La. R.S. 23:1634 gives your client and any involved employer a right to judicial review. Review is limited to whether the facts are supported by sufficient competent evidence and whether the facts justify the decision as a matter of law.1 Venue lies in the parish of your client’s residence or, if the client now lives out of state, in East Baton Rouge or the parish where the claimant lived when he or she originally filed for benefits.2 You only have to serve the agency defendant; if any employer is a named defendant, the agency serves that employer. You only have to include the employer as a defendant if the final decision is on an issue that involved the employer directly (e.g., the job separation determination). The agency’s mistaken naming of an employer on an unrelated issue (e.g., collection of allegedly overpaid benefits) at the administrative level does not mean you have to add the employer as a defendant.
Your client does not have to pay court costs to file for judicial review or to defend against an employer’s petition for judicial review unless, after contradictory hearing, the claim is found to be frivolous.3 This also applies at the appellate level. Courts and sheriff staff are sometimes unaware of this law or mistakenly believe that it only exempts UC claimants as petitioners, not defendants. You might have to intervene to protect your client’s rights on this issue.
Although new evidence can be shown to the court to support anyone’s request for remand, decision is ordinarily limited to the existing record. Just as at the BOR level, an employer may seek remand just to put on a better case; the LWC’s Legal Division, ostensibly involved only to defend the agency’s final decision, may seek remand for the same reason. You want to vigorously oppose such attempts as violating the judicial review statute and as an abuse of the court’s discretion.4
The agency is supposed to file an answer and a copy of the administrative record with the court (and send a copy to the claimant or the claimant’s attorney) within 60 days of being served with the petition. If it fails to do so, a claimant may seek interim benefits if there is “sufficient evidence” on the record to support paying them.5 Since this standard requires the court to base its determination solely on the face of the agency’s final decision, it is rare to have a case in which you can successfully pursue interim relief. However, contacting the Legal Division about the delay or filing a motion for interim relief if the reminder is ignored and the delay egregious may help get the case moving. The agency filing a “motion for extension” of time to answer means nothing; an extension is not authorized by La. R.S. 23:1634.
If a court orders remand and you want to avoid agency delay in processing your client’s case, try to get a reasonable time frame incorporated into the judgment. In a remand situation, you can ask the court to retain jurisdiction or decline to do so (in which case your client would need to go through the administrative and judicial review process again if the agency remand decision is unfavorable). Select the option that seems best for your client.
- 1Charbonnet v. Gerace, 457 So. 2d 676 (La. 1984).
- 2 La. R.S. 23:1634(A).
- 3La. R.S. 23:1692.
- 4See, e.g., Holmes v. Forster, 2000-0632 (La. App. 4 Cir. 2/14/01), 781 So. 2d 656 (agency’s request for remand to allow employer opportunity to present a better case soundly rejected; court reviews prior remand case law).
- 5La. R.S. 23:1634(A); see Toney v. Whitfield, 531 So. 2d 445 (La. 1988).