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 11, 2023

 Decided: June 30, 2023

ORDER

On this 30th day of June 2023, having considered Appellant Carrah 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 UIAB 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 federal supplemental benefits through a bifurcated 

administrative process. As explained below, the procedural history largely drives

the Court’s decision on appeal. 
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 from receiving traditional State unemployment 

benefits.

1

 She then appealed the deputy’s decision to an appeals referee.2 The 

appeals referee reversed the finding of fraud. The referee nevertheless affirmed the 

deputy’s determination that Ms. Odell had received overpayments because she 

mistakenly submitted 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 this second 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 proceedings, 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 refers 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 19 Del. C. § 3325 (explaining the two aspects of the administrative proceedings); see 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 Federal 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 $300 in weekly 

supplemental benefits 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 guidelines

require a state’s administering agency (here the Division) to recover FPUC payments

if an individual receives 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 them.

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 

decisions 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 §§ 9001–9141 (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 novo.

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 below. 

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. of 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); see also R. at 142 (where Ms. Odell acknowledged in 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 accuracy 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 FPUC 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 

11. 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 form that she now 

requests. 

12. Ms. Odell also asserts 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) permitted 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 confines 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 

13. Ms. Odell 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 the 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 overpayments. The statute at 

issue, however, imposes a mandatory obligation on the Division 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 individual 

is liable regardless of whether the overpayment was received through 

fraud or mistake . . . .

29

14. Notwithstanding the above-quoted provision, Ms. Odell contends that 

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

unilateral mistakes committed by claimants 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 requires courts to apply the plain meaning of a statutory term absent 

ambiguity).
7

judgment, inadequate knowledge, or inattention.”32 The term requires no illintended 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 who 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 mistake 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.

15. 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 

16. 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 provisions that required 

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 Division 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 CARES Act unemployment compensation 

programs in an advisory Unemployment Insurance Program Letter No. 15-20, the 

letter 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 State-law perspective given the 

mandatory recoupment provision in Section 3325(a) that requires the recovery of

erroneously paid benefits.

41

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

linked to erroneously paid traditional benefits. The Board committed no error of law 

when it declined to waive recovery of those overpayments 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 require 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.