                        NOT FOR PUBLICATION WITHOUT THE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
