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FAQs: Writing a brief in an appeal of a hearing officer’s decision The following are some questions that are commonly asked about the briefs filed in appeals of decisions of hearing officers in unemployment cases. This is general information about the role of briefs in the appeal process and is not intended to be specific legal advice applicable to your particular case. We are not permitted to provide legal advice to particular parties. To obtain that you must consult your own attorney.
Q. What is a “brief”? A. After the employer or the claimant appeals a hearing officer’s decision, both parties have an opportunity to file briefs with the Industrial Claim Appeals Office (usually referred to as “the Panel”). The brief is the party’s written argument explaining the reasons that the hearing officer’s decision should be set aside, reversed, or affirmed. (A hearing officer’s decision is left in place or “affirmed” when the Panel decides that the hearing officer did not make any errors requiring that the decision be changed. A decision is “reversed” when the Panel decides that the hearing officer made errors and that the decision should have reached the opposite result. A decision is “set aside” when the Panel decides that the hearing officer made errors and that further proceedings are necessary so that the hearing officer can reconsider his or her decision in light of the Panel’s order. In this last case, the claim is returned to the hearing officer and he or she will write another decision that may then be appealed again.) Q. If I made all my arguments in my letter appealing the hearing officer’s decision, do I still need to file a brief? A. You may still file a brief if you wish. However, if after you review the transcript of the hearing you decide that your appeal letter contains all the arguments you wish to make, then it is not necessary to file a brief that merely repeats those arguments. The administrative law judges on the Panel will review and consider your appeal letter whether or not you file a brief. Q. When do I file the brief? A. The Industrial Claim Appeals Office will send you a notice telling you when the brief should be filed. When a party appeals a hearing officer’s decision to the Panel, a notice is sent out stating that the appeal was filed and that a transcript of the hearing will be prepared. Once the transcript is prepared, the Panel will mail you a “Notice of Opportunity to File Brief” along with a copy of the transcript. The notice will advise you that you may submit a brief and will tell you when it is due at the Panel. (The parties have 12 days from the date of the mailing of the Notice of Opportunity to File Brief within which to file the brief.) Q. What should I include in the brief? A. You can include anything in the brief that you believe the administrative law judges on the Panel should consider in resolving the appeal. However, their review of the hearing officer’s decision is very narrow. The administrative law judges on the Panel do not review the case in order to decide how they would have ruled had they been in the place of the hearing officer. Rather, the administrative law judges may only review the hearing officer’s decision and the record created below to determine whether he or she made certain types of errors. In general, it is the job of the hearing officer to listen to the testimony, review the evidence, and determine the “facts” of the case. He or she then applies the unemployment law to those facts and determines the issue presented at the hearing. (Usually, although not always, the issue is whether the claimant receives an award of unemployment benefits or is disqualified.) The Panel may review the case to determine whether the hearing officer’s factual findings are supported by the testimony and evidence. The Panel may also review the case to determine whether the hearing officer’s determination is supported by the law. The Panel may also review the case to determine whether the hearing officer made certain errors in conducting the hearing. However, the Panel may not simply “reconsider” the testimony and evidence and decide on its own version of the facts. In other words, the hearing officer – and not the Panel – decides what testimony to believe and what testimony to reject. Except in the most unusual circumstances, the Panel may not set aside the hearing officer’s decision on the ground that he or she mistakenly believed or disbelieved certain testimony or evidence. It is therefore rarely helpful to argue to the Panel in a brief that some particular testimony was truthful or untruthful. Q. Why do I need a copy of the transcript before I prepare the brief? A. The transcript is a record of everything that happened at the hearing. If you are arguing that the hearing officer made an error in a particular ruling at the hearing or that his or her decision is not supported by the testimony, you should point out to the Panel the parts of the transcript that support your argument. References to the transcript should be by page number. The administrative law judges on the Panel have a copy of the transcript. Q. Does the brief have to be in any sort of “legal” form to be accepted? A. No. Although there are conventions that are used by lawyers in writing a brief, it is not necessary that you follow them. (In general a brief filed by a lawyer will contain a short introduction of the matter to be reviewed, a statement of the issues, an argument along with supporting rationale, citations of authority and references to the record, and a conclusion stating the precise relief sought. The courts have found this form to be useful in setting out a party’s argument on appeal.) However, your brief may be in any form, including in letter form or in narrative form. In general, whatever form is used should set forth the reasons you believe the hearing officer’s decision should be either set aside, reversed, or affirmed. The brief should include the facts that are relevant to those reasons and any argument in support of the result you are seeking in the appeal. Q. How long should the brief be? A. There is no page limit or maximum permissible length. However, it is important that the brief be concise. Matters that are not directly pertinent to the appeal of the hearing officer’s decision should be omitted and the brief should be written in a way that’s direct and to the point. Q. If I feel as though I left something out at the hearing can I “supplement” my testimony or my evidence by including additional facts or materials with my brief? A. No. The Panel may only review the record that was created by the hearing officer at the hearing. Therefore, the administrative law judges reviewing the case must not consider factual statements made or materials submitted for the first time on appeal. The brief is not an opportunity to submit new facts or new written materials and they will be ignored. However, you may make whatever argument you wish regarding the facts and the record created at the hearing. If you are unsure whether you are submitting “new” information, you may include it and the administrative law judges who decide your case will determine whether it is new material. Remember, though, that if it is new material the administrative law judges cannot consider it. Q. What if I need to respond to statements made in the other party’s brief? Am I able to do that? A. Yes. If the appealing party files a brief, the other parties will be given an opportunity to file response briefs. The Panel will send a “Notice of Brief” providing the other parties with ten days within which to file the response brief. The notice will state the due date of the response brief. Q. How do I “file” the brief with the Industrial Claim Appeals Office? A. You may mail the brief, send it by facsimile transmission (fax) or hand-deliver it to the offices of the Panel. In any case, the brief must be postmarked or received by the due date stated on the Panel’s notice. The Panel’s fax number is 303-318-8139 and it is available for use at all times, every day. The Panel’s address is: ICAO, P.O. Box 18291, Denver, CO 80218. Q. Do I have to send copies of my brief to the other parties? A. No. In every case the Panel will send a copy of the appealing party’s brief to the opposing party. The Panel will send copies of other briefs to opposing parties, but only if they request them. |