Calef v. Emp't Dep't

• Docket Number: A176016
• Decision Date: 12 July 2023
• Citation: 327 Or.App. 82
• Parties: Jennifer J. CALEF, Petitioner, v. EMPLOYMENT DEPARTMENT, Respondent.
• Court: Oregon Court of Appeals

1

327 Or.App. 82

Jennifer J. CALEF, Petitioner, v. EMPLOYMENT DEPARTMENT, Respondent.

A176016

Court of Appeals of Oregon

July 12, 2023

Submitted March 3, 2023

Employment Appeals Board 2021EAB0229; A176016

Jennifer J. Calef filed the briefs pro se.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jeff J. Payne, Assistant Attorney General, filed the brief for respondent.

Before Ortega, Presiding Judge, and Powers Judge, and Hellman, Judge.

HELLMAN, J.

Petitioner seeks judicial review of the denial of her application for pandemic unemployment assistance under the Coronavirus Aid, Relief and Economic Security Act (CARES Act) Pub L 116-136, 134 Stat 281 (2020). In her first assignment of error, she asserts that the Employment Appeals Board (EAB) impermissibly applied eligibility requirements from 20 CFR section 625.4 to pandemic unemployment assistance eligibility determinations. In her second, third, and fourth assignments of error, petitioner argues that EAB made findings that were not supported by the record and failed to consider evidence she had submitted into the record. In her fifth assignment of error, petitioner asserts that EAB erred by failing to provide legal citations in its findings of fact. For the reasons explained below, we affirm.

We set out the legal framework at the start to provide context for the specific issues presented in this case. The CARES Act was enacted in March 2020, in response to the COVID-19 public health emergency. Among other things, the CARES Act provided the opportunity for "covered individuals" to receive pandemic unemployment assistance by directing the Secretary of Labor to provide "to any covered individual unemployment benefit assistance while such individual is unemployed, partially unemployed, or unable to work for the weeks of such unemployment with respect to which the individual is not entitled to any other unemployment compensation ***." Id. at § 2102(b). A person is considered a "covered individual" if they are

"not eligible for regular compensation or extended benefits under State or Federal law or pandemic emergency unemployment compensation under section 2107, including an individual who has exhausted all rights to regular unemployment or extended benefits under State or Federal law or pandemic emergency unemployment compensation under section 2107[.]"

Id. at § 2102(aX3)(A)(i).

The pandemic unemployment assistance program dovetailed with 20 CFR section 625, a preexisting disaster unemployment assistance program. As such, section 2102(h) of the CARES Act stipulates that:

"Except as otherwise provided in this section or to the extent there is a conflict between this section and section 625 of title 20, Code of Federal Regulations, such section 625 shall apply to this section as if-

"(1) the term 'COVID-19 public health emergency' were substituted for the term 'major disaster' each place it appears in such section 625; and

"(2) the term 'pandemic' were substituted for the term 'disaster' each place it appears in such section 625."

The question of eligibility for disaster unemployment assistance is addressed in 20 CFR section 625.4(i) which reads:

"An individual shall be eligible to receive a payment of [disaster unemployment assistance] with respect to a week of unemployment * * * if:

"(i) The individual is not eligible for compensation (as defined in § 625.2(d)) *** for such week under any other Federal or State law, except that an individual determined ineligible because of the receipt of disqualifying income shall be considered eligible for such compensation ******"

Section 625.2(d) defines unemployment compensation, in relevant part, as "any assistance or allowance payable to an individual with respect to such individual's unemployment under any State law or Federal unemployment compensation law * * *."

With that legal framework in place, we turn to the specifics of petitioner's case. Prior to the pandemic about half of petitioner's income came from her small business that made and sold dyed clothing at markets and fairs. The other half came from her work as a cashier for Bi-Mart. After the Governor's stay-at-home order was issued in March 2020, petitioner's clothing business shut down. However, she continued to cashier at Bi-Mart.

On March 29, petitioner filed a claim for regular unemployment benefits with the Oregon Employment Department (OED). On May 7, OED issued a Wage and Potential Benefit Report to petitioner which stated that petitioner qualified for regular unemployment benefits with a weekly benefit amount of $172, a maximum benefit of $4,472, and a benefit expiration date of April 3, 2021. Petitioner first applied for regular unemployment benefits; those were denied because her earnings from Bi-Mart exceeded her weekly benefit amount. See ORS 657.100(1) (An individual is considered unemployed for the purposes of receiving regular unemployment benefits if "in any week of less than full-time work [the] remuneration paid *** for services performed during the week is less than the individual's weekly benefit amount."); ORS 657.155(1)(e) ("An unemployed individual shall be eligible to receive benefits with respect to any week only if *** [t]he individual is not disqualified from benefits or ineligible for benefits under any other section of this chapter.").

Petitioner then applied for pandemic unemployment assistance and claimed benefits for the weeks of March 29, 2020, to March 6, 2021. On October 16, 2020, OED notified petitioner that she was not eligible for pandemic unemployment assistance because she was eligible for regular unemployment assistance. Petitioner appealed that decision, but the ALJ upheld it. Petitioner then appealed to EAB, which also upheld OED's decision. This timely appeal followed

In her first assignment of error, Petitioner challenges EAB's finding that she was not a "covered individual" for purposes of the CARES Act. She argues that in reaching that conclusion, EAB unlawfully added an eligibility requirement to the CARES Act when it interpreted section 2102(h) of the Act to require application of 20 CFR section 625.4 to pandemic unemployment assistance eligibility determinations. Alternatively, petitioner argues that even if EAB was correct in applying 20 CFR section 625, there was conflict between the applicable CFR provisions and the CARES Act, such that the CARES Act controlled. OED argues that EAB did not err because 20 CFR section 625 applies to the CARES Act vis-a-vis section 2102(h) of the Act and that EAB correctly concluded that there was no conflict between the applicable parts of 20 CFR section 625 and the CARES Act. We review an agency's legal conclusions for errors of law. ORS 183.482(8Xa); National Maintenance Contractors v. Employment Dept., 288 Or.App. 347, 348, 406 P.3d 133 (2017), rev den, 362 Or. 508 (2018). Because petitioner's argument concerns a question of statutory interpretation, we follow the principles espoused in PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-12, 859 P.2d 1143 (1993), and State v. Gaines, 346 Or. 160, 171-73, 206 P.3d 1042 (2009) (In interpreting a statute we first examine its text and context, then if necessary, its legislative history and then, if the meaning is still unclear, we turn to other canons of construction.) We follow a similar process in interpreting federal statutes. Friends of Columbia Gorge v. Columbia River, 346 Or. 366, 377-78, 213 P.3d 1164 (2009).

As an initial matter, we disagree with EAB and OED that the starting point for a determination as to whether an applicant is a "covered individual" is the question whether the claimant has exhausted all Oregon unemployment benefits. By its terms, the statute creates a subcategory of covered individuals for those who have exhausted all benefits, but it is not required that a claimant have exhausted all unemployment benefits to be a "covered individual." Instead, the starting point for a determination of when an applicant is a "covered individual" is an examination of petitioner's employment status under state employment law. See Pub L 116-136, § 2102(a)(3)(A)(i), 134 Stat 281 (2020) (stating that a "covered individual" is one who is "not eligible for [other] compensation * * * under State or Federal law.").

In Oregon, a claimant must be "unemployed" to be eligible for unemployment benefits. Teledyne Wah Chang Albany v. Employment Div., 302 Or. 186, 189, 728 P.2d 26 (1986) (en banc); Cook v. Employment Div., 47 Or.App. 437, 442 n 4, 614 P.2d 1193 (1980).^[1] As applicable in this case, ORS 657.100 establishes that an individual is "unemployed"

"in any week of less than full-time work if the remuneration paid or payable to the individual for services performed during the week is less than the individual's weekly benefit amount."

In plain terms, to be considered "unemployed" a person must make less during a week from any employment than they would receive in unemployment benefits. Here, petitioner made between $275 and $300 a week from her employment at Bi-Mart. However, her weekly benefit amount was $172. Therefore, petitioner was not "unemployed" under Oregon law, and was not eligible for Oregon state unemployment benefits.

Reading section 2102(a)(3)(A) of the CARES act alone, it would appear that petitioner, someone who was "not eligible" for state unemployment benefits, was thus a "covered individual" for purposes of pandemic unemployment assistance. However, section 2102(a)(3)(A) cannot be read in isolation. Importantly, and dispositively for petitioner's claim, there is an exception for claimants like petitioner, who are not eligible for unemployment benefits because their weekly compensation exceeds any benefit amount. See 20 CFR section 625.4(i). Under ...