ALAN R. WITTE v. BOARD OF REVIEW DEPARTMENT OF LABOR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2326-10T1

ALAN R. WITTE,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR,

Respondent.

____________________________________________

April 11, 2012

Submitted March 20, 2012 - Decided

Before Judges Simonelli and Hayden.

On appeal from the Board of Review, Department of Labor, Docket No. 265,532.

Alan R. Witte, appellant pro se.

JeffreyS. Chiesa,Attorney General, attorney for respondent(Lewis A.Scheindlin, Assistant AttorneyGeneral, ofcounsel; AlanC. Stephens, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Alan R. Witte appeals from the October 28, 2010 final decision of respondent Board of Review, which affirmed the decision of the Appeals Tribunal that Witte must refund $14,560 in Emergency Unemployment Compensation (EUC) benefits because he was paid these benefits when he was not eligible to receive them. Based upon the record and the applicable law, we affirm.

The essential facts are not in dispute. Witte filed a claim for unemployment compensation benefits on November 16, 2008, and received benefits of $560 per week until May 16, 2009, when the claim was exhausted. Approximately three months after starting to receive benefits, Witte applied for and was approved to receive training and benefits under the Self-Employment Assistance and Entrepreneurial Training Act (SEA), N.J.S.A. 43:21-67 to -71. SEA benefits are paid in lieu of unemployment compensation to individuals seeking to "establish small businesses and become self-employed entrepreneurs." N.J.S.A. 43:21-68. Witte attended the training program from February 9 through March 24, 2009 and he received weekly SEA benefits of $560 during that period.

On May 16, 2009, Witte had exhausted his SEA benefits. Thereafter, the Division of Unemployment and Disability Insurance (the Division), notified Witte that he was eligible for EUC benefits under the federal Emergency Unemployment Compensation Act of 2008 (EUCA), Pub. L. No. 110-252, 4001, Title IV, 122 Stat. 2323 (June 30, 2008).1 Witte collected EUC benefits in the amount of $560 per week through November 14, 2009. Meanwhile, after completing his SEA training in March 2009, Witte started a computer consulting business and devoted between sixty to eighty hours per week to fostering its growth while he received the EUC benefits.

On December 21, 2009, the Division determined that Witte was ineligible for EUC benefits from May 17, 2009, because he had been unavailable for work, N.J.S.A. 43:21-4(c)(1), and that he must pay back the benefits he received, N.J.S.A. 43:21-16(d). Witte appealed to the Appeals Tribunal, which, after a hearing, determined in a written decision dated May 11, 2010, that he had not been eligible for EUC benefits. At the hearing, Witte conceded that during the period at issue he was neither available for work nor actively seeking work. Witte then appealed to the Board of Review, which affirmed the decision on October 28, 2010. This appeal followed.

On appeal, Witte contends that the SEA exemption from seeking work is not limited to SEA benefits, but extends to EUC benefits as well. He also argues that the Division should waive recovery of his EUC benefits pursuant to N.J.A.C. 12:17-14.2 because repayment would be inequitable and would constitute a hardship to his growing business. In opposition, the Board contends that while Witte was eligible for an exemption of the work requirement under the SEA program, he was required to be available for work to receive EUC benefits, and since he was not, he was not eligible for those benefits.

Our review of administrative agency decisions is limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We must give due regard to the expertise of the agency, Ford v. Bd. of Review, 287 N.J. Super. 281, 283 (App. Div. 1996), and an agency's construction of a statute "in recognition of the agency's expertise in the field." TAC Assocs. v. N.J. Dep't of Envtl. Prot., 202 N.J. 533, 544 (2010). Unless the agency's action "was arbitrary, capricious, or unreasonable, the agency's ruling should not be disturbed." Brady, supra, 152 N.J. at 210.

There is no dispute here that Witte was exempt from the work requirement while receiving SEA benefits. N.J.S.A. 43:21-67; N.J.A.C. 12:17-18.2(a)2. However, he exhausted his SEA benefits on May 16, 2009. In order to be eligible for EUC benefits, federal law requires an individual to meet all terms and conditions for the payment of regular unemployment compensation under State law. EUCA 4001(d)(2). In New Jersey, one of the terms and conditions for receipt of regular unemployment compensation is that "the individual is able to work and is available to work and has demonstrated to be actively seeking work." N.J.S.A. 43:21-4(c)(1). In addition, the Division emphasized this requirement for former SEA participants by issuing instructions pursuant to a directive from the United States Department of Labor that participants in the SEA program were eligible for EUC benefits only if their benefits were exhausted, they were no longer self- employed, and they were able, available, and seeking work. Division of Unemployment and Disability Insurance, UIM No. 0971, Supplement 6 (2008).

Consequently, we are satisfied that in order to be eligible for EUC benefits, Witte was required to be available and actively seeking work. However, unaware that he was no longer exempt from the work requirement, Witte was spending sixty hours a week working at his own business, and he admitted that he was not available for or actively seeking work. Hence, we agree with the Board's decision that Witte received EUC benefits for which he was not eligible and, therefore, must repay those benefits.

Witte maintains that he did not comprehend that the exemption provided by the SEA program ended when his SEA benefits, paid in lieu of his regular unemployment benefits, were exhausted. Accordingly, he argues, he should not be "penalized" for what was, at most, an honest mistake. We must reject this contention. N.J.S.A. 43:21-16(d) provides that a person is liable to repay in full any benefits to which he or she is not entitled, however blameless the recipient may have been. Full repayment of benefits is required from anyone "who, for any reason, regardless of good faith, was not actually entitled to those benefits." Bannan v. Board of Review, 299 N.J. Super. 671, 674-75 (App. Div. 1997). We have recognized that recovery of such benefits clearly serves the public interest. Ibid.

Nevertheless, we recognize that the Director may waive repayment where recovery would be contrary to the principles of equity. N.J.A.C. 12:17-14.2(a)(3). While Witte submits that he should be granted a waiver from repayment, the record is devoid of any indication that he has applied to the Director for one. We note that nothing in this opinion prevents Witte from applying to the Director for a waiver pursuant to N.J.A.C. 12:17-14.2(a)(3).

Absent a waiver, for which Witte has not yet applied, this record fully supports the Board's decision that Witte must repay the 2009 EUC benefits, in the amount of $14,560, for which he was not eligible. Accordingly, we affirm the decision of the Board.

A

1 The Act appears as a note to 26 U.S.C.A. 3304, which it amends.