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Judge rules Nevada no longer in Contempt of Court

Published: Oct. 20, 2020 at 8:54 PM PDT|Updated: Dec. 31, 2020 at 11:54 AM PST
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RENO, Nev. (KOLO) - UPDATE DEC. 31 2nd Judicial District Court Judge Barry Breslow has ruled that Nevada’s Department of Employment, Training, and Rehabilitation (DETR) is no longer in contempt of court.

On December 3, 2020, Judge Breslow ruled the State in contempt for failing to follow his order to pay unemployment benefits to about 9,000 Pandemic Unemployment Assistance (PUA) recipients who had begun receiving benefits, but whom DETR discontinued paying without notice.

In a New Year’s Eve hearing, the state said it had paid benefits to approximately 5,500 people, denied benefits to about a thousand people who were found not-eligible, and took no action for about 3,500 who had already been receiving benefits.

Judge Breslow ruled there is reasonable evidence that DETR is taking action required by the Court.

DETR’s top management had said previously that fraud slowed the processing, citing up to 50 percent of all claims at one time appeared to be fake.

DETR Director Elisa Cafferata says her staff worked hard to comply with the court order this summer, but found it challenging to fulfill while balancing Department of Labor guidelines, which state PUA benefits can’t be given to a claimant who also qualifies for regular unemployment benefits called Unemployment Insurance.

The massive amount of claims due to the pandemic combined with the high number of fraudulent applications simply swamped State resources to pay the claims.

Brian Bracken says he retired from DETR after 25 years of service in August of 2019, but was called by then DETR Administrator Kimberly Gaa to come of retirement to help with the massive wave of claims.

He says between July 22 and July 28 of 2020 DETR only had between 16 and 22 full time PUA adjudicators and investigators to handle all the claims.

He said there was no way to follow Judge Breslow’s Court order handed down in July based on the current staffing size.

Attorney Mark Thierman filed this case, but says his main case involves well over 100,000 unpaid claims for unemployment benefits, with a value estimated between $1 billion and $4 billion dollars, now pending before the Nevada Supreme Court on an expedited emergency briefing schedule.

Attorney’s Leah Jones and Mark Thierman of Reno based Thierman Buck are the lawyers for the claimants, while the State of Nevada was represented by the Attorney General’s office.

ORIGINAL STORY: The State of Nevada is accused of disobeying a court order to pay unemployment benefits in a timely manner.

The Honorable Barry L. Breslow of the Second Judicial District Court in Nevada set a hearing December 3 at 9:00 a.m. to determine if the state is in contempt.

On June 25, he found that Nevada’s Department of Employment, Training, and Rehabilitation (DETR) had for the most part exercised its discretion reasonably, but said there were two ways DETR was in error in how it approached the problems of paying Nevadans in a timely manner:

  • DETR erred in not paying gig workers who are still collecting some income, but had their income substantially affected by the shutdown.
  • DETR is not to stop benefits that have already started, and then delayed due to further investigation.

Attorney Mark Thierman is accusing the State of Nevada of failing to do this. He entered into talks with the State’s Attorneys in the hopes of finding a resolution.

“Mediation unfortunately was not successful at all or at lest it resolved none of the issues. Yes, we wish to continue with the contempt,” Thierman said.

His associate attorney, Leah Jones, says the State needs to face consequences for its actions.

“Defendants have argued that they have made substantial compliance. There’s still the issue of substantial compliance that did not happen on the date that the Court ordered. So Plaintiffs would like to go forward on a contempt motion, would like to set that for a hearing,” Jones said.

Judge Breslow made his expectations clear for the attorney’s representing the State of Nevada.

“I’m trying to think of an scenario where you pull out three to seven or twelve examples of why these people were not paid when otherwise it would appear they would have been captured by the order of mandate. I’m looking more for a 30,000 foot view of compliance as opposed to why certain individuals who otherwise might have been entitled to be paid were not. I would like a level of detail sufficient to, if the state has the evidence, to justify the failure to pay them in accordance to the court’s order,” said Judge Breslow.

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