Cassandra Caron & a. v. New Hampshire Department of Employment Security & a.

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                   THE SUPREME COURT OF NEW HAMPSHIRE

                               ___________________________

Hillsborough-southern judicial district
No. 2021-0478


                               CASSANDRA CARON & a.

                                           v.

      NEW HAMPSHIRE DEPARTMENT OF EMPLOYMENT SECURITY & a.

                                Argued: May 4, 2022
                          Opinion Issued: December 7, 2022

       Perez Law, of Medford, Massachusetts (Michael Perez on the brief and
orally), for the plaintiffs.


       John M. Formella, attorney general, and Anthony J. Galdieri, solicitor
general (Nathan W. Kenison-Marvin, assistant attorney general, on the brief
and orally), for the defendants.

      BASSETT, J. The plaintiffs, Cassandra Caron, Brandon Deane, Alison
Petrowski, and Aaron Shelton, appeal an order of the Superior Court (Colburn,
J.) denying their request for a temporary restraining order and preliminary
injunctive relief and dismissing their complaint. In the trial court, the plaintiffs
sought, pursuant to RSA 282-A:127 (2010), to require the defendants, the New
Hampshire Department of Employment Security (NHES) and its Commissioner,
to reinstate Pandemic Unemployment Assistance available under the
Coronavirus Aid, Relief, and Economic Security (CARES) Act, see Coronavirus
Aid, Relief, and Economic Security Act, 

, 

, 313 (2020) (codified as amended at 

 (amended 2021)).
On appeal, they argue that the court erred when it construed RSA 282-A:127
as imposing no obligation on the defendants to secure Pandemic
Unemployment Assistance for New Hampshire citizens and, therefore,
dismissed the complaint for failure to state a claim. Because we agree with the
trial court’s interpretation of RSA 282-A:127, we affirm.

       The record supports the following facts. In March 2020, in response to
the COVID-19 pandemic, Congress enacted the CARES Act. See Coronavirus
Aid, Relief, and Economic Security Act, 

 Stat. 281
(2020) (codified as amended in scattered sections of U.S.C.). The CARES Act
established, among other things, several temporary unemployment benefit
programs, see 

, including Pandemic Unemployment
Assistance (PUA), 

 § 9021. PUA provided unemployment compensation to
individuals who were otherwise able and available for work and who were
either unemployed for a COVID-19 related reason, or “self-employed, . . .
seeking part-time employment, [did] not have sufficient work history, or
otherwise would not qualify for regular unemployment or extended benefits
under State or Federal law.” Id. § 9021(a)(3)(A)(ii), (b). Congress made these
benefits available for periods of unemployment that occurred between January
27, 2020 and September 6, 2021. Id. § 9021(c)(1)(A)(i); American Rescue Plan
Act of 2021, 

(a), § 9021(c)(1)(A)(ii), 

, 118
(2021) (amending 

(c)).

       The CARES Act required the Secretary of the United States Department
of Labor to provide PUA benefits to eligible individuals “through agreements
with States which, in the judgment of the Secretary, have an adequate system
for administering such assistance through existing State agencies.” 

(f)(1). Once a state entered into an agreement with the Secretary to
administer PUA, the federal government funded the entire program — the cost
of the assistance provided to individuals as well as the cost of administrative
expenses incurred by the state. See 

 § 9021(f)(2).

       On March 28, 2020, the Governor signed an agreement with the
Department of Labor, committing to administer PUA to New Hampshire
citizens. The agreement provided that either party could terminate it “on thirty
days’ written notice.” NHES thereafter distributed PUA to eligible individuals,
including the plaintiffs, for over a year. In May 2021, however, the Governor
provided the Secretary of the Department of Labor thirty days’ notice that New
Hampshire would be terminating its administration of PUA prior to expiration
of funding for the program. That termination became effective June 19, 2021.
Consequently, the plaintiffs received no PUA benefits between that date and
September 6, 2021, when federal funding for the program expired.


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       In August 2021, the plaintiffs filed this action seeking a declaratory
judgment that the defendants had violated RSA 282-A:127 by “terminating and
failing to provide PUA benefits to covered individuals in New Hampshire
through September 6, 2021,” and requesting a writ of mandamus compelling
the defendants to reinstate PUA. Relying on RSA 282-A:127, they also moved
for a temporary restraining order and preliminary injunction ordering NHES to
reinstate PUA, including any back benefits. RSA 282-A:127, entitled “State-
Federal Cooperation,” provides, in relevant part:

          In the administration of this chapter, the commissioner of the
      department of employment security shall cooperate to the fullest
      extent consistent with the provisions of this chapter, with the
      United States Department of Labor, and is authorized and directed
      to take such action, through the adoption of appropriate rules, the
      adoption of administrative methods and standards, as may be
      necessary to secure to this state and its citizens all advantages
      available under the provisions of the Social Security Act, under the
      provisions of section 3302 of the Federal Unemployment Tax Act
      and under the provisions of the Wagner-Peyser Act approved June
      6, 1933, as amended . . . .

RSA 282-A:127, I. The plaintiffs argued that “PUA is one of the many
[unemployment insurance] programs provided ‘under’ the Social Security Act,”
and, given the mandatory language of the statute, the defendants were
obligated to administer PUA to the fullest extent possible to fulfill the statutory
directive to “secure to this state and its citizens all advantages available under”
the Social Security Act. (Quotation omitted.) The defendants objected.

       Following a hearing, the court denied the plaintiffs’ request for a
temporary restraining order or preliminary injunction because it determined
that they had not shown that they were likely to succeed on the merits of their
claim that the defendants had violated RSA 282-A:127. See N.H. Dep’t of
Envtl. Servs. v. Mottolo, 

 (2007) (stating that a party seeking an
injunction must demonstrate, among other things, that “it would likely succeed
on the merits”). The court rejected the premise that PUA is an advantage
“available under the provisions of the Social Security Act,” RSA 282-A:127, I,
reasoning that PUA was created by, and codified as part of, the CARES Act, not
the Social Security Act. It concluded that RSA 282-A:127 “ha[d] no application
to PUA benefits,” and, therefore, “neither [the Commissioner] nor [NHES] ha[d]
a legal obligation to secure” or administer PUA.

       In addition, the court sua sponte dismissed the plaintiffs’ complaint. The
trial court reasoned that the plaintiffs’ claims rested on a flawed interpretation
of RSA 282-A:127, and, therefore, failed to state a claim upon which relief may
be granted. The record before us does not indicate that the plaintiffs sought
reconsideration or otherwise objected to this procedure. This appeal followed.


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      On appeal, the plaintiffs argue that the trial court erred when it
concluded that PUA was not an advantage “available under the provisions of
the Social Security Act.” (Quoting RSA 282-A:127, I.) The defendants counter
that the trial court’s construction of the statute was correct. The parties’
dispute therefore centers on whether PUA was an advantage “available under
the provisions of the Social Security Act.” RSA 282-A:127, I. We agree with the
defendants that it was not.

       Resolution of this issue requires us to interpret RSA 282-A:127, I, which
presents a question of law that we review de novo. See Appeal of Mullen, 

 (2016). When interpreting statutory language, we first look to
the language of the statute itself, and, where possible, construe that language
according to its plain and ordinary meaning. See 

 We examine the words
and phrases not in isolation, but, rather, within the context of the statute as a
whole. Petition of Carrier, 

 (2013). In doing so, we discern
legislative intent from the statute as written. 

 We will neither ignore the
plain language of the statute nor add words that the lawmakers did not see fit
to include. Colburn v. Saykaly, 

, 164-65 (2020). We construe all
parts of the statute together to effectuate its overall purpose and avoid an
absurd or unjust result. Carrier, 

.

       The plain meaning of “available” is “that [which] is accessible or may be
obtained,” and the meaning of “under” in this context is “within the grouping or
designation of.” Webster’s Third New International Dictionary 150, 2487
(unabridged ed. 2002). “[P]rovision,” when used in reference to a statute,
means “a clause in” that statute. Id. at 1827. Considering the meaning of
these words together and in the context of RSA 282-A:127, we construe
“available under the provisions of the Social Security Act” to mean that the
advantage may be obtained “within the grouping” of clauses in the Social
Security Act (SSA).

       PUA did not fit this description. PUA was created by, and the funds
necessary for its implementation were appropriated in, a provision of the
CARES Act, 

 — a statute entirely separate and apart from the
SSA, see 42 U.S.C §§ 301-1397mm. In establishing PUA, Congress did not
amend the SSA. Compare 

, 134 Stat. at 313-17
(creating PUA without amending SSA), with 

(b),
134 Stat. at 317-18 (separate provision of CARES Act amending provision of
SSA to implement emergency unemployment relief for governmental entities
and nonprofit organizations). Given this reality, we cannot conclude that PUA
was obtainable by virtue of any provision of the SSA.

       The plaintiffs argue to the contrary that PUA was “available under the
provisions of the Social Security Act” because the funds for the program “come
from and [were] processed through the provisions of the Social Security Act,
specifically the Unemployment Trust Fund.” They also argue that PUA was


                                        4
“available under” the SSA because it was required to be administered in
accordance with certain provisions of the SSA. We are unpersuaded.

       The funding for PUA did not “come from” the Unemployment Trust Fund;
it was appropriated in the CARES Act from the general fund of the Treasury.
See 

(g)(1)(B), (2)(B). The funding did pass through the
Unemployment Trust Fund, which was established by the SSA. See 

(a). The CARES Act provides that the funding for PUA be transferred
from the general fund of the Treasury into the Unemployment Trust Fund and
that the Trust Fund “be used to make payments to States.” 

(g)(1)(A), (2)(A). In so providing, the Act refers to the relevant provisions
of the SSA that established the Unemployment Trust Fund and certain
accounts within the Fund. See 

 (citing 

, 1104, 1105). The
CARES Act merely capitalized on the pre-existing accounting system within the
Unemployment Trust Fund as a means of transferring PUA funding to the
states. See 

 Similarly, to promptly respond to the economic emergency
caused by the pandemic, the CARES Act incorporated the SSA’s well-
established administrative rules rather than create a new administrative
system. See Unemployed Workers United v. Ducey, 

, 295 (Ariz.
Ct. App. 2022) (explaining that, “[b]ecause [Congress] had no time to blaze a
new administrative path” in response to the “unprecedented spike in the
unemployment rate” caused by the pandemic, it “turned to the time-tested,
well-worn ‘Social Security infrastructure’ and ‘methods of administration’” to
distribute unemployment benefits). In short, the fact that PUA was
administered using existing SSA systems and that PUA monies flowed through
the SSA accounting system on their way to New Hampshire citizens does not
mean that the benefits were obtainable from, or “available under,” the SSA.

       For all these reasons, we conclude that the trial court correctly
interpreted the statutory language “advantages available under the provisions
of the Social Security Act” as inapplicable to PUA. We observe that we are not
the only court to have reached this conclusion. The South Carolina Supreme
Court reached the same result when interpreting a South Carolina statute with
language that is nearly identical to RSA 282-A:127. See Brannon v. McMaster,

, 549-50 (S.C. 2021) (per curiam) (concluding that PUA is not
an advantage “available under the provisions of the Social Security Act”
(quotation and emphasis omitted)). But see State ex rel. Bowling v. DeWine,
No. 21AP-380, 

, at ¶37, ¶47 (Ohio Ct. App. 2021) (reaching
opposite result under nearly identical statutory language), dismissed as moot
on appeal, __ N.E.3d __, 

(Ohio 2022). Other courts have
reached the same conclusion that we do when interpreting analogous language
in their respective state statutes. See Ducey, 518 P.3d at 294-96; Holcomb v.
T.L., 

, 1181-84 (Ind. Ct. App. 2021).

      The plaintiffs argue that our interpretation of RSA 282-A:127 “would lead
to an absurd and unjust negation of [the defendants’] own authority” under the


                                         5
statute. They first claim that our construction of the statute would mean that
the defendants “did not have the authority to have secured [PUA] in the first
place.” We disagree. The plaintiffs’ argument relies upon an unfounded
factual premise: that the defendants secured PUA. In fact, the Governor,
through his actions alone, secured PUA.

      The plaintiffs next argue that our construction of the statute is absurd
for two additional reasons: first, the defendants would not have had the
authority, in the past, to secure crisis-related unemployment benefits available
under two federal statutes that are not enumerated in RSA 282-A:127; and,
second, in the future, they will not have the ability to secure funds available
under new federal statutes unless the legislature adds those statutes to RSA
282-A:127. Again, we disagree. Simply because the defendants may not have
the power to secure a particular federal unemployment benefit does not
necessarily mean that New Hampshire will have to forgo federal funding. As
evidenced by this case, the Governor — not the defendants — has secured
federal unemployment benefits for New Hampshire in the past, and may do so
again in the future. Alternatively, should new federal benefits not already
within the scope of RSA 282-A:127, I, become available, by amending the
statute, the legislature may authorize the defendants to secure those funds.

        To be clear, our holding is not that the defendants have no authority to
secure federal unemployment assistance funds, because, in fact, they do have
such authority. See, e.g., RSA 282-A:127, I (authorizing the Commissioner to
secure advantages available under the provisions of the SSA and two other
federal statutes); RSA 282-A:112, II (2010) (authorizing the Commissioner,
“[f]or the purpose of . . . maintaining free public employment offices,” to “enter
into agreements with” and accept funding from federal agencies that administer
unemployment compensation laws). Rather, we conclude only that RSA 282-
A:127, I, did not require the defendants to secure the benefit at issue here —
PUA — and that our construction of the statute does not lead to an absurd
result.

      In sum, we conclude that the trial court did not err when it determined
that RSA 282-A:127 does not obligate the defendants to secure PUA for New
Hampshire citizens for the entire federally-funded period. Accordingly, we
affirm the trial court’s dismissal of the complaint.

                                                        Affirmed.


     MACDONALD, C.J., and HICKS, HANTZ MARCONI, and DONOVAN, JJ.,
concurred.




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