Wai Po Leung v. Employment Department

340 P.3d 62, 266 Or. App. 795, 2014 Ore. App. LEXIS 1549
CourtCourt of Appeals of Oregon
DecidedNovember 13, 2014
Docket12AB1262; A151956
StatusPublished

This text of 340 P.3d 62 (Wai Po Leung v. Employment Department) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wai Po Leung v. Employment Department, 340 P.3d 62, 266 Or. App. 795, 2014 Ore. App. LEXIS 1549 (Or. Ct. App. 2014).

Opinion

NAKAMOTO, J.

Claimant seeks judicial review of a final order of the Employment Appeals Board (EAB). The EAB affirmed the administrative law judge’s (ALJ) denial of claimant’s late request for a hearing concerning his right to extended unemployment insurance benefits that he had already received. Claimant, who is a native Cantonese speaker, contends that the Employment Department (department) failed to follow its policy on assisting claimants with limited English language proficiency. He contends that those circumstances met the “good cause” standard for late hearing requests in OAR 471-040-0010(1). We reverse and remand.

I. FACTS AND PROCEDURAL HISTORY

Agency findings of fact, unless challenged, are assumed to be correct on review. Meltebeke v. Bureau of Labor and Industries, 322 Or 132, 134, 903 P2d 351 (1995). The unchallenged findings of the EAB in this case are as follows: Claimant’s native language was Cantonese. Although he had lived and worked in the United States for approximately thirty years, he spoke broken English. He could “listen pretty good” in English, but reading English was a “problem.” He sometimes had his wife assist him with English communications.

Claimant filed an initial claim for unemployment insurance benefits in February 2009. When payment on his claim for regular benefits was exhausted, he filed for, and was paid, extended benefits. However, the department later determined that he was not entitled to those extended benefits. In March 2011, claimant received a written decision from the department to that effect, in English.

Within the time period allowed for a hearing request, claimant took the 2011 decision to a local office of the department, where a department employee explained to him that he could request a hearing on the decision. Claimant therefore understood that he had been denied extended benefits and that he could request a hearing on the denial, but he did not comprehend the full legal effect of the decision, namely, that he would have to repay the extended [797]*797benefits that he had received. Claimant filled out a hearing request form but never filed it.

Ten months later, in 2012, claimant received a notice from the department stating that he had to repay the extended unemployment insurance benefits that he had received. Once he received the repayment notice, claimant filed a late request for a hearing on the department’s March 2011 decision that he was ineligible for the extended benefits.

The administrative record reveals the following procedural history. Claimant appeared at two hearings regarding whether he had good cause for the lateness of his 2012 hearing request; the second hearing was scheduled so that claimant could have an interpreter. Claimant represented himself at both hearings. He did not introduce a copy of the department’s “limited English proficient” (LEP) policies as an exhibit. A representative of the department appeared and testified, but no party presented testimony from the department’s employee in its Albany office who had spoken with claimant about the March 2011 decision. The ALJ determined that claimant had not shown good cause to extend the time he had to request a hearing to challenge the department’s March 2011 decision that he was ineligible for the extended benefits.

Claimant appealed the ALJ’s decision to the EAB. Before the EAB, claimant focused on the terms of OAR 471-040-0010(2), specifically, whether the department had failed to follow its policies regarding claimants who are LEP by failing “to communicate orally or in writing in a language that could be understood” by him “upon gaining knowledge” that he “needed or was entitled to such assistance.” The EAB affirmed, although it concluded that claimant had limited English proficiency.1 The term “limited English proficient person” is defined, for purposes of the department’s contested case proceedings, as “a person who, by reason of place of birth, national origin, or culture, speaks a language other than English and does not speak English at all or with [798]*798adequate ability to communicate effectively in the proceedings.” OAR 471-040-0007(2)(a).

The EAB concluded that claimant had failed to demonstrate the department’s violation of its policy for providing services to persons who are LEP:

“Claimant failed to show the Department had, much less failed to follow, an LEP policy requiring its representatives to explain to claimant he would ‘not be able to challenge any future attempt to collect’ unless he appealed its decision, or knew claimant ‘needed or was entitled’ to translation, interpretive, or other LEP services it failed to provide.”

The EAB found that claimant “did not assert or show he asked the Department in March 2011 ‘to communicate orally or in writing’ in Cantonese.” Rather, the EAB observed, “his testimony as to the advice he sought and was given” in the Albany office “was very vague.”

The EAB also noted that many claimants, both those who are native English speakers and those who are not, do not understand that a failure to appeal a notice of ineligibility for benefits received will have an adverse legal consequence: the ineligibility determination will become final and binding and the claimant will have to repay the benefits received. The EAB then concluded that “it does not appear claimant was prevented from meeting the 20-day deadline by his failure to understand the deadline existed.” Rather, the EAB concluded that, like many other claimants, claimant was operating under a misunderstanding of the legal effect of the March 2011 decision.

II. ANALYSIS

On review, claimant and the department dispute whether claimant met his burden to establish good cause for an extension of time to request a hearing. We review the EAB’s final order to determine whether it is supported by substantial evidence in the record. ORS 183.482(8)(c). We also review an agency’s interpretation of law for legal error. ORS 183.482(8)(a). We accord an agency’s interpretation of its own administrative rule deference; we will affirm “if the interpretation is plausible and is not inconsistent with the wording of the rule itself, with the rule’s context, or with [799]*799some other source of law.” Stroeder v. OMAP, 178 Or App 374, 380, 37 P3d 1012 (2001); accord Crystal Communications, Inc. v. Dept. of Rev., 353 Or 300, 311, 297 P3d 1256 (2013).

Under ORS 657.875, the period for a claimant to request a hearing to challenge a determination regarding unemployment insurance benefits “may be extended, upon a showing of good cause therefor.” The department’s rule that governs whether a claimant can show “good cause” for extension of the period for requesting a hearing provides:

“(1) ‘Good cause’ exists when an action, delay, or failure to act arises from an excusable mistake or from factors beyond an applicant’s reasonable control.
“(b) Good cause does not include:
“(B) Not understanding the implications of a decision or notice when it is received.

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Related

Lau v. Nichols
414 U.S. 563 (Supreme Court, 1974)
Crystal Communications, Inc. v. Department of Revenue
297 P.3d 1256 (Oregon Supreme Court, 2013)
Stroeder v. Office of Medical Assistance Programs
37 P.3d 1012 (Court of Appeals of Oregon, 2001)
Meltebeke v. Bureau of Labor and Industries
903 P.2d 351 (Oregon Supreme Court, 1995)
Abu-Adas v. Employment Department, Food Employers, Inc.
940 P.2d 1219 (Oregon Supreme Court, 1997)

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Bluebook (online)
340 P.3d 62, 266 Or. App. 795, 2014 Ore. App. LEXIS 1549, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wai-po-leung-v-employment-department-orctapp-2014.