The opinion
IN THE
Court of Appeals of Indiana
FILED
Sep 27 2024, 9:51 am
P.J.,
CLERK
Appellant Indiana Supreme Court
Court of Appeals
and Tax Court
v.
Review Board of the Indiana Department of Workforce
Development,
Appellee
September 27, 2024
Court of Appeals Case No.
24A-EX-659
Appeal from the Review Board of the Indiana Department of
Workforce Development
The Honorable Gabriel B. Paul, Chairman
The Honorable Lawrence A. Dailey, Member
The Honorable Heather D. Cummings, Member
Trial Court Cause No.
24-R-199
Court of Appeals of Indiana | Opinion 24A-EX-659 | September 27, 2024 Page 1 of 16
Opinion by Judge Bradford
Judge Crone concurs and Judge Tavitas concurs in part and concurs
in result in part with opinion.
Bradford, Judge.
Case Summary
[1] After applying for unemployment benefits, P.J. was found ineligible because his
employment had been terminated for just cause. P.J. did not file a timely
appeal of the eligibility determination, and his subsequent appeal was dismissed
by the Department of Workforce Development Review Board (“the Review
Board”) for lack of jurisdiction. P.J. contends that the determination of
eligibility (“the DOE”) was inadequate to inform him that his application for
unemployment benefits had been denied and that his appeal was timely. P.J.
also contends that he should have been permitted to proceed in forma pauperis
on appeal. We affirm.
Facts and Procedural History
[2] At some time during June or July of 2023, P.J. applied for unemployment
benefits. On July 27, 2023, the Department of Workforce Development
(“DWD”) sent P.J. the DOE informing him that he had been found to have
been “[d]ischarged for just cause.” Ex. Vol. p. 4. Specifically, the DOE
explained as follows:
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Circumstances of Case
The claimant was discharged due to a work-related breach of
duty. The information provided supports the allegation.
Conclusion of Case
The claimant was discharged for just cause. IC-22-4-15-1(d)
states a discharge for breach of duty reasonably owed an
employer by an employee is disqualifying. It has been
established that the claimant’s actions meet this definition. The
employer is relieved of charge per IC-22-4-11-1(d)2. Benefits are
reduced and suspended as shown below.
THIS DETERMINATION MAY RESULT IN AN
OVERPAYMENT OF BENEFITS.
Legal Result of Case
CLAIMANT: YOUR BENEFIT RIGHTS ARE SUSPENDED
EFFECTIVE WEEK ENDING 07/08/2023…
RIGHT OF APPEAL: THIS DETERMINATION WILL
BECOME FINAL ON 08/07/2023 IF NOT APPEALED.
EITHER PARTY MAY APPEAL THIS DETERMINATION
AND REQUEST A HEARING BEFORE AN
ADMINISTRATIVE LAW JUDGE WITHIN TEN DAYS OF
THE DATE THIS DETERMINATION WAS SENT. PLEASE
SEE REVERSE SIDE FOR APPEAL PROCEDURE.
Ex. Vol. p. 4 (emphases and capitalization in original). With regard to P.J.’s
right to appeal, the reverse side of the DOE provided as follows:
CLAIMANT: If the legal result of your case states that your
weekly benefits have been reduced or suspended, or if your
maximum benefit amount has been reduced, you have the right
to appeal this decision.…
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CLAIMANT: If you have been disqualified you should
continue to file vouchers on-line. You must continue to track
your work searches and maintain all necessary documents should
you win your case on your appeal.
Ex. Vol. p. 5 (emphases in original). P.J. did not appeal the DOE before the
August 7, 2023 deadline.
[3] On October 9, 2023, P.J. appealed the DOE. On October 31, 2023,
Administrative Law Judge (“ALJ”) Ashley Musick dismissed P.J.’s appeal for
lack of jurisdiction, finding that P.J. had “failed to file a timely appeal to an
[ALJ].” Ex. Vol. p. 12. After P.J. appealed ALJ Musick’s decision, the Review
Board remanded the matter for a hearing on the timeliness of P.J.’s initial
appeal. The Review Board ordered the ALJ “to issue a decision in accordance
with the evidence presented at the hearing,” and stated that if P.J. “proves that
he filed a timely appeal of the DOE or had good cause for failing to file a timely
appeal, the [ALJ] must conduct a hearing on the merits of [P.J.’s] claim for
benefits.” Ex. Vol. p. 14. However, the Review Board ordered that if the ALJ
determined that P.J. had failed to prove that his appeal was timely or that he
“had good cause for failing to file a timely appeal, the [ALJ] shall reissue the
Notice of Dismissal.” Ex. Vol. p. 14.
[4] On remand, ALJ Bryan Cogswell conducted a hearing on the timeliness of
P.J.’s appeal of the DOE. On January 16, 2024, ALJ Cogswell dismissed P.J.’s
appeal of the DOE, concluding that P.J. had failed to file a timely appeal. ALJ
Cogswell found that the DOE had been sent to P.J. on July 27, 2023, and that
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P.J. had indicated that he had received the DOE sometime in late July. Using
the date of July 31, 2023, ALJ Cogswell determined that, at the latest, P.J. had
been required to have filed any appeal of the DOE on or before August 10,
2023. While P.J. claimed during the evidentiary hearing that he had been
confused by the language included in the DOE, ALJ Cogswell concluded that
P.J. did not have good cause for filing a late appeal as he had been provided
with “the correct information” in the DOE. Appellee’s App. Vol. II p. 7.
[5] On January 22, 2024, P.J. appealed ALJ Cogswell’s decision. The Review
Board affirmed ALJ Cogswell’s decision on February 16, 2024.
Discussion and Decision
I. Review Board’s Dismissal of P.J.’s Appeal
[6] The Indiana Unemployment Compensation Act (UCA) provides
that any decision of the Review Board shall be conclusive and
binding as to all questions of fact. When the decision of the
Review Board is challenged, an appellate court makes a two-part
inquiry into (1) the sufficiency of the facts found to sustain the
decision and (2) the sufficiency of the evidence to sustain the
findings of fact.…
The Review Board’s findings of basic facts are subject to a
substantial evidence standard of review. We neither reweigh
evidence nor judge the credibility of witnesses; rather, we
consider only the evidence most favorable to the Review Board’s
findings. We will reverse the decision only if there is no
substantial evidence to support the Review Board’s findings.
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J.M. v. Rev. Bd. of Ind. Dep’t of Workforce Dev., 975 N.E.2d 1283, 1286 (Ind. 2012)
(internal citations and quotations omitted). P.J. challenges the dismissal of his
appeal of the DOE, claiming that he had been denied due process by the
allegedly inadequate DOE. He alternatively claims that due to the alleged
inadequacies, his appeal should have been considered to be timely.
A. Due Process
[7] Due process “is flexible and calls for such procedural protections as the
particular situation demands.” Mathews v. Eldridge, 424 U.S. 319, 334 (1976)
(internal quotation omitted). In Mathews, the United States Supreme Court
identified three factors a court should balance in considering whether a
claimant has received due process: (1) “the private interest that will be affected
by the official action;” (2) “the risk of an erroneous deprivation of such interest
through the procedures used, along with the probable value, if any, of
additional or substitute procedural safeguards;” and (3) “the [g]overnment’s
interest, including the function involved and the fiscal and administrative
burdens that additional or substitute procedural requirements would entail.” Id.
at 335.
[8] It is undisputed that P.J. has a property interest in receiving unemployment
benefits. As for the second factor, the relevant statutory provisions protect
against an erroneous deprivation of a claimant’s interest by providing the
statutory right to appeal the initial eligibility determination to an ALJ and the
right to subsequent review by the Review Board. See Ind. Code § 22-4-17-3.
Further, with respect to the third factor, we agree with the Review Board that
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the government’s interest in preserving available funds to ensure that benefits
are available for prompt payment for qualified individuals “outweighs the
private interest in receiving a detailed explanation of the reasons benefits were
denied.” Appellee’s Br. p. 16. Given that both P.J. and the Review Board have
interests involved, we find that the procedural safeguards in place weigh in
favor of due process. As such, review of the Matthews factors alone, therefore,
does not establish a due-process violation. We therefore turn our attention to
P.J.’s contention that he was denied due process by alleged inadequacies in the
DOE.
[9] P.J. contends that he was denied due process because the DOE “fail[ed] to tell
[him] that DWD denied his application for benefits,” Appellant’s Br. p. 12,
claiming that “[w]ithout clear communication that a denial had been made, the
[DOE] does not pass the due process requirements for adequate notice.”
Appellant’s Br. p. 13. Alternatively, P.J. claims that he was denied due process
because the DOE was insufficient to provide him with notice of the reasons for
the eligibility determination. Indiana Code section 22-4-17-2(e) provides that
In cases where the claimant’s benefit eligibility or disqualification
is disputed, the department shall promptly notify the claimant
and the employer or employers directly involved or connected
with the issue raised as to the validity of the claim, the eligibility
of the claimant for waiting period credit or benefits, or the
imposition of a disqualification period or penalty, or the denial of
the claim, and of the cause for which the claimant left the
claimant’s work, of the determination and the reasons for the
determination.
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The Indiana Supreme Court has held, however, that detailed notice “is not
required in all instances.” Perdue v. Gargano, 964 N.E.2d 825, 833 (Ind. 2012).
Moreover, the United States Court of Appeals for the Seventh Circuit has
indicated that notice must merely convey “all of the salient information and
enable[ a claimant] to protect [his] interests.” Ho v. Donovan, 569 F.3d 677, 680
(7th Cir. 2009).
[10] As is outlined above, the DOE clearly stated that P.J.’s employment was
determined to have been terminated for just cause and, as a result, P.J. was
disqualified from receiving benefits. The DOE also clearly stated that P.J.’s
benefit rights, i.e., unemployment payments, would be suspended effective the
week ending July 8, 2023, and that the DOE would become final if not
appealed by August 7, 2023. The DOE informed P.J. that if he chose to appeal
the decision, he could request a hearing before an ALJ and set forth the relevant
appeal procedures.
[11] An individual is not eligible to receive unemployment benefits if he was
discharged from his employment for just cause. J.M., 975 N.E.2d at 1286.
Contrary to P.J.’s assertion that the DOE was misleading, vague, and
contradictory, we conclude that it clearly informed P.J. that his benefit rights
had been suspended, i.e., ended, because his employment had been terminated
for just cause, which disqualified him from receiving benefits pursuant to
Indiana Code section 22-4-15-1(d). The DOE also clearly informed P.J. that
the DOE would become final if he failed to appeal the decision within ten days.
While P.J. claims to have been confused by the DOE, his alleged confusion
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does not, without more, render the notice provided inadequate. Furthermore,
as the Review Board points out, the use of the word “suspended”—as opposed
to “denied”—in the DOE is appropriate because the relevant statutory
provisions provide that a claimant may, under certain circumstances, requalify
for benefits during the benefit period, which is valid for a calendar year. See
Ind. Code §§ 22-4-15-1, 22-4-2-21. P.J. received adequate notice of the reasons
for the eligibility determination and, as a result, was not denied due process.
B. Timeliness
[12] Relying on his assertion that the DOE was inadequate, P.J. argues that he had
good cause for not filing his appeal by the ten-day deadline. Having concluded,
however, that the DOE was adequate, we reach the same conclusion as both
ALJ Cogswell and the Review Board, i.e., that P.J. failed to file a timely appeal
of the DOE. The DOE clearly stated that any appeal must be filed within ten
days. As ALJ Cogswell found, P.J.’s appeal of the DOE was required to have
been filed on or before August 10, 2023. P.J.’s appeal was untimely as it was
not filed until October 9, 2023, nearly two months after the ten-day deadline
had passed. The DOE clearly stated the deadline for filing an appeal and we
are unconvinced that P.J. had good cause for failing to file a timely appeal.
II. Denial of Request to Proceed In Forma Pauperis on
Appeal
[13] P.J. requested permission to proceed in forma pauperis in the instant appeal. The
motions panel denied his request on March 22, 2024. While a “writing panel
has the inherent authority to reconsider any decision of the motions panel while
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an appeal remains pending,” we are “reluctant to overrule orders issued by the
motions panel unless we have determined that there is clear authority
establishing that the motions panel erred.” State v. Tyree, 237 N.E.3d 685, 690
(Ind. Ct. App. 2024) (internal quotations omitted). Further, a litigant “seeking
to proceed on appeal in forma pauperis need only convince the court of their
indigency.” Campbell v. Criterion Grp., 605 N.E.2d 150, 158 (Ind. 1992).
“[E]ach litigant wishing to proceed on appeal in forma pauperis must make” a
showing of indigency. Id. at 159.
[14] P.J. asserts that pursuant to Indiana Code section 33-37-3-2(b), the fact that he
is represented by Indiana Legal Services (“ILS”) is proof of indigency, which he
claims entitles him to proceed in forma pauperis on appeal. However, Indiana
Code section 33-37-3-2 applies to requests to proceed in forma pauperis from
the trial court level. Indiana Appellate Rule 40(A) governs requests to proceed
in forma pauperis on appeal from a trial court and Appellate Rule 40(B)
governs requests to proceed in forma pauperis on appeal from an administrative
decision. Thus, because P.J. is appealing from the Review Board, i.e., an
administrative agency, Appellate Rule 40(B) controls.
[15] With regard to an appeal from an administrative agency, Appellate Rule 40(B)
provides that
Any party to a proceeding before an Administrative Agency who
desires to proceed in forma pauperis on appeal shall file with the
Court on Appeal a motion for leave to so proceed, together with
an affidavit conforming to Forms #App.R. 40-1 and #App.R. 40-
2, showing in detail the party’s inability to pay fees or costs or to
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give security therefor, the party’s belief that the party is entitled to
redress, and a statement of the issues the party intends to present
on appeal.
(Emphasis in original).
[16] In requesting that we overturn the decision of the motions panel, P.J. cites to
the “Affirmation of Indigency” that the motions panel considered when
denying his request.1 The motions panel was unconvinced that P.J.’s
“Affirmation of Indigency” proved that he was indigent for the purposes of
paying the appellate court filing fee. P.J. cites to no clear authority establishing
the motions panel erred and we find none. As such, given our previously-stated
reluctance to overturn our motions panel, we will not disturb its determination
in this regard.
[17] The judgment of the Review Board is affirmed.
Crone, J., concurs.
Tavitas, J., concurs in part and concurs in result in part with opinion.
ATTORNEYS FOR APPELLANT
Jennifer W. Terry
Megan Stuart
Indiana Legal Services
1
The Review Board does not argue that P.J.’s “Affirmation of Indigency” did not conform to either of the
forms mentioned in Appellate Rule 40(B).
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Indianapolis, Indiana
Samantha M. Paul
Indiana Legal Services
Bloomington, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
Katherine A. Cornelius
Deputy Attorney General
Indianapolis, Indiana
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Tavitas, Judge, concurring in part and concurring in result in part.
[18] I concur with the majority’s conclusion that P.J. received adequate notice of the
reasons for the Review Board’s eligibility determination and that P.J.’s
administrative appeal of the DOE was untimely. I write separately to explain
that P.J.’s motion to proceed in forma pauperis on appeal should have been
granted and that he should not have been required to pay the $250 filing fee.
Because he has already paid this filing fee, the question is moot, and I therefore
concur in result on this issue.
[19] In his motion to proceed in forma pauperis, P.J. cited the civil indigency statute,
Indiana Code Section 33-37-3-2. I acknowledge that our Supreme Court held
that the predecessor statute to current civil indigency statute—former Indiana
Code Section 33-19-3-2—“ha[d] no application to the litigant preparing to
prosecute or defend an appeal.” Campbell v. Criterion Grp., 605 N.E.2d 150, 158
(Ind. 1992).2 Prior to 2009, Indiana Code 33-37-3-2, like its predecessor statute,
simply provided:
A person entitled to bring a civil action or to petition for the
appointment of a guardian under IC 29-3-5 may do so without
paying the required fees or other court costs if the person files a
statement in court, under oath and in writing:
2
The Court nevertheless held that the appellant was entitled to proceed in forma pauperis. Id. at 159-60.
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(1) declaring that the person is unable to make the payments
or to give security for the payments because of the person’s
indigency;
(2) declaring that the person believes that the person is entitled
to the redress sought in the action; and
(3) setting forth briefly the nature of the action.
Ind. Code § 33-37-3-2 (2004).
[20] In 2009, however, this statute was amended to make the former language of the
statute subsection (a) and to add subsection (b), which provides:
If a person brings a civil action or petition for the appointment of
a guardian under IC 29-3-5, a clerk shall waive the payment of
required fees or other court costs by the person without court
approval if:
(1) the person is represented by an attorney:
(A) who is employed by Indiana Legal Services or
another civil legal aid program; []
*****
(2) the attorney files a statement with the clerk that:
(A) seeks relief from paying the required fees or other
court costs;
(B) declares that the person believes that the person is
entitled to the redress sought in the action;
(C) sets forth briefly the nature of the action;
(D) is accompanied by an approved affidavit of
indigency; and
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(E) is signed by the attorney.
Ind. Code § 33-37-3-2(b) (2009) (emphases added).3 The statute has not been
amended since.
[21] The current version of the indigency statute thus constitutes a substantial
change in the language of the statute, and the statute contains no language
explicitly limiting its application to trial courts. We are also “constrained to
give a liberal construction to our statutes in favor of the pauper.” Atkins v.
Crawford Cnty. Clerk’s Office, 171 N.E.3d 131, 135 (Ind. Ct. App. 2021) (citation
and internal quotations omitted). Thus, Campbell does not foreclose application
of the current indigency statute to cases on appeal.
[22] The majority claims that the indigency statute clearly conflicts with Indiana
Appellate Rule 40(B). I disagree. Appellate Rule 40(B) provides:
Any party to a proceeding before an Administrative Agency who
desires to proceed in forma pauperis on appeal shall file with the
Court on Appeal a motion for leave to so proceed, together with
an affidavit conforming to Forms #App.R. 40-1 and #App.R. 40-
2, showing in detail the party’s inability to pay fees or costs or to
give security therefor, the party’s belief that the party is entitled to
redress, and a statement of the issues the party intends to present
on appeal.
3
The 2009 amendment also added subsection (c), which provides that “[t]his section does not prohibit a
court from reviewing and modifying a finding of indigency by the court or a clerk if a person who received
relief from the payment of required fees or other court costs ceases to qualify for the relief.”
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Thus, Appellate Rule 40(B) merely sets forth the procedure by which a party on
appeal from a decision of an administrative agency may seek to proceed in
forma pauperis. A procedure with which P.J. complied.4 And P.J.’s affidavit of
indigency clearly shows in detail P.J.’s inability to pay fees or costs by noting
that he is represented by Indiana Legal Services, which under the indigency
statute, automatically qualifies him to proceed in forma pauperis. Nothing in
Appellate Rule 40(B) clearly conflicts with the indigency statute.
[23] In short, P.J. is represented by attorneys from Indiana Legal Services, he sought
relief from the payment of the required filing fee, and his motion met the other
requirements of the indigency statute. I, therefore, believe that the motions
panel of this court should have granted P.J.’s motion to proceed in forma
pauperis. However, because P.J. has already paid the $250 filing fee, this issue is
moot.5
4
As noted by the majority, the Review Board does not claim that this affidavit fails to conform to the forms
mentioned in Appellate Rule 40.
5
P.J. makes no argument that the filing fee can or should be refunded.
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