DILLON BOVA PAQUIN v. BOARD OF REVIEW DEPARTMENT OF LABOR and UNITED STATES NAVY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DILLON BOVA PAQUIN,

Appellant,

v.

BOARD OF REVIEW,

DEPARTMENT OF LABOR and

UNITED STATES NAVY,

Respondents.

________________________________________________________________

February 5, 2016

Submitted January 26, 2016 Decided

Before Judges Espinosa and Rothstadt.

On appeal from the Board of Review, Department of Labor, Docket No. 00017693.

Law Offices of Peter C. Lucas, LLC, attorneys for appellant (Kristin M. Potter, on the briefs).

John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Melissa H. Raksa, Assistant Attorney General, of counsel; Benjamin H. Zieman, Deputy Attorney General, on the brief).

Respondent United States Navy joins in the brief of respondent Board of Review, Department of Labor.

PER CURIAM

Dillon Bova Paquin appeals from the final decision of the Department of Labor's (Department), Board of Review's (Board) affirming the Appeal Tribunal's dismissal of his appeal from the Department's Deputy Director's determination that he was not qualified for unemployment benefits. The Appeal Tribunal dismissed the appeal because it was untimely.

On appeal, Paquin contends the Board improperly affirmed the dismissal of his appeal because "the circumstances which caused [his] late filing were outside of his control and thus constituted good cause." The Board disagrees, contending that Paquin's appeal was properly dismissed in accordance with N.J.S.A. 43:21-6(b)(1).

We have considered the parties' arguments in light of our review of the record and applicable legal principles. We affirm.

The facts are not disputed and can be summarized as follows. Paquin served his country with honor as a serviceman with the United States Navy until December 2013, when he was discharged. He subsequently enrolled in community college as a full-time student and applied for unemployment benefits. On February 3, 2014, the Deputy Director issued a determination that Paquin was not qualified for benefits because he was a full-time student. Paquin filed an appeal from the determination on March 18, 2014 while at a Division of Unemployment's office. He stated on the appeal form his reason for appealing was "because [he] was denied for school criteria, and could not work because of school [but n]ow [he was] able to work as well as go to school."

On July 18, 2014, an appeals examiner for the Appeal Tribunal conducted a hearing by telephone in which Paquin participated without counsel.1 At the hearing, the appeals examiner addressed Paquin's delay in filing his appeal. Paquin confirmed that he received the Deputy Director's notification by February 8, 2014, and read the appeal instructions stated in it, which required an appeal to be filed within ten days of the notice's mailing date. Paquin explained why he failed to file an appeal until five weeks later, on March 18, 2014. He stated

I was just busy with school,[2] and I was trying to understand why . . . I was . . . not accepted for . . . unemployment. And I went back to the local office and I talked to someone about it, and that s when I filed an appeal.

In response to further questioning, Paquin confirmed that the delay in his filing was, as stated by the claims examiner, "basically because there was school at that time."

After the appeals examiner considered Paquin's testimony, the Appeal Tribunal issued a written decision on the same day dismissing Paquin's appeal as untimely. The appeals examiner found that, Paquin failed to file a timely appeal because he "was busy with school." He cited to N.J.S.A. 43:21-6(b)(1), which requires that appeals be filed within ten days of a determination's mailing, or seven days of a claimant's receipt. Applying the statute, the appeals examiner observed that Paquin's appeal was filed five weeks after receipt and the delay was attributable only to "claimant's involvement with his community college." He concluded by dismissing Paquin's appeal because it was not filed in time, and Paquin's reasons for filing late did not "reflect good cause."

Paquin appealed the Appeal Tribunal's decision to the Board. In a written statement accompanying his appeal, Paquin disavowed the explanation he gave to the appeals examiner for the delay in filing his original appeal. He now stated

At the time when [the appeals examiner] asked why I did not file my first appeal during the 10 day period, I had misunderstood the question and told him I was in school full time. The reason why I did not file my first appeal within the 10 day period is because I was told to do something I could not do. After multiple attempts to contact someone from the unemployment call center, being disconnected and being on hold for hours had occurred. Once I had finally spoken with someone they had told me since my application for benefits was declined I had to open a new claim.[3] After that I had called the unemployment call center, dealing with many different people who told me many different things, I had decided [that] I would like to speak to someone face to face. That is when I went to the unemployment office in Neptune, N.J. The man I worked with there was very helpful, and told me I could not file another claim but have to file an appeal. This is when my appeal process started. That is why I was unable to file an appeal within the 10 day period.

The Board considered Paquin's appeal, but, on September 9, 2014, issued a written decision affirming the Appeal Tribunal's finding that Paquin's appeal was untimely and therefore properly dismissed.

This appeal followed.

Our review of decisions by administrative agencies is limited, with claimants carrying a substantial burden of persuasion. See In re Stallworth, 208 N.J. 182, 194 (2011). "In order to reverse an agency's judgment, an appellate court must find the agency's decision to be 'arbitrary, capricious, or unreasonable, or [] not supported by substantial credible evidence in the record as a whole.'" Ibid. (alteration in original) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980)). "[I]f substantial evidence supports the agency's decision, 'a court may not substitute its own judgment for [that of] the agency's even though the court might have reached a different result." In re Carter, 191 N.J. 474, 483 (2007) (quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)).

In considering the evidence, "the reviewing court should give 'due regard to the opportunity of the one who heard the witnesses to judge . . . their credibility.'" Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). "[I]t is not for us or the agency head to disturb [a] credibility determination, made after due consideration of the witnesses' testimony and demeanor during the hearing." H.K. v. State, 184 N.J. 367, 384 (2005). However, "we are 'in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue.'" Utley v. Bd. of Review, Dep't of Labor, 194 N.J. 534, 551 (2008) (quoting Mayflower Sec. Co. v. Bureau of Sec. in Div. of Consumer Affairs of Dep't of Law & Pub. Safety, 64 N.J. 85, 93 (1973)).

Applying these principles, we conclude the Board's decision was correct and "supported by sufficient credible evidence on the record as a whole," R. 2:11-3(e)(1)(D), and we affirm, essentially for the reasons stated by the Board in its written decision. We only add the following comments.

"[T]he right to unemployment compensation benefits is purely statutory." Lowden v. Bd. of Review, 78 N.J. Super. 467, 469 (App. Div. 1963). N.J.S.A. 43:21-6(b)(1) requires that an appeal from initial determination be filed "within seven calendar days after delivery . . . or within 10 calendar days after such notification was mailed" to a claimant. However, the filing deadline is not jurisdictional, Rivera v. Bd. of Review, 127 N.J. 578, 586 (1992), so an untimely appeal will "be considered on its merits if it is determined that the appeal was delayed for good cause." N.J.A.C. 12:20-3.1(i).

The good cause exception to the strict application of the appeal period, ensures "that those who have a right to appeal are afforded the time to exercise that right." Rivera, supra, 127 N.J. at 590; see also Garzon v. Bd. of Review, 370 N.J. Super. 1, 5 (App. Div. 2004). Good cause exists where: "1. [t]he delay in filing the appeal was due to circumstances beyond the control of the appellant[] or 2. [t]he appellant delayed filing the appeal for circumstances which could not have been reasonably foreseen or prevented." N.J.A.C. 12:20-3.1(i).

We are not persuaded by either of Paquin's reasons that good cause existed for his late filing. His explanations did not establish his delay was due to circumstances beyond his control or caused by reasonably unforeseen circumstances. Neither his preoccupation with school, about which he testified under oath, nor his attempt to secure assistance from unidentified Division call center or local office employees, justified his waiting five weeks to file, especially in light of his failure to explain why it took him that long to go to the local office to secure help, other than his preoccupation with school. Moreover, his written statement filed with the Board did not dispute, as Paquin testified, that he received the original denial, read the instructions on how to appeal, and then failed to so for an extended period. Paquin never testified or claimed that any Division representative told him he could wait to file his appeal beyond the period stated in the Deputy Director's notice of determination.

As Paquin failed to establish "good cause" for his delay, we have no reason to disturb the Board's decision in this matter.

Affirmed.

1 This was actually the second time a hearing had been scheduled. Paquin failed to appear at the first hearing and when his appeal was dismissed he successfully petitioned on June 16, 2014 to reinstate his appeal, which resulted in the scheduling of a new hearing.

2 Paquin explained that he was registered as a full-time student at Brookdale Community College and had classes four days a week, leaving the weekend - beginning on Friday - free for him to work, as well as weekdays at night.

3 There is no evidence in the record that Paquin ever filed or even attempted to file a new claim.