                                        2015 IL App (3d) 140595

                                Opinion filed August 6, 2015
     _____________________________________________________________________________

                                                 IN THE

                                  APPELLATE COURT OF ILLINOIS

                                            THIRD DISTRICT

                                                A.D., 2015

     ALEX GU,                               )     Appeal from the Circuit Court
                                            )     of the 12th Judicial Circuit,
           Plaintiff-Appellant,             )     Will County, Illinois,
                                            )
           v.                               )
                                            )
     THE DEPARTMENT OF                      )     Appeal No. 3-14-0595
     EMPLOYMENT SECURITY; THE               )     Circuit No. 14-MR-157
     DIRECTOR OF THE DEPARTMENT OF          )
     EMPLOYMENT SECURITY; AND THE           )
     BOARD OF REVIEW OF THE                 )
     DEPARTMENT OF EMPLOYMENT               )     Honorable
     SECURITY,                              )     John Anderson,
                                            )     Judge, Presiding.
           Defendants-Appellees.            )
     _____________________________________________________________________________

           PRESIDING JUSTICE McDADE delivered the judgment of the court, with opinion.
           Justices O'Brien and Holdridge concurred in the judgment and opinion.
     _____________________________________________________________________________

                                                OPINION

¶1          Plaintiff, Alex Gu, appeals the decision of defendant, the Board of Review of the Illinois

     Department of Employment Security (Board), dismissing his appeal of the claims adjudicator's

     determination that plaintiff was ineligible to receive unemployment insurance benefits (UIB).

     The Board dismissed defendant's appeal on the basis that it was untimely filed. We confirm the

     decision of the Board.
¶2                                                 FACTS

¶3           Plaintiff began receiving UIB on or before December 9, 2012. On March 11, 2013, the

     Illinois Department of Employment Security (IDES) mailed to plaintiff a "Notice of Work

     Search Audit" seeking documentation of plaintiff's efforts to find employment between

     December 9 and December 22, 2012. Plaintiff's response was due March 20, 2013. Plaintiff did

     not send the requested documentation by the deadline.

¶4           On March 22, 2013, IDES mailed to plaintiff a determination stating that a claims

     adjudicator had determined that plaintiff was not actively seeking work; was ineligible for

     benefits between December 9, 2012, and March 16, 2013; and would be determined ineligible

     for benefits until he met the eligibility requirements. The determination notice advised plaintiff

     that the determination would be final if he did not file an appeal within 30 days.

¶5           On May 25, 2013, plaintiff filed a request for reconsideration of the claims adjudicator's

     determination and an administrative appeal to the referee. In his request for reconsideration,

     plaintiff stated that: (1) he was out of the country between March 1 and April 26, 2013; (2) he

     did not file an appeal within 30 days because he did not receive the determination notice; and (3)

     he had been diligent in searching for a job. Plaintiff's request for reconsideration was denied by

     the claims adjudicator.

¶6           A telephone hearing on plaintiff's administrative appeal was scheduled, but the referee

     who was to conduct the hearing denied the appeal on jurisdictional grounds without holding a

     hearing. Plaintiff appealed the decision of the referee to the Board. On October 16, 2013, the

     Board remanded the matter to the referee with instructions to hold a hearing on the issue of the

     timeliness of plaintiff's appeal.




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¶7            Thereafter, the referee held a telephone hearing at which plaintiff testified. The referee

       asked plaintiff why he filed his appeal on May 25, 2013. Plaintiff replied that he had been in

       China between March 1 and April 26, 2013, looking for a job and visiting family and did not see

       the letter until he returned home. The referee asked why plaintiff waited an additional month to

       file his appeal after he returned, and plaintiff replied that he had a large amount of mail when he

       returned home.

¶8            On November 5, 2013, the referee issued a decision dismissing plaintiff's appeal. The

       referee's decision reasoned that plaintiff's appeal was untimely because it was filed more than 30

       days after the claims adjudicator's determination, and, consequently, the referee was without

       authority to hear the appeal.

¶9            On November 15, 2013, plaintiff appealed the referee's decision to the Board, alleging

       that he did not receive notice of the determination because he was out of the country between

       March 1 and April 26, 2013. Additionally, plaintiff alleged that recoupment of his benefits

       would be against equity and good conscience because it would cause extreme financial hardship,

       and he attached a petition to waive recoupment to his appeal.

¶ 10          The Board affirmed the referee's decision. The Board reasoned that the determination of

       the claims adjudicator became final when plaintiff did not file an appeal within 30 days of the

       determination, and plaintiff was not relieved from filing a timely appeal because he was out of

       the country. Consequently, the referee had no jurisdiction to entertain plaintiff's appeal.

¶ 11          Plaintiff filed a complaint for administrative review in the circuit court. In his complaint,

       plaintiff alleged that he had been out of the country between March 1 and April 26, 2013, and

       had not received the notice of work search audit. The complaint further alleged that he had

       received a "Notice of Overpayment and Recoupment Decision" on March 22, 2013, seeking


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       recoupment in the amount of $5,215. Plaintiff requested that the court reverse the Board's

       decision and reverse the recoupment decision.

¶ 12            The Board filed its administrative record as its answer to plaintiff's complaint pursuant

       to section 3-106 of the Code of Civil Procedure (735 ILCS 5/3-106 (West 2012)). Plaintiff filed

       a motion for summary judgment, arguing that the Board's answer did not respond to any of his

       allegations directly.

¶ 13          After hearing arguments, the circuit court denied plaintiff's motion for summary

       judgment and confirmed the decision of the Board. Plaintiff filed a "Petition for Rehearing" in

       the circuit court, which was denied.

¶ 14                                                ANALYSIS

¶ 15          On appeal, plaintiff argues that: (1) the circuit court erred in denying his motion for

       summary judgment; (2) recoupment of benefits previously paid to plaintiff should be waived;

       and (3) the circuit court improperly concluded that plaintiff did not adequately search for a job.

       Because plaintiff's appeal from the claims adjudicator's determination was filed beyond the

       statutory 30-day time period, we confirm the decision of the Board that both the Board and the

       referee lacked jurisdiction to reach the merits of plaintiff's appeal.

¶ 16          Administrative agencies have no general or common law powers. Gaffney v. Board of

       Trustees of the Orland Fire Protection District, 2012 IL 110012, ¶ 38. "Rather, an agency's

       powers are limited to those granted by the legislature and any action must be specifically

       authorized by statute." Id. When an administrative agency acts outside its statutory authority, it

       acts without jurisdiction. Daniels v. Industrial Comm'n, 201 Ill. 2d 160, 165 (2002). Section

       800 of the Unemployment Insurance Act provides:




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                       "Except as hereinafter provided, appeals from a claims adjudicator

                       shall be taken to a Referee. *** Unless the claimant or any other

                       party entitled to notice of the claims adjudicator's 'finding' or

                       'determination,' as the case may be, or the Director, within 30

                       calendar days after the delivery of the claims adjudicator's

                       notification of such 'finding' or 'determination,' or within 30

                       calendar days after such notification was mailed to his last known

                       address, files an appeal therefrom, such 'finding' or 'determination'

                       shall be final as to all parties given notice thereof." 820 ILCS

                       405/800 (West 2012).

¶ 17           "The time period for filing an appeal from an adjudicator's determination is mandatory

       and operates as a statute of limitations." Lachenmyer v. Didrickson, 263 Ill. App. 3d 382, 385

       (1994) (citing Hernandez v. Department of Labor, 83 Ill. 2d 512, 517 (1981)). "Both the referee

       and the Board lack jurisdiction to reach the merits of an appeal of an adjudicator's decision that

       has been untimely filed." Id. at 385.

¶ 18           Here, the record shows that the claims adjudicator's determination was mailed to plaintiff

       on March 22, 2013. Plaintiff did not file an appeal until May 25, 2013. The 30-day time period

       for appealing the determination of the claims adjudicator was mandatory. Id. at 385. Thus, the

       fact that plaintiff allegedly did not read the determination until after the appeal deadline had

       passed because he was out of the country did not excuse the late filing of his appeal. As

       plaintiff's appeal was filed well after the 30-day deadline, the Board properly dismissed

       plaintiff's appeal for lack of jurisdiction.




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¶ 19          We note that plaintiff mentions his petition for waiver of recoupment several times in his

       brief. The record does not establish that recoupment of plaintiff's benefits occurred at all. Even

       if recoupment was occurring, the record shows that plaintiff failed to follow the proper

       procedures to request waiver of recoupment. Here, plaintiff raised the issue of recoupment for

       the first time in his appeal to the Board. Plaintiff, however, is required to tender his initial

       request to his local unemployment office. See 56 Ill. Adm. Code 2835.50, 2835.55 (2012) (the

       initial request for waiver of recoupment should be made at the local unemployment office and, if

       it is denied, the claimant may file a request for reconsideration of the denial with the claims

       adjudicator or appeal to a hearings referee). Therefore, we decline to address plaintiff's waiver

       of recoupment argument.

¶ 20                                              CONCLUSION

¶ 21          The decision of the Board is confirmed.

¶ 22          Confirmed.




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