MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                     Jan 29 2016, 9:12 am

court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Zachary J. Stock                                         Gregory F. Zoeller
Zachary J. Stock, Attorney at Law, P.C.                  Attorney General of Indiana
Carmel, Indiana                                          Aaron T. Craft
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

A.B.,                                                    January 29, 2016
Appellant,                                               Court of Appeals Case No.
                                                         93A02-1504-EX-247
        v.                                               Appeal from the Review Board of
                                                         the Department of Workforce
Review Board of the Department                           Development
of Workforce Development,                                Case No.
                                                         15-RB-610
Appellee




Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 93A02-1504-EX-247 | January 29, 2016        Page 1 of 7
                                             Case Summary
[1]   A.B. appeals the determination of the Review Board of the Indiana Department

      of Workforce Development (“Review Board”) that she received unemployment

      benefits to which she was not entitled and must repay those benefits with

      statutory penalties. She argues that the Review Board erroneously applied

      Indiana Code Section 22-4-13-1.1(b) in imposing penalties and that the

      penalties violate the United States Constitution. A.B. did not raise either of

      these arguments in the administrative proceedings below, and therefore we

      conclude that she has waived them. Accordingly, we affirm.


                                 Facts and Procedural History
[2]   A.B. collected unemployment benefits from April 2010 to June 2012, after she

      lost her job at a construction company. A.B. filed four claims for

      unemployment benefits: (1) her first regular claim in April 2010; (2) her first

      extended claim in October 2010; (3) her second regular claim in April 2011; and

      (4) her second extended claim in September 2011. She received benefits of

      $30,857. The Department conducted an investigation of her claims. As part of

      the investigation, A.B. was interviewed. She provided a sworn statement that

      when she filed her first claim she had been advised by a WorkOne employee

      that she did not need to report her weekly earnings of $35, which she earned

      waitressing on weekends, because they were not significant enough to require

      disclosure.




      Court of Appeals of Indiana | Memorandum Decision 93A02-1504-EX-247 | January 29, 2016   Page 2 of 7
[3]   In December 2014, the Department issued six determinations of eligibility, each

      covering a different time period between April 2010 and June 2012, and a

      notice of overpayment. Four determinations found that A.B. had knowingly

      failed to disclose that she had earned wages while claiming unemployment

      benefits. Two determinations concluded that the evidence did not show that

      she knowingly misrepresented or failed to disclose that she had earnings. All

      six determinations informed A.B. that she might have received benefits to

      which she was not entitled and which she now could be liable to repay as

      shown by the notice of potential overpayment. Appellant’s App. at 7, 10, 12,

      15, 18, 20. The determinations also informed A.B. that when a person

      knowingly fails to properly disclose earnings, a 25%, 50%, or 100% penalty is

      assessed. Id. at 7, 12, 15, 20. The Department treated each of the four

      fraudulent claims as separate instances of fraud, so a 25% penalty was imposed

      on the first claim, a 50% penalty was imposed on the first extended claim, and a

      100% penalty was imposed on the second regular and second extended claims.

      The notice of overpayment showed that the total overpayment, including

      penalties, was $48,452.50. A.B. appealed to the Administrative Law Judge

      (“ALJ”).


[4]   The ALJ held a telephonic conference, at which A.B. was represented by an

      attorney. The six determinations were consolidated for one hearing because

      they involved the same issues and the same parties. In March 2015, the ALJ

      issued her decision, affirming all the Department’s determinations. Specifically,

      the ALJ concluded that A.B. knowingly failed to disclose earnings that would


      Court of Appeals of Indiana | Memorandum Decision 93A02-1504-EX-247 | January 29, 2016   Page 3 of 7
      reduce or eliminate her benefits, and therefore failed to disclose or falsified

      material facts within the meaning of Indiana Code Section 22-4-13-1.1.

      Therefore, the ALJ concluded that A.B. was liable for repayment of benefits as

      well as applicable penalties pursuant to Section 22-4-13-1.1. The ALJ affirmed

      the imposition of a 25% penalty on the first regular claim, a 50% penalty on the

      first extended claim, and a 100% penalty on the second regular and second

      extended claims.


[5]   A.B., pro se, appealed the ALJ’s decision to the Review Board by letter. The

      Review Board did not hold a hearing or accept any additional evidence. It

      affirmed the ALJ’s decision and adopted and incorporated the ALJ’s findings of

      fact and conclusions of law. This appeal ensued.


                                     Discussion and Decision
[6]   A.B. presents two challenges to the Review Board’s decision. First, she argues

      that the Review Board erroneously applied Indiana Code Section 22-4-13-




      Court of Appeals of Indiana | Memorandum Decision 93A02-1504-EX-247 | January 29, 2016   Page 4 of 7
      1.1(b) 1 when it imposed progressive penalties of 25%, 50%, and 100%. 2 Second,

      she argues that the penalties imposed violate the Excessive Fines Clause of the

      Eighth Amendment. 3


[7]   The Review Board asserts that she did not raise either of these arguments before

      the ALJ or the Review Board and therefore has waived them. A.B. did not file

      a reply brief or otherwise respond to the Review Board’s waiver argument, and

      accordingly we review the Review Board’s argument for prima facie error.

      Buchanan v. State, 956 N.E.2d 124, 127 (Ind. Ct. App. 2011). “Our Supreme

      Court has held that a party who fails to raise an issue before an administrative




      1
          Section 22-4-13-1.1(b) provides that

               an individual is subject to the following civil penalties for each instance in which the individual
               knowingly fails to disclose or falsifies any fact that if accurately reported to the department
               would disqualify the individual for benefits, reduce the individual’s benefits, or render the
               individual ineligible for benefits or extended benefits:
                 (1) For the first instance, an amount equal to twenty-five percent (25%) of the benefit
                 overpayment.
                 (2) For the second instance, an amount equal to fifty percent (50%) of the benefit
                 overpayment.
                 (3) For the third and each subsequent instance, an amount equal to one hundred percent
                 (100%) of the benefit overpayment.
      2
        Specifically, A.B. contends that Section 22-4-13-1.1(b) provides for progressive penalties for each
      “instance” of knowingly failing to disclose certain information. According to A.B., “instance” means a
      single legal action or suit and the four cases for which penalties were imposed should be characterized as a
      single legal action and treated as one instance rather than four. In Telligman v. Review Board of Indiana
      Department of Workforce Development, 996 N.E.2d 858 (Ind. Ct. App. 2013), another panel of this Court agreed
      with the Department that each of the claimant’s three fraudulent claims for unemployment benefits
      constituted an “instance” under Section 22-4-13-1.1(b) for which penalties could be assessed. Id. at 867.
      3
        The Review Board observes that whether the Excessive Fines Clause applies to the States by virtue of the
      Fourteenth Amendment has not been decided by the U.S. Supreme Court. See Discount Inn, Inc. v. City of
      Chicago, 803 F.3d 317, 319-20 (7th Cir. 2015) (noting that U.S. Supreme Court has not decided whether
      Excessive Fines Clause is applicable to state action); but see $100 v. State, 822 N.E.2d 1001, 1010-12 (Ind. Ct.
      App. 2005) (apparently assuming that Excessive Fines Clause applied to state action in concluding that
      forfeiture of vehicle was not unconstitutionally excessive), trans. denied.

      Court of Appeals of Indiana | Memorandum Decision 93A02-1504-EX-247 | January 29, 2016                  Page 5 of 7
      body has waived the issue on appeal.” Cunningham v. Review Bd. of Ind. Dep’t of

      Workforce Dev., 913 N.E.2d 203, 205 (Ind. Ct. App. 2009) (citing Nat’l Rural

      Utils. Coop. Fin. Corp. v. Pub. Serv. Comm’n of Ind., 552 N.E.2d 23, 28 (Ind.

      1990)).


[8]   Our review of the record shows that A.B. did not raise either of her penalty

      arguments before the ALJ or the Review Board. At the ALJ’s hearing and in

      her appeal to the Review Board, she argued that (1) she had been wrongly

      advised as to whether she needed to report her earnings and (2) the Department

      should have informed her sooner that she was not properly claiming benefits.

      Tr. at 35-41, 59-60; Appellant’s App. at 29. Neither of these arguments

      remotely suggests that A.B. had an objection to the penalties that were

      imposed. Even when a party proceeds pro se, “‘an administrative body is not

      required to brainstorm about every possible legal theory that might be available

      to a pro se claimant.’” T.C. v. Review Bd. of Ind. Dep’t of Workforce Dev., 930

      N.E.2d 29, 31 (Ind. Ct. App. 2010) (quoting Cunningham, 913 N.E.2d at 206).

      Accordingly, we conclude that A.B. waived her arguments regarding the




      Court of Appeals of Indiana | Memorandum Decision 93A02-1504-EX-247 | January 29, 2016   Page 6 of 7
      penalties imposed by the Review Board. 4 Therefore, we affirm the Review

      Board’s decision.


[9]   Affirmed.


      Vaidik, C.J., and Bailey, J., concur.




      4
         In Broxton v. Review Board of Indiana Department of Workforce Development, 999 N.E.2d 1069, 1075 n.2 (Ind.
      Ct. App. 2014), trans. denied, this Court “declined to find waiver of an issue not raised in an administrative
      proceeding where resolution of the issue did not require any factual determinations, and required only legal
      conclusions.” Broxton is distinguishable. There, Broxton raised a question of statutory interpretation for the
      first time on appeal. However, the statute had not become an issue until it was cited for the first time by the
      Review Board. In addition, the interpretation of the statute was directly linked to the factual and legal
      questions that had been before the ALJ and the Review Board. In contrast, A.B. was informed of the
      penalties in the initial determinations, and her penalty arguments are unrelated to any of the arguments that
      she made in the administrative proceedings below. For similar reasons, Miller v. Indiana Department of
      Workforce Development, 878 N.E.2d 346, 353-54 (Ind. Ct. App. 2007), and Tokheim Corporation v. Review Board
      of Indiana Employment Security Division, 440 N.E.2d 1141, 1142 (Ind. Ct. App. 1982), in which this Court also
      declined to find waiver, are distinguishable.

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