JUDITH SAMUEL v. BOARD OF REVIEW DEPARTMENT OF LABOR and PORT AUTHORITY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1501-09T1

JUDITH SAMUEL,

Appellant,

v.

BOARD OF REVIEW,

DEPARTMENT OF LABOR,

and PORT AUTHORITY,

Respondents.

____________________________________________________

December 2, 2010

Submitted November 3, 2010 - Decided

Before Judges Messano and Waugh.

On appeal from the Board of Review, Department of Labor, Docket No. 224,081.

Judith Samuel, 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).

Respondent Port Authority has not filed a brief.

PER CURIAM

Judith Samuel appeals from the final order of the Board of Review (the Board) affirming the decision of the Appeals Tribunal (the Tribunal) that dismissed as untimely her appeal of the denial of unemployment benefits. We have considered the arguments raised in light of the record and applicable legal standards. We affirm.

Samuel was employed by the Port Authority of New York and New Jersey from 1993 until her termination in March 2007. It is undisputed that she was not employed thereafter and until she filed her claim for unemployment benefits on February 1, 2009.1 Her claim was deemed to be "invalid" on February 9, because during the base year, N.J.S.A. 43:21-19(c)(1), she had failed to accumulate twenty base weeks of employment, N.J.S.A. 43:21-4(e)(4)(A), and had not earned the minimum amount of base wages. N.J.S.A. 43:21-4(e)(4)(B).

The notice denying Samuel's claim clearly set forth her right to appeal, which had to be exercised within ten days of the mailing of the decision. Samuel did not appeal until March 19, one month beyond the prescribed time. A hearing was conducted on July 1 before the Tribunal.

The transcript of those proceedings reveals that Samuel received the denial of her claim on or about February 13 and fully understood the requirement that she file her appeal no later than February 19. She explained her delay as occasioned by her belief that she would find work. When it became "harder and harder to find work," Samuel decided to appeal the denial of benefits. The hearing officer also examined Samuel's employment history and explained the reasons why her claim was "invalid."

The Tribunal dismissed Samuel's appeal on July 1, 2009, concluding that it lacked jurisdiction to "rule on the merits of the appeal," because it was "not filed within" the time limits contained in N.J.S.A. 43:21-6(b)(1), and "good cause ha[d] not been shown for the appeal being filed late." On Samuel's subsequent appeal, the Board affirmed the Tribunal's dismissal on the timeliness issue and did not consider the merits of the appeal. This appeal followed.

Our review of final agency action is quite limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (citation omitted). "[I]f in reviewing an agency decision an appellate court finds sufficient credible evidence in the record to support the agency's conclusions, that court must uphold those findings even if the court believes that it would have reached a different result." In re Taylor, 158 N.J. 644, 657 (1999) (citations omitted). Furthermore, the Board's "'interpretation of statutes and regulations within its implementing and enforcing responsibility is ordinarily entitled to our deference.'" Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001) (quoting In re Appeal by Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div. 1997)). Only if the Board's "action was arbitrary, capricious, or unreasonable" should it be disturbed. Brady, supra, 152 N.J. at 210.

N.J.S.A. 43:21-6(b)(1) provides that unless the claimant files an appeal "within seven calendar days after delivery of notification of an initial determination or within 10 calendar days after such notification is mailed . . . such decision shall be final . . . ." In Rivera v. Bd. of Review, 127 N.J. 578, 590 (1992), the Court recognized a "good cause" exception to the statutory deadline. Since Rivera was decided, the Division of Unemployment and Disability Insurance adopted regulations defining the "good cause" standard. A claimant may demonstrate good cause by showing that the delay was "due to circumstances beyond [her] control," or due to "circumstances which could not have been reasonably foreseen or prevented." N.J.A.C. 12:20-3.1(i)(1) and (i)(2).

Here, Samuel explained that her delay in filing her appeal was due to her belief that she would find work. That reason, while understandable, failed to demonstrate that the appeal was not filed because of "circumstances beyond [her] control," or circumstances that "could not have been reasonably foreseen or prevented." The dismissal of her appeal by the Board was not arbitrary, capricious or unreasonable. Brady, supra, 152 N.J. at 210.

Moreover, even if the Tribunal and the Board had considered the merits of Samuel's appeal, it is clear from the record that she did not qualify for benefits. She acknowledged that she had not worked for the two years preceding her application. Samuel explained that at the time, she did not need the benefits and believed she should not make an application under those circumstances. The statutory scheme, however, is clear. In order to be eligible, the applicant must have twenty base weeks of employment in the base year, or otherwise accumulate the requisite earnings. N.J.S.A. 43:21-4(e)(4)(A) and (e)(4)(B). Samuel did not qualify for unemployment benefits under the statute.

1 In her brief, Samuel details the reasons for her termination. She notes that she ultimately "settled a lawsuit with Port Authority" alleging discrimination, the litigation having been filed in November 2006 and settled in September 2008.