Petition For Judicial Review (Employment Appeals Board-Claimant)
Petition For Judicial Review (Employment Appeals Board-Claimant) Form. This is a Oregon form and can be use in Court Of Appeals Appellate.
Tags: Petition For Judicial Review (Employment Appeals Board-Claimant), Oregon Appellate, Court Of Appeals
KINGSLEY W. CLICK State Court Administrator INFORMATION ON FILING A PETITION FOR JUDICIAL REVIEW (EMPLOYMENT APPEALS BOARD ‐ CLAIMANT) In response to your request, we have enclosed information on how to file a petition for judicial review and the forms necessary to do so. GENERAL INFORMATION 1. Please understand that filing and pursuing a case with the appellate court is technical legal work. Read all of these instructions, completely and carefully, because you must follow the relevant Oregon Revised Statutes (ORS) and the Oregon Rules of Appellate Procedure (ORAP). We strongly urge you to consider use of an attorney to help you with your case. The Supreme Court, Court of Appeals, or Appellate Court Administrator's Office cannot change the rules for you because you act as your own lawyer. You will have to follow all the rules and meet all deadlines, without exception. Provisions of ORS Chapter 657 and 183 apply to Employment Appeals Board cases. ORAP 4.05 to 4.40 apply to Court of Appeals review of administrative agency cases in general. If you wish to proceed without an attorney, you may wish to access the ORS or ORAP online at courts.oregon.gov. From there, choose “Materials and Resources” then “Court Rules” and choose either the ORS or the ORAP. Or you may send a written request for a copy of the ORAP that includes your name and address, along with a check for $13.00 for an unbound version, or $26.00 for a bound version, to: ATTN: Publications Section Appellate Court Administrator Supreme Court Building 1163 State Street Salem, OR 97301‐2563 If you need additional information about procedures, you may call the Records Section at 503‐ 986‐5555, however, while the staff can try to answer procedural questions and help you understand the rules, they cannot provide legal advice. In other words, they will not substitute in any way for a lawyer’s assistance. 2. Generally, you will not be able to introduce new evidence to the appellate court. The court will review the record (testimony, documents, legal argument) that was received into the Page 1 of 6 American LegalNet, Inc. www.FormsWorkFlow.com record of the hearing with the Employment Department. 3. After briefing and oral argument, if there is one, your case is submitted for decision. It will ordinarily take from one week to several months for the court to decide it. Many cases are decided without a full written "opinion." This means that the court may decide your case without writing any explanation of the reasons for its decision. WHERE TO FILE To request judicial review of an Employment Appeals Board decision, you must file an original petition for judicial review with the Court of Appeals by submitting it to the following address: ATTN: Records Section Appellate Court Administrator Supreme Court Building 1163 State Street Salem, OR 97301‐2563 WHEN TO FILE A petition for judicial review from an Employment Appeals Board order must be filed within 30 days of the date the order was mailed to you. Unless a petition for judicial review is filed and served within the time required by statute, the Court of Appeals will not be able to consider your case. "Filed" means that the petition must either 1) be in the possession of the Office of the Appellate Court Administrator on or before the date it is due, or 2) it must be mailed by certified or registered mail on or before the date it is due, with proof from the United States Post Office of such mailing date. See ORS 19.260(1) and ORAP 1.35. (If you choose option 2, be sure to retain the proof of mailing, because you will be asked to send it in if the timeliness of your appeal is ever questioned). “Served” means that an exact copy of the original document(s) that is being filed at the Court of Appeals, is also delivered to all other parties and LUBA. HOW TO FILE 1. You must attach to the petition for judicial review a copy of the Employment Appeals Board decision that you wish to have reviewed. 2. You must pay a $212.00 filing fee at the time of filing. See ORS 21.010. Failure to pay the filing fee can result in dismissal of your judicial review (ORAP 1.20(4)). However, you may be eligible to receive a waiver (elimination) of the fee, or you may be eligible to defer (delay) payment of the fee. To have the court determine whether you may be entitled to such waiver or deferral, you must complete the enclosed Application for Waiver or Deferral of Fees, and the Declaration for Waiver or Deferral of Fees (if applicable), and send them back to the Appellate Court Administrator. If the court defers the filing fee, you still owe it. If it is not paid by the time the appeal is complete, the unpaid filing fee will become a judgment against you. See ORS 21.605(1)(c). 3. You must complete a Certificate of Filing that indicates the date that you filed your petition, Page 2 of 6 American LegalNet, Inc. www.FormsWorkFlow.com and the method that you used to file your petition. 4. You must serve copies of the petition and all attachments that you file with the Court of Appeals, to all other parties (or to their lawyers) to the case, no matter how many there are via certified or registered mail (ORS 183.482(2)). See ORAP 1.35(2). However, you do NOT need to serve the Declaration for Waiver or Deferral of Fees and any documents pertaining to government assistance such as food stamps, Social Security Income, Oregon Health Plan eligibility, Temporary Assistance to Needy Families, etc. In Employment Appeals Board cases, the other parties may be the Employment Department and/or the employer (if any). You must also serve the Employment Appeals Board and the Attorney General. The parties will be listed on the Employment Appeals Board decision. The document(s) being filed must also include a certificate (or proof) of service, that identifies everybody you have served. A certificate of service is enclosed for your use. WHAT HAPPENS NEXT? 1. The record is prepared: After you file and serve the petition for judicial review, the Employment Appeals Board has 30 days in which to prepare and file the agency record (the transcript of the testimony of the hearing, copies of documents that were received into evidence, etc.). You have 15 days to review that record and seek to correct it; when the record is an accurate reflection of the agency record, the record will be considered “settled.” See ORAP 4.22. 2. Briefs are prepared: A "brief" is a statement of your side of the case. You must follow the format required by the rules. See ORAP 5.05 through 5.80, and Section 5 more information about the procedures concerning briefs. You are required to file an "opening brief” within 49 days of the date that the record is settled. The opening brief must include a statement of the facts of the case. Each statement of fact must refer to the record and show where that fact appears. If it does not, the court may strike the entire brief or disregard your argument. Appeals are for the purpose of reviewing claimed legal errors committed by the agency in rulings on motions or in the final decision. Appeals are not for the purpose of introducing new factual evidence to support your point of view. Therefore, if you try to include new evidence on appeal, it will not be considered and the court may decide not to consider your brief or argument at all. You must serve two copies of your brief on all parties to the judicial review, and your brief must contain a certificate of service. The rules also require that you tell the court, in your brief, what mistake you believe the agency made. These are called "assignments of error," and they must be very specific. The rules require that you set out in the brief the exact words used by the agency when it made what you claim to be an error. After each "assignment of error," you have to make your "argument." This is a brief statement of the legal reasons why the agency was wrong. You ordinarily may not include in your brief a statement about anything that has happened after the date of the agency order that you are appealing. The "answering briefs” (briefs from the employer and/or the Attorney General, on behalf of Page 3 of 6 American LegalNet, Inc. www.FormsWorkFlow.com the Employment Department) are due 49 days after you file your opening brief. All briefs must be prepared according to the ORAP and applicable statutes, or they may be stricken. A respondent filing a brief must serve two copies of the answering brief on you. 3. Motions: A "motion" is any request by a party that the court take some action. You have 14 days from the date any motion is filed to serve a response to that motion. See ORAP 7.05 to 7.30. ORAP 7.30 lists the motions that toll the time for filing the next event. If you file a response to a motion, the court will be able to consider your point of view in deciding what action to take concerning the motion. 4. Court issues decision: By mail, you will receive a copy of the court's decision. WHAT IF I DISAGREE WITH THE COURT OF APPEALS? If you disagree with the Court of Appeals decision, you have 14 days to file for reconsideration with the Court of Appeals. You also have 35 days from the date of the decision to file and serve a petition for review with the Oregon Supreme Court under ORAP 9.05. This gives you a chance to tell the Supreme Court why you believe that the Court of Appeals made a mistake when it issued its decision on your appeal and to seek reinstatement of the appeal. The Records Section of the Appellate Court Administrator's Office will issue the "appellate judgment." The appellate judgment is the document that officially notifies the Employment Appeals Board of the appellate court's decision and transmits the case back to the Employment Appeals Board. The Oregon Supreme Court does not have to hear the case. If a timely petition for review has been filed by any party, the appellate judgment in the case cannot issue from the Records Section until the Oregon Supreme Court decides to allow or deny review. If the Oregon Supreme Court denies your petition for review, or the petition for review filed by the other side, that is ordinarily the end of the case in the Oregon courts. The Records Section of the Appellate Court Administrator's Office will issue the "appellate judgment." The appellate judgment is the document that officially notifies the Land Use Board of Appeals of the appellate court's decision and transmits the case back to the Land Use Board of Appeals. Page 4 of 6 American LegalNet, Inc. www.FormsWorkFlow.com INSTRUCTIONS FOR COMPLETING PETITION FOR JUDICIAL REVIEW CAPTION On line 1, fill in your name. You are the "Petitioner." On line 2, fill in the name of the employer (if any). The "Respondent" is the party or parties that will be opposing your petition, and who won at the Employment Appeals Board. EMPLOYMENT APPEALS BOARD CASE NUMBER Fill in the Employment Appeals Board case number on the line provided. You will find this number on the first page of the Employment Appeals Board decision. SECTION 1(b) Fill in the date of the Employment Appeals Board decision for which you are seeking judicial review. SECTION 2 Fill in your name and address and the name and address for the employer (if any). SECTION 3 Attach a copy of the Employment Appeals Board decision for which you are seeking judicial review. SECTION 4 Read section four before signing the petition. SECTION 5 Mark the appropriate statement indicating what parts of the agency record you wish the court to review. If you choose the first statement, you are asking the court to review all parts of the Employment Appeals Board record. If you choose the second statement, you are asking the court to review only certain parts of the Employment Appeals Board record, in which case, you must state in writing, on the lines provided, what parts of the record you wish to have the court review. Sign the petition, and insert the date that you signed it. You must file the original document containing your original signature, with the Appellate Court Administrator. Page 5 of 6 American LegalNet, Inc. www.FormsWorkFlow.com INSTRUCTIONS FOR COMPLETING CERTIFICATE OF FILING Fill in the date that you filed the petition with the Appellate Court Administrator. Mark the method of filing that you used to file the petition. Sign the certificate of filing and insert the date that you signed it. You must file the original Certificate of Filing containing your original signature, with the Appellate Court Administrator. You must provide copies of the Certificate of Filing to the other parties to the case. INSTRUCTIONS FOR COMPLETING CERTIFICATE OF SERVICE Fill in the date that you served copies of the petition to the other parties. Although the names and addresses for some of the parties have been provided, you must indicate that you have served them with a copy of the petition by checking the appropriate boxes. You will need to fill in the name and address for all other parties that you served. Mark the method of service that you used to serve the parties. Sign the certificate of service and insert the date that you signed it. You must file the original document containing your original signature, with the Appellate Court Administrator. You must provide copies of all documents that you file with the Appellate Court Administrator to the other parties who are listed on the certificate of service. Page 6 of 6 American LegalNet, Inc. www.FormsWorkFlow.com IN THE COURT OF APPEALS OF THE STATE OF OREGON ___________________________________________________________________, Petitioner [LINE 1 - YOUR NAME] v. EMPLOYMENT DEPARTMENT and _________________________________________________________________, Respondent(s). [LINE 2 – NAME OF EMPLOYER (IF ANY)] Employment Appeals Board No.__________________ PETITION FOR JUDICIAL REVIEW 1. Petitioner seeks judicial review of the final order of the Employment Appeals Board in this . case dated 1(b) 2. The parties to this review are: YOUR NAME AND ADDRESS EMPLOYMENT DEPARTMENT, 875 Union NE, Salem, Oregon 97310 EMPLOYER’S NAME AND ADDRESS (IF ANY) 3. Attached to this petition is a copy of the agency order for which judicial review is sought. 4. Petitioner was a party to the administrative proceeding that resulted in the order for which review is sought. 5. DESIGNATION OF RECORD “ “ DATE: Petitioner is not willing to stipulate that the agency record may be shortened. Petitioner is willing to stipulate that the agency record may be shortened and designates only the following portions to be included in the record: SIGNATURE: American LegalNet, Inc. www.FormsWorkFlow.com CERTIFICATE OF FILING I certify that on [DATE], I filed the original of the petition for judicial review with the Appellate Court Administrator at the following address: ATTN: Records Section Appellate Court Administrator Supreme Court Building 1163 State Street Salem, OR 97301-2563 by the following method of filing: INDICATE METHOD OF FILING “ “ “ “ United States Postal Service, ordinary first class mail. United States Postal Service, certified or registered mail, return receipt requested. Hand delivery Other (specify): CERTIFICATE OF SERVICE DATE, I served a true (exact) copy of the petition for judicial I certify that on review to the following parties at the addresses set forth below: INDICATE THAT ALL PARTIES BELOW WERE SERVED BY CHECKING THE APPROPRIATE BOXES BELOW: “ “ EMPLOYMENT DEPARTMENT, 875 Union NE, Salem, OR 97310 SOLICITOR GENERAL, Office of the Solicitor General, 400 Justice Building, 1162 Court Street NE, Salem, Oregon, 97301 “ EMPLOYER (IF ANY): NAME AND ADDRESS “ OTHER PARTIES: NAME AND ADDRESS by the following method of service: INDICATE METHOD OF SERVICE BY CHECKING THE APPROPRIATE BOXES BELOW: “ “ “ “ United States Postal Service, ordinary first class mail. United States Postal Service, certified or registered mail, return receipt requested. Hand delivery Other (specify): DATE: SIGNATURE: American LegalNet, Inc. www.FormsWorkFlow.com IN THE COURT OF APPEALS OF THE STATE OF OREGON ______________________________________, v. ______________________________________. ) ) ) ) ) ) ) Case No. _________________ Appellant/Petitioner Respondent APPLICATION FOR WAIVER OR DEFERRAL OF FEES I am asking for waiver or deferral of fees in this case because I am unable to pay all or part of the fees. The following information is complete and accurate to the best of my knowledge. I understand that I am required to provide documentation verifying this information. I understand that failure to do so could result in my request being denied. 1. I am applying for WAIVER ( A fee “waiver” means that you are not required to pay some or all of your fees because the court has determined that, based on your income and other relevant factors, you are unable to pay.) OR DEFERRAL (A fee “deferral” means that the court has determined that you must pay the court fees, but that you can pay the fees owed over a specified period of time.) of the following fees (check all that apply): Appellant's Filing Fee(s) Respondent's Appearance Fee(s) Motion Fee(s) - Filing Motion Fee(s) – Response 2. I declare that (check one of the boxes below): I am receiving assistance from at least one of the following programs: Food Stamps Oregon Health Plan Standard Oregon Health Plan Plus Oregon Health Plan with Limited Drug Supplemental Security Income (SSI) Temporary Assistance to Needy Families (TANF) If you checked the above box, you must show proof that you are receiving assistance from the program. You do NOT need to fill out a Declaration for Waiver or Deferral of Fees unless you are enrolled in the Oregon Health Plan’s Qualified Medicare Beneficiary (QMB) program or Citizen Alien-Waived Emergency Assistance (CAWEM) program. If you are enrolled in QMB or CAWEM, you must complete and file the declaration with this application. Even though I am NOT receiving assistance from any of the above programs, I am still unable to pay the fees. If you checked the above box, you must complete and file a Declaration for Waiver or Deferral of Fees with this application. The declaration is designed to prove to the court that you do not have sufficient financial resources to pay the fees. If the court defers fees, I understand that: American LegalNet, Inc. www.FormsWorkFlow.com a. The fees are an obligation owed by me to the State of Oregon and that the court may place me on a payment schedule. I agree to pay the fees according to the payment schedule. If I fail to pay according to the payment schedule, the total amount of the unpaid fees are due immediately. b. The court may enter a judgment against me for the unpaid amount of the fees that are deferred and the judgment will be enforced without regard to the outcome of the case. See ORS 21.605. c. If the court establishes a payment schedule or refers a judgment for collection, the law allows administrative and collection costs to be automatically added to the judgment without further notice to me or further action by the court. 3. I understand that if the clerk denies my application, I have the right to ask a judge to review my application. __________________________________________ Date Signature of Applicant __________________________________________ Name of Applicant (printed or typed) CERTIFICATE OF SERVICE I certify that I served a true copy of this application on: (NAME OF OPPOSING PARTY) (ADDRESS OF OPPOSING PARTY) (NAME OF OPPOSING PARTY) (ADDRESS OF OPPOSING PARTY) __________________________________________ Date Signature of Applicant __________________________________________ Name of Applicant (printed or typed) American LegalNet, Inc. www.FormsWorkFlow.com IN THE COURT OF APPEALS OF THE STATE OF OREGON ______________________________________, v. ______________________________________. ) ) ) ) ) ) ) Case No. _________________ Appellant/Petitioner Respondent DECLARATION FOR WAIVER OR DEFERRAL OF FEES (TO BE COMPLETED BY APPLICANT) ACCESS TO THIS DOCUMENT IS RESTRICTED PURSUANT TO THE COURT’S POLICY TO PROTECT THE PERSONAL PRIVACY INTERESTS OF PARTIES 1. PERSONAL Full Name of Applicant ___________________________________________________________________________ FIRST NAME MIDDLE NAME LAST NAME DATE OF BIRTH Residence Address ______________________________________________________________________________ STREET ADDRESS CITY STATE ZIP Mailing Address (if different) _______________________________________________________________________ ADDDRESS CITY STATE ZIP Telephone Number _____________ *SSN ______________ ODL/ID ____________ Marital Status ______________ *I am providing my Social Security number on a voluntary basis. I understand that I cannot be compelled to provide it or be denied consideration solely for failure to provide it. It may be used to verify my identification, credit and employment information, and for collection purposes of court imposed monetary obligations. Names, Relationships, and ages of legal dependants living in household: Name/Relationship Age Name/Relationship Age _____________________________ _____________________________ _____________________________ ______ ______ ______ ______ ______ ______ _____________________________ _____________________________ _____________________________ 2. EMPLOYMENT AND INCOME Currently Employed Not Currently Employed How long since last employment? ____________________ Employer Name (use previous employer if not currently employed) _________________________________________ Employer Address ________________________________________________ Work Phone ___________________ Occupation (job title) _______________ Length of Employment ____________ Amount of Last Paycheck $________ Hourly Wage $ _______ Hours Per Week _______ Monthly Income: Gross $_________ Net (after taxes) $________ Spouse’s Employment Currently Employed Not Currently Employed How long since last employment? ____________________ Employer Name (use previous employer if not currently employed) _________________________________________ Employer Address ________________________________________________ Work Phone ___________________ Occupation (job title) _______________ Length of Employment ____________ Amount of Last Paycheck $________ Hourly Wage $ _______ Hours Per Week _______ Monthly Income: Gross $_________ Net (after taxes) $________ Other income for you, spouse, dependants, or household members (for example: Social Security, unemployment, retirement, public assistance, child support, workers’ compensation, disability, tribal benefits, etc.): Source of Income (describe) Amount How long received? How often received? ______________________________________ $_________ ________________ _________________ ______________________________________ $_________ ________________ _________________ ______________________________________ $_________ ________________ _________________ American LegalNet, Inc. www.FormsWorkFlow.com Other household members who help pay your living expenses: Relationship Amount ______________________________________ $_________ ______________________________________ $_________ Payment for what (describe)? _____________________________________ _____________________________________ 3. MONEY ON HAND / IN BANK OWNED BY YOU AND YOUR SPOUSE Checking Account Number ___________________ Bank/Credit Union ___________________ Savings Account Number ____________________ Bank/Credit Union ___________________ Other Account Number ______________________ Institution __________________________ 4. MOTOR VEHICLES OWNED BY YOU AND YOUR SPOUSE Year, Make, and Model Value Amount Owing ________________________________ $__________ $__________ ________________________________ $__________ $__________ 5. REAL ESTATE OWNED BY YOU AND YOUR SPOUSE Year Purchase Address (include city and state) Purchased Price _____________________________ _______ $_______ _____________________________ _______ $_______ Value $_______ $_______ Cash $___________ Balance $ _________ Balance $ _________ Balance $ _________ Payments made to: ___________________________ ___________________________ Amount Owing $_______ $_______ Payments made to: ___________________ ___________________ 6. ALL OTHER PROPERTY OR ASSETS (example: stocks, bonds, trailers, ATVs, RVs, boats, guns, jewelry, livestock, etc.): Description Value Description Value _____________________________ _____________________________ _____________________________ $______ $______ $______ _____________________________ _____________________________ _____________________________ $______ $______ $______ 7. MONEY OWED TO YOU OR YOUR SPOUSE BY OTHERS (example: tax refunds, judgments, trust funds, etc.): Name of Debtor Owing You Money Amount Owed Date Expected _____________________________________________________________ $___________ _____________ _____________________________________________________________ $___________ _____________ 8. MONTHLY LIVING EXPENSES Rent/Mortgage Payment $ Vehicle Payment $ Credit Card Payment $ Vehicle Insurance $ Child Support Payment $ Transportation Costs $ Doctors/Medical Costs $ Court Fines/Payments $ Food $ Other $ Household Utilities (gas, electric, water, sewer, garbage, phone, etc.) $ 9. LIQUIDATION OF ASSETS If you are unable to sell or liquidate your assets, please use this space to explain why: _________________________ ______________________________________________________________________________________________ I hereby declare that the above statement is true to the best of my knowledge and belief. I understand that it is made for use as evidence in court and is subject to penalty for perjury. __________ __________________________________________ Date Signature of Applicant __________________________________________ Name of Applicant (printed or typed) American LegalNet, Inc. www.FormsWorkFlow.com