APPEAL OF ANNELIE MULLEN (New Hampshire Department of Employment Security)
Argued: June 9, 2016
of Employment Security
Hampshire Legal Assistance, of Portsmouth (Kay E. Drought on
the brief and orally), and Concord (Sarah Mattson Dustin on
the brief), for the petitioner.
A. Foster, attorney general (Brian W. Buonamano, assistant
attorney general, on the brief and orally), for the New
Hampshire Department of Employment Security.
petitioner, Annelie Mullen, appeals a decision of the New
Hampshire Department of Employment Security (department). She
challenges the decision by the department's commissioner
to require the department's appeal tribunal (tribunal) to
reopen the department's case against the petitioner. We
the third time this case has come before us. See Appeal
of Annelie Mullen (Mullen II), No. 2014-0556 (N.H. Apr.
8, 2015); Appeal of Mullen (Mullen I), 165 N.H. 344
(2013). The following pertinent facts are taken from the
record or from our prior decisions. In 2011, the department
determined that, while receiving unemployment benefits in
2010, the petitioner had "knowingly failed to report
[her] work and earnings" and, thus, the department had
overpaid her benefits. See RSA 282-A:164 (2010)
(amended 2012). As a result, the department informed the
petitioner that she was required to repay the overpaid
benefits. See RSA 282-A:165 (2010). The petitioner
appealed the department's determination to the tribunal,
which upheld the determination. Mullen I, 165 N.H.
at 344. The petitioner then requested that the commissioner
reopen the record before the tribunal. See RSA
282-A:60 (2010). The commissioner granted her request and
ordered the tribunal to conduct a de novo hearing.
Mullen I, 165 N.H. at 344.
January 2012, the tribunal found that the petitioner was
overpaid benefits in 2010, but that she was "without
fault in creating the overpayment." As a result, the
tribunal determined that the petitioner was not required to
repay the state unemployment benefits. In March, the
commissioner, on her own initiative, informed the parties
that she was again reopening the record before the tribunal
because she believed that the tribunal had mistakenly
excluded the testimony of a particular witness. Id.;
see RSA 282-A:60. The commissioner ordered the
tribunal to conduct a de novo hearing and provided
"additional guidance for the next hearing."
See RSA 282-A:61 (2010) (amended 2013).
petitioner appealed the commissioner's decision to the
department's appellate board (board). Mullen I,
165 N.H. at 344. The board determined that, pursuant to RSA
282-A:64, it did not have jurisdiction at that juncture to
review the commissioner's decision. Id. at
344-45; see RSA 282-A:64 (2010). The
petitioner's motion for reconsideration was denied and
she appealed to this court. Mullen I, 165 N.H. at
appeal, the petitioner argued that the commissioner's
decision to reopen the record deprived her of due process.
Id. We determined that we lacked statutory authority
to review the issues raised by the petitioner because the
tribunal had not yet issued a final decision and the board
had not had an opportunity to review that decision.
Id.; see RSA 282-A:67, II (2010). Thus, we
dismissed the petitioner's appeal. Mullen I, 165
N.H. at 345.
the tribunal held a third de novo hearing. In April
2014, the tribunal issued a decision upholding the initial
determination that the petitioner was overpaid benefits and
requiring the petitioner to repay them. The petitioner
appealed to the board, but the board declined to accept
jurisdiction because the petitioner had not first requested
that the commissioner reopen the tribunal decision.
See RSA 282-A:60, :64.
petitioner then requested that the commissioner reopen the
case, reverse the tribunal's April 2014 decision, and
reinstate the January 2012 decision in her favor. Pending a
decision on her request, the petitioner also appealed to this
court. Subsequently, the commissioner ordered a limited
reopening for the tribunal to issue a decision amending the
number of penalty weeks imposed upon the petitioner. In
December 2014, the tribunal issued a decision modifying the
penalty period, but which was identical in all other respects
to its April 2014 decision. In April 2015, we dismissed the
petitioner's appeal without prejudice because she had
failed to exhaust her administrative remedies. Mullen
II, No. 2014-0556 (N.H. Apr. 8, 2015); see RSA
same month, the petitioner requested that the commissioner
reopen and reverse the April 2014 tribunal decision as
modified by the December 2014 decision, and reinstate the
January 2012 tribunal decision, but the commissioner declined
to do so. Thereafter, the petitioner again appealed to the
board and the board upheld the tribunal's decision. The
petitioner's motion for reconsideration was denied, and
this appeal followed.
review of department decisions is governed by RSA 282-A:67
(2010). Mullen I, 165 N.H. at 345. Our review is
confined to the record and we cannot substitute our judgment
as to the weight of the evidence on questions of fact for
that of the tribunal. RSA 282-A:67:IV, :V; see Appeal of
Niadni, Inc., 166 N.H. 256, 259 (2014). We may reverse
or modify ...