FROM THE ARKANSAS BOARD OF REVIEW [NO. 2015-BR-01841]
Smith, Civil Litigation & Advocacy Clinic, University of
Arkansas School of Law, for appellant.
Gregory Ferguson, for appellee.
BRANDON J. HARRISON, Judge
Arkansas Board of Review (the Board) dismissed Gabino
Merida's appeal as untimely, and he now appeals that
decision, arguing that the Department of Workforce Services
(the Department) violated federal law, due process, equal
protection, state law, and public policy when it sent him a
"Notice of Agency Determination" only in English,
not Spanish, and that he should therefore be allowed a
belated appeal. We affirm.
workers who have lost their jobs because of import
competition, the Trade Act of 1974 established a program of
trade readjustment allowance (TRA) benefits as a supplement
to state unemployment insurance benefits. 19 U.S.C. §
2291. Under the Act's scheme, a group of workers, their
union, or some other authorized representative may petition
the Secretary of Labor to certify that their firm has been
adversely affected by imports. Id. §§
2271-2273. If the Secretary of Labor issues a certificate of
eligibility for such a group, workers within that group who
meet certain standards of individual eligibility may then
apply for and receive TRA benefits.
employer, Superior Industries, was certified by the
Department of Labor as being trade-affected on 18 August
2014. Merida applied for trade-adjustment assistance (TAA),
which was one requirement to make him eligible for TRA
benefits, but on 18 December 2014, he received a waiver from
TAA-approved training because the training was not currently
available. This waiver expired on 25 March 2015. In June
2015, Merida was denied TRA benefits because he was not
enrolled in training within the required period.
timely appealed this denial to the Appeal Tribunal, which
affirmed the Department's denial of TRA benefits. The
Appeal Tribunal's decision was issued on 31 July 2015,
and Merida had twenty days from that date to file an appeal
with the Board; however, Merida did not file his appeal until
26 August 2015, which was six days late.
to Paulino v. Daniels, 269 Ark. 676, 559 S.W.2d 760
(Ark. App. 1980), Merida was afforded a hearing to establish
whether the delay in filing the appeal was due to
circumstances beyond his control. In its decision, the Board
The claimant testified that his appeal to the Board was
untimely filed because he had a friend translate the Appeal
Tribunal decision from English to Spanish. He further
testified that the friend who translated did not inform him
that the appeal to the Board needed to be filed within 20
days of the mailing date of the Appeal Tribunal's
decision. While unfortunate, this does not constitute a
circumstance beyond the claimant's control for the
untimely filing of his appeal. Had the claimant sought
assistance from a Department representative, he would have
been made aware of the deadline for filing an appeal.
Board dismissed Merida's appeal as untimely, and he has
timely appealed the Board's decision.
review the Board's findings in the light most favorable
to the prevailing party and affirm the Board's decision
if it is supported by substantial evidence. Rodriguez v.
Dir., 2013 Ark.App. 361. Substantial evidence is such
relevant evidence that a reasonable mind might accept as
adequate to support a conclusion. Id. Even when
there is evidence upon which the Board might have reached a
different decision, the scope of our review is limited to a
determination of whether the Board reasonably could have
reached the decision that it did based upon the evidence
before it. Id. Issues of credibility of witnesses
and weight to be afforded their testimony are matters for the
Board to determine. Ballard v. Dir., 2012 Ark.App.
argues that the Board's decision was not based on
substantial evidence, because the Department failed to
provide notice conveying the appeal deadline in Spanish in
violation of federal law, due process, equal protection,
state law, and public policy. Because of this violation, and
Merida's "Limited English Proficiency" status,
he argues that the appeal was filed late due to circumstances
beyond his control.
acknowledges that this argument was not raised below and
likens this case to Term v. Williams, 2015 Ark.App.
144, 457 S.W.3d 291, in which the claimant argued, in part,
that the Department's notice should have been written in
her native language, Marshallese, and that failure to do so
violated her rights to due process, equal protection, and her
civil rights under Title VI of the Civil Rights Act. In
Term, this court affirmed the dismissal of
Term's appeal because she had failed to present those
arguments below. Merida distinguishes Term, however,
by arguing that he "does not argue these theories on
their merits" but instead "asserts that the
foregoing sources of law establish that failure to provide
notice to Merida in Spanish constituted a circumstance beyond
attempt to distinguish Term is not persuasive. He
concedes that he did not raise these arguments below, and
this court does not consider issues raised for the first time
on appeal. Parham v. Dir. ...