Rivera v. Board of Review, New Jersey Dept. of Labor

Decision Date02 June 1992
Citation606 A.2d 1087,127 N.J. 578
PartiesAngel RIVERA, Claimant-Appellant, v. BOARD OF REVIEW, NEW JERSEY DEPARTMENT OF LABOR, Respondent-Respondent.
CourtNew Jersey Supreme Court

Keith G. Talbot, Bridgeton, for claimant-appellant (Camden Regional Legal Services, Inc., Farm Worker Div., attorney).

John C. Turi, Deputy Atty. Gen., for respondent-respondent (Robert J. Del Tufo, Atty. Gen., attorney; Mary C. Jacobson, Deputy Atty. Gen., of counsel).

Margaret Stevenson, New Brunswick, for amicus curiae, Legal Services of New Jersey (Melville D. Miller, Jr., President, attorney; Melville D. Miller, Margaret Stevenson, New Brunswick, Madeline Houston, Paterson and Theodore Gardner, Jersey City, on the brief).

The opinion of the Court was delivered by


This case concerns a migrant farmworker who received unemployment benefits from the Department of Labor but was later determined to have been ineligible. Notice of the determination and demand for the repayment of benefits was sent to plaintiff during the farming season at his off-season address and as a result did not reach him until the period for an appeal had expired. The question raised by the case is what minimum-notice rules are necessary to assure that a recipient of unemployment benefits knows that an initial determination of ineligibility has been made and has sufficient time to exercise his or her right to appeal before that determination becomes final.


Angel Rivera is a migrant farm worker. Like thousands of other temporary farm workers he is hired in the spring and laid off in the fall. Each April for fifteen years, Rivera traveled from Puerto Rico to New Jersey to work as a laborer at the same farm in Vineland. When the season ended in November, his employment would terminate and he would return to his home in Puerto Rico. During the eight months each year that Rivera worked in New Jersey, he contributed a portion of his wages to the unemployment insurance system.

In November, when the 1988 season had ended, Rivera applied for unemployment benefits from the New Jersey Department of Labor (Department). During the fall and winter, he received benefits totaling $2,030. The checks were sent to his address in Puerto Rico. When his benefits expired in March, Rivera, then aged sixty-six, moved to Pennsylvania to visit his ill mother and search for seasonal farm work. Because the Department had a policy of not updating addresses after benefits ran out, Rivera did not provide them with his temporary address. He did, however, arrange for his daughter to forward his mail from Puerto Rico to his temporary address in Pennsylvania.

On May 25, 1989, one month after the 1989 farm season in New Jersey had begun, the Department sent three forms to Rivera at his Puerto Rico address: a "Demand for Repayment," a "Schedule of Overpayments," and an "Important Information notice." The latter notice informed Rivera that he had been ineligible for benefits since November 1988 on the grounds that he was "unavailable for work." The notices were sent to Rivera because the Department came to believe that he had refused to seek full-time employment in order to preserve his social security benefits. The import of the notices was that absent a timely appeal, Rivera would be obligated to return all funds he had received since November 1988. All three notices were written in English. They were accompanied by a fourth notice in Spanish, which stated (inaccurately) that he had been declared ineligible for benefits due to having been out of the area travelling to another state.

In the right corner of the Important Information notice was the warning:

Any appeal from the determination must be submitted in writing within 10 days from the date of mailing. Final date to file appeal is 6/05/89.

When the notice arrived, Rivera's daughter telephoned him in Pennsylvania and at his request immediately forwarded the papers to him. Rivera is illiterate--he neither reads nor writes Spanish--and cannot understand English. He received the forwarded notice on June 12, 1989. Two days later, on June 14, 1989, after having the notice translated into Spanish, Rivera filed an appeal asserting that the Department's eligibility determination was incorrect. Rivera asserted that contrary to the determination of the Department, he had sought full time employment and would accept such work even if it meant a reduction in his social-security payments.

An administrative hearing on Rivera's appeal was held before the Appeal Tribunal of the Department on January 30, 1990. The Appeal Tribunal declined to hear the appeal on the merits because it had not been filed in a timely manner as required by N.J.S.A. 43:21-16(d). N.J.S.A. 43:21-16(d) provides:

Unless such a person [who allegedly improperly receives unemployment benefits], within seven calendar days after the delivery of such determination [that he has improperly received benefits], or within 10 calendar days after such notification was mailed to his last-known address, files an appeal from such determination, such determination shall be final.

The tribunal found as a matter of fact that Rivera had left Puerto Rico on March 25, 1989, that his daughter had forwarded the notice to him in Pennsylvania, and that he had sought assistance from a civic association to understand the documents and file an appeal. Nonetheless the tribunal concluded that it could not hear his appeal:

As the claimant's appeal was not filed within ten (10) days of the date of mailing, namely June 4, 1989, the determination became final and the Appeal Tribunal does not have jurisdiction to review the issues on their merits. (emphasis added)

The Board of Review of the Department affirmed the tribunal's decision. Rejecting the argument that delivery had occurred when the notices were forwarded to Pennsylvania, the Board held that "delivery occurs when a determination is deposited in a claimant's mailbox at the address he has provided to the Division." The Board held that it had no power to allow Rivera a good cause extension and that it was not required under the Farmworker Bilingual Rights Amendment of 1986, N.J.S.A. 43:21-11.1, to send repayment notices written in Spanish. The amendment states in relevant part:

The Department of Labor shall take any actions as the commissioner deems necessary to improve the administration of the unemployment compensation program as it concerns agricultural workers. The actions shall include, but not be limited to, the following:

b. making bilingual forms available for all Spanish-speaking agricultural workers applying for or receiving benefits. [ N.J.S.A. 43:21-11.1.]

The Appellate Division affirmed the Board's decision in a per curiam opinion. Like the Department, the court concluded that the ten-day limitation on the right to appeal was jurisdictional. As a result, failure to reply in a timely manner as defined by the statute made the determination final without exception. The court also rejected Rivera's argument that the notices were inadequate under N.J.S.A. 43:21-11.1 because they were not written in Spanish.

Rivera filed a petition for certification before this Court. In it he argues that his due process notice and hearing rights were violated by the agency's refusal to hear his appeal. He emphasizes that he did not receive the notice until eighteen days after the Division had sent it and that he filed his appeal just two days later. He also notes that he was not receiving benefits from the Division at the time the notice was sent, that the Division makes no effort to determine whether it is sending notice to the correct address, and that the Division does not want former recipients of benefits to report address changes. We granted certification, 127 N.J. 555, 606 A.2d 368 (1991), and now hold that the notice periods and practices applied by the Department in this case were inadequate to protect Rivera's due-process rights.


The Constitution demands that a person not be deprived of property or liberty absent due process of law. Cunningham v. Department of Civil Serv., 69 N.J. 13, 19, 350 A.2d 58 (1975). To make such process adequate the state must provide "notice and an opportunity for hearing appropriate to the nature of the case." Mullane v. Central Hanover B. & T. Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656, 94 L.Ed. 865, 873 (1950). Put simply, the citizen facing a loss at the hands of the State must be given a real chance to present his or her side of the case before a government decision becomes final. The touchstone of adequate process is not abstract principle but the needs of the particular situation. See Morissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484, 494 (1972) ("due process ... calls for such procedural protection as the particular situation demands"); Township of Montville v. Block 69, Lot 10, 74 N.J. 1, 13, 376 A.2d 909 (1977). "[A]ny proceeding which is to be accorded finality [requires] notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane, supra, 339 U.S. at 314, 70 S.Ct. at 657, 94 L.Ed. at 873.

In the past courts distinguished between "rights" and "privileges" in determining whether recipients had protected property interests in certain government benefits. See Sherbert v. Verner, 374 U.S. 398, 404, 83 S.Ct. 1790, 1794, 10 L.Ed.2d 965, 971 (1963). Today, however, that a person has a property interest in a benefit when he or she has a "legitimate claim of entitlement to it" is well established. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548, 561 (1972); Williams v. Civil Serv. Comm'n., 66 N.J. 152, 156-57, 329 A.2d 556 (1974). As the Supreme Court recognized in Goldberg v. Kelly, 397 U.S. 254, 262, 90 S.Ct. 1011, 1017, 25 L.Ed. 287, 295-96 (1970), benefits such as...

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