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Regina v. Board of Review

September 9, 2010


On appeal from the Board of Review, Department of Labor, Docket No. 226,278.

Per curiam.


Submitted August 31, 2010

Before Judges Grall and Alvarez.

Joseph Regina appeals from the September 24, 2009 decision of the Board of Review affirming a June 18, 2009 Appeal Tribunal ruling. The Tribunal found that Regina's base earnings year for the calculation of Emergency (extended) Unemployment Compensation (EUC08) pursuant to the Unemployment Extension Compensation Act of 2008, 26 U.S.C. § 3304, n., P.L. 110-252,*fn1 commenced on July 1, 2007, and ended on June 30, 2008. As a result, the Tribunal denied him extended benefits. We affirm.

To be eligible for extended benefits, a claimant must have earned more than $143 over twenty weeks, or a minimum total earnings of $17,280 (twenty times the weekly benefit rate), during the base year. 26 U.S.C. § 3304, n., P.L. 110-252. The "base year" for unemployment is defined by statute as "the first four of the last five completed calendar quarters immediately preceding an individual's benefit year." N.J.S.A. 43:21-19(c)(1).

When Regina filed his initial unemployment claim on December 7, 2008, he was notified in writing that his base year commenced July 1, 2007, and that his earnings totaled only $10,102.59 through June 30, 2008. Regina worked during the latter part of 2008 until December, earning $32,526.33 from May 2008 through December 2008. Regina did not appeal the designation of his base year and he collected ordinary unemployment benefits from December 2008 through March 21, 2009.

When Regina applied for extended benefits after his ordinary benefits were exhausted, he was notified by the Deputy Director of the Division of Unemployment and Disability Insurance (Director) on March 25, 2009, that he was ineligible. He subsequently appealed. A phone hearing was conducted by the Appeal Tribunal on June 16, 2009. The Appeal Tribunal affirmed the Director's denial on the basis that Regina had not challenged the designation of his base year until more than three months after the calculation.

Pursuant to N.J.S.A. 43:21-6(b)(1), an appeal must be filed within ten days of the mailing of a determination or seven days after receipt. This time frame applies to the calculation of Regina's base year, included in the Director's initial decision when Regina was approved for ordinary unemployment. When good cause is established, the time frame may be enlarged. The Tribunal found, however, that Regina's explanation did not establish good cause. Regina asserted that he failed to appeal the calculation of his base year because "he did not believe [that] he would be out of work for very long." Because Regina's appeal was filed out of time, and no good cause was established for relief from the statute, the Board of Review summarily affirmed.

We employ a highly deferential standard of review of an administrative decision in this case as we do in every other. Overall, on judicial review "[o]ur function is to determine whether the administrative action was arbitrary, capricious or unreasonable." Burris v. Police Dep't, Twp. of W. Orange, 338 N.J. Super. 493, 496 (App. Div. 2001) (citing Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980)). See also Aqua Beach Condo. Ass'n v. Dep't of Cmty. Affairs, 186 N.J. 5, 15-16 (2006) (citation omitted). The agency decision must be supported by substantial credible evidence in the record as a whole. Circus Liquors, Inc. v. Middletown Twp., 199 N.J. 1, 10 (2009) (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)). It must not offend either the state or federal constitution and must be in accord with the agency's legislative mandate. Ibid. (citation omitted). "The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the [party] challenging the administrative action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J. 219 (2006) (citations omitted). See also Barone v. Dep't of Human Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987) (citations omitted).

Applying this highly deferential standard of review, we are satisfied that the administrative action taken in this case was eminently reasonable. Extended benefits were denied because Regina's earnings in the base year were not sufficient to meet the threshold for eligibility. The dates of that base year were determined in December 2008, yet no appeal was taken until March 2009. Regina's belief that he would be returning to work does not constitute good cause sufficient to relieve him of the tenday time frame within which his appeal should have been taken.


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