DIVISION III

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

E 00-249

March 7, 2001

BETTY J. HILL APPEAL FROM THE ARKANSAS

APPELLANT BOARD OF REVIEW

VS.

DIRECTOR, EMPLOYMENT

SECURITY DEPARTMENT REVERSED AND REMANDED

APPELLEE

Betty Hill appeals pro se from a decision of the Arkansas Board of Review which denied her unemployment benefits for the weeks ending March 18 and 25 and April 1, 2000. We conclude that the Board erred as a matter of law and reverse and remand.

Hill had been an employee of the Arkansas Employment Security Department and exhausted her regular unemployment insurance benefits during the week ending March 11, 2000. On March 13 she applied for "trade adjustment assistance" (TAA) which was one requirement to have made her eligible for TRA (Trade Readjustment Act) benefits. This is a federal program governed by the provisions of 20 CFR, 617.1 et seq. She was eventually approved for the program, but because the approval could not be backdated, she was ineligible for benefits under the federal regulations.

In the course of its opinion the Board said:

A finding of the elements of estoppel could prevent the claimant from being denied benefits due to actions of the Department, and the Board considered whether the facts herein should be "evaluated" with a view toward possibly applying estoppel. However, without precedent from the Court of Appeals indicating the availability of the doctrine of estoppel to essentially create a new right under a federal program, at this time the Board declines to further consider it. However, if the claimant appeals this case to the Court of Appeals by writing to it and indicating that she wants to appeal this matter, within the 20 days as described in the notice enclosed with this decision, and if the Court then remands this case back to the Board for consideration of the doctrine of estoppel, the Board notes that additional factfinding specifically in connection with estoppel may be appropriate.

Administrative agencies carry attributes of all three branches of government, legislative, executive, and judicial, and at various times they function in all three modes. In the case at bar the Board of Review is functioning in its quasi-judicial capacity. In that capacity it is charged with deciding both the facts and the law applicable to the case before it. While we understand the Board's reluctance to decide the applicability of the doctrine of estoppel in the face of an apparently applicable federal regulation, we certainly cannot decide that matter de novo on appeal.

The applicability of the doctrine of estoppel is frequently, as the Board suggested, a question of fact. But even if it were a question of law here, the Board should decide the matter in the first instance. There is no statutory procedure in this state to permit the administrative agency to "certify" a question of law to an appellate court. The situation here is somewhat similar to cases in which we have held that the Workers' Compensation Commission is obliged to make an initialdetermination on issues of constitutional law. See, e.g., Green v. Smith & Scott Hogging, 54 Ark. App. 53, 922 S.W.2d 746 (1996).

For the reasons stated this case is reversed and remanded to the Board of Review for further proceedings consistent with this opinion. Nothing we have said should be taken to intimate our view on the merits of the issue.

Reversed and remanded.

Stroud, C.J., and Neal, J., agree.