Opinion
No. 3D11–2510.
2014-08-6
Vilma SOLER, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION, Appellee.
An Appeal from the Reemployment Assistance Appeals Commission. Vilma Soler, in proper person. Louis A. Gutierrez, Senior Attorney (Tallahassee), for Reemployment Assistance Appeals Commission, appellee.
An Appeal from the Reemployment Assistance Appeals Commission.
Vilma Soler, in proper person. Louis A. Gutierrez, Senior Attorney (Tallahassee), for Reemployment Assistance Appeals Commission, appellee.
Before SHEPHERD, C.J., and SUAREZ and SALTER, JJ.
Affirmed. See§ 443.151(4)(b)(6), Fla. Stat. (2013) (“The referee's decision is final unless further review is initiated under paragraph (c) within 20 days after the date of mailing notice of the decision to the party's last known address or, in lieu of mailing, within 20 days after the delivery of the notice.”); Fla. Admin. Code Ann. R. 73B–20.007(2) (“If the referee finds that the appeal was not filed within the time allowed by the law, it shall be dismissed.”); Espinosa v. Cableoptics, Inc., 807 So.2d 195, 195–96 (Fla. 3d DCA 2002) (“Pursuant to section 443.151(4)(b) 3, Fla. Stat. (1997), an aggrieved party has twenty days after the mailing or delivery of the referee's decision to initiate an appeal with the U.A.C. An appeal which is not timely perfected within twenty days is subject to dismissal pursuant to Florida Administrative Code Rule 38E–3.006. As the appellees correctly point out, there are no good cause exceptions to this dismissal rule.”) SALTER, J. (concurring).
I concur in the result, but I write to reaffirm two exceptions to the procedural default rule relied upon by the majority (dismissal based on the twenty day administrative appeal period, Florida Administrative Code Rule 38E–3.006). I disagree with the majority that the rule has “no good cause exceptions.” One exception is a due process exception, applicable when a claimant establishes that the decision itself was not timely mailed, that an incorrect address was used, or that the claimant never received the adverse decision. Brumm v. Unemployment App. Comm'n, 680 So.2d 1123 (Fla. 1st DCA 1996). This exception is detailed in the case cited by the majority, Espinosa v. Cableoptics, Inc., 807 So.2d 195 (Fla. 3d DCA 2002).
A second exception is applicable when the Commission or Agency creates confusion by its actions (including extraordinary delays that prejudice the claimant) or misinforms the claimant regarding the status of his or her claims. Arensen v. Fla. Unemployment App. Comm'n, 48 So.3d 936 (Fla. 1st DCA 2010); Assam v. Fla. Unemployment App. Comm'n, 871 So.2d 978 (Fla. 3d DCA 2004); Cornello v. Unemployment App. Comm'n, 624 So.2d 382 (Fla. 4th DCA 1993).
Effective June 27, 2011, chapter 443 was substantially amended and the Agency for Workforce Innovations's functions were assumed by the Department of Economic Opportunity. Because the forms, correspondence, orders, and transcript in this case refer exclusively to the Agency for Workforce Innovation, the governmental unit is referred to as the Agency.
The records in this case and a related case involving the same claimant (Soler v. Reemployment Assistance App. Comm'n, Case No. 3D12–1179, 2014 WL 3844152) initially appeared to me to indicate that Ms. Soler believed that she would receive a further determination regarding her claim for benefits (one which would be appealable). The Agency referee's order of April 28, 2011, modified an earlier determination that she was ineligible for benefits from October 17, 2010, concluding that Ms. Soler was able and available for work for certain weeks after that date. While “eligibility” refers to a qualified claimant's right to continue receiving benefits, § 443.091, Fla. Stat. (2014), “qualification” refers to the claimant's right to claim any benefits. § 443.101, Fla. Stat. (2014).
In its supplemental briefing, the Commission has explained that the “eligibility” determination is a separate process, because it only involves the Agency and the employee. The “qualification” determination is a separate and threshold adjudicationof entitlement to benefits that involves the employer and employee, as well as the Agency.
In the present case, the April 28, 2011, order by the referee on Ms. Soler's eligibility issue turned out to be moot, because three months earlier (January 19, 2011) the Agency had issued a determination that Ms. Soler was not qualified to receive benefits. The Agency ruled that Ms. Soler “failed to respond to the Agency's request for information to substantiate good cause attributable to the employer for quitting.” Ms. Soler's failure to appeal from that determination within twenty days resulted in the dismissal of her appeal by the Agency and Commission, and we have now affirmed the Commission's order. The order modifying Ms. Soler's weeks of eligibility did not vacate the Agency's earlier adjudication that Ms. Soler was not qualified to receive any benefits.
I concur with the majority's affirmance of the Commission's order of dismissal, but I do not join in its additional conclusion that “there are no good cause exceptions” to the twenty-day period within which a claimant must commence an appeal.