State of Wisconsin
Labor and Industry
Review Commission
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Unemployment Insurance Decision[1] |
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Account
No. 231369 |
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Dated and Mailed: |
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Hearing
Nos. S1500424MW and S1800091MW |
October 16, 2018 |
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Lyft, Inc.'s Request for Stay and Interlocutory Review
of ALJ Decision Denying Motion to Bifurcate Proceedings is DISMISSED.
By the Commission: |
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/s/ |
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Georgia E. Maxwell, Chairperson |
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Laurie R. McCallum, Commissioner |
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David B. Falstad, Commissioner |
Memorandum Opinion
On
September 26, 2018, Lyft, Inc. ("Lyft") filed with the commission a Request for Stay and Interlocutory Review of ALJ Decision
Denying Motion to Bifurcate Proceedings (the "Request") in the above-captioned
matters. On October 1, 2018, the
Wisconsin Department of Workforce Development (the "Department") filed
a preliminary response to the Request, asserting that the commission had no
jurisdiction to consider Lyft's Request.
On October 4, 2018, Lyft submitted its reply.
This
Request arises out the Department's issuance of one or more Initial
Determinations finding that Lyft was responsible for certain unemployment insurance
("UI") taxes. As part of its
appeal of the Initial Determination(s), Lyft sought to bifurcate the
proceedings and to address serially certain sub-issues going to the merits of
the Department's cases against Lyft. Lyft's
Request challenges the appeal tribunal's rejection of its motion to bifurcate.
The
question of what authority the commission possesses to entertain appeals of
non-final decisions of the appeal tribunal under the UI laws is one that
neither the commission nor the courts have previous addressed. In addressing this issue, the commission must
first look to the authority granted to it by statute. In this instance, the jurisdiction of the
commission to review matters arising under the UI laws (other than benefits
claims) is set forth in Wis. Stat. § 108.10(2), which authorizes either the employing
unit or the Department to petition the commission for review of "the
appeal tribunal's decision."
"Appeal tribunal's decision" is not defined by the statutes,
but its apparent generality lends some credence to Lyft's argument that the
appeal tribunal's rejection of its motion for bifurcation was an "appeal
tribunal's decision." However, Wis.
Stat. § 108.10(2) grants the right to appeal not to any appeal tribunal decision, but to "the appeal tribunal's
decision" (emphasis added). The use
of the definite article "the" suggests that there is but one decision
arising out of each matter that may be appealed, and therefore implies that the
right to appeal is limited to the final decision of the appeal tribunal. Alternatively, it could be argued that the
use of the definite article "the" may not be modifying
"decision," but rather "appeal tribunal," thereby
acknowledging the obvious in that there is but one appeal tribunal in each case
but saying little about whether the decision needs to be final or not to be
appealable. Even in that case, however,
the statute refers to the singular "decision," again suggestive of
the final determination to issue from the appeal tribunal. Suffice it to say that the statutory language
is insufficiently clear to allow the commission to determine whether it has the
authority under the UI laws to entertain Lyft's appeal of the appeal tribunal's
rejection
of Lyft's motion to bifurcate, and it must resort to other interpretive tools
to assess whether it has jurisdiction over Lyft's Request.[2]
Given
the lack of caselaw addressing the question under the UI laws, both parties
have analogized this case to the commission's decisions assessing its review
authority under the Wisconsin Fair Employment Act, Wis. Stat, §§ 111.31-111.395
(the "WFEA"). Under the WFEA,
the commission is empowered to accept petitions for review of "the
findings and order of the examiner."
Wis. Stat. § 111.39(5). As with the term "appeal tribunal's
decision" under UI law, the phrase "findings and order" is not
defined under the WFEA. Also like the language employed in the UI statute, this
statutory language, general as it is, could be subject to varying
interpretations and, consequently, provides no clear guidance on the question
of commission authority to review non-final decisions.
Unlike
the commission's decisional history under the UI laws, the commission has
addressed on numerous occasions the question of whether it has jurisdiction
under the WFEA to entertain petitions for review of lower decisions that are
not final. Unfortunately, the commission
is unable to draw any guiding principles from those decisions: some find that
the commission has no jurisdiction to review non-final decisions;[3] some find (or at least
suggest) that the commission may have jurisdiction but decline to exercise it;[4] and even a few that seem
not to substantially question the commission's exercise of authority to review
non-final decisions.[5] In short, WFEA caselaw does not provide sufficiently
clear direction on the question of the commission's review jurisdiction to aid
it in its analysis in this case.
Nevertheless,
Lyft places particular weight on Ostlund
v. Coulee Catholic Schools, ERD Case No. CR200203273 (LIRC Feb. 28,
2006) ("Ostlund II"), an age discrimination case
under the WFEA. That case, however, is
substantially more complex than Lyft asserts, and in the end does little to advance
its cause.[6] The employer in that case had asked the
administrative law judge ("ALJ") for a bifurcated hearing to first
address the question of whether the complainant's job with a religious entity
was a "ministerial" or "ecclesiastical" one and, therefore,
protected under the First Amendment and outside the scope of the Department's
jurisdiction under Jocz v. LIRC, 196 Wis.2d 273, 538 N.W.2d 588
(Ct. App. 1995). The ALJ granted that
motion and, after hearing, concluded that (i) the complainant's position was
not "ministerial," (ii) adjudicating the claims would not infringe on
the employer's First Amendment rights, and (iii) the Department therefore had
jurisdiction over the complaint. The
employer filed a petition for review with the commission, which the commission
dismissed as the ALJ's decision was not a final one which the commission had
authority to review. Ostlund I, supra.
The
employer combined a petition for review of the commission's decision under Wis.
Stat. § 111.395 and Ch. 227, with a claim for declaratory relief and a writ of
prohibition under Wis. Stat. § 783.08. The
circuit court granted the employer's writ of prohibition and remanded the
matter back to the commission for a decision on whether Ostlund's
position was ministerial so that it could assess whether the Department had
jurisdiction over the claim.[7] The commission did so, and
issued its decision in Ostlund II.
Thus, Ostlund II does not necessarily stand for the
proposition that the commission (or even the court, for that matter) possesses
the authority on direct appeal to review the non-final decisions of the Department. Rather, the circuit court's order appeared to
have been entered under its authority to issue writs of prohibition under Wis.
Stat. § 783.08 to prevent an agency to act where it had no jurisdiction,
consistent with the requirements of Jocz.[8] The decision of the commission as the
ultimate finder of fact in equal rights cases seems to have been ordered by
the court as a necessary precondition to the court's exercise of that
authority, and not pursuant to the commission's authority to entertain petitions
for review of ALJ decisions under the WFEA.
Given
that the instant case involving Lyft raises no issues of the Department's
jurisdiction, Ostlund II seems to have little bearing on this
case. Indeed, if anything, absent a
question as to the Department's authority to exercise jurisdiction over Lyft
that would permit the type of extraordinary judicial intervention evident in that
case,[9] it would
appear that Ostlund I's conclusion finding no authority to
review the non-final decisions of the ALJ would be more apt to the case
currently before the commission. In any
event, as described above, the commission finds that its previous decisions
regarding its review authority under the WFEA to be insufficiently instructive as
to its review authority under the UI case before it.[10]
Thus,
instead of seeking guidance from the commission's review authority under
analogous programs, the commission a quasi-judicial body established to provide
independent review of agency decisions under UI laws, the WFEA and workers
compensation statutes[11] has found it more helpful
to compare the scope of judicial review of agency decision making more
generally. Pursuant to Wis. Stat.
§ 227.52, the courts are empowered to review "[a]dministrative
decisions which adversely affect the substantial interests of any person,
whether by action or inaction, whether affirmative or negative in form
." By its terms, this statute does not limit
judicial review to final determinations.
Nevertheless, the courts have consistently held that judicial review of
agency decisions is limited to the final orders of the agency. The courts' holdings have been based on both
the intent of the legislature when providing for review of agency decisions,
and the potential for ongoing delays and disruptions to the agency's orderly
process of adjudicating a matter to its ultimate conclusion
if appeals were available for interim rulings that aggrieved one of the
parties. State v. WERC, 65 Wis. 2d 624, 631, 223
N.W.2d 543, 547 (Sup. Ct. 1974); Pasch
v. Wisconsin Dept. of Revenue, 58 Wis. 2d 346, 353, 206 N.W.2d 157, 160-161
(Sup. Ct. 1973). In response, Lyft
argues that Pasch also held that
"[a]n order that directly affects the legal rights, duties or privileges
of a person is appealable
whether such order is denominated 'final' or 'interlocutory.'" Pasch,
58 Wis. 2d at 576, 206 N.W.2d at 162. But
this passage does nothing to limit or condition the earlier conclusion that
non-final agency decisions are not appealable, as Lyft seems to suggest. Rather, Pasch
was simply making the rather unremarkable statement that whether an agency
decision is final or not will depend on the substance of that decision, and not
on whether the agency entitles the decision as "final" or
"interlocutory."
The
commission finds that the legal and policy considerations that provided the
bases for the conclusion in WERC and Pasch that only final agency decisions
are reviewable by the courts apply with equal force to the commission's
authority to review matters such as the one in this case. Consequently, the commission concludes that it
lacks authority under Wis. Stat. § 108.10(2) to review non-final decisions of
the appeal tribunal in non-benefits claims.[12]
The
question before the commission then is whether the ALJ's denial of Lyft's motion
to bifurcate is a final one. As Pasch noted, a non-final decision is one
where "the substantial rights of the parties involved in the action remain
undetermined and when the cause is retained for further action." Pasch,
58 Wis. 2d at 354, 206 N.W.2d at 161, citing
2 Am. Jur. 2d, Administrative Law, p. 413,
sec. 585. In Pasch,
the Wisconsin Supreme Court held that the tax appeals
commission's order finding that it had jurisdiction over the dispute with the
taxpayer did not "directly affect the legal rights, duties or privileges
of the appellant [and] may be challenged upon review from the final decision of
the [tax appeals] commission upon the merits of the controversy." Pasch,
58 Wis. 2d at 357, 206 N.W.2d at 162.
Consequently, the Court held that the courts lacked the authority to
review that order. Similarly, in Kimberly Area Sch. Dist. v. LIRC, 2005
WI App 262; 288 Wis. 2d 542; 707 N.W.2d 872 (App. Ct. 2005), the employer
sought to appeal the commission's ruling that issue preclusion did not bar the
employee's WFEA claim and remanded the matter back to the Department for a
hearing on the merits of his complaint.
The court held that the commission's decision was not final as it "made
no decision that conclusively determined the further legal rights of the District
[and] remanded the matter for further review on the merits." Kimberly
Area Sch. Dist., 2005 WI App 262, Ά 13; 288 Wis. 2d at 550; 707 N.W.2d
at 876. See also, WERC, 65 Wis. 2d at 632-633, 223 N.W.2d at 547-548 (denial
of motion to dismiss and ordering further hearings not a final, appealable
decision).
Similarly,
the ALJ's denial of Lyft's motion to bifurcate is not a final, appealable
order. Each of the agency decisions
which were appealed in Pasch, Kimberly Area Sch. Dist. and WERC had at least some substantive
element to them (i.e., making some
non-procedural legal finding), and still they were not found to have
sufficiently affected the substantial rights of the parties to permit an
immediate appeal. The ALJ's denial of
Lyft's motion is strictly procedural,
affecting only how and when evidence will be presented at hearing. These are
matters committed to the discretion of the Department and the appeal tribunal
pursuant to Wis. Stat. §§ 108.10(2) and 108.09(4)(b), and are the prototypical
non-final decisions which may not be immediately reviewed out of fear that proceedings
would be "constantly interrupted and shifted back and forth between
agencies and the [reviewing authority]," thus "seriously hamper[ing] the efficient conduct of administrative proceedings." Kimberly
Area Sch. Dist., 2005 WI App 262, Ά 12; 288 Wis. 2d at 549; 707 N.W.2d
at 876, quoting WERC, 65 Wis. 2d at
637, 223 N.W.2d at 550.
Finally,
much of Lyft's argument in favor of immediate commission intervention is
founded on the commission's benefit claim decision under Wis. Stat.
§ 108.09 in Ebenhoe v. Lyft, UI Hearing No.16002409MD (LIRC
Jan. 20, 2017), and what it believes to be the correctness of its position on
the merits. While Lyft's arguments have
some appeal in that one would assume many of the same underlying facts and
issues that formed the basis of the Ebenhoe decision may also be present in this case, the Ebenhoe decision
itself has limited effect given the mandate of Wis. Stat. § 108.101(2)
that "[n]o finding of fact or law, determination, decision or judgment
made with respect to rights or liabilities under s. 108.09 is binding
in an action or proceeding under s. 108.10." Thus, whether Lyft is right in its position
on the merits cannot be assumed, but must await the
parties' development of the record in this case. But more to the point, being
"right" or at least claiming to be "right" has never
been a valid exception to the obligation to await a final agency determination
before seeking review. See, e.g., Pasch, 58 Wis. 2d at 357, 206 N.W.2d at 162 (the interim decision
for which immediate review is sought "may be challenged upon review from
the final decision of the commission upon the merits of the controversy");
Johnson Control, supra ("[N]otwithstanding the apparent meritoriousness
of the Respondent's arguments, the Commission finds that it must decline to
accept the Respondent's petition. The Commission has repeatedly held that it
will not accept petitions for review of nonfinal ALJ decisions.").
For
the foregoing reasons, the commission concludes that it does not possess
jurisdiction over Lyft's Request. The
Request is, therefore, dismissed.
cc: Sarah Platt
Dean F. Kelley
Ogletree, Deakins, Nash, Smoak &
Stewart, P.C.
1243 North 10th Street
Milwaukee, Wisconsin 53205
Attorneys for Lyft, Inc.
Christine Galinat
Brett Balinsky
Dept. of Workforce Development, Div.
of Unemployment Insurance
201 East Washington Ave., Rm. E300
P.O. Box 8942
Madison, Wisconsin 53708
[1] Appeal
Rights: See the blue enclosure for the time limit
and procedures for obtaining judicial review of this decision. If you seek
judicial review, you must name the
following as defendants in the summons and the complaint: the Labor and
Industry Review Commission, all other parties in the caption of this decision
or order (the boxed section above), and the Department of Workforce
Development. Appeal rights and answers to frequently asked questions about
appealing an unemployment insurance decision to circuit court are also
available on the commission's website http://lirc.wisconsin.gov.
[2] While Wis. Stat. § 108.09 allows appeals
of "an appeal tribunal decision" (emphasis added) in UI
benefit claims, and Wis. Stat. § 108.10(2) references the procedures under Wis.
Stat. § 108.09 for addressing petitions for review, petitions for review of
non-benefit claims must first be authorized under Wis. Stat. § 108.10(2) before
the procedures in Wis. Stat. § 108.09 can be invoked and, therefore, Wis. Stat.
§ 108.10(2) contains the operative language for this analysis. Moreover, notwithstanding the differing uses
of the definite article "the" and the indefinite article
"an" in the two clauses, the overall similarity in the two provisions
including the common use of the singular "decision" leads the
commission to conclude that neither section is sufficiently clear as to the
commission's authority to review non-final decisions of the Department and that
the result would not change even if Wis. Stat. § 108.09 were the operative
provision.
[3] See,
e.g., Miller v. Old
Dominion Freight Line, ERD Case No. CR200802203 (LIRC Jan. 27, 2011)
("the commission can not and does not
entertain interlocutory appeals" (emphasis added)); Ostlund v. Coulee Catholic Schools, ERD Case No.
CR200203273 (LIRC Mar. 3, 2005) ("Ostlund I") (commission
"not authorized" to review non-final decision of ALJ denying motion
to dismiss for lack of subject matter jurisdiction).
[4] See,
e.g., AIW Local 322 v.
Johnson Controls, Inc., ERD Case No. 8823572 (LIRC Sept. 11, 1990); Giese v. Wausau Ins. Cos.,
ERD Case Nos. 8600691, 8600731 (LIRC Oct. 25, 1988) ("the Commission's
general practice to decline review of nonfinal ALJ orders
is based on the
policy considerations of avoiding unnecessary delays and disruption of the
orderly process of adjudicating cases before the Department, not because of any
limitations on Commission jurisdiction").
[5] See,
e.g., James v. Associated
Schools, Inc., ERD Case No. 882763 (LIRC Nov. 27, 1991) (distinguishing
Johnson Controls, supra), and the
cases cited therein.
[6] The best summary of the procedural history
that is material to this matter can be found in the Supreme Court's decision
which followed Ostlund II.
See, Coulee Catholic Schools v. LIRC, 2009 WI 88,
ΆΆ 23-28.
[8] The Supreme Court ultimately modified the Jocz analysis for
determining whether a position with a religious entity is
"ministerial" or "ecclesiastical." Coulee
Catholic Schools Ά 48, n.22. That
shift is immaterial to our analysis of the jurisdictional question raised by
Lyft's Request.
[9] The right to some sort of immediate review
of non-final decisions may not be based on simply asserting a lack of
jurisdiction, see Pasch v. Wisconsin
Dept. of Revenue, infra, but seems to require some heightened interest
warranting extraordinary relief.
[10] Lyft also seems to assert that the
commission's review authority under the UI laws has to
be at least as broad and more likely broader than that under the WFEA since
the commission's authority under the WFEA is limited by Wis. Admin Code § DWD 218.21(1),
and no such limitation exists under the UI laws. Section DWD 218.21(1) provides: "Any party may file a written petition
for review of a final decision and order of the administrative law judge by the
labor and industry review commission. Only final decisions and orders of the
administrative law judge may be appealed. A final decision is one that disposes
of the entire complaint and leaves no further proceedings on that complaint
pending before the division." Lyft presumably
draws this point from the commission's unfortunate reliance on § DWD 218.21(1)
in certain cases including Ostlund I as a
basis for declining jurisdiction over an appeal. It is possible to read these regulations as
the Department's attempt to summarize what it believes the statutes,
the courts and the commissions have said on the subject. If that is the case, however, the commission
should have referenced those original authorities, and not cited the Department
regulations as an independent basis for its decision. Review jurisdiction is a function of the
authority granted by the legislature, and cannot be
created or denied based on the sanction even by regulation of the agency
being reviewed. See, Johnson Controls, supra, n.*.
The commission does not hereby disturb the conclusions reached in any of
those cases, but disclaims any reliance on Wis. Admin.
Code § DWD 218.21(1). Consequently,
that distinction cannot be grounds for asserting a broader right to review
under the UI laws than exists under the WFEA.
[11] The commission finds that attempting to
analogize its review authority under the UI law to that under the workers
compensation statutes was a particularly futile exercise given the
peculiarities of the workers compensation laws.
Among other things, appeals of interlocutory orders are expressly
authorized under the workers compensation law.
Wis. Stat. § 102.23(1)(a).
[12] This conclusion applies only to the
commission's authority to entertain petitions for review of appeal tribunal
decisions under the UI statutes. The
commission appreciates that much of the analysis undergirding its decision may
apply to appeals of administrative decisions under other program areas that allow
for commission review, but reserves any decision as to
the reviewability of such agency decisions for appropriate cases brought under
those statutes.