Opinion
A21-1557
04-26-2022
In the Matter of: Beverly Volk.
Department of Employment and Economic Development File No. 46177769
Considered and decided by Ross, Presiding Judge; Worke, Judge; and Larkin, Judge.
ORDER OPINION
Renee L. Worke Judge
BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:
1. On February 28, 2021, relator Beverly Volk established an unemployment-benefit account. On April 19, 2021, respondent Minnesota Department of Employment and Economic Development (DEED) sent Volk a determination of ineligibility for Pandemic Unemployment Assistance. The determination warned that it would "become final unless an appeal is filed by Monday, May 10, 2021." The determination was mailed to Volk at an address on Lyndale Avenue in Minneapolis.
2. On September 3, 2021, Volk requested a "late appeal." She claimed that she did not receive "anything in the mail" and was unable to contact DEED due to "extreme call volumes." She explained that when she finally connected with DEED, she learned that her application was denied.
3. On September 14, 2021, DEED sent the decision of an unemployment-law judge (ULJ) to Volk at the Lyndale Avenue address. The ULJ found that DEED mailed the determination of ineligibility to Volk "at the address on file." The determination stated that it would be final unless an appeal was filed within 20 days from the date of mailing. Volk did not file an appeal within this timeframe. The ULJ dismissed the appeal as untimely. Volk requested reconsideration.
4. On November 1, 2021, DEED sent the ULJ's order of affirmation to Volk at the Lyndale Avenue address. The ULJ found: when Volk applied for benefits in February 2021, she provided the Lyndale Avenue address; DEED informed Volk to keep her address updated; the "event log," which shows changes made to an applicant's account, shows no changes to Volk's address; the determination of ineligibility was mailed to the Lyndale Avenue address; the determination informed Volk that it would become final unless she appealed by May 10, 2021; and Volk did not appeal until September 3, 2021. The ULJ found that the evidence showed that "it is more likely true than not that [DEED] mailed the determination to the address Volk most recently provided." The ULJ determined that because Volk "made no efforts to file an appeal within the 20-day appeal period . . . [she] did not substantially comply with the appeal deadline." Because the appeal was untimely, the determination was final.
5. Volk filed a petition for writ of certiorari with this court, appealing the ULJ's dismissal of her appeal as untimely. In the petition, Volk indicated that her address is the Lyndale Avenue address. Volk's subsequent filings with this court include the same address.
DEED argues that the appeal is moot because Volk failed to file timely weekly requests for benefits since establishing her account and the Pandemic Unemployment Assistance program expired in September 2021. However, although Volk would face hurdles, she could attempt to retroactively recover weekly benefits; thus, DEED has not demonstrated that this court can grant no effective relief. See In re Schmidt, 443 N.W.2d 824, 826 (Minn. 1989) ("If the court is unable to grant effectual relief, the issue raised is deemed to be moot resulting in dismissal of the appeal.").
6. This court may reverse or modify a ULJ's decision if the decision prejudiced the relator's substantial rights and violates a constitutional provision, exceeds DEED's statutory authority or jurisdiction, was made upon unlawful procedure, was affected by an error of law, was unsupported by the evidence, or was otherwise arbitrary or capricious. Minn. Stat. § 268.105, subd. 7(d) (2020). We review a ULJ's dismissal of an appeal as untimely de novo. In re Murack, 957 N.W.2d 124, 127 (Minn.App. 2021).
7. An applicant may appeal a determination of ineligibility within 20 days of the date the determination is mailed. Minn. Stat. § 268.101, subd. 2(f) (2020). Ordinarily, this time for an appeal is absolute. Murack, 957 N.W.2d at 127. And, generally, an untimely appeal must be dismissed for lack of jurisdiction. Id. In Murack, however, this court determined that Governor Tim Walz's executive order 20-05 suspended strict compliance with the 20-day deadline. Id. at 129-30. While "strict compliance" was suspended, an applicant was still required to show "substantial compliance" with the statute. Id. at 130. Substantial compliance requires the applicant to show "a reasonable explanation for failing to strictly comply, [that she] has taken steps to comply with the statute, and [that she] has generally complied with the statute's purpose." Id. There must also exist "reasonable notice and a lack of prejudice to other parties." Id.
8. Here, the ULJ determined that Volk did not substantially comply with the appeal deadline because she "made no efforts to file an appeal within the 20-day appeal period." We recently held that the determination of a failure to try to file an appeal within the 20-day appeal period is too narrow of a reading of the substantial-compliance standard. In re Moose, No. A21-0881, 2022 WL 433340, at *2 (Minn.App. Feb. 14, 2022). In Moose, this court reversed and remanded to the ULJ to consider whether the applicant substantially complied with the statute because the narrow reading of the standard was prejudicial to the applicant. Id. This court determined that the applicant was prejudiced because she alleged that she did not receive an amended determination, DEED did not deny that the amended determination did not appear on her account portal, and the applicant timely appealed a related amended determination. Id.
9. Here, although the ULJ stated the standard incorrectly based on Moose, prejudice does not exist because Volk has not identified facts that would support a finding of substantial compliance. First, Volk has not provided a reasonable explanation as to why she did not strictly comply with the statute. See Murack, 957 N.W.2d at 130. Volk argues that she did not receive anything in the mail due to a "change of address," she lacked internet service, and her attempts to contact DEED were "unsuccessful due to the extreme call volumes." Volk claimed in her request for reconsideration: "In March of 2020, I lost my job and I had to move due to the COVID-19 pandemic." But if she moved in March 2020, that would be of no consequence because she established her benefit account in February 2021. Thus, this is likely a typo and she meant that she moved in March 2021. But if she moved in March 2021 and did not receive the determination of ineligibility that was mailed to the Lyndale Avenue address in April 2021, she does not explain how she received communications DEED mailed to the Lyndale Avenue address in September and November 2021, or why that is the address she used on filings with this court. She also does not explain how a lack of internet at her residence prevented her from accessing the internet outside of her residence. And she does not state how often she called DEED and what evidence she has showing that call volumes prevented her from reaching DEED.
10. Volk also does not explain the steps she took to comply with the statute. And she did not show that she generally complied with the statute's purpose by filing an appeal 96 days outside the deadline. See id.
11. The ULJ appropriately dismissed Volk's appeal as untimely. See Christgau v. Fine, 27 N.W.2d 193, 199 (Minn. 1947) (stating that when an appeal is dismissed as untimely, the only question before this court is whether the ULJ erred in dismissing the appeal, and this court cannot address the merits of the appeal).
IT IS HEREBY ORDERED:
1. The ULJ's order is affirmed.
2. Pursuant to Minn. R. Civ. App. P. 136.01, subd. 1(c), this order opinion is nonprecedential, except as law of the case, res judicata, or collateral estoppel.