NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
Lois Spraggins ("Spraggins") appeals from a final decision of the Board of Review (the "Board"), finding that she had not filed a timely appeal challenging the denial of her claim for unemployment compensation benefits, and failed to establish good cause for the untimely appeal. We affirm.
Spraggins had been employed by The American Society of Mechanical Engineers ("ASME"), but her employment was terminated on March 20, 2013. She thereafter filed a claim for employment compensation benefits. On April 30, 2013, a deputy claims examiner in the Department of Labor (the "DOL") mailed Spraggins a notice of determination, indicating that she was disqualified for benefits as of March 17, 2013, because ASME had discharged her for misconduct connected with the work.
The notice stated that an appeal from the determination must be submitted in writing within seven days after delivery, or within ten days after the date of mailing. The notice also stated that the appeal must be filed by May 10, 2013. Spraggins did not file her appeal until May 21, 2013. Spraggins denied that she engaged in any misconduct connected with her employment. The Appeal Tribunal scheduled the matter for a hearing, and informed Spraggins that the timeliness of the appeal was an issue to be addressed.
At the hearing, the appeals examiner noted that an appeal must be filed within seven days of receipt of the initial notice of decision, or ten days after the notice is mailed. The examiner stated that if the appeal is not filed within the time specified, the initial decision on the claim would be final unless the claimant shows good cause for the untimely filing. The examiner said this "could be something over which the individual did not have control."
In response to the examiner's questions, Spraggins stated that she received the notice that she was disqualified for benefits, which had been mailed on April 30, 2013. She said she understood that she had been disqualified for benefits. She indicated that she had read and understood her appeal rights.
Spraggins also acknowledged that she filed her appeal on May 21, 2013, and the examiner asked why it took "that long to file the appeal[.]" She replied that she "was getting legal advice" from a "family attorney." Spraggins said she did not appear at the hearing with an attorney because she "figured [she] could handle it on [her] own." The examiner did not take any testimony regarding the reason ASME had terminated Spraggins' employment.
The examiner issued a decision which was mailed on June 19, 2013. The examiner stated that Spraggins had not filed her appeal within the time required by N.J.S.A. 43:21-6(b)(1). The examiner wrote that while Spraggins did not file a timely appeal because she had been seeking legal advice from her family attorney, this was not good cause for the late filing because it "was something over which [Spraggins] had control and which would not prevent [her] from filing her appeal within the time required by statute." The examiner concluded that the Appeal Tribunal did not have jurisdiction in the matter and dismissed the appeal.
Spraggins filed a timely appeal of the decision to the Board, which issued its final decision on September 26, 2013. The Board determined that the appeal had been properly dismissed, and the deputy claims examiner's decision became final, because the appeal was not filed within the time required by N.J.S.A. 43:21-6(b)(1) and Spraggins had not shown good cause for the late filing. This appeal followed.
Spraggins argues that the Board erred by finding it did not have jurisdiction to consider the appeal; she established good cause for the late filing of her appeal; the Board has repeatedly held that the delay in seeking an attorney constitutes good cause for the late filing of an appeal; and she was denied due process because she was not permitted to testify as to the merits of her appeal. We have carefully considered these arguments and conclude that they are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(1)(E). However, we add the following.
The scope of our review in an appeal from a final determination of an administrative agency is strictly limited. The agency's decision may not be disturbed unless shown to be arbitrary, capricious or unreasonable. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (citing In re Warren, 117 N.J. 295, 296 (1989)). We can only intervene "`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. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)).
As the Board recognized, the time for filing an appeal from an initial decision of a deputy claims examiner on an application for benefits is governed by N.J.S.A. 43:21-6(b)(1), which states:
Unless the claimant or any interested party, within seven calendar days after delivery of notification of an initial determination or within [ten] calendar days after such notification was mailed to his or their last-known address and addresses, files an appeal from such decision, such decision shall be final and benefits shall be paid or denied in accordance therewith, except for such determinations as may be altered in benefit amounts or duration as provided in this paragraph.
It is undisputed that Spraggins did not file her appeal within the time prescribed by N.J.S.A. 43:21-6(b)(1). As noted, the deputy's determination on her claim was mailed on April 30, 2013. Spraggins had until May 10, 2013 to file her appeal. She did not do so until May 21, 2013, eleven days past the statutory deadline.
In Rivera v. Board of Review, 127 N.J. 578, 586 (1992), the Court indicated that the statutory appeal process may not in all cases provide claimants with adequate notice of the time in which appeals must be taken challenging the denial of unemployment compensation benefits. The Court stated that, among other things, a good cause exception to the statutory time limitations on the right to appeal would "go a long way toward protecting" the due process rights of persons seeking benefits. Id. at 590.
Accordingly, the DOL adopted a regulation defining the circumstances which constitute good cause for an untimely appeal. The regulation provides:
A late appeal shall be considered on its merits if it is determined that the appeal was delayed for good cause. Good cause exists in circumstances where it is shown that:
1. The delay in filing the appeal was due to circumstances beyond the control of the appellant; or
2. The appellant delayed filing the appeal for circumstances which could not have been reasonably foreseen or prevented.
[N.J.A.C. 12:20-4.1(h).]
Here, the record supports the Board's determination that Spraggins failed to establish good cause for her untimely appeal. At the hearing, she acknowledged that she had received the deputy's initial decision on her claim and she was aware of the deadline for filing an appeal. She stated that she failed to file an appeal within the time required because she was seeking legal advice.
However, the delay was not due to circumstances beyond Spraggins' control or circumstances that "could not have been reasonably foreseen or prevented." Ibid. Indeed, Spraggins provided no credible explanation for failing to file the appeal while she was seeking legal advice. Moreover, it appears that Spraggins did not, in fact, retain an attorney for her administrative appeal. She ultimately filed her own appeal and appeared at the hearing before the appeals examiner without an attorney.
Spraggins argues that the Board erred by refusing to consider her explanation for failing to file a timely appeal, but Spraggins was afforded an opportunity to explain the reasons for the late filing at the hearing. The appeals examiner and the Board considered her explanation, but found that it did not constitute good cause under N.J.A.C. 12:20-4.1(h). Spraggins also argues that she was not adequately informed that she would have to establish good cause for the untimely-filed appeal at the hearing. However, the notice of the hearing informed Spraggins that "timeliness of [the] appeal" was an issue to be resolved.
In addition, Spraggins maintains that the appeals examiner improperly failed to inquire as to the reasons why it took her three weeks to file the appeal. The record does not support this contention. The appeals examiner asked Spraggins to explain why her appeal was filed late and she merely replied that she had been "getting legal advice." The examiner asked Spraggins three times if she wanted to add anything regarding the timeliness issue. She did not provide any further information.
Spraggins also contends that the Board has repeatedly held that the delay in seeking an attorney constitutes good cause for the late filing of an appeal. However, as the Board notes, two of the decisions cited as support for this argument are decisions of the Appeal Tribunal, which were not appealed to the Board. Moreover, in other cases that Spraggins relies upon, the claimants retained attorneys, who failed to file timely appeals. In those matters, the Board found that the claimants could not have foreseen that counsel would not file timely appeals. The circumstances presented here are not the same.
Affirmed.
