This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1916, A03-1917, A03-1918, A03-1919, A03-1920, A03-1921,

A03-1922, A03-1923, A03-1924, A03-1925, A03-1926,

A03-1927, A03-1928, A03-1929, A03-1930, A03-1931,

A03-1932, A03-1933, A03-1935, A03-1936, A03-1937

 

 

Banjawu K. Guma, et. al,

Relators,

 

vs.

 

Globe Security Screeners,

Respondent,

 

Commissioner of Employment and Economic Development,

Respondent.

 

Filed September 7, 2004

Affirmed

Randall, Judge

 

Department of Employment and Economic Development

File No. 9485 03

 

 

Israel Gobena, Gobena & Associates, P.A. 2147 University Avenue West, Suite 102, St. Paul, MN 55114 (for relators)

 

Globe Security Screeners, 7850 Metro Parkway, Suite 122, Bloomington, MN  55425  (respondent employer pro se)

 

Lee B. Nelson, Linda A. Holmes, Minnesota Department of Employment and Economic Development, 390 Robert Street North, St. Paul, MN  55101 (for respondent commissioner)

 

 

 

            Considered and decided by Randall, Presiding Judge, Willis, Judge, and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

            Relators, all former airport screeners who lost their jobs when the federal government took over security operations at the Minneapolis/St. Paul International Airport after the terrorist attacks of September 11, 2001, sought review of decisions by the commissioner’s representative determining that they were ineligible for special temporary extended employment compensation for displaced airline-related workers.  Relators argue that:  (1) they are entitled to extended unemployment benefits because they lost their jobs in response to the government’s take-over of security operations at the airport government following 9/11, and (2) their due-process rights were violated when their benefits were terminated without an opportunity for a hearing.  We affirm.

FACTS

            This consolidated appeal concerns former employees of Globe Airport Security Services (Globe).  Globe is an airport security company and relators were employed by Globe as security screeners at Minneapolis/St. Paul International Airport (MSP).  Following the terrorist attacks of September 11, 2001, airport security functions were transferred to the Transportation Security Administration (TSA).  As a result, relators were laid off on October 22, 2002.  Immediately thereafter, relators filed for and received regular unemployment benefits.  Relators also filed for and received federal Temporary Extended Unemployment Compensation (TEUC) benefits.

            In late May and early June 2003, relators applied for additional TEUC benefits (TEUC-A).  TEUC-A benefits were created by the federal government to provide special assistance to certain displaced airline and related workers who were separated from qualifying employment because of (1) reductions in air carrier services as a result of the terrorist actions of September 11, 2001; (2) an airport closure in response to the terrorist actions of September 11, 2001; or (3) the military conflict with Iraq.  The department determined that relators were not eligible to receive TEUC-A benefits, and relators appealed.[1]  An evidentiary hearing was held, and an unemployment law judge affirmed the decision.[2] Upon further appeal by relators, a representative of the Commissioner of Employment and Economic Development issued the final agency decision affirming that relators were not eligible to receive TEUC-A benefits.  This certiorari appeal followed. 

D E C I S I O N

I.

            The factual findings of the commissioner’s representative are “viewed in the light most favorable to the decision, and if there is evidence reasonably tending to sustain them, they will not be disturbed.”  White v. Metro. Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983).  “When reviewing questions of law, this court is not bound by the [c]ommissioner’s conclusions of law but is free to exercise its own independent judgment.”  Markel v. City of Circle Pines, 479 N.W.2d 382, 384 (Minn. 1992).  A person’s eligibility for unemployment benefits is a question of law.  Id.

            The construction of a statute is a question of law fully reviewable by an appellate court.  Hibbing Educ. Ass’n v. Pub. Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985).  A reviewing court is not bound by an agency’s interpretation of a statute.  Arvig Tel. Co. v. Northwestern Bell Tel. Co., 270 N.W.2d 111, 114 (Minn. 1978).  But an agency interpretation is entitled to some deference “where (1) the statutory language is technical in nature, and (2) the agency’s interpretation is one of long standing application.”  Id.  Statutory terms “generally should be construed according to their plain and ordinary meaning.”  Nadeau v. Austin Mut. Ins. Co., 350 N.W.2d 368, 373 (Minn. 1984).

            An individual who is eligible for TEUC-A benefits is defined by statute as:

An individual whose eligibility for temporary extended unemployment compensation under the Temporary Extended Unemployment Compensation Act . . . is or would be based on the exhaustion of regular compensation under State law, entitlement to which was based in whole or in part on qualifying employment performed during such individual’s base period;

(1)     The term “qualifying employment,” with respect to an eligible individual, means employment—

(A)   with an air carrier, employment at a facility at an airport, or with an upstream producer or supplier for an air carrier; and

(B)   as determined by the Secretary, separation from which was due, in whole or in part, to—

(i)                reductions in service by an air carrier as a result of a terrorist action or security measure;

(ii)             a closure of an airport in the United States as a result of a terrorist action or security measure; or

(iii)           a military conflict with Iraq that has been authorized by Congress

 

. . .

 

(6) the term “terrorist action or security measure” means a terrorist attack on the United States on September 11, 2001, or a security measure taken in response to such an attack.

 

Temporary Extended Unemployment Act of 2002, Pub. L. No. 108-11, § 4002, 117 Stat. 607 (2003).

            Here, relators argue that they would not have lost their jobs but for the terrorist attacks of September 11, 2001, and therefore they are entitled to TEUC-A benefits because any response to the terrorist attacks that led to a cessation of jobs should extend their unemployment benefits.  We understand relators’ argument, and the issue is close.  Relators do meet the first requirement for “qualifying employment” as set forth in the statute because relators were employed as security screeners at the airport.  See Temporary Extended Unemployment act of 2002, Pub. L. No. 108-111, § 4002 (1)(A), 117 Stat. 607 (stating that the term “qualifying employment” means employment at a facility at an airport).  But to qualify for TEUC-A benefits under the statute, relators must also have lost their jobs due to (1) reductions in service by an air carrier as a result of a terrorist action; (2) a closure of an airport in the United States as a result of a terrorist action; or (3) a military conflict with Iraq.  Temporary Extended Unemployment act of 2002, Pub. L. No. 108-111, § 4002 (1)(B), 117 Stat. 607.  Undeniably, the terrorist attacks of September 11, 2001 ultimately drove the federal government’s decision to transfer airport security functions to the TSA.  But, the controlling statute is more specific than that.  To get the extended benefits, relators would have to show a “reduction in service by an air carrier” or a “closure of an airport in the United States” or a separation from employment due to military conflict in Iraq.  None of these qualifying incidents drove relators’ layoffs.  Relators did not lose their jobs due to reductions in service by an air carrier, nor did the Twin Cities International Airport close as a result of the terrorist attacks.  Also, relators did not lose their jobs as a result of the military conflict with Iraq.  Their jobs disappeared due to the federal takeover.  For that separation, they received base unemployment benefits and a second tier of special extended benefits (TEUC).  They just did not receive a third-tier level of benefits because the third tier applied only to job losses occasioned by reductions in air service, or an airport closure, or the military conflict with Iraq.  None of those three was present.  Therefore, based on the language of the statute, relators are not entitled to TEUC-A benefits.

II.

            Relators also contend that their due-process rights were violated when their unemployment benefits were terminated.

            “Unemployment benefits are an entitlement protected by the procedural due process requirements of the fourteenth amendment.”  Schulte v. Transportation Unlimited, Inc., 354 N.W.2d 830, 832 (Minn. 1984).  Due process requires that a party receive adequate notice and an opportunity to be heard.  Id. at 834.  First, due process mandates that the “content of notice must be reasonably calculated to fairly apprise prospective claimant that an adverse claim is asserted.”  Schwartz v. First Trust Co. of St. Paul, 236 Minn. 165, 170, 52 N.W.2d 290, 294 (1952).  Second, due process requires the opportunity for a hearing, i.e., “the opportunity to be present during the taking of testimony or evidence, to know the nature and contents of all evidence adduced in the matter, and to present any relevant contentions and evidence the party may have.”  In re Amalgamated Food Handlers, Local 653-A, 244 Minn. 279, 287, 70 N.W.2d 267, 272 (1955).

            The record reflects that relators received and exhausted the maximum amount of unemployment benefits to which they were entitled, 26 weeks.  See Minn. Stat. § 268.07, subd. 2(d) (2002).  Relators also applied for and received regular TEUC benefits.  These benefits last 13 weeks.  The payments of these benefits stopped only because relators had exhausted their entitlement to the benefits.  Benefits normally stop when you have received them all.  Relators then applied for the additional TEUC-A benefits.  They were denied those third-tier benefits because, as previously discussed, they did not qualify for them under the statute.  Relators must understand what happened.  They appear to be arguing that they were entitled to a hearing before their unemployment benefits were “cut off.”  Relators’ unemployment benefits were never “cut off.”  They received every dollar of all the benefits that they were qualified to receive.  It is only when they had exhausted the benefits that they were qualified for and applied for a brand-new benefit that their claim was denied.  Quite properly so, relators were granted a hearing on the denial of these benefits, and that is the subject of this appeal.

            We conclude that relators lost a close question on the merits, but they were not denied due process.  They were allowed to apply for further benefits.  That claim was heard, that claim was denied, and they are now allowed this appeal.  We find no evidence that due-process rights were violated.   


III.

            Relators Gizaw Jilcha, Abdulatif Kalil, and Hailemicha Mechesso argue that their appeals were improperly dismissed.  An appeal concerning the commissioner’s dismissal of an appeal as untimely involves a question of law, which is reviewed de novo.  Stottler v. Meyers Printing Co., 602 N.W.2d 916, 918 (Minn. App. 1999).

A.         Dismissal of Jilcha’s and Kalil’s appeals

            Minn. Stat. § 268.101, subd. 3(d) (2002), provides that “[a] determination of eligibility or determination of ineligibility shall be final unless an appeal is filed by the applicant or notified employer within 30 calendar days after mailing.  The determination shall contain a prominent statement indicating the consequences of not appealing.”  The appeal period begins upon the mailing of the determination.  Smith v. Masterson Pers., Inc., 483 N.W.2d 111, 112 (Minn. App. 1992).  A statutory period for appeal is “absolute and unambiguous,” Semanko v. Dep’t of Employment Servs., 309 Minn. 425, 430, 244 N.W.2d 663, 666 (1976), and that period “should be strictly construed, regardless of mitigating circumstances.”  King v. Univ. of Minn., 387 N.W.2d 675, 677 (Minn. App. 1986), review denied (Minn. Aug. 13, 1986).  If an appeal is not filed within the statutory period, the appeal must be dismissed.  Erickson v. Super Valu, 343 N.W.2d 698, 700 (Minn. App. 1984).

            Here, the record reflects that both Jilcha and Kalil were mailed determinations of ineligibility for TEUC-A benefits on May 29, 2003.  The determinations stated that the determination of ineligibility would become final if an appeal was not filed within 30 calendar days after of the mailing date.  Both Jilcha and Kalil filed their appeals on July 17, 2003.  The appeals were filed 49 days after the mailing date of the ineligibility determinations.  Because Jilcha’s and Kalil’s appeals were not filed in accordance with Minn. Stat. § 268.101, subd. 3(d), the commissioner’s representative’s properly dismissed their appeals.

B.         Dismissal of Mechesso’s appeal

            Minn. Stat. § 268.105, subd. 3 (2002), provides:

Withdrawal of appeal.  (a) Any appeal that is pending a decision before an unemployment law judge or the commissioner may be withdrawn by the appealing person, or an authorized representative of that person, upon filing of a notice of withdrawal.

            (b)  The appeal shall, by written order, be dismissed if a notice of the withdrawal if filed, unless the commissioner, by written order, directs that further adjudication is required for a proper result.

            (c)  A notice of withdrawal may be filed by mail, by telephone, or if the commissioner allows it, by electronic transmission.

 

Here, Mechesso was mailed a determination of ineligibility on June 4, 2003.  He filed a timely appeal, but four days before the hearing was to occur, Mechesso filed a withdrawal of appeal.  On September 9, 2003, the unemployment law judge issued an order dismissing the appeal and stating that if Mechesso did not want the appeal dismissed, he could file a request to reopen the case within 30 calendar days after the mailing date of the order.  On October 21, 2003, Mechesso’s attorney filed a notice that he was representing Mechesso in the appeal.  This notice was filed 42 days after the order dismissing Mechesso’s appeal.  Thus, the commissioner’s order dismissing the appeal was proper.

Affirmed.  



[1]  Relators Gizaw Jilcha and Abdulatif Kalil were mailed determinations of ineligibility on May 29, 2003.  Both filed appeals on July 17, 2003.  Under Minn. Stat. § 268.101, subd. 3(d) (2002), the commissioner’s representative dismissed both appeals for lack of jurisdiction because the appeals were not filed within 30 days of the mailing of the determination of ineligibility. 

[2]  Relator Hailemicha Mechesso timely appealed the determination of ineligibility in his case, and an evidentiary hearing was scheduled.  But, four days before the hearing, Mechesso filed a withdrawal of his appeal.  An order dismissing the appeal was filed on September 9, 2003, stating that if Mechesso did not request that his case be reopened within 30 days, the determination of ineligibility would become final.  On October 21, 2003, Mechesso requested that his determination of ineligibility be considered along with the other relators.  The commissioner’s representative issued an order dismissing Mechesso’s appeal because he failed to request that his case be reopened within the 30-day period.