Opinion
No. CV 10 5033116 S
October 22, 2010
MEMORANDUM OF DECISION
DISCUSSION
In this case, Elvis J. Santiago, Jr., [hereinafter plaintiff] has appealed the decision of the Employment Security Appeals Division Board of Review [hereinafter board] affirming the appeals referee's decision dismissing his appeal for lack of jurisdiction. The board certified the record of this appeal to the court on January 15, 2010. The certified record was received in the Chief Clerk's Office for the Judicial District of New Haven on January 20, 2010. A hearing was held on this matter on September 13, 2010 to which the plaintiff failed to appear. For the reasons stated herein, the court upholds the decision of the board and the plaintiff's appeal is dismissed.
The record discloses the following facts. On October 1, 2004 a determination was made by the Administrator, Unemployment Compensation Act (Administrator), Benefit Payment Control Unit (BPCU) that the plaintiff was overpaid unemployment compensation benefits because he "failed to properly report his earnings from two employers during the week(s) ending 8/9/03 through 1/10/04." (Record, p. 6.) The Administrator further determined that the plaintiff "knowingly made a false statement or representation or knowingly failed to disclose a material fact in order to obtain or increase benefits." Id. As a result of this determination, in addition to the overpayment sought, a thirty-nine (39) week administrative penalty was assessed against the plaintiff's account. The Administrator further determined that any future benefits for which the plaintiff made valid claims would be forfeited and deducted until the penalty is recovered.
The Administrator's decision was mailed on October 1, 2004. The last day to file a timely appeal of the Administrator's decision was October 22, 2004. On October 26, 2004, the plaintiff appealed the Administrator's decision to the Appeals Division. General Statutes § 31-241. The appeals referee scheduled a hearing for November 24, 2004, to which the plaintiff failed to attend. On November 30, 2004, the appeals referee dismissed the plaintiff's appeal for lack of jurisdiction. The appeals referee determined that the plaintiff failed to timely file his appeal from the Administrator's decision and that there was no evidence establishing good cause for the late filing. On September 28, 2009, more than four years beyond the twenty-one-day appeal period, the plaintiff appealed the referee's decision to the board. General Statutes § 31-249. Acting pursuant to its authority under General Statutes § 31-249, and § 31-237g-41 of the Regulations of Connecticut State Agencies, the board, on December 10, 2009, affirmed the decision of the appeals referee and dismissed the plaintiff's appeal for lack of jurisdiction. The board concluded that because the plaintiff's appeal from the referee's decision was filed more than four years beyond the twenty-one-day appeal period allowed by law, and because the plaintiff offered no reason for filing a late appeal to the board, and has thus not demonstrated good cause for the untimely filing, it was required, pursuant to § 31-237g-41 to dismiss the appeal for lack of jurisdiction. On December 30, 2009, the plaintiff appealed the decision of the board to the Superior Court. General Statutes § 31-249b. In his appeal to this court, the plaintiff addresses the merits of the determination of the overpayment and the late filing of his appeal. The plaintiff, in his appeal to this court, having filed a late appeal of the administrator's decision to the referee and a late appeal of the referee's decision to the board, and, failing to submit any evidence before the appeals referee or the board of good cause for his late appeals, now seeks to have this court make a determination that there was good cause for his late appeals.
General Statutes § 31-249 provides in relevant part: "At any time before the referee's decision has become final within the periods of limitation prescribed in Section 31-248, any party including the administrator, may appeal therefrom to the board . . ."
Section 31-237g-41 of the Regulations of Connecticut State Agencies provides in relevant part: "Upon receipt of any appeal over which the Board determines it has no jurisdiction due to (1) the untimely filing of the appeal, . . . the Board shall, . . . unless [it] determines that a hearing is necessary . . . issue a decision dismissing such appeal . . ."
General Statutes § 31-249b provides in relevant part: "At any time before the board's decision has become final, any party, including the administrator, may appeal such decision, including any claim that the decision violates statutory or constitutional provisions, to the Superior Court for the judicial district of Hartford or for the judicial district wherein the appellant resides . . ."
The court's standard of review in an unemployment compensation appeal is limited. "To the extent that an administrative appeal, pursuant to General Statutes § 31-249b, concerns findings of fact, a court is limited to a review of the record certified and filed by the Board of review." Latina v. Administrator, Unemployment Compensation Act, 54 Conn.App. 154, 159, 733 A.2d 885 (1999) quoting Mattatuck Museum-Mattatuck Historical Society v. Administrator, Unemployment Compensation Act, 283 Conn. 273, 276, 679 A.2d 347 (1996). "The court must not retry the facts nor hear evidence . . . If, however, the issue is one of law, the court has the broader responsibility of determining whether the administrative action resulted from an incorrect application of the law to the facts found or could not reasonably or logically have followed from such facts. Although the court may not substitute its own conclusions for those of the administrative board, it retains the ultimate obligation to determine whether the administrative action was unreasonable, arbitrary, illegal, or an abuse of discretion." (Citations omitted.) United Parcel Service, Inc. v. Administrator, Unemployment Compensation Act, 209 Conn. 381, CT Page 20425 385-86, 551 A.2d 724 (1988).
"Although it is true that [t]he purpose of the Unemployment Compensation Act is remedial, and its provisions are to be construed liberally as regards beneficiaries in order that it may accomplish its purpose"; Derench v .Administrator, 141 Conn. 321, 324, 106 A.2d 150 (1954); it is also true that "appeals with the unemployment compensation system must be taken in a timely fashion and, if they are not, they come `too late' for review." Gumbs v. Administrator, 9 Conn.App. 131, 133, 517 A.2d 257 (1986).
General Statutes § 31-241(a) provides in relevant part that "[t]he decision of the administrator shall be final and benefits shall be paid or denied in accordance therewith unless the claimant . . . within twenty-one calendar days after such notification was mailed to his last-known address, files an appeal from such decision and applies for a hearing, provided (1) any such appeal which is filed after such twenty-one-day period may be considered to be timely filed if the filing party shows good cause, as defined in regulations adopted pursuant to Section 31-249h, for late filing . . ." General Statutes § 31-241(a); see also §§ 31-248 and 31-249. Section 31-237g-15 of the Regulations of Connecticut State Agencies sets forth the relevant factors that should be considered in determining whether good cause has been shown: "(i) The extent to which the party has demonstrated diligence in its previous dealings with the administrator and the employment security appeals division; (ii) Whether the party was represented; (iii) The degree of the party's familiarity with the procedures of the appeals division; (iv) Whether the party received timely and adequate notice of the need to act; (v) Administrative error by the administrator or employment security appeals division; or the failure of the administrator, the appeals division, or any other party to discharge its responsibilities; (vi) Factors outside the control of the party which prevented a timely action; (vii) The party's physical or mental impairment; (viii) Whether the party acted diligently in filing an appeal once the reason for the late filing no longer existed (ix) Where there is substantial prejudice to an adverse party which prevents such party from adequately presenting its case, the total length of time that the action was untimely; (x) Coercion or intimidation which prevented the party from promptly filing its appeal; (xi) Good faith error, provided that in determining whether good faith error constitutes good cause the referee shall consider the extent of prejudice to any other party, any prior history of late filing due to such error, whether the appeal is excessively late, and whether the party otherwise acted with due diligence . . ."
General Statutes § 31-248(a) provides in relevant part: "Any decision of a referee in the absence of a timely filed appeal from a party aggrieved thereby or a timely filed motion to reopen, vacate, set aside or modify such decision from a party aggrieved thereby, shall become final on the twenty-second calendar day after the date on which a copy of the decision is mailed to the party, provided (1) any such appeal or motion is filed after such twenty-one day period may be considered to be timely filed if the filing party shows good cause as defined in regulations adopted pursuant to Section 31-249h, for the late filing . . ."
"Valid [state] agency regulations have the force of statutes and constitute law." Acro Technology v. Administrator Unemployment Act, 25 Conn.App. 130, 135, 593 A.2d 154 (1991).
In this appeal, the board found that "[t]he referee's decision in this case was mailed on November 30, 2004, and the claimant's appeal to the board from that decision was filed on September 28, 2009, more than four years beyond the twenty-one day appeal period allowed by law." (Record, p. 30.) The board further found that "[t]he claimant has offered no reason for filing a late appeal to the board and has thus not demonstrated good cause for the untimely filing. The claimant also filed his appeal to the referee late." Id. The board, based on the record and the law, therefore concluded that it could not exercise jurisdiction to consider the appeal, and dismissed the appeal for lack of jurisdiction. The board's decision is consistent with the applicable statute in that General Statutes § 31-248 requires that appeals be taken within twenty-one days of the issuance of the decision unless the late filing is excused for good cause. Therefore, the board's decision to dismiss the plaintiff's appeal was reasonable because an appeal beyond the twenty-one day appeal period is "`too late' for review." Gumbs, supra, 9 Conn. App. 133.
CONCLUSION
Accordingly, based on the foregoing, the plaintiff's appeal is dismissed because the board's decision to dismiss the plaintiff's appeal for lack of jurisdiction was consistent with General Statutes § 31-248, and was not unreasonable, arbitrary or illegal.