Herring Gas Co., Inc. v. Miss. Emp. Sec. Comm'n
| Docket Number: | 2004-CC-01765-COA Linked Case(s): 2004-CC-01765-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 12-12-2006 Opinion Author: SOUTHWICK, J. Holding: Reversed and Remanded on Motion for Rehearing |
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| Additional Case Information: |
Topic: Unemployment benefits - Deadline for reconsideration - Section 71-5-517 Judge(s) Concurring: KING, C.J., LEE, P.J., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ. Dissenting Author : MYERS, P.J. Procedural History: Admin or Agency Judgment Nature of the Case: CIVIL - STATE BOARDS AND AGENCIES |
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| Trial Court: |
Date of Trial Judgment: 08-19-2004 Appealed from: Jones County Circuit Court Judge: Billy Joe Landrum Disposition: AFFIRM DECISION OF BOARD OF REVIEW Case Number: 2003-175-CV9 |
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| Note: | Granted Motion for Rehearing. Prior opinion on7/18/2006 is withdrawn. | |
| Party Name: | Attorney Name: | |||
| Appellant: | HERRING GAS COMPANY, INC. |
JOHN L. MAXEY II, CHARLES RICHARD SALTZMAN |
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| Appellee: | MISSISSIPPI EMPLOYMENT SECURITY COMMISSION | B. RAY THERRELL |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Unemployment benefits - Deadline for reconsideration - Section 71-5-517 |
| Summary of the Facts: | The motion for rehearing is granted, and the prior opinion is withdrawn. A day after being terminated by Herring Gas Company for suspicion of embezzlement, Patsy Kouches filed her application for unemployment benefits. The examiner recommended payment of benefits and mailed a notice of chargeability to Herring on May 15, 2003. This notice stated, “If you wish to protest this decision, you may ask for reconsideration or file a Notice of Appeal within fourteen (14) calendar days of the mail date on the decision. Holidays and weekends will not extend the time for filing the appeal.” On the fourteenth day, the Laurel Police Department was still investigating the embezzlement. On June 18, 2003, the Laurel Police Department mailed a letter to Herring stating that Kouches had admitted her involvement with the embezzlement from Herring. A Jones County Grand Jury eventually indicted Kouches. The same day Herring was notified, Herring notified the Department by letter of the newly discovered evidence. After a hearing, the appeals referee mailed to Herring the decision dismissing Herring’s appeal. The referee found that Herring had not shown good cause for missing the fourteen-day appeal deadline and as such the referee had no jurisdiction and the claim examiner’s decision was final. Herring appealed to the Board of Review which affirmed. Herring then appealed to circuit court which affirmed the decision of the Board. Herring appeals. |
| Summary of Opinion Analysis: | The issue is whether the procedures of the Department of Employment Security allow for relaxation of the deadline for reconsideration when delayed evidence of a fraudulently made claim finally becomes available. Section 71-5-517 creates a fourteen day deadline for the filing of an appeal. No statutory deadline is placed upon a reconsideration. There does not appear to be any formal Department procedural rule that affects reconsideration at the claims examiner level. The Herring submission clearly indicated that it wanted the claims examiner to reconsider based on the new evidence that was provided as soon as it became available. The evidence was of a crime committed by the claimant, a crime that would have clearly prohibited the award of benefits had evidence of it been available when the initial decision was made. The only issue the Department was thereafter willing to consider is whether the “appeal” was timely. The Department committed legal error when it denied that it had authority to consider the new evidence. Some authority to reconsider matters being processed at other levels within the agency appears in Department regulations. Beyond the written procedures, an administrative agency may make exceptions to its nonstatutory procedures in proper circumstances. Apparently, even a statutory limit might be relaxed if a strong equitable reason is shown. The Department has the authority to relax even a statutory standard for “good cause.” The Department did not recognize its discretionary authority to reconsider due to fraud or misconception of facts. It did not note that it could for “good cause” relax a non-statutory procedural time limit. The Department had discretion to accept this new evidence and make appropriate adjustments to the earlier decision. |
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