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Kennedy v. American Paper Recycling Corp.

May 30, 2006

THEODIS KENNEDY, RELATOR,
v.
AMERICAN PAPER RECYCLING CORP., RESPONDENT,
DEPARTMENT OF EMPLOYMENT AND ECONOMIC DEVELOPMENT, RESPONDENT.



Department of Employment and Economic Development File No. 1244605.

SYLLABUS BY THE COURT

An appeal postmarked 31 days after the mailing date of the department adjudicator's initial determination that the claimant is disqualified from receiving unemployment benefits is untimely and requires dismissal of the appeal.

The opinion of the court was delivered by: Halbrooks, Judge

Affirmed

Considered and decided by Halbrooks, Presiding Judge; Lansing, Judge; and Shumaker, Judge.

OPINION

Relator argues that the unemployment law judge (ULJ) improperly dismissed his appeal, which was postmarked 31 days after the department's initial disqualification determination. Because the statutory appeal period was 30 days and the department lacked jurisdiction to hear an appeal that was postmarked after the appeal period, we affirm.

FACTS

Relator Theodis Kennedy applied for unemployment benefits after being discharged from his employment with respondent American Paper Recycling Corp. The department initially determined that relator was disqualified because the discharge was for employment misconduct. The mailing date of the determination of disqualification was July 20, 2005.

The determination of disqualification sent to relator included the department's findings, the determination, and the notice of the right to appeal. In all capital letters, the right to appeal stated that the determination will become final unless an appeal is filed within 30 calendar days from the mailing date. The notice also provided the mailing address for the appeals office and stated that, if mailed, the postmark was determinative of filing by mail. Relator sent a letter postmarked August 20, 2005, requesting an appeal.

The ULJ issued an order dismissing the appeal on the ground that the appeal was not filed within the time period required by law. The order also contained the procedure to request reconsideration. Relator asked for reconsideration in a letter, stating that he had mailed his appeal to a different address "not knowing that they relocated to another address." The ULJ found that the order of dismissal was factually and legally correct and affirmed the dismissal. Relator petitioned for a writ of certiorari.

ISSUE

Does the Department of Employment and Economic Development have jurisdiction over relator's appeal of its determination that relator was discharged for employment misconduct when the appeal was ...


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