                Filed 4/11/19 by Clerk of Supreme Court
                       IN THE SUPREME COURT
                      STATE OF NORTH DAKOTA


                                   2019 ND 98


James P. Sabo and Fun-Co., Inc.,
a North Dakota Corporation,                              Petitioners and Appellants

      v.

Job Service North Dakota,                                 Respondent and Appellee


                                   No. 20180354


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

      AFFIRMED.

      Opinion of the Court by McEvers, Justice.

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

      Michael T. Pitcher, Assistant Attorney General, Bismarck, ND, for respondent
and appellee.
                                 Sabo v. Job Service
                                    No. 20180354


       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

                                           1
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, including the interpretation
         of rules or statutes, are fully reviewable on appeal.
(Internal citations omitted.)
[¶7]     The doctrine of administrative res judicata prevents collateral attacks on
administrative agency final orders and protects the parties from duplicative
proceedings. See, e.g., Fischer v. N.D. Workers Comp. Bureau, 530 N.W.2d 344, 347

                                            2
(N.D. 1995). Although administrative res judicata “contemplates agency action taken
in an adjudicative or trial-type proceeding which resolves disputed issues the parties
have had an adequate opportunity to litigate,” Hector v. City of Fargo, 2014 ND 53,
¶ 26, 844 N.W.2d 542, where a party fails to avail himself of the statutory remedy of
an appeal, the administrative decision becomes final and cannot be collaterally
attacked in another proceeding. See, e.g., Heasley v. Engen, 124 N.W.2d 398, 400
(N.D. 1963).
[¶8]   Section 52-06-13, N.D.C.C., provides in relevant part:
              The claimant or any other party entitled to a notice of a
       determination as provided in the North Dakota unemployment
       compensation law may file an appeal from such determination with the
       appeal tribunal within twelve days after the date of mailing of the
       notice to the person’s last-known address or, if such notice is not
       mailed, within twelve days after the service of such notice.
Although Sabo claimed he could not remember receiving this notice, he does not
contend that it was not mailed to his last known address and has not raised lack of
notice as an issue on appeal.
[¶9]   Job Service reconsidered its monetary determination reducing Sabo’s
unemployment benefit to $67 per week based on his ownership interest in Fun-Co.,
Inc. See N.D.C.C. § 52-06-04(2) (governing computation of the weekly benefit
amount). The reconsidered monetary determination informed Sabo that he had to file
an appeal no later than November 21, 2017, and that “[i]f it is later determined that
payments should not have been allowed based on incorrect information, you will be
required to repay any benefits received.” Sabo did not appeal, and N.D.C.C. § 52-06-
22, provides in relevant part:
              The final decisions of the bureau or of an appeal tribunal and the
       principles of law declared by it in arriving at such decisions, unless
       expressly or impliedly overruled by a later decision of the bureau or by
       a court of competent jurisdiction, are binding upon the bureau and any
       appeal tribunal in subsequent proceedings which involve similar
       questions of law.
Section 52-06-21, N.D.C.C., further provides in part:


                                          3
               Any right, fact, or matter in issue directly passed upon or
       necessarily involved in a determination or redetermination which has
       become final, or which has become final following a decision or appeal
       under the North Dakota unemployment compensation law, is
       conclusive for all the purposes of the North Dakota unemployment
       compensation law as between the bureau, the claimant, and all
       employing units who had notice of such determination, redetermination,
       or decisions. Any determination, redetermination, or decision as to
       rights to benefits which has become final and conclusive in accordance
       with this section is not subject to collateral attack by any employing
       unit, irrespective of notice.
Job Service’s determination that Sabo was entitled to $67 per week rather than $630
per week became final when he failed to appeal from that determination.
[¶10] Sabo argues the November 9, 2017 reconsidered monetary determination is not
yet final because of N.D.C.C. § 52-06-16, which provides:
              The job insurance division may reconsider a determination of a
       claim whenever it finds:
              1.      That an error in computation or identity has occurred in
                      connection therewith;
              2.      That wages of the claimant pertinent to such
                      determination but not considered in connection therewith
                      have been newly discovered; or
              3.      That benefits have been allowed or denied or the amount
                      of benefits fixed on the basis of a misrepresentation of
                      facts.
       No such redetermination may be made after two years from the day of
       the original determination, except that a reconsidered determination
       involving a finding that benefits have been allowed or denied or the
       amount of benefits fixed on the basis of nondisclosure or
       misrepresentations of fact may be made within three years from the
       date of the determination. Notice of any such redetermination must be
       given promptly to the parties entitled to the notice or original
       determination and in the manner prescribed in section 52-06-12.
[¶11] We construe related statutes on the same subject matter together to harmonize
them and give full force and effect to the legislature’s intention. See Gratech Co.,
Ltd. v. Wold Eng’g, P.C., 2003 ND 200, ¶ 12, 672 N.W.2d 672. Sabo’s interpretation
of N.D.C.C. § 52-06-16 would conflict with the time requirements for an appeal in
N.D.C.C. § 52-06-13 and the declarations of finality contained in N.D.C.C. §§ 52-06-

                                         4
21 and 52-06-22. We agree with Job Service that N.D.C.C. § 52-06-16 is comparable
to N.D.R.Civ.P. 60(b), which allows for relief from a final judgment under limited
circumstances. Section 52-06-16, N.D.C.C., does not delay finality, but merely
allows Job Service to reopen otherwise final orders for a limited period of time under
certain circumstances. Consequently, we conclude the Appeals Referee did not err
in refusing to consider whether Job Service correctly applied N.D.C.C. § 52-06-04(2)
in adjusting Sabo’s weekly benefit amount because that decision became final and is
not subject to collateral attack.
[¶12] Although Sabo argues he was denied a fair hearing because the referee should
have determined the amount of overpayment based on a proper interpretation of
N.D.C.C. § 52-06-04(2), this is another attempt to collaterally attack Job Service’s
November 9, 2017 determination that became final when Sabo failed to appeal. See
N.D.C.C. §§ 52-06-21 and 52-06-22.
[¶13] The Appeals Referee noted Sabo was paid $630 per week from February 26,
2017, until September 2, 2017, during which under the unappealed reconsidered
monetary determination he should have been paid $67 per week. The Appeals
Referee determined this resulted in a total overpayment of $14,638. We conclude the
Appeals Referee’s overpayment calculation is supported by a preponderance of the
evidence.


                                         III
[¶14] Sabo argues he was denied a fair hearing because the referee refused to decide
whether recovery of Job Service’s overpayment to him is contrary to equity and good
conscience. He also contends that Job Service did not sufficiently address his
evidence relating to equity and good conscience. Section 52-06-33, N.D.C.C.,
provides in part that the “bureau, in its discretion, may release such person from
liability to refund when it finds that recovery would be contrary to equity and good
conscience.” The Appeals Referee explained:
       The bureau has designated the Collections Unit to set procedures for
       making, processing, and deciding requests for consideration for release
                                          5
       from liability. The claimant is directed to contact Collections at (701)
       328-2818 to receive instruction on how to submit his request.
Sabo informed us that he has not submitted a request for release from liability to the
Collections Unit.
[¶15] Because we do not render advisory opinions, there must be an actual
controversy to be determined before a court can properly adjudicate. See Comes v.
State, 2018 ND 54, ¶ 14, 907 N.W.2d 393. “An issue is not ripe for review if it
depends on future contingencies which, although they might occur, necessarily may
not, thus making addressing the question premature.” Id. (quoting Bies v. Obregon,
1997 ND 18, ¶ 9, 558 N.W.2d 855). Because Sabo has failed to submit a request to
the Collections Unit, which might grant the request in its discretion, we conclude the
issue is not ripe for our review and refuse to address it.


                                          IV
[¶16] We do not address other arguments raised because they are unnecessary to the
decision or are without merit. The judgment is affirmed.
[¶17] Lisa Fair McEvers
      Daniel J. Crothers
      Jerod E. Tufte
      Jon J. Jensen
      Gerald W. VandeWalle, C.J.




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