Ohio appeals court orders Gov. DeWine to reclaim pandemic unemployment funds
Ohio’s Tenth District Court of Appeals has upheld a lower court decision ordering Gov. Mike DeWine to pursue the unemployment compensation he turned down during the COVID-19 pandemic.
Attorneys challenging the state believe there could be as much as $900 million available in unclaimed benefits. They filed a motion Wednesday asking the court to compel DeWine to “take all action necessary” to reclaim those funds within the next five days.
Background
In 2020 and 2021, the federal government offered supplemental benefits worth a couple hundred dollars a week. Nervous those extra dollars were keeping workers on the sidelines, DeWine chose to forgo the added benefits. Thirteen other Republican governors did the same.
DeWine’s announcement came in May of 2021, and a group of Ohio residents including Candy Bowling challenged the move in court.
The trial court turned them down, but the appeals court took a different tack. The judges determined state law requiring the governor “secure” for residents “all available advantages” applies to the supplemental benefits.
The dispute wound its way to the state supreme court later that year. The justices rejected bids to fast-track a decision, and eventually dismissed the cause as moot in a single sentence decision in November 2022.
In a follow up filing, attorneys for the governor asked the justices to be more specific. They argued the court’s order should explicitly vacate the appeals court decision putting supplemental benefits under the umbrella of “all available advantages.”
The Ohio Supreme Court declined.
“In light of this ambiguity,” the trial court decided, it would interpret the Supreme Court’s decision narrowly. Instead of applying to any challenge of the governor’s action, the court determined it only related to requests for “a court order enjoining the State of Ohio from prematurely terminating participation” in the program.
The case demanding the governor seek out the benefits he turned down was allowed to continue. In those proceedings, the parties brought forward an email from a Department of Labor official explaining states that initially turned down benefits are welcome to change their mind and laying out the procedures they would have to follow.
As recently as July 2024, the same official stated those policies remain in effect.
With that in mind, the trial court decided DeWine should try to claim benefits on behalf of Ohioans. The governor appealed, arguing the Ohio Supreme Court already settled this case and it’s unlikely those unemployment dollars are still out their waiting.
“We disagree on both points,” the Tenth Circuit judges wrote Monday.
The decision and reactions
Writing for a unanimous appeals court panel, Judge Shawn Dingus noted the Supreme Court never got at the merits of the case.
“A dismissal based on mootness is not a judgment on the merits,” Dingus wrote.
“Accordingly,” he continued, “the Supreme Court’s dismissal of (the case) as moot resolved only one issue: whether Bowling’s motions for a temporary restraining order and preliminary injunction presented a justiciable controversy at the time of its decision.”
Because the appeals court determined way back in 2021 that state law does compel the governor to pursue the supplemental benefits, and because the Supreme Court didn’t make a peep about it, that decision still holds.
As for DeWine’s argument that the case is moot because those unemployment funds are likely gone, Dingus said that’s not good enough.
“None of those reasons establish that recovery is impossible,” Dingus wrote. “Under the proper standard of possibility rather than substantial likelihood of recovery, Bowling’s action is not moot.”
In an email, a DeWine spokesman said simply, “We have no comment at this time as the appeals process continues.”
Attorney Marc Dann, the Democratic former Attorney General representing Ohioans seeking benefits, hailed the ruling a “landmark” decision.
“We are gratified that the Court has affirmed the rights of Ohio workers and families who were unjustly denied critical pandemic relief,” Dann said in a press release. “This decision is a victory for the rule of law and for the thousands of Ohioans who continue to struggle with the economic fallout of COVID-19.”
He went on to note any chance to recoup that lost funding is “especially important” in light legislation at the state and federal level reducing food assistance and other safety net programs.
“Injecting up to $3,000 into 300,000 working class households will temporarily take the sting out of those cuts,” Dann argued.
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