A Rye man has sued state officials over claims that he has to repay nearly $5,000 in unemployment benefits received during the COVID-19 pandemic.
Filed in Merrimack County Superior Court, the lawsuit opens with a scathing critique of Gov. Chris Sununu’s handling of the pandemic. And it raises federal law and constitutional challenges to efforts by the state Department of Employment Security to pursue overpayments to more than 10,000 New Hampshire residents.
According to the lawsuit, Claude Pottier, 67, has received contradictory information from Employment Security about the overpayments, and the department allegedly ignored his requests for an appeal.
“The easiest people to get money from are people who can’t afford a lawyer. You want a quick fix in government, you go after people like Claude,” said Michael Lewis, a former assistant attorney general who said he is representing Pottier for free.
Deputy Employment Security Commissioner Richard Lavers referred questions about the lawsuit to the Attorney General’s Office. But Lavers acknowledged that a November estimate that 10,000 people had received $25 million in overpayments may have been overstated.
An updated number of overpayments won’t be available for a few weeks, he said, noting the federal extensions of unemployment and the additional eligibility requirements that come with the extensions.
“Our focus has really been on making sure that eligible people move as seamlessly as possible to the federal extension,” Lavers said.
New Hampshire Legal Assistance, which helps poor people with non-criminal legal disputes, hears every week from people facing demands they return overpayments of unemployment benefits, said spokeswoman Sarah Palermo.
The state is only now getting to appeal hearings for people who requested them in September, October and November, she said.
A spokeswoman for the Attorney General’s Office said the complaint is under review. Kate Giaquinto would not comment on the case but said the office will file a pleading at the appropriate time.
According to the suit, Pottier was furloughed from his job at Private Jet Services in March 2020. He received unemployment until October, when he took a job at UPS, fearful that the state could not keep paying claims.
He worked the job for two months but quit, fearing the company had failed to take adequate precautions against COVID-19. He contracted COVID-19 shortly afterward.
Upon recovery, he started to look for work, but on Dec. 30 received eight statements claiming overpayment of jobless benefits.
“The text of each is small, difficult to read, and references laws and executive proclamations without sufficient specificity or guidance,” the suit reads.
The lawsuit says Employment Security never responded to Pottier’s appeal request. It says state law requires that an appeal be heard within 60 days, and that overpayments can’t be collected if the recipient was without fault.
The lawsuit charges Employment Security with failure to provide due process, illegal taking of property, illegal taxation and illegal government. The suit seeks monetary, consequential and enhanced damages, including double or triple damages.
A hearing on a temporary injunction — to halt interest accrual and repayment — has been scheduled for April 29.
Lewis, Pottier’s pro-bono lawyer, was hired as an assistant attorney general under Kelly Ayotte in 2007, and was a member of the criminal prosecution team in the capital murder trials of Michael Addison and John “Jay” Brooks.
He now teaches contract and sales law at UNH and Vermont law schools and works at the firm of Rath, Young and Pignatelli. He called himself a conservative and a one-time member of the Federalist Society.
The introduction of the lawsuit says Gov. Chris Sununu initially likened the novel coronavirus to the flu. According to the suit, the Republican governor then switched from one pole to the other, took unprecedented control of legislative and executive functions and commandeered the economy.
Meanwhile, the antiquated system at Employment Security exacerbated fear and panic across the state, the suit says.
It faults Sununu for diverting $50 million in CARES Act money to the state unemployment trust fund to lower unemployment insurance taxes on businesses by a half-percentage point.
And the suit says that efforts to pursue the overpayments contradict federal law.
“As this case demonstrates, defendants opted to turn the screws instead,” the suit reads.