Petition for Writ of Certiorari — John F. Policastro, Petitioner v. Nevada Employment Security Division, et al.

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IN THE SUPREME COURT OF THE STATE OF NEVADA

No. 86369

JOHN F. POLICASTRO,

Appellant,

vs.

THE STATE OF NEVADA

EMPLOYMENT SECURITY DIVISION,

AND LYNDA PARVEN, IN HER

CAPACITY AS ADMINISTRATOR OF

THE EMPLOYMENT SECURITY

DIVISION; AND J. THOMAS SUSICH,

IN HIS CAPACITY AS CHAIR OF THE

EMPLOYMENT SECURITY DIVISION

BOARD OF REVIEW,

Respondents.

K FILED

£V

fc SEP 2 3 2024

ORDER DENYING PETITION FOR REVIEW

Review denied. NRAP 40B.

It is so ORDERED.

CgJfrL

, C.J.

Cadish

PitkOA U

,J.

Pickering

Stiglich

(A

preme Court

OF

Nevada

IOTA

___ , J-

Herndon

Lee

Parraguirre

Bell

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9ia

cc:

Hon. Maria A. Gall, District Judge

John F. Polieastro

State of Nevada/DETR - Las Vegas

Neidert Law

State of Nevada/DETR - Carson City

Eighth District Court Clerk

prewe Court

OF

Nevada

2

APPEAJOXX E- JSBa

IN THE COURT OF APPEALS OF THE STATE OF NEVADA

JOHN F. POLICASTRO,

Appellant,

vs.

THE STATE OF NEVADA

EMPLOYMENT SECURITY DIVISION,

AND LYNDA PARVEN, IN HER

CAPACITY AS ADMINISTRATOR OF

THE EMPLOYMENT SECURITY

DIVISION; AND J. THOMAS SUSICH,

IN HIS CAPACITY AS CHAIR OF THE

EMPLOYMENT SECURITY DIVISION

BOARD OF REVIEW,

Respondents.

No. 86369-COA

rr-

f FILED

* mum v

ORDER OF AFFIRMANCE

John F. Policastro appeals from a district court order denying a

petition for judicial review in an unemployment matter. Eighth Judicial

District Court, Clark County; Maria A. Gall, Judge.

In 2021, Policastro filed an application for Pandemic

Unemployment Assistance (PUA) under the federal Coronavirus Aid, Relief,

and Economic Security Act of 2020 (the CARES Act) in which he selfcertified that he was a self-employed gig worker who earned $10,870 in

2020, last worked in November 2020, and had experienced a significant

decrease in the services that he usually performed due to the COVID-19

pandemic. Respondent State of Nevada Employment Security Division

(ESD) initially determined that Policastro was eligible to receive PUA

benefits but indicated that his eligibility would be reevaluated if he failed

to produce documentation substantiating his self-employment within 21

days of the date he filed his application. ESD later denied Policastro’s

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claim, finding that he failed to demonstrate that he was unemployed for

pandemic-related reasons. As a result, ESD also issued determinations in

which it found that Policastro was liable for overpayments of $1,448 in PUA

benefits as well as $2,400 in Federal Pandemic Unemployment

Compensation (FPUC) benefits, which he received in connection with his

claim for PUA benefits.

Policastro appealed the denial of his claim and determination

that he was liable for an overpayment of FPUC benefits to an appeals

referee,1 and the matter proceeded to an administrative hearing. During

the hearing, Policastro testified that the earnings from 2020 that he

reported in his application consisted almost entirely of his social security

benefits, although he received approximately $250 for maintenance work

that he performed for his landlord. Policastro further testified that he

usually performed gig work as a banquet bartender but did not do so in 2019

because he had dental issues that needed to be addressed and was unable

to do so in 2020 due to the pandemic. Policastro also presented a written

statement in which he explained that he planned to resume his gig work in

February 2020 after healing from “extensive dental work” but could not do

so due to the pandemic.

Following the hearing, the appeals referee affirmed ESD’s

denial of Policastro’s claim for PUA benefits and determination that he was

liable for an overpayment of $2,400 in FPUC benefits. In reaching that

decision, the appeals referee found that, although Policastro self-certified

that he earned $10,870 in 2020 and last worked in November of that year,

he failed to produce documentation to substantiate his income and self'‘Policastro did not separately appeal the determination that he was

liable for an overpayment of PUA benefits.

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employment. As a result, the appeals referee concluded that Policastro

failed to demonstrate that he was unemployed for pandemic-related

reasons. The appeals referee also determined that, because Policastro

indicated that he sequestered the FPUC benefits that he received in a

personal bank account, it would not be against equity and good conscience

to hold him liable for the overpayment of those benefits. The ESD board of

review subsequently declined to review Policastro’s appeal from the appeals

referee’s decision.

Policastro then petitioned the district court for judicial review,

naming ESD; Lynda Parven, who is the administrator of ESD; and J.

Thomas Susich, who is the chair of the Board of Review, as respondents. In

his opening brief for his petition for judicial review, Policastro argued that

he demonstrated he was eligible for PUA and FPUC benefits; that he was

entitled to the same from the effective date of his application, May 9, 2021,

onwards; and that the prior decisions against him in this matter were

discriminatory and a violation of his right to procedural due process.

Moreover, Policastro asserted that ESD violated his right to procedural due

process by failing to provide him with adequate notice of the PUA and FPUC

programs at a time when he could have sought benefits under those

programs for his unemployment during 2020, and as a result, he

maintained that he was entitled to such benefits retroactive to February

2020. Respondents disagreed with Policastro’s positions in their answering

brief.

Without conducting a hearing, the district court entered an

order denying Policastro’s petition for judicial review. In so doing, the

district court determined that Policastro failed to demonstrate that he was

unemployed for pandemic-related reasons, reasoning that, even if he could

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not find work in 2020 due to the pandemic, he initially became unemployed

due to major dental problems. Further, the district court concluded that

| Policastro was afforded a full and fair hearing before the appeals referee '

and was not denied due process. This appeal followed.

The appellate court’s role in reviewing an administrative

agency’s decision is identical to that of the district court. Elizondo v. Hood

Mach., Inc., 129 Nev. 780, 784, 312 P.3d 479, 482 (2013). The appellate

court, therefore, gives no deference to the district court’s decision. Id. Like

the district court, this court reviews the evidence presented to the

administrative agency in order to determine whether the agency’s decision

was arbitrary or capricious and thus an abuse of the agency’s discretion.

Langman v. Nev. Admrs, Inc., 114 Nev. 203, 206-07, 955 P.2d 188, 190

(1998). This court reviews the factual findings of an administrative agency

for clear error or an abuse of discretion and will not disturb those findings

unless they are unsupported by substantial evidence. Elizondo, 129 Nev.

at 784, 312 P.3d at 482. Substantial evidence is that which a reasonable

person could find adequate to support the agency’s decision. Id. Although

this court normally defers to an agency’s conclusions of law that are closely

related to the facts, State v. Talalovich, 129 Nev. 588, 590, 309 P.3d 43, 44

(2013), we review purely legal issues de novo, Sierra Pac. Power Co. v. State,

Dep’t of Tax’n, 130 Nev. 940, 944, 338 P.3d 1244, 1247 (2014).

PUA was a temporary federal unemployment assistance

program offered to claimants who were not eligible for traditional

unemployment benefits, but who were nevertheless unemployed or

underemployed as a result of the COVID-19 pandemic. See 15 U.S.C. §

9021. Under the CARES Act, an applicant was originally permitted to

establish eligibility for PUA benefits by self-certifying that he or she was

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unemployed for one of eleven pandemic-related reasons enumerated in the

Act.

15 U.S.C. § 9021(a)(3)(A).

However, while the self-certification

procedure for establishing a pandemic-related reason for unemployment

remained in place throughout the period that the PUA program was in

effect, Congress eventually bolstered that procedure by requiring applicants

to more definitively establish that they had a recent attachment to the

workforce that could be affected by the pandemic. U.S. Dep’t of Labor,

Unemployment Insurance Program Letter No. 16-20 (UIPL 16-20), Change

4,1-10 to -11 (January 8, 2021) (explaining that the amendment was a tool

against fraud that required applicants to establish a recent attachment to

the workforce by showing that they were employed or self-employed, or

planned to commence employment or self-employment, at some point

between the start of the applicable tax year—-the year preceding the year in

which a PUA application was filed—and the date the application was filed).

In

particular,

the

amendment

required

applicants

to

provide

“documentation to substantiate employment or self-employment or the

planned commencement of employment or self-employment” within 21 days

of submitting a PUA application or within 21 days of being advised by ESD

to submit such documentation, whichever was later, unless the applicant

was granted a discretionary extension for good cause.2

Consolidated

Appropriations Act, Pub. L. No. 116-260, 134 Stat. 1182, 1960 (December

27, 2020) (codified at 15 U.S.C. 9021(a)(3)(A)(iii)).

2Because Policastro filed his PUA application after January 31, 2021,

he was required to produce substantiating documents within the foregoing

timeframe. See U.S. Dep t of Labor, UIPL 16-20, Change 4, 1-9 (discussing

the amendment’s applicability).

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If an individual met the requirements to receive PUA benefits,

then he or she was also entitled to receive benefits under the FPUC

program, which was another temporary federal unemployment assistance

program created by the CARES Act that provided supplemental benefits to

individuals receiving various forms of unemployment benefits. 15 U.S.C. §

9021(d)(1) (listing FPUC benefits as part of the benefit amount that an

individual who is eligible for PUA benefits is entitled to receive for a week

of unemployment, partial unemployment, or inability to work); 15 U.S.C. §

9023(b)(1), (i)(2)(C) (providing for individuals who receive regular

unemployment compensation under state law to also receive FPUC

benefits, and indicating that any reference in the statute to unemployment

benefits includes, as relevant here, PUA benefits).

On appeal, the parties’ dispute focuses on whether Polieastro

established that he was unemployed for the pandemic-related reason set

forth in 15 U.S.C. § 9021(a)(3)(A)(ii)(I)(jj), which made an individual eligible

to receive benefits if his or her “place of employment [wa]s closed as a direct

result of the COVID-19 public health emergency.” Polieastro specifically

contends that he established the foregoing by demonstrating that he did not

work in 2019 due to his dental issues and was subsequently unable to find

work in 2020 due to the pandemic. As a result, Polieastro maintains that

he was entitled to PUA benefits as well as FPUC benefits by extension.

However, as discussed above, the version of the CARES Act that

was applicable when Polieastro applied for PUA benefits required him to

produce documentation substantiating that he had a recent attachment to

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the workforce that could be affected by the pandemic.3 See 15 U.S.C.

9021(a)(3)(A)(iii); U.S. Dep’t of Labor, UIPL 16-20, Change 4, MO to -11. In

particular, because Policastro sought PUA benefits on the basis that he was

unable to find bartending gig work due to the pandemic, he needed to

produce documents showing that he performed such gig work at some point

between the start of 2020 and the date that he filed his application—-May

10, 2021. 15 U.S.C. 9021(a)(3)(A)(iii); U.S. Dep’t of Labor, UIPL 16-20,

Change 4,1-10 to -11. But Policastro did not produce any such documents.

Instead, Policastro produced largely irrelevant documents, such as

paystubs from Caesars Palace from 2003 and 2004, paystubs from Westgate

Las Vegas from August and September 2021, and a 2021 letter from the

Unitehere Bartenders’ and Beverage Dispensers’ Union Local 165 stating

that Policastro had been registered with the Union since 2007. See NRS

48.015 (defining “relevant evidence” as “evidence having any tendency to

make the existence of any fact that is of consequence to the determination

of the action more or less probable than it would be without the evidence”).4

3Thus, although our decision in Popal v. State, Employment Security

Division, No. 84291-COA, 2022 WL 12455235, at *2 n.4, *4 (Nev. Ct. App.

Oct. 20, 2022) (Order of Reversal and Remand), required the appeals referee

to consider the reasonableness of a break that the appellant took from gig

work prior to the pandemic for medical reasons, that case was

distinguishable from the present case because there was no question of

whether the appellant satisfied the CARES Act’s documentation production

requirement since his application was filed before the requirement took

effect.

“Moreover, Policastro specifically testified that, with the exception of

$250 in maintenance work that he performed for his landlord, he did not

work in 2020. To the extent Policastro attempts to demonstrate that he

satisfied the document production requirement by directing our attention

to a copy of his 2020 tax return that he produced to substantiate that he

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Given that Policastro failed to demonstrate that he was

engaged in bartending gig work from the start of 2020 through the date he

filed his application, we conclude that he failed to satisfy the CARES Act’s

document production requirement. See 15 U.S.C. 9021(a)(3)(A)(iii); U.S.

Dep’t of Labor, UIPL No. 16-20, Change 4, I-10 to *11.

Consequently,

Policastro did not establish his eligibility for PUA benefits, and FPUC

benefits by extension, see 15 U.S.C. § 9021(d)(1); 15 U.S.C. § 9023(b)(1),

(i)(2)(C), and ESD was therefore required to deny his application, see U.S.

Dep’t of Labor, UIPL No. 16-20, Change 4, I-10 to -11 (providing that

individuals who fail to satisfy the CARES Act’s document production

requirement within the required timeframe are ineligible for PUA

benefits).5

Although Policastro

further contends

that respondents’

decisions during the underlying proceeding were discriminatory and made

received $250 in income during the 2020 tax year, he has not demonstrated

a basis for relief. Indeed, Policastro has never alleged, either below or on

appeal, that the pandemic prevented him from doing maintenance work at

any point, and he has not directed this court's attention to any legal

authority to demonstrate that his de minimis attachment to the workforce

in one field during a given tax year may be used to establish eligibility for

PUA benefits based on an inability to secure employment in a completely

unrelated field. Consequently, we decline to consider that issue. Edwards

v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38,130 P.3d 1280,1288 n.38

(2006) (declining to consider issues unsupported by citation to relevant legal

authority).

5Because Policastro has not demonstrated that he was eligible to

receive PUA and FPUC benefits, we need not consider the parties’

arguments concerning whether Policastro’s self-certification that he became

unemployed due to a pandemic-related business closure was sufficient when

considered in the context of the guidance provided by U.S. Dep’t of Labor,

UIPL No. 16-20, Change 2,1-6, Question 14 (July 21, 2020).

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in violation of his right to procedural due process, he has not established a

basis for relief.0 Indeed, nothing in the record establishes that Policastro

was treated differently from others with whom he was similarly situated or

that any unequal treatment was the result of intentional or purposeful

discrimination. See Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir.

2001) (explaining that, to establish a violation of the right to equal

protection, the plaintiff must show “that he has been treated differently

from others with whom he is similarly situated and that the unequal

treatment was the result of intentional or purposeful discrimination”).

Moreover, the record reflects that Policastro had meaningful notice and an

opportunity to be heard at every stage of the underlying proceeding. See In

re Guardianship of Jones, 139 Nev., Adv. Op. 17,531 P.3d 1236,1244 (2023)

(explaining that procedural due process requires "notice and a meaningful

opportunity to be heard”).

Thus, for the foregoing reasons and because Policastro does not

present any separate argument with respect to whether he should be held

liable for an FPUC overpayment, we conclude that the district court did not

err by denying Policastro’s petition for judicial review of the appeals

referee’s determination that he was not entitled to PUA and FPUC benefits

6Aside from asserting that the underlying proceeding was conducted

in a manner inconsistent with his right to procedural due process, Policastro

contends that ESD violated his procedural due process rights by failing to

provide adequate notice of the PUA and FPUC programs during the early

stages of the pandemic. We need not reach this argument, however, given

Policastro’s failure to demonstrate that he was eligible for PUA and FPUC

benefits.

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and that he was liable for the FPUC overpayment. Accordingly, we affirm

the denial of judicial review in this matter.7

It is so ORDERED.

C.J.

Gibbons

J.

Bulla

•4

//

J.

Westbrook

cc:

Hon. Maria A. Gall, District Judge

John F. Policastro

State of Nevada/DETR - Las Vegas

State of Nevada/D ETR - Carson City

Eighth District Court Clerk

7Insofar as the parties raise arguments that are not specifically

addressed in this order, we have considered the same and conclude, that

they do not present a basis for relief.

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W>PEM&IAC-3la

IN THE COURT OF APPEALS OF THE STATE OF NEVADA

JOHN F. POLICASTRO,

Appellant,

No. 86369-COA

vs.

THE STATE OF NEVADA

EMPLOYMENT SECURITY DIVISION,

AND LYNDA PARVEN, IN HER

CAPACITY AS ADMINISTRATOR OF

THE EMPLOYMENT SECURITY

DIVISION; AND J. THOMAS SUSICH,

IN HIS CAPACITY AS CHAIR OF THE

EMPLOYMENT SECURITY DIVISION

BOARD OF REVIEW,

Respondents.

FILED

ORDER DENYING REHEARING

Rehearing denied. NRAP 40(c).

It is so ORDERED.

C.J.

Gibbons

J.

Bulla

J.

Westbrook

>UWT Of A**>cacs

OF

Nsvaoa

n min

cc:

3Ja

Hon. Maria A. Gall, District Judge

John F. Policastro

State of Nevada/DETR - Las Vogas

State of Nevada/DETR - Carson City

Eighth District Court Clerk

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Nevada

ft IV47H

2

22

No.

IN THE

Supreme Court of the United States

JOHN F. POLICASTRO,

Petitioners,

v.

NEVADA EMPLOYMENT SECURITY DIVISION

LYNDA PARVEN [NOW KRISTINE NELSON],

ADMINISTRATOR, ET AL.,

Respondent.

PROOF OF SERVICE

I, JOHN F. POLICASTRO, do swear or declare that on this date, DECEMBER 20, 2024, as

required by Supreme Court Rule 29 I have served the enclosed MOTION FOR LEAVE TO

PROCEED IN FORMA PAUPERIS and PETITION FOR A WRIT OF CERTIORARI on each

party to the above proceeding or that party’s counsel, and on every other person required to be

served, by depositing an envelope containing the above documents in the United States mail

properly addressed to each of them and with first-class postage prepaid, or by delivery to a thirdparty commercial carrier for delivery within 3 calendar days.

The names and addresses of those served are as follows:

DAVID K. NEIDERT, ESQ.

Division Sr. Legal Counsel

State of Nevada DETR/ESD

500 East Third Street

Carson City, NV 89713

(775) 684-3996

dkneidert@detr.nv. gov

JEN J. SARAFINA, ESQ.

Deputy Staff Attorney

State of Nevada, DETR/ESD

2800 E. St. Louis Avenue

Las Vegas, Nevada 89104

(702) 486-0328

i-sarafina@detr.nv.gov

I declare under penalty of perjury that the foregoing is true and correct.

Executed on DECEMBER 20, 2024

By:

'

JOHN F. POLICASTRO, Pro se

797 E. HARMON AVENUE, #35

LAS VEGAS, NEVADA 89119

(702) 731-9622

j .policastro@yahoo.com

Petitioner, In Proper Person