2021 Georgia Code
Title 34 - Labor and Industrial Relations
Chapter 8 - Employment Security
Article 8 - Appeals
§ 34-8-223. Procedure for Judicial Review of Final Decisions of Board of Review

1. Any decision of the board of review, in the absence of a reconsideration as provided in subsection (b) of Code Section 34-8-221, shall become final 15 days after the date of notification or mailing. Judicial review shall be permitted only after any party claiming to be aggrieved thereby has exhausted his or her administrative remedies as provided by this chapter. The Commissioner shall be deemed to be a party to any judicial action involving any such decision and shall be represented in any such judicial action by the Attorney General.
2. Within 15 days after the decision of the board of review has become final, any party aggrieved thereby may secure judicial review by filing a petition against the Commissioner in the superior court of the county where the employee was last employed. In the event the individual was last employed in another state, such appeal shall be filed in Fulton County, Georgia. Any other party to the proceeding before the board of review shall be made a respondent. The petition, which need not be verified but which shall state specifically the grounds upon which a review is sought, shall be served upon the Commissioner or upon his or her designee within 30 days from the date of filing. Such service upon the Commissioner shall be made by certified mail or statutory overnight delivery, return receipt requested; hand delivery; or in a manner prescribed by the law of this state for service of process to Georgia Department of Labor, Unemployment Insurance Legal Section, Suite 826, 148 Andrew Young International Boulevard, N.E., Atlanta, GA 30303-1751. Such service shall be deemed completed service on all parties, but there shall be so served upon the Commissioner or his or her designee as many copies of the petition as there are respondents. The Commissioner shall mail one such copy to each such respondent. Within 30 days after the service of the petition, the Commissioner shall certify and file with the superior court all documents and papers and a transcript of all testimony taken in the matter, together with the board of review's findings of fact and decision therein. The Commissioner shall not be required to furnish any person with a copy of the aforementioned documents, papers, or transcripts or the original of these items prior to the Commissioner's filing these items with the court. The Commissioner may also, in his or her discretion, certify to such court questions of law involved in any decision. As a guide for future interpretation of the law, when the Commissioner is aggrieved by any decision of the board of review or deems such decision contrary to the law and no other party enters an appeal therefrom, the Commissioner may, within 20 days after such decision has become final, appeal and certify to the superior court questions of law therein involved. The court shall consider and determine the same and enter a decree accordingly, which shall be subject to further appeal by the Commissioner. In any judicial proceeding under this Code section, the findings of the board of review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law. Such actions and the questions so certified shall be heard in a summary manner and shall be given precedence over all other civil cases except cases to which the state is a material party and cases arising under Chapter 9 of this title. An appeal may be taken from the decision of the superior court to the Court of Appeals in the same manner as is provided in civil cases but not inconsistent with this chapter. No bond shall be required for entering an appeal.

(Code 1981, §34-8-223, enacted by Ga. L. 1991, p. 139, § 1; Ga. L. 2014, p. 730, § 6/HB 714.)

- For article on the 2014 amendment of this Code section, see 31 Ga. St. U.L. Rev. 137 (2014). For note discussing administrative records and reports of public employment agencies with emphasis on the critical role of the employer, and advocating a qualified, rather than absolute, privilege placed on confidential employer reports, see 11 Mercer L. Rev. 345 (1960).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under Ga. L. 1937, p. 806 and former Code Section 34-8-176, which was repealed by Ga. L. 1991, p. 139, § 1, effective January 1, 1992, are included in the annotations for this Code section.

- Ga. L. 1937, p. 806 and the Administrative Procedure Act are in derogation of the common law and must be strictly construed. Caldwell v. Corbin, 152 Ga. App. 153, 262 S.E.2d 516 (1979) (decided under Ga. L. 1937, p. 806).

- Venue for an employee's petition for judicial review from a denial of unemployment benefits lay in Fulton County pursuant to O.C.G.A. § 34-8-223(b); although the employee last worked in Laurens County pursuant to a subcontract, the employee's contractual employer was a staffing firm with its principal place of business in Fulton. This provision, rather than O.C.G.A. § 50-13-19, applied to the employee's situation. Fed v. Butler, 327 Ga. App. 637, 760 S.E.2d 642 (2014).

- In a judicial proceeding, the findings of the board of review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law. Caldwell v. Corbin, 152 Ga. App. 153, 262 S.E.2d 516 (1979) (decided under Ga. L. 1937, p. 806; see now O.C.G.A. § 34-8-223); TNS Mills v. Russell, 213 Ga. App. 14, 443 S.E.2d 658 (1994);.

If there is any evidence to support a finding of the Board of Review, it will be approved. Caldwell v. Charlton County Bd. of Educ., 157 Ga. App. 395, 277 S.E.2d 764 (1981); Brown v. Caldwell, 165 Ga. App. 743, 302 S.E.2d 359 (1983); Green v. Tanner, 186 Ga. App. 715, 368 S.E.2d 162 (1988) (decided under Ga. L. 1937, p. 806 and former § 34-8-176).

The Superior Court is not authorized to weigh the evidence and substitute its factfindings for those of the administrative trier of fact. McGahee v. Yamaha Motor Mfg. Corp., 214 Ga. App. 473, 448 S.E.2d 249 (1994).

- Because a discharged at-will city employee filed an administrative appeal from the denial of the employee's request for unemployment compensation benefits, the employee had not yet exhausted the administrative remedies and the matter was not ripe for judicial review, pursuant to O.C.G.A. § 34-8-223(a). Reid v. City of Albany, 276 Ga. App. 171, 622 S.E.2d 875 (2005).

- The factfinder is best suited to determine whether a failure to discharge duties within the meaning of the law occurred when the employer considered a certain level of achievement or proficiency to be the requisite standard, and the employee failed to attain the necessary proficiency and the evidence did not demand a finding of failure through fault or conscious neglect. Caldwell v. Corbin, 152 Ga. App. 153, 262 S.E.2d 516 (1979) (decided under Ga. L. 1937, p. 806).

- Decision denying a teacher unemployment compensation was reversed on appeal because the teacher's failure to pass an exam required as a condition of employment after taking the exam eight times was not due to any conscious neglect or deliberate malfeasance which would have justified disqualifying the teacher from receiving benefits. Johnson v. Butler, 323 Ga. App. 743, 748 S.E.2d 111 (2013).

- Trial court erred by failing to conclude that it was not proven that a claimant knowingly underreported income in order to obtain unemployment benefits because while the evidence may have established that the claimant was less than diligent in monitoring deposits and ascertaining the income received, such conduct was an insufficient basis for imposing fraud penalties pursuant to O.C.G.A. § 34-8-255. Charles v. Butler, 331 Ga. App. 336, 771 S.E.2d 43 (2015).

- When the claimant did not agree that the superior court could consider additional evidence, such as personnel records, and thereby waived the requirement of Ga. L. 1964, p. 338, § 20 (see now O.C.G.A. § 50-13-19(f)) as to an application made to the court for leave to present additional evidence and when counsel for the commissioner did not waive the requirement of the law but specifically pointed out that the case should be remanded to the Board of Review for purposes of introduction of such additional evidence, including personnel records, there has been no waiver of the requirement of those provisions, and the presentation of additional evidence constitutes reversible error. Caldwell v. Corbin, 152 Ga. App. 153, 262 S.E.2d 516 (1979) (decided under Ga. L. 1937, p. 806).

Cited in Zachos v. Huiet, 195 Ga. 780, 25 S.E.2d 806 (1943); Dalton Brick & Tile Co. v. Huiet, 102 Ga. App. 221, 115 S.E.2d 748 (1960); Huiet v. Wallace, 108 Ga. App. 208, 132 S.E.2d 523 (1963); Banks v. Huiet, 111 Ga. App. 607, 142 S.E.2d 421 (1965); Epps Air Serv., Inc. v. Lampkin, 125 Ga. App. 779, 189 S.E.2d 127 (1972); Smith v. Caldwell, 142 Ga. App. 130, 235 S.E.2d 547 (1977); Johnson v. Caldwell, 148 Ga. App. 617, 251 S.E.2d 837 (1979); Caldwell v. Atlanta Bd. of Educ., 152 Ga. App. 291, 262 S.E.2d 573 (1979); Bulloch Academy v. Cornett, 184 Ga. App. 42, 360 S.E.2d 615 (1987); Holstein v. North Chem. Co., 194 Ga. App. 546, 390 S.E.2d 910 (1990); Barron v. Poythress, 219 Ga. App. 775, 466 S.E.2d 665 (1996); Shields v. BellSouth Advertising & Publ'g Co., 228 F.3d 1284 (11th Cir. 2000); Case v. Butler, 325 Ga. App. 123, 751 S.E.2d 883 (2013).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions decided under Ga. L. 1937, p. 806 and former Code Section 34-8-176, which was repealed by Ga. L. 1991, p. 139, § 1, effective January 1, 1992, are included in the annotations for this Code section.

- The State Department of Labor Board of Review cannot require that notification of claimants of determinations as to payment be by registered mail. 1972 Op. Att'y Gen. No. U72-57 (decided under Ga. La. 1937, p. 806).

- The Attorney General is to represent the Department of Labor. 1984 Op. Att'y Gen. No. 84-48 (decided under former § 34-8-176).

- Neither the Department of Labor nor the Board of Review would have the authority to amend or correct any decision on eligibility made by the department once the decision has become final and the time for appealing has expired without one of the parties to the claim filing an appeal. 1985 Op. Att'y Gen. No. 85-30 (decided under former § 34-8-176).

RESEARCH REFERENCES

Am. Jur. 2d.

- 2 Am. Jur. 2d, Administrative Law, §§ 499 et seq., 516 et seq. 76 Am. Jur. 2d, Unemployment Compensation, § 89 et seq.

- 73A C.J.S., Public Administrative Law and Procedures, § 374 et seq. 81A C.J.S., Social Security and Public Welfare, § 536 et seq.

- Unemployment compensation: eligibility as affected by claimant's refusal to work at particular times or on particular shifts, 35 A.L.R.3d 1129; 12 A.L.R.4th 611.

Unemployment compensation: eligibility as affected by claimant's refusal to work at particular times or on particular shifts for domestic or family reasons, 2 A.L.R.5th 475.