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Appeal of Mullen

Supreme Court of New Hampshire

September 30, 2016

APPEAL OF ANNELIE MULLEN (New Hampshire Department of Employment Security)

          Argued: June 9, 2016

         Department of Employment Security

          New Hampshire Legal Assistance, of Portsmouth (Kay E. Drought on the brief and orally), and Concord (Sarah Mattson Dustin on the brief), for the petitioner.

          Joseph A. Foster, attorney general (Brian W. Buonamano, assistant attorney general, on the brief and orally), for the New Hampshire Department of Employment Security.

          CONBOY, J.

         The 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 affirm.

         This is 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.

         In 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).

         The 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 345.

         On 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.

         Subsequently, 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.

         The 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 282-A:67, II.

         That 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.

         Judicial 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 ...


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