                                NOT FOR PUBLICATION WITHOUT THE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-5650-17T2

RUBEN MARQUEZ,

          Appellant,

v.

BOARD OF REVIEW,
DEPARTMENT OF LABOR,
SRA ASSOCIATES, INC.,
and RED WHITE AND BLUE
THRIFT STORE,

     Respondents.
_____________________________

                    Submitted September 10, 2019 – Decided September 19, 2019

                    Before Judges Yannotti and Hoffman.

                    On appeal from the Board of Review, Department of
                    Labor, Docket No. 149,178.

                    Ruben Marquez, appellant pro se.

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent Board of Review (Melissa Dutton Schaffer,
                    Assistant Attorney General, of counsel; Daniel Pierre,
                    Deputy Attorney General, on the brief).
           Respondents SRA Associates, Inc., and Red White and
           Blue Thrift Store have not filed briefs.

PER CURIAM

     Ruben Marquez appeals from a final decision of the Board of Review

(Board), which determined that he is liable for a refund of $12,796 in

unemployment benefits that were erroneously paid to him. We affirm.

     The record shows that Marquez was employed by Red White and Blue

Thrift (RWB Thrift) for three years, during which time Marquez earned an

average gross weekly salary of $481.67. RWB Thrift terminated Marquez's

employment, effective June 26, 2017, and he filed a claim for unemployment

benefits. On his claim form, Marquez identified two employers: SRA

Associates, Inc. (SRA) and RWB Thrift.

     The Division of Unemployment (Division) in the State's Department of

Labor and Workforce Development (Department) determined that Marquez

worked seventy-five weeks at SRA and earned $60,697.54. He also worked

fifty-two weeks at RWB Thrift and earned $25,047. Based on those earnings,

the Division found that Marquez's weekly benefit rate was $677, and his

maximum benefit amount was $17,602.

     In April 2018, the Division found that Marquez had been paid a greater

amount in benefits than he was legally entitled to receive. It decreased his

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                                     2
weekly benefit rate to $289, and determined that his maximum benefit amount

was $7514. The Division informed Marquez he was liable to repay $12,796.

Marquez filed an administrative appeal, seeking review of the Division's

decision by the Appeal Tribunal.

      On May 24, 2018, an appeal examiner conducted a hearing in the matter.

A representative from SRA testified that Marquez never worked for SRA, and

she was not aware that SRA had reported earnings under Marquez's social

security number. Marquez conceded that he never worked for SRA. He testified

that he worked forty hours per week for RWB Thrift and earned about $12 per

hour. He stated that while he worked at RWB Thrift, he never earned $677 gross

per week.

      Marquez acknowledged that he was paid $677 per week in unemployment

benefits, but said he "had no idea anything was wrong." He claimed that when

he submitted his claim for unemployment benefits, he only listed RWB Thrift

as his employer and he did not know "how this mix up occurred . . . ."

      The Appeal Tribunal issued a decision, which was mailed on May 24,

2018. The appeal examiner found that Marquez was liable for a refund of

$12,796 because he had been paid more than he was legally entitled to receive.

The examiner noted that Marquez never advised the Division he did not work


                                                                         A-5650-17T2
                                       3
for both SRA and RWB Thrift, or questioned why he was receiving more in

unemployment benefits than he earned while he was working. The examiner

concluded that, under the circumstances, the overpayment could not be "looked

upon as an agency error."

      Marquez appealed to the Board, which upheld the Appeal Tribunal's

decision. This appeal followed. On appeal, Marquez does not dispute that he

was overpaid benefits. Rather, he argues that the Board erred by ordering him

to refund the overpayments.     He also argues that he was not afforded an

opportunity to be heard in the administrative proceedings.

      The scope of our review in an appeal from a final determination of an

administrative agency is strictly limited. Brady v. Bd. of Review, 152 N.J. 197,

210 (1997) (citing Pub. Serv. Elec. & Gas Co. v. N.J. Dep't of Envtl. Prot., 101

N.J. 95, 103 (1985)). We may not disturb an agency's decision unless it is shown

to be arbitrary, capricious or unreasonable. Ibid. (citing In re Warren, 117 N.J.

295, 296 (1989)).

      We can intervene only "in those rare circumstances in which an agency

action is clearly inconsistent with its statutory mission or with other State

policy." Ibid. (quoting George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J.

8, 27 (1994)).   Moreover, "[i]n reviewing the factual findings made in an


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                                       4
unemployment compensation proceeding, the test is not whether [we] would

come to the same conclusion if the original determination was [ours] to make,

but rather whether the factfinder could reasonably so conclude upon the proofs."

Ibid. (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div.

1985)).

      It is well-established that "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 Review, 299 N.J. Super. 671, 674 (App. Div. 1997). Federal

law requires states that receive federal funds for unemployment benefits to

recover benefits that were improperly paid. Id. at 675 (citing 42 U.S.C. §

503(a)(9); Brewer v. Cantrell, 622 F. Supp. 1320, 1324 (D. Va. 1985), aff'd, 796

F.2d 472 (4th Cir. 1986)).

      Moreover, the recovery of unemployment benefits that were paid in error

"furthers the purpose of the unemployment compensation laws." Id. at 674

(citing Vasquez v. Horn, 181 N.J. Super. 529, 532-34, 539 (App. Div. 1981)).

"The public interest clearly is not served when the Unemployment Trust Fund

is depleted by the failure to recoup benefits erroneously paid to an unentitled

recipient, however blameless he or she may have been." Ibid.


                                                                        A-5650-17T2
                                       5
      Here, there is sufficient credible evidence in the record to support the

Board's decision to require Marquez to repay $12,796. It is undisputed that

Marquez was paid $677 in weekly benefits, based on information that he was

employed by both SRA and RWB Thrift. Testimony at the hearing before the

Appeal Tribunal by Marquez and the SRA representative established, however,

that Marquez was never employed by SRA, and Marquez was paid benefits he

was not legally entitled to receive.

      Marquez argues that the Board should not have ordered him to refund the

benefits erroneously paid because the Division incorrectly entered his work

history information and/or his social security number, which led to the

overpayment of benefits. Marquez claims he never listed SRA as his employer

on his claim, and asserts the Division has the responsibility to ensure the data

entered in the system is accurate. However, even if Marquez did not state on

his claim that he had two employers, and even if he received the benefits in good

faith, he is still required to refund the overpayments. N.J.S.A. 43:21-16(d)(1);

Bannan, 299 N.J. Super. at 674.

      We note that at the hearing, Marquez asserted that because the error was

not corrected and the payments continued for a long time, he should not have to

return the overpayments.      However, as the appeal examiner pointed out,


                                                                         A-5650-17T2
                                       6
Marquez was paid $677 per week, which was more than the gross weekly salary

he received while working at RWB Thrift. The examiner observed that it made

no sense for an unemployment agency to pay a claimant more in benefits than

he earned while he was working. Thus, the overpayments could have been

minimized or avoided if Marquez had reported the overpayments promptly.

      We also note that the administrative regulations authorize the Division to

waive the recovery of erroneously-paid benefits in certain circumstances.

N.J.A.C. 12:17-14.2(a) provides that recovery may be waived when (1) the

claimant has died; (2) the claimant is disabled and no longer able to work; or (3)

recovery "would be patently contrary to principles of equity," as determined by

the Director, with the concurrence of the Controller of the Department.

      When determining whether the recovery of any overpayment "would be

patently contrary to the principles of equity," the Director and the Controller

must consider whether "the terms of a reasonable repayment schedule would

result in economic hardship to the claimant." N.J.A.C. 12:17-14.2(d). Here,

Marquez did not seek a waiver of the repayment obligation. In any event, there

is no evidence in the record showing he would meet the criteria in N.J.A.C.

12:17-14.2(a).




                                                                          A-5650-17T2
                                        7
      Marquez also argues he was not afforded the opportunity to defend

himself or speak before the Appeal Tribunal or the Board.          As we have

explained, however, the Appeal Tribunal conducted an evidentiary hearing in

this matter and Marquez testified in that proceeding. He also availed himself of

the right to appeal the Appeal Tribunal's decision to the Board, and provided the

Board with a letter explaining his position. Therefore, Marquez was afforded a

full and fair opportunity to be heard on his appeal, both before the Appeal

Tribunal and the Board.

      Affirmed.




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