A court ruling that Governor Mike DeWine must ask for unused federal benefits that have been set aside for hundreds of thousands of Ohioans has been put on hold.
Legally Speaking, this could make the case completely irrelevant, and could cost Ohioans more than $900 million.
On Monday, the same judge who ordered DeWine to seek Federal Pandemic Unemployment Compensation (FPUC) funds agreed with the governor, saying the state is entitled to a stay, or pause, on the order while it is appealed.
Attorney Marc Dann, who is pursuing the money on behalf of 330,000 Ohioans, is attempting to circumvent this stay in two ways.
Dann’s first move is to file a motion for an injunction with the 10th Circuit Court of Appeals, which would affirmatively order DeWine to seek this money.
“So a stay is limited to stopping some behavior, which is what the Court of Common Pleas judge ordered,” Dann informed the audience. The Court of Appeals, however, has the authority to order him to perform the act affirmatively. And the act is neither complicated nor difficult.
“It’s to send a letter to the Department of Labor saying, ‘Please start the process of moving those 10 weeks of unpaid pandemic unemployment funds to Ohio,’ so that if and when the courts decide they’re entitled to it, we’ll have it available to distribute to the Ohioans I represent.
“The motion for injunction will be fully briefed on Monday, March 3. “At that point, the Court of Appeals will be able to rule.”
The second option is to appeal the stay order, which could take months to be heard in court.
“Maybe we can get the entire appeal disposed of within 30 or 60 days,” Dann told me. “If we’re lucky, by that time, Congress won’t have re-appropriated the money.”
However, Congress has the authority to reappropriate the funds at any time, rendering this lawsuit moot.
“All we want is to secure the money so that it doesn’t go to some other federal government purpose, like, you know, supporting a tax cut for rich people or go to other states, frankly,” Dann told reporters.
When I asked DeWine’s spokesperson for comment on the concern about the money being put to other uses before this case is settled, Dan Tierney responded:
“We will not be trying the case in the news media… [T]o the extent your question is about an argument that would have been filed by plaintiff’s counsel after yesterday’s stay, we will reply in court.”
Previously, the governor explained his refusal of the funds as a policy decision. That decision left nearly $1 billion in unused pandemic unemployment assistance funds for Ohioans sitting in a DOL account.
The Ohioans who stand to benefit from this decision are eager to get their hands on the money they would have received in 2021 if the state had not opted out of receiving it from July to September that year.
“The extra pandemic money from the federal government was a lifeline,” Candy Bowling, the named plaintiff in the lawsuit, told 3News Investigates last October.
“I only got like $300 from the state and I was used to bringing in over $600 a week, so it wasn’t really even half of what I was making before (becoming unemployed during the COVID-19 pandemic).”
The federal unemployment assistance at issue in this lawsuit was part of pandemic relief efforts, providing unemployed Ohioans with an additional $300 per week until the state stopped accepting it.
“When the governor announced he was going to cut that off, it just kind of angered me,” Bowling told the press. “Why would you reject federal government assistance intended to benefit the people and state of Ohio?
I mean, it not only helps people pay their bills, buy food, and get prescriptions, but it also helps businesses stay open.”
In October, 3News Investigates asked DeWine’s office why he would refuse to accept the money appropriated for Ohioans, to which his press secretary responded:
The referenced time period, July 2021 to September 2021, occurred after the pandemic emergency ended. In recent years, including those under consideration, Ohio has had more open jobs than workers to fill them.
Providing emergency supplemental benefits long after the conditions that required them had passed was sending the wrong message when Ohio was open for business.”
Dann claimed that argument was never valid.
“Judge Holbrook validated our contention that Governor DeWine and ODJFS were required by Ohio law to accept and distribute the FUPC payments to Ohioans devastated by COVID-19,” Dann stated on February 12, referring to the trial court’s order directing DeWine to request the funds.
“The Governor’s decision to deny federal assistance to families in crisis was arbitrary, unconscionable, and illegal.” We sincerely hope that he will now fulfill his obligation to obey the law without delay.”
Ohio law changed in October 2023 to clarify that the state is not required to accept federal benefits, particularly those related to coronavirus relief efforts. A provision was added to Ohio Revised Code Section 4141.43, which reads, in relevant part:
“(2) Nothing in division (I)(1) of this section requires or prohibits the director from ceasing to participate in any voluntary, optional, special, or emergency program offered by the federal government, including programs offered under any of the federal acts listed in division (I)(1) of this section, the ‘Coronavirus Aid, Relief, and Economic Security Act,’ 15 U.S.C. 9023, or any other federal program enacted to address exceptional circumstances.
When asked if the ongoing lawsuit was related to the change in law, DeWine’s spokesperson said in October, “I must decline comment on the pending litigation.”
Dann Law attorney Brian Flick previously told 3News Investigates that the change in law only strengthened their clients’ case, emphasizing that the law prior to the change did not allow the state to refuse the funds in question.
According to Dann, Holbrook’s ruling will result in approximately $900,000,000 in FPUC benefits for eligible Ohioans.
“The payments will both enable people still reeling from the effects of the pandemic to rebuild their lives and significantly boost the state’s economy,” he told reporters.
“We’ve never understood why the Governor would keep nearly a billion dollars in a Washington, D.C. account rather than allowing it to flow into Ohio’s 88 cities, townships, and villages, where it would boost local business sales and generate tax revenue. Aside from being cruel, refusing funds made no economic sense.
The plaintiffs’ lawyer tells me he hopes the governor changes his mind and requests the funds, which he can do at any time.
“If he were to get up in the morning and realize that $3,000 was a lot of money to the 330,000 people who are eligible for that and that they could help them pay their bills or pay for daycare or pay for eggs, he could do that tomorrow,” Dann told reporters. “I’m hoping every morning that he wakes up and that’s exactly what he thinks.”
That’s unlikely, however, because DeWine’s spokesperson said the governor’s office agreed with the decision to put the order to request the money on hold pending the outcome of the state’s appeal.
