Supreme Court of Iowa Decision
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Case Title: NANCY E. BAILEY, Appellant, vs. EMPLOYMENT APPEAL BOARD, Appellee.
Date: 06/22/94
Bound Citation:
Summary: No. 183/93-856
Decision: Appeal from the Iowa District Court for Cerro Gordo
County, John S. Mackey, Judge.

Unemployment compensation recipient appeals from order
requiring repayment of benefits erroneously received.
AFFIRMED.

Evelyn Ocheltree, Mason City, for appellant.

William C. Whitten and Joe E. Smith, Des Moines, for
appellee.

Considered by Harris, P.J., and Larson, Neuman, Snell,
and Andreasen, JJ.
LARSON, J.
Nancy E. Bailey has appealed from a decision on
judicial review denying her application to waive the
repayment of unemployment compensation erroneously received
by her. We affirm.
Bailey received emergency (or extended) unemployment
compensation benefits in 1991. As a result of a Job
Service mistake, she erroneously received benefits from
January 5, 1992, to March 7, 1992, totaling $1725. Job
Service demanded repayment, and Bailey requested that it be
waived. Job Service denied her request, and the district
court affirmed on judicial review.
A federal statute, Pub. L. 102-164 (1991), now found as
26 U.S.C. Sec. 3304 (Title I, Sec.105(b)), provides:

Repayment.--In the case of individuals who
have received amounts of emergency unemployment
compensation under this Act to which they were not
entitled, the State shall require such individuals
to repay the amounts of such emergency unemploy-
ment compensation to the State agency, except that
the State agency may waive such repayment if it
determines that--
(1) the payment of such emergency unemploy-
ment compensation was without fault on the part of
any such individual, and
(2) such repayment would be contrary to
equity and good conscience.
(Emphasis added.)
The appeal board concedes that the first element has
been met; the overpayment was the fault of the agency, not
Bailey. The parties therefore focus on the second element,
that "such repayment would be contrary to equity and good
conscience."
Bailey presented evidence that the family's monthly
expenses exceeded its income by $142. However, the agency
found that repayment was within Bailey's means, especially
in view of the earning potential of Bailey and her
husband. The district court found this conclusion to be
supported by substantial evidence, and we agree.
Moreover, while the federal statute quoted above
provides that a state may waive repayment, Iowa has elected
not to do so. Iowa Code section 96.3(7) (1991) provides
that,
[i]f an individual receives benefits for which the
individual is subsequently determined to be
ineligible, even though the individual acts in
good faith and is not otherwise at fault, the
benefits shall be recovered. The division of job
service in its discretion may recover the overpay-
ment of benefits either by having a sum equal to
the overpayment deducted from any future benefits
payable to the individual or by having the
individual pay to the division a sum equal to the
overpayment.
(Emphasis added.)
The benefits in this case were "extended" benefits
under Iowa law (or "emergency" benefits under federal law),
as opposed to regular benefits. But the rule regarding
repayments is the same. Iowa Code section 96.29 provides
in part:

Except when the result would be inconsistent,
. . . the provisions of the law which apply to
claims for or the payment of regular benefits
shall apply to claims for, and the payment of,
extended benefits.

The administrative rule implementing section 96.3(7)
provides for repayment in all cases. The only discretion
on the part of the agency is to give the recipient more
repayment flexibility if the overpayment was made by error,
as opposed to misrepresentation. In either case, the
benefits must be repaid. See 345 Iowa Admin. Code 5.8(1),
(2).
Substantial evidence supports the agency finding that
repayment would not be "contrary to equity and good
conscience." Moreover, Iowa Code section 96.3(7) and the
administrative rules set out above make it clear that the
state has elected not to provide for waiver of repayment in
any event. We therefore affirm the district court.
AFFIRMED.