2013 UT App 74
_________________________________________________________
THE UTAH COURT OF APPEALS
HELENA LEVIER,
Petitioner,
v.
DEPARTMENT OF WORKFORCE SERVICES,
WORKFORCE APPEALS BOARD,
Respondent.
Memorandum Decision
No. 20110816‐CA
Filed March 21, 2013
Original Proceeding in this Court
Michael E. Bulson, Attorney for Petitioner
Jaceson R. Maughan, Attorney for Respondent
JUDGE J. FREDERIC VOROS JR. authored this Memorandum
Decision, in which JUDGE CAROLYN B. MCHUGH concurred.
JUDGE GREGORY K. ORME dissented, with opinion.
VOROS, Judge:
¶1 Petitioner Helena Levier seeks judicial review of orders of
the Workforce Appeals Board concluding that she was ineligible to
receive unemployment benefits while out of the country and
imposing an overpayment and civil penalty for fraud. We set aside
the Board’s orders and direct it to reconsider the orders in light of
Dorsey v. Department of Workforce Services, Workforce Appeals Board,
2012 UT App 364, 294 P.3d 580.
¶2 While Levier’s appeal was pending, we issued our decision
in Dorsey. Dorsey’s holding applies to Levier’s pending appeal. See
Levier v. Department of Workforce Services
Merrill v. Utah Labor Comm’n, 2009 UT 74, ¶ 5, 223 P.3d 1099
(discussing general rules of retroactivity); Kendell v. Department of
Workforce Servs., Workforce Appeals Bd., 2013 UT App 73, ¶ 15
(applying Dorsey to a case pending on appeal when Dorsey was
issued); cf. Betz v. Trainer Wortham & Co., 610 F.3d 1169, 1170–71
(9th Cir. 2010) (vacating lower court’s decision and remanding for
reconsideration in light of an intervening Supreme Court decision).
¶3 In Dorsey, we held that the Board’s interpretation of its rules
controlling availability was inconsistent with the governing statute.
See 2012 UT App 364, ¶ 21. We concluded that a claimant who is
presumed unavailable under Utah Administrative Code R994‐403‐
112c(2)(a) due to foreign travel could overcome that presumption
“by showing that the claimant made arrangements to be contacted
and could return quickly enough to respond to any opportunity for
work.” 2012 UT App 364, ¶ 23; see also Utah Admin. Code Ann.
R994‐403‐112c(2)(a) (LexisNexis Supp. 2011).
¶4 Today we issue an opinion in Kendell v. Department of
Workforce Services, Workforce Appeals Board, 2013 UT App 73, a
similar case that was also pending on appeal when Dorsey was
issued. Kendell involved a claimant who had filed for Utah
unemployment benefits while traveling in Europe. See id. ¶¶ 2, 5.
Kendell claimed that he was reachable by cell phone and email and
could return to Utah within twenty‐four hours to begin work if
necessary. See id. ¶ 8. The administrative law judge found that
Kendell’s foreign travel “‘limited his availability to return to
work’” due to the cost and time required to travel back to Utah, but
the Board stated that Kendell “‘could have returned immediately.’”
Id. ¶¶ 9–10. We noted that the Board appeared to be “making an
assumption for the purposes of argument, rather than making a
factual determination regarding Kendell’s ultimate availability.” Id.
¶ 16. Because the Board made its decision based on an incorrect
interpretation of the rule and “never addressed the issue of
whether Kendell could have returned from Europe quickly enough
to respond to any opportunity for work and thereby overcome the
presumption of unavailability created by his absence from the
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United States,” we set aside the Board’s decision and directed it to
reconsider the case in light of Dorsey. Id. ¶¶ 15, 17.
¶5 The facts of the present case are similar to Dorsey and
Kendell. Levier traveled to Brazil to sign a power of attorney to aid
in the settlement of her parents’ estate. She was in Brazil for two
weeks and filed for Utah unemployment benefits while there.
Levier testified that although she was required to be in Brazil to
sign the power of attorney, she could have returned within thirty‐
six hours if necessary. She presented evidence that she had a
standby airline pass because her son is a pilot. Levier also testified
that she continued applying for jobs in Utah while she was in
Brazil, and she provided exhibits demonstrating that potential
employers had her email address.
¶6 The Board concluded that Levier’s foreign travel rendered
her ineligible regardless of whether she could have returned
immediately to accept work. In addition, the Board stated that “it
is not clear that [Levier] could have easily extricated herself from
the matters she was dealing with in Brazil in order to immediately
return to the United States for a job” because “the personal
business that required her to travel to Brazil took two weeks to
complete.” As the Board explained its reasoning, “If [Levier] was
consumed by her obligations in Brazil for two weeks she was
clearly not available for full‐time work in the United States.
Likewise, if she extended her stay for personal reasons, she cannot
be considered available for full‐time work in the United States.”
¶7 These findings are colored by an incorrect interpretation of
the rules governing availability. As a result, the Board did not
determine clearly whether Levier was in fact available. As in
Kendell, the Board appears to have been “making an assumption for
the purposes of argument, rather than making a factual
determination regarding [Levier’s] ultimate availability.” See
Kendell, 2013 UT App 73, ¶ 16. The Board assumed that Levier was
required to be in Brazil for two weeks because she was in Brazil for
two weeks, when the evidence establishes only that she was
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Levier v. Department of Workforce Services
required to be in Brazil to sign a power of attorney. The Board also
assumed, in the alternative, that Levier extended her trip for
personal reasons, but this would only disqualify Levier under a
pre‐Dorsey reading of the rule.
¶8 Because the Board’s rulings were made in the context of an
incorrect interpretation of the rules governing availability, we set
aside the Board’s orders and direct it to reconsider the orders in
light of Dorsey.
ORME, Judge (dissenting):
¶9 I would not prolong Levier’s uncertainty nor inconvenience
the Board by having it needlessly reconsider its decision when the
proper outcome is so obvious. The evidence outlined in paragraph
5 of the lead decision stands uncontroverted. Thus, not only are the
Board’s findings “colored by an incorrect interpretation of the rules
governing availability,” see supra ¶ 7, its “findings”are really just
flawed assumptions that are contrary to the evidence.
¶10 To be sure, Levier was physically farther away than was the
petitioner in Dorsey v. Department of Workforce Services, 2012 UT
App 364, 294 P.3d 580. But as the mother of an airline pilot in
possession of a standby airline pass, she was, as a practical matter,
every bit as available to return promptly to employment in Utah if
such an opportunity materialized as was the petitioner in Dorsey,
who was encamped along a beach in Mexico to which he had
driven by motor vehicle.
¶11 The Department did not establish, under the correct legal
standard explained in Dorsey, that Levier was ineligible to receive
unemployment benefits because of her brief visit to Brazil on
important family business, much less that she had perpetrated a
fraud on the Department. In my view, we should simply vacate the
Board’s order and leave it at that.
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