Merida v. Dir.

2016 Ark. App. 397

• Court: Court of Appeals of Arkansas
• Decided: September 14, 2016
• Docket: E-15-594
• Status: Published

Opinion

Cite as 2016 Ark. App. 397

ARKANSAS COURT OF APPEALS DIVISION II No.E-15-594

Opinion Delivered September 14, 2016

GABINO MERIDA APPEAL FROM THE ARKANSAS APPELLANT BOARD OF REVIEW [NO. 2015-BR-01841] V.

DIRECTOR, DEPARTMENT OF WORKFORCE SERVICES APPELLEE AFFIRMED

BRANDON J. HARRISON, Judge

The Arkansas Board of Review (the Board) dismissed Gabino Merida’s appeal as

untimely, and he now appeals that decision, arguing that the Department of Workforce

Services (the Department) violated federal law, due process, equal protection, state law,

and public policy when it sent him a “Notice of Agency Determination” only in English,

not Spanish, and that he should therefore be allowed a belated appeal. We affirm.

To aid workers who have lost their jobs because of import competition, the Trade

Act of 1974 established a program of trade readjustment allowance (TRA) benefits as a

supplement to state unemployment insurance benefits. 19 U.S.C. § 2291. Under the

Act’s scheme, a group of workers, their union, or some other authorized representative

may petition the Secretary of Labor to certify that their firm has been adversely affected by

imports. Id. §§ 2271–2273. If the Secretary of Labor issues a certificate of eligibility for

1 Cite as 2016 Ark. App. 397

such a group, workers within that group who meet certain standards of individual

eligibility may then apply for and receive TRA benefits.

Merida’s employer, Superior Industries, was certified by the Department of Labor

as being trade-affected on 18 August 2014. Merida applied for trade-adjustment assistance

(TAA), which was one requirement to make him eligible for TRA benefits, but on 18

December 2014, he received a waiver from TAA-approved training because the training

was not currently available. This waiver expired on 25 March 2015. In June 2015,

Merida was denied TRA benefits because he was not enrolled in training within the

required period.

Merida timely appealed this denial to the Appeal Tribunal, which affirmed the

Department’s denial of TRA benefits. The Appeal Tribunal’s decision was issued on 31

July 2015, and Merida had twenty days from that date to file an appeal with the Board;

however, Merida did not file his appeal until 26 August 2015, which was six days late. 1

Pursuant to Paulino v. Daniels, 269 Ark. 676, 559 S.W.2d 760 (Ark. App. 1980),

Merida was afforded a hearing to establish whether the delay in filing the appeal was due

to circumstances beyond his control. In its decision, the Board explained,

The claimant testified that his appeal to the Board was untimely filed because he had a friend translate the Appeal Tribunal decision from English to Spanish. He further testified that the friend who translated did not inform him that the appeal to the Board needed to be filed within 20 days of the mailing date of the Appeal Tribunal’s decision. While unfortunate, this does not constitute a circumstance beyond the claimant’s control for the untimely filing of his appeal. Had the claimant sought assistance from a

1 The petition to the Board is file-marked September 10, but Merida testified that he filed the petition in person on August 26, and the Board’s opinion states that his appeal was filed on August 26.

2 Cite as 2016 Ark. App. 397

Department representative, he would have been made aware of the deadline for filing an appeal.

The Board dismissed Merida’s appeal as untimely, and he has timely appealed the Board’s

decision.

We review the Board’s findings in the light most favorable to the prevailing party

and affirm the Board’s decision if it is supported by substantial evidence. Rodriguez v. Dir.,

2013 Ark. App. 361. Substantial evidence is such relevant evidence that a reasonable

mind might accept as adequate to support a conclusion. Id. Even when there is evidence

upon which the Board might have reached a different decision, the scope of our review is

limited to a determination of whether the Board reasonably could have reached the

decision that it did based upon the evidence before it. Id. Issues of credibility of witnesses

and weight to be afforded their testimony are matters for the Board to determine. Ballard

v. Dir., 2012 Ark. App. 371.

Merida argues that the Board’s decision was not based on substantial evidence,

because the Department failed to provide notice conveying the appeal deadline in Spanish

in violation of federal law, due process, equal protection, state law, and public policy.

Because of this violation, and Merida’s “Limited English Proficiency” status, he argues that

the appeal was filed late due to circumstances beyond his control.

Merida acknowledges that this argument was not raised below and likens this case

to Term v. Williams, 2015 Ark. App. 144, 457 S.W.3d 291, in which the claimant argued,

in part, that the Department’s notice should have been written in her native language,

Marshallese, and that failure to do so violated her rights to due process, equal protection,

and her civil rights under Title VI of the Civil Rights Act. In Term, this court affirmed

3 Cite as 2016 Ark. App. 397

the dismissal of Term’s appeal because she had failed to present those arguments below.

Merida distinguishes Term, however, by arguing that he “does not argue these theories on

their merits” but instead “asserts that the foregoing sources of law establish that failure to

provide notice to Merida in Spanish constituted a circumstance beyond his control.”

Merida’s attempt to distinguish Term is not persuasive. He concedes that he did

not raise these arguments below, and this court does not consider issues raised for the first

time on appeal. Parham v. Dir., 2013 Ark. App. 362. Thus, we affirm the Board’s

Affirmed.

GLOVER and VAUGHT, JJ., agree.

Annie Smith, Civil Litigation & Advocacy Clinic, University of Arkansas School of

Law, for appellant.

Gregory Ferguson, for appellee.