This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).








Stanley A. Akopi,





Commissioner of Economic Security,



Filed August 13, 2002


Robert H. Schumacher, Judge

Concurring specially, Minge, Judge


Department of Economic Security

File No. 1045001



Peter B. Knapp, Aimée D. Dayhoff, Certified Student Attorney, William Mitchell Law Clinic, 875 Summit Avenue, St. Paul, MN 55105 (for relator)


Linda Holmes, Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (for respondent)


            Considered and decided by Minge, Presiding Judge, Schumacher, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N


Stanley A. Akopi appeals the Commissioner of Economic Security's decision denying him unemployment benefits.  The representative found that because Akopi had received benefits earlier by fraud he was not entitled to benefits when he later applied and was charged a penalty.  Akopi claims he was the victim of identity theft and that another person received the checks sent to him.  We affirm.



In September of 2001, Akopi applied for unemployment benefits with the Department of Economic Security.  The department informed Akopi that he had previously received benefits he was not entitled to and would be charged a penalty out of his new application.  On September 18, 2001, Akopi appealed the department's decision.  A hearing was held before an unemployment law judge. 

            At that hearing Akopi presented testimony that in June of 2000 he had previously applied for benefits with the department.  He received benefits until August 22, 2000.  Akopi alleged that some time in June of 2000 he met a man named James Akopi Hedda at a local bar.  Hedda needed a place to stay and Akpoi allowed him to stay at his apartment on Inglehart Avenue in St. Paul.  Akopi alleged that while Hedda was living with him, Akopi showed him how to apply for unemployment benefits through the department's automated system.  Akopi stated that Hedda was present when Akopi requested his benefits using a speakerphone.  Further, he asserted that, Hedda had access to Akopi's social security number, personal identification number issued by the department, an old driver's license, and Akopi's mailbox at the University of St. Thomas. 

On August 23, 2000, Akopi began working at St. Paul Academy and in September of 2000, Akopi also began employment with Teltech Resource Corporation in Bloomington.  During this time, he continued to receive benefits.  Akopi worked with Teltech until December 23, 2000. 

            In September 2001, Akopi again applied for unemployment benefits and the department informed him that his benefits were overpaid from September 6, 2000 to December 27, 2000.  Checks sent to Akopi by the department were cashed during the period Akopi had been working. 

            The first disputed check was sent to Akopi's address on Inglehart Avenue.  The remainder of the checks were sent to his post office box at the University of St. Thomas.  The first disputed check was cashed at Liberty State Bank in St. Paul.  The remainder of the checks were cashed at a bank in Bloomington Minnesota.  All of the checks were sent to Akopi pursuant to requests to the department's automated phone system that requires an applicant to supply his or her social security number and personal identification number given to the applicant from the department. 

At the hearing, Akopi claimed that he was the victim of identity theft and Hedda had the ability to request the checks and get them through Akopi's St. Thomas mailbox.  Hedda had access to an expired driver's license that Akopi kept in his apartment.  The checks were cashed using the expired license.  Akopi's signature was similar to the signature on the disputed checks.  The signatures on the checks are close to a match of the signature on Akopi's current driver's license.

            At the hearing, Akopi presented a settlement offer from a debt collection agency dated November 6, 2001 regarding a credit card bill.  He also presented a document from a Master Card account containing a double billing from July 17, 2001 of $29.95 to Paycom.Net.  He also presented a response from Master Card to a complaint by Akopi regarding the double billing.  Akopi claimed these documents plus his driver's license and his police complaint card show he was the victim of identity theft. 

            The unemployment law judge determined that Akopi was a victim of identity theft and had not received the unemployment benefits sent to him.  The unemployment law judge ruled that Akopi was entitled to benefits on his new request and did not have to pay back the other benefits paid.

            The department appealed the unemployment law judge's decision to the representative of the commissioner of economic security.  The representative ruled that the disputed checks had the same signature as the previous checks cashed by Akopi.  The representative further noted that the legitimate checks were cashed at Liberty State Bank as well as the first disputed check.  The parties never presented the legitimate checks before the unemployment law judge.  The rest of the checks were cashed in Bloomington at the same time Akopi began working in Bloomington.    The representative noted that driver's license records indicated that Akopi's stolen driver's license was issued a year prior to his current license.  Neither party produced the driver's license records before the unemployment law judge. Based on the evidence presented, the representative determined that Akopi received benefits by fraud and must pay them back plus penalty.


1.         On appeal, a reviewing court must examine the decision of the commissioner's representative, rather than that of the unemployment insurance judge.  Kalberg v. Park & Recreation Bd., 563 N.W.2d 275, 276 (Minn. App. 1997).  Decisions of the commissioner's representative are accorded particular deference.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  The commissioner's representative's factual findings are viewed in the light most favorable to the decision and are not disturbed if evidence in the record reasonably tends to sustain them.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  The fact that the commissioner's representative's findings contradict the unemployment compensation judge's findings is of no consequence to this court's review of the commissioner's representative's findings. See Lolling, 545 N.W.2d at 377. 

            The commissioner's representative reviews the unemployment compensation judge's findings and decision de novo.

The commissioner shall, independent of the findings of fact and decision of the unemployment law judge, examine the evidence and make those findings of fact as the evidence, in the judgment of the commissioner require, and make that decision as the facts found by the commissioner require.


Minn. Stat. § 268.105, subd. 2(c) (2000).  However,

The commissioner shall not, except for the purposes of deciding whether to remand a matter to an unemployment law judge for a further evidentiary hearing, consider any evidence that was not submitted at the hearing before the unemployment law judge. 


Minn. Stat. § 268.105, subd. 2(d) (2000).  In this case, the commissioner's representative considered driver's license records and undisputed cashed unemployment benefit checks in making its decision.  Although this evidence was outside the record, there was still ample evidence before the commissioner's representative to support his decision. 

            The representative was presented with evidence that the signatures on the disputed checks were the same as the signatures on Akopi's current driver's license.  In addition, the disputed checks were cashed at a bank close to where Akopi was working in Bloomington.  Further, a request made to the department had Akopi's social security number and his personal identification number.  Also, Akopi claimed that he applied for a new driver's license because the birth date on the old one was wrong, yet the new license included his full middle name and had a different address.  Finally, there was no showing Hedda existed.  The representative found Akopi's claims of identity theft unbelievable.   

The evidence Akopi produced to prove his claim of identity fraud was nothing more than a settlement agreement from a credit card company and a document with a police case number on it.  Under the circumstances, the evidence against Akopi's claim reasonably sustains the representative's decision.  

2.         Akopi claims the Minnesota Supreme Court's decision in Tuff v. Knitcraft Corp., 526 N.W.2d 50 (Minn. 1995) is against sound public policy and should be overturned.  In Tuff, the Minnesota Supreme Court ruled that the commissioner's representative need not give any weight to an unemployment law judge's credibility determinations.  Tuff, 526 N.W.2d at 51.  Akopi argues that the person that hears the testimony should decide credibility determinations.

            "The function of the court of appeals is limited to identifying errors and then correcting them."  Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).  The task of extending existing law falls to the supreme court or the legislature, but it does not fall to the court of appeals.  Stubbs v. North Mem'l Med. Ctr., 448 N.W.2d 78, 80-81 (Minn. App. 1989), review denied  (Minn. Jan. 12, 1990).  The Minnesota Supreme Court's precedent binds the court of appeals.  Jendro v. Honeywell, Inc., 392 N.W.2d 688, 691 n. 1 (Minn. App. 1986), review denied (Minn. Nov. 19, 1986).  The legislature is free to ignore logic and perpetrate injustice so long as it does not violate the constitution; if the statute is clear, it must be remedied by amendment rather than by construction.  State ex rel. Coduti v. Hauser, 219 Minn. 297, 303, 17 N.W.2d 504, 507-08 (1945). 





MINGE, Judge (concurring specially)


            I concur in the decision of this court.  I note, however, that this case approaches the question of what deference, if any, an agency, that does not observe witness testimony, should give to findings of the administrative law judge (ALJ) based on demeanor evidence.  If a reviewing authority, without observing witnesses, disregards an ALJ’s findings based on demeanor evidence, the authority should exercise caution and make detailed findings.  If the demeanor findings are crucial to the outcome of the proceeding, the situation may raise an issue of fundamental fairness and due process.  Here, the unemployment law judge made no express findings detailing demeanor as opposed to credibility.  In that regard, it appears the agency’s decision on credibility issues turned on inherent inconsistencies in the facts, not demeanor.  For this reason, we do not reach the troubling problem of whether fundamental fairness limits an agency’s disregard of demeanor determinations by an ALJ who observes the witnesses.  Based on the facts in the case of Tuff v. Knitcraft Corp., 526 N.W.2d 50 (Minn. 1995), it does not appear that this precise issue was before the supreme court at that time.