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Anthony M. Cibik v. Board of Review

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 20, 2012

ANTHONY M. CIBIK, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR, AND HDR, INC., RESPONDENTS.

On appeal from the Board of Review, Department of Labor, Docket No. 298,044.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 4, 2012 -

Before Judges Alvarez and Nugent.

Appellant Anthony M. Cibik appeals from the decision of respondent Board of Review, Department of Labor, affirming a decision by the Appeal Tribunal that required him to refund extended emergency unemployment compensation (EUC) benefits that he had been paid under the Emergency Unemployment Compensation Act of 2008*fn1 . Appellant was ineligible to receive EUC benefits because he was eligible to receive regular unemployment compensation benefits from the State of Oregon. Appellant argues that he should not have to repay the EUC benefits because he made no misrepresentations, withheld no information, and was not informed that he would have to exhaust his claim for unemployment benefits in Oregon before becoming eligible for EUC benefits. He also argues that he is entitled to have the overpayments waived. We affirm the Board of Review's decision, but do not address appellant's request for a waiver of the refund, an issue not decided by the Board of Review.

Appellant was employed for approximately one and one-half years in New Jersey with a company that was purchased by HDR, Inc. (HDR) in June or July 2008.*fn2 Appellant relocated to Oregon where he worked for HDR until his position was terminated in August 2009. He has since been unemployed.

When appellant's position with HDR was terminated, he applied for unemployment benefits in New Jersey "because most of [his base period] wages were [earned in] Jersey." Appellant was eligible to receive unemployment compensation in New Jersey for twenty-six weeks and he received those benefits. Approximately two weeks before his regular New Jersey unemployment compensation benefits were scheduled to end, appellant "called New Jersey to say okay so two weeks from now I'm not going to be getting benefits[.] What am I supposed to do." Appellant had not previously received unemployment benefits. According to appellant, he was told that "it was an automatic extension"; he was never told that he had to file a claim in Oregon before receiving EUC benefits. Appellant did not know that if he were eligible to receive benefits from the State of Oregon, he was ineligible to receive EUC benefits.

Appellant received EUC benefits from February 20, 2010, through August 7, 2010, totaling $14,600. Some time in August or September 2010, appellant was advised to file a claim for unemployment compensation benefits in Oregon. Appellant was entitled to receive regular unemployment compensation benefits from Oregon effective February 2010. On August 18, 2010, the Director of the New Jersey Division of Unemployment Insurance mailed appellant a letter in which he explained that appellant was not eligible for the EUC benefits and was required to refund the $14,600 he had received.

Appellant filed an appeal of the Director's determination with the Appeal Tribunal, which affirmed the Director's determination that appellant was required to refund the EUC benefits. Appellant appealed from the Appeal Tribunal's decision. In his appeal to the Board of Review, appellant for the first time requested a waiver of the refund. The Board of Review affirmed the Appeal Tribunal's determination. As to appellant's refund request, in its decision dated April 18, 2011, the Board of Review stated: "The [Appellant's] letter of appeal will be forwarded to the Director to be considered as a request for a waiver of the refund."*fn3

Appellant filed a timely appeal from the decision of the Board of Review and presents the following argument for our consideration:

CLAIMANT RECEIVED AN OVERPAYMENT THROUGH THE STATE OF NEW JERSEY THROUGH NO FAULT OF HIS OWN, AND DOESN'T HAVE SUFFICIENT EQUITY TO QUALIFY FOR REPAYMENT. THIS CONSTITUTES GOOD CAUSE ATTRIBUTABLE TO NEW JERSEY UNEMPLOYMENT LAW AND, THEREFORE, CLAIMANT'S REQUEST FOR WAIVER OF REPAYMENT SHOULD BE GRANTED.

Our review of final administrative agency determinations is limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We will not disturb an agency's determination unless it is arbitrary, capricious, or unreasonable. Ibid. Here, the Board of Review's decision was not only sound, but was required by applicable New Jersey and federal statutory law.

EUC benefits are payable to individuals who have exhausted regular unemployment benefits under federal or state law 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). Because appellant was eligible to receive regular unemployment benefits from Oregon, he was ineligible for EUC benefits.*fn4

Federal and New Jersey law require an individual who has received EUC benefits to which he was not entitled to repay the amount of such benefits. See id. at § 4005(b); N.J.S.A. 43:21-16(d)(1). Appellant was ineligible to receive EUC benefits and is now required to refund the amount of the benefits he received.

Appellant argues that he made no misrepresentations and withheld no material facts concerning his unemployment status. Nevertheless, full repayment of EUC benefits is required "by an individual who, for any reason, regardless of good faith, was not actually entitled to those benefits." Bannan v. Bd. of Review, 299 N.J. Super. 671, 674 (App. Div. 1997). "The eligibility and disqualification provisions of the unemployment law are designed to preserve the Unemployment Trust Fund for the payment of benefits to those individuals entitled to receive them." Ibid.

Appellant contends that he is entitled to have the Director waive recovery of the EUC benefits under N.J.A.C. 12:17-14.2, the regulatory provision that permits such a waiver if a claimant has not misrepresented or withheld any material fact, or when recovery would be patently contrary to equitable principles. As we previously indicated, appellant raised this issue for the first time in his appeal to the Board of Review. The Board forwarded appellant's request to the Director. Because neither the Board nor the Director has decided the issue, we will not consider it.

Affirmed.


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