Wright v. Dir., Ark. Dep't of Commerce

2022 Ark. App. 222

646 S.W.3d 150

Kara WRIGHT, Appellant

v.DIRECTOR, ARKANSAS DEPARTMENT OF COMMERCE, DIVISION OF WORKFORCE SERVICES, Appellee

No. E-21-243

Court of Appeals of Arkansas, DIVISIONS III & IV.

Opinion Delivered May 11, 2022

Kara B. Wright, pro se appellant.

Cynthia L. Uhrynowycz, Associate General Counsel, for appellee.

KENNETH S. HIXSON, Judge

Appellant Kara Wright appeals the decision of the Arkansas Board of Review that dismissed the untimely appeal of her federal Pandemic Unemployment Assistance (PUA) claim from the Division of Workforce Services to the Appeal Tribunal based on the Board's finding that Wright failed to show that the late filing was due to circumstances beyond her control.¹ We conclude that the Board's finding that the late filing was not due to circumstances beyond Wright's control was supported by substantial evidence, and we affirm.

The narrow, limited issue before the Board in its Paulino hearing² was whether Wright's late filing of her notice of appeal of her federal PUA claim to the Appeal Tribunal was due to circumstances beyond her control. It necessarily follows that the only issue before this court is whether the Board erred in determining that the late filing of the notice of appeal to the Appeal Tribunal was not due to circumstances beyond the control of the claimant.

Courts are often saddled with the task of interpreting rules or statutes that, unfortunately, could have been written more clearly. Our task in those instances is to interpret the rule or statute as written and not to rewrite the rule or statute to fit what we consider the rule or statute should state or contain. The task of rewriting the rule or statute is left to the originating legislative- or executive-branch agency or department. Such is the instance in the case at bar. The rules and statutes that govern the administration and enforcement of the federal PUA program could have been written more clearly, but our limited task herein is to interpret and apply these rules and statutes as written. If the originating legislative- or executive-branch agency or department deems it necessary to rewrite these rules and statutes, this court certainly stands as no obstacle.

While the only issue before this court—whether the Board of Review erred in determining that the late filing of the notice of appeal was not due to circumstances beyond the control of the claimant—may appear rather simple, the disposition of the issue requires an extensive analysis of the State's unemployment-insurance-administration scheme as it relates to the federal PUA program.

The PUA is one of several different federal financial assistance programs that the United States Congress enacted to provide additional unemployment benefits to help individuals bridge financial hardships that the COVID-19 pandemic caused. See Coronavirus Aid, Relief, and Economic Security (CARES) Act, Pub. L. No. 116-136, 134 Stat. 281 (2020) (codified at 15 U.S.C. § 9021 to § 9034 ). Under the Act, the Secretary of Labor "shall provide to any covered individual unemployment benefit assistance while such individual is unemployed, partially employed, or unable to work for the weeks of such unemployment with respect to which the individual is not entitled to any other employment compensation ... or waiting period credit." Id. § 2102(b) (emphasis added). A "covered individual" eligible to collect PUA benefits is an individual who (1) "is not eligible for regular compensation or extended benefits under State or Federal law or pandemic emergency unemployment compensation," and (2) self-certifies that she is "otherwise able to work and available for work within the meaning of applicable State law, except the individual is unemployed, partially unemployed, or unable or unavailable to work because" of one of the listed reasons related to the COVID-19 pandemic. Id. § 2102(a)(3)(A) (emphasis added). The PUA program extended economic assistance to people who lost work due to the pandemic but would not be eligible for regular unemployment-compensation benefits. Soler v. Dir. , 2022 Ark. App. 37, 2022 WL 221056.

As is evident from the foregoing, unemployment benefits from the State of Arkansas under its regular unemployment-insurance program and unemployment benefits from the federal PUA program are mutually exclusive. A claimant cannot receive regular state unemployment benefits and federal PUA benefits. Before a claimant can receive federal PUA benefits, the State must first determine the claimant ineligible for regular state unemployment benefits

The federal PUA guidelines generally provide that each state shall use its existing state procedures for processing regular state unemployment claims to decide PUA claims. See U.S. Dep't of Labor, Emp. & Training Admin., Unemployment Insurance Program Letter No. 16-20, Attachment 1, at I-9, Unempl. Ins. Rep. (CCH) ¶ 22,460, 2020 WL 2146515 (April 5, 2020). Thus, the Arkansas Division of Workforce Services uses its existing state unemployment-insurance framework in determining a PUA claim. The threshold question in determining a federal PUA claim is whether the claimant is ineligible to receive regular state employment benefits. Depending on the particular circumstances of each claim, a claimant may or may not be required to first file a claim for regular state unemployment benefits before applying for federal PUA benefits. The U.S. Department of Labor issued Unemployment Insurance Program Letter No. 16-20 (The Federal Program Letter), which speaks to PUA eligibility and states in relevant part:

In processing claims for PUA, states must verify that individuals have no regular UI entitlement. If the individual is not eligible for regular UI because there are insufficient covered wages or the individual has an active UI claim with a definite or indefinite disqualification, then a state does not need to require the individual to file a regular UI initial claim.

....

If the individual's eligibility for regular UI is questionable (for example, there are wages in the base period but no claim is filed, or a job separation that has not been adjudicated ), then the state must first require the individual to file a regular UI initial claim. If the individual is subsequently disqualified , then the state may consider the individual for PUA eligibility.

U.S. Dep't of Labor, Emp. & Training Admin., Unemployment Insurance Program Letter No. 16-20, Attachment 1, at I-9, Unempl. Ins. Rep. (CCH) ¶ 22,460, 2020 WL 2146515 (April 5, 2020) (emphasis added).

While the excerpt from the above quoted PUA Federal Program Letter may contain terms with which we are not familiar, the overall scheme of ineligibility of state regular unemployment benefits as a condition precedent for eligibility for federal PUA benefits resonates clearly through the federal guidance. In general terms, the PUA guidelines provide that if the claimant is clearly ineligible for regular state unemployment benefits from the documents presented to DWS, then a PUA claimant is not required to file a regular state unemployment claim. However, if the claimant's eligibility for regular state unemployment benefits is "questionable,"³ then the PUA claimant must first file a claim for regular state benefits and, of vital importance to our analysis in the case at bar, "[if] the individual is subsequently disqualified [for state unemployment benefits] then the state may consider the individual for PUA eligibility." The administrative sequence of events is clear. If a federal PUA claim involves a questionable regular state unemployment claim, the State must first determine that the claimant is ineligible for regular state unemployment benefits; then , the State may consider and determine whether the claimant is eligible for federal PUA unemployment benefits. As will be discussed, infra , appellant Wright's claim for regular state unemployment benefits herein can unquestionably be characterized as questionable , and even the dissent agrees with this characterization. When Wright filed her questionable claim for regular state unemployment benefits, she also filed a claim for federal PUA benefits. This caused her regular state unemployment claim and her federal PUA benefits claim to proceed simultaneously —but separately— through the unemployment insurance administrative proceedings. It is this simultaneous bilateral matriculation of the regular state unemployment claim and the federal PUA claim through the unemployment insurance administrative proceedings that is the source of the confusion in this case. We now turn to the claim.⁴

Wright was employed as a nurse for Vista Health. Vista Health is a smoke-free, alcohol-free, and drug-free campus. On May 11, 2020, a fellow employee witnessed a bottle of alcohol in Wright's vehicle while the vehicle was parked on the employer's campus and reported it to the employer. On May 12, 2020, Vista Health terminated Wright for misconduct for violating company policy.

On July 2, 2020, Wright filed a claim for regular state unemployment benefits. The employer, Vista Health, responded and denied the claim, alleging that Wright was discharged for misconduct in the connection with the work.⁵ Since Wright alleged she was entitled to regular state unemployment-insurance benefits and the employer denied the claim, alleging that Wright was terminated for misconduct, the character of Wright's state claim became questionable according to the PUA guidelines and the Federal Program Letter. Instead of waiting for her questionable regular state unemployment claim to be administratively processed through the system and state benefits either awarded or denied, Wright simultaneously filed a separate claim for federal PUA benefits. As explained above, these two types of claims are mutually exclusive. Wright's two unemployment claims (the questionable regular state claim and the Federal PUA claim) were administered and processed separately and given different internal claim numbers by...