McKee v. Division of Employment Security

SHERRI B. SULLIVAN, Chief Judge. Robert McKee (Claimant) appeals from the decision of the Labor and Industrial Relations Commission (Commission) denying his application for review as untimely. We dismiss the appeal for lack of jurisdiction. A deputy of the Division of Employment Security (Division) concluded that Claimant had been overpaid $750 in unemployment benefits because he was paid benefits during a period he earned wages. Claimant appealed to the Appeals Tribunal, which modified the deputy’s determination but concluded Claimant still owed $750 in an overpayment. The Appeals Tribunal mailed its decision to Claimant on September 29, 2003. Claimant then sought further review by mailing an application for review to the Commission on October 30, 2003. The Commission denied the application for review, concluding it was untimely under Section 288.200.1 Claimant now appeals to this Court. The Division has filed a motion to dismiss the appeal, arguing that Claimant’s untimely appeal to the Commission divested this Court of jurisdiction to consider his appeal. Claimant has not filed a response to the motion. Section 288.200.1 provides a claimant with thirty (30) days from the mailing of the Appeals Tribunal decision to file an application for review with the Commission. Here, the Appeals Tribunal certified that it mailed its decision to Claimant on September 29, 2003. Thus, Claimant’s ap [613] plication for review to the Commission was due on October 29, 2003. Claimant mailed his application for review to the Commission on October 30, 2003, and therefore it was untimely. In his notice of appeal to this Court, Claimant contends that his application for review to the Commission was timely because he (1) mailed it on October 28, 2003, and (2) the Appeals Tribunal decision was dated October 1, 2003. However, the record on appeal shows that Claimant’s application for review is postmarked October 30, 2003. Claimant may have written his letter on October 28th, but he did not mail it until October 30. When an application for review is mailed, it is “deemed to be filed as of the date endorsed by the United States post office on the envelope or container in which such paper is received.” Section 288.240. In addition, the Appeals Tribunal decision is clearly dated September 29, 2003, not October 1, 2003. Claimant’s failure to file his application for review in a timely fashion with the Commission divested both the Commission and this Court of jurisdiction. Bass v. Yong Min Kim, 101 S.W.3d 333 (Mo.App. E.D.2003). Section 288.200 provides no mechanism for filing a late application for review with the Commission and the procedures are mandatory. McAtee v. BioMedical Applications of Missouri, Inc., 87 S.W.3d 894, 895 (Mo.App. E.D.2002). The Division’s motion to dismiss is granted and Claimant’s appeal is dismissed for lack of jurisdiction. LAWRENCE E. MOONEY, J., and GEORGE W. DRAPER III, J., concur. Footnotes [1] All statutory references are to RSMo 2000, unless otherwise indicated.