Dowdy v. District of Columbia Department of Employment Services , 515 A.2d 399 ( 1986 )

PER CURIAM:

April Dowdy petitions this court for relief from an agency decision that she was ineligible for unemployment compensation. The ineligibility ruling was made by a Department of Employment Services (DOES) Appeals Examiner after that agency had paid out almost three months of benefits on petitioner’s claim. Petitioner’s initial contention is that the ineligibility decision was wrong. If that argument- fails, petitioner asks us to hold that, in any event, DOES is without power to recoup the overpaid amount, because it paid out the funds through its own error and not through any misrepresentation on her part. We agree with DOES that petitioner was ineligible for unemployment benefits at the time she applied. Since oral argument DOES has abandoned its attempt to recover the overpaid funds. In light of this recent development, we decline to consider petitioner’s alternative argument that the agency is without power to recoup. We affirm the challenged ineligibility decision.

I

Since 1981, petitioner has worked as a baker for University Student Services, Inc. (USSI). This nonprofit corporation is a wholly owned subsidiary of American University. Its purpose is to promote the advancement of education at the university by providing students with food, beverage, vending and similar services. In keeping with this role, USSI follows an annual practice of laying off employees for the university’s summer vacation period. On May 12, 1984, it issued petitioner a lay-off notice which included a promise of reemployment on or before August 30, 1984, sometime around the start of the next academic year.

Petitioner filed her claim for unemployment compensation on June 3, 1984. She was successful and received benefits for the better part of May, June and July. During this period, her employer brought an internal agency appeal against the award of benefits. On July 26, 1984, a DOES Appeals Examiner reversed the Claims Examiner’s determination and declared petitioner ineligible for benefits as of the date of filing. In support of this decision, the Appeals Examiner relied upon a recently enacted amendment to the District of Columbia Unemployment Compensation Act. See D.C.Code § 46-110(7)(C)(i) (1986 Supp.). This amendment, adopted only a few weeks before petitioner was laid off, excludes nonacademic employees of institutions of higher education from receiving benefits between school years. Later, on August 8,1984, petitioner received from DOES a document entitled “Notice of Determination of Overpayment.” The amount it assessed was $1,406 for the period prior to the ineligibility decision.

On October 9, 1984, the ineligibility decision was affirmed at the highest level of internal agency review and thus became final. On October 19, 1984, petitioner requested this court to review that final decision. Petitioner argued, not only that she was eligible for the unemployment benefits she had received, but also that, in any event, DOES had no power to recoup payments paid out through its own error and without any misrepresentation on her part.

Events continued to unfold. While this case was pending, but before oral argument, petitioner heard more from DOES regarding the “Notice of Determination of Overpayment” issued before the ineligibility decision became final. Petitioner, following instructions on that notice, had appealed the overpayment determination to a higher level within the agency. She had done so before the ineligibility decision became final and, therefore, before she was in a position to seek review of that decision in this court. On March 21, 1985, six months after petitioner asked us to review the final ineligibility decision, DOES held a hearing on the internal overpayment appeal, apparently treating that determination as unrelated to the final ineligibility decision whose review was already pending in this court. About a week later, on March 29, 1985, the Appeals Examiner— not the same Appeals Examiner as the one who had found petitioner ineligible for benefits — affirmed the determination that petitioner had been overpaid by $1,406.

By then, the ineligibility decision had been challenged in this court. Six months previously, as part of her petition for review of that decision, petitioner had contested the power of the agency to recoup any overpaid funds. With her petition for review of the ineligibility decision already pending in this court, petitioner did not appeal the second Appeals Examiner’s adverse overpayment decision to the highest level of DOES review.

We heard oral argument in this case on November 12, 1985. At that time, there was some confusion between the parties as to what exactly was before the court. DOES maintained that the only issue properly before us was the propriety of its final ineligibility decision dated October 9, 1984. Petitioner, who has argued on her own behalf throughout these proceedings, also asked us to review that decision. In addition, however, petitioner argued that, if she was indeed ineligible for the benefits she had received, we must then address the alternative issue raised in her petition, i.e., whether DOES has power to recoup funds paid out through its own error to a good faith claimant who has not misrepresented her circumstances.

The confusion between the parties was perhaps the consequence of DOES’ policy of conducting separate proceedings to resolve the interlocking questions of eligibility and overpayment. Accordingly, the resulting record being inadequate, we asked that the parties supplement it to clarify the relevant sequence of events in each of the two related proceedings. Much of the factual summary set forth here is drawn from the supplemental record.

Until oral argument in this court on November 12, 1985, DOES apparently had not considered the possibility of waiving re-coupment of the $1,406 received by petitioner prior to its ineligibility determination. It has, however, done so since. On April 30, 1986, DOES asked petitioner to provide a detailed financial statement so that it could process her request for a waiver. Petitioner duly obliged. By then, DOES had already recouped about $1,000 of the $1,406 in dispute. It did so by reducing unemployment benefits for which petitioner had subsequently become eligible. These deductions were made while the petition now under review was pending. Finally, on June 2, 1986, DOES filed in this court a document which contains the following information:

Upon a review of Ms. Dowdy’s financial statement, the Director of the Office of Unemployment Compensation has determined that recoupment of amounts paid on this claim would defeat the purpose of the statute and [be] against equity and good conscience as provided by Title 46, D.C.Code Section 120 (1985 as amended). As a consequence the Director has waived recoupment and Ms. Dowdy will receive all amounts recouped to date.

Response to Petitioner’s Motion for Leave to Supplement the Record.

II

Petitioner’s initial contention is that DOES erroneously decided her employer’s appeal from the award of unemployment compensation. Our review of that decision is limited: we consider only whether the findings of fact are supported by substantial evidence in the record and whether there was a correct application of the relevant law. Dyer v. District of Columbia Unemployment Compensation Board, 392 A.2d 1, 3 (D.C.1978). Substantial evidence is more than a mere scintilla; it means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Ridge v. Police & Firefighters Retirement & Relief Board, 511 A.2d 418, 422 (D.C.1986); Vestry of Grace Parish v. District of Columbia Alcoholic Beverage Control Board, 366 A.2d 1110, 1112 (D.C.1976).

For a valid denial of benefits between academic years, two conditions must be met:

(1) petitioner must have been an employee of an institution of higher education during an academic year or term; and

(2) there must have been reasonable assurance that petitioner would continue to perform services in the academic year or term immediately following.

See D.C.Code § 46-110(7)(C)(i) (1986 Supp.).¹ The Appeals Examiner who made the ineligibility decision specifically found both of these requirements to be met; his findings of fact and conclusions of law form the basis of the final DOES decision in this case.

We perceive no error in DOES’ ineligibility decision. The Appeals Examiner correctly identified and applied the twin criteria which governed petitioner’s eligibility for unemployment compensation. The record contains substantial evidence to support the finding that petitioner was an employee of American University: she worked for USSI, its wholly-owned, educationally-related, nonprofit subsidiary; in addition, a notice sent to petitioner at the time of her lay-off confirmed that petitioner had reasonable assurance of continued employment from the outset of the succeeding academic year, see Davis v. District of Columbia Department of Employment Services, 481 A.2d 128, 131 (D.C.1984) (per curiam). Thus, petitioner was properly found to be ineligible for benefits as of the date on which her claim was filed.

Petitioner’s alternative contention is that, even if she was ineligible for unemployment benefits, DOES should not be permitted to recoup the funds in question. Petitioner points out that the funds were overpaid through the agency’s own error and not as a result of any misrepresentation on her part. Since this contention was argued, DOES has determined that recoupment of the overpaid funds would be against equity and good conscience and would defeat the humane purposes of the unemployment statute. In light of this development, the scope of DOES’ power under D.C.Code § 46-120(d) (1981) to recoup overpaid benefits from a claimant who has not misrepresented her circumstances is no longer a matter of controversy. Hence, we decline to consider petitioner’s contention on that issue here.

We affirm the agency’s decision that petitioner was ineligible for unemployment compensation benefits.

Affirmed.

1 . The relevant part of that section provides:

Effective for weeks of compensation beginning on or after April 1, 1984, with respect to services performed [by nonacademic employees] for an educational institution or in an institution of higher education, benefits shall not be payable on the basis of such services to any individual for any week which commences during a period between 2 successive academic years or terms if such individual performs such services in the 1st of such academic years or terms and there is reasonable assurance that such individual will perform such services in the 2nd of such academic years or terms.

Academic employees, too, are rendered ineligible during this period by virtue of D.C.Code § 46-110(7)(A)-(B) (1986 Supp.).