David Rojas v. Administrator Unemployment Compensation Act (2011)

MEMORANDUM OF DECISION ON MOTION TO DISMISS

The plaintiff appeals from a decision of the Board of Review of the Employment Security Appeals Division of the Department of Labor.   The Board of Review adopted the findings of the Appeal Referee denying unemployment compensation benefits to the plaintiff.   The defendant moves to dismiss the appeal because it was not filed within the thirty day time limit specified in Conn. Gen.Stat. § 31–249a(a).

The record is clear that the Board of Review issued its decision on July 14, 2010, and mailed it to the plaintiff the same day.   The decision contains the written admonition, in bold lettering:  “If you wish to appeal this decision, you must do so by August 13, 2010.”   The plaintiff's petition to appeal to the Superior Court was formally received by the Board on January 4, 2011, after he contacted the Board in writing (via computer entry) on December 23, 2010.

Because the petition to appeal was obviously late by more than four months, the Board of Review treated the appeal as a request for permission to file a late appeal.   To that end, the Board held a telephone hearing on February 3, 2011, to determine if the plaintiff had good cause for filing it late, in which case the Board could determine to allow the appeal despite the untimeliness.   Conn. Gen.Stat. § 31–249a(a)1.

At that hearing the plaintiff testified that he had not received a copy of the Board's decision when it was originally mailed out by the Board.   He contacted the Department of Labor Employment Security Appeals Division (“defendant”) on December 2, 2010, to inquire about the status of his case and the defendant mailed another copy of the decision to the plaintiff, which he received.   He also testified that he had a separate mailbox for his apartment and that he had no other history of missing or misdelivered mail.

Once the plaintiff received a copy of the decision in early December, the plaintiff did not take the necessary steps to perfect his appeal until December 23, 2010.   It is noteworthy that in his contact with the defendant on December 2, 2010, the plaintiff admitted receiving regular notices through the mail regarding recoupment of overpaid benefits.   These billing notices were the result of the need for retroactive recoupment of benefits that were paid to the plaintiff until the decision of the July 2010 decision of the Board of Review became effective.

On the basis of this evidence, the Board determined that the plaintiff failed to establish good cause for the filing of the late appeal.   First, the Board declined to find that the plaintiff had failed to receive the decision in the mail in July 2010, essentially a determination based on credibility and a review of the evidence before it.   Second, the Board determined that even if the plaintiff's testimony were true that he had not received the decision in July, when he got a copy of the decision in early December 2010, he failed to take prompt steps to file the appeal at that point.   The Board recommended dismissal of the late appeal.

DISCUSSION

Under Conn. Gen.Stat. § 31–249b, the Superior Court does not undertake de novo review for unemployment compensation appeals from the Employment Security Board of Review.   Rather, based only upon the record submitted by the parties, the court must determine whether the Board could reasonably arrive at the factual findings and the conclusions of law that form the basis of this appeal.   See Finklestein v. Administrator, 192 Conn. 104, 112–13 (1984).

Here the Board determined that there was no good cause for the filing of the late appeal by the plaintiff.   This is a discretionary finding that the Board was entitled to make given the evidence before it.   The finding by the Board of Review that the appeal was untimely cannot be disturbed by this court.

CONCLUSION

Based on this finding, the Board denied the plaintiff permission to file his appeal past the thirty day window, which closed on August 13, 2010.   Because the appeal was filed late, this court has no subject matter jurisdiction to hear this administrative appeal.   See, e.g., Glastonbury Volunteer Ambulance Association, Inc. v. FOIC, 227 Conn. 848, 854–57, 633 A.2d 305 (1993).

The Motion to Dismiss is granted and this appeal is dismissed.

Patty Jenkins Pittman, Judge

Pittman, Patty Jenkins, J.