This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






Cary W. Ebert,





Department of Employment and Economic Development,



Filed January 16, 2007


Shumaker, Judge


Department of Employment and Economic Development

File No. 14202 04



Cary W. Ebert, 3910 Aldrich Avenue South, Apt. 303, Minneapolis, MN 55409-1461 (pro se relator)


Lee B. Nelson, Linda A. Holmes, Minnesota Department of Employment and Economic Development, First National Bank Building, 332 Minnesota Street, Suite E200, St. Paul, MN 55101-1351 (for respondent)



            Considered and decided by Minge, Presiding Judge; Shumaker, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N


            Relator challenges the senior unemployment review judge’s determination that he was overpaid unemployment benefits, arguing that the department issued its determination after the statutory deadline.  Alternatively, relator argues that a statutory offset should apply to any repayment.  Because the department issued its determination of overpayment within the statutory deadline, and the issue of a statutory offset is not properly before this court, we affirm.


            Relator Cary W. Ebert established various unemployment-compensation accounts with the Department of Employment and Economic Development (DEED) from 2001 through 2003, including accounts in 2002.  With the exception of his 2002 accounts, issues relating to Ebert’s other benefit accounts have been resolved in a prior appeal. 

Ebert established a state unemployment benefits account in February 2002.  He also filed for social-security disability-insurance (SSDI) benefits, which he received retroactively from October 2001.  He stopped receiving those payments in 2004.

            Ebert eventually exhausted his state unemployment benefits under his February 2002 benefit account and filed for Temporary Extended Unemployment Compensation (TEUC), a separate federal program.  He received $4,170 in TEUC benefits from October 2002 through January 2003.  DEED placed a hold on Ebert’s 2002 accounts and issued an ineligibility determination in July 2004.  DEED considered Ebert ineligible to receive the TEUC benefits because he received SSDI benefits during the same period. 

            Ebert appealed, and the unemployment law judge (ULJ) affirmed.  Ebert then appealed to the senior unemployment review judge (SURJ), who also affirmed.  Ebert appealed to this court, which affirmed the SURJ, but remanded to address the timeliness of the ineligibility determination for his TEUC benefits.  Ebert v. Dep’t of Employment & Econ. Dev., A05-55 (Minn. App. Jan. 9, 2006) (order op.).  This court found Ebert’s other arguments, including that he was entitled to retain a portion of any refunded benefits, to be meritless.

            On remand the SURJ found that Ebert must refund all TEUC benefits because the July 2004 ineligibility determination was timely.  This certiorari appeal followed.


Appellate courts accord the decision of the SURJ “particular deference,” and will affirm it if reasonably supported by the record.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  The SURJ’s factual findings are reviewed in the light most favorable to the SURJ’s decision and will not be disturbed “as long as there is evidence that reasonably tends to sustain those findings.”  Schmidgall v. FilmTec Corp.,644 N.W.2d 801, 804 (Minn. 2002).  “When reviewing questions of law, this court is not bound by the [SURJ’s] conclusions of law, but is free to exercise its independent judgment.”  Markel v. City of Circle Pines, 479 N.W.2d 382, 384 (Minn. 1992). 

We apply the law in effect at the time Ebert received the TEUC benefits because it is “the operative event that determines qualification for unemployment compensation benefits in these circumstances . . . .”  Brown v. Nat’l Am. Univ., 686 N.W.2d 329, 332 (Minn. App. 2004) (applying the statute in effect at the time the employee was discharged for misconduct to determine eligibility for unemployment benefits), review denied (Minn. Nov. 16, 2004).

            Minnesota law requires DEED to make eligibility determinations within 24 months of establishing a benefit account.  Minn. Stat. §§ 268.07, subd. 1(d), 268.101, subd. 3(c) (2002).  An applicant’s benefit account “shall be established effective the Sunday of the calendar week that the application for unemployment benefits was filed.”  Minn. Stat. § 268.07, subd. 3b(a) (2002).

            Ebert challenges the SURJ’s finding that DEED issued the ineligibility determination for his TEUC benefits within 24 months of establishing the account.  He argues that the TEUC account is not a separate account and must relate back to his February 2002 state benefits account.  We disagree because the federal law creating the TEUC benefits dictates otherwise.  Temporary Extended Unemployment Compensation Act of 2002, Title II, Pub. L. No. 107-147, 116 Stat. 21 (2002) (TEUC Act).

            The TEUC Act provides that “the State will establish, for each eligible individual who files an application for temporary extended unemployment compensation, a temporary extended unemployment compensation account with respect to such individual’s benefit year.”  Id. § 203, 116 Stat. at 28.  Minnesota’s extended unemployment program conforms to the federal requirements.  Minn. Stat. § 268.115, subd. 7 (2002).  Therefore, by applying for TEUC benefits Ebert created a separate benefits account from his state benefits account. 

Ebert also argues that his state and TEUC benefits fall under his February 2002 state account because the notice of the SURJ’s decision lists the account date as February 10, 2002.  Although it is not clear why DEED’s records list the disputed account date as February 10, 2002, the law is clear that a separate account is created for TEUC benefits.    Minn. Stat. § 268.115, subd. 7 (2002); Pub. L. No. 107-147, § 203, 116 Stat. 26, 28 (2002).  The SURJ’s decision also explicitly finds that Ebert established his TEUC account effective October 13, 2002, which is fully supported by the record.  Therefore, we hold that because Ebert started receiving TEUC benefits in October 2002, and DEED issued its ineligibility determination less than 24 months later in July 2004, the SURJ did not err by finding that the ineligibility determination was timely. 

            Alternatively, Ebert argues that the law requires him to refund only a portion of the TEUC benefits.  See Minn. Stat. § 268.085, subd. 4(b)-(c) (2002) (requiring offset if Social Security Administration approved collecting primary SSDI benefits for each month the applicant was employed during the base period).  We decline to address this issue here, having already dismissed this argument in Ebert’s prior appeal.  Ebert v. Dep’t of Employment & Econ. Dev., A05-55 (Minn. App. Jan. 9, 2006) (order op.).  Furthermore, Ebert did not raise this issue in his appeal to the ULJ or SURJ, and he never requested that the matter be reopened before this appeal.  Therefore, we will not address it here.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating that this court will generally not consider matters not argued and considered in the court below). 

            The record fully supports the SURJ’s findings.