THOMAS R. PACKER v. BOARD OF REVIEW, DEPARTMENT OF LABOR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

THOMAS R. PACKER,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR, and RIGGS DISTLER

AND CO., INC.,

Respondents.

_______________________________

November 9, 2016

Argued September 15, 2016 Decided

Before Judges Hoffman and Whipple.

On appeal from Board of Review, Department of Labor, Docket No. 00010121.

Thomas Packer, appellant, argued the cause pro se.

Anthony DiLello, Deputy Attorney General, argued the cause for respondent Board of Review (Christopher S. Porrino, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. DiLello, on the brief).

Respondent Riggs Distler and Co., Inc., has not filed a brief.

PER CURIAM

Thomas Packer (claimant) appeals an August 7, 2014 final decision of the Board of Review (Board), Department of Labor, finding him liable for a refund of $18,698 pursuant to N.J.S.A. 43:21-16(d) and N.J.A.C. 12:17-14. We affirm.

On July 29, 2012, claimant filed for unemployment benefits in New Jersey after his New Jersey employer went out of business. He collected benefits from New Jersey through December 14, 2012. He was subsequently employed in New York, with a different employer, for six weeks, commencing December 15, 2012 and ending February 1, 2013. He was laid off again. In addition to his benefits in New Jersey, claimant filed for and received benefits in New York for the period from March 24, 2013 until December 29, 2013, receiving $13,151.44.

Claimant went to his unemployment office in New Jersey, explained he had been employed in New York, and asked what he should do going forward to collect benefits. He was advised to continue to collect in New Jersey and was told he would receive notification when his New Jersey benefits were exhausted. After exhausting his claim for regular New Jersey benefits, he was notified he was eligible for Emergency Unemployment Compensation (EUC) benefits, pursuant to the Emergency Unemployment Compensation Act of 2008 (the Act) Pub. L. No.110-252, 4001-07, Title IV, 122 Stat. 2323, 2353-57 (2008), and received benefits totaling $18,698. Unsure whether he was entitled to this benefit, claimant called the unemployment office and again advised representatives he had worked in New York. He was advised if he received notification he was eligible, then he should continue to collect. In November of 2013, shortly before the New Jersey benefits were to end, claimant contacted the unemployment office asking for guidance and was told he should not have been collecting through New Jersey, and his benefits were to be terminated. Claimant was advised he would be responsible to pay back New Jersey the over payment received under the EUC benefits.

On January 13 2014, claimant received a Request for Refund of Unemployment Benefits from the Director of Unemployment Insurance (Director), stating claimant had not been eligible for EUC benefits as he had worked in New York and was responsible to pay back the New Jersey EUC benefits totaling $18,698. Claimant appealed.

On April 14, 2014, after a telephone hearing, an Appeals Tribunal affirmed the Director's determination and found claimant liable for the full amount, but the receipt of benefits was reclassified as "Agency Error" to mitigate collection efforts. Claimant appealed to the Board, which affirmed the Appeal Tribunal's decision. This appeal followed. At oral argument we were advised by claimant he had repaid the entire amount, mistakenly believing he was compelled to do so in order to proceed with his appeal. Repayment renders this matter moot; however, we add the following comments.

This court has a limited role in reviewing administrative agency decisions. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We will not overturn such decisions unless they are "arbitrary, capricious or unreasonable" or "not supported by substantial credible evidence in the record as a whole." Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 71 (1985); Gloucester County Welfare Bd. v. N.J. Civ. Serv. Comm'n, 93 N.J. 384, 391 (1983). We defer to the fact-finding of administrative agencies. Doering v. Bd. of Review, 203 N.J. Super., 241, 245 (App. Div. 1985). In this appeal, claimant argues pursuant to N.J.A.C. 12:17-14.3, New Jersey's recovery should be reduced to fifty percent due to the Division's error. He is correct, but he is not entitled to a reduction of the repayment amount, as he is not entitled to additional relief.

As an initial matter, under the Act, EUC benefits are paid to individuals who have exhausted all rights to regular unemployment benefits under federal or state law in any benefit year that commenced after May 1, 2007, and who "have no rights to regular compensation or extended compensation . . . under . . . any other State . . . or . . . Federal law." Pub. L. No. 110-252, 4001(b)(1) -(2), Title IV, 122 Stat. 2323, 2353. Appellant did not qualify for EUC benefits because he was eligible for and received regular unemployment benefits from New York. Federal law requires individuals to repay the State when they receive EUC benefits to which they are not entitled. Id. 4005(b). Similarly, the New Jersey Unemployment Compensation Law mandates a full refund when the Division determines that any person, whether

(i) by reason of the nondisclosure or misrepresentation by him or by another of a material fact . . . or (ii) for any other reason, has received any sum as benefits. . . while he was disqualified from receiving benefits, or while otherwise not entitled to receive such sum as benefits.

[N.J.S.A.43:21-16(d)(1).]

In Bannan v. Board of Review, 299 N.J. Super. 671, 674 (App. Div. 1997), we held full repayment of benefits is required from anyone "who, for any reason, regardless of good faith, was not actually entitled to those benefits." Recovery of such benefits "furthers the purpose of the unemployment compensation laws[,]" and we emphasized the Unemployment Trust Fund must be preserved "for the payment of benefits to those individuals entitled to receive them." Ibid. We stressed, "[t]he public interest clearly is not served when the Unemployment Trust Fund is depleted by the failure to recoup benefits erroneously paid to an unentitled recipient, however blameless he or she may have been." Ibid.

We also acknowledged any resulting hardship suffered by some claimants who are required to repay benefits is unfortunate, but recoupment is required for the preservation of "the ongoing integrity of the unemployment compensation system." Id.at 675. "[F]ederal law requires that a state recover improperly paid unemployment compensation benefits." Ibid. Thus, claimant was liable to refund the EUC benefits he improperly received regardless of whether he acted in good faith or whether the agency was at fault for the overpayment.

Here, the Deputy Director reclassified the receipt of benefits as "Agency Error." Pursuant to N.J.A.C. 12:17-14.3, a payment of benefits for which a waiver of recovery is not granted must be repaid in full. Any individual with an outstanding overpayment who subsequently becomes entitled to benefits shall have such benefits offset by the debt until the debt is repaid in its entirety. However, for any claimant whose overpayment is determined to be the sole result of the Division s error, the amount is limited to fifty percent of the claimant's weekly benefit rate for each week of benefits subsequently claimed. That means had plaintiff not repaid the amount in full, the only collection effort the State would have been permitted to undertake to recoup the refund would have been to retain fifty percent of any future unemployment benefits until the entire debt is repaid.

Accordingly, we discern no error on the part of the Board in affirming the decision of the Appeal Tribunal, and decline to disturb its determination.

Affirmed.