Benes v. State

• Docket Number: 85942-COA
• Decision Date: 24 April 2024
• Parties: MARTIN DOUGLAS BENES, Appellant, v. 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 CHAIRPERSON OF THE EMPLOYMENT SECURITY DIVISION BOARD OF REVIEW, Respondents,
• Court: Nevada Court of Appeals

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MARTIN DOUGLAS BENES, Appellant,
v.
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 CHAIRPERSON OF THE EMPLOYMENT SECURITY DIVISION BOARD OF REVIEW, Respondents,

No. 85942-COA

Court of Appeals of Nevada

April 24, 2024

UNPUBLISHED OPINION

ORDER OF REVERSAL AND REMAND

Gibbons, C.J.

Martin Douglas Benes appeals from a district court order denying a petition for judicial review in an unemployment matter. Eighth Judicial District Court, Clark County; Christy L. Craig, Judge.

Benes filed an application for Pandemic Unemployment Assistance (PUA) and Federal Pandemic Unemployment Compensation (FPUC) under the federal Coronavirus Aid, Relief, and Economic Security Act of 2020 (CARES Act) in which he self-certified that he became unemployed in February 2020 because his place of employment closed due to the COVID-19 pandemic.^[1] While Benes initially received PUA and FPUC

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benefits pursuant to his application, respondent State of Nevada Employment Security Division (ESD) later informed him that his eligibility to receive the same was under review and requested that he submit documentation to substantiate his claim. Benes did not timely respond to those requests, although he later submitted certain relevant documentation, albeit without providing proof of his earnings from self-employment as ESD had requested. Eventually, ESD determined that Benes was ineligible to receive PUA or FPUC benefits under the CARES Act and was therefore liable for an overpayment of benefits, finding that he failed to provide documentation establishing that he was previously employed and became unemployed as a result of the pandemic.

Benes appealed ESD's determination to an appeals referee, and the matter proceeded to an administrative hearing. During the hearing, the appeals referee questioned Benes concerning his self-certification that he became unemployed in February 2020 due to the pandemic, seeking an explanation as to how the pandemic affected Benes's employment when Nevada closure of nonessential businesses did not commence until March 2020.^[2] As discussed in greater detail below, Benes testified that he was a

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gig worker and that his services were not needed after he last worked in February 2020 due to the chilling effect that the pandemic had on businesses even before Nevada's nonessential businesses were directed to close.

Following the hearing, the appeals referee affirmed ESD's decision, concluding that the evidence established Benes was unemployed for reasons unrelated to the pandemic, that he was therefore ineligible to receive benefits under the CARES Act, and that he was liable for an overpayment of such benefits because he had misrepresented his eligibility for the same. In reaching that decision, the appeals referee found that Benes testified he became unemployed in February 2020 due to Nevada's closure of nonessential businesses, that the closure did not commence until March 2020, and that Benes testified he did not have any job offers retracted due to the pandemic. Based on the foregoing findings, the appeals referee further found that Benes was an incredible witness. Benes subsequently appealed the referee's decision to the ESD Board of Review, which declined to review the decision.

Benes then petitioned the district court for judicial review, and respondents, which include ESD; Lynda Parven, who is the administrator of ESD; and J. Thomas Susich, who is the chair of the Board of Review, filed an answer. Following a hearing, the district court entered an order denying Benes's petition for judicial review, reasoning that substantial evidence supported the appeals referee's decision since Benes represented in his application that he became unemployed because his place of employment closed due to the pandemic even though the record established he stopped working prior to the shutdown of non-essential businesses. Moreover, the

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district court determined that Benes failed to comply with ESD's reasonable requests for documentation supporting his identity and pandemic-related unemployment. 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 (2012). 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. hangman v. Nev. Adm'rs, 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. To qualify for PUA benefits at the time Benes applied, an applicant needed to show three things: (1) ineligibility for standard unemployment

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benefits; (2) self-certification that he or she was "otherwise able to work and available to work . . . except [that he or she was] unemployed, partially unemployed, or unable or unavailable to work;" and (3) self-certification that the reason for being unable to work was for one of eleven pandemic-related reasons within the statute. 15 U.S.C. § 9021(a)(3)(A). 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 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, Benes initially contends that the appeals referee misapplied the CARES Act by focusing on the fact that Benes largely failed to produce documents substantiating his self-employment as ESD had requested rather than simply accepting his testimony as his self-certification under 15 U.S.C. § 9021(a)(3)(A)(ii)(I) that he was unemployed for pandemic-related reasons. However, although the appeals referee...