This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-95-2105

Mark A. Maltaverne,

Relator,

vs.

Highland Manufacturing, Inc.,

Respondent,

Commissioner of Economic Security,

Respondent.

Filed June 11, 1996

Affirmed

Huspeni, Judge

Department of Economic Security

Agency File No. 2932UC95

Mark A. Maltaverne, 119 Seney Ave., Rushmore, MN 56168 (Pro se Relator)

Kent E. Todd, Dept. of Economic Security, 390 N. Robert St., St. Paul, MN 55101 (for Respondent Commissioner of Economic Security)

Considered and decided by Huspeni, Presiding Judge, Crippen, Judge, and Klaphake, Judge.

U N P U B L I S H E D O P I N I O N

HUSPENI, Judge

A representative of the Commissioner of Economic Security determined that there was no jurisdiction over relator's appeal from the decision of a reemployment insurance judge because the appeal was untimely. Because we conclude that relator's appeal was not timely filed, we affirm.

FACTS

Relator Mark A. Maltaverne was discharged for absence and tardiness allegedly exceeding the prescribed allowance of "occurrences" granted by his employer, respondent Highland Manufacturing, Inc. (Highland). An adjudicator from the Department of Economic Security determined that relator's discharge was for misconduct. Relator appealed. A scheduling error resulted in Highland's absence from the hearing, and the reemployment insurance judge decided for relator.

Highland then appealed. After finding that Highland had provided a "compelling reason" for its absence from the hearing, a representative of the Commissioner of Economic Security remanded the matter for another evidentiary hearing at which both parties were free to present new evidence. This hearing took place before a different reemployment judge, who decided that relator had been discharged for misconduct.

The decision mailed to relator included a notice of decision and right of appeal:

The following decision affirms the determination under appeal. IT WILL BE FINAL UNLESS YOU APPEAL IN WRITING WITHIN 30 DAYS FROM THE DATE ABOVE THAT SHOWS WHEN THE DECISION WAS FILED AND MAILED. You may appeal in person at an office of the Department of Economic Security. You may also appeal by mail * * *. The filing date is the day you appeal in person or the postmark date of the Postal Service.

The decision was stamped "JUL 19 1995" after the words "Decision filed and mailed". Relator appealed in an envelope postmarked August 19, 1995. The Commissioner's representative determined that the untimeliness of the appeal deprived it of jurisdiction. Relator timely filed a petition for certiorari review of this determination. [1]

D E C I S I O N

Whether an agency has jurisdiction over a matter is a legal question. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn.1984). Reviewing courts are not bound by the Commissioner's representative's conclusions of law. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

Relator agrees that the decision was mailed to him at his last known address on July 19, 1995, but he alleges that his appeal is timely because, notwithstanding the August 19, 1995 postmark, he mailed it on August 18, 1995.

Minn. Stat. ' 268.105, subd. 3 (Supp. 1995), provides that "[w]ithin 30 days after mailing of the reemployment insurance judge's decision, an interested party may appeal in writing * * *." Minn. Stat. ' 268.105, subd. 1 (Supp. 1995), provides that "[t]he reemployment insurance judge's decision is final unless a further appeal is filed pursuant to subdivision 3." Minn. Stat. ' 268.04, subd. 15 (1994), provides:

"Filing" means the delivery of any document to the commissioner or any of the commissioner's agents or representatives, or the depositing of the same in the United States mail properly addressed to the department with postage prepaid thereon, in which case the same shall have been filed on the day indicated by the cancellation mark of the United States Post Office Department.

All these provisions have been strictly construed.

Minnesota appellate courts have consistently held time limitations for appeals from all levels of the Department of Jobs and Training are jurisdictional and must be strictly construed. See, e.g., King v. University of Minnesota, 387 N.W.2d 675, 677 (Minn. App. 1986), pet. for rev. denied, (Minn. Aug. 13, 1986), and cases cited therein.

Johnson v. Metropolitan Medical Ctr., 395 N.W.2d 380, 382 (Minn. App. 1986). See also Frandrup v. Pine Bend Warehouse, 531 N.W.2d 886, 889 (Minn. App. 1995) (holding that the mark of a private postal meter is a cancellation mark within the meaning of the statute); Andstrom v. Willmar Regional Treatment Ctr., 512 N.W.2d 117, 118 (Minn. App. 1994) (time limit for appealing from a Department determination is jurisdictional and must be strictly construed); Cole v. Holiday Inns, Inc., 347 N.W.2d 72, 73 (Minn. App. 1984) ("There is no provision for extensions or exceptions" to the time for appeal from a Department determination). We find no law supporting relator's position that the appeal period should be extended.

Relator alleges as a mitigating circumstance the imperfection of the postal system that did not postmark his envelope on the date he allegedly mailed it. However, even if postal inefficiency were a mitigating circumstance, it would not empower this court to extend the statutory time for appeal. See Ullman v. Lutz, 238 Minn. 21, 24, 55 N.W.2d 57, 59 (1952).

Relator's appeal was not filed within 30 days as defined in Minn. Stat. ' 268.04, subd. 15, and was therefore untimely. The Commissioner's representative correctly determined that there was no jurisdiction over relator's appeal.

Affirmed.


Footnotes

[1]In his petition, relator raised some issues pertaining to the determination that he had been discharged for misconduct. This court issued an order restricting the appeal to the issue of timeliness. Following that order, Highland took no further part in the appeal.