Opinion
DOCKET NO. A-0035-10T3
08-23-2011
JOANNA WISE, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR, Respondent.
Joanna Wise, appellant pro se. Paula T. Dow, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Alan C. Stephens, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Waugh and Koblitz.
On appeal from the Board of Review, Department of Labor, Docket No. 261,057.
Joanna Wise, appellant pro se.
Paula T. Dow, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Alan C. Stephens, Deputy Attorney General, on the brief). PER CURIAM
Joanna Wise appeals the August 6, 2010 decision of the Board of Review (Board), Department of Labor, affirming the Appeal Tribunal decision requiring her to repay the full amount of benefits she received improperly, through no fault of her own, from the federal Emergency Unemployment Compensation Act of 2008, Pub. L. No. 110-252, § 4001, Title IV, 122 Stat. 2353 (June 30, 2008) (Act). After reviewing the record in light of the contentions advanced on appeal, we affirm.
The Act appears as a note to 26 U.S.C.A. § 3304, which it amends.
Wise worked for Sumitomo Trust and Banking Company in New Jersey earning an annual salary in excess of $80,000 until her separation in October 2007. She was then employed by KBC Financial Products in New York from October 22, 2007, until September 12, 2008. Wise, who resides in Hoboken, then filed a regular claim for unemployment benefits in New Jersey effective September 14, 2008. The claim established a base year of April 1, 2007 through March 31, 2008, a weekly benefit rate of $560 and a maximum benefit amount of $14,560. She received these benefits for twenty-six weeks until the claim was exhausted.
A Division of Unemployment and Disability Insurance (Division) employee told Wise she would be eligible for Emergency Unemployment Compensation (EUC) benefits. The employee processed such a request on behalf of Wise, who was found eligible as of March 15, 2009. She received a total of $14,000 at the same weekly rate of $560 until September 5, 2009, when her EUC claim was exhausted.
Wise was then instructed by a Division employee to file a regular unemployment claim in New York. She was awarded weekly benefits of $405 in New York retroactive to March 16, 2009, for thirty-five weeks.
On November 13, 2009, the Director of the Division of Unemployment issued a determination finding Wise ineligible for the $14,000 of EUC benefits she had received from March 21, 2009 through September 5, 2009. Wise then paid the Division $8748, the New York payments (after New York taxes were deducted) she received for the time period she received EUC payments, but appealed the requirement that she repay the additional $5250 in EUC benefits she had collected during that same time-frame.
The Appeal Tribunal affirmed the Director's determination and referred the matter to the Director for an initial determination of Wise's entitlement to a waiver under N.J.A.C. 12:17-14.2. The Board affirmed the Appeal Tribunal, and Wise appealed that decision to us on August 31, 2010.
The Director denied Wise's request for a waiver on September 7, 2010. Wise did not appeal this denial to the Appeal Tribunal.
Wise began a new full-time job January 25, 2010.
Wise raises the following issues on appeal:
POINT ONE
THE COURT SHOULD REVERSE THE DIVISION'S DECISION TO AFFIRM THE APPEALS TRIBUNAL'S DENIAL OF CLAIMANT'S APPEAL BECAUSE THE DIVISION FAILED TO FULLY CONSIDER THE EVIDENCE SUBMITTED.
POINT TWO
CLAIMANT JUSTIFIABLY RELIED UPON THE MISREPRESENTATIONS OF THE NEW JERSEY DEPARTMENT OF LABOR, UNEMPLOYMENT INSURANCE OFFICE TO HER DETRIMENT AND SHOULD NOT BE HELD LIABLE TO REPAY THE BALANCE OF HER OVERPAYMENT.
"An administrative agency's final quasi-judicial decision will be sustained unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." In re Herrmann, 192 N.J. 19, 27-28 (2007) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)).
As the Supreme Court noted in Herrmann, the "[t]hree channels of inquiry [that] inform the appellate review function" are:
(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have"When an agency's decision meets [these] criteria, then a court owes substantial deference to the agency's expertise and superior knowledge of a particular field." Ibid.
been made on a showing of the relevant factors.
[Id. at 28 (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]
The burden of proof rests upon Wise to establish her right to unemployment compensation. Brady v. Bd. of Review, 152 N.J. 197, 218 (1997). Pursuant to § 4003 of the Act, a participating state will receive one-hundred percent reimbursement from federal funds of the EUC paid to eligible individuals. Section 4001(b)(2) of the Act provides that EUC will be paid to individuals who have exhausted all rights to regular unemployment benefits under state law or under federal law in any benefit year that commenced after the week of May 1, 2007, who "have no rights to regular compensation or extended compensation . . . under. . . any other State . . . or Federal law . . . ."
Wise does not dispute that she did not qualify for the EUC benefits she received because she was eligible for unemployment benefits from New York when she received the EUC payments. Section 4005(b) of the Act provides that "[i]n the case of individuals who have received amounts of emergency unemployment compensation . . . to which they were not entitled, the State shall require such individuals to repay the amounts of such emergency unemployment compensation to the State agency, except that the State may waive repayment if it determines that - - (1) the payment of such emergency unemployment compensation was without fault on the part of any such individual; and (2) such repayment would be contrary to equity and good conscience." The New Jersey Unemployment Compensation Law (UCL) has consistent provisions. N.J.S.A. 43:21-16(d)(1); N.J.S.A. 43:21-16(d)(2)(B).
Wise argues that she is without fault, having followed the advice of misinformed Division employees, who submitted the EUC claim on her behalf. However, we have consistently held that repayment is required even if the ineligible recipient acted in good faith. Bannen v. Bd. of Review, 299 N.J. Super. 671, 674 (App. Div. 1997); Fischer v. Bd. of Review, 123 N.J. Super. 263, 266 (App. Div. 1973).
Wise argues that equity demands she not be obligated to pay the difference between the EUC benefits she inadvertently received and spent and the lesser New York benefits, which she has already repaid. Her equitable argument is persuasive and on the surface appears to meet the waiver of repayment standard set forth in N.J.A.C. 12:17-14.2(a)(3), which states that the Director may grant a waiver where "recovery of the overpayment. . . would be patently contrary to the principles of equity." Indeed, the Appeal Tribunal forwarded her matter to the Director explicitly for such a determination.
The Director denied the waiver, and Wise did not follow administrative procedures to appeal that denial. See N.J.S.A. 43:21-6(b)(1) (regarding the necessity of filing an appeal within ten days). Thus, this argument is not properly before us, although the Board did address the issue in its brief. We note that N.J.A.C. 12:17-14.2(d) defines what "patently contrary to the principles of equity" means in this context as follows:
For purposes of determining. . . whether the recovery of the overpayment would be "patently contrary to the principles of equity," the Director and Controller shall consider whether the terms of a reasonable repayment schedule would result in economic hardship to the claimant.Wise was directed to make repayment at the rate of fifty dollars per month, giving her more than eight years to repay the remaining $5250 in EUC benefits she improperly received and spent. Given that Wise fortunately has become reemployed, such a payment plan does not appear onerous. Consequently, even if the issue were properly before us, we would affirm the denial of an exemption.
Affirmed
I hereby certify that the foregoing is a true copy of the original on file in my office.
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CLERK OF THE APPELLATE DIVISION