Opinion
NO. 2013 CA 0779
02-03-2014
MARLIN FORD v. LOUISIANA STATE JUDICIAL REVIEW BOARD
Marlin R. Ford Baton Rouge, Louisiana In Proper Person/Appellant J. Jerome Burden Baton Rouge, Louisiana Attorney for Defendant/Appellee, Louisiana Workforce Commission
NOT DESIGNATED FOR PUBLICATION
On Appeal from the
19th Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
No. 610,394
The Honorable Timothy W. Kelley, Judge Presiding
Marlin R. Ford
Baton Rouge, Louisiana
In Proper Person/Appellant J. Jerome Burden
Baton Rouge, Louisiana
Attorney for Defendant/Appellee,
Louisiana Workforce Commission
BEFORE: PARRO, GUIDRY, AND DRAKE, JJ.
DRAKE, J.
Claimant, Marlin R. Ford, appeals the district court's judgment which affirmed the Louisiana Board of Review's decision that Ford did not timely file an appeal of the denial of unemployment compensation benefits and the finding of an overpayment by the Louisiana Workforce Commission. For the reasons stated herein, the judgment of the district court is affirmed.
FACTS AND PROCEDURAL HISTORY
Ford, a graduate student at Southern University, originally applied for unemployment compensation on July 30, 2009, using an internet application for Louisiana unemployment benefits. On that application, Ford listed as his addresses a post office box in Grambling, Louisiana, and a residential address in Ruston, Louisiana. Ford again applied for unemployment benefits through the same website on September 26, 2010. The only address listed on the 2010 application was 3617 Lanier Drive, Baton Rouge, Louisiana (Lanier address). At the time, the Lanier address was the correct address and was a place of business where Ford was volunteering. Ford claimed that his benefits ended on September 25, 2010, and he was still unemployed, so he filed a new claim.
On the 2010 application, Ford indicated that he would print the Benefits Rights Information at a later time. The Louisiana Workforce Commission (Agency) requested additional information from Ford on January 4, 2011, and March 2, 2011, since Southern University had reported wages for Ford beginning September 2009. The request for information was mailed to the Lanier address. After receiving no response from Ford, on April 1, 2011, the Agency issued a Notice of Claim Determination (determination notice), informing Ford that he had been disqualified for unemployment compensation from September 27, 2009, until November 6, 2010, since he was paid wages in excess of his weekly benefit amount and did not meet the eligibility requirements for unemployment compensation. See La. R.S. 23:1600(3) and La. R.S. 23:1472(19). The determination notice informed Ford of his right to appeal within fifteen calendar days from the date the notice was mailed, April 1, 2011. Also on April 1, 2011, the Agency issued a Determination of Overpayment notice (overpayment notice). Both notices were mailed to Ford at the Lanier address.
The Louisiana Workforce Commission was created by the Louisiana legislature to coordinate and administer programs conducted by the state in numerous areas, including unemployment compensation. La. R.S. 36:301.
On July 26, 2011, Ford filed a third internet application for unemployment benefits. On this application, he listed his address as 3231 N. Ardenwood Drive, apartment 16, Baton Rouge, Louisiana (Ardenwood address). Ford eventually contacted the Agency concerning unemployment benefits, and he gave the Agency the Ardenwood address as his new address.
By telephone, Ford learned of the Agency's determination as to his disqualification for unemployment benefits and of the determination of overpayment. Ford requested that notice of the determinations be sent to his Ardenwood address. Upon receipt thereof, on October 31, 2011, Ford appealed the Agency's determinations to an appeal referee. See La. R.S. 23:1629(A). He also sent a letter to the Agency explaining that he did not appeal timely, because the notice was not sent to "apartment 16."
Ford was under the impression that the notice had been mailed to the Ardenwood address, but without the apartment number, which was needed. However, the notice was mailed to the Lanier address.
On January 12, 2012, a hearing was held by telephone conference regarding Ford's appeal of his disqualification and overpayment. At the hearing, Ford admitted that he was a Southern University student at the time he received unemployment benefits and that he had been receiving fellowship funds. The appeal referee agreed with the Agency that Ford was overpaid $10,197 in extended emergency unemployment insurance compensation for the weeks of February 13, 2010, to September 25, 2010, since Ford had been found not available for work beginning September 27, 2009. The appeal referee also found, pursuant to La. R.S. 23:1713, that Ford was not entitled to a waiver of recovery, since he was partially at fault in causing the overpayment, given his failure to print out the handbook on his rights and responsibilities when he filed for unemployment benefits. See La. Admin. Code tit 40, pt. IV, §369. On January 19, 2012, the appeal referee found that Ford's appeal was timely, pursuant to La. R.S. 23:1629, even though Ford filed his appeal approximately 213 days from the date of the determination notice, since it was shown that Ford did not receive the April 1, 2011 determination notice at his then current address.
The appeal referee explained that even though the overpayment notice indicated the overpayment was for $197, a computer problem did not pick up all five figures of the overpayment, which was actually $10,197. Ford agreed to that change being made to the overpayment notice.
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Ford filed an appeal of the appeal referee's decision to the Louisiana Board of Review (Board of Review) within the fifteen days allowed, pursuant to La. R.S. 23:1630(A). The Board of Review determined that Ford had fifteen days to appeal the Agency's determination to the appeal referee after the determination notice was mailed to his last known address. See La. R.S. 23:1629(A). Because Ford filed his appeal to the appeal referee more than fifteen days after the determination notice was mailed, the Board of Review reversed the appeal referee on this issue and found Ford's appeal was untimely, thereby dismissing his appeal. Although Ford claimed he had a new address at the time and did not receive the determination notice, the Agency's record as to Ford's address did not change until July 26, 2011, when he notified the Agency that he had moved. Therefore, the determination notice was mailed to the Lanier address on April 1, 2011, Ford's address of record at the time. The Board of Review noted that La. R.S. 23:1629 is peremptive and does not allow for a good cause determination with respect to appeals. Therefore, the Board of Review reversed the appeal referee, held that Ford's appeal was untimely, and dismissed Ford's appeal.
Ford appealed the Board of Review's decision to the 19th Judicial District Court, pursuant to La. R.S. 23:1634. A hearing was held, at which Ford did not appear. On April 5, 2013, the district court signed a judgment affirming the decision of the Board of Review, which had dismissed Ford's request for an appeal to the appeal referee as untimely. It is from this judgment that Ford appeals.
STANDARD OF REVIEW
Appellate review in an unemployment compensation case does not entail the weighing of evidence, drawing of inferences, re-evaluation of evidence, or substituting the views of this court for those of the referee or Board of Review as to the correctness of facts. Fontenet v. Cypress Bayou Casino, 06-0300 (La. App. 1 Cir. 6/8/07), 964 So. 2d 1035, 1038. The scope of appellate review in this matter is limited to determining whether the facts are supported by sufficient and competent evidence and whether the facts, as a matter of law, justify the action taken. Fontenet, 964 So. 2d at 1038. Judicial review of the Board of Review's decision is governed by La. R.S. 23:1634(B) which provides, in part:
In any proceeding under this Section the findings of the board of review as to the facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law.Courts may not disturb factual findings of the Board of Review when questions of weight and credibility are involved and when conclusions are supported by sufficient evidence. King v. Tangipahoa Parish Police Jury, 96-0934 (La. App. 1 Cir. 2/24/97), 691 So. 2d 194, 196.
DISCUSSION
Ford claims that he has been denied due process, that testimony of an Agency employee as to the address to which the notice was mailed was improperly admitted, and that he was denied a continuance to obtain an expert as to his address. The Board of Review found that Ford was afforded due process of the law. Louisiana Revised Statute 23:1629(A)(1) provides that a claimant may appeal under the following circumstances:
Within fifteen days after notification was given or was mailed to his last known address, the claimant or any other party entitled to notice of a determination may file an appeal from such determination with an appeal referee either by mailing such appeal, as evidenced by the postmarked date, or by delivering such appeal.
Personal service is not an indispensable requirement and due process does not necessarily require that the notice actually reach the parties, but only requires a method reasonably calculated to inform the parties. Bailey v. Cajun Insulation, 453 So. 2d 237, 240 (La. 1984). The notice required by La. R.S. 23:1629 must be reasonably calculated, under all the circumstances, to inform the parties of their rights. Id. The supreme court in Bailey held that the method of notice required by La. R.S. 23:1629 was reasonably calculated to inform interested parties of the event that commenced the period for exercising their rights and to afford them an opportunity to make their appearance. Id. The fifteen-day period for appealing decisions of the appeals tribunal is peremptive and its running destroys a claim so completely that any right of action ceases to exist. Mack v. Winn Dixie of Louisiana, 442 So. 2d 756, 757 (La. App. 1 Cir. 1983); see also hughes v. Louisiana Power & Light Co., 98-1007 (La. App. 5 Cir. 3/10/99), 735 So. 2d 44, 45.
A notation as to the date mailed on the notification gives rise to the presumption that the notice was mailed on that date, since public officials are presumed to have performed their duties correctly. Bailey, 453 So. 2d at 241. The presumption is rebuttable, but the only evidence offered by Ford was his own testimony that he did not receive the notification because his address had changed. The evidence in the record indicates that Ford did not change his address with the United States Postal Service until June 8, 2011, and that he did not inform the Agency of his new address until July 26, 2011. Therefore, the last known address of Ford on April 1, 2011, was the Lanier address to which the agency sent the determination notification. An agency does not have a legal obligation to ensure actual receipt. Jones v. Blache, 480 So. 2d 894, 897 (La. App. 2 Cir. 1985). As in Jones, the Board of Review was aware of Ford's reason for not filing his appeal within the statutory deadline. The reason did not include an allegation that he had timely given a forwarding address to the Agency. See Jones, 480 So. 2d at 897; see also Bell v. Goodwill Industries of North Louisiana, Inc., 47,803 (La. App. 2 Cir. 2/27/13), 110 So. 3d 632, 636.
Ford admitted in his appeal of the Board of Review's decision and attached documentary evidence that he had changed his address with the United States Postal Service beginning June 8, 2011. Furthermore, Ford did not let the Agency know until July 26, 2011, of his change of address. The Board of Review correctly determined that the decision of the Agency was appropriately mailed to the last known address of Ford. The method of notice required by La. R.S. 23:1629(A) is reasonably calculated to inform interested parties of an event that commenced the period for exercising their right and to afford them an opportunity to make their appearance. See Bailey, 453 So. 2d at 240. Therefore, Ford was afforded due process.
Ford claims he was denied a continuance to obtain expert testimony of the United States Postal Service as to his address. At the hearing before the appeal referee, Ford stated that he had no witnesses. There is nothing in the record that shows Ford sought any continuance or requested any witnesses to testify at the January 12, 2012 hearing. Furthermore, the record contains Ford's own testimony and documentary evidence that he did not change his address with the United States Postal Service until over two months after the mailing of the determination notice.
Ford also claims that the evidence presented to the appeal referee was insufficient. Based upon our review of the record, we determine that the evidence supports the finding by the Board of Review that Ford's appeal to the appeal referee was untimely.
CONCLUSION
For the foregoing reasons, the judgment of the district court is affirmed. Costs of the appeal are assessed to the plaintiff, Marlin R. Ford.
AFFIRMED.