Maskevich v. Illinois Department of Employment Security

2022 IL App (1st) 210779-U

• Court: Appellate Court of Illinois
• Decided: July 27, 2022
• Docket: 1-21-0779
• Status: Unpublished

Opinion

2022 IL App (1st) 210779-U No. 1-21-0779 Order filed July 27, 2022 Third Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ WILLIAM MASKEVICH, ) ) Plaintiff-Appellant, ) Appeal from the ) Circuit Court of v. ) Cook County. ) THE ILLINOIS DEPARTMENT OF EMPLOYMENT ) No. 20 L 50262 SECURITY, DIRECTOR OF EMPLOYMENT ) SECURITY, BOARD OF REVIEW, AND AMAZON ) Honorable LLC, ) John J. Curry Jr., ) Judge, presiding. Defendants-Appellees. )

JUSTICE ELLIS delivered the judgment of the court. Justices McBride and Burke concurred in the judgment.

ORDER

¶1 Held: Affirmed. Circuit court properly affirmed decision of Board that it lacked statutory authority to hear plaintiff’s untimely appeal.

¶2 Plaintiff William Maskevich appeals pro se from an order of the circuit court, which

affirmed the decision of the Board of Review (Board) of the Illinois Department of Employment No. 1-21-0779

Security (IDES), finding that plaintiff’s appeal of a determination regarding unemployment

benefits was untimely.

¶3 In a nutshell, plaintiff received unemployment insurance benefits from IDES from July to

December 2018 but also received, during most of that same time, short-term disability benefits for

a knee injury. IDES sent plaintiff a “Notice of Fraud Decision,” seeking a refund of unemployment

benefits and providing information on how to appeal that determination if plaintiff disagreed.

Plaintiff filed that administrative appeal to an IDES referee, who found that she lacked jurisdiction

to hear the appeal, as plaintiff filed the appeal more than 30 days after the Notice of Fraud was

sent to him. Plaintiff appealed that ruling to the Board, which affirmed, likewise finding that

jurisdiction was lacking because plaintiff appealed too late. The circuit court affirmed the Board’s

final decision.

¶4 On appeal, plaintiff contends that the manner in which IDES provided notice of the right

to appeal violated “fundamental fairness” and “fair play.” Plaintiff further alleges that he was

denied “due process” when IDES’s determination that he was ineligible for certain benefits was

against the manifest weight of the evidence. We find no error in the Board’s decision and affirm.

¶5 The following factual background is derived from the record on appeal, which includes

IDES records, correspondence between IDES and plaintiff, and the transcript of the hearing before

an ALJ.

¶6 On June 17, 2018, plaintiff filed a claim for unemployment insurance benefits with IDES,

asserting that he was discharged by his employer, Amazon LLC, due to lack of work. He received

unemployment benefits between July 2018 and December 2018. Between July 14, 2018, and

December 8, 2018, however, plaintiff also received short-term disability pay for a knee injury.

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¶7 On September 30, 2019, IDES mailed plaintiff a “Notice of Audit,” stating that plaintiff

may have received benefits to which he was not entitled. On October 14, 2019, plaintiff filed a

response which included his explanation for the alleged discrepancies and documents in support.

¶8 On December 12, 2019, IDES mailed a “Notice of Fraud Decision” to plaintiff’s last known

address. The notice concluded that plaintiff knowingly made false statements or failed to disclose

material facts, which resulted in the payment of benefits for which he was not eligible. IDES

determined that plaintiff was overpaid $3561 and would be required to repay that amount. The

notice further stated, on the second page, that if plaintiff disagreed with the decision, he could file

a request for “reconsideration/appeal” with IDES “within thirty (30) calendar days after the date

this notice was mailed to you.” If the request were mailed, it “must bear a postmark date within

the applicable time limit for filing.” Also included was an “Overpayment Detail” which calculated

the overpayment on a weekly basis between July 28, 2018, and December 15, 2018, and a payment

coupon containing instructions.

¶9 On January 31, 2020, plaintiff submitted an IDES Appeals Worksheet seeking

reconsideration because his employer reported wages at the “time paid” rather than at the time

earned and paid sporadically. Attached was a letter dated January 30, 2020, further explaining

plaintiff’s arguments.

¶ 10 On February 20, 2020, a telephonic hearing was held before an ALJ. Plaintiff testified,

relevant here, that he did not receive “sufficient notice” of his right to appeal when the “body” of

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the notice did not include a date by which the appeal “needed to be made.” Rather, the “only” date

was January 15, 2020, the date on which plaintiff was to begin repayment. 1

¶ 11 Plaintiff asserted that he mailed a request for reconsideration to the “Appeals Division” on

January 14, 2020, and there was a postal service receipt “of that.” 2 However, this document was

returned with “the indication” there was nothing for him to appeal. After a “series of phone calls,”

plaintiff was directed to “Benefit Controls” and given a fax number. Plaintiff believed he emailed

his request for an appeal the same day. Plaintiff asserted that no documents he had received stated

that he had the right to appeal or specified a deadline for an appeal.

¶ 12 The ALJ then directed plaintiff to the portions of the December 12, 2019, notice stating

that he had 30 days to request reconsideration, and listing an address and fax number. The ALJ

concluded that because the deadline for filing an appeal was January 11, 2020, plaintiff’s appeal

was untimely and dismissed it for lack of jurisdiction. Plaintiff agreed that “there was something

about filing an appeal,” but argued it was “not in the body of the document” or above the signature

line. The ALJ then admonished plaintiff that he could appeal the dismissal by filing, within 30

days, a request for a hearing with the Board.

¶ 13 Plaintiff filed a timely appeal to the Board, alleging that the information for appealing from

the “fraud letter” was written on the back of the letter and he only “stumbled” across the

information “by chance.”

1 Based on this court’s review of the record and briefs, plaintiff was referring to a “Repayment Agreement,” dated December 19, 2019, which sets out a proposed schedule of payments, and lists January 15, 2020, as the due date for plaintiff’s first payment. This document is not included in the administrative record, but is attached to one of plaintiff’s filings in the circuit court. 2 Plaintiff included a copy of this envelope and its postmark in his filings in the circuit court. However, it does not appear this request for reconsideration was considered by the ALJ and it is not included in the administrative record.

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¶ 14 On May 1, 2020, the Board affirmed the dismissal of plaintiff’s appeal, noting the record

demonstrated that the notice was mailed to plaintiff’s address on December 12, 2019, and included

verbiage “setting forth the right to file an appeal within thirty days,” meaning that an appeal was

due on January 13, 2020 (which was a Saturday). Plaintiff’s appeal, received January 31, 2020,

was untimely and properly dismissed for lack of jurisdiction.

¶ 15 On June 1, 2020, plaintiff filed a pro se complaint for administrative review in the circuit

court. During this proceeding, plaintiff filed documents that were not included in the administrative

record including, relevant here, a December 19, 2019, “Repayment Agreement” requesting a one-

time payment of $3561, or, in the alternative, detailing the terms of a repayment agreement. The

repayment agreement stated, in pertinent part, that plaintiff “will make payments of not less than

$325.00 beginning on January 15, 2020 and will continue to pay this amount each month thereafter

on the same day until the amount is paid in full.” At the bottom of the sheet was a space for

plaintiff’s signature, claimant identification number, and the date.

¶ 16 On June 3, 2021, the circuit court affirmed the Board’s decision.

¶ 17 On appeal, plaintiff concedes that he received notice of his right to appeal the fraud decision

but argues that “the placement of the notice within the overall, actual decision packet” was not

“reasonably calculated” to actually give notice. He further claims that he was denied due process

when IDES ignored and overlooked facts, resulting in a determination that was against the manifest

weight of the evidence.

¶ 18 In an appeal from the denial of unemployment benefits, “[w]e review the final decision of

the Board, rather than the decision of the referee or the circuit court.” Petrovic v. Department of

Employment Security, 2016 IL 118562, ¶ 22. Our review is limited to the record before the

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administrative agency. 735 ILCS 5/3-110 (West 2018). We thus decline plaintiff’s invitation to

consider any evidence that was not included in the administrative record. See Marconi v. Chicago

Heights Police Pension Bd., 225 Ill. 2d 497, 532 (2006) (reviewing court “may not hear new or

additional evidence in support of, or in opposition to, the decision of the administrative agency”).

¶ 19 Here, there is no dispute that the Notice of Fraud Decision was mailed to plaintiff on

December 12, 2019, that his appeal was due by Monday, January 13, 2020, and that his appeal was

filed with IDES on January 31, 2020. Because these operative facts are not in dispute, whether

plaintiff’s appeal from the fraud decision was timely filed is a matter of law we review de novo.

See Goodman v. Ward, 241 Ill. 2d 398, 406 (2011) (“where the historical facts are admitted or

established, but there is a dispute as to whether the governing legal provisions were interpreted

correctly by the administrative body, the case presents a purely legal question for which our review

is de novo”).

¶ 20 Agencies have no inherent or common-law power; they are creatures of statute that have

only the power that the legislature gave them. Mercury Sightseeing Boats, Inc. v. County of Cook,

2019 IL App (1st) 180439, ¶ 55. When “ ‘an agency acts outside its statutory authority,’ ” we often

say that the agency “ ‘acts without jurisdiction.’ ” Id. (quoting Business & Professional People for

the Public Interest v. Illinois Commerce Comm’n, 136 Ill. 2d 192, 243 (1989)). So when we speak

here of IDES’s statutory authority to hear an untimely protest, it would not be unusual for the

agency to speak to that question in terms of its “jurisdiction,” as it did.

¶ 21 Under the Unemployment Insurance Act (Act), an IDES claim adjustor may determine that

a person received unemployment benefits for which he or she was ineligible. See 820 ILCS

405/703, 900-01 (West 2018). This determination “may be appealed to a Referee within the time

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limits prescribed by Section 800 [of the Act] for appeal from a determination.” 820 ILCS

405/900(B) (West 2018). The Act provides that “appeals from a claims adjudicator shall be taken

to a Referee” and that unless the claimant files an appeal within 30 days from the date the decision

is mailed to him or her, the claims adjudicator’s determination “shall be final.” 820 ILCS 405/800

(West 2018). This is a mandatory provision that acts as a statute of limitations. Hernandez v.

Department of Labor, 83 Ill. 2d 512, 517 (1981). The 30-day deadline must be “strictly” complied

with and is calculated from the date of service, that is, the mailing of the decision to the last known

address of the party entitled to receive it. Thompson v. Department of Employment Security, 399

Ill. App. 3d 393, 395 (2010) (“the statute does not confer additional authority on the Board to

entertain appeals beyond the 30 days after a decision has been mailed”).

¶ 22 We thus concur with the Board that it lacked statutory authority—or jurisdiction—to hear

plaintiff’s appeal, as plaintiff did not file the appeal within the mandatory 30-day period. Id.

¶ 23 Nor can we agree with plaintiff that the notice of his appeal rights was so deficient or

confusing as to violate his right to due process. The government is not required to notify an

individual of administrative appeal rights, as long as a statute, administrative rule, or some

otherwise clear public notice is provided by the government explaining such appeal rights. City of

West Covina v. Perkins, 525 U.S. 234, 240-41 (1999); Mercury, 2019 IL App (1st) 180439, ¶ 89.

But if the government chooses to provide notice of those appeal rights, the notice “ ‘must not be

misleading’ ” or prejudicially confusing. Mercury, 2019 IL App (1st) 180439, ¶ 91 (quoting Grimm

v. Calica, 2017 IL 120105, ¶ 24).

¶ 24 Here, there is no dispute that IDES, in its “Notice of Fraud Decision,” included a paragraph

on the back page of its notice that explained plaintiff’s appeal rights. (Like the State, we take

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plaintiff at his word that this second page was the back side of the first, as opposed to a freestanding

second page; the record does not allow us to distinguish between these possibilities.)

¶ 25 The paragraph explaining plaintiff’s appeal rights read, in its entirety:

“If you disagree with this decision, you may complete and submit a request for

reconsideration/appeal. A letter will suffice if you do not have an agency form. Your

request must be filed with the Illinois Department of Employment Security within thirty

(30) days after the date this notice was mailed to you. If the last day for filing your request

is a day that the Department is closed, the request may be filed on the next day the

Department is open. Please file the request by mail or fax at the address or fax number

listed above. Any request submitted by mail must bear a postmark date within the

applicable time limit for filing. If additional information or assistance regarding the appeals

process is needed, please contact your Agent.”

¶ 26 This language is entirely clear and unambiguous. It begins with the simple, non-legalese

introduction, “[i]f you disagree with this decision.” It provides the appeal period in terms of days

with both the written “thirty” and the number “30.” It makes clear that the thirty-day clock begins

“after the date this notice was mailed to you” (emphasis added), and the date of the mailing is clear

from the first page of the Notice—“12/12/19.” It explains that the appeal may be transmitted by

mail or fax and provides both a mail address and a fax number in the heading of the first page. It

clearly explains that the appeal may be by letter if the applicant does not have an agency form.

And if all of that were not enough, it advises that “[i]f additional information or assistance

regarding the appeals process is needed, please contact your Agent,” whose name and phone

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number is provided at the bottom of the first page. So if the citizen were at all confused by the

instructions given, a simple phone call to the IDES agent would clear up any issues.

¶ 27 This paragraph explaining plaintiff’s appeal rights was in the same size and font as the

other paragraphs of the Notice of Fraud Decision. It was, in fact, the very first paragraph on the

second page. It was not buried among other text but was its own freestanding paragraph. And it

was, according to plaintiff, on the reverse side of the Notice, thus incapable of detachment.

¶ 28 Plaintiff complains that the front page of this Notice ended with a “signature line”

identifying the IDES special agent who was sending the notice. From this, he suggests that the

sign-off at the bottom of the first page indicated that nothing more was left to be read.

¶ 29 As the State notes, neither our supreme court nor this court has not been receptive to the

notion that a citizen is not required to flip a page to read on, beyond the front page of a government

notice. In the decision of In re Marriage of Miller, 227 Ill. 2d 185, 201 (2007), Miller was held to

be “aware of his statutory [child support] obligations, and equally aware of the $100-per-day

penalty” for noncompliance, based on a provision that was on the reverse side of his withholding

notice. We likewise upheld the state’s deduction of parking fines from a university employee’s

paycheck from a challenge to lack of notice, though notice of that deduction authority was on the

reverse side of the employee’s notice of appointment. See Feldman v. Board of Trustees of

Southern Illinois University, 108 Ill. App. 3d 1127, 1130, 1135 (1982).

¶ 30 We do not think it is asking to much of our citizenry to read a notice in full, even if the

information continues beyond the front page. And that is particularly true of someone who

disagrees with the decision and plans to appeal. Surely it would not be unreasonable to expect a

would-be protestor to at least read the entire notice in full in determining his or her next steps. See

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O’Boyle v. Real Time Resolutions, Inc., 910 F.3d 338, 345 (7th Cir. 2018) (“a consumer who reads

the front and back of the first page of a short letter and then completely disregards the second page

has not read the letter with care.”). And again, if anything contained within the mailing from IDES

were confusing, the recipient was informed of the option of contacting the IDES agent by phone

at the provided number.

¶ 31 As the notice was clear, easy to understand, and prominently displayed, we find no due

process violation in the notice given to plaintiff of his appeal rights.

¶ 32 In sum, the Board correctly found that it lacked statutory authority to consider plaintiff’s

protest. There is thus no need to consider the underlying merits of the protest. The judgment of the

circuit court, affirming the decision of the Board, is affirmed.

¶ 33 Affirmed.

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