The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3121-21
ZOE HARRIS-HOHNE,
Appellant,
v.
BOARD OF REVIEW,
DEPARTMENT OF LABOR
AND WORKFORCE
DEVELOPMENT, and
INSIGHT GLOBAL, LLC,
Respondents.
_________________________
Submitted September 28, 2023 – Decided January 23, 2024
Before Judges Vernoia and Gummer.
On appeal from the Board of Review, Department of
Labor and Workforce Development, Docket No.
253317.
Zoe Harris-Hohne, appellant pro se.
Matthew J. Platkin, Attorney General, attorney for
respondent Board of Review (Donna Sue Arons,
Assistant Attorney General, of counsel; Gina Marie
Labrecque, Deputy Attorney General, on the brief).
PER CURIAM
Petitioner Zoe Harris-Hohne appeals from a May 5, 2022 final decision of
the Board of Review. In that decision, the Board affirmed the Appeal Tribunal's
dismissal of petitioner's appeal from a determination that she was not eligible
for unemployment benefits and a request that she refund benefits already paid
to her. The Appeal Tribunal dismissed her appeal, finding petitioner had not
timely filed it pursuant to N.J.S.A. 43:21-6(b)(1) and had not established good
cause for its untimeliness pursuant to N.J.A.C. 12:20-3.1(i). Having considered
the evidence in the record, the parties' arguments, and the applicable legal
principles, we affirm in part and remand in part for further proceedings
consistent with this decision.
I.
Petitioner was employed as a recruiter with Insight Global, LLC from July
13, 2019, through February 14, 2020. According to petitioner, she terminated
her employment with Insight Global due to "[t]he pressure and stress of being
pushed to get [her] promoted to a position that [she] was not prepared for . . .
for the sole purpose of [her] management team being awarded additional
compensation for [her] promotion." On April 5, 2020, petitioner submitted a
claim for unemployment benefits, with a weekly benefit rate of $521. She
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received a total of $9,899 in unemployment benefits for the weeks ending April
11, 2020, through August 15, 2020.
In a notice mailed on December 23, 2020, a deputy of the Director of the
New Jersey Division of Unemployment Insurance advised petitioner she was not
eligible for unemployment benefits as of February 16, 2020, because she had
"left work voluntarily without good cause attributable to [that] work." In a
separate notice also mailed on December 23, 2020, the Director of
Unemployment Insurance requested petitioner return the $9,899 in benefits she
had received. The Director advised petitioner she was not eligible for those
funds because she had "quit [her] job without good cause" and that "[a]ny money
collected improperly must be returned regardless of the reason for the
overpayment in accordance with N.J.S.A. 43:21-16(d)." The Director informed
petitioner that if she disagreed with the determination she had an obligation to
refund and repay those benefits, she had to file a written appeal within seven
calendar days after delivery of the notice or ten calendar days after the mailing
of the notice. The Director also informed petitioner about her right pursuant to
N.J.A.C. 12:17-14.2 to request a waiver of her obligation to repay the benefits.
Petitioner received both notices on December 26, 2020.
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3
According to petitioner, she mailed an appeal to the Appeal Tribunal on
January 14, 2021. That appeal subsequently could not be located. In April of
2021, petitioner spoke with a Department representative who recommended she
file an appeal by mail and on the appropriate website. On May 11, 2021,
petitioner filed a second appeal online and by mail. In that appeal, petitioner
disputed the finding she had quit her job without good cause, contending she
had "resigned from that job because of specific reasons, all of which created an
untenable environment." Petitioner also requested the Appeal Tribunal "kindly
waive the requirement for [her] to reimburse benefits paid."
An Appeal Tribunal appeals examiner conducted a telephonic hearing on
December 8, 2021, during which petitioner and her father testified. At the
beginning of the hearing, the appeal examiner stated: "The issues involved in
this case [are] timeliness of filing the appeal, . . . voluntarily leaving, Pandemic
Unemployment Assistance, and non-fraud refund." Petitioner answered, "Yes,"
when the examiner asked her if she "underst[oo]d the issues that [would] be
discussed." When asked why she had not filed the appeal timely, petitioner
responded:
Given the period . . . it was the holiday season we were
with family. I then mailed my first appeal on January
14 which [was] just a couple of weeks later after
receiving [the notice]. So, we did do it really as soon
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4
as possible. It was extremely important specifically.
So for me during the holiday time and . . . all the
craziness going [on] that was as soon as I was able to
. . . draft the appeal and get it sent . . . .
Petitioner's father testified that from their perspective they had done
"everything [they] could to be timely and to continue following [up] with the
State for a response to [the] appeal." Petitioner's father gave no specific reason
for the untimeliness of the appeal. At the end of the hearing, the appeals
examiner asked petitioner if she would "like to give a closing remark before
[she] close[d] out the hearing." Petitioner responded that she had nothing else
to say and that everything she had wanted to cover during the hearing had been
covered.
In its December 8, 2021 decision, the Appeal Tribunal accepted
petitioner's representations that she had received the notices on December 26,
2020, and had filed an appeal on January 14, 2021, but found that appeal was
not timely under N.J.S.A. 43:21-6(b)(1). It also found petitioner had not
demonstrated good cause for the untimeliness of the appeal because the delay
"was not for a circumstance beyond the control of [petitioner], nor for a
circumstance which could [not] have been reasonably foreseen or prevented ,"
citing N.J.A.C. 12:20-3.1(i). Concluding it had no jurisdiction to rule on the
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5
merits of the appeal given its untimeliness, the Appeal Tribunal dismissed the
appeal.
On December 15, 2021, petitioner appealed from the decision of the
Appeal Tribunal. In that appeal, she asserted for the first time that her father
had been "in a severe car accident on December 19, 2020 . . . . and he [had been]
badly injured." According to petitioner, she "began staying near [her] father and
taking care of him" after the accident and when he collapsed on December 23,
2020, she brought him to a hospital "where he underwent several medical tests
and procedures." Petitioner submitted with her appeal medical records that
reflect petitioner's father received treatment in the hospital emergency room on
December 23, 2020, but do not reflect treatments on any other day. Petitioner
represented that from December 19, 2020, and "through most of the month of
January, 2021, [her] focus was on taking care of [her] father and supporting his
recovery." Petitioner contended that based on those circumstances, she had
demonstrated good cause for the delay in the filing of her appeal.
Petitioner claimed she had not "anticipate[d] the Appeal Tribunal would
evaluate [her] appeal based on 'timeliness of appeal filing'" but "anticipated
rather that the Appeal Tribunal would evaluate [her] appeal based on the more
substantive fact of, 'I did not voluntarily leave my previous employment.'"
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Consequently, she "did not feel that, during the telephone hearing, there was any
need for [her] to go deeper into [her] explanation as to why [her] appeal was not
filed in a timely manner."
On May 5, 2022, the Board affirmed the decision of the Appeal Tribunal
dismissing petitioner's appeal. The Board found petitioner had not established
good cause under N.J.A.C. 12:20-3.1(i) for her delay in filing the appeal because
"the delay was caused by the holiday season according to [her] testimony taken
under oath." The Board held that because petitioner had not established good
cause for the delay in filing her appeal, the Appeal Tribunal "properly
dismissed" her appeal as untimely pursuant to N.J.S.A. 43:21-6(b)(1).
Petitioner appeals from the Board's decision, arguing it erred in finding
she had not provided good cause for the late filing of her initial appeal and in
not considering the substantive merits of that appeal.
II.
"We review a decision made by an administrative agency entrusted to
apply and enforce a statutory scheme under an enhanced deferential standard."
E. Bay Drywall, LLC v. Dep't of Lab. & Workforce Dev., 251 N.J. 477, 493
(2022). Accordingly, "we will disturb an agency's adjudicatory decision only
upon a finding that the decision is 'arbitrary, capricious or unreasonable,' or is
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unsupported 'by substantial credible evidence in the record as a whole.'"
Sullivan v. Bd. of Rev., Dep't of Lab., 471 N.J. Super. 147, 155-56 (App. Div.
2022) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). In
making that determination, we "must examine: '(1) whether the agency's
decision conforms with relevant law; (2) whether the decision is supported by
substantial credible evidence in the record; and (3) whether, in applying the law
to the facts, the administrative agency clearly erred in reaching its conclusion.'"
In re Y.L., 437 N.J. Super 409, 412 (App. Div. 2014) (quoting Twp. Pharmacy
v. Div. of Med. Assistance & Health Servs., 432 N.J. Super. 273, 283-84 (App.
Div. 2013)). "The burden of proving that an agency action is arbitrary,
capricious, or unreasonable is on the challenger." Parsells v. Bd. of Educ., 472
N.J. Super. 369, 376 (App. Div. 2022). Petitioner has not met that burden.
The Board did not err in finding untimely petitioner's initial appeal. The
version of N.J.S.A. 43:21-6(b)(1) in effect when petitioner submitted her appeal
provided that a decision "shall be final" unless the claimant files an appeal
"within seven calendar days after delivery of notification of an initial
determination or within [ten] calendar days after such notification was mailed."
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See N.J.S.A. 43:21-6(b)(1) (2017) (amended July 2023). 1 The notices were
mailed on December 23, 2020, and petitioner admittedly received them on
December 26, 2020. The Appeals Tribunal and the Board accepted petitioner's
representation that she had filed an appeal on January 14, 2021. But that
purported submission was more than seven days after petitioner had received
the notices and more than ten days after they were mailed. Thus, petitioner's
appeal was untimely.
Pursuant to N.J.A.C. 12:20-3.1(i), a late appeal may be considered on its
merits if "the appeal was delayed for good cause," with good cause existing
when "[t]he delay in filing the appeal was due to circumstances beyond the
control of the appellant" or "[t]he appellant delayed filing the appeal for
circumstances which could not have been reasonably foreseen or prevented."
1
N.J.S.A. 43:21-6 and -16 were amended after the Board issued its decision.
See L. 2022, c. 120. Among other things, N.J.S.A. 43:21-6 was amended to
increase the time for filing an appeal. However, nothing in the amendment
indicates the Legislature intended retroactive application of the amendment. See
In re J.D-F., 248 N.J. 11, 22 (2021) ("[C]ourts generally will enforce newly
enacted substantive statutes prospectively, unless [the Legislature] clearly
expresses a contrary intent." (quoting Maeker v. Ross, 219 N.J. 565, 578
(2014))). In fact, the Legislature expressly provided the act amending the statute
would "take effect on the 270th day following enactment, . . . [,]" which was
July 31, 2023. See State v. Lane, 251 N.J. 84, 96 (2022) (recognizing the Court
has "repeatedly construed language stating that a provision is to be effective
immediately, or effective immediately on a given date, to signal prospective
application").
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We agree with the Appeal Tribunal and the Board that petitioner's testimony that
the appeal was delayed because "it was the holiday season" does not demonstrate
good cause under N.J.A.C. 12:20-3.1(i).
In relying on petitioner's sworn testimony to determine the cause of the
delay and not her belated, unsworn submissions attributing the delay to her
father's accident, the Board did not act arbitrarily, capriciously, or unreasonably.
The Board's finding that the delay was caused by "the holiday season" was
supported by evidence in the record, specifically petitioner's testimony.
Petitioner's subsequent assertion that her failure to file the appeal timely was
caused by her father's accident was not supported by any affidavit or
certification. Her contention that she believed she did not need to testify about
her father's accident during the telephonic hearing because she did not know the
Appeal Tribunal would evaluate her appeal based on its timeliness is belied by
the record. At the beginning of the hearing, the appeal examiner expressly stated
the "issues involved in this case," including the "timeliness of filing the appeal."
When asked if she understood the issues that would be discussed, petitioner
answered, "Yes." When the examiner asked petitioner directly why she had not
filed the appeal timely, petitioner testified about only the holiday period; she
said nothing about her father's accident. When her father testified, he asserted
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they had done "everything" they could to be timely; he said nothing about his
accident.
Because the Appellate Tribunal and the Board correctly applied the law
in place when they rendered their decisions and because substantial credible
evidence in the record supports their conclusion that petitioner did not file the
appeal timely and did not establish good cause for the delay in filing her appeal,
we see no basis to disturb the Board's decision and, accordingly, affirm it.
The Board in its decision, however, did not address petitioner's request for
a waiver pursuant to N.J.A.C. 12:17-14.2 of the obligation to repay the
unemployment benefits she had received. Petitioner made the request for a
waiver in her May 11, 2021 letter to the Appeal Tribunal. Neither the Appeal
Tribunal nor the Board addressed that request in their decisions. The question
of a refund waiver "should be decided in the first instance, by the Division,
applying its expertise." Mullarney v. Bd. of Rev., 343 N.J. Super. 401, 410
(App. Div. 2001). We, therefore, remand this matter to the Director of the
Division for consideration of petitioner's waiver request, with an enhanced
record, if necessary.
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Affirmed in part and remanded in part to the Division for consideration of
petitioner's request that the demand for reimbursement of benefits be waived.
We do not retain jurisdiction.
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