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A man, who lost his job to the coronavirus pandemic recession and been having trouble finding another one, seeks assistance from motorists in New Orleans.

A Louisiana judge on Thursday rejected a request for a preliminary injunction that would have required the state to resume participation in several federal pandemic unemployment programs.

Judge Timothy Kelley of the 19th Judicial District Court in Baton Rouge said Louisiana's decision to cut off jobless benefits for more than 150,000 residents amid the worst spike in COVID-19 to-date will undoubtedly cause "irreparable harm." But he wasn't convinced the case would be successful upon a full hearing. 

"I'm not happy with my decision but I think my decision is the legally correct one," Kelley said.

Ellyn Clevenger, an attorney for the plaintiffs, said they plan to appeal the ruling as soon as possible. 

Congress made the extra benefits available through Sept. 6. But Gov. John Bel Edwards, a Democrat, agreed to cut them off five weeks early as part of a deal with Republican lawmakers that also included permanently raising Louisiana’s unemployment benefits by about 11%, or $28 a week, beginning next year.

The federal programs included a $300-a-week boost to the state’s weekly unemployment payouts, which max out at $247 and rank among the lowest in the country.

Nearly 86,000 self-employed workers and gig workers who don't qualify for state aid lost their benefits early. And another 65,000 residents who have exceeded the state’s 26-week-long limit on unemployment benefits got the boot. 

A group of six unemployed women filed a lawsuit at the end of July arguing that neither Edwards nor the Louisiana Workforce Commission had the authority under state law to reject the federal benefits. The plaintiffs also argued that by zeroing in on the jobless benefits and not other federal programs like rental aid or business support, the state unfairly discriminated against unemployed residents. 

Similar lawsuits have been lodged in other states that ended benefits early, and some have succeeded. Judges in Indiana, Maryland and, most recently, Oklahoma, have ordered states to resume paying the benefits.

Ruling from the bench after a five-hour hearing, Kelley acknowledged that denying the preliminary injunction will create a “great deal of harm.” But he said he didn’t think the plaintiffs made a strong enough case that their arguments would succeed at trial. 

“I think they have shown irreparable harm,” Kelley said. “The problem is they haven’t shown a likelihood of success on the merits.”

Thursday’s hearing, held over Zoom, featured testimony from five of the plaintiffs. The audience following along online peaked at around 300 participants.

Felicia Walters, a plaintiff who lives in St. Tammany Parish, spoke about contracting COVID while working as a nurse. She continues to experience cardiac, cognitive and digestive issues as a “long-hauler,” and her doctor said she’s “too brittle” to reenter the workforce.

Lately, she’s taken to skimping on medications to save money.

“It’s literally a life-or-death situation for me,” Walters said. “There’s no way for me to make an income when the doctors won’t release me to work.”

Fellow plaintiff Courtney Rae Cook, a single mother of two from St. Bernard Parish, testified about losing her bartending gig on Bourbon Street when the pandemic struck. She’s applied for over 200 jobs and hasn’t had any success. Her lights are about to be cut off, and to make things worse, she’s now sick with COVID.

“I couldn’t take a job right now even if I was offered one,” Cook said.

Wendi Lee, another single mother of two, lost work as a substitute teacher in Caddo Parish schools when the state entered a lockdown. She’s applied to more than 100 jobs and only got one interview. She didn't get the job. 

She has just 16 cents in savings and doesn’t have the money to pay rent, let alone purchase back-to-school supplies for her children.

“I’m willing to take any kind of job,” Lee said. “I’ve been homeless and I don’t want it to happen again ... We'll be on the street. The shelters here are even full."

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Megan Ventress drove for Uber and Lyft in New Orleans before the pandemic shut down tourism. Back then, she could make $1400 over 25 hours. Now she nets between $30 to $40 a day delivering food for Door Dash. 

Ventress, a single mother to two daughters age 14 and 8, has about $62 to her name, and is beginning to receive delinquency notices on her electricity bills. 

"If we lose our lights, we lose our water. We have well water," said Ventress, who lives in Bush, out in rural St. Tammany Parish. Without the federal benefits, she said she will "definitely end up in a homeless shelter with my girls."

Autumn Young caught COVID three times while working as an emergency room physician. The infections battered her body. Her hair fell out. Her heart, spleen and liver are now enlarged. And she’s lost 40 pounds.

The 37-year-old said she’s been told by doctors she has anywhere from 12 to 18 months left to live. She recently qualified for a job in tele-health but it will take six weeks to get her license. 

“Nobody wants to hire anyone even doing the most mediocre, menial job when you have to come in saying, ‘Oh, by the way, I’m going to be in the hospital five days at a time every ten days’,” Young said. “I went from being financially secure to not being able to pay my light bill.”

Young said the next five weeks of benefits were "the only thing standing between me and the lights going out, figuratively and literally."

Kelley, who was elected to the 19th Judicial District Court in 1997, acknowledged throughout the hearing that his ruling would have far-reaching consequences for thousands of Louisianans.

“It does not escape the court that a retroactive application that would provide the funds might not be effective because some people need it now, not in three months,” Kelley said. “They still need to feed their kids.”

"This is a big deal. People are going to suffer because of this and I know it and I empathize with it," Kelley added later. 

The lawsuit argues that the decision to rescind the benefits early violates the Louisiana Employment Security Law, which governs how jobless benefits are administered. A section of that law states that officials "shall take take such action … to secure to this state and its citizens all advantages available under the provisions of the Social Security Act that relate to unemployment compensations."

Clevenger said the three federal programs that Louisiana jettisoned were created through the CARES Act but administered through the Social Social Security Act. Therefore, she said, the state is obligated to obtain them.

But Kellen Matthews, an attorney for the Louisiana Workforce Commission, said because the state's unemployment statute doesn't reference the CARES Act, there's no mandate to secure the benefits. 

Gary Jones, another attorney for the state, said the courtroom was not the place to "relitigate the policy judgements" of the governor and state Legislature. He said a preliminary injunction preserves the status quo, and at this point, the status quo is a cancelled program.

He said that you'd have to be "heartless not to be sympathetic" towards the women who testified, but said the "law is the law," urging the court against reinstating the benefits. 

Representing the plaintiffs, Clevenger said there was no "legitimate government purpose" in ending the federal programs early, saying there's no evidence to suggest the payments encouraged people to stay at home. In order to obtain unemployment benefits in Louisiana, she said, recipients must apply to at least three jobs a week. 

"How is it rational to take those benefits away but we're going to continue administering rental assistance payouts?" Clevenger said. 

The hearing featured an unusual amount of back-and-forth questioning between judge and attorney.

"This is a serious, serious issue," Kelley said. "It's such an important issue that we need to flesh it out."

Defending the state, Jones said the governor and Legislature ended the payments early to get people back to work. Clevenger called that a nonsensical argument, adding that "opinions are not data."

"The pandemic benefits were supposed to be a temporary solution. However, you don’t stop the benefits during the largest spike of COVID in the history of our state," said Wendy Manard, another attorney for the plaintiffs. "There's no rational basis between walking away from federal aid at a time when Louisiana needs it most in exchange for raising the state's unemployment benefits in the future."


Email Blake Paterson at bpaterson@theadvocate.com and follow him on Twitter @blakepater