MATHEW T. SULLIVAN v. BOARD OF REVIEW (BOARD OF REVIEW, DEPARTMENT OF LABOR) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1664-20
MATHEW T. SULLIVAN,
Appellant,
v.
APPROVED FOR PUBLICATION
March 7, 2022
BOARD OF REVIEW,
DEPARTMENT OF LABOR, APPELLATE DIVISION
and TURTLE AND THE
WOLF, LLC,
Respondents.
__________________________
Submitted February 2, 2022 – Decided March 7, 2022
Before Judges Whipple, Geiger, and Susswein.
On appeal from the Board of Review, Department of
Labor, Docket No. 219767.
Mathew T. Sullivan, appellant pro se.
Andrew J. Bruck, Acting Attorney General, attorney
for respondent Board of Review (Jane C. Schuster,
Assistant Attorney General, of counsel; Roger
Castillo, Deputy Attorney General, on the brief).
The opinion of the court was delivered by
WHIPPLE, J.A.D.
Petitioner Mathew T. Sullivan appeals from a February 9, 2021 decision
by the Board of Review, Department of Labor and Workforce Development
(Board). Because petitioner was not qualified to receive the New Jersey
unemployment benefits he received during the COVID-19 pandemic through
the Coronavirus Aid, Relief, and Economic Security (CARES) Act, 15 U.S.C.
§§ 9001 to 9141, 1 he must refund $5,584, and we affirm.
Petitioner worked as a chef for Turtle and the Wolf, LLC, a restaurant in
Montclair, from September 2016 to October 20, 2019. He voluntarily left the
job because he wanted additional compensation from his employer and had
moved from Bloomfield to Clinton, which involved a longer commute.
On April 26, 2020, during the COVID-19 pandemic, petitioner filed a
claim for unemployment benefits, establishing a weekly benefit rate of $698.
He received $5,584 in benefits for eight weeks, from May 2, 2020, through
June 20, 2020. On June 19, 2020, petitioner started work for a new employer
and did not file for benefits past the week ending on June 20, 2020.
1
Signed into law on March 27, 2020, the CARES Act, 15 U.S.C. §§ 9001 to
9141, "create[d] a new temporary federal program called Pandemic
Unemployment Assistance (PUA) that in general provides up to [thirty-nine]
weeks of unemployment benefits, and provides funding to states for the
administration of the program." U.S. D EP'T OF L ABOR, UNEMPLOYMENT
INSURANCE PROGRAM L ETTER No. 16-20 at 1 (2020),
https://wdr.doleta.gov/directives/attach/UIPL/UIPL_16-20.pdf.
A-1664-20
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By letter dated July 15, 2020, the Division of Unemployment and
Temporary Disability Insurance (Division), Department of Labor and
Workforce Development, notified petitioner:
You are disqualified for benefits from [October 20,
2019] and will continue to be disqualified until you
have worked eight or more weeks in employment and
have earned at least ten times your weekly benefit
rate.
You left work voluntarily on [October 20, 2019].
Your last day of work was [October 20, 2019]. You
resigned because you were seeking a better job with
benefits. You are not unemployed due to one of the
qualifying reasons identified under the CARES Act.
You are therefore ineligible for Pandemic
Unemployment Assistance (PUA) benefits.
Therefore, your reason for leaving does not constitute
good cause attributable to the work. You are
disqualified for benefits.
On the same date, the Division sent petitioner a Request for Refund imposing a
liability to refund $5,584. He appealed both and the Appeal Tribunal held a
telephonic appeal hearing during which petitioner participated pro se. The
Appeal Tribunal affirmed the Division's findings of fact and legal
determination that petitioner had left work voluntarily and had not evidenced
good cause for leaving attributable to the job and was disqualified for
unemployment benefits as of October 20, 2019, under unemployment
compensation law, N.J.S.A. 43:21-5(a).
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On September 28, 2020, petitioner appealed to the Board. The Board
affirmed the Appeal Tribunal's decision on February 9, 2021 by stating:
The [f]indings of [f]act and [o]pinion as developed by
the Appeal Tribunal and the allegations of the
appellant have been carefully examined.
Since the appellant was given a full and impartial
hearing and a complete opportunity to offer any and
all evidence, there is no valid ground for a further
hearing.
On the basis of the record below, we agree with the
decision reached.
This appeal followed. Petitioner argues that the Division is estopped
from seeking a refund because it erroneously paid the amounts and should not
benefit from that mistake. We are sympathetic to the hardship many people,
including petitioner, endured during the 2020 lockdown as a result of the
COVID-19 pandemic. However, we consider it necessary to explain what the
CARES Act permitted and what it did not permit within the context of New
Jersey's unemployment compensation laws.
New Jersey statute, N.J.S.A. 43:21-5, provides, in pertinent part:
An individual shall be disqualified for benefits:
(a) For the week in which the individual
has left work voluntarily without good
cause attributable to such work, and for
each week thereafter until the individual
becomes reemployed and works eight
weeks in employment, which may include
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employment for the federal government,
and has earned in employment at least ten
times the individual's weekly benefit rate,
as determined in each case. . . .
N.J.S.A. 43:21-16(d)(1) provides, in pertinent part:
When it is determined by a representative or
representatives designated by the Director of the
Division of Unemployment and Temporary Disability
Insurance of the Department of Labor and Workforce
Development of the State of New Jersey that any
person . . . has received any sum as benefits under this
chapter . . . while any conditions for the receipt of
benefits imposed by this chapter . . . were not fulfilled
in his [or her] case, or while he [or she] was
disqualified from receiving benefits, or while
otherwise not entitled to receive such sum as benefits,
such person . . . shall be liable to repay those benefits
in full. . . . Such person shall be promptly notified of
the determination and the reasons therefor. The
determination shall be final unless the person files an
appeal of the determination within seven calendar
days after the delivery of the determination, or within
[ten] calendar days after such notification was mailed
to his [or her] last-known address . . . .
[(internal citations omitted).]
The CARES Act expanded eligibility, under the PUA program, for
payment of benefits for certain categories of individuals. Thus, when
petitioner was determined to be disqualified for state benefits for the relevant
time period, the Division had determined whether he was a covered individual
under the PUA even if he was not unemployed for an expanded reason through
the CARES Act. The Division determined, however, that petitioner left work
A-1664-20
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voluntarily without good cause attributable, which disqualifies him under the
PUA.
Under the CARES Act, the Secretary of Labor "shall provide to any
covered individual unemployment benefit assistance while such individual is
unemployed, partially unemployed, or unable to work for the weeks of such
unemployment with respect to which the individual is not entitled to any other
unemployment compensation. . . ." 15 U.S.C. § 9021(b).
A "covered individual" is an individual who:
(i) is not eligible for regular compensation or extended
benefits under State or Federal law or pandemic
emergency unemployment compensation under section
9025 . . . including an individual who has exhausted
all rights to regular unemployment or extended
benefits under State or Federal law or pandemic
emergency unemployment compensation under section
9025 . . . ;
(ii) provides self-certification that the individual—
(I) is otherwise able to work and available for
work within the meaning of applicable State
law, except the individual is unemployed,
partially unemployed, or unable or unavailable
to work because—
(aa) the individual has been diagnosed
with COVID-19 or is experiencing
symptoms of COVID-19 and seeking a
medical diagnosis;
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(bb) a member of the individual's
household has been diagnosed with
COVID-19;
(cc) the individual is providing care for a
family member or a member of the
individual's household who has been
diagnosed with COVID-19;
(dd) a child or other person in the
household for which the individual has
primary caregiving responsibility is
unable to attend school or another facility
that is closed as a direct result of the
COVID-19 public health emergency and
such school or facility care is required for
the individual to work;
(ee) the individual is unable to reach the
place of employment because of a
quarantine imposed as a direct result of
the COVID-19 public health emergency;
(ff) the individual is unable to reach the
place of employment because the
individual has been advised by a health
care provider to self-quarantine due to
concerns related to COVID-19;
(gg) the individual was scheduled to
commence employment and does not have
a job or is unable to reach the job as a
direct result of the COVID-19 public
health emergency;
(hh) the individual has become the
breadwinner or major support for a
household because the head of the
household has died as a direct result of
COVID-19;
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(ii) the individual has to quit his or her job
as a direct result of COVID-19;
(jj) the individual's place of employment
is closed as a direct result of the COVID-
19 public health emergency; or
(kk) the individual meets any additional
criteria established by the Secretary for
unemployment assistance under this
section; or
(II) is self-employed, is seeking part-time
employment, does not have sufficient work
history, or otherwise would not qualify for
regular unemployment or extended benefits
under State or Federal law or pandemic
emergency unemployment compensation under
section 9025 . . . and meets the requirements of
subclause (I); and
(iii) provides documentation to substantiate
employment or self-employment or the planned
commencement of employment or self-employment
not later than [twenty-one] days after the later of the
date on which the individual submits an application
for pandemic unemployment assistance under this
section or the date on which an individual is directed
by the State Agency to submit such documentation in
accordance with [20 C.F.R. 625.6(e)], or any
successor thereto, except that such deadline may be
extended if the individual has shown good cause under
applicable State law for failing to submit such
documentation. . . .
[15 U.S.C. § 9021(a)(3)(A).]
A "covered individual" does not include:
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(i) an individual who has the ability to telework with
pay; or
(ii) an individual who is receiving paid sick leave or
other paid leave benefits, regardless of whether the
individual meets a qualification described in items
(aa) through (kk) of subparagraph (A)(i)(I).
[15 U.S.C. § 9021(a)(3)(B).]
Under 42 U.S.C. § 502, states must ensure that federal funds are used for
the "proper and efficient administration" of unemployment compensation laws.
Because petitioner did not fall into any of these delineated CARES Act
categories or qualify for the PUA program otherwise, the Division, acting for
the State, determined he was required to refund the payments he received.
Petitioner does not argue that he falls into one of these categories; he does not
assert erroneous findings of fact as to his circumstances nor for an expansive
interpretation of one of these categories to include his circumstances. Rather,
petitioner argues that because the Division awarded the funds at one point, it
should be estopped from seeking the refund. His argument fails because the
Division must seek repayment for improperly awarded benefits, and we discern
no error in the Division seeking such repayment, nor in the subsequent
decisions from the Appeal Tribunal and Board, because of petitioner's
ineligibility for such benefits.
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"N.J.S.A. 43:21-16(d) requires the full repayment of unemployment
benefits received by an individual who, for any reason, regardless of good
faith, was not actually entitled to those benefits." Bannan v. Bd. of Rev., 299
N.J. Super. 671, 674 (1997). "The Division shall issue a demand for refund of
unemployment benefits in each case when a determination of overpayment is
made. Except in the case of fraud, an individual shall be notified of the
demand for refund within four years after benefits were received. . . ."
N.J.A.C. 12:17-14.1.
Our scope of review is narrow. As a general matter, we will disturb an
agency's adjudicatory decision only upon a finding that the decision is
"arbitrary, capricious or unreasonable," or is unsupported "by substantial
credible evidence in the record as a whole." Henry v. Rahway State Prison, 81
N.J. 571, 579–80 (1980) (citing Campbell v. Dep't of Civ. Serv., 39 N.J. 556,
562 (1963)). In determining whether agency action is arbitrary, capricious, or
unreasonable, a reviewing court must examine:
(1) [W]hether the agency's action violates express or
implied legislative policies, that is, did the agency
follow the law;
(2) whether the record contains substantial evidence to
support the findings on which the agency based its
action; and
(3) whether in applying the legislative policies to the
facts, the agency clearly erred in reaching a
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conclusion that could not reasonably have been made
on a showing of the relevant factors.
[In re Carter, 191 N.J. 474, 482-83 (2007) (quoting
Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]
Furthermore, we defer to an agency's expertise. See Murray v. State
Health Benefits Comm'n, 337 N.J. Super. 435, 442 (App. Div. 2001) ("[W]here
there is substantial evidence in the record to support more than one regulatory
conclusion, it is the agency's choice which governs.") (internal quotation
marks omitted) (quoting In re Vineland Chem. Co., 243 N.J. Super. 285, 307
(App. Div. 1990)). Our review is not, however, "perfunctory," nor is "our
function . . . to merely rubberstamp an agency's decision." Figueroa v. N.J.
Dep't of Corr., 414 N.J. Super. 186, 191 (App. Div. 2010). Rather, we are
constrained "to engage in a careful and principled consideration of the agency
record and findings." Ibid. (internal quotation marks omitted) (quoting
Williams v. Dep't of Corr., 330 N.J. Super. 197, 204 (App. Div. 2000)).
Based on our review of the record, the Division's determination, and the
subsequent decisions on appeal, were not "arbitrary, capricious or
unreasonable" and were amply supported "by substantial credible evidence in
the record as a whole." Henry, 81 N.J. at 579–80. The record is undisputed
that petitioner voluntarily left his job at Turtle and the Wolf for personal
reasons, and he was not unemployed for reasons related to the COVID-19
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pandemic as set forth in the CARES Act nor unemployed otherwise under the
PUA.
Petitioner focuses his argument on how the Division should be estopped
from seeking the return of the benefits that the Division erroneously paid him
because he "clearly relied [on the benefits to his] detriment and spent the
money." We disagree and affirm because, for the reasons set forth above
which petitioner did not specifically appeal or argue against, petitioner was not
entitled to these benefits and the Division did not arbitrarily seek repayment,
so petitioner has not suffered a manifest injustice in being required to refund
the improper benefits.
The doctrine of equitable estoppel "is designed to prevent a party's
disavowal of previous conduct if such repudiation would not be responsive to
the demands of justice and good conscience." Hirsch v. Amper Fin. Servs.,
LLC, 215 N.J. 174, 189 (2013) (quoting Heuer v. Heuer, 152 N.J. 226, 237
(1998)). To establish equitable estoppel, the party seeking to invoke the
doctrine must prove that an opposing party "engaged in conduct, either
intentionally or under circumstances that induced reliance, and that [the
moving party] acted or changed . . . position to [his or her] detriment." Knorr
v. Smeal, 178 N.J. 169, 178 (2003). "Although the doctrine of equitable
estoppel is rarely invoked against a governmental entity . . . [courts have] lo ng
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held that the prevention of manifest injustice provides an exception to the
general rule." Aqua Beach Condo. Ass'n v. Dep't of Cmty. Affairs, Bureau of
Homeowners Prot., New Home Warranty Program, 186 N.J. 5, 20 (2006)
(quoting Casamasino v. City of Jersey City, 158 N.J. 333, 354 (1999)). But,
"even-handed application of fairly adopted and clear regulations debunks any
claim of 'manifest injustice.'" Ibid.Petitioner did not demonstrate a "manifest injustice" that would justify
invoking equitable estoppel against the State. Although the Division
erroneously granted petitioner benefits, the State, through the Division and
appeals process, even-handedly and reasonably applied federal and State laws
and regulations to seek a refund of those benefits. See Aqua Beach Condo.
Ass'n, 186 N.J. at 20.
Affirmed.
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