IN THE 

 COURT OF APPEALS OF INDIANA 

 

 

BRANDON M. SMITH, 
Appellant, 

vs.

REVIEW BOARD OF THE INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT
 and FORGE STAFFING, INC., 
Appellees. 

 

 

 APPEAL FROM THE REVIEW BOARD OF THE 

DEPARTMENT OF WORKFORCE DEVELOPMENT 

The Honorable Steven F. Bier, Chairperson, 

The Honorable George H. Baker, Magistrate, 

And The Honorable Sheri L. Clark, Member 

 Cause No. 06-R-3116 

 

 

Pursuant to Ind.Appellate Rule 65(D), this 
Memorandum Decision shall not be 
regarded as precedent or cited before any 
court except for the purpose of 
establishing the defense of res judicata, 
collateral estoppel, or the law of the case. 



 

August 10, 2007 

 

MEMORANDUM DECISION - NOT FOR PUBLICATION 

 

FRIEDLANDER, Judge 

 

Brandon Smith appeals the dismissal of his administrative appeal of the denial of 
his request for unemployment benefits. The sole issue restated issue for our review is: 
did the Indiana Department of Workforce Development Review Board (the Review 
Board) err in dismissing Smith’s appeal. 

We affirm. 

Forge Staffing, Inc. (Forge) hired Smith in December 2005 and discharged him in 
February 2006. Following his discharge, Smith applied for unemployment benefits. In 
May 2006, an Indiana Department of Workforce Development deputy issued a 
determination of eligibility and awarded Smith unemployment benefits. Forge appealed, 
and on June 15, 2006, an Administrative Law Judge (ALJ) reversed the deputy’s 
eligibility determination. Smith filed an appeal with the Review Board in a September 
25, 2006 letter. On October 12, 2006, the Review Board dismissed the appeal as 
untimely filed. Smith appeals. 

Although Smith argues that he was discharged without just cause and should 
therefore be awarded unemployment benefits, he appeals the order dismissing his appeal 
as untimely. The issue before us is whether the Review Board properly dismissed his 
appeal. 

The time period for perfecting the appeal of an ALJ’ s determination is set forth in 
Ind. Code Ann. § 22-4-17-3 (West, PREMISE through 2006 Second Regular 
Session), which provides as follows: 

 Unless such a request for hearing is withdrawn, an administrative 
law judge, after affording the parties a reasonable opportunity for fair 
hearing, shall affirm, modify, or reverse the findings of fact and decision 
of the deputy. The parties shall be duly notified of such decision and the 
reasons therefor, which shall be deemed to be the final decision of the 
review board, unless within fifteen (15) days after the date of notification 
or mailing of such decision, an appeal is taken by the commissioner or by 
any party adversely affected by such decision to the review board. 

 

An additional three days is added to the prescribed time period where notice is served by 
mail. I.C. § 22-4-17-14(c) (West, PREMISE through 2006 Second Regular Session) 
Thus, an aggrieved party seeking review of an ALJ’s determination must file an appeal 
within a maximum of eighteen days. If no appeal is taken within the statutorily 
prescribed time, I.C. § 22-4-17-3 mandates that the ALJ’s ruling “shall be deemed to be 
the final decision of the review board.” (Emphasis supplied.) 

Prior cases have strictly construed I.C. 22-4-17-3 to require dismissal for lack of 
jurisdiction where an appeal has not been timely filed. See Szymanski v. Review Board of 
the Indiana Department of Workforce Development, 656 N.E.2d 290 (Ind. Ct. App. 1995) 
and cases cited therein. The Indiana Supreme Court, however, recently explained that 
noncompliance with a statutory prerequisite implicates neither personal nor subject 
matter jurisdiction. Packard v. Shoopman, 852 N.E.2d 927 (Ind. 2006). This is because 
timeliness of a filing relates to neither the merits of the controversy nor the competence 
of the court to resolve it. Id. 

 Rather, I.C. 22-4-17-3 simply sets forth the statutory prerequisites to appeal an 
ALJ’s determination. Because this is a statutory prerequisite issue rather than a 
jurisdictional one, however, this issue can be waived or procedurally defaulted if not 
timely raised. Id. For example, in Packard, the Indiana Supreme Court concluded that 
the Clay Township Assessor waived any objection to the timeliness of Shoopman’s filing 
where the Assessor did not object to the timeliness of Shoopman’s complaint until more 
than a year after it had been filed. Id. 

 Here, however, the Review Board promptly objected to the untimeliness of 
Smith’s attempted appeal and his lack of compliance with the statutory prerequisite. 
Under these circumstances, the Review Board properly dismissed Smith’s untimely 
appeal. 

Judgment affirmed. 

BAKER, C.J., and CRONE, J., concur.