 (Ind. 1992).

“[E]ach litigant wishing to proceed on appeal in forma pauperis must make” a

showing of indigency. Id. at 159. [14] P.J. asserts that pursuant to Indiana Code section 33-37-3-2(b), the fact that he

is represented by Indiana Legal Services (“ILS”) is proof of indigency, which he

claims entitles him to proceed in forma pauperis on appeal. However, Indiana

Code section 33-37-3-2 applies to requests to proceed in forma pauperis from

the trial court level. Indiana Appellate Rule 40(A) governs requests to proceed

in forma pauperis on appeal from a trial court and Appellate Rule 40(B)

governs requests to proceed in forma pauperis on appeal from an administrative

decision. Thus, because P.J. is appealing from the Review Board, i.e., an

administrative agency, Appellate Rule 40(B) controls. [15] With regard to an appeal from an administrative agency, Appellate Rule 40(B)

provides that

Any party to a proceeding before an Administrative Agency who desires to proceed in forma pauperis on appeal shall file with the Court on Appeal a motion for leave to so proceed, together with an affidavit conforming to Forms #App.R. 40-1 and #App.R. 40- 2, showing in detail the party’s inability to pay fees or costs or to

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give security therefor, the party’s belief that the party is entitled to redress, and a statement of the issues the party intends to present on appeal.

(Emphasis in original). [16] In requesting that we overturn the decision of the motions panel, P.J. cites to

the “Affirmation of Indigency” that the motions panel considered when

denying his request.1 The motions panel was unconvinced that P.J.’s

“Affirmation of Indigency” proved that he was indigent for the purposes of

paying the appellate court filing fee. P.J. cites to no clear authority establishing

the motions panel erred and we find none. As such, given our previously-stated

reluctance to overturn our motions panel, we will not disturb its determination

in this regard. [17] The judgment of the Review Board is affirmed.

Crone, J., concurs.

Tavitas, J., concurs in part and concurs in result in part with opinion.

ATTORNEYS FOR APPELLANT Jennifer W. Terry Megan Stuart Indiana Legal Services

1 The Review Board does not argue that P.J.’s “Affirmation of Indigency” did not conform to either of the forms mentioned in Appellate Rule 40(B).

Court of Appeals of Indiana | Opinion 24A-EX-659 | September 27, 2024 Page 11 of 16 Indianapolis, Indiana

Samantha M. Paul Indiana Legal Services Bloomington, Indiana

ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana

Katherine A. Cornelius Deputy Attorney General Indianapolis, Indiana

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Tavitas, Judge, concurring in part and concurring in result in part. [18] I concur with the majority’s conclusion that P.J. received adequate notice of the

reasons for the Review Board’s eligibility determination and that P.J.’s

administrative appeal of the DOE was untimely. I write separately to explain

that P.J.’s motion to proceed in forma pauperis on appeal should have been

granted and that he should not have been required to pay the $250 filing fee.

Because he has already paid this filing fee, the question is moot, and I therefore

concur in result on this issue. [19] In his motion to proceed in forma pauperis, P.J. cited the civil indigency statute,

Indiana Code Section 33-37-3-2. I acknowledge that our Supreme Court held

that the predecessor statute to current civil indigency statute—former Indiana

Code Section 33-19-3-2—“ha[d] no application to the litigant preparing to

prosecute or defend an appeal.” Campbell v. Criterion Grp., 605 N.E.2d 150, 158

(Ind. 1992).2 Prior to 2009, Indiana Code 33-37-3-2, like its predecessor statute,

simply provided:

A person entitled to bring a civil action or to petition for the appointment of a guardian under IC 29-3-5 may do so without paying the required fees or other court costs if the person files a statement in court, under oath and in writing:

2 The Court nevertheless held that the appellant was entitled to proceed in forma pauperis. Id. at 159-60.

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(1) declaring that the person is unable to make the payments or to give security for the payments because of the person’s indigency;

(2) declaring that the person believes that the person is entitled to the redress sought in the action; and

(3) setting forth briefly the nature of the action.

Ind. Code § 33-37-3-2 (2004). [20] In 2009, however, this statute was amended to make the former language of the

statute subsection (a) and to add subsection (b), which provides:

If a person brings a civil action or petition for the appointment of a guardian under IC 29-3-5, a clerk shall waive the payment of required fees or other court costs by the person without court approval if:

(1) the person is represented by an attorney:

(A) who is employed by Indiana Legal Services or another civil legal aid program; []

*****

(2) the attorney files a statement with the clerk that:

(A) seeks relief from paying the required fees or other court costs;

(B) declares that the person believes that the person is entitled to the redress sought in the action;

(C) sets forth briefly the nature of the action;

(D) is accompanied by an approved affidavit of indigency; and

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(E) is signed by the attorney.

Ind. Code § 33-37-3-2(b) (2009) (emphases added).3 The statute has not been

amended since. [21] The current version of the indigency statute thus constitutes a substantial

change in the language of the statute, and the statute contains no language

explicitly limiting its application to trial courts. We are also “constrained to

give a liberal construction to our statutes in favor of the pauper.” Atkins v.

Crawford Cnty. Clerk’s Office, 171 N.E.3d 131, 135 (Ind. Ct. App. 2021) (citation

and internal quotations omitted). Thus, Campbell does not foreclose application

of the current indigency statute to cases on appeal. [22] The majority claims that the indigency statute clearly conflicts with Indiana

Appellate Rule 40(B). I disagree. Appellate Rule 40(B) provides:

Any party to a proceeding before an Administrative Agency who desires to proceed in forma pauperis on appeal shall file with the Court on Appeal a motion for leave to so proceed, together with an affidavit conforming to Forms #App.R. 40-1 and #App.R. 40- 2, showing in detail the party’s inability to pay fees or costs or to give security therefor, the party’s belief that the party is entitled to redress, and a statement of the issues the party intends to present on appeal.

3 The 2009 amendment also added subsection (c), which provides that “[t]his section does not prohibit a court from reviewing and modifying a finding of indigency by the court or a clerk if a person who received relief from the payment of required fees or other court costs ceases to qualify for the relief.”

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Thus, Appellate Rule 40(B) merely sets forth the procedure by which a party on

appeal from a decision of an administrative agency may seek to proceed in

forma pauperis. A procedure with which P.J. complied.4 And P.J.’s affidavit of

indigency clearly shows in detail P.J.’s inability to pay fees or costs by noting

that he is represented by Indiana Legal Services, which under the indigency

statute, automatically qualifies him to proceed in forma pauperis. Nothing in

Appellate Rule 40(B) clearly conflicts with the indigency statute. [23] In short, P.J. is represented by attorneys from Indiana Legal Services, he sought

relief from the payment of the required filing fee, and his motion met the other

requirements of the indigency statute. I, therefore, believe that the motions

panel of this court should have granted P.J.’s motion to proceed in forma

pauperis. However, because P.J. has already paid the $250 filing fee, this issue is

moot.5

4 As noted by the majority, the Review Board does not claim that this affidavit fails to conform to the forms mentioned in Appellate Rule 40. 5 P.J. makes no argument that the filing fee can or should be refunded.

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