Morgan v. Employment Dept. , 336 Or. App. 211 ( 2024 )

No. 817 November 14, 2024 211
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
Patricia E. MORGAN,
Petitioner,
v.
EMPLOYMENT DEPARTMENT
and Farmers Bros Co,
Respondents.
Employment Appeals Board
2022EAB0957;
A180265
Submitted October 15, 2024.
Patricia E. Morgan filed the brief pro se.
Denise G. Fjordbeck waived appearance for respondent
Employment Department.
No appearance for respondent Farmers Bros Co.
Before Tookey, Presiding Judge, Kamins, Judge, and
Kistler, Senior Judge.
TOOKEY, P. J.
Affirmed.
212 Morgan v. Employment Dept.
TOOKEY, P. J.
Claimant, appearing pro se, seeks judicial review
of an Employment Appeals Board (board) decision dismiss-
ing her application for review of a decision by an admin-
istrative law judge (ALJ) denying her access to unemploy-
ment benefits.1 The board dismissed claimant’s application
because claimant had filed it after the filing deadline, ORS
657.270(6), and did not show good cause to extend that dead-
line, OAR 471-041-0070. We determine that the board prop-
erly dismissed claimant’s application for review on those
procedural grounds. Consequently, we do not reach claim-
ant’s arguments as to the merits of her application for unem-
ployment benefits. We affirm.
Under ORS 657.270(6), “the decision of the adminis-
trative law judge is final unless * * * [a] party to the hearing
files an application for review with the Employment Appeals
Board * * * within 20 days after the notice was mailed to the
party’s last known address.” The board “shall dismiss a late
application”—an application that is filed after the 20-day
deadline—”unless the filing period is extended * * * a rea-
sonable time upon a showing of good cause[.]” OAR 471-041-
0070(1), (2). “ ‘Good cause’ exists when the applicant provides
satisfactory evidence that factors or circumstances beyond
the applicant’s reasonable control prevented timely filing.”
OAR 471-041-0070(2)(a). In order to avoid the board dismiss-
ing a late application, the applicant must include “a written
statement describing the circumstances that prevented a
timely filing.” OAR 471-041-0070(3).
Here, the ALJ issued an order denying claim-
ant unemployment benefits on August 16, and indicated
that the deadline to file an application for review was on
September 6. Claimant filed her application for review late,
on September 12, and included a handwritten note:
1
Respondent, the Employment Department, waived its appearance.
Although we understand that it may be difficult for the Employment Department
to respond to each appeal filed in this court, we highlight that a response is help-
ful in our decision-making process. See Penson v. Ohio, 488 US 75, 84, 109 S Ct
346, 102 L Ed 2d 300 (1988) (“[O]ur adversarial system of justice * * * is premised
on the well tested principle that truth—as well as fairness—is best discovered
by powerful statements on both sides of the question.” (Internal quotation marks
omitted.)).
Nonprecedential Memo Op: 336 Or App 211 (2024) 213
“P.S. was out of town away from mail for several weeks
when letter sent, returning just before Sept 6th, causing
for delay in appeal request. Thank you.”
The board dismissed claimant’s application for fail-
ure to timely file and left the ALJ’s order “undisturbed.”
Accordingly, the ALJ’s order became final on September 6.
See ORS 657.270(6).
Claimant’s note amounted to an explanation for her
failure to timely file her application, albeit one that the board
determined was insufficient. Claimant was aware as to the
approximate timing of the ALJ’s decision, because the ALJ
informed her at the August 8 hearing that a decision would
be issued “no later than the end of next week.” Under the cir-
cumstances, claimant’s note did not explain why her travel
in the weeks following the August 8 hearing prevented her
from timely filing her application for review. In its decision,
the board noted that claimant “did not indicate in her late
application for review why she did not have someone assist
her with her mail while she was out of town,” and, further,
that “because claimant returned before the application for
review was due on September 6, 2022, claimant’s written
statement did not show that being out of town prevented her
from filing the application for review on time.” (Emphasis in
original.) That is, the record supports the board’s determina-
tion that claimant failed to “provide[ ] satisfactory evidence
that factors or circumstances beyond [her] control prevented
timely filing.” OAR 471-041-0070(2)(a).
On review, claimant does not address the board’s
dismissal of her application for untimeliness. Instead, claim-
ant appears to request that we reach the merits of the ALJ’s
final order, and set aside that decision on the basis that, in
her view, she neither quit work without good cause nor was
discharged for misconduct related to work and is thus eligi-
ble for unemployment benefits.
For the reasons discussed above, we decline to
reach those merits, and we affirm the board’s decision dis-
missing claimant’s application for review. See Martinsen
v. Employment Department, 227 Or App 597, 600, 206 P3d
1113 (2009) (resolving a similar case—in which the claim-
ant sought judicial review of a final order of the board
214 Morgan v. Employment Dept.
dismissing his application for timeliness, but “ask[ed] us to
set aside the ALJ’s decision on the merits”—by declining to
reach the merits “because the ALJ’s decision automatically
became final when claimant failed to request board review
within 20 days after the mailing”).
Affirmed.