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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Levi v. State, Dept. of Labor and Workforce Development (11/16/2018) sp-7315

Levi v. State, Dept. of Labor and Workforce Development (11/16/2018) sp-7315

             Notice:   This opinion is subject to correction before publication in the P                            ACIFIC  REPORTER.   Readers are   

             requested to bring errors to the attention of the Clerk of the Appellate Courts, 303 K Street, Anchorage,                                   

             Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email                   

                            THE SUPREME COURT OF THE STATE OF ALASKA                                                          

STEVEN  C.  LEVI,                                                                )  

                                                                                 )     Supreme  Court  No.  S-16876  

                                        Appellant,                               )  


                                                                                 )     Superior Court No. 3AN-17-05944 CI  

             v.                                                                  )  


                                                                                 )     O P I N I O N  





OF         LABOR                 AND             WORKFORCE)                            No. 7315 - November  16, 2018

DEVELOPMENT,                                                                     )


                                        Appellee.                                )




                              ppeal from the Superior Court of the State of Alaska, Third  


                           Judicial District, Anchorage, Frank A. Pfiffner, Judge.  


                           Appearances: Steven C. Levi, pro se, Anchorage, Appellant.  


                           Kimberly Rodgers, Assistant Attorney General, Anchorage,  


                           and   Jahna   Lindemuth,   Attorney   General,   Juneau,   for  



                           Before:  Bolger, Chief Justice, Winfree, Stowers, Maassen,  


                           and Carney, Justices.  


                           BOLGER, Chief Justice.  

I.           INTRODUCTION  


                           Steven Levi appeals from a superior court decision affirming an order of  


the Department of Labor and Workforce Development. The order required him to repay  


several months of unemployment insurance benefits plus interest and penalties because  


he under-reported his weekly income while receiving benefits.  Based on a Department  

----------------------- Page 2-----------------------


handbook, Levi argues that he was not required to report his wages unless he earned  


more than $50 per day.  But Levi's reading of the handbook is unreasonable; in any  


event, thegoverning statute requires a reduction in benefits whenever a claimant's wages  


are more than $50 per week.  Levi makes other arguments, but none of them have any  


merit.  We therefore affirm the superior court's decision.  



          A.        Facts  


                    Steven  Levi  received  unemployment  insurance  benefits  intermittently  


between 2010 and 2014.  At the same time he was receiving these benefits, Levi earned  


wages  through  three  different  jobs.                     First  Levi  periodically  worked  part-time  for  


American Education Complex as an adjunct faculty member. He taught when there were  


sufficient students enrolled to fill the class and was paid at the end of the class based on  


the  number  of  students  enrolled.                  Second  in  2011  Levi  worked  for  Embry  Riddle  


Aeronautical University as an adjunct faculty member.   He taught classes on an as- 


needed basis and was paid twice per month.  Finally in spring 2012 Levi worked as a  


substitute teacher for the Anchorage School District on an as-needed basis.  


                    Levi filed a required biweekly certification form when he was receiving  


unemployment  benefits.                 The  Department  mailed  Levi  a  handbook  that  contained  


instructions for completing the certification form.  The handbook in effect during the  


relevant time period instructs that a claimant must report "all work and earnings . . . on  


. . . certifications" even if the claimant was "only working part-time or temporarily."  


With regard to wages, the handbook specifically requires the claimant to report all  


"wages earned each week, Sunday through Saturday, whether or not you have actually  


been  paid."         The  handbook  further  advises  that  a  claimant  "can  earn  $50  without  


reducing [the] benefit check," but the claimant nevertheless "must report the wages."  


Benefits are "reduced 75 cents for each dollar . . . earn[ed] over $50."  

                                                               -2-                                                        7315

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                                                                                  In addition to these instructions, the handbook also contains information                                                                                                                                                                                                                                                                                                           

regarding the consequences of being overpaid benefits.                                                                                                                                                                                                                                                                                              It states that a claimant would                       

be required to "repay all benefits that are overpaid."                                                                                                                                                                                                                                                                              It also lists "severe penalties for                                                                                                                                                     

 attempting to                                                                            collect benefits to which [the claimant] [is] not entitled," including a                                                                                                                                                                                                                                                                                                                                                                    

penalty of 50% of any overpaid benefits obtained through fraud, withholding of future                                                                                                                                                                                                                                                                                                                                                                                                                     

benefits, and criminal prosecution for fraud.  It defines "fraud" as "knowingly making                                                                                                                                                                                                                                                                                                                              

 a false statement, misrepresenting a material fact or withholding information to obtain                                                                                                                                                                                                                                     


                                                                                  Levi completed the required biweekly certification form online.                                                                                                                                                                                                                                                                                                                                            Among  

 other questions, the form asks:                                                                                                                                                             "Did you work for any employers [during the weeks at                                                                                                                                                                                                                                                                                   

 issue]?"   If the claimant answers "yes," another form appears prompting the claimant to                                                                                                                                                                                                                                                                                                                                                                                                                                           

 enter the number of hours worked and wages earned for each week in which the claimant                                                                                                                                                                                                                                                                                                                                                                                                      

worked.  Despite being employed part-time during some of the time he was collecting                                                                                                                                                                                                                                      

benefits, Levi usually answered "no" to the question and therefore was not prompted to                                                                                                                                                                                                                                                                                                                                                                                                                                             

report his wages. In total Levi reported having no employer and thus no wages for more                                                                                                                                                                                                                                                                                                                                                                                                                          

than 50 weeks in which he actually did work and did earn wages, and in nine of those                                                                                   


unreported weeks Levi earned over $50 per day.                                                                                                                                                                                                                                                                  

                                                                                  In October 2011, in response to an automated report required of employers,  


theDepartment mailedan audit formto American Education Complex and Embry Riddle  


                                         1                                        Levi did report wages from the Anchorage School District for five weeks                                                                                                                                                                                                                                                                                                                                               

 in 2012, and his benefits were either denied or reduced as a result.                                                                                                                                                                                                                                                                                                                                                  But for at least one                                                                              

 of those weeks, Levi under-reported his wages.                                                                                                                                                                                                                                                     Another week, Levi did not report his                                                                                                                                                                                    

AnchorageSchool District wages but was not overpaid because his benefitsfor that week                                                                                                                                                                                                                                                                                                                                                                                                                           

were denied on the basis that he reported starting work for the Anchorage School District                                                                                                                                                                                                                                                                                                                                                                                                         

that week yet had not reported any wages. And for one week in 2011, Levi contacted the                                                                                                                                                                                                                                                                                                                                                                                                                                       

Department (after submitting the formwith no reported wages for the                                                                                                                                                                                                                                                                                                                                                         week) and reported                                               

 $1,000 in weekly earnings from an unspecified source.                                                                                                                                                                                                                                                                                            

                                                                                                                                                                                                                                                                -3-                                                                                                                                                                                                                                                7315

----------------------- Page 4-----------------------

requesting details about Levi's hours and wages. On December 7, 2011, the Department                                                   

received American Education Complex's completed form and inputted the information                                                     

                                                        2  The case was assigned that same day to the Department  

into the Department's database.                                                                                                        

investigator who input the information.  However, shortly thereafter, the Department  


changed its method of assigning cases to investigators, and for some unknown reason,  


Levi's case "just fell through the cracks."   There is no indication that the originally  


assigned investigator took any further action with regard to Levi's file after inputting the  


information on December 7.  


                        The  Department  obtained  additional  audit  forms  from  the  Anchorage  


School District in May 2012 and from American Education Complex in April 2013 and  


September  2014,  which  also  indicated  potential  overpayments  to  Levi.                                                             However,  


because the first case had already been assigned to an investigator, these subsequent  


cases were assigned to the same investigator, and no further action was taken.  


            B.          Proceedings  

                        1.          Department determination  


                        The investigator assigned to Levi's file retired in late 2016, and a new  


investigator took over his assignments approximately a month later, in November.  The  


newinvestigator reviewed Levi'sfileand discovered the four audit forms suggesting that  


Levi had been overpaid benefits. On December 6 the investigator mailed a letter to Levi  


notifying him that the audit forms indicated he had failed to report hours and earnings  


and may have been improperly paid benefits.  In response, Levi called the investigator  


two times the next day.  During those conversations Levi explained that even though he  


worked part-time as a professor, he was often not sure whether or how much he would  




                        Apparently though Embry Riddle also returned the audit form around this  


time, the information was not entered into the Department's system.  

                                                                           -4-                                                                         7315  

----------------------- Page 5-----------------------


be paid for a course until several weeks after the course had started because his earnings  


were based on the number of students enrolled.  Levi asserted that he had previously  


been told by a Department employee that he did not need to report wages he earned until  


he  was  actually  paid.                 But  Levi  repeatedly  expressed  his  agreement  with  the  


Department's  records  of  his  hours  and  earnings  and  acknowledged  that  he  had  


improperly failed to report some of those earnings and owed the Department money as  


a result.  


                    Levi sent the Department a letter two days later that offered a different  


account. In this letter he claimed that he had contacted the Department sometime in 2010  


to ask how he should report his earnings on the certification form. He contended he was  


told that he did not need to report earnings unless they exceeded $50 per day (i.e., $350  


per week).   Levi also quoted the portion of the handbook governing hour and wage  


reporting and contended that this provision was ambiguous as to whether the time frame  


for  the  allowable  $50  earnings  was  daily  or  weekly.                             And  in  a  final  letter  to  the  


Department, Levi questioned whether the Department's audit of his claims was timely  


given that the Department commenced its investigation in 2011.  


                    TheDepartment sent Levi anoticeofdetermination on December 21, 2016.  


The determination  concluded  that Levi had  failed to  report or  had "grossly  under- 


reported" his work and earnings for the weeks at issue spanning 2010-2014.  It thus  


required him to repay those benefits.  The determination further found that fraud had  


been established for those weeks, and as a result, Levi was barred from receiving future  


benefits for 52 weeks and was required to pay a penalty.  The investigator's file notes  


explain  that  she  found  fraud  based  on  Levi's  mischaracterization  of  the  handbook  


provision on hour and wage reporting as well as his shifting explanations for his failure  


to accurately report his hours and wages on the certification forms. In total the Division  


claimed that Levi owed $25,122.  

                                                                -5-                                                         7315

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                      2.         Department appeal   


                      Levi appealed                                                                                                            

                                                 the determination to the Department's appeal tribunal; a  


hearing at which Levi andtheDepartmentinvestigator testified was held before a hearing  


officer. The hearing officer issued a decision affirming the investigator's determination.  


Thedecision first notedthat overpayment ofbenefits was established becauseLevi "d[id]  


not dispute any of the dates or hours of work or earnings information provided to the  


Division by his employers." And it disagreed with Levi's interpretation of the reporting  


requirements in thehandbook, concludingthattheonlyreasonableinterpretationwas that  


the $50 figure was per week, not per day.  Moreover, even under Levi's interpretation,  


he did not report wages for nine continuous weeks in which he earned more than $50 per  


day (i.e., more than $350 per week).  


                      The decision next affirmed the Department's fraud finding on the basis that  


it was "implausible" that Levi had received incorrect instructions from a Department  


employee and, even so, his reporting was inaccurate under his proffered interpretation  


of the handbook requirements. Finally the decision rejected Levi's timeliness argument,  


concluding that the determination was issued within the applicable six-year statute of  


limitations, although it was "unfortunate" it had been left unaddressed for several years.  


                      Levi   appealed   the   hearing   officer's   decision   to   the   Department  


commissioner.  His appeal notice again disputed the Department's interpretation of the  


handbook reporting requirements and alleged that the determination fell outside the  


statute of limitations.  It also claimed that the hearing officer had a conflict of interest  

                                                                                                                         4  Levi alleged  


based on an alleged mortgage fraud scheme perpetrated by Wells Fargo. 

           3          At all points in the proceedings - and on appeal - Levi has represented                                 


           4          In her decision on Levi's subsequent motion to recuse, Superior Court  



                                                                      -6-                                                               7315

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that the hearing officer - along with the Attorney General - had obtained a mortgage                                                                                                                                                                                                                          

from Wells Fargo through the scheme, and thus Levi was entitled to another hearing                                                                                                                                                                                                                                       

before a new officer.                                                                The commissioner exercised her discretion to deny the appeal.                                                                                                                                                                                                 

                                                     3.                         Superior court appeal                                           

                                                     Levi next appealed the determination to the superior court. On April 12 the                                                                                                                                                                                                            

court issued notice that the case was assigned to Superior Court Judge Frank A. Pfiffner.                                                                                                                                                                                                                                                                   

On April 25 Levi moved for Judge Pfiffner to recuse himself based on the same conflict                                                                                                                                                                                                                                    

of interest he alleged with regard to the hearing officer - the gift mortgage scheme.                                                                                                                                                                                                                                                                       

Levi attached to the motion public records relating to Judge Pfiffner's Wells Fargo                                                                                                                                                                                                                                           

mortgage.     He   suggested  that   because   Judge   Pfiffner   had   been   issued   a   deed   of  

reconveyance, he was a participant in the scheme.                                                                                                                                                        

                                                     The superior court denied the motion on the basis that it "ha[d] no merit."                                                                                                                                                                                                                            

Judge Pfiffner explained that his possession of a "deed[] of trust on real property where                                                                                                                                                                                                                                      

the lender coincidentally happens to be Wells Fargo has no conceivable significance"                                                                                                                                                                                                               

because Wells Fargo was not a party in the case and had no relationship to it.                                                                                                                                                                                                                                                          He  

characterized Levi's mortgage fraud contentions as "frivolous" and explained that there                                                                                                                                                                                                                                             

was nothing nefarious about the deed of reconveyance that he had received - rather it                                                                                                                                                                                                                                                             

                           4                         (...continued)  


Judge Jennifer K. Wells cogently explained the alleged scheme as follows: "The scheme  


involves what Mr. Levi refers to as 'gift mortgages,' in which a mortgage debt is entirely  


forgiven by Wells Fargo but the tax benefits of making mortgage payments are somehow  


retained. Therefore, Mr. Levi believes any person who has a Wells Fargo mortgage, that  


he determines to be a gift mortgage, is aligned against him because he has become a  


 'whistle-blower' to the Internal Revenue Service regarding the gift mortgage scheme."  


Levi alleges that this scheme has been targeted at state employees "who had the power  


to have [Levi] removed from positions of employment."  According to Levi, in total he  


has discovered $100 million in mortgage gifts by Wells Fargo and has reported this  


 scheme to various federal agencies, including the FBI and the IRS, where he has "every  


reason to believe that an investigation is ongoing."  

                                                                                                                                                                       -7-                                                                                                                                                           7315

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was necessary when he refinanced his home. Judge Pfiffner noted in conclusion that the                                                                                                                                    

superior court had "an obligation not to disqualify itself where there is no valid reason                                                                                                                       

for doing so."                         Because Levi had failed to allege any violation of the relevant ethical                                                                                                  

rules by the superior court, the motion to recuse was denied.                                                                                                  

                                   Thechiefjusticeissued                                       anorder assigningreviewofJudgePfiffner's                                                                          denial  

                                                                                                          5     She reasoned that the simple fact that Judge  

to Judge Wells, who affirmed the denial.                                                                                                                                                                          

Pfiffner had a Wells Fargo  mortgage "is not enough" to show that he had a direct  


financial interest in the case. Therefore there was no basis for recusal. Levi then moved  


for reassignment of the review to another judge on the basis that Judge Wells also had  


received a gift mortgage and thus had the same conflict of interest.  The superior court  


denied the motion.  


                                   In addition to the motion for recusal and related filings, Levi also requested  


discovery and admissions from the Department relating to the alleged mortgage scheme.  


In two separate motions Levi sought, among other things, all state correspondence  


referring to himself, Wells Fargo, or home mortgages involving a deed of reconveyance.  


He also sought admissions from various superior court judges as well as individuals in  


the attorney general's office that they "paid income taxes on any, all or every Deed of  


Reconveyance received."  The Department moved to strike both motions as outside of  


the scope of the administrative appeal, which was limited to the agency record.  The  


superior court granted the motions to strike.  


                                   Finally Levi moved for a jury trial in the superior court, which the State  


opposed.   The superior court denied the motion.   Having resolved these procedural  


                 5                 See  AS 22.20.020(c) (requiring that, in the event a judge denies a motion                                                                                                

to recuse, denial is reviewed by a judge assigned "by the presiding judge of the next                                                                                                                                 

higher level of courts").                                       

                                                                                                             -8-                                                                                                    7315

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issues, on October 9, 2017, the superior court issued an order affirming the Department's                                                                          

overpayment determination.   

                              Levi appeals the superior court's decision.                                                         He also appeals the court's                    

denial of the recusal motion, its granting of the Department's motions to strike the two                                                                                                 

discovery motions, and its denial of the motion for a jury trial.                                                                            

III.           STANDARD OF REVIEW                        

                              In   administrative   appeals   "[w]here   the   superior   court   is   acting   as   an  

intermediate court of appeals, we directly review the agency decision" rather than the                                                                                                    


superior court's decision.                                                                                                                                                           

                                                              As relevant here, we apply two standards of review when  


reviewing decisions of an administrative agency, depending on the issue under review.  

                                                                                                                                                                                        7  In  


We apply reasonable basis review to questions of law involving agency expertise. 


doing so, "we 'seek to determine whether the agency's decision is supported by the facts  


and has a reasonable basis in law, even if we may not agree with the agency's ultimate  

determination.'                        8       And  we  exercise  our  independent  judgement  when  reviewing  



questions of law that do not involve agency expertise, adopting  "the rule of law that is  


most persuasive in light of precedent, reason, and policy."9  


               6             Alaska Police  Standards   Council  v.  Parcell,  348  P.3d   882,   886  (Alaska  


               7              Pacifica Marine, Inc. v. Solomon Gold, Inc., 356 P.3d 780, 788 (Alaska  



               8             Id.  (quoting Davis  Wright Tremaine LLP  v. State, Dep't  of Admin. , 324  


P.3d 293, 299 (Alaska 2014)).  


               9             Heller v. State, Dep't of Revenue, 314 P.3d 69, 72-73 (Alaska 2013).  


                                                                                             -9-                                                                                      7315

----------------------- Page 10-----------------------


                      We review for abuse of discretion rulings on a discovery motion                                                and a   


motion to recuse.                                                                                                                         

                                We will not overturn for abuse of discretion a trial court's ruling on  


such motions "unless it is plain that a fair-minded person could not rationally come to  

                                                                                           12   The "[d]enial of a motion for  



[the court's] conclusion on the basis of the known facts." 

a jury trial raises a question  of  law that we review de novo,"13   as does the proper  


application of a statute of limitations.14  




           A.	        The Department's Interpretation Of The Earnings Deduction Statute  


                      Is Reasonable.  


                      Levi argues on appeal that the handbook's summary of the hour and wage  


requirements for  benefits is ambiguous,  and he reasonably  interpreted  it to  require  



reporting only wages that exceeded $50 per day.                                  He seems to concede that the earnings  


deduction statute itself, AS 23.20.360, is clear that the figure is actually $50 per week,  

           10         Lindbo  v.  Colaska,  Inc.,  414  P.3d  646,  650  (Alaska  2018).   

           11         Timothy   W.  v.  Julia  M.,  403  P.3d   1095,   1100  (Alaska  2017).   

           12         Id.  (quoting  Hanson  v.  Hanson,  36  P.3d   1181,   1183  (Alaska  2001)).  

           13         Alyssa  B.  v.  State,  Dep't  of  Health  & Soc.  Servs.,  123  P.3d  646,  648  (Alaska  


           14         Jackson  v.  Municipality  of  Anchorage ,  375  P.3d  1166,  1170  (Alaska  2016).  

           15         Levi does not challenge the accuracy of the Department's hour and wage  


data on appeal.  He therefore does not appeal the superior court's conclusion that the  


Department's determination that Levi failed to report hour and wages was supported by  


substantial evidence.  Nor does he challenge the Department's determination that his  


misreporting constituted fraud.  


                                                                    -10-	                                                             7315

----------------------- Page 11-----------------------

but argues that the handbook should control because he was "not required" to read the                                                                                                                


                               Alaska   Statute  23.20.360   governs   how   wages   affect   a  claimant's  


unemployment insurance benefits.   It provides that a claimant's weekly benefits are  


reduced by 75% of the claimant's weekly wages that exceed $50:   "The amount of  


benefits . . . payable to an insured worker for a week of unemployment shall be reduced  


by 75 percent of the wages payable to the insured worker for that week that are in excess  


of $50. However, the amount of benefits may not be reduced below zero."17   The statute  


is thus clear that the $50 figure is based on a claimant's total weekly - not daily -  




                                The Department's unemployment benefits handbook includes a section  


entitled "Work, Wages, Income" summarizing a claimant's statutory obligation to report  


                16              The Department argues that Levi waived this argument by failing to raise                                                                                         

it before the Department or the superior court. While it is true that on appeal to this court                                                                                                   

Levi first conceded that AS 23.20.360 requires claimants to report wages of more than                                                                                                             

$50 per            week, Levi consistently argued before both the Department and the superior                                                                                           

court that the handbook did not require reduction of his benefits unless he earned over                                                                                                          

$50 a day.  Keeping in mind this court's "policy against finding unintended waiver of  


claims in technically defective pleadings filed by" self-represented litigants, to the extent  


that Levi's argument on appeal is consistent with his arguments before the Department  


and the superior court, we do not consider it waived.  Mitchell v. Mitchell, 370 P.3d  


 1070,  1083  (Alaska  2016)  (quoting DeNardo  v.  Calista  Corp.,  111  P.3d  326,  330  


(Alaska 2005)).  His briefings made evident to the court his position that the handbook  


is the ultimate authority for unemployment benefit reporting requirements and provided  


the Department with fair opportunity to reply to this argument.  See id. ("[W]e consider  


a claim to be raised when the 'briefing was such that [the court] could discern [the  


party's] legal arguments and [the opposing party] could reply to them.' " (second and  


third alterations in original) (quoting Peterson v. Ek, 93 P.3d 458, 464 n.9 (Alaska  


                17             AS 23.20.360.  


                                                                                                 -11-                                                                                           7315

----------------------- Page 12-----------------------

hours worked and wages. It first states that "all work and earnings must be reported" on                                                                                                                                                                                                                                                       

a claimant's biweekly certification form.                                                                                                                                 A claimant "must report . . . gross wages                                                                      

earned each                                        week,   Sunday through                                                                           Saturday.   .   .   ."     The   handbook   explains that a                                                                                                                                    

claimant "can earn $50 without reducing [the] benefit check" but again emphasizes that                                                                                                                                                                                                                                                    

the claimant "must report the wages." If a claimant earns "over $50," the "benefit check                                                                                                                                                                                                                                          

will be reduced by 75 cents for each dollar . . . over $50." If a claimant has "gross wages                                                                                                                                                                                                                                     

equal to or more than 1                                                                        a  times [the] weekly benefit amount, plus $50, [the claimant]                                                                                                                                                      

will not receive a benefit check for that week."                                                                                                                                             

                                                     Even assuming there is a conflict between the handbook and the statute, the                                                                                                                                                                                                             

handbook does not control over the statute.                                                                                                                                         The handbook contains an introduction                                                                

explicitly stating that the information in the handbook "is based upon, but does not                                                                                                                                                                                                                                                      

replace, [AS 23.20 and associated regulations]."                                                                                                                                                Levi was thus on notice that he should                                                                                        

consult   the   statute   in   order   to   interpret   the   reporting   requirements.     And   we   have  

previously held that similar policy statements not promulgated as regulations do not                                                                                                                                                                                                                                                       

                                                                                                                                                                      18   As Levi concedes, the statute clearly limits  

carry the force of law and are not binding.                                                                                                                                                                                                                                                                                       

unemployment benefits for claimants whose earnings "for that week  . . . are in excess of  




                                                     Regardless,                                             Levi's                            interpretation                                                of                the                 handbook                                         provision                                      is  


unreasonable.  The entirety of the handbook's reporting requirement section is framed  


in terms of weekly hours and earning.  A claimant files for benefits by the week,20  the  


                           18                        See State v. Weidner                                                               , 684 P.2d 103, 109 (Alaska 1984).                                                                                                            

                           19                        AS 23.20.360 (emphasis added).                                                                                                       



                                                     AS 23.20.375.  

                                                                                                                                                                     -12-                                                                                                                                                             7315

----------------------- Page 13-----------------------


benefit amount is a specified weekly amount,                                   and a claimant's unemployment status is                           


evaluated by the week.                                                                                                               

                                              And the same section containing the $50 figure instructs  


claimants to report all wages "earned each week, Sunday through Saturday," and it refers  


to the claimant's "weekly  benefit amount."   (Emphases added.)   Nowhere does the  


handbook refer to a daily time frame.   The certification form additionally frames all  


questions in terms of the week.  


                       In sum the statute controls over the handbook, and the statute is clear that  


the $50 figure is a weekly figure.   And nothing in the handbook conflicts with the  


Department's interpretation of the wage reporting provision as having a weekly time  




           B.	         The  Department's  Determination  Falls  Within  The  Statute  Of  


                       Limitations And Is Not Otherwise Barred For Untimeliness.  


                       Levi argues next that even if he failed to comply with the hour and wage  


reporting requirements, the statute of limitations expired before the Department issued  


its determination of overpayment. Relatedly he also contends that the Department failed  


to satisfy the separate statutory requirement of a prompt determination.  


                       If the Department's determination of overpayment was a legal "action,"  


then AS 09.10.120(a) provides the statute of limitations.   It requires that "an action  


brought in the name of or for the benefit of the state . . . may be commenced only within  

           21          AS 23.20.350(d).   



                       AS 23.20.505(a), (d).  

                                                                      -13-                                                                     7315  

----------------------- Page 14-----------------------


six years after the date of accrual of the cause of action."                                             In cases of fraud, the cause           

of   action   accrues   "from   the   time   of   discovery   by  the   aggrieved   party   of   the   facts  


constituting the fraud."                      


                        The Department learned of the facts constituting Levi's fraud no earlier  


than  December  7,  2011,  when  it  received  the  first  audit  form  from  one  of  Levi's  


employers and input this information into its database. Before that date, the Department  


had no basis for suspecting that Levi's reported hour and wage information on his  


certification forms did not match the information fromhis employers. And Levi does not  


provide an alternative date of accrual; he appears to concede that the action accrued in  


December  2011.                    In  order  to  comply  with  the  six-year  statute  of  limitations,  the  


Department  must  have  issued  its  determination  by  December  7,  2017.                                                              Here  the  


Department issued its determination on December 21, 2016. It was therefore not barred  


by the statute of limitations.  


                        Arguing to the contrary, Levi relies on the statute of limitations set forth in  


three other statutes.  Levi first points to AS 09.10.053, which applies to "an action upon  


a contract or liability" and sets a three-year statute of limitations.  But this action does  


not arise under a contract; rather it arises under the statutory unemployment benefits  


scheme.           Levi also relies  on AS 45.04.111,  which  also sets a three-year  statute of  


limitations.  But as the superior court noted, this provision is applicable only to actions  



arising  under  the  Uniform  Commercial  Code  Bank  Deposits  and  Collection  Act. 

Finally Levi points to AS 09.10.040(a), which sets a ten-year statute of limitations.  But  


this provision applies only to "an action upon a judgment or decree of a court of the  


            23          AS 09.10.120(a).   

            24         Id .   



                        AS 45.04.111.  

                                                                         -14-                                                                    7315

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United States, or of a state or territory within the United States."                                                                              The instant action is                     

not based on any such judgment, and regardless, ten years has not elapsed since the                                                                                                     

Department's   cause   of   action   against   Levi   accrued.     The   statute   of   limitations   in  

AS   09.10.120(a)  is  the   applicable   statute   of   limitations   for   a   determination   of  

overpayment because such a determination benefits the State by recouping overpaid                                                                                           

benefits and collecting a penalty, which are deposited into the State's unemployment                                                                          


trust fund account.                            

                              Levi  finally  seems  to  argue  that  the  statute  governing  unemployment  


insurance benefits imposes a promptness requirement on the Department that is distinct  


from the statute of limitations requirement.  Alaska Statute 23.20.390(b) requires the  


Department, when considering whether a claimant has been overpaid benefits and is  


liable  for  repayment,  to  "promptly  prepare  and  deliver  or  mail  .  .  .  a  notice  of  


determination  of liability."                                    Levi argues that,  because the Department "waited  five  


. . . years" after receiving the first audit form to contact him regarding the discrepancies,  


it did not comply with this requirement.  


                              This argument is unavailing because AS 23.20.390(b) does not apply to the  


investigatory stage of the Department's overpayment determination process, but rather  


to the notification stage.   In other words the provision does not limit the length of a  


Department investigation into whether a claimant has been overpaid.  Rather it requires  


that once a determination of overpayment has been made, the Department must promptly  


notify  the  claimant  of  the  determination.                                                     Here  the  Department  investigator  began  


reviewing the case no earlier than November 2016, first notified Levi of the possibility  


               26            AS 09.10.040(a).   



                             AS 23.20.390(f).  

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----------------------- Page 16-----------------------

 of overpayment on December 6, and mailed the                                                                                          notice of determination on December 21.                                                                               

 This satisfies the prompt notification requirement in AS 23.20.390(b).                                                                                                                                      

                    C.	                The Superior Court Did Not Abuse Its Discretion By Denying The                                                                                                                                        

                                       Recusal Motion.   

                                       Levi next argues that the superior court abused its discretion by denying his                                                                                                                              

 motion for recusal.                                     Levi moved for Judge Pfiffner to recuse himself based on a conflict                                                                                                      

 of interest arising from the alleged mortgage fraud scheme.                                                                                        

                                       As an initial matter, to the extent Levi relies on his peremptory challenge                                                                                                            


 right,   this   argument   fails   because   Levi   did   not   timely   invoke   this   right.                                                                                                                                   Alaska  


 Statute 22.20.022 grants each party in a superior court proceeding the ability to change  


judges once as a matter of right.  A party wishing to exercise this right must file a notice  



 of change of judge within five days of receiving notice of judicial assignment.                                                                                                                                                 But Levi  


 filed  his  motion  nearly  two  weeks  after  he  received  notice that  the  case  had  been  


 assigned to Judge Pfiffner.  Therefore he was not entitled to change judges as a matter  


 of right.  


                                       Turning to recusal, Levi failed to provide any evidence indicating bias or  


 partiality on the part of Judge Pfiffner.  The only evidence he offered with his motion to  


 recuse were public records showing that Judge Pfiffner had been issued a Wells Fargo  


 mortgage and deed of reconveyance. With other motions Levi provided copies of letters  


 to various federal agencies alleging a mortgage fraud scheme involving Wells Fargo.  


 But these routine financial transactions with Wells Fargo do not indicate participation  

                    28                 Levi's brief cites "Court Rule 43" in support of his recusal argument.                                                                                                                                                

 Alaska Civil Rule 43 was rescinded in 1979.                                                                                              ALASKA   RULES   OF   COURT: O                                                            FFICIAL  

 VERSION  103 (2018).                                            We interpret Levi to be citing Civil Rule 42, which contains the                                                                                                                


 peremptory challenge right.                                                      Alaska R. Civ. P. 42(c).                              

                    29                 AS 22.20.022(c); Alaska R. Civ. P. 42(c)(3).  


                                                                                                                       -16-	                                                                                                                7315

----------------------- Page 17-----------------------

in   any   improper   scheme.     As   Judge   Pfiffner   explained,   he   received   a   deed   of  

reconveyance not as part of a free mortgage scheme but rather because he refinanced his                                                                 

mortgage.     Levi   does   not   rebut   Judge   Pfiffner's   wholly   reasonable   explanation.   

Therefore   Levi's   contentions   of   bias   are   entirely   unsubstantiated   by   any   specific  

evidence, and the superior court did not abuse its discretion in denying his motion for                                                                 


            D.	         The Superior Court Did Not Err By Denying The Motion For A Jury  



                        Levi challenges the superior court's denial of his motion for a jury trial.31  



The Alaska Constitution provides the right to a jury trial "[i]n civil cases . . . to the same  



extent as [the right] existed at common law."                                        But this case is not a civil case; rather it  



is  an  administrative  appeal  seeking  review  of  the  Department's  determination. 


Specifically here Levi's appeal from the Department's determination is authorized by  


AS 23.20.445, which permits superior court review of the decision of the Department's  


appeal tribunal. We have recognized that there is no right to a jury trial in such an appeal  


to the superior court because administrative appeals arise under statute, not common  

        34      Moreover  the  legislature  has  set  forth  procedures  for  such  appeals  in  


            30	         See Wright v. Anding                   , 390 P.3d 1162, 1170 (Alaska 2017).                                  

            31          Levi also claims that the superior court never addressed this motion, but the  


superior court issued an order clearly denying it.  


            32          Alaska  Const.  art.  I,    16.                        For  this  right  to  apply,  "the  amount  in  


controversy [must] exceed[] two hundred and fifty dollars."  Id.  


            33          See Carlson v. Renkes, 113 P.3d 638, 641 (Alaska 2005).  


            34          See Diedrich v. City of Ketchikan, 805 P.2d 362, 366-67 (Alaska 1991)  


(citing Benson v. City of Nenana, 725 P.2d 490, 491 (Alaska 1986)); see also Conoco,  



                                                                           -17-	                                                                   7315

----------------------- Page 18-----------------------


AS 22.10.020(d),                   and they do not provide for a jury trial.                                

                        Levi counters that this case is not an administrative appeal because the                                                     

administrative   portion   "ended   when   the   case   went   to   court."     But   this  argument  

miscomprehends   the   administrative   appeal   scheme.     "A   claim   is   functionally   an  

administrative appeal if it requires the court to consider the propriety of an agency                                                         

                            36      Here  Levi's  notice  of  appeal  explicitly  sought  review  of  the  


Department's determination.  Therefore Levi's appeal is correctly characterized as an  


administrative appeal, and the superior court did not err in denying the motion for a jury  



            E.	         The Superior Court Did Not Abuse Its Discretion By Striking The  


                        Discovery Motions.  


                        As his final argument,37  Levi contends that the superior court abused its  


            34          (...continued)  


Inc. v. State, Dep't of Nat. Res., No. S-4803, 1993 WL 13563632, at *3 (June 9, 1993)  


("Because an administrative appeal is the proper vehicle for [appellants'] claims . . . the  


parties have no right to a jury trial.").  

            35	         See also Alaska R. App. P. 601-12.  


            36          Carlson, 113 P.3d at 641 (quoting Haynes v. State, Commercial Fisheries  


Entry Comm'n, 746 P.2d 892, 893 (Alaska 1987)).  


            37          Levi also includes in his points on appeal the following question: "Did the  


 [Department] take the alleged amount of overpayment out of [Levi's] pr[e]ceeding two  


(2) unemployment periods?"  However Levi does not discuss this issue in the argument  


section of his brief.  Therefore we deem it waived and do not consider it on appeal.  


Hymes v. DeRamus, 222 P.3d 874, 887 (Alaska 2010) (applying the "well-established  


rule that issues  not argued in opening appellate briefs are waived" equally to self- 


represented litigants).  Moreover Levi did not raise this issue in the agency or superior  


court proceedings.  See Mullins v. Oates, 179 P.3d 930, 941 n.31 (Alaska 2008) ("A  


party may not raise an issue for the first time on appeal." (alteration omitted) (quoting  

Brandon v. Corr. Corp. of Am., 28 P.3d 269, 280 (Alaska 2001))).  


                                                                          -18-	                                                                   7315

----------------------- Page 19-----------------------

discretion by granting the State's motion to strike his discovery motions. Levi filed two                                                                                                                           

discovery   motions seeking a broad                                                            range of documents                                      relating to                  the alleged                    gift  

mortgage scheme, including state correspondence and admissions from various judges                                                                                                                           

and officials.   

                                  Levi's argument on this issue is premised on his contention that this is a                                                                                                              

                                                                                                                                                     38   However, as noted above,  

civil case to which the broad rules of civil discovery apply.                                                                                                                                                

this action is not a civil case but rather an administrative appeal from the Department's  


determination. In such administrative appeals, the record generally consists solely of the  


agency record.39                               It was therefore not error to strike discovery motions that seek to  


supplement this record.  


V.               CONCLUSION  

                                  We AFFIRM the judgment of the superior court affirming the decision of  


the Department of Labor and Workforce Development.  


                 38               See  Alaska  R.  Civ.  P.  26.   

                 39               AS  22.10.020(d);  Alaska  R.  App.  P.  604(b)(1)(A).  

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