Cite as 2015 Ark. App. 129

ARKANSAS COURT OF APPEALS

DIVISION IV

No. E-14-450

JUAN SALDANA

APPELLANT

V.

DIRECTOR, DEPARTMENT OF

WORKFORCE SERVICES

APPELLEE

Opinion Delivered February 25, 2015

APPEAL FROM THE ARKANSAS

BOARD OF REVIEW 

[NO. 2014-BR-00794]

REMANDED FOR ADDITIONAL

FINDINGS

PHILLIP T. WHITEAKER, Judge

This is an appeal of a denial of unemployment benefits. Juan Saldana appeals a decision

of the Board of Review that affirmed the denial of his claim for benefits due to his failure to

timely prosecute his appeal rights. On appeal, Saldana argues that the Department violated

federal law, denied him his constitutional right to due process, and violated the equal

protection clauses of the state and federal constitutions. He also argues that there was

insufficient evidence to support the Board’s decision. Because the Board failed to make

written findings on Saldana’s federal, state, and constitutional claims, we remand the matter

to the Board for a ruling on these issues. 

Even though we are remanding this matter without addressing Saldana’s arguments on

appeal, a review of the procedural history is relevant to our determination. Saldana, a Spanish

speaking individual—who does not speak, read, or understand English—filed for

unemployment benefits. On January 21, 2014, the Department of Workforce Services issued
Cite as 2015 Ark. App. 129

a Notice of Agency Determination, denying Saldana’s claim for benefits. Saldana admittedly

received the notice; however, the notice was written in English. 

After receiving the Notice of Agency Determination, Saldana had statutory appeal

rights. To perfect his appeal, Saldana needed to file a written notice of appeal with the Appeal

Tribunal within twenty (20) calendar days of the January 21, 2014 notice. Ark. Code Ann.

§ 11-10-524(a) (Repl. 2012). On February 3, 2014—within the twenty-day time period for

filing an appeal—Saldana phoned the Department and, through an interpreter, informed the

Department he was not receiving his unemployment benefits and needed a job. He was

advised that if he did not agree with the Department’s decision, he could take it to his local

office and file an appeal. Nothing in the record indicates whether or not he was informed

of the time limits in which to file the appeal during that conversation. 

On February 26, 2014, Saldana visited the local office with an interpreter again asking

why he was not receiving benefits. The record indicates he was advised of the Department’s

decision and of the previous discussion regarding the filing of an appeal. He was given an

appeal form at that time. He contacted an attorney that same day and filed his appeal from

the denial of his benefits to the Appeal Tribunal. There is no dispute that the appeal was not

filed within the statutory time limits for appeal.

Even though his appeal exceeded the statutory limit, Saldana was afforded a hearing

to establish whether the late filing was the result of circumstances beyond his control under

Paulino v. Daniels, 269 Ark. 676, 599 S.W.2d 760 (Ark. App.1980). At the hearing, Saldana

argued that the late filing was the result of the Department’s failure to notify him in Spanish

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Cite as 2015 Ark. App. 129

of the time limitations surrounding an appeal. He argued that the failure of the Department

to provide notification of these timelines in his native tongue violated federal and state law,

violated his constitutional rights to due process, and violated the equal protection clause. 

The Tribunal found that the circumstances resulting in the late filing were not beyond

his control and dismissed his appeal. The Tribunal mentioned the constitutional issues raised

by Saldana, but erroneously held that it lacked the jurisdiction to address those issues. 

Saldana timely appealed the Tribunal’s decision to the Board of Review. In his petition

to the Board of Review, Saldana reiterated his constitutional arguments, including the alleged

violations of due process, equal protection, and state and federal laws. He also challenged the

court’s findings with respect to its determination that the failure to timely file was not outside

his control. The Board of Review, without addressing Saldana’s constitutional arguments,

affirmed the decision of the Appeal Tribunal and dismissed his appeal. 

Saldana timely appealed the Board’s decision to this court. On appeal, he challenges

the court’s finding that the failure to timely file an appeal was within his control and, again,

reasserts his constitutional arguments. However, because the Board did not make any findings

with respect to the constitutional issues in the first instance, we must remand for further

findings. When an administrative agency fails to make a finding on a pertinent issue, we do

not decide the question in the first instance, but instead remand for a ruling. Bergman v.

Director, 2009 Ark. App. 724; Lawrence v. Everett, 9 Ark. App. 138, 653 S.W.2d 140 (1983).

Remanded for additional findings.

HARRISON and VAUGHT, JJ., agree.

Mary E. Goff, Legal Aid of Arkansas, Inc., for appellant.

Phyllis A. Edwards, for appellee.

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