This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1850

 

 

Dominick Ostapenko,

Relator,

 

vs.

 

Department of Employment and Economic Development,

Respondent.

 

 

Filed August 1, 2006

Affirmed

Toussaint, Chief Judge

 

Department of Employment and Economic Development

File No. 1679403

 

 

Dominick Ostapenko, 3204 Coral Harbor Drive, Las Vegas, NV 89117 (pro se relator)

 

Linda A. Holmes, Department of Employment and Economic Development, 332 Minnesota Street, Suite E200, St. Paul, MN 55101-1351 (for respondent)

 

            Considered and decided by Randall, Presiding Judge; Toussaint, Chief Judge; and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

Relator Dominick Ostapenko petitions for review of the determination of a senior unemployment review judge (SURJ) that Ostapenko’s training program was not a qualified Trade-Adjustment-Assistance Program.  Because we conclude that the evidence supports the SURJ’s conclusion that the program’s costs were unreasonable, we affirm.

D E C I S I O N

After being laid off from his position as a departmental manager, Ostapenko applied for trade-adjustment assistance to pay for his enrollment in an 18-month automation-training program.  Respondent Department of Employment and Economic Development initially approved his request for funding based on a submitted program cost of $16,050.  After the first year, Ostapenko submitted an amended request showing the program’s total cost was $20,756.  Because the program’s total cost exceeded $20,000, the department denied his amended request and contract.  Ostapenko appealed the department’s decision to an unemployment law judge (ULJ).  The ULJ conducted a hearing and concluded that the program was not a qualified program because its cost was unreasonable.  The SURJ independently determined Ostapenko’s plan exceeded the reasonable cost.

We review a denial of Trade Act benefits in the same manner as we would a denial of state unemployment benefits.  Marshall v. Comm’r of Jobs & Training, 496 N.W.2d 841, 843 (Minn. App. 1993); Talberg v. Comm’r of Econ. Sec., 370 N.W.2d 686, 688 (Minn. App. 1985).  In an appeal from a denial of unemployment benefits, we review the findings of the SURJ in the light most favorable to the decision and will not disturb the findings if reasonably sustained by the evidence in the record.  Rowe v. Dep’t of Employment & Econ. Dev., 704 N.W.2d 191, 194 (Minn. App. 2005).  But we independently review the SURJ’s legal conclusions.  Id.

            Under the Trade Act of 1974, an adversely affected worker may be eligible for trade-adjustment assistance, which provides for payment of the cost of a qualified retraining program.  19 U.S.C. § 2296(a) (2000) (stating criterion for approval of trade-adjustment-assistance training program).  Before a state agency may approve trade-adjustment assistance for an adversely affected worker’s participation in a training program, the agency must determine (1) no suitable employment exists for the worker; (2) the worker would benefit from appropriate training; (3) the worker has a reasonable expectation of employment after completing the training; (4) approved training is reasonable to the worker; (5) the worker is qualified to undertake and complete the training; and (6) the training is suitable for the worker and available at a reasonable cost.  Id. § 2296(a)(1).

The only determination properly before this court on appeal is whether the program was available at a reasonable cost.  State agencies have the ultimate authority to determine the reasonable cost of a program.  See 20 C.F.R. § 617.20(b)(9) (2004) (specifying that state agencies are responsible for determining which programs have reasonable cost).  No Minnesota caselaw sets forth the reasonable cost for trade-adjustment-assistance programs or the considerations for determining the reasonable cost of a program, but this court has affirmed a determination that costs in excess of $27,000 were unreasonable.  See Marshall, 496 N.W.2d at 843 (holding that law-school education was neither suitable nor reasonable training).

At the time of Ostapenko’s application for trade-adjustment-assistance funds, the reasonable cost for the entirety of a trade-adjustment-assistance training program was $20,000.  The department’s representative testified that the deputy commissioner of the department sets the limit for reasonable cost and that the limit is based on the number of workers who need training.  Ostapenko’s automation-training program had a total cost of $20,756.  The total cost of the program therefore exceeded the reasonable-cost limit set by the department.  Because the cost of the program was not reasonable, the department properly chose not to approve the program.  The SURJ therefore did not err by determining that the program was not a qualified trade-adjustment-assistance program.

            Ostapenko also raises issues regarding the earlier and independent determination that he must repay $9,177 in trade-readjustment-allocation benefits because they constitute an overpayment.  Ostapenko, however, did not timely challenge the overpayment determination, and the SURJ dismissed that appeal.   See Minn. Stat. § 268.105, subd. 2 (2004).  Because neither the merits of the overpayment decision nor the propriety of dismissal is before this court, we do not address the issues raised by Ostapenko.

Affirmed.