THE UAC ADVOCACY MANUAL
PART II: APPEALS
PREPARED BY THE BOARD OF DIRECTORS OF THE
UNEMPLOYMENT ACTION CENTER, INC.
July 1998
Revised June 2005
Revised August 2014
___________________________________________________________________________
This manual is written to guide you in representing unemployment insurance claimants. Read it after
you are trained, and review it again each time you take an appeal. Do not, however, treat it as your
sole reference. Always call your Advisor or a member of the Board of Directors if you have any
questions about your advocacy.
This manual is authorized for the use of UAC-trained advocates in the course of their representation
of claimants. ANY OTHER USE IS UNAUTHORIZED.
We welcome comments and suggestions regarding this manual.
____________________________________________________________________________
Copyright 2014, The Unemployment Action Center, Inc.
240 Mercer Street
New York, NY 10012-1507
(212) 998-6568
A STEP-BY-STEP OUTLINE OF UNEMPLOYMENT INSURANCE APPELLATE ADVOCACY
1.
DECIDE WHETHER YOU SHOULD APPEAL. (If you win and the employer appeals, begin at #2 below)
Ask, alongside your UAC advisor:
* How well supported were the factual and legal conclusions of the ALJ decision?
* What is the likelihood of success on appeal?
Discuss with your client her desire to appeal and her likelihood of success.
2.
OBTAIN THE HEARING TRANSCRIPT AND IDENTIFY ALL APPEALABLE ISSUES.
First, send in Notice of Appeal and/or request for the hearing transcript.
Then, examine the transcript and ALJ decision for errors of law and procedure and the entire record for errors
of fact.
Also, consider whether you can offer any new evidence to support your arguments.
3.
SELECT YOUR STRONGEST ISSUES, AND ORGANIZE THEM TO SUPPORT YOUR THEORY OF
THE CASE.
Select the strongest issues to include in your brief and outline your arguments by writing out point headings.
Select what sort of relief you will request.
4.
WRITE YOUR BRIEF.
Remember to:
1) Use CRAC and proper Blue Book form.
2) Have a Conclusion and a Statement of Facts
Always review your draft brief with your UAC Advisor.
If the employer submitted a brief, reply to the employer’s arguments.
5.
SUBMIT YOUR BRIEF.
Send in copies of your brief to:
1) The DOJ, alongside a certification that you also sent the brief to
2) The employer
3) The UAC office (bring two copies)
Check periodically with the UAC Office and your claimant to see if there's been a decision.
Check w/ the Board of Directors and your advisor about reopening or appealing to the Third Department if you
lose the appeal.
UAC 06/05
2
A few words about THE UNEMPLOYMENT INSURANCE APPEAL BOARD and UI Appeals
Any party who loses an Unemployment Insurance (UI) hearing before an ALJ may appeal the ALJ's Decision to
the Unemployment Insurance Appeal Board. The Appeal Board, despite its name, does not function like an appellate
court because the Appeal Board owes no deference to the decision below: the Appeal Board has the power to reverse
any finding of fact or conclusion of law reached by an ALJ. Thus, no hearing outcome is certain until the losing party
decides whether to appeal, and an appeal must be treated as seriously as the original hearing.
1
2
If the ALJ finds in favor of the claimant, an appeal may nevertheless be taken by the employer or the
Commissioner of Labor. Do not ignore any appeal by another party. Remember, if the employer or Commissioner of
Labor wins the appeal, the claimant will be required to repay unemployment insurance monies previously paid out to
her.
3
In general, appeals are taken "on submission"; that is, all parties may submit a written brief or statement to the
Appeal Board for consideration rather than engage in oral argument. Occasionally, the Appeal Board will request that
the parties appear for another hearing.
4
5
Parties to an appeal are not required to submit a brief. When an appeal is requested, a transcript will be
generated for the Appeal Board to review, regardless of whether or not any briefs are filed. Requesting a transcript (see
below) serves to get a party permission to see the transcript, and briefs provide supplemental arguments, but employers
often appeal without doing either. The case will, of course, still be considered.
The Appeal Board routinely takes 1- 2 months to render a decision.
1 N.Y. Lab. '621 (McKinney 1991); 12 NYCRR '463.1.
2 N.Y.Lab. '622 (McKinney 1991); 12 NYCRR '463.2(a),(c); '463.3.
3
When you discuss the possibility of repayment, better known as "recoupment," with your client, reassure her that the
Department of Labor does not generally demand recoupment in one lump sum, but is usually willing to set up a
payment plan, or may take a setoff against benefits distributed in future claims. The DOL's repayment plans must
take into account the claimant's "individual facts and circumstances." Matter of Schwartfigure [Hartnett], 1994 WL
90486 (N.Y.)
4
12 NYCRR '463.1(f)(2).
12 NYCRR '463.2(b). The Board may also remand to the ALJ section, 12 NYCRR '463.2(f), and may
reopen its own decisions. 12 NYCRR '463.6.
5
UAC 06/05
3
CHAPTER ONE
IF THE ALJ FOUND FOR THE EMPLOYER, SHOULD YOU APPEAL?
If the claimant loses a hearing which you believe she should have won, you should always consider appealing the
ALJ's Decision. Do bear in mind, however, that not every case is suitable for appeal. Appeals are a good idea if you can
make a persuasive case that the ALJ :
1)
2)
3)
improperly interpreted or applied the law
deprived the claimant of important procedural rights, or
a. check out the ALJ consent decree from Municipal Labor Committee v. Sitkin
b. other important procedural rules, (see pages 13 - 15)
made incorrect or incomplete findings of fact.
6
If you cannot find any demonstrable error in what the ALJ did -- if the ALJ acted reasonably but simply ruled
against your client -- you are unlikely to win an appeal and you should probably not appeal. Very weak appeals may
ultimately undermine UAC credibility and, more importantly, your time as a UAC advocate would be better spent
helping another client.
If you are uncertain about whether to appeal, send in the letter requesting to appeal, and tell your claimant you
will make the final decision whether to appeal after you examine the transcript.
If You Decide Not to Appeal...
If you decide that you should not appeal the case, you must take three steps:
1)
2)
3)
6
Explain your reasons for not appealing to your claimant
a. make sure she understands that she still has a right to find another representative or appeal on her
own.
Make sure she understands how to file her own appeal and knows the deadlines she must meet.
a. If time is growing short, you may want to help her write a letter requesting an extension.
Make sure that you promptly send the Appeal Board a letter stating that the Unemployment Action Center
no longer represents the claimant.
a. A form letter for this is included in the Appendix.
b. If you write your own letter, be sure to state that our withdrawal from the case "is in no way
intended to reflect an opinion about the merits of the case."
c. Be sure to send a copy of the letter to the claimant, and leave a copy in the UAC file for future
reference.
79 Civ. 5899 (S.D.N.Y. 1983) [hereinafter Consent Decree].
UAC 06/05
4
CHAPTER TWO
WHAT TO DO AT THE START OF AN APPEAL
TIME TABLE
* If your claimant appeals:
Use the UAC form appeal letter within 20 days of the decision
* If the employer appeals:
Send 2 copies of the transcript request letter within 7 days
Have them stamp one and send it back as a receipt
Request an extension, so that the brief is due 20 days after transcripts become
available
Call the Department of Labor to inquire about the deadline for response.
* If the employer sends a brief
They must send you a copy of their brief
(if they did not send you their brief, contact your advisor)
Most employers do not send a brief
Extensions
If the deadline approaches too quickly for you to write an appeal, you may write the Appeal Board requesting
an extension. Be sure to specify and justify the amount of time needed. Most extensions are granted, but due to
the mail backlog you probably won't find out it was granted for months. After requesting an extension, act as if it
has been granted, and give yourself twenty days to file the brief (this will look reasonable, in the event the
Appeal Board decides to question the delay).
WHAT TO DO WHEN ANOTHER PARTY APPEALS
1.
When the Claimant Wins and the Employer Appeals
If the claimant wins and the employer appeals, you should always submit a brief urging the Appeal Board to
affirm the ALJ's Decision. In most cases, arguing to affirm takes considerably less effort than arguing to reverse and you
can use a shorter "letter brief" (see page 8 and Appendix) unless you think the ALJ's decision rests on shaky grounds.
Whether you submit a letter brief or a full brief, you must make at least two basic arguments to affirm:
* Show that the ALJ's factfinding is well-supported by substantial evidence in the record, by citing testimony
and other evidence from the transcript.
* Show that the ALJ's opinion correctly applies the correct rule of law to the facts of this case.
If you believe that the ALJ's decision rests on weak legal or factual conclusions, you should probably also offer
additional legal or factual arguments to demonstrate that the ALJ reached the correct result, even if the way she got
there was questionable. Check with your UAC advisor for additional insight.
2. What to do When the Claimant Wins and the Commissioner of Labor Appeals
The New York Commissioner of Labor is a party to all hearings, and can appeal a ruling which the State considers to
UAC 06/05
5
be incorrect even if the employer does not appeal. An appeal by the Commissioner of Labor has become more
common occurrence and should be taken very seriously. Inform your Advisor or a member of the Board of the
Directors that you are involved in an appeal by the Commissioner. You should respond with a full brief in such an
appeal, even though you won below.
UAC 06/05
6
CHAPTER THREE
What Types of Relief Should You Request?
Clearly state in your conclusion the relief that you seek from the Appeal Board. If the claimant is appealing an
adverse decision, you may seek any one or combination of the following forms of relief:
a)
b)
c)
Reversal of the ALJ decision
Remand to the ALJ for further factfinding
A hearing before the Appeal Board
(12 NYCRR ' 463.2(f)).
(12 NYCRR ' 463.3)
It is perfectly acceptable to request, in the alternative, more than one type of relief. In most cases in which the
claimant is appealing, you are arguing that the ALJ erred in her findings of fact; therefore, you usually will request reversal
and either a remand or a further hearing before the Appeal Board. If you believe the ALJ acted improperly, specifically
request that the Chief ALJ assign the case to a different ALJ, pursuant to 12 NYCRR ' 461.7.
If the employer or Commission of Labor appeals a decision which is favorable to the claimant, you will request
that the Appeal Board adopt the factual findings and legal conclusions of the ALJ, and affirm her decision.
UAC 06/05
7
CHAPTER FOUR
WHAT ARGUMENTS CAN YOU MAKE ON APPEAL?
Your arguments on appeal will fall into three categories:
1.
2.
3.
The ALJ erred in interpreting or applying the law.
The ALJ deprived the claimant of important procedural rights.
The ALJ made incorrect or incomplete findings of fact.
When you receive the hearing transcript, carefully examine it and the ALJ Decision for each of these three types
of errors, as described in the following sections. Each section concludes with an illustrative example.
1.
ERRORS IN INTERPRETING OR APPLYING THE LAW
Because the Appeal Board is more likely to defer to an ALJ's findings of fact, you are more likely to succeed on
appeal if you can show that the ALJ erred in interpreting or applying the law. In fashioning your argument that the ALJ
erred in her application of the law, examine the ALJ's Decision, particularly the "Opinion" section, in light of your legal
research. Consider two basic questions:
7
*
Did the ALJ apply the correct Rule of Law to the facts?
Although you should have previously researched the current law on the issues involved in the
case, you should go back and double-check your research. Shepardize all cases you rely on, including
Appeal Board cases, in order to assure that you didn't miss any important precedent in your previous
research.
8
9
*
Even if the ALJ applied the correct Rule, did she apply the Rule correctly?
One example of incorrect application is where an ALJ fails to follow Appeal Board precedent
without explanation. The Court of Appeals has held that "[a] decision of an administrative agency
which neither adheres to its own prior precedent nor indicates its reasons for reaching a different result
on essentially the same facts is arbitrary and capricious" and cannot stand.
A failure on either count allows you to argue the ALJ's decision should be reversed as a matter of law.
10
EXAMPLE:
7
For a listing of the main sources of New York Unemployment Insurance law, see UAC Advocacy Manual
and also check the UAC website.
8
9
If you first take on a case at the appeal level, you should thoroughly research all issues.
For information on shepardizing Appeal Board decisions, see UAC Advocacy Manual.
10
See Matter of Charles A. Field Delivery Service, Inc. v. Roberts, 66 N.Y.2d 516, 521, 498 N.Y.S.2d 111, 488
N.E.2d 1223 (1985).
UAC 06/05
8
The ALJ found that the claimant left work early without informing a supervisor because she heard that
her father had been taken to the hospital. The ALJ concluded that the claimant's failure to inform the
supervisor rose to the level of misconduct.
If your research indicates that such an isolated incident did not constitute misconduct in similar cases, you need
not dispute the ALJ's findings of fact. Rather, argue that even the facts found by the ALJ did not rise to the level of
misconduct as a matter of law. If there are "sufficient factual similarities" between your case and past Appeal Board cases
finding no misconduct, you should also argue that the ALJ's failure to follow or distinguish this precedent is arbitrary and
capricious.
11
2.
DEPRIVATION OF IMPORTANT PROCEDURAL RIGHTS
If the ALJ violated the established procedural standards for Unemployment Insurance hearings, you may argue
that this deprived your client of her right to a fair and impartial hearing. It is generally not enough to argue simply that
the ALJ failed to recognize a procedural right; you must also argue that the denial of this right caused or may have caused
the claimant to lose. That is, you should argue that the ALJ's failure to follow proper procedure caused the ALJ to make
significant errors of fact or law.
12
The MLC Consent Decree
The main guarantee of procedural due process in UI hearings is the Municipal Labor Committee v. Sitkin
Consent Decree. You receive a copy of Appendix E of the Consent Decree with each case file. However, appendix E
has been revised pursuant to the stipulation and order dated 12/19/97. There is a copy of the new stipulation an order
in the office, please refer to appendix 1 (revised E) and appendix 2 (revised F) of that stipulation and order to the
Consent Decree. For appeals you should use the entire Consent Decree, which is available on the UAC Website. You
should also refer to the new stipulations and orders which have not as yet been put on reserve at the libraries (these
stipulations and orders are at the office).
13
In fashioning your argument that the ALJ's failure to follow proper procedure deprived your claimant of a fair
hearing, examine the ALJ decision and the transcript of the hearing against each of the procedural safeguards listed in
Appendix E of the Consent Decree, as well as && 4-6, 13-16, and 19 of Appendix C, and pages 8-21 of the Consent
Decree text.
The following checklist is a brief summary of how and when to invoke some of the more frequently violated
provisions of the Consent Decree. This list is not exhaustive.
(All & references are to the revised Appendix E of the Consent Decree unless otherwise noted.)
11
See id.
See Consent Decree at 6; Social Security Act 42 U.S.C. ' 503(a)(3). See also Goldberg v. Kelly, 397 U.S.
254, 271 (1970) (no termination of welfare benefits without full and fair hearing); Moore v. Ross, 502 F.Supp.
543, 551 (S.D.N.Y. 1980) (due process requirements of Goldberg apply to unemployment insurance hearings),
aff'd, 687 F.2d 604 (2d Cir. 1982), cert. denied, 459 U.S. 1115 (1983).
12
13
79 Civ. 5899 (S.D.N.Y. 1983) (Consent Decree).
UAC 06/05
9
* Was the claimant denied an opportunity to present relevant evidence or documents, or to comment on the
employer's documents or own adverse statements? (&& 7, 10a, 10b, 10c)
Be alert for this when the ALJ deems a document or question irrelevant and refuses to allow it.
* Was the claimant hindered by language barriers when she attempted to present her side of the case at the
hearing? ( &&15, 16a, 16b, 16c)
Spanish-speaking claimants are entitled to the services of an intepreter whose translatation of the
hearing’s proceedings, to the greatest extent possible, must be verbatim and simultaneous.
14
* Did the ALJ fail to offer the claimant an opportunity to cross-examine witnesses who testified for the
employer? (& 11)
This may happen if separate hearings were held where all parties did not appear.
* Was the claimant denied a necessary adjournment or recess? (&& 17(a), (b))
If, for example, a claimant requested an adjournment to produce a significant witness and the
adjournment was denied, the claimant may have been denied a fair hearing. Another
example is when new issues arise during the hearing and the parties need time to prepare for
the new issues.
* Did the ALJ give greater weight to hearsay than she did to sworn, credible testimony? (& 21)
If the ALJ deems your witness to be credible, then her sworn testimony concerning events within her
personal knowledge must be given more weight than information that an employer's witness obtained
second-hand. This most often arises when the employer sends a personnel director or other
representative to testify about an event which that person herself did not witness.
15
* Did the ALJ engage in adversarial cross-examination? (Appendix D, p. 3)
An ALJ's questions "should, by tone and content, be directed toward clarifying the evidence
and making a complete record." This provision may be invoked against ALJs who ask
14
See Consent Decree, stipulation and order, dated 2/18/97; see also appendix A of order (Spanish
language translators must be certified by the New York State Office of Court Administration). Appendix B
indicates that the Unemployment Appeal Board is obligated to provide translation to various classes of people. If
a claimant had trouble at the hearing because of language difficulty keep in mind that Consent Decree paragraph
27 provides: Where claimant asserts that benefits were denied or terminated because of inability to understand
the local office procedures, forms or notices because of language difficulties, or that the claimant was not
understood by the local office personnel, or where it becomes apparent that this occurred, this may be valid
grounds for reversal and must be considered by the ALJs and the Appeal Board for appropriate action. Where
ALJ or Appeal Board determined that although claimant may have had some language difficulty, benefits were
properly denied so that an overruling of the determination is not warranted, the decision shall set forth specific
reason(s) for that conclusion.
15
See Matter of Perry, 37 A.D.2d 367, 325 N.Y.S.2d 888, 889-90 (3rd Dept. 1971).
UAC 06/05
10
questions in a prosecutorial manner or who cut off claimants in the middle of responsive
answers. Pointing out such conduct can also back up a claim that the ALJ was not impartial.
* Were portions of the transcript deemed "inaudible" by the reporter? (& 27 )
With the DOL's notoriously poor recording equipment, transcripts of hearings are very often
incomplete. Where there are a number of gaps or "inaudibles" in your transcript, particularly
during key testimony, you can argue that the transcript cannot be an adequate basis for the
Appeal Board decision, and request an Appeal Board hearing or remand.
* Was the claimant ineligible for benefits because the DOL or its employees failed to follow their own
guidelines in instructing the claimant? (&& 19, 20)
This occurs when the claimant is disqualified because she followed bad advice from DOL
workers about procedures to follow, deadlines, etc.
* Was your case cut short, perhaps because the ALJ wanted to go home or to lunch? (Consent Decree & 19)
Each hearing is scheduled to take up a certain amount of time, designated in terms
of one or more "hearing sessions." Even if the actual hearing goes beyond the
allotted number of "sessions," the ALJ cannot arbitrarily end the hearing, but must let
your claimant present her case completely and fully. If the case cannot be
completed in one day, the ALJ must promptly reschedule it for completion.
* Were there any ex parte communications between the ALJ and the employer or the employer's
representative? (Consent Decree & 37)
The ALJ may not discuss any pending case off-the-record with one party outside of the presence of the
other party.
* Did the ALJ not provide a satisfactory reason for decision?
& 6 of the Consent Decree establishes the Manual for Hearing Officers in Administrative Adjudication
in the State of New York, pages 85-96, as "recognized guidelines for decision writing" by ALJs and the
Appeal Board. The Manual, which is available on the UAC Website, lays out the manner in which an
ALJ is supposed to conduct a hearing and make her decision. While the Consent Decree refers only
to pages 85-96, the entire manual is used to instruct ALJs and is persuasive authority for challenging the
decision or conduct of an ALJ. It is particularly helpful authority in cases where you allege improper
ALJ conduct (impatience, hostility toward your client, etc.). The ALJ Manual may also be used to
challenge the form of an inadequate decision (no reasoning, no explanation, etc.). Appendix 3 of the
stipulation and order signed into effect on December 19, 1997 provides in depth guidelines for how
the Appeal Board must apply the consent decree’s checklist and subsequent remediation guidelines.
Each item in the checklist has its own standard of review and remediation. Your appeal may be more
effective if you consider how Appendix 3 is to be used in conjunction with the revised Appendix E by
the Appeal Board in the appeals process.
16
16
Revised Manual No. 16 (1972) (Manual for Hearing Officers).
UAC 06/05
11
3. INCORRECT OR INCOMPLETE FINDINGS OF FACT
In the majority of cases, the Appeal Board simply adopts the factual findings of the ALJ. As noted earlier,
however, the Appeal Board does have the power to re-find facts de novo from the existing record, or order additional
hearings for further factfinding.
Thus, if you think you can make a strong argument that the evidence does not support the ALJ's findings of fact,
you should do so. To see if you can make a strong argument, examine the transcript and the ALJ's "Findings of Fact",
and consider the following questions:
* On what evidence did the ALJ base her factual findings? Is it "substantial evidence?"
An ALJ's findings of fact are improper as a matter of law if they are not based upon "substantial
evidence." Substantial evidence is traditionally defined as:
17
[T]hat kind of evidence which furnishes a substantial basis of fact, from which the fact in question can
be reasonably inferred; it is of substantial and relevant consequence, excluding vague, uncertain or
irrelevant matter; it implies a quality of proof which induces conviction and makes an impression on
reason. The test is not satisfied by evidence which merely creates a suspicion or which amounts to no
more than a scintilla or which gives equal support to inconsistent inferences.
18
While the rules of evidence are not strictly applied in UI hearings, they can be used to determine
whether the evidence relied upon is substantial. For example, hearsay statements, standing alone, do
not constitute substantial evidence. To count as substantial evidence, a witness must speak from
personal knowledge, and her testimony must be deemed "credible" by the ALJ.
19
* Can you offer an alternative version of the facts which more sensibly or completely accounts for the evidence?
Even if there is substantial evidence to support the ALJ's factfinding, the Appeal Board can still reach
different conclusions if you show them a more coherent or complete way to explain the evidence from
the hearing.
Test the ALJ's factfinding with the following inquiries:
* Is there evidence in the record which contradicts the ALJ's factfinding? Is it arguably "substantial?"
* Does this evidence support your version of the facts?
* Are different parts of the ALJ's own factfinding inconsistent or contradictory?
17
See, e.g., Moore v. Ross, 687 F.2d at 608; Fisher v. Levine, 36 N.Y.2d 146, 365 N.Y.S.2d 828, 832 (1975);
McGee v. Levine, 50 A.D.2d 785, 324 N.Y.S.2d 455, 456 (3d Dept. 1971); Consent Decree, Appendix B at 8687, quoting Manual for Hearing Officers at 86-87.
18
19
Consent Decree, App. B at 86-87.
See, e.g., Luks v. Levine, 45 A.D.2d 801, 357 N.Y.S.2d 180, 182 (3rd Dept. 1974).
UAC 06/05
12
* Are the ALJ's findings illogical, irrational, or contrary to common sense?
If the answers to some of these questions are "yes," use these arguments to attack the ALJ's findings and
advance your own better alternative.
* Can you demonstrate reasons to doubt the ALJ's credibility judgments?
An ALJ's ruling about the credibility of a witness's testimony is a finding of fact. While an ALJ's
credibility determinations are entitled to considerable weight, the Appeal Board is not bound by the
ALJ's findings and is free to make its own judgments on issues of credibility. For example, courts have
indicated their approval of reversing ALJ credibility findings where the findings are "in conflict with
strong inferences from documentary evidence, from undisputed facts in the record, or from other
evidence credited by the ALJ." In sum, you should scrutinize the ALJ's credibility judgments like any
other finding of fact, as described above.
20
21
* Did the ALJ fail to make any necessary findings of fact?
It is important that you determine not only what facts were found but what facts were not found. The
absence of a finding of fact could be used to your advantage on either of two fronts: if the ALJ failed to
make a necessary finding of fact, you can suggest what that finding of fact would have been and argue
for reversal. Or, if the ALJ failed to find facts which are relevant and important to her ruling, you can
argue that an Appeal Board hearing or remand should be granted.
After you demonstrate incorrect or incomplete factfinding, you may suggest the appropriate findings of fact for
the Appeal Board's adoption, as well as requesting, in the alternative, a hearing before the Appeal Board or a remand.
EXAMPLE:
Your claimant testifies that her frequent lateness was caused by alcoholism, and you present medical evidence
that she was in fact treated for alcoholism. The employer's personnel manager, who had no personal
involvement with your client's case, testifies that your claimant's supervisor (who was not available to testify) did
not consider her alcoholic because she never told them of such a condition or sought help from their Employee
Assistance Program. The ALJ acknowledges in her findings of fact that your client received treatment for
alcoholism, but nevertheless holds that she was not an alcoholic "as recognized and understood by the
employer."
On appeal, you argue that the ALJ's factfinding is both improper as a matter of law and a demonstrably incorrect
interpretation of the evidence. The ALJ's findings are improper as a matter of law because they are based solely on the
personnel manager's testimony about the absent supervisor's opinion. Such testimony is hearsay, and hearsay standing
alone cannot constitute substantial evidence. In addition, the ALJ must give greater "weight" to credible personal
testimony than to hearsay, and the ALJ found credible your claimant's personal testimony that she had received
22
20
See, e.g., Matter of Horton, 176 A.D.2d 1103, 575 N.Y.S.2d 405, 406 (3d Dept. 1991).
21
See, e.g., Moore v. Ross, 687 F.2d at 607.
22
See note 21 and accompanying text supra.
UAC 06/05
13
treatment for alcoholism. Thus, the ALJ should have given greater weight to her credible testimony that she was an
alcoholic than to her employer's hearsay that she wasn't an alcoholic. In addition to these legal infirmities with the ALJ's
factfinding, you also argue that the ALJ's factfinding was a demonstrably incorrect interpretation of the evidence because
the ALJ's own findings of fact contradict each other: the ALJ credited your client's testimony that she was treated for
alcoholism, and yet found that she was not an alcoholic. Taking into account all the evidence credited by the ALJ, it is far
more sensible and logical to conclude that your claimant is what she says she is: an alcoholic.
A FEW NOTES ABOUT ARGUMENTS
1.
Alternative Arguments
An alternative argument is one in which you offer the Appeal Board at least two different interpretations of the
law or applications of the law to the facts -- either which would require a decision in favor of your client. Alternative
arguments are permissible and, in fact, are common in legal practice. For example, in many circumstances it is proper to
inconsistently argue as follows:
The claimant did not quit. The circumstances of her separation from employment constitute a firing as
a matter of law. However, even if the Appeal Board finds that the claimant did quit, she had good
cause to do so.
As with any inconsistent argument you must articulate it carefully to avoid looking disingenuous. The more the
two arguments contradict each other, the less likely it is that either will be believed.
2.
Are Your Arguments Supported by the Record?
As you plan your argument you must consider how well your position is supported by the record. In most
cases, the record consists of the original DOL file, the transcript, and documents accepted into evidence at the hearing.
When you receive the transcript of the hearing, review it in light of the ALJ's decision. While reviewing the transcript,
consider whether there is evidence in the record to support your contentions on appeal.
23
While you do not necessarily have to discard an argument that does not have support in the record, it will be
very difficult to succeed if you did not make a good record. For example:
The claimant was discharged for being late to work. The employer testified and the ALJ cut short your
cross-examination, stating "I've covered everything important with my questions." The hearing
continued without objection by you, and the ALJ found in favor of the employer.
If you did not object on the record to the ALJ curtailing your cross-examination, and explain to the ALJ the need for
continued questioning, you could probably still object to the ALJ's conduct on appeal. However, your argument that the
ALJ denied your claimant an important procedural right is rendered much weaker by the lack of a good record.
3.
Introduction of New Evidence
Documents, witnesses, or other evidence may become available after the hearing which support the claimant's
position. If such evidence was previously unknown to your claimant or unavailable at the time of the hearing despite the
23
Remember, no document is part of the record unless you or the employer specifically offered them as
evidence at the hearing, and it was accepted into evidence by the ALJ. This includes DOL official documents.
UAC 06/05
14
claimant's best efforts to obtain it, you may plausibly argue to the Appeal Board that they have "good cause" to consider
the new evidence or at least order another hearing. However, the Appeal Board will not accept additional documents
which could have been offered at or obtained for the hearing. For example:
24
25
The claimant was discharged for excessive sick days. The ALJ finds the claimant's testimony as to her
illness to be incredible and, consequently, holds that the claimant's conduct rises to the level of
misconduct disqualifying her from unemployment insurance benefits.
On appeal, you ordinarily may not offer a doctor's note to boost the claimant's testimony: the time to offer the doctor's
note was at the hearing. If, however, the claimant's doctor was in Florida for the two weeks preceding the hearing and
you informed the ALJ of that fact and requested an adjournment, you would be able to argue convincingly that the
claimant's procedural rights had been violated, and that the Appeal Board has good cause to consider the new evidence.
For the proper procedure to follow when offering new evidence, see "Statement of Facts" (p. 19) and "Exhibits"
24
25
See Consent Decree at Appendix E, & 4.
See id. at & 14.
UAC 06/05
15
CHAPTER FIVE
HOW TO WRITE A BRIEF
1.
Strategy
When you prepare an appeal you must:
 Settle on a "Theory of the Case,"
o By keeping your Theory in mind as you write and organizing the brief to support the theory, you
are more likely to present a clear, coherent demonstration why the facts and the law support your
claimant.
o Your appeal brief should focus on your strongest arguments.
o If you argue too many issues or argue flimsy issues, you may make it appear that you are grasping
at straws, and thereby undermine your best challenges to the Decision.
o This usually means limiting your brief to your three or four "strongest" issues.
o You need to walk a fine line between discarding genuinely appealable issues and arguing for the
sake of argument. To do this, you must evaluate the strengths of each case individually. When in
doubt, consult your UAC Advisor, or a member of the Board of Directors or Board of Advisors.
26
This section reviews a few basic points of brief writing that will be helpful to keep in mind, as well as some
specific advice for UI appeals. While the UAC recommends a certain format for your brief, you should be flexible and
structure your brief in light of the strengths, weaknesses or special issues involved in your appeal.
2.
Letter Briefs
Letter briefs are a less formal method by which to support or oppose an appeal. Letter briefs are one
or two-page letters to the Appeal Board (if you go beyond two pages, you probably should submit a
short brief) in which you present your arguments.
When to use:
 Most often used in opposition to the employer's appeal
 Also in any circumstance when the issues do not warrant production of a full brief or when you
are operating under extreme time constraints.
Letter briefs must also include a certification of mailing. (See Appendix)
If you are submitting a letter brief, you need not include a cover sheet. However, the equivalent of the cover
sheet for purposes of a letter brief is a "regarding" ("RE:") line before the salutation which includes the claimant's name,
social security number and appeal number. It is essential that you include these items so that the Appeal Board staff can
file your letter. Do not rely on the Appeal Board staff to look up your client's name in order to determine the appeal
number.
3.
Full Briefs
A full brief should include the following sections:
1.
2.
3.
26
Cover Sheet
Table of Contents
Preliminary Statement
See UAC Advocacy Manual.
UAC 06/05
16
4.
5.
6.
7.
8.
1.
Statement of Facts
Analysis/Argument
Conclusion
Exhibits
Certificate of Mailing (REQUIRED IN ALL BRIEFS)
Cover Sheet
If you are submitting anything other than a letter brief, you should include a cover sheet. It should include a
caption, as printed on the front page of the transcript. To the right of the caption, be sure to type your client's
social security number and appeal number. Mid-way down the page, indicate the title of your document as
generally or specifically as you see fit, perhaps reflecting any extraordinary relief requested. (See Appendix.)
2.
Table of Contents
If you are submitting anything other than a letter brief, you should include a Table of Contents page which lists
each major section of your brief as well as your point headings and subheadings. This allows the reviewing judge
to see an outline of your entire argument on one page. If you are citing many cases, you should consider adding
a table of cases.
3.
Preliminary Statement
Both a letter brief and a full brief should include a Preliminary Statement although, of course, in a letter brief
the preliminary statement would not be set off as a section with a separate heading.
The Preliminary Statement is a brief re-cap of the procedural history of the case, plus a very concise overview of
your arguments on appeal. For example:
The claimant was denied unemployment insurance benefits on the grounds that she
committed misconduct. After a hearing on March 1, 1990, the Administrative Law Judge sustained the
initial determination. The claimant appeals because the facts found by the ALJ were incorrect and
unsupported by substantial evidence, and in any event, do not constitute misconduct under the
Unemployment Insurance law.
4.
Statement of Facts
A Statement of Facts, despite its name, should not be an exercise in evenhandedness or perfect objectivity. You
should provide an overview of the "facts" from your claimant's point of view, emphasizing the facts which support
your legal arguments. You cannot ignore undisputed facts which cut against your position, but you should
minimize them by referring to them only briefly, and by burying them in the middle of your Statement. You
can also de-emphasize damaging actions of your claimant by describing them in the passive voice (see p. 23
below). Do not argue in your statement of facts, and do not present legal conclusions as facts, but always present
the facts in a manner which supports the claimant's position rather than appears defensive. Consider the
following ineffective statement of facts:
Ms. Doe arrived at work at 9:35 a.m. on the day of her dismissal. She does not dispute that she had
previously been instructed to arrive at work at 9:30 a.m., however she had never been late prior to
work prior to the day of her dismissal.
It would be more effective to state:
UAC 06/05
17
It is undisputed that the employer had informed employees to be at the office by 9:30 a.m. It is also
undisputed that Ms. Doe was a punctual employee and that the only day on which she was late was the
day of her dismissal -- a day on which she arrived only five minutes late.
While the first version seems somewhat defensive, the second version organizes the same facts more
persuasively while still stopping short of argument. Additionally, note how the second version paints a more
favorable picture by emphasizing "undisputed" facts. Since the Appeal Board prefers not to re-find facts, always
look for ways to use undisputed parts of the record to your advantage.
When you write your Statement, cite to the transcript by page and, whenever possible, to the ALJ's Decision as
well. If you introduce new evidence in your brief, see "Exhibits" below, identify it clearly when you cite it.
When you first refer to the claimant, identify her by name and then refer to her by name throughout the rest of
the brief. This helps personalize your claimant and her cause to the judge. Do not include background
information such as wages paid, unless it relates to an issue on appeal.
Note: although the Statement of Facts is one of the first sections in any brief, many brief-writers find it helpful to
write their Statement of Facts after they have written their legal argument section. By working in this order, you
can more easily identify those facts which are important to your legal arguments, and present them in a way that
supports your position.
5.
Analysis/Argument
A.
Present Your Strongest Arguments First
In deciding how to organize your arguments, consider which arguments are most strongly supported by the facts
and the law. Then, organize your brief so that you present your strongest arguments first. This maximizes your
brief's persuasiveness by showing the reader right from the start that there are good reasons to take your appeal
seriously. Occasionally, you will have a three-tiered argument: you analyze the ALJ's misapplication of the law,
attack the ALJ's findings of fact, and maintain that the ALJ failed to follow proper procedure.
ALWAYS ARGUE THE MERITS. The Appeal Board is unlikely to reverse a decision on procedural
grounds alone; at best you'll get a remand. Even if you're arguing a threshold issue, you should tell them why
your client deserves to win (i.e. why granting your motion isn't a waste of their time). If the your client lost due
to a threshold issue (e.g. timeliness) start your brief with the threshold issue and argue it thoroughly -- then go to
the merits.
B.
Use Point Headings and Subheadings to Explicitly Outline Your Argument
Before you begin writing, organize your brief by detailed point headings which summarize each major argument
you will make. It is also wise to use sub-headings, and sometimes even sub-sub-headings to lay out the
organization of each argument step-by-step.
The use of headings and subheadings is important for two reasons: 1) the more explicitly you outline your
argument, the easier it is for the reader to follow and 2) the more explicitly you outline your argument, the
easier it is for you to write a well-organized brief. Settling on your point headings and subheadings prior to
drafting the arguments causes you to focus on the conclusion you are trying to convince the Appeal Board to
adopt.
The headings go from the general (I, II, III) to the more specific (A, B, C) to the very specific (1, 2, 3). For
example:
UAC 06/05
18
I.
EVEN IF THE APPEAL BOARD ADOPTS THE FACTS AS PRESENTED BY
THE EMPLOYER, MS. DOE'S CONDUCT DID NOT RISE TO THE LEVEL
OF MISCONDUCT.
A. Ms. Doe's Outburst Was Merely An Isolated
Instance of Petty Irritability.
B. In Any Event, Ms. Doe's Response To Her
Co-Worker's Insult Was Justified and Appropriate.
Even if you are only submitting a letter brief, it is still helpful for organizational purposes to mentally envision
point headings, although you may decide not to include them in the letter brief itself.
C.
Organize Each Argument With CRAC
Good brief-writing is based on a similar organization, which is often described by the acronym CRAC:
Conclusion:
State the legal Conclusion you wish the Appeal Board to reach. The conclusion is generally a variation
of the statement contained in your point heading or subheading.
Rule:
State the rule of law which you believe the Appeal Board should apply in this case. If more than one
rule could conceivably apply, show why yours is the proper rule for this case. Cite the authority for the
Rule.
Apply:
Apply the Rule to the facts of this case, as reported in your statement of facts.
Conclusion:
Restate the legal Conclusion, showing that it logically and inevitably follows from your application of the Rule to
the facts.
The following is an example of a paragraph which follows CRAC:
Even if Ms. Doe was mistaken that she had permission to leave her work area, her conduct
did not rise to the level of misconduct necessary to deny benefits. (CONCLUSION) Every technical
violation of an employment rule does not rise to the level of misconduct. Figueroa v. Levine, 376
N.Y.S.2d 259, 260 (3d Dept. 1975). The employer must demonstrate by clear proof that the claimant
acted with knowing and wilful disregard for the employer's interests in a manner that was detrimental to
the employer's interests. See, e.g., A.B. 1008-39. (RULES) In the present case, as the ALJ pointed
out, Ms. Doe was a good employee. She was never reprimanded for not completing work and, in fact,
was complimented on her work just weeks before her discharge. See ALJ Decision at 1. The employer
testified that under no circumstances is an employee permitted to leave her work site and that Ms. Doe
did leave her work site. However, this is not an instance where Ms. Doe wandered off her work site,
unjustifiably, at the expense of her employer: it is undisputed that Ms. Does left her work site to assist a
passerby. The employer has not shown how its interests were harmed in any way by Ms. Doe's brief
absence. (APPLY THE RULES) Since the employer has not demonstrated such harm, Ms. Doe's
conduct did not rise to the level of misconduct. (RESTATE CONCLUSION)
UAC 06/05
19
D.
Citations
In order for your brief to be credible and persuasive to a judge, you must cite legal authority accurately and
precisely. Therefore, cite cases and other legal authorities in your brief according to the rules for "Court
Documents and Legal Memoranda" listed in The Blue Book (16th ed. 1996). Two Blue Book Rules are
particularly important:
1. Use Appropriate Introductory Signals (Rule 1.2)
It is important to use the appropriate introductory signals ( [no signal], see, see also, cf., and so forth)
for each citation as specified in Blue Book Rule 1.2. Different cases will support your arguments to
different degrees, and you must indicate such differences by using the different introductory signals.
This not only increases the accuracy of your citations; more importantly, it allows you to present a
wider range of authorities to support your arguments.
27
2. Include Pinpoint or "Jump" Citations (Rule 3.3)
Whenever you cite a case or other authority for any specific proposition, be sure to list not only the
page on which the case begins, but also the page(s) on which the specific proposition you are citing can
be found. This demonstrates that your research was precise, and also helps a reader who is checking
your sources.
Department of Labor Citations
Appeal Board decisions are cited with "A.B." followed by the number of the case and the year: for instance, A.B.
123,456 (1981). The Appeal Board also publishes explanatory releases (A-750-XXXX) to explain their
decisions and guide ALJs. These may be used to refer ALJs to cases in a hearing, but should not be cited in a
brief.
Appellate Division and Court of Appeals cases appear cited in legal reporters in a variety of formats. Pick one
and be consistent.
6.
Conclusion
Clearly state in your conclusion the relief that you seek from the Appeal Board. For example:
For the above reasons, the ALJ's Decision finding that the claimant's actions rose to the level
of misconduct should be reversed. In the alternative, we request that a hearing be held before the
Appeal Board pursuant to 12 NYCRR ' 463.3 to determine ____ and _____, or that the case be
remanded to the ALJ for further factfinding pursuant to 12 NYCRR ' 463.2 (f).
7.
Certificate of Mailing
27
If, for example, you find an Appeal Board case that states a proposition different from your own argument,
but analogous enough to support it, you can still cite it as support by using the introductory signal "cf." (compare).
UAC 06/05
20
As a representative, you are required to certify to the Appeal Board that you mailed a copy of your brief and any
exhibits to the employer. Your brief will be returned to you, unread, if you fail to do so. A sample certificate
of mailing is included in the Appendix to this Manual. The Rule does not require unrepresented parties to
extend you the same courtesy. If an unrepresented employer fails to send you a copy of its brief, you will
eventually get a copy from the DOL and should treat it as if the employer had sent it to you for reply purposes.
28
4.
Additional notes about brief-writing
1.


2.
Write Your Brief with Integrity
Do not knowingly mislead the Appeal Board or misrepresent the law or facts.
While you are not obligated to research your opponent's point of view, you may not ignore any case you
find in the course of your research which is directly on point; rather, you must include it and attempt to
distinguish it.
How Extensive Should Your Brief Be?
The length and scope of your brief will be determined by several factors.


3.
If you believe that the ALJ's Decision is dead wrong, you should submit a full brief, see page 18, detailing all
major arguments.
The amount of time you have to devote to the appeal.
o While in theory you should not take on an appeal if you cannot devote the proper amount of time
to it, in reality you may be the only UAC advocate available. In those cases, your best effort is still
more than the claimant would have if she appealed without you.
Exhibits
You may attach as exhibits to your brief any exhibits which were submitted into evidence at the hearing. It is not
required that you submit copies of the exhibits, but it is advisable to do so if they are relevant to the particular
issues involved in your appeal, so the judge can easily refer to your exhibits.
The ALJ should have made copies of the employer's exhibits at the hearing. If for some reason she didn't, you
can have copies made at the fourth floor window when you go to see the transcript, at the rate of 25 cents/page,
paid by check or money order. You may write to Joseph Kearney, Executive Director, politely requesting that
the fee be waived (be sure to explain that, although you asked, the ALJ did not copy the exhibits).
New Evidence
Any new evidence should be included as an exhibit in your brief and accompanied by a sworn affidavit to
establish its validity. If you are offering a new document, provide a clear photocopy along with an affidavit from
29
28
"Each of the parties may submit . . . statements, documents or briefs to be considered in connection with this
appeal. . . . An attorney-at-law, or representative, must mail a copy of the statement, document or brief to each of
the other parties, and their attorneys and representatives, and certify to the board that this has been done."
12 NYCRR '463.1(f)(3).
29
An example of an affidavit is included in the Appendix. Note that an affidavit must be notarized. Many
lawyers, paralegals, and secretaries are notaries, and you should be able to find at least one on your faculty, or at
your law school's clinic. If you cannot find one there, try a local bank.
UAC 06/05
21
yourself explaining what the document is and why you were not able to produce it earlier. If you want the
Appeal Board to hear from a new witness, have the witness sign an affidavit stating the information you would
elicit from her as a witness. Often it is helpful to include a paragraph explaining either (a) that the witness was
unavailable to testify at the hearing, or (b) that the witness was ready and willing to testify but was not called by
the ALJ.
Whenever you attempt to introduce new evidence, be sure to explain in your brief why the new evidence is
important and why you were unable to offer the evidence earlier, so that you can establish "good cause" for the
Appeal Board to accept it. Such good cause may exist if the evidence was unknown or unavailable despite your
claimant's best efforts at the time of the hearing, or if it involves relevant matters which occurred after the
hearing. For more information, see "Introduction of New Evidence" at page 9 above.
30
5.
Review and Revise the Brief With Your Advisor and Yourself
Before you submit any appeal brief in the UAC's name, you must have your UAC advisor or a member of the
Board of Directors review and approve it. This means finishing the brief several days early, so your advisor can review
and discuss it with you, and so you will have enough time to make any necessary changes.
It's also good to finish early so you have some time to edit your work yourself. Writing instructors agree that the
secret to good writing is re-writing. Therefore, try to finish your brief ahead of schedule and set it aside for 24 hours or
so. Then take another critical look at it, as if you were editing someone else's work for the first time. You'll be surprised
how much you can improve any brief with this technique alone.
Given the time pressures often involved, the UAC does not require you to submit your briefs to your clients for
approval, but ideally you should not submit a brief without having attempted to discuss your strategy with your client.
Keep your client informed of what you're doing and why. The ways of the Appeal Board can be very mysterious, and
your client may not understand your judgment, so be prepared to explain. Remember that your client has an absolute
right to appeal, with or without you -- and if your views diverge on handling the appeal, you should advise your client to
consider pursuing an appeal independently.
6.
Consult the UAC Appeal Brief File
The UAC keeps a file of model appeal briefs on the UAC Website Many advocates find it helpful to review
these briefs as they plan their own, and we encourage you to do so.
30
See Consent Decree at Appendix E, & 4.
UAC 06/05
22
CHAPTER SIX
AFTER YOU HAVE WRITTEN THE BRIEF
After doing all of the work of researching and writing the brief, make sure it is not disallowed because of a
procedural error in its submission. You must perform the following tasks:
*
Mail two signed copies of the brief to the Appeal Board, certified mail with return receipt (The Office
Administrator will reimburse you, so ask for a receipt. Be sure to write your name and your client's
name on the green return-receipt card so the OA will know to give the card to you). Include an
Acknowledgment of Receipt form (see example in Appendix) and a SASE. You must also include a
Cerfitification (see appendix for example). If you fail to send this certification to the Appeal Board,
your brief will be returned and not considered by the Board.
*
Mail one copy (also by certified mail) to all other parties listed on the notice of appeal. Include a short
cover letter (example in Appendix). Keep a copy of the cover letter in the file, and when the return
receipt card comes in, staple it to the letter.
*
Mail one copy to your client (regular mail is OK).
*
Postmark these mailings no later than 11:59 PM of the due date. Take the mailings to a post office
window clerk rather than simply putting them in a mailbox, so that you can be sure they are
postmarked correctly.
If you have cut it close to the deadline, the main post office next to Penn Station is open 24 hours a day every day. It is
located at 34th St. and 8th Avenue. Take the A, C, or E trains to the 34th Street/Penn Station stop. Please do not travel
there alone at night. Be advised, the lines at this post office can be long, and it may take as much as an hour to reach a
window. You must reach the window -- not the post office -- by midnight in order for your brief to be timely postmarked,
so allow an extra hour or two.
*
Advise the UAC Office Administrator, as well as your claimant, that if they receive anything in the mail
from the employer, they should contact you immediately. Check in with them periodically to see if
they have received any briefs or opposition from the employer.
*
Put a copy of all briefs in the UAC case file, and be sure to return the file to the Office after all briefs
and replies have been submitted.
*
Always give an extra copy of your brief to the Office Administrator, so we can place it in the Appeal
Brief File (see p. 10) for the benefit of future brief-writers. (Dont' worry -- your brief doesn't have to be
perfect!)
*
Take a few minutes to make notes summarizing the case, and leave them in the file. The Appeal
Board may grant a new hearing or remand while you are out of town (or after you have graduated!) and
the advocate picking up the case will thank you for your time. If you yourself are willing to handle
subsequent proceedings in the case, leave a note in the file explaining where we can reach you. If you
think you will not be able to handle subsequent proceedings, leave a note in the file and tell the OA.
UAC 06/05
23
PLEASE NOTE: After receiving your brief, an unrepresented employer will often submit papers of its own.
Often the employer will neglect to send any copies to you , and you will first discover the fact that they filed a brief when
the DOL sends the UAC a copy, usually months (often close to a year) after the fact. If your client is making the appeal,
the DOL maintains that you have no right to reply to this brief under 12 NYCRR '463.1(f)(5). As we have mentioned,
the UAC does not agree with this interpretation, and encourages you to reply if in your judgment a reply is warranted.
31
When the employer's brief comes in... Often the employer will not send a copy to your client. If this happens,
you may wish to call your client and ask if she would like a copy of the brief, or mail a copy to her. The original brief
should be kept in the file. You should explain the brief to your client and be prepared to offer your opinion of it.
Evaluate the strength of their brief by asking yourself a few questions...
*
Was it timely filed? (Check your return receipt cards against the date on the brief. Call the Appeal
Board if you're not sure, but remember that they usually take months to respond to mail).
*
Is it in the proper form? (Unrepresented employers usually submit some form of letter brief. Explain
that the Appeal Board will accept a letter brief).
*
Is the employer now represented? If so, their representative should have sent you a copy of the
statement. Consider filing a Motion to Exclude Employer's Brief (see Appendix) on the grounds that
they failed to adhere to Appeal Board procedures.
*
Does the employer attempt to introduce new facts? (They almost always will, and your client will think
that you should have tried to introduce new facts too. Explain that the Appeal Board is bound to the
facts in the record, i.e. transcript. If the employer offers additional evidence that looks like it should
have been available at the hearing, and doesn't bother to show good cause why it wasn't presented then,
consider filing a Motion to Exclude Employer's Exhibits [see Appendix]).
*
What is the employer asking for? If they are appealing, they have the right to ask for a rehearing or
remand. Be prepared; they might get one. If you think a remand would disadvantage your client, file a
reply statement, in order to get your arguments before the Appeal Board (see below).
*
Are there any legal arguments? (Most likely there will not be. Again, since the Appeal Board serves
primarily to interpret the law, this works in your favor.)
If you have already filed a brief, when should you file a reply? Generally, when the brief raises a new issue or
fact, or is procedurally improper. Your reply should take the form of a short motion, confining itself to legal argument
and asking for specific relief -- you should not attempt to re-argue the merits. If the employer offers additional facts or
exhibits, it is particularly important to raise arguments on paper before the Appeal Board decides to hold a hearing or
remand. Your reply motions will most likely ask the Appeal Board to exclude or refuse to consider items submitted by
the employer.
Replies should be handled exactly as you would handle regular briefs: two copies to the Appeal Board by hand
or certified mail, one each to the employer and representative, one to your client. Reply motions should include a
certification of mailing.
The wording of 12 NYCRR '463.1(f)(3) requires an "attorney-at-law, or representative" to send certified
copies to the other side, which may leave a loophole for unrepresented employers to crawl through. Notify the
employer in your cover letter that we expect to receive a copy, and they may be inspired to pay the additional
postage.
31
UAC 06/05
24
CHAPTER SEVEN
If You Lose: Reopenings and Appeals to the Third Department
If you lose the appeal, examine the Appeal Board opinion carefully according to the standards listed in the
"Types of Arguments on Appeal" section of this Manual. This will help you determine whether you should seek a
reopening of the Appeal Board decision or appeal it to the Third Department.
A.
Reopenings
In some cases, you may want to ask the Appeal Board to reopen and reconsider its decision under 12 NYCRR
' 463.6. The Appeal Board tends to grant reopening requests, but to get them to reverse their previous decision after
they reopen the case, you must make a clear showing of "good cause." Generally, there are three grounds for good cause:
1) new evidence;
2) mistake of a material fact; or
3) a substantial error of law.
You need to submit a request to reopen no later than 30 days after the date of the Appeal Board decision. This request
should take the form of a short brief or letter brief, explaining why the Appeal Board has good cause to reconsider its
previous decision. Be sure to send a copy to the employer. If the Appeal Board grants a reopening, it will send notice to
all parties informing them of their rights. Consult with your Advisor to determine if you should file any additional briefs.
If you think your case is suitable for appeal to the Third Department (see below), it may be advantageous to
seek a reopening from the Appeal Board first. Consult with David Raff or another member of the Board of Advisors to
determine what would be best in your specific case. Note that decisions on reopenings may take as long as the original
Appeal Board review. Note: The Appeal Board may grant your motion to reopen and then rule against your client in the
same decision. Don't assume the Appeal Board will give you a chance to argue in a separate brief; argue the merits in
your reopening request.
B.
Appeals to the Third Department
A party who loses before the Appeal Board may appeal that ruling to the Third Department of the Appellate
Division of the New York State Supreme Court. In order to preserve your claimant's right to make such an appeal, she
must send the Appeal Board a written notice that she intends to appeal their decision within 30 days of the date of the
Appeal Board decision. Note: your client must send in this notice within the 30 day deadline even if you plan to seek a
reopening before the Appeal Board first.
The Third Department will review conclusions of law by the Appeal Board, but will not disturb the Board's
findings of fact unless you can show that the findings of fact are not supported by "substantial evidence." This is a
difficult standard to meet: you must demonstrate either that there is no evidence in the record to support the factual
findings of the Appeal Board, or that the only such evidence is not "substantial" as a matter of law (for instance, hearsay).
32
If you think the Appeal Board's legal conclusions are suitable for appeal to the Third Department, but you also
have strong arguments with the Appeal Board's factfinding, you should consider seeking a reopening by the Appeal
Board first, as described above, since the Appeal Board, unlike the Third Department, can review its own factfinding de
novo.
32
See p. 16, notes 26-28 and accompanying text supra.
UAC 06/05
25
Overall, the Third Department is deferential to Appeal Board decisions, so your client needs a very solid
argument to entertain any real hope of overturning an Appeal Board decision. If, however, you think she has such a
case, or if you win and the employer appeals to the Third Department, contact a member of the Board of Advisors. As a
law student, you can no longer represent your client before the Third Department, but we may be able to arrange for
members of our Board of Advisors to take such cases if you are willing to assist them.
UAC 06/05
26
APPENDIX AND BIBLIOGRAPHY
This Appendix contains several form letters for your use during your appeal, as well as
examples of other documents you may need to create on your own.
We strongly encourage you to use xeroxes of the form letters for the purposes specified,
rather than writing your own letter from scratch. It's an easier way to produce the correct type of letter.
For other types of documents which do not lend themselves to a "form letter" structure, we
have provided examples of what a properly written one should look like. You can obtain UAC
letterhead and envelopes by calling the Office Administrator or a member of the Board of Directors.
This stationery is expensive, so please use it carefully.
The following pages contain the following form letters and examples:
1) Form:
2) Form:
Letter of Appeal on behalf of claimant (available in office)
Letter requesting transcript where employer appeals (available in
office)
3) Form:
4) Example:
5) Form:
6) Example:
7) Example:
8) Example:
9) Example:
10) Example:
11) Example:
12) Guide:
Letter terminating UAC representation of a claimant
Letter requesting an extension
Acknowledgment of Receipt
Letter Brief
Affidavit
Certificate of Mailing
Request to Exclude Employer's Brief
Cover letter to Unrepresented Employer
Caption page for a Full Brief
Appeals Cheat Sheet
After these form letters and examples, we have compiled an appeals cheat sheet and a short bibliography of additional
works which can provide further guidance in appellate brief writing.
UAC 06/05
27
FORM: Letter Terminating Representation
[UAC letterhead]
Date
Unemployment Insurance Appeal Board
New York State Department of Labor
P.O. Box 15127
Albany, NY 12212-5127
RE: John A. Claimant
ALJ#: 098-12345
SS#: 123-45-6789
Dear Madams or Sirs:
The Unemployment Action Center, Inc., has decided to withdraw from the above-referenced
case and to discontinue its representation of the claimant. We in no way intend for this withdrawal to
indicate our opinion on the merits of the claimant's case.
Sincerely,
Your Name
Unemployment Action Center, Inc.
UAC 06/05
28
EXAMPLE: Extension Letter
[UAC letterhead]
Date
Unemployment Insurance Appeal Board
New York State Department of Labor
P.O. Box 15127
Albany, NY 12212-5127
RE: John A. Claimant
ALJ#: 098-12345
SS #: 123-45-6789
Dear Sir/Madam:
On behalf of the above-named claimant, we request an extension of time to file our brief until
20 days after the date that you receive this letter.
Unfortunately the timing of this appeal has coincided with the end of our regular semester,
and the advocates who handled this case are no longer available. We have been unable to reach
these advocates and will require additional time in order for the new representative to familiarize
herself with the case and submit a brief. We therefore respectfully request a 20-day extension.
Thank you for your attention to this matter.
Sincerely,
Your Name
Claimant's Representative
UAC 06/05
29
EXAMPLE
[UAC Letterhead]
Date
New York State Department of Labor
Unemployment Insurance Appeal Board
P.O. Box 15127
Albany, NY 12212-5127
RE:
A.B. 123456
ALJ 094-12345
SS# 123-45-6789
Matter of John A. Claimant
ACKNOWLEDGMENT OF RECEIPT
Dear Madams or Sirs:
Please time stamp and initial one copy of this form and return it to me in the enclosed SASE
to acknowledge receipt of two copies of the Claimant's [document title].
Yours respectfully,
Your Name
Claimant's Representative
UAC 06/05
30
EXAMPLE
CERTIFICATION
I certify that on June 30, 1994, I mailed a copy of Claimant-Appellant's Brief In Support of
[In Opposition to] the Appeal herein to the Employer [and Employer's Representative],
XYZ Employer
240 Mercer Street
New York, NY 10012
[Employer's Representative]
[240 Mercer Street]
[New York, NY 10012]
Your Name
Claimant's Representative
UNEMPLOYMENT ACTION CENTER, INC.
UAC 06/05
31
SAMPLE COVER LETTER TO UNREPRESENTED EMPLOYER
(To be mailed with brief)
[UAC Letterhead]
XYZ Employer
240 Mercer Street
New York, NY 10012
RE:
June 30, 1994
Claimant's name
SS# 123-45-6789
A.B. 400,000
Dear [Sir/Madam]:
If we are appealing, and the employer has not yet filed anything:
Enclosed please find our Brief in Support of Claimant's Appeal filed with the Unemployment
Insurance Appeal Board. If you wish to file any papers in reply, we urge you to contact the Appeal
Board as soon as possible. Please be advised that there is a time limit within which to submit any
reply papers. Should you choose to file a reply, we request that you mail a certified copy to the
claimant and to the claimant's representative.
If the employer is appealing, and has not (to our knowledge) filed anything:
Enclosed please find our Brief in Opposition to Employer's Appeal filed with the
Unemployment Insurance Appeal Board. If you wish to file any papers, we urge you to contact the
Appeal Board as soon as possible. Please be advised that there is a time limit within which to submit
papers. If you have already submitted papers, we request that you mail a certified copy to the
claimant and to the claimant's representative. Please be advised that we retain the right to reply to
your brief under 12 NYCRR '463.1(f)(5).
Thank you for your time and attention.
Sincerely,
Your Name
Claimant's Representative
UNEMPLOYMENT ACTION CENTER, INC.
UAC 06/05
32
SAMPLE CAPTION PAGE
STATE OF NEW YORK
UNEMPLOYMENT INSURANCE APPEAL BOARD
A.B.
ALJ
SSA
JOHN DOE,
123,456
094-12345
123-45-6789
Claimant-Appellant,
[Hearing date]
One Main Street
Brooklyn, New York
[ALJ Name]
v.
EVIL EMPLOYER,
Employer-Respondent.
John F. Hudacs,
Commissioner of Labor
BRIEF IN SUPPORT OF CLAIMANT'S APPEAL
OF ALJ DECISION 094-12345
Submitted by
Your Name
Claimant's Representative
UNEMPLOYMENT ACTION CENTER, INC.
240 Mercer Street
New yrok, NY, New York 10012
June 30, 1994
UAC 06/05
33
UAC APPEAL CHEAT SHEET
Employer Appeal
1. You will be notified by the OA (Office Administrator) via e-mail, if the UAC office receives a Notice of
Receipt of Appeal filed by the employer.
2. The UAC office will not automatically request the transcripts for you. It important you request the
transcript.
3. CALL YOUR CLAIMANT immediately and explain what is happening.
4. When the office receives notice that the transcripts are available, you will not necessarily be notified. It is
important to be proactive about locating the transcript.
5. Once the transcripts become available, YOU ARE EXPECTED TO SUBMIT A LETTER BRIEF. Seek
assistance from an advisor at your school as well as the UAC Appeal Manual. You will have 20 days from the
date the transcripts are available to file a Letter Brief.
6. If the employer submits a brief, you will have 12 days to respond via a Response Brief.
a. If you receive the employer brief, before you’ve submitted a Letter Brief, simply submit your
response to the employer brief, and include within that response your affirmation of the ALJ’s
decision.
b. If you receive an employer brief but have not received notice that the transcripts are available, the
transcripts are likely already available. Do not wait for a Transcript Notice to arrive. Go directly to
110 King Street and request to see the transcripts. File your Response Brief ASAP.
c. If the employer does not submit a brief, you need only submit a Letter Brief.
7. Copies of the Letters Brief and Response Brief must be sent to all parties. Consult the Notice of Receipt of
Appeal for a complete list of all parties.
8. You must also certify to the Appeal Board the submission of both your Letter Brief and Response Brief.
[If steps 7 and 8 are not followed, your statements will not be considered.]
9. The OA will notify you of the decision when it arrives.
NOTE: Many times, the claimant will receive Appeal Board documents before the UAC office. For this
reason, it is very important that the claimant notify you of all correspondence she receives. It is also important
that you notify the UAC office of all documents received by the claimant.
Claimant Appeal
1. Notify the OA, as well as the claimant, of your decision to appeal. The OA will refer you to an advisor for
the appeal.
2. Request the appeal and transcripts in writing (use the Appeal Request form letter).
3. The OA will notify you when the Transcript Notice arrives at the office.
4. Pick up the transcripts at the DOL. Consult your appeal advisor as well as the UAC Appeal Manual
regarding how to write and file a brief.
5. Copies of your brief must be sent to all parties. Consult the Notice of Receipt of Appeal for a complete list
of all parties.
6. You must also certify to the Appeal Board the submission of your brief.
[If steps 5 and 6 are not followed, your statements will not be considered.]
7. The OA will notify you of the decision when it arrives.
NOTE: Many times, the claimant will receive Appeal Board documents before the UAC office. For this
reason, it is very important that the claimant notify you of all correspondence she receives. It is also important
that you notify the UAC office of all documents received by the claimant.
ALWAYS KEEP THE OA ABREAST OF WHAT IS HAPPENING. IT IS NECESSARY FOR THE
UAC OFFICE TO ALWAYS KEEP ACCURATE RECORDS ON THE STATUS OF OUR CASES.
ANY QUESTIONS—E-MAIL THE OA AT UACMAIL@YAHOO.COM.
UAC 06/05
34
BIBLIOGRAPHY
If you desire additional guidance about appellate brief-writing, we recommend the following works.
LEGAL WRITING
33
John C. Dernbach & Richard V. Singleton II, A Practical Guide to Legal Writing and Method, 134-79
(1981).
Helen S. Shapo et. al., Writing and Analysis in the Law, 160-211 (1989).
GENERAL REFERENCE
William Strunk and E.B. White Jr., The Elements of Style (latest edition).
An excellent guide to basic principles of good written English.
Kate Turabian et. al., The Chicago Manual of Style (latest edition).
The recognized authority for technical questions about grammar, punctuation, etc.
Joseph M. Williams, Style: Ten Lessons in Clarity and Grace, (2d ed. 1985).
William Zinsser, On Writing Well.
Both Williams and Zinsser offer sophisticated advice for developing and fine-tuning an outstanding
prose style.
33
NOTE: while these legal writing materials can provide useful ideas about brief-writing, much of
their advice is specifically designed for appellate brief-writing where the court cannot re-find facts, and
the only real arguments are about the law. As noted above, see p. 3, the Appeal Board can reverse
factual as well as legal findings by the ALJs. Thus, when you write to the Appeal Board, you should
identify issues of both fact and law according to this Manual, and ignore what legal writing books say
about "standard of review" or deference to the court below. The Appeal Board's standard of review is
always de novo on all issues.
UAC 06/05
35