This opinion will be unpublished and

may not be cited except as provided by

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






James J. Moseng, Relator,


Larson Systems, Inc.,

Commissioner of Employment and Economic Development,


Filed March 23, 2004


Minge, Judge


Department of Employment and Economic Development

File No. 5625 03



Catherine A. Moore, 2233 Lydia Avenue East, Maplewood, MN 55109 (for relator)


Larson Systems, Inc., 10073 Baltimore Street NE, Minneapolis, MN 55449-4425 (respondent-employer)


Lee B. Nelson, M. Kate Chaffee, Department of Employment and Economic Development, 390 North Robert Street, St. Paul, MN 55101 (for respondent)


            Considered and decided by Toussaint, Chief Judge; Minge, Judge; and Huspeni, Judge.*




U N P U B L I S H E D  O P I N I O N


MINGE, Judge


Relator challenges the dismissal of his claim for unemployment benefits by the representative of the Commissioner of Employment and Economic Development on the grounds that there was no timely appeal by relator of his disqualification.  Because there is ample evidence that relator did not file a timely appeal to the commissioner’s representative, and because deadlines for appeals are strictly construed and jurisdictional, we affirm.


            Relator James J. Moseng became unemployed in January 2003 and established an unemployment benefits account.  On February 27, 2003, the Department of Employment and Economic Security (DES) determined that relator had quit without good reason and notified him that he was disqualified from unemployment benefits.  The notification also stated that the decision became final unless relator filed a written appeal within 30 days after the date of the mailing.  It is undisputed that the period for timely appeal ended on March 31, 2003.

            On April 3, 2003, DES received an e-mail from relator’s attorney stating that, “[t]here should be an appeal coming in for a James (or Jim) Moseng.”  DES received a second e-mail from relator’s attorney on April 7, 2003, reasserting that “[t]he appeals office should be receiving an appeal from James Moseng (he says he filed it electronically).”  Except for these communications, DES had no record that any filing had actually occurred.

            On April 28, 2003, an evidentiary hearing was conducted by phone before an unemployment law judge on the issue of whether relator filed a timely appeal.  Relator’s attorney submitted a written statement by relator asserting that he filed his appeal on March 27, 2003.  Also submitted were statements from two individuals stating that relator had discussed filing his appeal on that date.  But, relator and his witnesses failed to appear and consequently were not available for questioning during the hearing.  No confirmation of electronic or other filing was provided.  The unemployment law judge found that realtor did not file a timely appeal and dismissed the appeal for lack of jurisdiction.  Relator appealed the decision to the commissioner’s representative who affirmed the decision.          


On appeal, we defer to the decision of the commissioner’s representative.  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).  Although this court defers to the commissioner’s findings of fact if they are reasonably supported by the evidence in the record, we exercise independent judgment with respect to questions of law.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). 

The decision of the commissioner’s representative to dismiss an appeal as untimely is a question of law that this court reviews de novo.  Stottler v. Meyers Printing Co., 602 N.W.2d 916, 918 (Minn. App. 1999).  Minnesota case law is clear that statutory deadlines for appeal must be strictly construed.  King v. University of Minn., 387 N.W.2d 675, 677 (Minn. App. 1986), review denied (Minn. Aug. 13, 1986).  Minn. Stat. § 268.101, subd. 2(e) (2002) provides that a determination of disqualification shall be final unless the applicant files an appeal within 30 calendar days after mailing.  When an appeal is filed by an electronic transmission, the appeal is considered filed when the department receives it.  Minn. Stat. § 268.035, subd. 17 (2002).

First, relator asserts that DES did not submit any evidence and, therefore, the unemployment law judge and the commissioner’s representative erred by ignoring the weight of relator’s evidence.  The record reveals that DES submitted the following items into evidence: (1) A copy of relator’s notification of disqualification; (2) a copy of the April 7, 2003 e-mail from relator’s attorney making DES aware that they “should be receiving an appeal from [relator]”; and (3) a document entitled “Certificate of Mailing/Mailing Procedure,” signed by an employee of DES and attesting to mailroom procedures and safeguards.  We find that the evidence reasonably supports the commissioner’s representative’s determination that relator did not file a timely appeal.

Next, relator argues that the unemployment law judge failed to use proper procedures in dismissing his appeal because the findings of fact were inadequate to support the conclusion.  We examine the decision of the commissioner’s representative, rather than that of the unemployment law judge.  Kalberg v. Park & Recreation Bd., 563 N.W.2d 275, 276 (Minn. App. 1997).  The decision of the commissioner’s representative contains adequate findings of fact and states that “[this] matter has been decided based on the evidence received into the record by a department unemployment law judge and after considering any written arguments that have been submitted.”  In this instance, the record reflects that the commissioner’s representative considered the evidence received by the unemployment law judge and made adequate findings of fact.  Despite relator’s claims, we do not find that the commissioner’s representative erred.

Finally, relator argues that the commissioner’s representative’s decision was in error because the decision includes a finding that goes beyond the evidence submitted before the unemployment law judge.  Relator challenges the finding that DES’s computer system incorporates “fail safe features . . . [that] automatically detect any activity that deviates from normal processing,” and by implication that relator’s attempted filing would have been detected.

Relator bases his argument on the claim that DES submitted no evidence to the unemployment law judge.  However, DES did submit evidence, including the “Certificate of Mailing/Mailing Procedure,” that states that the department’s software programs “include fail-safe features . . . that detect automatically any activity that deviates from the norm.”  Based on this certificate, we find that the commissioner’s representative’s finding that relator did not file a timely appeal is supported by the record.


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.