Abebe 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ABRAHAM ABEBE, Appellant,

v.

ARIZONA DEPARTMENT OF ECONOMIC
SECURITY, an Agency, Appellee.

No. 1 CA-UB 22-0418
FILED 11-16-2023

Appeal from the A.D.E.S. Appeals Board
No. U-1804019-001-B

REVERSED AND REMANDED

COUNSEL

Greenberg Traurig LLP, Phoenix
By Jorge Coss, Korey Cowan
Counsel1 for Appellant

Arizona Attorney General’s Office, Mesa
By Emily M. Stokes
Counsel for Appellee

1 The court expresses its appreciation to pro bono counsel for
contributing their time, energy, and other resources in pursuing this appeal.
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Decision of the Court

MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Kent E. Cattani and Judge Anni Hill Foster joined.

C A MP B E L L, Judge:

¶1 Abraham Abebe appeals the decision of the Arizona
Department of Economic Security (ADES) Appeals Board finding he failed
to demonstrate excusable neglect for failing to appear at a hearing to contest
the denial of benefits. Because we disagree with that finding, we reverse the
Appeals Board’s denial of Abebe’s request to reopen his case and remand
for a hearing on the merits.

BACKGROUND

¶2 Abebe was born in Ethiopia, and his native language is
Amharic. During the Covid-19 pandemic he applied for Pandemic
Unemployment Assistance and was denied benefits. He requested a
hearing to contest that decision. One month before the hearing, ADES
mailed Abebe a notice informing him of the date and time of the telephonic
hearing. The five-page notice provided registration instructions in English
and language-assistance instructions in both English and Spanish. The
instructions directed him to register no earlier than one business day and
no later than 15 minutes before the start of the hearing. The notice also
contained directions to remain available for 30 minutes in the event the
previous hearing ran long. Abebe received the notice but failed to register.

¶3 On November 10, at the time set for the hearing, Abebe
waited for a call from ADES. That call did not come. Instead, when the
Administrative Law Judge (ALJ) prepared to call the case and discovered
that Abebe had not registered, the case was summarily dismissed. Less than
an hour after the scheduled hearing, Abebe called ADES and was told that
the case had been dismissed because he had not registered. Abebe asked
that his case be reopened, stating that he did not understand that he needed
to register for the hearing. Shortly after the missed hearing, Abebe
hand-delivered a letter to ADES apologizing for his mistake and again
explaining it was his understanding that the judge would call him at the
telephone number he listed in his application. Another hearing was set to
allow Abebe to show good cause to reopen his case.

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Decision of the Court

¶4 Abebe appeared and testified at the good-cause hearing, this
time with the assistance of an interpreter. Abebe explained he did not
understand the need to register before the hearing. It was not until he called
the ADES helpline that he was told that his failure to register forfeited his
right to a hearing on the merits. Abebe did not expressly attribute his
misunderstanding of the registration instructions to his command of the
English language, but he stated that he did not understand the process and
was unaware of the registration requirement.

¶5 The ALJ concluded that Abebe had not shown good cause to
reopen his case because he failed to show that his failure to appear was due
to excusable neglect. The ALJ found that the instructions for registering
were set out in the notice such that a reasonably prudent person would
have understood them. Since the ALJ determined that Abebe failed to show
good cause, his request to reopen was denied.

¶6 Abebe petitioned the Appeals Board for review of this
decision. In his petition, he explained that a language barrier caused him to
misunderstand the registration instructions. The Appeals Board rejected
the argument, noting that Abebe should have sought assistance from the
ADES helpline when he received the hearing notice if he did not
understand the registration instructions. The Board affirmed the denial of
benefits and the determination that he had failed to demonstrate excusable
neglect in failing to register and appear for the hearing. Abebe appealed to
this court, arguing that his misunderstanding of the registration
instructions constitutes excusable neglect necessitating the reopening of his
case. We agree with Abebe.

DISCUSSION

¶7 We defer to an agency’s findings of fact unless they are
arbitrary, capricious, or an abuse of discretion. Figueroa v. Ariz. Dep’t of Econ.
Sec., 227 Ariz. 548, 550, ¶ 9 (App. 2011). But we can draw our own legal
conclusions in determining whether the Appeals Board correctly
interpreted the law. Munguia v. Dep’t of Econ. Sec., 159 Ariz. 157, 159 (App.
1988). Additionally, we may substitute our judgment for the agency’s
regarding the legal effect of facts presented. Weller v. Ariz. Dep’t of Econ. Sec.,
176 Ariz. 220, 224 (App. 1993).

¶8 By ADES rule, a party who fails to appear for a hearing after
which an adverse decision is issued may request a hearing to show good
cause to reopen the case. A.A.C. R6-3-1503(B)(3)(b). To establish good
cause, the party must show that the failure to appear and timely notify the

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Decision of the Court

hearing officer was due to reasons outside the party’s reasonable control or
due to excusable neglect. A.A.C. R6-3-1503(B)(3)(d). Neglect is excusable
when it “might be the action of a reasonably prudent person in the same
circumstances.” Ulibarri v. Gerstenberger, 178 Ariz. 151, 163 (App. 1993)
(construing excusable neglect under civil rule governing relief from
judgment). Mistakes such as mis-calendaring and untimely filing due to
clerical error have been found excusable by our court. Maldonado v. Ariz.
Dep’t of Econ. Sec., 182 Ariz. 476, 477–78 (App. 1994); City of Phoenix v. Geyler, 144 Ariz. 323, 332 (1985). And of particular significance, “f]ailure to
understand legal proceedings and ramifications due to a limited
comprehension of the English language” may constitute excusable neglect,
especially in cases where a default judgment was rendered against the party
with the language deficiency. Coroban v. Coroban, 1 CA-CV 07-0875, 2008
WL 4602528 at *2, ¶ 10 (Ariz. App. Oct. 9, 2008) (mem. decision); see also
Cota v. S. Ariz. Bank & Tr. Co., 17 Ariz. App. 326, 327 (1972) (noting
appellants “should not be penalized by the extreme sanction of a default
judgment” when “their linguistic handicap cause[d] them to fail to answer
a complaint”).

¶9 We are now tasked with determining if Abebe’s
misunderstanding of his registration obligation amounts to the excusable
neglect necessary to show the good cause required to reopen his case. Here,
we disagree with the ALJ and the Appeals Board’s finding that Abebe’s
misunderstanding of the registration requirement did not amount to
excusable neglect. ADES asks us to consider only the actions Abebe should
have taken before the hearing: “a reasonably prudent person who knew
that he had difficulties understanding English would have sought
information or advice from DES or from an English-speaking acquaintance
before the hearing to ensure that he understood the hearing notice’s
instructions.” But were we to focus solely on the pre-hearing actions, we
would be required to disregard consideration of a genuine mistake that
could not have been discovered until after the preclusive event occurred. If
Abebe believed he understood the registration instructions before the
hearing, he would have no reason to seek additional help. He was not
alerted to his misunderstanding until after the preclusive event occurred—
namely, his failure to register and subsequent case dismissal. ADES’s
reasoning ignores that someone may not understand what is required until
they suffer the repercussions of their misunderstanding. The ALJ and
Appeals Board’s finding unfairly penalizes Abebe for not knowing what he
did not know. See Cota, 17 Ariz. App. at 327 (“[W]here a person’s ignorance
of the English language has prevented him from discovering that legal
proceedings have been taken against him until after rendition of judgment,
such illiteracy should be considered.”). Had Abebe previously participated

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in the process and registered, his argument would not be persuasive. But
those are not the facts of this case.

¶10 Abebe’s misunderstanding and mistake in failing to register
must also be considered in light of his prompt action of contacting ADES
when the call from the ALJ did not come. These are the actions of a
reasonably prudent person operating under a misunderstanding of the
registration requirements. See Geyler, 144 Ariz. at 332 (emphasizing the
importance of diligence in determining whether neglect was excusable).
Even under ADES regulations, the timely notification of a
misunderstanding regarding how to participate in a hearing mitigates
against a determination that the claimant failed to appear—
A.C.C. R6-3-1503(B)(3)(d) provides that “both the failure to appear and
failure to timely notify the hearing officer were either beyond the reasonable
control of the non-appearing party or due to excusable neglect.” (Emphasis
added.) Abebe’s language difficulties, as evidenced by his later request for
an interpreter, provides further support that he was not aware of his
misunderstanding before the hearing. Abebe’s circumstances and actions
lead us to conclude that a language barrier contributed to his
misunderstanding leading to his failure to appear. And, to ensure that such
a language-related mistake would not happen again, Abebe requested an
interpreter for his good-cause hearing. We are persuaded that his failure to
appear resulted from excusable neglect. See Cota, 17 Ariz. App. at 327.

¶11 Finally, we note that granting Abebe relief is consistent with
our general desire to hear claims on the merits. Maldonado, 182 Ariz. at 479.
The registration requirement for telephonic hearings creates the possibility
that claims will be dismissed summarily if the claimant fails to register.
Case dismissal based on a misinterpretation of hearing instructions goes
against our long-held principle that “[c]laims should be heard on their
merits if the failure to comply with a deadline or attend a hearing [ ]can be
said to be excusable.” Id. While we do not today decide whether Abebe is
entitled to benefits, there was good cause for his failure to appear.

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Decision of the Court

CONCLUSION

¶12 We reverse the Appeals Board’s denial of Abebe’s request to
reopen his case and remand for a hearing on the merits.

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

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