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Sabo v. Job Service North Dakota

Supreme Court of North Dakota

April 11, 2019

James P. Sabo and Fun-Co., Inc., a North Dakota Corporation, Petitioners and Appellants
v.
Job Service North Dakota, Respondent and Appellee

          Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Frank L. Racek, Judge.

          David A. Garaas, Fargo, ND, for petitioners and appellants.

          Michael T. Pitcher, Assistant Attorney General, Bismarck, ND, for respondent and appellee.

          OPINION

          McEvers, Justice.

         [¶1] James Sabo and Fun-Co., Inc., appeal from a judgment affirming a decision of Job Service North Dakota determining Sabo was overpaid unemployment benefits in the amount of $14, 638 and requiring him to refund those previously paid benefits. Because Job Service's decision is in accordance with the law and is supported by a preponderance of the evidence, we affirm the judgment.

         I

         [¶2] Sabo is an officer, employee, and owner of all shares of stock in Fun-Co., Inc., which operates a bar and restaurant in Fargo. After a fire damaged the building which housed the bar and restaurant, Sabo filed a claim for unemployment benefits. In February 2017, Job Service awarded Sabo unemployment benefits in the amount of $630 per week for 26 weeks.

         [¶3] On November 9, 2017, Job Service mailed to Sabo a reconsidered monetary determination informing him he was entitled to $67 per week for 26 weeks because he failed to disclose that he had a one-fourth or greater ownership interest in Fun-Co., Inc. The reconsidered monetary determination informed Sabo that if he disagreed with the determination, he "must file an appeal no later than 11/21/2017." Sabo did not appeal. On December 1, 2017, Job Service issued a notice of overpayment in the amount of $14, 638 and informed him he had twelve calendar days to appeal the overpayment amount. Sabo appealed.

         [¶4] At the administrative hearing, Sabo argued he had not been overpaid unemployment benefits, but if he had been overpaid, the amount of overpayment should be deducted from future benefits or be waived as contrary to equity and good conscience. The Appeals Referee concluded Sabo's major arguments constituted an impermissible collateral attack on Job Service's November 9, 2017 unappealed reconsidered monetary determination, and the only issue for consideration was the amount Sabo received in unemployment compensation benefits to which he was not entitled. The Appeals Referee affirmed the notice of overpayment in the amount of $14, 638 and directed Sabo to contact the Collections Unit for consideration of his request for waiver from liability for repayment. The district court affirmed the administrative decision.

         II

         [¶5] Sabo argues Job Service erred in determining he had been overpaid unemployment benefits because it misinterpreted N.D.C.C. § 52-06-04(2). Job Service contends that because Sabo failed to exhaust his administrative remedies by appealing the November 9, 2017 reconsidered monetary determination, this argument constitutes an impermissible collateral attack on a determination that has become final.

         [¶6] This Court must affirm a decision of Job Service unless the decision is not in accordance with the law, the rules or procedure of the agency have not afforded the appellant a fair hearing, the findings made by the agency are not supported by a preponderance of the evidence, or the findings do not sufficiently address the evidence presented to the agency by the appellant. See N.D.C.C. § 28-32-46(1), (4), (5), and (7). In Blume Constr., Inc. v. State ex rel. Job Service N.D., 2015 ND 285, ¶ 7, 872 N.W.2d 312, we observed:

We do not make independent findings of fact or substitute our judgment for that of the agency. We apply a deferential standard of review to the agency's findings of fact, determining only whether a reasoning mind could have determined the factual conclusions were proved by the weight of the evidence. Questions of law, ...

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