NOT FOR PUBLICATION WITHOUT THE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-4255-15T3
WAYNE BYRD,
Appellant,
v.
BOARD OF REVIEW, DEPARTMENT
OF LABOR AND JOHNSON FARMS,
Respondent.
___________________________
Argued October 4, 2017 – Decided October 26, 2017
Before Judges Koblitz, Manahan and Suter.
On appeal from Board of Review, Department of
Labor, Docket No. 039-252.
Rebecca J. Bertram argued the cause for
appellant (Bertram Law Office, LLC, attorneys;
Ms. Bertram, on the brief).
Jana R. DiCosmo, Deputy Attorney General,
argued the cause for respondent (Christopher
S. Porrino, Attorney General, attorney;
Melissa Dutton Schaffer, Assistant Attorney
General, of counsel; Ms. DiCosmo, on the
brief).
PER CURIAM
Wayne Byrd appeals again, this time from a May 24, 2016
determination of the Department of Labor's Board of Review,
affirming a decision by the Appeal Tribunal for the Department's
Division of Unemployment and Disability Insurance requiring Byrd
to refund $10,2901 in overpaid emergency unemployment compensation
benefits. Byrd received these benefits in 2011 through no fault
of his own, as the result of an admitted agency error. We are
forced to remand again to ensure the agency diligently carries out
our prior instructions to consider a waiver under N.J.A.C. 12:17-
14.2 as of the time it was first requested, without regard to any
subsequent repayment from future benefits.
We need not repeat the facts as set forth in our prior
opinion. Byrd v. Bd. of Review, No. A-0569-12 (App. Div. Jan. 28,
2014) (slip op. at 2-3). In our prior opinion we wrote:
We remand to the Director to consider Byrd's
request for a waiver as of the time the request
was made. At oral argument, Byrd stated that
he has been making payments by way of
deductions from the unemployment compensation
he was entitled to receive since this appeal
was filed. The fact that he has made this
repayment should not enter into the Director's
assessment. We also note that if a waiver is
granted, the Division should reimburse Byrd
for any repayment he has made while this
appeal was pending.
[Id. at 8.]
1
The Division calculated the amount to be $10,706, consisting of
twenty-one weeks of payments of $490 in 2011, plus $416 in non-
fraud overpayment from a 2009 claim.
2 A-4255-15T3
After our remand, Byrd was informed: "Since [his] overpayment
balance is now $0.00, [his] waiver request is denied." This denial
was confirmed by the Director. A telephonic hearing was conducted
by the Appeal Tribunal in January 2015 at which an investigator
with the Department of Labor, Bureau of Benefit Payment Control,
Fraud Prevention and Risk Management Unit testified that "per our
instructions here in our office, waiver can only be done when
there is a balance." After reading our opinion for the first time
at this hearing and acknowledging that the denial was made without
knowledge of that opinion, the investigator testified "we go by
the laws for our office . . . we had to deny him because there was
no balance to be paid." Byrd testified that he was currently
unemployed, had sole custody of two of his children and was
subsisting on loans from relatives.
After the Appeal Tribunal affirmed, the Board remanded to a
new Appeal Tribunal to allow "additional testimony from the
claimant . . . to provide financial documentation including his
2011 income tax return to the Appeal Tribunal." At this second
telephonic hearing the same Department investigator testified
again that Byrd's waiver request was denied solely because he had
repaid the overpayment in 2013, without any further equitable
determination. By way of explaining why she did not make an
equitable analysis of Byrd's waiver request as we instructed, the
3 A-4255-15T3
investigator testified that her office does not "have anything to
do with" Appellate Division decisions and she is not a lawyer.
She maintained in her argument to the Appeals Tribunal that "it
is the law that the benefits have to be taken at 50 percent . . .
[and] any benefits that are owed, no matter whose fault it is,
they have to be repaid." The Appeals Tribunal asked "is it
possible for the Director to do a redetermination based on the
principles in equity analysis at the time?" The investigator said
no, clarifying,
I cannot go into specifics with equity, but
we do not waive equity requests. Equity is
there so that we can work out a lower amount
that the person would have to pay back them
self (sic) at a lower rate than what the actual
. . . monthly agreement would be. And, again,
in Mr. Byrd's position his debt was an Agency
error, he wouldn't have to pay the debt back
at all, but the law was that the benefits had
to be taken at 50 percent.
The Appeals Tribunal questioned Byrd regarding his finances
in 2012, when he first sought the refund. He testified that he
had had a heart attack eight years before the hearing and was
unable to work at all for two years. After that, he worked only
in the fall and spring at a nursery. He had a mortgage payment
due of approximately $1000 per month, and various other living
expenses for himself and his two young children.
The Appeal Tribunal asked Byrd to send him his 2012 tax return
as well as his living expenses for 2012, to be marked into
4 A-4255-15T3
evidence. Byrd also testified that had he not received the federal
benefits improperly sought by the agency through no fault of his
own, he would have been entitled to State benefits.2 His attorney
argued that had the agency not processed his unemployment benefits
request under the wrong program, he would have received benefits
under the correct program.3 The investigator did not voice
disagreement with this argument although given the opportunity to
do so.
The Appeals Tribunal again affirmed the denial of a waiver,
although finding that Byrd was the sole support of two children
and had wages of only $10,006 in 2011 and $18,983 in 2012. He
estimated Byrd's "monthly expenses for the essentials" at $3900,
or $46,800 a year. The Appeals Tribunal then determined that "the
claimant's restitution, based on a reasonable repayment schedule,
would not have been patently contrary to the principles of equity
nor would it have resulted in an extraordinary financial hardship."
The Appeals Tribunal stated: "As the claimant owns property and
has had regular gainful employment it would not have been an
2
Although Byrd testified to this understanding, the record does
not reveal if this is a correct understanding.
3
At oral argument before us, Byrd's counsel clarified that if
Byrd had been entered into the correct program, he would have
received $110 less per week, for a total overpayment of $2310
rather than $10,290. The Attorney General did not confirm or deny
this representation.
5 A-4255-15T3
untenable burden for him to refund benefits to which he was not
entitled."
Byrd appealed, arguing he had been eligible for benefits, but
not under the "code" which the agency incorrectly used. He also
argued the Director, as represented by the investigator, had never
considered his waiver application using equitable criteria, and
that his financial situation qualified him for a waiver.
In pro forma language not specific to Byrd's situation, the
Board of Review affirmed. Our review of administrative agency
decisions is limited in scope. Brady v. Bd. of Review, 152 N.J.
197, 210 (1997). Due regard is given to the agency's expertise,
Ford v. Bd. of Review, 287 N.J. Super. 281, 283 (App. Div. 1996),
and the agency's determination will not be disturbed absent a
finding that it was "arbitrary, capricious, or unreasonable."
Brady, supra, 152 N.J. at 210. "Failure to address critical
issues, or to analyze the evidence in light of those issues,
renders the agency's decision arbitrary and capricious and is
grounds for reversal." Green v. State Health Benefits Comm'n, 373
N.J. Super. 408, 415 (2004).
N.J.S.A. 43:21-16(d) generally "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 Review, 299 N.J. Super. 671,
6 A-4255-15T3
674 (App. Div. 1997). The regulations do, however, permit the
Director to waive repayment of benefits when the recipient did not
misrepresent or conceal any material facts and reimbursement
"would be patently contrary to the principles of equity." N.J.A.C.
12:17-14.2(a). At the insistence of the Board, we have agreed in
the past that a repayment, or "refund issue", decision must be
made by the Director and not the Board.
[I]n arguing before us that the refund issue
is not properly before us, counsel for the
Board bottoms that argument on the fact that
"the Director . . . has not yet considered the
matter." (Emphasis supplied.)
We agree with the Board's position to the
extent it insists the clear statutory
authority for the ordering of refunds reposes
solely, exclusively and personally in the
Director. N.J.S.A. 43:21-16(d).
[Howard v. Bd. of Review, 173 N.J. Super. 196,
202 (App. Div. 1980).]
N.J.S.A. 43:21-16(d) contains language requiring repayment,
"unless the director (with the concurrence of the controller)
directs otherwise by regulation." The regulation, N.J.A.C. 12:17-
14.2(d), covering the waiver of repayment, states:
For purposes of determining . . . whether the
recovery of the overpayment would be "patently
contrary to the principles of equity," the
Director and Controller shall consider whether
the terms of a reasonable repayment schedule
would result in economic hardship to the
claimant.
7 A-4255-15T3
Thus, the Director and not the Appeals Tribunal must make the
initial equitable decision.
When we remanded to the Director to make an equitable waiver
determination without consideration of Byrd's forced full
repayment, we expected the Director to comply. Byrd suggests we
should now exercise original jurisdiction to order a refund. R.
2:10-5. We choose instead to remand again, with the hope that the
Director will follow our clear instructions. The Director must
make an equitable waiver analysis as of the time of the initial
waiver application. Our direction should be followed unless
successfully appealed to a higher court. An agency's powers on
remand depend upon the contents of the court's remand order, which
the agency must obey precisely; to that extent the court's remand
instructions become the "law of the case."
Trantino v. N.J. State Parole Bd., 331 N.J. Super. 577, 606 (App.
Div. 2000) (quoting Lowenstein v. Newark Bd. of Educ., 35 N.J. 94,
116-17 (1961)).
The Director should consider in the equitable equation the
benefits, if any, Byrd would have received for the relevant time
periods had the agency placed Byrd into the correct benefits
program. Under no circumstances should Byrd suffer adverse
economic consequences due to the error of an agency employee.
Thus, regardless of equitable considerations, Byrd should be given
8 A-4255-15T3
a refund for any benefits he repaid that he would have received
had his application been processed properly.
Reversed and remanded. We do not retain jurisdiction.
9 A-4255-15T3
WAYNE BYRD VS. BOARD OF REVIEW(BOARD OF REVIEW, DEPARTMENT OF LABOR)
Combined Opinion