WADIE K. BOLOUS v. BOARD OF REVIEW, BUREAU OF CENSUS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

WADIE K. BOLOUS,

Appellant,

v.

BOARD OF REVIEW, BUREAU

OF CENSUS and AUTOMOTIVE INVESTMENT GROUP,

Respondents.

October 28, 2013

Submitted October 7, 2013 - Decided

Before Judges Parrillo and Kennedy.

On appeal from the Board of Review, Department of Labor, Docket No. 315,447.

Wadie K. Bolous, appellant pro se.

John Jay Hoffman, Acting Attorney General of New Jersey, attorney for respondents (Lisa N. Lackay, Deputy Attorney General, on the brief).

Respondents Bureau of Census and Automotive Investment Group, have not filed a bried.

PER CURIAM

Appellant Wadie Bolous appeals from a final determination of the Board of Review holding him ineligible for Emergency (Extended) Unemployment Compensation (EUC) benefits pursuant to the Federal-State Extended Unemployment Compensation Act, 26 U.S.C.A. 3304 note, (Act), on the ground that he did not establish sufficient base weeks of wages or total earnings during his base year to qualify. We affirm.

On April 25, 2010, Bolous was hired by the Census Bureau as an enumerator. Due to the nature of this position, his employer would extend the duration of his employment without a definite end date. During his employment, Bolous was informed by the Census Bureau that his position would end on August 15, 2010. That same day, Bolous filed a claim for regular unemployment compensation benefits, establishing a weekly benefit rate of $304.00 with a maximum benefit amount of $5,168.00. Bolous also established a base year of October 1, 2009 through August 14, 2010, during which he had seventeen base weeks of employment and earned $8,091.84.

According to Bolous, after he filed his unemployment claim on August 15, 2010, he was called back to work for the Census Bureau for two weeks, until August 28, 2010. In any event, Bolous started collecting unemployment benefits, having received a partial benefit of $187.00 for the week ending August 21, 2010, while he was working for the Census Bureau.1

After exhausting his benefits under his regular unemployment entitlement, Bolous filed for EUC benefits. Under the Act, eligible individuals may receive the lesser of "thirteen times the individual's average weekly benefit amount for the benefit year" or "50 percent of the total amount of regular compensation . . . payable to the individual during the individual's benefit year. . ." Pub. L. No. 110-252, 4002(b), Title IV, 122 Stat. 2323, 2354-55 (2008). Significantly, however, Section 4001 (d)(2) of the Act states in part as follows:

the terms and conditions of the State law which apply to claims for regular compensation and to the payment thereof shall apply to claims for emergency unemployment compensation and the payment thereof, except --

(A) that an individual shall not be eligible for emergency unemployment compensation under this title unless, in the base period with respect to which the individual exhausted all rights to regular compensation under the State law, the individual had 20 weeks of full-time insured employment or the equivalent in insured wages, as determined under the provisions of the State law implementing section 202(a)(5) of the Federal-State Extended Unemployment Compensation Act of 1970 (26 U.S.C.A. 3304 note).

[Pub. L. No. 110-252, 4001(d)(2)(A), supra, 122 Stat. at 2354.]

Further, Section 202(a)(5) of the Act states that "the equivalent in insured wages shall be earnings covered by the State law for compensation purposes which exceed 40 times the individual's most recent weekly benefit amount. . ." (emphasis added).

Thus, to qualify for EUC benefits, Bolous must demonstrate that he had twenty weeks of full-time employment with sufficient gross wages earned each week during his base year, or lacking such, Bolous could demonstrate, in the alternative, that he earned total wages equaling forty times his weekly rate of $304.00, or $12,160.00, during his base year.

On December 20, 2010, a deputy director of the Division of Unemployment and Disability Insurance in the Department of Labor and Workforce Development (Division) denied Bolous' claim, finding him not eligible for EUC benefits. Bolous filed an administrative appeal and on January 29, 2011, the Appeal Tribunal affirmed the Division's decision, determining that Bolous failed to establish either twenty weeks of employment during the base year or that he earned forty times the weekly benefit rate during the base year. Bolous appealed to the Board of Review, who affirmed the determinations below based on the same reasoning.

This appeals follows.

Bolous contends that his application for EUC benefits should have been granted because he satisfied the twenty weeks of employment requirement to be eligible for these benefits. Specifically, he argues that although he filed for regular unemployment compensation on August 15, 2010, he was unexpectedly called back to work and recorded additional time that should be credited to his EUC application. Further, Bolous contends that after he was notified by the Census Bureau that he could continue work until the end of August, he contacted the unemployment insurance agent to cancel his claim, but the agent refused to do so. We find these arguments unpersuasive.

Our scope of review of an agency's decision is limited. Campbell v. Dep't of Civil Serv., 39 N.J.556, 562 (1963). In challenging the agency's determination, the appellant carries a substantial burden of persuasion, and the conclusion by the administrative agency carries a strong presumption of reasonableness. Gloucester Cnty. Welfare Bd. v. State Civil Serv. Comm'n, 93 N.J. 384, 390 (1983). We also "accord substantial deference to the [interpretation] given to a statute by the agency charged with enforcing that statute." Bd. of Educ. v. Neptune Twp. Educ. Ass'n, 144 N.J. 16, 31 (1996). We will reverse the agency's decision only if we find that "it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); see alsoNew Jersey Guild of Hearing Aid Dispensers v. Long, 75 N.J.544, 562-63 (1978).

Here, The Appeals Tribunal addressed Bolous' contentions directly and found that although he worked up until the end of August, he filed his unemployment claim on August 15, 2010 and collected partial benefits for the week of August 21st and full benefits for the week of August 28th. More to the point, the Appeals Tribunal reasoned that August 15, 2010 was the established claim date and that it could not be changed because Bolous already collected all the benefits from that date. On this score, as established by N.J.A.C. 12:17-4.2, "[t]he effective date of an initial claim for [unemployment] benefits is the Sunday of the week in which the [applicant] first reports to claim benefits. The effective date of the initial claim establishes the period of time during which wages may be used to determine monetary eligibility."

Here, Bolous failed to meet the required employment weeks or total earnings during the base year to be eligible for EUC benefits. Specifically, at the time Bolous filed his initial application for regular unemployment compensation, he only recorded seventeen base weeks of employment and a total wage earnings of $8,091.84 for the base year. As noted, in order to be eligible for EUC benefits under the Act, Bolous would have to establish either twenty base weeks of employment or total earnings of $12,160.00 during the base year, which is forty times his weekly benefit rate of $304.00. Pub. L. No. 110-252, 4001(d)(2)(A), supra, 122 Stat. at 2354. Because Bolous was unable to meet either of these two requirements, the Board properly denied his claim for extended benefits.

Even if Bolous was credited with the additional time he worked after the filing of his initial claim, he still would not have met the total employment weeks or earnings requirements for extended benefits. Regarding his total base weeks, crediting Bolous the weeks from the date of his initial claim until the end of August would put him at nineteen weeks, which is still insufficient under the Act. Further, since Bolous made $8,091.84 during seventeen weeks of working with the Census Bureau it is unlikely that he would have earned $4,068.16 in those additional two weeks to satisfy the total earnings requirement of $12,160.00. Also, as the examiner for the Appeals Tribunal pointed out, Bolous did not report any earning for the week of August 28, 2010.

Concerning Bolous' claim that an agent at the unemployment office advised him not to withdraw his claim for regular unemployment benefits, we simply note that this issue was not raised before the Appeals Tribunal or the Board of Review and therefore should not be considered on appeal. State v. McGraw, 129 N.J.68, 81 (1992); Nieder v. Royal Indem. Ins. Co., 62 N.J.229, 234 (1973); R.2:6-2. In any event, as discussed above, filing a late claim would not have changed the result.

1 Apparently, Bolous also received full unemployment benefits on September 12, 2010 for the week ending on August 28, 2010, but no earnings for that week were reported.