IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

CARRAH LEBOON ODELL, :

: Appellant, :

:

v. : C.A. No. K22A

- 09

- 001 JJC

: UNEMPLOYMENT INSURANCE : APPEAL BOARD, :

: Appellee. :

Submitted: April 1 1, 2023 Decided: June 30 , 2023

ORDER

On this 30 th day of June 2023, having considered Appellant Car r ah Leboon

Odell’s appeal of the decision of the Unemployment Insurance Appeal Board (the

“Board” or the “UIAB”)

, and the responses filed by both the Division of
Unemployment Insurance (the “Division”) and the Board, it appears that :

1. Ms. Odell appeals a UIA B decision requiring her to repay unemployment benefits paid to her by mistake. Because her appeal challenges an administrative agency’s decision

, the Court must confine its review to those facts

contained in the UIAB’s record.

2. The Court begins by summarizing the case’s complicated procedural
history where the agency examined the relationship between traditional state
unemployment benefits and federa l supplement al benefits through a bifurcated
administrative process . As explained below, the procedural history largely drives

the Court’s decision on app eal.2

3. At the outset

, a Division claims deputy found that Ms. Odell
fraudulently submitted evidence to support her unemployment claim . For that
reason, the deputy disqualified her f rom receiving traditional S tat e unemployment

benefits

. 1 She then appealed t he deputy’s decision to an appeals referee. 2 The

a ppeals r eferee reversed the finding of fraud

. The referee nevertheless affirme d the
deputy’s de termination that Ms. Odell had received overpayments because she
mistakenly submit ted net wages rather than gross wages in support of her claim. 3

Ms. Odell declined to appeal that decision so it became final

. 4 After a final decision

that she had received an overpayment, the Division proceeded with the second phase
of the overpayment adjudicatory process

– the proceeding necessary to determine

the amount of the overpayment subject to recoupment. 5

4. In th is sec ond stage , the Division separated her benefits into two classes
and in turn conducted two proceedings to determine how much she needed to repay.

In one of the proceeding s , the claims deputy found that she was overpaid $2,039 in
traditional state unemployment benefits. 6 Given that finding, the claims deputy

issued a second decision finding that Ms. Odell wrongfully received $5,100 of
supplemental Federal Pandemic Unemployment Compensation (“FPUC”)

. 7

1 Claims Deputy ’s Disqualification Decision, R

. at 68 [hereinafter the Court refer s to the UIAB’s certified record as “R. at

. . . ”].

2 R. at 70, 125.

3 R. at 72, 127

. 4 See 19 Del

. C . § 3318 (b) (providing that if a claimant receives adequate notice of the decision and fails to appeal it within ten days, the determination becomes final).

5 See 1 9 Del

. C . § 3325 (explaining the two aspects of the administrative proceeding s ); s ee also Bradfield v. Unemployment Ins. Appeal Bd ., 53 A.2d 301, 2012 WL 3776670, at *2 (Del. Aug. 31, 2012) (TABLE) ( explaining that 19 Del

. C . § 3325 requires the Department , through a bifurcated
process, (1) to first find that the claimant was not entitled to benefits before (2) conducting a second proceeding to address the amount of the overpayment subject to recoupment).

6 R

. at 118.

7 Id.3

5. The F ederal government made FPUC available to claimants through the
Corona Virus Aid, Relief, and Economic Security Act ( the “ CARES Act” )

. 8 The
CARES Act, its supporting regulations, and U.S. Department of Labor (“DOL”)
guidelines established the requirements for the benefits and set their amounts. By

the time of Ms. Odell’s claim, the CARES Act provided her $ 3 00 in weekly
supplemental benefi t s because she was receiving traditional unemployment
compensation benefits. 9 In other words, the payment of FPUC benefits depended
upon her receipt of traditional unemployment compensation

. 10 DOL g uidelines
require a state ’s administering agency ( here the Division ) to recover FPUC payments

if an individual receive s them in error

. 11

6. After the claims deputy issued the two decisions, Ms. Odell appealed

them to an appeals referee

, who, in turn, affirmed t he m

. 12 She then appealed the
appeals referee’s decisions to the UIAB. At that point, the Board consolidated the

matters, reviewed the record from below

, and affirmed the appeals referee’s

decision s without considering further evidence or argument

. 13 Ms. Odell now appeals the Board’s order that affirmed her obligation to repay $7,139.

7

. Ms. Odell’s appeal of a UIAB decision requires the Court to review the
record for substantial evidence to support the Board’s decision and to determine if

the decision was free of legal error. 14 Substantial evidence means “such relevant

8 Coronavirus Aid, Relief, and Economic Security Act

, 15 U.S.C.A § § 90 01

– 9141 (2020)

. 9 15 U.S.C.A § 9023(b)(3)(A)(ii ).

10 U.S. Dep’t of Labor, Emp. and Training Admin., Advisory Letter, No. 15

– 20

, Attachment I, § D(2) ( Apr. 4, 2020) [hereinafter “UIPL No. 15

– 20

. . . ”].

11 See id

. § F ( 5 ) (providing that “[i]f the overpayment amount is not subject to waiver, the state agency must recover the amount of FPUC to which an individual was not entitled in accordance with the same procedures as apply to recovery of overpayments of regular UC paid by the state

. ”)

. 12 R. at 61; R. at 114.

13 Leboon (Odell) v. Delaware Department of Labor , UIAB Appeal Docket Nos. 67089948; 67069139, at 1 (May 25, 2022)

. 14 Unemployment Ins. Appeal Bd. v. Duncan , 337 A.2d 308, 309 (Del. 1975); Thompson v. Christiana Care Health Sys. , 25 A.3d 778, 781

– 82 (Del. 2011).4

evidence as a reasonable mind might accept as adequate to support a conclusion.” 15

When reviewing the record for sufficiency of evidence, the Court considers the
record in the light most favorable to the prevailing party below. 16 Furthermore, the
Court cannot make its own factual findings, assess witness credibility

, or weigh the

evidence when undertaking this review

. 17 Finally, the Court’s review for legal error

is de nov o

. 18

8

. Ms. Odell raises several arguments. Among them are challenges to the
sufficiency of the evidence, allegations that the Division committed discovery

violations, and the request that the Court consider additional evidence on appeal that
was not part of the record be low.

9

. With regard to the sufficiency of the evidence, Ms. Odell made certain

material concessions during the administrative proceedings

. First, she conceded

that she mistakenly reported her net wages rather than her gross wages

. 19 She further

conceded that the mistake, in turn, made her ineligible for traditional benefits for

seventeen weeks. Furthermore, she did not contest that she received the $5,100 in

FPUC benefits in error. 20 These concessions

, coupled with other evidence

, provided more than substantial evidence to support the Board’s decision. That
evidence included the following: (1) Ms. Odell’s testimony acknowledging that she

15 Olney v. Cooch , 425 A.2d 610, 614 (Del. 1981) (quoting Consolo v. Fed. Mar. Comm’n , 383 U.S. 607, 620 (1966)).

16 Pochvatilla v. U.S. Postal Serv. , 1997 WL 524062, at *2 (Del. Super. June 9, 1997).

17 Sokoloff v. Bd. o

f Med. Prac. , 2010 WL 5550692, at *5 (Del. Super. Aug. 25, 2010).

18 Funk v. Unemployment Ins. Appeal Bd. , 591 A.2d 222, 225 (Del. 1991).

19 See, e.g.

, R. at 48(containing Ms. Odell’s acknowledgment, through testimony, that her wages disqualified her from receiving both traditional state benefits and FPUC but requesting a waiver because of financial hardship); s ee also R. at 142 (where Ms. Odell acknowledged i n writing that “I made the mistake of reporting net wages instead of gross wages

. . .. ” ).

20 See Appellant’s Opening Br. at 9, 11

– 12 (arguing that she did not receive a copy of a summary page illustrating her “full wages” , but declining to challenge the ac curacy of the overpayment calculation); Reply Br. at 5, 9

– 10 (arguing that the software system is flawed because it did not capture her two different employers, but again making no claim that the overpayment calculation

was inaccurate).5

had unintentionally underreported her income; 21 (2) testimony from a Division
representative familiar with the reporting system; 22 and (3) her payment history that demonstrated an overpayment in the amount of $2,039 for traditional unemployment
benefits and $5,100 in F PUC supplemental benefits for the weeks of April 10, 2021
through July 31, 2021. 23

10

. Regarding the scope of the record, Ms. Odell seeks to supplement the
record on appeal with emails exchanged between her and the Division ’s and Board ’s

staff. In an administrative appeal, the Court is unable to consider new evidence for
the first time on appeal. 24

1 1

. As to discovery before the agency, Ms. Odell contends that the Division

had an obligation to provide her computer information that the Division did not offer
against her during her appeal and to organize it in a certain way. The parties have
no broad discovery obligations or rights in an administrative proceeding unless the
agency’s rules provide for them

– which in this case, none do

. Here, the proceedings
provided adequate due process because Ms. Odell had notice and a full and fair
opportunity to contest the evidence presented against her. Neither the Division nor

the UIAB had an obligation to create and package evidence in a for m that she now
requests.

1 2

. Ms. Odell also assert s several legal errors by the UIAB

. First, she

contends that the Board erred when it declined to hold a separate evidentiary hearing

before deciding her appeal of the referee’s decisions

. 25 She is incorrect because 19

Del. C. § 3320(a) permit ted the Board to rely on evidence submitted to the claims

21 R. at 48

. 22 R

. at 39.

23 R. at 128.

24 See Hubbard v. Unemployment Ins. Appeal Bd. , 352 A.2d 761, 763 (Del. 1976) (explaining that the Superior Court confine s its review on appeal to the record before the agency).

25 Appellant’s Opening Br. at 13

– 14; Appellant’s Reply Br. at 4, 13

– 14.6

deputy and appeals referee without considering further evidence or argument. 26
When the General Assembly created the UIAB’s internal appeals structure, it created

one that permitted the UIAB to rely on only the record created below. 27

1 3

. Ms. Odel l also asserts legal error when challenging the UIAB ’s
interpretation of a statute that requires the Division to recoup overpaid benefits. 28

She contends that the Board had t he discretion to waive recovery in her case because
the appeals referee had found she committed no fraud. In this regard, she contends

that the Division made the mistake when it paid her the benefits which, in turn,

relieved the Division of the obligation to recover the overpayment s

. The statute at

issue , however, imposes a mandatory obligation on the D ivisio n to recover errant

benefits as follows:
[i]f it is finally determined that an individual received benefits under this chapter for which the individual was not entitled, the individual shall repay , in cash, the amount of the overpayment . . . . The indivi dual is liable regardless of whether the overpayment was received through fraud or mistake

. . . . 29

1 4

. Notwithstanding the above

- quoted provision, Ms. Odell contends that

the Board erred because the statute should be interpreted as applying only to

unilateral mistake s committed by claimant s and it was the Division that mistakenly
overpaid her. 30 Here, the Court need not determine the nature of the mistake or who

made it because the term “mistake” is unambiguous

. 31 The common ordinary

definition of “mistake” is “a wrong action or statement proceeding from faulty

26 19 Del

. C . § 3320(a); Bossert v. Div. of Unemployment Ins., 2022 WL 17249305, at *3 (Del. Super. Nov. 22, 2022).

27 Bossert , 2022 WL 17249305, at *3.

28 Appellant’s Opening Br. at 12

– 13; Appellant’s Reply Br. 5

– 9.

29 19 Del

. C

. § 3325(a) (emphasis added)

. 30 Appellant’s Opening Br. at 12; Appellant’s Reply Br. at 5.

31 See Taylor v. Diamond State Port Corp ., 14 A.3d 536, 538 (Del. 2011) ( explaining that a tenet of statutory construction require s courts to apply the plain meaning of a statutory term absent ambiguity).7

judgment, inadequate knowledge, or inattention.” 32 The term requires no ill

intended conduct

– only error. Moreover

, nothing in the statute qualifies the
Division’s obligation to recoup wrongfully paid benefits only upon a claimant’s

error. 33 To the contrary, the Board did not err when it applied 19 Del

. C . § 3325(a)

to Ms. Odell’s overpayment regardless of wh o or what caused the mistake. As a
final note, even if the statute were as Ms. Odell advocates, she testified before the
appeals referee that “I made the mi stake of reporting net wages instead of gross

wages

. ” 34 That admission alone provided substantial evidence to support a Board
finding that it was her mistake that caused the overpayments.

1 5

. As a final matter, Ms. Odell incorrectly contends that the Board’s

refusal to waive recovery of her FPUC overpayment was arbitrary and capricious

. 35
She argues that the UIAB should have waived the recovery because federal
guidelines permit a State to apply a hardship waiver. 36

1 6

. Here, Ms. Odell received supplemental FPUC benefits only because

she received traditional state unemployment benefits. 37 Accordingly, wrongfully
paid traditional benefits meant there were wrongfully paid FPUC payments

. 38 Ms.
Odell cites no federal guidelines, regulations, or statutory provision s that require d
the Division (as Delaware’s administering agency ) to grant her a hardship waiver.

32 Mistake

, Webster’s New Collegiate Dictionary (3d ed. 1978).

33 See Russell Fowler v. GT Wilmington USA , 2023 WL 2669832, at *2 (Del. Super. Mar. 27, 2023) (explaining that under 19 Del

. C . § 3325 any person who receives benefits they are not legally entitled to shall be liable to repay the overpayment benefits regardless of fault, even if it was the Divisi on that made the mistake).

34 R. at 142.

35 Appellant’s Opening Br. at 9

– 10; Appellant’s Reply Br. at 6, 10

– 13.

36 UIPL No. 15

– 20, Attachment I § F(4); U.S. Dep’t of Labor, Emp. and Training Admin., Advisory Letter, No. 20

– 21 , § 4(a) (Feb. 7, 2022) [hereinafter “UIPL No. 20

- 21

. . . ”].

37 15 U.S.C.A § 9023(b)(3)(A)(ii)

. 38 See UIPL No. 15

– 20, Attachment I

, § F(2) ( opining that “[i] f an individual is deemed ineligible for regular compensation in a week and the denial creates an overpayment for the entire weekly benefit amount, the FPUC payment for the week will also be denied. ” )

.8

Granted, the various states’ administering agencies have the discretion to create procedures to waive recovery of wrongfully paid FPUC because of hardship if they
can do so consistently with state law

. 39 Although the U.S. Department of Labor has
encouraged states to adopt waivers for C ARES Act u nemployment c ompensation

programs in an advisory Unemployment Insurance Program Letter No. 15

- 20

, the

l etter nevertheless confirms that there is no federal requirement to grant such

waivers. 40

17. As the Division correctly highlights in its brief , the State has declined
to adopt waiver procedures for wrongfully paid FPUC benefits. In fact, the Division

and the Board have no discretion to do so from a S tate

- law perspective given the
mandatory recoupment provision in Section 3325(a) that requires the recover y of
erroneously paid benefit s

. 41 In summary, Ms. Odell’s FPUC benefits were directly

linked to erroneously paid traditional benefits

. The Board committed no error of law

w hen it declined to waive recovery of those overpayment s and ordered Ms. Odell to

repay them.

WHEREFORE

, the decision of the Unemployment Appeal Board is

AFFIRMED for the reasons explained above

. IT IS SO ORDERED.

/s/ Jeffrey J Clark Resident Judge

JJC:klc Via File & ServeXpress U.S. Mail to Appellant Carrah Leboon Odell

39 See UIPL No. 20

– 21 § 4(c) (providing “[u]nder the CARES Act ... states must req uire an individual to repay the amount to which they were not entitled ... except that the state may waive recovery under specific conditions

. ”) (emphasis added)).

40 UIPL No. 15

– 20, Attachment I

, § F(4).

41 Russell , 2023 WL 2669832, at *2.