UC - appeal - email - timeliness - opportunity to rebut absence of evid. of receipt by UCBR

Bennett v. UCBR - Cmwlth. Court - December 16, 2011 (en banc, 6-1)

http://www.pacourts.us/OpPosting/Cwealth/out/2703CD10_12-16-11.pdf

The Court vacated the UCBR decision on timeliness of the appeal and remanded the case, directing the Board to consider the claimant's evidence on the issue, which the Board had previously ignored, holding that this was a capricious disregard of competent evidence.

Wright v. UCBR, ___ A.3d ___ (Pa. Cmwlth., filed December 16, 2011) (en banc, 5-2), established that the absence of an appeal document in the Board’s record creates, at best, an inference that the Board did not receive the document and, therefore, that it was not filed. In that situation, a claimant should be given an opportunity to establish, at a hearing before a referee, that he or she filed a timely appeal notwithstanding the absence of the appeal document in the Board’s record.

Here and in Wright (also filed today), the court held that the failure to consider the claimant's uncontradicted evidence on the issue of timeliness constituted a capricious disregard of the uncontradicted evidence at the hearing before the referee. In each case, that evidence included testimony and documents that showed that, though not in the Board’s record, the claimant transmitted the earlier appeal document to the Board

Like the claimant in Wright, here Claimant offered testimony that, if found credible and persuasive, would establish that he sent an appeal of the notice of determination to the Board by electronic means before the expiration of the appeal deadline.

Neither the Referee nor the Board addressed Claimant’s testimony or supporting documents in their decisions. Instead, like the Board in Wright, they both appear to have ignored the hearing record and, instead, based their decisions solely on what was (and was not) in the Board’s record prior to the hearing.

The court found this "particularly troubling", because the Board’s hearing notice expressly provided that purpose of the hearing was to take testimony on the issue of the timeliness of Claimant’s appeal. It found that Claimant’s testimony, if found credible and persuasive, and exhibits could support a finding that he filed a timely appeal by e-mail, notwithstanding the absence of that earlier e-mail appeal in the Board’s record. Accordingly, the Board capriciously disregarded record evidence.

The court rejected the Board argument that this case is controlled by Roman-Hutchinson v. UCBR, 972 A.2d 1286 (Pa. Cmwlth. 2009), since in that case, the Board at least considered the claimant’s evidence and made factual findings with respect to the claimant’s claim that, notwithstanding its absence from the Board’s record, the claimant filed an earlier, timely appeal by e-mail. Here, the Board and the Referee made no such findings. Claimant here, like the claimant in Wright, attempted to establish by evidence at a hearing that the Board did, in fact, receive the earlier filed appeal and received it before the appeal deadline. For these reasons, Roman-Hutchinson does not control this appeal.

The court vacated the Board’s decision and remanded the matter for the Board to consider the evidence of record put forth by Claimant to show that he filed a timely appeal by e-mail and to make appropriate and necessary factual findings.

admin. law - federal APA - arbitrary and capricious

http://www.supremecourt.gov/opinions/11pdf/10-694.pdf

key quote -

This case requires us to decide whether the BIA’s policy for applying a section of the immigration law is "arbitrary [or] capricious" under the Administrative Procedure Act(APA), 5 U. S. C. §706(2)(A). The scope of our reviewunder this standard is "narrow"; as we have often recognized, "a court is not to substitute its judgment for that of the agency." . . . . Agencies. . . have expertise and experience in administering their statutes that no court can properly ignore. But courts retain a role, and an important one, in ensuring that agencies have engaged in reasoned decision-making. When reviewing an agency action, we must assess, among other matters, "‘whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.’" . . . .That task involves examining the reasons for agency decisions—or, as the case may be, the absence of such reasons. . . . .See FCC v. Fox Television Stations, Inc., 556 U. S. 502, 515 (2009) (noting "the requirement that an agency provide reasoned explanation for its action").

The BIA has flunked that test here. By hinging a deportable alien’s eligibility for discretionary relief on the chance correspondence between statutory categories—amatter irrelevant to the alien’s fitness to reside in this country—the BIA has failed to exercise its discretion in a reasoned manner. [emphasis added]

_______________________

SUPREME COURT OF THE UNITED STATES

Syllabus

JUDULANG

v

. HOLDER, ATTORNEY GENERAL

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 10–694. Argued October 12, 2011—Decided December 12, 2011

Federal immigration law governs both the exclusion of aliens from admission to this country and the deportation of aliens previously admitted. Before 1996, these two kinds of action occurred in different procedural settings; since then, the Government has employed a unified "removal proceeding" for exclusions and deportations alike. But the immigration laws have always provided separate lists of substantive grounds for the two actions. One list specifies what crimes render an alien excludable, see 8 U. S. C. §1182(a), while another—sometimes overlapping and sometimes divergent—list specifies what crimes render an alien deportable, see §1227(a). Until repealed in 1996, §212(c) of the Immigration and Nationality Act permitted the Attorney General to grant discretionary relief to an excludable alien, if the alien had lawfully resided in the United States for at least seven years before temporarily leaving the country and if the alien was not excludable on one of two specified grounds. By its terms, §212(c) applied only in exclusion proceedings, but the Board of Immigration Appeals (BIA) extended it decades ago to deportation proceedings as well. Although Congress substituted a narrower discretionary remedy for §212(c) in 1996, see §1229b, §212(c)’s broader relief remains available to an alien whose removal is based on a guilty plea entered before §212(c)’s repeal, INS v. St. Cyr, 533 U. S. 289, 326.

In deciding whether to exclude such an alien, the BIA first checks the statutory ground identified by the Department of Homeland Security (DHS) as the basis for exclusion. Unless that ground is one of the two falling outside §212(c)’s scope, the alien is eligible for discretionary relief. The BIA then determines whether to grant relief based on such factors as the seriousness of the offense.

This case concerns the BIA’s method for applying §212(c) in the deportation context. The BIA’s approach, known as the "comparable grounds" rule, evaluates whether the charged deportation ground has a close analogue in the statute’s list of exclusion grounds. If the deportation ground consists of a set of crimes "substantially equivalent" to the set making up an exclusion ground, the alien can seek §212(c) relief. But if the deportation ground covers different or more or fewer offenses than any exclusion ground, the alien is ineligible for relief, even if the alien’s particular offense falls within an exclusion ground.

Petitioner Judulang, who has lived continuously in the United States as a lawful permanent resident since 1974, pleaded guilty to voluntary manslaughter in 1988. After he pleaded guilty to another crime in 2005, DHS commenced a deportation action, charging him with having committed an "aggravated felony" involving "a crime of violence" based on his manslaughter conviction. The Immigration Judge ordered Judulang’s deportation, and the BIA affirmed, findingJudulang ineligible for §212(c) relief because the "crime of violence" deportation ground is not comparable to any exclusion ground. The Ninth Circuit, having previously upheld the BIA’s comparablegrounds rule, denied Judulang’s petition for review.

Held:

The BIA’s policy for applying §212(c) in deportation cases is "arbitrary and capricious" under the Administrative Procedure Act, 5 U. S. C. §706(2)(A). Pp. 9–21.

(a) While agencies have expertise and experience in administering their statutes that no court may properly ignore, courts retain a narrow but important role in ensuring that agencies have engaged inreasoned decisionmaking. Thus, in reviewing the BIA’s action, this Court must assess, among other matters, "whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 43. That task involves examining the reasons for agency decisions, or the absence of such reasons.

The comparable-grounds approach cannot survive scrutiny underthis standard. By hinging a deportable alien’s eligibility for discretionary relief on the chance correspondence between statutory categories—a matter irrelevant to the alien’s fitness to reside in thiscountry—the BIA has failed to exercise its discretion in a reasoned manner. Pp. 9–10.

(b) Even if the BIA has legitimate reasons for limiting §212(c)’s scope in deportation cases, it must do so in some rational way. In other words, the BIA must use an approach that is tied to the purposes of the immigration laws or the appropriate operation of the immigration system. The comparable-grounds rule has no connection to these factors. Instead, it makes §212(c) eligibility turn on an irrelevant comparison between statutory provisions. Whether the set of offenses in a particular deportation ground lines up with the set in anexclusion ground has nothing to do with whether a deportable alienwhose prior conviction falls within both grounds merits the ability tostay in this country. Here, Judulang was found ineligible for §212(c)relief because the "crime of violence" deportation ground includes a few offenses—simple assault, minor burglary, and unauthorized use of a vehicle—not found in the similar moral turpitude exclusion ground. But the inclusion of simple assaults and minor burglaries in the deportation ground is irrelevant to the merits of Judulang’s case.

The BIA’s approach has other odd features. In applying the comparable-grounds rule, the BIA has denied relief to aliens whose deportation ground fits entirely within a much broader exclusion ground. Yet providing relief in exclusion cases to a broad class of aliens hardly justifies denying relief in deportation cases to a subset of that group. In addition, the outcome of the comparable-grounds analysis may itself rest on an arbitrary decision. An alien’s priorconviction could fall within a number of deportation grounds, only one of which corresponds to an exclusion ground. In such cases, an alien’s eligibility for relief would hinge on an individual official’s decision as to which deportation ground to charge. An alien appearing before one official may suffer deportation, while an identically situated alien appearing before another may gain the right to stay in this country.

In short, the comparable-grounds approach does not rest on anyfactors relevant to whether an alien should be deported. Instead, itturns deportation decisions into a "sport of chance." Rosenberg v. Fleuti, 374 U. S. 449, 455. That is what the APA’s "arbitrary and capricious" standard is designed to prevent. Pp. 10–15.

(c) The Government’s arguments in defense of the comparablegrounds rule are not persuasive. First, §212(c)’s text does not support the rule. That section cannot provide a textual anchor for any method of providing discretionary relief in deportation cases becauseit addresses only exclusion. Second, the history of the comparablegrounds rule does not work in the Government’s favor. The BIA repeatedly vacillated in its method for applying §212(c) to deportablealiens, settling on the current rule only in 2005. Third, the Government’s claim that the comparable-grounds rule saves time and moneyfalls short. Cost may be an important factor for agencies to consider in many contexts, but cheapness alone cannot save an arbitrary agency policy. In any event, it is unclear that the comparablegrounds rule saves money when compared with alternative approaches. Pp. 16–21.

249 Fed. Appx. 499, reversed and remanded. KAGAN, J., delivered the opinion for a unanimous Court.

UC - hearsay - no duty to rebut

Chambersburg Hospital v. UCBR - December 8, 2011 - unpublished memorandum opinion

http://www.pacourts.us/OpPosting/Cwealth/out/954CD11_12-8-11.pdf

Employer relies on L. Washington & Associates v. UCBR, 662 A.2d 1148 (Pa. Cmwlth. 1995), for the proposition that one’s silence may constitute an admission. The "failure of a party to reply to a statement made in his presence or at hearing, is significant only where the nature of the statement, and the circumstances under which it was made, are such as render a reply natural and proper." L. Washington, 662 A.2d at 1149. (quoting Levin v. Van Horn, 412 Pa. 322, 194 A.2d 419 (1963)). However, this Court has limited the application of L. Washington in Carson v. UCBR, 711 A.2d 582 (Pa. Cmwlth. 1998), where we explained that in order for this proposition to apply, an employer must ask a claimant about the allegation prior to hearing or at the hearing in front of the referee. Carson, 711 A.2d at 585. Specifically, this Court opined:

Our [previous] holdings are not to be considered a lessening of employer’s burden of proof in a willful misconduct case. It is not appropriate to require a claimant to deny uncorroborated, hearsay allegations raised by an employer at a hearing, particularly when the burden of proof lies with the employer. Id.

Here, Employer is asking this Court to require Claimant to deny uncorroborated hearsay allegations. At no time during the hearing did Employer or Employer’s counsel directly ask Claimant her whereabouts on the days she called off. As Carson points out, "we will not penalize claimant for the tactical errors made by employer in this case." Carson, 711 A.2d at 585. L. Washington would be applicable if Employer confronted Claimant during the hearing about her specific dates at the beach, but this was not the case.

_____________________

The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

UC - claimant not self-employed - presumption

Moran v. UCBR - Cmwlth. Court - December 8, 2011 - unpublished memorandum decision

http://www.pacourts.us/OpPosting/Cwealth/out/474CD11_12-8-11.pdf

The court reversed the Board decision that claimant was an independent contractor.

Section 402(h) of the Law provides an employee "shall be ineligible for compensation for any week … in which he is engaged in self-employment." 43 P.S. §802(h). The legislature did not define the term self-employment in Section 402 of the Law. Therefore, this Court utilizes the language of Section 4(l)(2)(B) of the Law to fill the gap. Beacon Flag Car Co. v. UCBR, 910 A.2d 103 (Pa. Cmwlth. 2006) (holding the clear purpose of Section 402(h) of the Law is to exclude independent contractors from coverage); see also Glatfelter Barber Shop v. UCBR, 958 A.2d 786 (Pa. Cmwlth. 2008).

In pertinent part Section 4(l)(2)(B) of the Law provides: Services performed by an individual for wages shall be deemed to be employment subject to this act, unless and until it is shown to the satisfaction of the department that -- (a) such individual has been and will continue to be free from control and direction over the performance of such services both under his contract of service and in fact; and (b) as to such services such individual is customarily engaged in an independently established trade, occupation, profession or business. 43 P.S. § 753(l)(2)(B).

Accordingly, both prongs of the test stated in Section 4(l)(2)(B) of the Law must be satisfied before an individual will be deemed an independent contractor. Venango Newspapers v. U CBR, 631 A.2d 1384 (Pa. Cmwlth. 1993). In employment cases, a strong presumption exists that an individual receiving wages for his services is an employee, and the burden to overcome that presumption rests on the employer. Sharp Equip. Co. v. U CBR, 808 A.2d 1019 (Pa. Cmwlth. 2002). Thus, "unless the employer can show that the employee [is] not subject to his control and direction and [is] engaged in an independent trade, occupation or profession, then [the worker is an employee]." C.A. Wright Plumbing Co. v. U CBR, 293 A.2d 126, 129 (Pa. Cmwlth. 1972) (en banc).

We conclude that Employer did not overcome the strong presumption that Claimant was an employee. While we question the Board’s determination that Employer did not exercise control over Claimant, it is clear that the Board erred in its resolution of the second prong involving an independent trade or business.

The relevant word to our inquiry for this prong is the term "independent." Danielle Viktor, Ltd. v. Dep’t of Labor & Indus., 586 Pa. 196, 892 A.2d 781 (2006). In Viktor, our Supreme Court weighed several factors in determining whether the particular claimants’ businesses, limousine driving, operated independently, including:

(1) the [workers’] ability to perform services for more than one entity, including competitors, with no adverse consequences; (2) the operation of [the workers’] businesses and [the workers’] ability to perform work did not depend on the existence of any one of the [potential employers]; and (3) the fact that [the workers] bring all necessary perquisites of providing [services] to [the employers], even though they do not own [their own tools or supplies] or bear all of the financial risk.

Id. at 229-230, 892 A.2d 801-802. As such, a worker can only be considered an independent contractor if he is in business for himself, and is not dependent on another for the continuance of employment. Id.

Here, the Board erred when it relied solely on the referee’s finding that Claimant was free to perform the same services he supplied to Employer for any other potential employer. Additionally, the Board’s consideration was limited to whether Claimant was free to compete with Employer under his contract, and not whether Claimant was actually capable of working for another enterprise. See Beacon Flag, 910 A.2d at 109 n. 11 (holding a non-compete agreement is not definitive to our determination, and "we are particularly loathe to hold … such an agreement [created] … an employer-employee relationship"). The “ability to work for more than one enterprise is an important factor in determining independent contractor status,” but it is not the only factor. Id. at 109. The Board erred in determining Claimant engaged in an independent business when its conclusion was supported by a single finding that Claimant was contractually free to work for another entity during his contract with Employer.

Additionally, Claimant did not advertise or solicit his services, as an independent business, to gain employment. It is particularly noteworthy that the parties here entered their own arrangement after Employer contacted Claimant’s past employer looking for workers. As a result, Employer hired Claimant to a full-time position lasting the duration of Employer’s then-current project, pending Claimant’s production of satisfactory work during that time. Additionally, for his services Employer paid Claimant an hourly wage rather than job-to-job or per assignment.

Thus, regardless of Claimant’s potential contractual freedom to compete with Employer, the Board’s other findings do not support the conclusion that Claimant was capable of performing engineering services as an independent enterprise for other employers. Additionally, Claimant had no experience as an independent contractor, and thus, did not have his own tools or facilities to operate independently from Employer. Lastly, Claimant’s testimony demonstrates that the nature of Claimant’s trade compelled him to seek work from only one employer, and he was dependent upon Employer for his continual employment. Therefore, Claimant was not engaged in an independent business, but rather was an employee.

Accordingly, we conclude the Board erred in finding Claimant was self-employed as an independent contractor under Sections 402(h) and 4(l)(2)(B) of the Law. Therefore, we reverse the Board’s order.

_________________

The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

custody - statutory factors; reasons for partial custody order

J.R.M. v. J.E.A. - Superior Court - December 6, 2011



http://www.pacourts.us/OpPosting/Superior/out/a30019_11.pdf



The court remanded the trial court's order giving mother primary custody of 8-month old child and placing limitations on father's partial custody rights, because:



- the lower court failed to consider the factors listed in "23 Pa.C.S.A. § 5328(a), a newly enacted section of the child custody statute, which delineates factors the trial court must consider when awarding any form of custody. . . All of the factors listed in section 5328(a) are required to be considered by the trial court when entering a custody order. Id. As the trial court failed to properly consider the statutorily mandated factors in arriving at its custody determination, it erred as a matter of law. We are therefore compelled to vacate its order and remand the case for further findings of facts." (emphasis in original)



- it was improper to place restrictions on father's partial custody absent evidence that he was unfit or unable to care for the child. "An award of partial custody generally does not contain any restrictions. Fatemi v. Fatemi, 489 A.2d 798, 801 (Pa. Super. 1985). “A restriction will be imposed if the parties have agreed to a restriction or if the party requesting a restriction shows that without it, partial custody will have a detrimental impact on the child.” Id.; see also 23 Pa.C.S.A. § 5323(e) (“[I]f the court finds that there is an ongoing risk of harm to the child or an abused party and awards any form of custody to a party who committed the abuse or who has a household member who committed the abuse, the court shall include in the custody order safety conditions designed to protect the child or the abused party.”).. . . The trial court imposed restrictions on Father’s periods of partial custody without support in the record that the parties agreed to the restrictions or that the restrictions were necessary to protect Child from some detrimental impact or safety concern. Fatemi, 489 A.2d at 801; 23 Pa.C.S.A. § 5323(e). The imposition of such restrictions are therefore unreasonable in light of the evidence of record. Durning, 19 A.3d at 1128.

disability - remand - treating phys. opinion - ALJ consideration not sufficiently detailed

Bethea v. Astrue - ED Pa. - December 5, 2011

http://www.paed.uscourts.gov/documents/opinions/11D1317P.pdf

The court affirmed the decision of the magistrate judge, who "properly observed that the ALJ’s evaluation of the medical evidence in this case was ‘not sufficiently detailed to allow for meaningful judicial review.’”

“[T]he medical judgment of a treating physician can be rejected only on the basis of contradictory medical evidence.” Morales v. Apfel, 225 F.3d 310, 317-18 (3d Cir. 2000) (internal quotation omitted); see also 20 C.F.R. §§ 404.1527(d)(2) (“If a treating source’s opinion on the issue of the nature and severity of an impairment is well supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the case, it will receive controlling weight.”). In refusing to credit the testimony of a treating physician, the ALJ must base his decision on “objective medical evidence” and not “solely on his own amorphous impressions, gleaned from the record and from his evaluation of [plaintiff’s] credibility.” Morales, 225 F.3d at 318. The ALJ did not articulate any reasons for rejecting the treating source opinions in this case.

“While the ALJ was not required to review all evidence of record, and could choose to reject [the treating physicians] opinion[s], he was required to ‘explain the weight he has given to obviously probative exhibits.’” Jennings v. Astrue, No. 09-1642, 2009 WL 7387721, at *9 (E.D. Pa. Nov. 30, 2009), quoting Cotter, 642 F.2d at 705.

Here, the ALJ placed controlling weight on the assessment of the non-physician state agency disability claims adjudicator. “[T]he medical judgment of a treating physician can be rejected only on the basis of contradictory medical evidence.” Frankenfield v. Bowen, 861 F.2d 405, 408 (3d Cir. 1988). In the absence of any explanation as to why he chose to reject the medical evidence that plaintiff’s treating physicians used to support their determinations, the ALJ may not rely on the opinion of a non-physician. C.f., Bordes, 235 Fed. App’x at 864 (holding that the ALJ’s finding that the claimant suffered from no severe back impairment was not supported by substantial evidence where the ALJ failed to explain the evidence he relied on in rejecting the treating physician’s diagnosis); Eary v. Halter, No. 00-2910, 2001 WL 695045, at *4 (E.D. Pa. June 18, 2001) (finding that the ALJ failed to fulfill his duty where he “failed to explain or support his determination with medical evidence in the record”).

In sum, the ALJ’s decision does not allow the court to “tell if significant probative evidence was not credited or simply ignored.” Bordes, 235 Fed. App’x at 864 (quotation omitted). I find that the ALJ’s reasons for not adopting as controlling the assessments of plaintiff’s treating physicians are not based on substantial evidence and will overrule defendant’s objections.