Myers v. Ades

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

JOSHUA MYERS, Appellant,

v.

ARIZONA DEPARTMENT OF ECONOMIC SECURITY, an Agency,
Appellee.

No. 1 CA-UB 22-0111
FILED 6-13-2023

Appeal from the A.D.E.S. Appeals Board
No. U-1740165-001-B

AFFIRMED

COUNSEL

Hiser Joy, Phoenix
By Trevor Burggraff
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Emily M. Stokes
Counsel for Appellee
 MYERS v. ADES
Decision of the Court

MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Cynthia J. Bailey and Judge David D. Weinzweig joined.

C A M P B E L L, Judge:

¶1 Myers appeals from the Arizona Department of Economic
Security (ADES) Appeals Board’s denial of his application for Pandemic
Unemployment Assistance (PUA) benefits under the federal Coronavirus
Aid, Relief, and Economic Security (CARES) Act of 2020. Because Myers
failed to self-certify his eligibility for PUA benefits and later offered no
evidence in support, we affirm.

BACKGROUND

¶2 In June 2020, Myers filed for PUA with ADES. He stated his
last day of work was February 4 and that he was unemployed as a direct
result of COVID-19. However, to satisfy PUA’s self-certification
requirement, Myers needed to answer “yes” to any one of a series of
questions regarding the reasons for his unemployment. See 15 U.S.C.
§ 9021(a)(3)(A)(ii).1 He answered “no” to each question and submitted his
application. ADES then began processing Myers’ claim.

¶3 Six months later, Myers “reopened” his June 2020 claim.
Fourteen days later, on December 27, he filed an additional application. In
each document, he self-certified that he was “to start working but was
unable to due to the closure of the business caused by COVID-19.” In both
applications he listed February 2 as his last day of work and the date he
planned to start new employment.

¶4 Within two weeks of receiving Myers’ December 27 claim,
ADES informed Myers via the online portal that “to be approved by PUA,”
he “need[ed] to upload . . . [a] typed document from [his] recent employer
stating that [he] w[as] unable to work due to Covid 19.”

¶5 Myers did so, providing an undated letter from his would-be
employer (Employment Letter), who wrote:

1 Absent material revisions, we cite a statute’s current version.

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This is notification that, I had hired Joshua Myers . . . to work
for my [cleaning] company, but on the 2nd of February, 2020,
had to retra[ct] the offer of empl[o]yment, due to the recent
Covid-19 pandemic. Sincerely [Signed].

¶6 In January of 2021, ADES denied Myers’ June 2020 application
because his unemployment was “not a direct result of the Pandemic.”
Myers appealed.

¶7 Over the summer, ADES found Myers ineligible once again
on similar grounds regarding his December 27 application. Myers did not
appeal this second disqualification.

¶8 ADES scheduled a telephonic hearing in September on his
June 2020 application. The ALJ then elicited testimony from Myers about
his work history and planned employment, as set forth in the Employment
Letter.

¶9 Myers testified his last formal employment was in 2017. He
explained that since then, he had done “odd jobs” like mowing lawns and
fixing cars for “20 bucks here, 20 bucks there.” Myers testified that he
“stopped doing a[ny] job[s]” once he filed for PUA, because he was worried
it would affect his eligibility. When asked why he decided “after several
years of not working to go and work for a cleaner,” Myers explained that
“[H]e’s a friend of mine and . . . I needed work.”

¶10 When addressing the Employment Letter, the ALJ asked
whether the employer’s claim that he “had to retract the offer due to
COVID,” was because “COVID-19 was shutting things down in February
of 2020[?]” Myers replied, “I don’t know why . . . that’s the wording [an
ADES employee] . . . told me to have him use, so I just told him what to
write, and he wrote it down, and signed it.” Myers claimed “[e]verything
was getting shut down” at the time. But he also testified—repeatedly—that
he “couldn’t remember” when he was supposed to start working for the
cleaning company. He could recall only that it was sometime in February,
and in documentation submitted to ADES, Myers used conflicting dates.

¶11 The ALJ asked Myers why his June 2020 application did not
state that he “w[as] supposed to start work and that [he] w[as] unable to
due to the closure of a business,” unlike his request to reopen and his
December 27 application. Myers answered, “I thought that I did put that
down in there, [be]cause that’s the whole reasons why I . . . filed.”

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¶12 At the conclusion of the hearing, the ALJ found Myers
ineligible for PUA. The ALJ noted that Myers was last employed formally
in 2017. The ALJ determined the Employment Letter was not credible. The
ALJ then took judicial notice that (1) “Arizona did not have meaningful
COVID-19 infections in February of 2020” and (2) “Governor Ducey did not
present any executive orders regarding COVID-19 restrictions until March
of 2020.” Based on this information, the ALJ reasoned that Myers’
unemployment could not have been as a direct result of COVID-19.

¶13 Myers appealed to the ADES Appeals Board. The Appeals
Board affirmed the denial of eligibility, adopting the ALJ’s findings of fact,
reasoning, and conclusions of law. The Appeals Board cited the
Employment Letter’s lack of credibility. The Board observed that Myers’
purported start date was “about six weeks” before Governor Ducey’s first
COVID-related executive order and that Myers waited “about five months”
before applying for PUA benefits. Moreover, “the prospective Employer
was guided by [Myers] regarding what to say,” and Myers was himself
parroting language “that a department employee advised him” to include
in the letter. Myers appealed to this court.

¶14 We granted leave to appeal under A.R.S. § 41-1993(B),
appointed pro bono counsel for Myers, and requested briefing on two
issues. First, whether ADES “err[ed] by requiring credible documentation”
supporting the lost employment opportunity for the weeks before
December 27, 2020. Second, whether ADES “misappl[ied] the law by
affirming Myers’s disqualification because his unemployment occurred in
February 2020,” prior to imposition of COVID-19 restrictions in Arizona.

DISCUSSION

¶15 “We defer to ADES’s findings of fact but review de novo
whether the Appeals Board properly applied the law to the facts.” Simmons
v. Ariz. Dep’t of Econ. Sec., 254 Ariz. 109, 111, ¶ 10 (App. 2022). If “any
reasonable interpretation of the record and substantial evidence” supports
the decision, we will affirm. Id.

¶16 In March 2020, Congress enacted the CARES Act, 15 U.S.C.
§§ 9001–9141, which included a section for PUA benefits (15 U.S.C. § 9021).
The program was federally funded, but administered by state
unemployment benefit agencies. PUA was designed to provide limited,
temporary benefits to individuals who were unemployed as a result of the
COVID-19 pandemic but ineligible for regular unemployment benefits. 15
U.S.C. §§ 9021(a)(3)(A)(i), (c)(2), 9023(b)(1)–(3), 9025(a)(4).

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¶17 Arizona made PUA benefit payments from January 27, 2020
until July 10, 2021. 15 U.S.C. § 9021(c)(1)(A); see generally Unemployed
Workers United v. Ducey, 254 Ariz. 95 (App. 2022) (discussing Arizona’s
early exit from the federal pandemic unemployment compensation
program).

¶18 Initially, claimants needed only to self-certify for eligibility,
avowing they were “otherwise able to work and available for work . . .
except [they were] unemployed” for one of 11 enumerated reasons, 15
U.S.C. § 9021(a)(3)(A), including that “the individual was scheduled to
commence employment and does not have a job . . . as a direct result of the
COVID-19 public health emergency,” 15 U.S.C. § 9021(a)(3)(A)(ii)(I)(gg).
Congress later amended the CARES Act, however, to require individuals to
“provide[] documentation to substantiate employment or self-employment
or the planned commencement of employment.” 15 U.S.C. § 9021(a)(3)(A)(iii)
(effective Dec. 27, 2020) (emphasis added).

I. Because Myers did not self-certify, ADES was authorized to
request supporting documentation

¶19 We first address whether ADES erred by requesting
additional documentation in support of Myers’ June 2020 application.2
When filling out ADES’ online application, a claimant self-certified that
they were eligible for PUA by answering “yes” to any of these questions:

1. “Are you self-employed, a business owner, or a gig
worker, or a worker for a religious organization whose
unemployment was a direct result of COVID-19?”

2. “Did you quit your job because of COVID-19?”

3. “Are you laid off due to a lack of work after a business
closure caused by COVID-19?”

2 ADES argues that because Myers “did not argue that [it] was not
permitted to request or consider supporting documentation,” we cannot
address that issue on appeal. See A.R.S. § 41-1993(B) (“An issue may not be
raised on appeal that has not been raised in the petition for review before
the appeals board.”). Not so. In Myers’ petition for review, he argued the
ALJ erred in finding the Employment Letter not credible and that he should
have received PUA benefits because he provided all requested
documentation. To address this argument, we necessarily consider whether
ADES could request and rely on supporting documentation.

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4. “Has your employer reduced your hours due to COVID-
19?”

5. “Were you to start working but was unable to due to the
closure of the business caused by COVID-19?”

See 15 U.S.C. § 9021(a)(3)(A)(ii); see also U.S. Dep’t of Lab., Emp. & Training
Admin., Unemployment Insurance Program Letter No. 16-20 (UIPL 16-20),
Change 1, at I-7 (Apr. 27, 2020).

¶20 But Myers answered “no” to each self-certification question.
Still, Myers argues his application was complete because he signed it,
answered “yes” to being “unemployed as a direct result of a pandemic or
major disaster,” and then marked “COVID-19” as the major disaster.
However, a completed self-certification form was to include “[t]he
identification of the applicable COVID-19 related reason(s).” UIPL 16-20,
Change 1, at I-7. Though Myers later answered “yes” to one of the listed
questions, thereby completing the self-certification form when “reopening”
his June 2020 claim, ADES was not required to consider this a completed
self-certification because the new information conflicted with that of the
original claim. See U.S. Dep’t of Lab., UIPL 16-20, Change 4, at I-29 (Jan. 8,
2021) (“States are not required to take a new PUA application for an
individual with an existing PUA claim, whether the individual is in active
claim filing status or not . . . .”). Absent appropriate self-certification in the
initial application, Myers was not a “covered individual” entitled to PUA
benefits, and ADES could seek to clarify the discrepancy by requesting
additional information. See 15 U.S.C. § 9021(a)(3)(A)(ii)(I); see also U.S. Dep’t
of Lab., UIPL 16-20, Attachment 1, at I-2 (Apr. 5, 2020) (summarizing
definition as requiring, among other things, an individual to “provide[]
self-certification that [he] meets the requirements”).

¶21 Here, the facts bely Myers’ claim that ADES was
“unnecessarily complicat[ing] the process to justify” impermissible fact-
finding. The June 2020 application lacked self-certification and included
information that conflicted with ADES records. Myers listed February 4,
2020 as his last day of work, when ADES records showed he was last
employed in 2017. Nonetheless, Myers insists ADES could not request
documentation under any circumstances. We disagree. Subject to its
agreement with the Department of Labor, ADES had an affirmative duty
“to take reasonable and customary precautions to deter and detect fraud.”
UIPL 16-20, Attachment 1, at I-7; see also 15 U.S.C. § 9021(f) (requiring states
to have “adequate system[s] for administering such assistance”).

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¶22 Myers failed to complete the self-certification to support his
application. This necessarily required the department to verify the
legitimacy of his claim by cross-referencing internal records and seeking
clarification from the applicant. By requesting supporting documentation
to determine his eligibility, ADES acted within its discretion. Indeed, based
on the deficient self-certification, ADES could have simply disqualified him
from receiving PUA benefits out of hand. See UIPL 16-20, Change 1, at I-7.

¶23 ADES did not err in requiring Myers to substantiate his claim
to PUA benefits because he failed to satisfy the threshold requirement of
self-certification, provided information that contradicted ADES’ internal
records, and provided contradictory information when attempting to
reopen his initial claim.3 Therefore, ADES was authorized to request
documentation to verify his eligibility and the ALJ did not err in
considering the Employment Letter and weighing its credibility.

II. The ALJ and Appeals Board did not err in finding Myers did not
qualify for PUA benefits

¶24 Last, we consider the merits of Myers’ claim that ADES
erroneously denied him benefits because he applied “to[o] early.” PUA
became available in January of 2020—but only to those who met the
eligibility requirements. 15 U.S.C. § 9021(c)(1)(A)(i). Myers is only eligible
for PUA benefits if he “was scheduled to commence employment and does
not have a job . . . as a direct result of the COVID-19 public health emergency.”
See 15 U.S.C. § 9021(a)(3)(A)(ii)(I)(gg) (emphasis added). More specifically,
Myers’ unemployment must have been an “immediate result” of the
COVID-19 pandemic and not “the result of a longer chain of events.” See 15
U.S.C. § 9021(h) (applying 20 C.F.R. 625 to PUA “[e]xcept as otherwise
provided . . . or to the extent there is a conflict”); see also UIPL 16-20,
Attachment 1, at I-7 (citing 20 C.F.R. 625.5(c) for definition of “direct
result”).

3 Given this conclusion, it does not matter whether the ALJ and Appeals
Board relied on the letter as support for Myers’ “planned commencement
of employment” or as the reason for his unemployment. See Simmons, 254
Ariz. at 112, ¶ 15 n.1 (noting the CARES Act “still only require[d] an
individual to self-certify the reason for the unemployment”); see also 15
U.S.C. § 9021(a)(3)(A)(ii), (iii) (effective Dec. 27, 2020).

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¶25 Simply being unemployed in February of 2020 is not sufficient
to show an individual is entitled to PUA benefits. Reasoning that “there
were no restrictions preventing employment in February of 2020,” the ALJ
concluded that Myers’ unemployment was not the direct result of the
COVID-19 pandemic.

¶26 Myers testified that he was scheduled to start work at his
friend’s cleaning company, which “works with banks” to clean out vacant
houses to “get[ them] ready for resale.” According to Myers, although the
cleaning company remained open, his friend could not “go to some – to all
– a lot of the places because the pandemic thing.” See 15 U.S.C.
§ 9021(3)(A)(ii)(I)(gg).

¶27 But there were no government shutdowns or social distancing
requirements in Arizona in February 2020. The ALJ took judicial notice that
Governor Ducey did not issue any executive orders addressing COVID-19
until March. See Exec. Order No. 2020-07 (Mar. 11, 2020) (declaring COVID-
19 a public health emergency); Exec. Order No. 2020-09 (Mar. 19, 2020)
(closing certain businesses “in Arizona counties with confirmed COVID-19
cases”); Exec. Order No. 2020-12 (Mar. 23, 2020) (identifying banks and
“[c]ritical trades,” including cleaners, as “essential services,” which were
not subject to closure).

¶28 The ALJ had discretion to find the Employment Letter not
credible. See Holding v. Indus. Comm’n of Ariz., 139 Ariz. 548, 551 (App. 1984)
(noting ALJ “may reject [evidence] if it is self-contradictory [or] inconsistent
with other evidence”). Here, the Employment Letter recites only that
Myers’ job offer for February 2, 2020, was retracted “due to the recent
Covid-19 pandemic.” The Employment Letter provided no explanation
regarding how the pandemic affected the employer’s ability to hire Myers.
And Myers himself testified that “I just told him what to write”—including
the start date—“and he wrote it down, and signed it.”

¶29 ADES did not “ignor[e]” PUA’s eligibility period—it
contextualized Myers’ claim in light of the employment offer, the early
stages of the COVID-19 pandemic, and the causal link between COVID-19
and the offer’s recission. Substantial evidence supports the ALJ’s
conclusion that “there were no restrictions preventing employment in
February of 2020,” and therefore, Myers’ unemployment “was not the
direct result of one of the COVID-19 related reasons.” The ALJ and Appeals
Board did not err in finding Myers ineligible for PUA.

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CONCLUSION

¶30 For the reasons above, we affirm.

AMY M. WOOD • Clerk of the Court
FILED: JT

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