Opinion
A21-1398
07-08-2022
Mariah Bailey, Relator, v. Regency Home Health Care Services, Respondent, Department of Employment and Economic Development, Respondent.
Department of Employment and Economic Development File No. 39710370-3
Considered and decided by Bryan, Presiding Judge; Cochran, Judge; and Gaïtas, Judge.
ORDER OPINION
THEODORA GAÏTAS JUDGE
BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:
1. Relator Mariah Bailey, by certiorari appeal to this court, challenges the dismissal as untimely of her request for reconsideration of a decision by an unemployment-law judge (ULJ) that dismissed her administrative appeal based on her failure to participate in a hearing. We reverse and remand for further proceedings.
2. In September 2019, Bailey was terminated from employment as a group-home assistant at respondent employer Regency Home Health Care Services.
3. Bailey applied for unemployment benefits with respondent Department of Employment and Economic Development (DEED) and established a benefits account. In June 2020, DEED sent Bailey a notice of ineligibility for unemployment benefits.
4. Bailey timely appealed the determination of ineligibility, and an appeal hearing was scheduled for March 16, 2021.
5. DEED asserts that it sent Bailey a letter rescheduling the March hearing to January 13, 2021.
According to DEED, Bailey was notified of the new hearing date by a letter mailed on November 20, 2020. Although DEED cites to a letter that is purportedly in the record, the letter is not in the record.
6. On January 13, 2021, the ULJ initiated a telephone hearing. Bailey did not answer the ULJ's calls. Over a 15-minute period, the ULJ left three voicemail messages for Bailey. In the final message, the ULJ instructed Bailey to call the "State appeals office" and provided a number. The ULJ also attempted to call the employer contact at Regency but received a voicemail message for that individual. At that point, the ULJ terminated the hearing.
7. The ULJ then issued an order dismissing the appeal because Bailey "failed to personally participate in the hearing." The order stated that the decision would be final unless Bailey filed a request for reconsideration by February 3, 2021.
8. Bailey faxed a request for reconsideration to DEED on March 1, 2021-26 days after the February 3 deadline. In her request for reconsideration, she explained that she did not receive notice of the January 2021 hearing; she immediately responded to the ULJ's voicemails by calling the number provided, but she received a message that DEED was not accepting any more calls for the day; she called another number and spoke with a representative who told her that her hearing date had been changed to January 13, 2021; the representative told her that she would receive a communication in the mail; she waited a month because she was previously told that DEED was "behind" due to the COVID-19 pandemic, but she received no letter; she contacted a representative again on February 25, 2021 and was instructed to send DEED a fax.
DEED disputes this filing date and asserts that it did not receive anything from Bailey until April 16, 2021. However, the ULJ order dismissing Bailey's request for reconsideration as untimely states that Bailey filed the request for reconsideration on March 1, 2021. Thus, March 1, 2021 is considered as the filing date for Bailey's request for reconsideration.
9. Months later, in September 2021, a ULJ dismissed Bailey's request for reconsideration as untimely. The ULJ's order stated that the ULJ lacked authority to reconsider the January 2021 order because Bailey failed to timely file her request for reconsideration. It also stated that, because Bailey "made no efforts to file a request for reconsideration within the 20-day appeal period," she "did not substantially comply with the appeal deadline under Executive Order 20-05."
10. When a ULJ dismisses a request for reconsideration as untimely, the only question before an appellate court is whether the ULJ erred in doing so. Christgau v. Fine, 27 N.W.2d 193, 199 (Minn. 1947). Thus, appellate courts cannot address the merits of the appeal. Id.
11. In her brief to this court, Bailey focuses on the reason she missed the January 2021 hearing and does not address the timeliness of her request for reconsideration.Normally, "failure to argue an issue in a party's brief constitutes waiver of that issue." State v. Hartmann, 700 N.W.2d 449, 457 (Minn. 2005). But appellate courts may review issues in the interest of justice. See Minn. R. Civ. App. P. 103.04 ("[Appellate courts] may review any other matter as the interest of justice may require."). Although Bailey's brief to this court does not address the timeliness of her request for reconsideration, in the interest of justice, we consider whether the ULJ erred in dismissing the request for reconsideration.
Bailey has represented herself throughout these proceedings, including in her appeal to this court.
12. A ULJ's decision after an appeal hearing is "final unless a request for reconsideration is filed." Minn. Stat. § 268.105, subd. 1a(a) (2020). If such a request is "not filed within 20 calendar days after the sending of the decision," "[t]he [ULJ] must issue a decision dismissing the request for reconsideration as untimely." Minn. Stat. § 268.105, subd. 2(e) (2020). Generally, this 20-day timeline is "strictly construed, regardless of mitigating circumstances." King v. Univ. of Minn., 387 N.W.2d 675, 677 (Minn.App. 1986), rev. denied (Minn. Aug. 13, 1986).
13. However, the governor's March 16, 2020 Emergency Executive Order 20-05 (EEO 20-05) suspended strict compliance in response to the COVID-19 pandemic. Under EEO 20-05, an untimely request for reconsideration of a ULJ's decision could proceed so long as the applicant "substantially complied" with the statutory appeal timeframe. See In re Murack, 957 N.W.2d 124, 130-31 (Minn.App. 2021) (stating that, under EEO 20-05, applicants need not strictly comply with the 20-day reconsideration request period and remanding for a determination of whether the relator substantially complied with the statutory timeline); Emerg. Exec. Ord. No. 20-05, Providing Immediate Relief to Employers & Unemployed Workers During the COVID-19 Peacetime Emergency (Mar. 16, 2020).
EEO 20-05 was in effect at the time Bailey filed her request for reconsideration.
14. "A ULJ's decision to dismiss an appeal as untimely raises a jurisdictional question of law, which we review de novo." Murack, 957 N.W.2d at 127; see also Godbout v. Dep't of Emp. & Econ. Dev., 827 N.W.2d 799, 802 (Minn.App. 2013).
15. In Murack, we articulated several factors that a ULJ must consider in deciding whether a party substantially complied with the statutory appeal timeline. 957 N.W.2d at 130. Substantial compliance may be found when "[a] party . . . has a reasonable explanation for failing to strictly comply, has taken steps to comply with the statute, and has generally complied with the statute's purpose; and there is reasonable notice and a lack of prejudice to other parties." Id.
16. The ULJ's order dismissing Bailey's request for reconsideration states, "Bailey made no efforts to file a request for reconsideration within the 20-day appeal period. As such, Bailey did not substantially comply with the appeal deadline under Executive Order 20-05. The request for reconsideration, therefore, was not timely." The ULJ's focus on whether Bailey took steps to substantially comply within the 20-day window was too narrow. Murack does not limit substantial compliance to acts that occurred within the 20-day appeal period. See Murack, 957 N.W.2d at 130.
17. In considering whether Bailey's explanation was sufficient to demonstrate substantial compliance, the ULJ did not address the Murack factors. And although Bailey submitted an explanation for her untimely reconsideration request, the ULJ's order did not address whether Bailey should be allowed to supplement the record with any evidence showing substantial compliance with the deadline. We therefore conclude that the ULJ erred as a matter of law.
18. When a ULJ's decision prejudiced the relator's substantial rights, we may remand an unemployment-benefits case, or reverse or modify the ULJ's decision. Minn. Stat. § 268.105, subd. 7(d) (2020). We conclude that the ULJ's application of a substantial-compliance standard that is too narrow and failure to consider the Murack factors prejudiced Bailey's substantial rights. Accordingly, we reverse and remand.
IT IS HEREBY ORDERED:
1. The ULJ's order is reversed and remanded.
2. On remand, the ULJ should address (1) whether Bailey's explanation for untimely filing the request for reconsideration is reasonable, (2) whether Bailey took steps to comply with the statutory administrative appeal deadline, (3) whether Bailey generally complied with the purpose of the statute, and (4) the degree of notice and prejudice to other parties. See Murack, 957 N.W.2d at 130. The ULJ is permitted to open the record and conduct an evidentiary hearing should the ULJ elect to do so. See Minn. Stat. § 268.105, subd. 1a(c) (2020).
3. Pursuant to Minnesota Rule of Civil Appellate Procedure 136.01, subdivision 1(c), this order opinion is nonprecedential, except as law of the case, res judicata, or collateral estoppel.