Corcoran v. Dept. of Employment & Training (2004-267)

2005 VT 52

[Filed 12-May-2005]

                                 ENTRY ORDER

                                 2005 VT 52

                      SUPREME COURT DOCKET NO. 2004-267

                              MARCH TERM, 2005

  Timothy Corcoran	               }	APPEALED FROM:
                                       }
                                       }
       v.	                       }	Employment Security Board
                                       }	
  Department of Employment & Training  }
                                       }	DOCKET NO. 001-04-195-01


             In the above-entitled cause, the Clerk will enter:


       ¶  1.  Appellant Timothy Corcoran, the Town Clerk of Bennington,
  Vermont, appeals a decision of the Employment Security Board holding that
  he lacked standing to appeal a determination of the Department of
  Employment and Training (DET).  We affirm.

       ¶  2.  The facts here are not in dispute.  In October 2003, Mr.
  Corcoran submitted a status report to DET in order to register as an
  employer liable to the unemployment insurance fund for coverage for the
  Assistant Town Clerk, his lone employee.  In December 2003, DET advised Mr.
  Corcoran: (1) that he was "not the employer for unemployment purposes of
  any individual acting in the capacity of Assistant Town Clerk;" and (2)
  that "we have determined your business to be non-liable at this time." 
  After Mr. Corcoran requested review, a DET appeals referee reversed the
  non-liable determinations, concluding that Mr. Corcoran was the assistant
  clerk's employer and was liable for unemployment contributions.  The DET
  Commissioner appealed to the Board, which held that Mr. Corcoran was not an
  "aggrieved" party under 21 V.S.A. § 1337a(a) and vacated the referee's
  decision. Mr. Corcoran then appealed to this Court.
   
       ¶  3.  Because the facts are not in dispute, we need only consider
  whether the Board's legal determination of Mr. Corcoran's status as an
  "aggrieved" party was correct-a question of law we review de novo.  See
  Shain v. Ellison, 356 F.3d 211, 214 (2d Cir. 2004) (noting that "[t]he
  existence of standing is a question of law").  Under § 1337a(a), an
  employer has standing to petition the Commissioner for a hearing before a
  referee only if it is "aggrieved by an administrative determination."  In
  applying other statutes that extend private remedies or appeal rights to
  "aggrieved" parties, we have "applied general standing doctrine," which
  requires that plaintiff suffer an "injury in fact."  Blum v. Friedman, 172
  Vt. 622, 624, 782 A.2d 1204, 1207 (2001) (mem.) (addressing 1 V.S.A. §
  314(b), the private remedy provision of the open meeting law); see also In
  re Diel, 158 Vt. 549, 552, 614 A.2d 1223, 1225-26 (1992) (finding that
  petitioners were "aggrieved" under Vermont's Administrative Procedure Act,
  3 V.S.A. § 815(a)).  Therefore, to have standing under 21 V.S.A. §
  1337a(a), a party must show an "invasion of a legally protected interest,"
  Hinesburg Sand & Gravel Co. v. State, 166 Vt. 337, 341, 693 A.2d 1045, 1048
  (1997) (quotations omitted), resulting from a DET administrative
  determination.

       ¶  4.  Because DET's non-liable determinations neither required Mr.
  Corcoran to contribute to the unemployment insurance trust fund nor imposed
  any other obligation, the Board correctly recognized that they "do not deny
  a property right, impose a burden, or cause any cognizable injury or
  recognizable harm."  See Akroyd v. R.I. Dep't of Employment §., Bd. of
  Review, 585 A.2d 637, 639 (R.I. 1991) (holding that employer lacked
  standing to challenge decision finding former employee eligible for
  unemployment benefits, because decision did not impact employer's liability
  to unemployment fund).  In addition, as the State points out, the
  unemployment statutes expressly apply to employees of "this state or any
  political subdivision thereof."  21 V.S.A. § 1301(6)(A)(x)(II).  Thus, this
  case does not implicate the assistant clerk's eligibility for unemployment
  benefits, so that Mr. Corcoran's argument that he has a "direct, financial
  interest in whether his assistant qualifies for unemployment compensation"
  must fail.  Mr. Corcoran did not suffer an invasion of any legally
  protected interest, and thus he lacked standing to appeal the non-liable
  determinations. 

       Affirmed.



                                       BY THE COURT:


                                       _______________________________________
                                       Paul L. Reiber, Chief Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice
     
                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Frederic W. Allen, Chief Justice (Ret.),
                                       Specially Assigned





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