Dennis Leinen, Relator,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-1431

Dennis Leinen,
Relator,

vs.

Hiawatha Reddy Rents, Inc.,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed May 14, 2018
Remanded
Reyes, Judge
Dissenting, Jesson, Judge

Department of Employment and Economic Development
File No. 25561482-3

Dennis Leinen, St. Paul, Minnesota (pro se relator)

Hiawatha Reddy Rents, Inc., Minneapolis, Minnesota (respondent employer)

Lee B. Nelson, Department of Employment and Economic Development, St. Paul,
Minnesota (for respondent department)

Considered and decided by Reyes, Presiding Judge; Halbrooks, Judge; and Jesson,
Judge.

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U N P U B L I S H E D O P I N I O N
REYES, Judge
In this unemployment-benefits appeal, relator Dennis Leinen challenges several
orders by an unemployment-law judge (ULJ) dismissing as untimely relator’s
administrative appeals of ineligibility, overpayment, and fraud determinations.
Respondent Minnesota Department of Employment and Economic Development (DEED)
concedes that the administrative record is insufficient to support the ULJ’s orders and
requests that this court remand for further de velopment of the record and reconsideration
of the timeliness issue by the ULJ. Because a remand for further proceedings is authorized
by statute and DEED has provided a valid basis for that disposition, we remand the matter
to the ULJ for a hearing and further developm ent of the record on the issue of whether
relator timely appealed the initial determinations of ineligibility, overpayment, and fraud.
FACTS
On January 18, 2009, an unemployment-benefits acco unt was established in
relator’s name, and benefits were collected on that account. Relator denies applying for
the account or collecting the benefits, attributing those actions instead to his sister. In 2010,
DEED became aware that relator had income from employment during weeks that benefits
were paid on relator’s account. On June 24, 2010, DEED issued initial determinations of
ineligibility and fraud that resulted in overpayments and penalties totaling about $3,145.60.
On March 20, 2017, relator filed admini strative appeals from the June 24, 2010
ineligibility and fraud determinations. On April 20, 2017, th e ULJ dismissed the appeals
because they were not taken within 20 days of when the determinations of ineligibility were
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sent. Relator filed requests for reconsideration, asserting that he did not receive the initial
determinations of ineligibility, which were mailed to his sister’s address when he no longer
resided there.
On August 14 and 15, 2017, the ULJ filed orders denying reconsideration. The ULJ
found that (1) relator had initia ted an identify-theft investig ation with DEED in January
2011; (2) in September 2012, a special agent with the Bureau of Criminal Apprehension
(BCA) issued an investigative report finding that relator used his unemployment benefits
to pay rent; (3) in May 2013 and February 20 15, relator again contacted DEED regarding
his claim of identity theft; an d (4) on March 19, 2015, rela tor called DEED’s customer-
service center to say he would be filing a la te appeal. The ULJ thus found that “even
though [relator] likely did not receive any of the determinations of ineligibility in the mail,
Department records show that [relator] received actual notice of the determinations much
earlier than March 20, 2017, when he filed his appeal.” In making these findings, the ULJ
apparently relied on DEED’s electronic records, but did not include those records in the
administrative record.
Relator filed this certiorari appeal on September 13, 2017, and his brief on
November 2, 2017. On Decemb er 4, 2017, DEED filed a lette r in lieu of a respondent’s
brief, arguing that the matter should be remanded for further consideration and
development of an evidentiary record on the issue of the time liness of relator’s
administrative appeals. DEED asserts that the ULJ did not include in the record any of the
information that she reviewed in reaching her decision and that DEED thus “can point to
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nothing, other than the [orders themselves]” to provide support for the ULJ’s decision to
dismiss the administrative appeals.1
D E C I S I O N
Generally, a determination of ineligibility is final unless administratively appealed
within 20 days of the date it is sent. Minn. Stat. § 268.101, subd. 2(f) (Supp. 2017). But
in Godbout v. Dept. of Emp’t & Econ. Dev. , this court addressed circumstances in which
the subject of a fraud determination no longer resided at the address to which DEED sent
the ineligibility determination and had not been advised by DEED of the consequences of
failing to maintain a current address with DE ED for four years after receiving benefits.
827 N.W.2d 799, 803 (Minn. App. 2013) (citing Minn. Stat. § 268.18, subd. 2(e) (providing
that fraud overpayments may be recovered for up to four years after receipt of benefits)).
Under those circumstances, this court held that due process requires that the 20-day appeal
period run from the date that the subject of the fraud determination receives actual notice.
Id. Under Godbout, which DEED agrees applies to this appeal, there is a factual issue as
to when relator received actual notice of the initial determinations, and thus when the time
for him to appeal those determinations expired.

1 The record in a certiorari appeal is comprised of docume nts submitted to the agency or
considered by the agency in reaching its decision. See Minn. R. Civ. App. P. 110.01,
115.04. Thus, the documents considered by the ULJ would be part of the administrative
record for purposes of appeal. But the administrative record submitted by DEED does not
include the records considered by the ULJ, nor has DEED sought to supplement the
appellate record. Counsel for DEED states that the ULJ who issued the orders is on leave,
and declines to speculate what records the ULJ had considered in issuing the orders.
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In reviewing an unemployment-benefits decision, this court is authorized to remand
the case for further proceedings, or it may reve rse the decision if the substantial rights of
the relator may have been prejudiced because the findings are unsupported by substantial
evidence. Minn. Stat. § 268.105, subd. 7(d) (Supp. 2017). We have typically remanded
for additional development of th e record or factual findings wh en the record or decision
are insufficient to facilitate judicial review. See White v. Univ. of Minn. Physician’s Corp.,
785 N.W.2d 351, 357 (remanding for additiona l development of th e record on issue
impacting eligibility); Wichmann v. Travalia & U.S. Directives, Inc ., 729 N.W.2d 23, 29
(Minn. App. 2007) (remanding for additional findings on credibility); see also State ex rel.
Haak v. Bd. of Educ. of Indep. Sch. Dist. No. 625, St. Paul, 367 N.W.2d 461, 466-67 (Minn.
1985) (remanding for further development of record on dispositive issues in administrative
appeal).
DEED persuasively asserts that the reco rd in this case was not sufficiently
developed to facilitate judicial review. The only documents included as exhibits in the
administrative record submitted to this cour t are the initial determ inations themselves,
relator’s appeals, and relator’s employer’s report of weekly wages earned by relator. There
is no evidence in the record that relator initiated an identity-theft investigation with DEED
in 2011 and subsequently co ntacted DEED regarding the a lleged identity theft and about
filing an appeal. Thus, there is no evidentia ry support for the ULJ’ s finding that Leinen
had actual notice of the initial determinations more than 20 days be fore he submitted his
administrative appeals.
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We are cognizant that Minn. Stat. § 268.105 , subd 7(d), authorizes this court to
reverse a ULJ’s decision if the findings are not supported by substantial evidence. And we
agree with the dissent that UL Js should be vigilant in deve loping administrative records
adequate to support judicial review. In th is case, however, the ULJ’s decision suggests
that she was relying on evidence that, had it pr operly been included in the record, would
support her decision to dismiss relators’ appeals as untimely. Under these circumstances,
we agree with DEED that it is appropriate to remand the matter to the ULJ for a hearing
and further development of the record, and redetermination of the issue of whether relator
timely filed administrative appeals of th e initial determinati ons of ineligibility,
overpayment, and fraud.
Remanded.

D-1

JESSON, Judge (dissenting)

I respectfully dissent from the court’ s decision to remand this matter.
In requesting a remand, re spondent Minnesota Department of Employment and
Economic Development (DEED) se eks a second chance to subs tantiate findings that it
concedes are presently unsupported by the administrative record. But this type of second
chance is regularly denied to people seeking to establish their entitlement to unemployment
benefits. Under Minnesota Statutes section 268.105, subdivision 2(c) (Supp. 2017), a ULJ
is precluded from considering additional ev idence on reconsideration unless a party
demonstrates (1) good cause for failing to submit evidence at the hearing and that it would
likely change the outcome, or (2) that evidence at the hearing was likely false and had an
impact on the hearing. Based on this requirement, this court has regularly denied requests
by unemployment-benefits applicants for remands for consideration of additional evidence.
See, e.g., Ywswf v. Teleplan Wireless Servs., Inc., 726 N.W.2d 525, 534 (Minn. App. 2007)
(affirming ULJ’s denial of additional evidentiary hearing). This court also has declined to
consider evidence that was not presented to the ULJ by these often-unrepresented parties.
See, e.g., Brisson v. City of Hewitt, 789 N.W.2d 694, 697 (Minn. App. 2010) (declining to
consider argument based on evidence that was not presented to the ULJ).
In other contexts, our supreme court has he ld that the failure to support findings
with evidence in the record requires reversal of administrative decision-making. See, e.g.,
In re Livingood, 594 N.W.2d 889, 891-92, 895 (Minn. 1999) (remanding for issuance of
conditional-use permit where record did not support findings in decision denying permit).
The supreme court has expressed a “reluctance to allow local boards an opportunity after
D-2

the fact to substantiate or justify earlier decisions” and admonished that “[g]overnmental
bodies must take seriously their responsibility to develop and preserve a record that allows
for meaningful review by appellate courts.” Id. at 894-95 (citation and alteration omitted).
We should not hold often unrepresented people seeking unemployment benefits to
a higher standard than a government agency w ith expertise. Because I believe that it is
fundamentally unfair to allow DEED a seco nd chance that unemployment-benefits
applicants are routinely denied, I would reverse the decision of the ULJ dismissing relator’s
appeal. See Minn. Stat. § 268.105, subd. 7(d) (Su pp. 2017) (authorizing this court to
reverse ULJ decisions that are unsupported by substantial evidence).