Pers. Staffing, Inc. v. Ala. Dep't of Labor) (Ex parte Ala. Dep't of Labor)

• Decision Date: 14 April 2017
• Docket Number: 2160306
• Parties: EX PARTE ALABAMA DEPARTMENT OF LABOR (In re: Personnel Staffing, Inc. v. Alabama Department of Labor)
• Court: Alabama Court of Civil Appeals

236 So.3d 901

EX PARTE ALABAMA DEPARTMENT OF LABOR

(In re: Personnel Staffing, Inc.

v.Alabama Department of Labor)

2160306

Court of Civil Appeals of Alabama.

April 14, 2017

Joseph S. Ammons, gen. counsel, and Arthur F. Ray II, asst. gen. counsel, Alabama Department of Labor, Legal Division, for petitioner.

Christie D. Knowles and Haley K. Tucker of Knowles & Sullivan, LLC, Gadsden, for respondent.

THOMPSON, Presiding Judge.

The Alabama Department of Labor ("the Department") filed in this court a petition for a writ of mandamus challenging an order of the Etowah Circuit Court ("the trial court") denying the Department's motion to dismiss an administrative appeal filed by Personnel Staffing, Inc.

The materials submitted to this court indicate that the Department sent a letter dated July 25, 2016, to Personnel Staffing stating:

"We have been notified of a transfer of assets and employees from MANNING MICHAEL JASON, ADVANCED STAFFING LLC to your business effective 11/01/2015.

"Benefit cost charged and taxable payrolls credited to your predecessor's experience rating account are transferred to your account for tax rate purposes. Any subsequent benefit cost that would have been chargeable to your predecessor will be charged to your account.

"If you disagree with this determination, a written protest must be filed within fifteen (15) days from the date of this letter according to ALDOL Administrative Code 480–4–2–23. "

(Bold typeface in original.) We note that the parties have referred to this notification as the Department's determination of Personnel Staffing's "successor liability" for unemployment-compensation benefits.

It is undisputed that Personnel Staffing did not file a written protest of the July 25, 2016, successor-liability notification letter.

By letter dated July 28, 2016, the Department notified Personnel Staffing of its tax rate, effective January 1, 2016. That letter contained a notification that the "tax rate is final unless written request for review is submitted within 30 days" of the July 28, 2016, tax-rate notification letter.

On August 26, 2016, within the 30 days specified in the July 28, 2016, tax-rate notification letter, Personnel Staffing notified the Department that it was requesting a formal review of the Department's tax-rate determination. In that notification, Personnel Staffing disputed the Department's calculation of its unemployment-compensation tax by arguing that it had not acquired a new company or new employees—i.e., Personnel Staffing disputed its successor liability.¹

The Department, by letter dated September 8, 2016, notified Personnel Staffing that it had reviewed the July 28, 2016, tax-rate notification letter and had determined that the tax rate listed in that letter was correct. In doing so, the Department explained:

"Personnel Staffing, Inc., has been determined to meet the criteria of being a mandatory successor to Manning Michael Jones, d.b.a. Advanced Staffing LLC, as set forth in the Unemployment Compensation Laws of Alabama.

"Among the requirements to be made a successor set forth in Section 25–4–8(4) a. of the [unemployment-compensation] laws of Alabama is the acquisition of 65% of the employees of an existing business. Beginning the fourth quarter of 2015, Personnel Staffing, Inc., acquired 107 out of 145 former employees of Advanced Staffing LLC, approximately 74% of their employees. The employment of so many of Advanced Staffing LLC's employees satisfies the requirements of Alabama's [unemployment-compensation] laws and makes Personnel Staffing, Inc., a mandatory full-successor."

Personnel Staffing filed an appeal of the September 8, 2016, Department decision to the trial court. On November 18, 2016, the Department moved the trial court to dismiss Personnel Staffing's appeal. Personnel Staffing filed an opposition to the motion to dismiss. Apparently in response to that opposition, the Department, on January 13, 2017, filed in the trial court the affidavit of Jo Doyal, the supervisor of the Department's unemployment-compensation division. Thereafter, also on January 13, 2017, the trial court entered an order, based on its consideration of the parties' filings and the oral arguments it considered during a hearing on that date, in which the trial court denied the Department's motion to dismiss Personnel Staffing's appeal.

The Department has filed this petition for a writ of mandamus, arguing that the trial court lacked jurisdiction over Personnel Staffing's appeal because, it says, that appeal pertained to Personnel Staffing's arguments regarding the Department's determination of successor liability and, therefore, that the appeal was not timely. "We note that a lack of subject-matter jurisdiction may be raised at any time, and that the question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus. Ex parte Johnson, 715 So.2d 783, 785 (Ala. 1998)." Ex parte Flint Constr. Co., 775 So.2d 805, 808 (Ala. 2000). Further,

"[t]his Court has consistently held that the writ of mandamus is an extraordinary and drastic writ and that a party seeking such a writ must meet certain criteria. We will issue the writ of mandamus only when (1) the petitioner has a clear legal right to the relief sought; (2) the respondent has an imperative duty to perform and has refused to do so; (3) the petitioner has no other adequate remedy; and (4) this Court's jurisdiction is properly invoked. Ex parte Mercury Fin. Corp., 715 So.2d 196, 198 (Ala. 1997). Because mandamus is an extraordinary remedy, the standard by which this Court reviews a petition for the writ of mandamus is to determine whether the trial court has clearly abused its discretion. See Ex parte Rudolph, 515 So.2d 704, 706 (Ala. 1987)."

Ex parte Flint Constr. Co., 775 So.2d at 808.

In its petition for a writ of mandamus, the Department argues that Personnel Staffing failed to timely appeal its July 25, 2016, successor-liability determination. The Department relies on a portion of Ala. Admin. Code (Dep't of Labor), Rule 480–4–2–.23, which it referenced in the portion in bold typeface in its July 25, 2016, successor-liability notification letter to Personnel Staffing. That regulation states, in pertinent part:

"(3) Determination of Status of Employer. Employing units will have their liability under the Alabama Unemployment Compensation law determined promptly upon receipt of all the required information prescribed by statute or these rules. The employing unit will be notified of the determination by regular mail and, if appropriate, the notice shall contain the assigned account number and contribution rate. If the employer disagrees with the final determination, an administrative review of the facts involved in the liability decision will be conducted at the written request of the employer. The request shall be made within 15 days of the date the notice of determination is mailed and shall be directed to the attention of ‘Tax Operations.’ "

(Emphasis added.)

The Department's July 25, 2016, successor-liability notification letter stated that it had been notified that Advanced Staffing LLC had transferred its assets and employees to Personnel Staffing and that the "benefit costs" that Advanced Staffing LLC would have incurred would be charged to Personnel Staffing's account with the Department. Although the July 25, 2016, letter notified Personnel Staffing of its right to dispute that determination within 15 days, Personnel Staffing filed no appeal or challenge of the July 25, 2016, successor-liability determination.

Personnel Staffing relies on a portion of § 25–4–54, Ala. Code 1975, which provides for a 30–day period to appeal certain determinations by the Department. Section 25–4–54(h) provides:

"(h) Review of contribution rate, etc. Any employer may apply to the secretary [of the Department] for and shall be entitled to a review as to the determination of his or her benefit ratio and his or her contribution rate as fixed by his or her benefit ratio, provided such application is filed within 30 days of the date of the mailing by the secretary to the employer of the notice of such determination. Pending such review, such employer shall make all contribution payments otherwise required by this chapter at contribution rates fixed by the determination sought to be reviewed and resulting overpayments or underpayments of contributions by the employer shall, upon any redetermination, be adjusted or refunded pursuant to Section 25–4–137[, Ala. Code 1975 ]. Any employer may within 30 days after the date of notification by the secretary to such employer of notice of the ruling of the secretary upon such application for review appeal such ruling to the circuit court of any county wherein the employer is engaged in doing business, upon such terms and upon giving such security for costs as the court may upon application prescribe. Trial in that court shall be de novo with respect to his or her benefit ratio."

Both parties refer this court to Alabama Department of Industrial Relations v. AHI Linden Lumber, LLC, 68 So.3d 187 (Ala. Civ. App. 2011). In that case, the Alabama Department of Industrial Relations ("ADIR"), which is now the Department, see § 25–2–1.1, Ala. Code 1975, notified AHI Linden Lumber, LLC ("AHI"), by letter dated May 13, 2008, that ADIR had determined, among other things, that AHI was a " ‘successor in interest’ " to Linden Lumber Company, Ltd., 68 So.3d at 189. That letter notified AHI of its right to appeal the determination within 30 days. Id. The letter did not reference any authority upon which it based that 30–day appeal period. AHI did not file an appeal of that May 13, 2008, determination until October 2, 2008, although it did timely appeal a 2009 assessment. The trial court determined that AHI was not a successor in interest, and ADIR appealed. This court held that the trial court had erred in reversing ADIR's determination that AHI was a successor in interest because AHI had failed to timely appeal that...