A06-2251

Kris T. Scheller,

Relator,

vs.

Cragun Corporation,

Respondent,

Department of Employment and Economic Development,

Respondent.

Filed August 7, 2007

Affirmed

Muehlberg, Judge*

Department of Employment and Economic Development

File No. 1100806

Kris T. Scheller, 12253 West Sylvan Drive Southwest, Pillager, MN 56473 (pro se relator)

Cragun Corporation, 11000 Craguns Drive, Brainerd, MN 56401 (respondent)

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

Considered and decided by Halbrooks, Presiding Judge; Kalitowski, Judge; and Muehlberg, Judge.

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

MUEHLBERG, Judge

This is a certiorari appeal from a decision of the Department of Employment and Economic Development (DEED). Relator challenges the DEED decision dismissing his request for reconsideration of the appeal of his ineligibility determination. Because his request for reconsideration was untimely, we affirm.

D E C I S I O N

Relator Kris T. Scheller challenges the denial of his request for reconsideration. In May 2006, DEED issued a determination of disqualification after finding that Scheller was discharged from respondent Cragun Corporation for employment misconduct in February 2006. Scheller filed an appeal with DEED in August 2006. On August 29, a DEED unemployment-law judge (ULJ) dismissed the appeal as untimely because it was filed after the 30-day appeal period established by Minn. Stat. § 268.101, subd. 2(e) (Supp. 2005).

Scheller then filed a request for reconsideration on September 29. The ULJ dismissed the request as untimely because September 29 was 31 days after the decision was filed and, therefore, not within the 30-day time period for reconsideration of an appeal established by Minn. Stat. § 268.105, subd. 2(a) (Supp. 2005). Scheller subsequently petitioned for certiorari review in this court, pursuant to Minn. Stat. § 268.105, subd. 7 (Supp. 2005).

On review, this court may affirm a ULJ’s decision, remand for further proceedings, or reverse or modify the decision “if the substantial rights of the petitioner may have been prejudiced” because the ULJ’s findings, inferences, conclusion, or decision are:

(1) in violation of constitutional provisions;

(2) in excess of the statutory authority or jurisdiction of the department;

(3) made upon unlawful procedure;

(4) affected by other error of law;

(5) unsupported by substantial evidence in view of the entire record as submitted; or

(6) arbitrary or capricious.

Minn. Stat. § 268.105, subd. 7(d). An agency’s decision to dismiss an appeal as untimely is a question of law that we review de novo. Kennedy v. Am. Paper Recycling Corp., 714 N.W.2d 738, 739 (Minn. App. 2006) (citing Harms v. Oak Meadows, 619 N.W.2d 201, 202 (Minn. 2000) and Stottler v. Meyers Printing Co., 602 N.W.2d 916, 918 (Minn. App. 1999)). When an agency dismisses an appeal on jurisdictional grounds, we only consider whether the jurisdictional determination was correct without examining the merits of the decision. See Christgau v. Fine, 223 Minn. 452, 463, 27 N.W.2d 193, 199 (1947) (examining jurisdictional issue and remanding to agency for consideration of merits, noting that it is the function of the director to pass on the matter in the first instance. Our function is to review his decision, not to make one for him”).

Scheller’s arguments, however, exceed the jurisdictional issue and are not addressed to the issue before the court. He argues that he timely filed his appeal of the May decision and that the reasons his employer supplied for his termination are inaccurate. But at this stage in the proceedings, the court’s review is limited to whether the ULJ erred by denying his September request for reconsideration.

Under Minnesota law, the “unemployment law judge’s decision is final unless a request for reconsideration is filed pursuant to subdivision 2.” Minn. Stat. § 268.105, subd. 1(c) (Supp. 2005). Subdivision 2 provides that an applicant “may, within 30 calendar days of the sending of the unemployment law judge’s decision under subdivision 1, file a request for reconsideration asking the unemployment law judge to reconsider that decision.” Minn. Stat. § 268.105, subd. 2(a). The statutory time for an appeal from a determination is absolute and an untimely appeal must be dismissed by the ULJ for lack of jurisdiction. Cole v. Holiday Inns, Inc., 347 N.W.2d 72, 73 (Minn. App. 1984). This rule applies even if the relator misses the deadline by only one day. See, e.g., Semanko v. Dep’t of Employment Servs., 309 Minn. 425, 430, 244 N.W.2d 663, 666 (1976) (upholding dismissal of an appeal as untimely where appeal was filed on eighth day of the seven-day appeal period then in effect); Kennedy, 714 N.W.2d at 739 (affirming dismissal when appeal was filed on day 31 of 30-day appeal period).

Here, Scheller filed his request for reconsideration on September 29, 2006. This is 31 days after the date of the order and outside the 30-day reconsideration period authorized by Minn. Stat. § 268.105, subd. 2(a). Therefore, the ULJ correctly applied the law by dismissing Scheller’s request as untimely.

Affirmed.

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