RYAN M. WETTER v. BOARD OF REVIEW

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

RYAN M. WETTER,

Appellant,

v.

BOARD OF REVIEW and

PRIME TIME LIMOUSINE, INC.,

Respondents.

_________________________________________

October 18, 2013

Submitted October 7, 2013 - Decided

Before Judges Harris and Guadagno.

On appeal from the Board of Review, Department of Labor, Docket No. 342,384.

Ryan M. Wetter, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ellen A. Reichart, Deputy Attorney General, on the brief).

Respondent Prime Time Limousine, Inc. has not filed a brief.

PER CURIAM

Claimant Ryan M. Wetter appeals from the March 5, 2012 final decision of the Board of Review, Department of Labor, affirming the decision of an Appeal Tribunal, denying his claim for Emergency Unemployment Compensation (EUC) benefits. We affirm.

In July 2010, Wetter left his job with Lester Glenn Auto Group in Toms River, New Jersey, to take a position with Prime Time Limousine in Stamford, Connecticut. After three months, Wetter resigned from Prime Time for medical reasons and moved back to New Jersey to seek treatment.

Wetter filed a claim for unemployment benefits in New Jersey in October 2010 and received benefits of $460 per week until April 2011, when the claim was exhausted. In May 2011, Wetter filed a claim under the EUC program and was paid benefits totaling $2388, through June 11, 2011.

When the New Jersey Division of Unemployment Insurance (Division) learned Wetter was eligible for unemployment benefits in Connecticut, he was declared ineligible for EUC benefits.

Wetter filed a claim in Connecticut but was notified that he was ineligible for benefits because his reason for leaving his employment did not constitute good cause. The notice advised Wetter of his right to appeal but he failed to pursue an appeal in Connecticut.

The Division in New Jersey sought a refund of $2388 for the EUC benefits paid to Wetter. Wetter appealed from the determination holding him ineligible for EUC benefits and from the imposition of liability to refund the $2388 in EUC benefits paid. An Appeal Tribunal conducted a telephone hearing on September 1, 2011. By written decision, the appeals examiner denied Wetter's appeal, stating, "EUC benefits can only be paid to individuals who are not eligible for any regular unemployment benefits in New Jersey or any other state." As Wetter had a valid unemployment claim in Connecticut on May 1, 2011, he was not eligible for EUC benefits in New Jersey. She also held Wetter liable for a refund of $2388 for EUC benefits paid from May 7, 2011, through June 11, 2011.

The Board of Review affirmed the decision of the Appeal Tribunal as to Wetter's ineligibility but forwarded Wetter's request for a waiver of the EUC benefits to the Director of the Division.

On appeal, Wetter first argues that the liability for $2388 should be waived, as he did not withhold a material fact in obtaining benefits. Wetter's notice of appeal indicates he appeals from the March 5, 2012 decision of the Board of Review. As we mentioned, that decision affirmed Wetter's ineligibility but referred his request for a waiver of the claim for EUC benefits to the Director of the Division. According to respondent's brief, Wetter has not yet filed for a waiver with the Director. Therefore, that matter is not properly before us.

Wetter next argues that since he was denied benefits in Connecticut, the Division erred in concluding that he had a valid unemployment claim in Connecticut as of May 1, 2011. We disagree.

"The judicial capacity to review administrative agency decisions is limited." Brady v. Bd. of Review, 152 N.J.197, 210 (1997). Generally speaking, we will "intervene only in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or with other State policy." George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J.8, 27 (1994). The reviewing court "should not disturb an administrative agency's determinations or findings unless there is a clear showing that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the decision was not supported by substantial evidence." In re Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008); see alsoCircus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J.1, 9-10 (2009).

The federal Emergency Unemployment Compensation Act of 2008, Pub. L. No. 110-252, 4001, Title IV, 122 Stat. 2323 (Act),1provides benefits to claimants whose rights to regular unemployment benefits under state or federal law are exhausted. Pursuant to the Act, EUC is made available to eligible individuals for additional weeks, provided the claimant has "no rights to regular compensation . . . under . . . any other State . . . or . . . Federal law . . . ." Id. 4001(b)(2). Only claimants who have exhausted all claims for regular state unemployment benefits are eligible to claim and receive EUC benefits.

Although Wetter's initial request for benefits was denied by Connecticut, he failed to pursue his right to appeal and thus failed to exhaust his administrative remedies. As a result, Wetter was not entitled to receive EUC benefits through New Jersey.

We are satisfied the Board's decision does not violate the state or federal constitutions, is not contrary to express or implied legislative policies, and is supported by substantial, credible evidence in the record. SeeBrady, supra, 152 N.J. at 210-11. We therefore find no basis to disturb the agency's decision.

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